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Clarence City Council v Howlin

Clarence City Council v Howlin

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Case Copied 30 January 2019 61 min read

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[2019] TASFC 1

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Clarence City Council v Howlin [2019] TASFC 1

PARTIES:  CLARENCE CITY COUNCIL
  v
  HOWLIN, Darryl Robert

QIN, Lihua
SHI, Xiaomin

FILE NO: FCA 3837/2016
JUDGMENT

APPEALED FROM: Clarence City Council v Howlin [2016] TASSC 61

DELIVERED ON:  30 January 2019
DELIVERED AT:  Hobart
HEARING DATE:  6 March 2018
JUDGMENT OF:  Blow CJ, Brett J, Marshall AJ

CATCHWORDS:

Conveyancing – Matters arising after completion – Merger – Contracts requiring vendor to grant rights of way over his adjacent land – Rights of way created by registered transfers – Easements not recorded on certificate of title of servient land – Whether doctrine of merger applies to Torrens title land – Whether obligations as to granting of rights of way merged on registration of transfers of dominant land.
Real Property Act 1862 (Tas), s 35(4).
Land Titles Act 1980 (Tas), s 48(7)

Knight Sugar Co Ltd v Alberta Railway and Irrigation Co [1938] 1 All ER 266; Svanosio v McNamara (1956) 96 CLR 186; West v Read (1913) 13 SR (NSW) 575; Hawkins v Gaden (1925) 37 CLR 183; Pallos v Munro (1970) 72 SR (NSW) 507; Montgomery v Continental Bags (NZ) Ltd [1972] NZLR 884; Pascon Pty Ltd v San Marco in Lammis Cooperative Social Club Ltd [1991] 2 VR 227; Pearce v Hood [1980] Tas R 159, referred to.

Aust Dig Conveyancing [1181]
Real Property – Torrens title – Indefeasibility of title – Exceptions to indefeasibility – Omitted or misdescribed easement – Generally – Easements created by transfers under Real Property Act 1862 (Tas) – Whether easements "created by deed" before the servient tenement became subject to that Act or the Land Titles Act 1980 (Tas) – Whether equitable easements by virtue of promises to grant easements in contracts of sale.

Land Titles Act 1980 (Tas), ss 40(3)(e)(ia), 40(3)(e)(ii).
Aust Dig Real Property [1254]

REPRESENTATION:

Counsel:
             Appellant:  S B McElwaine SC
             First respondent:  In person
             Other respondents:  No appearance
Solicitors:
             Appellant:  Shaun McElwaine + Associates

Judgment Number: [2019] TASFC 1
Number of paragraphs: 105

Serial No 1/2019
File No FCA 38/37/2016

CLARENCE CITY COUNCIL v DARRYL ROBERT HOWLIN,
LIHUA QIN and XIAOMIN SHI

REASONS FOR JUDGMENT FULL COURT

BLOW CJ
BRETT J
MARSHALL AJ
30 January 2019

Orders of the Court

Appeal allowed.

Judgment dismissing action 823/2014 set aside.

Action remitted to trial judge for further hearing and determination according to law, and in accordance with the findings of fact made upon the determination of the appeal.

Serial No 1/2019
File No FCA 38/37/2016

CLARENCE CITY COUNCIL v DARRYL ROBERT HOWLIN,
LIHUA QIN and XIAOMIN SHI

REASONS FOR JUDGMENT FULL COURT

BLOW CJ
BRETT J
MARSHALL AJ
30 January 2019

This appeal concerns the consequences of some shambolic conveyancing work in the years from 1945 to 1952 in relation to the subdivision of certain land at Opossum Bay. The primary issue is whether unregistered rights of way…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] TASFC 1
Decision Date: 30 January 2019

CaseChat Overview and Summary

Clarence City Council (the Council) and Mr Howlin were parties to a dispute concerning obligations arising from the sale of land under the Torrens system. The dispute centred on whether certain contractual obligations to grant rights of way over adjacent land, which were not recorded on the certificate of title for the servient land, had merged with the registration of the transfers of the dominant land. The matter was heard by the Supreme Court of Tasmania.

The central legal issues before the Court were whether the doctrine of merger applies to land under the Torrens system, and specifically, whether contractual obligations to grant rights of way merged upon the registration of transfers of the dominant land, even though these rights were not noted on the certificate of title of the servient land.

The Court considered the nature of the Torrens system and the effect of registration. It was held that the doctrine of merger, which typically extinguishes antecedent contractual rights upon the execution of a deed or registration of a transfer, does not apply in the same way to Torrens title land. The Court reasoned that the Torrens system provides a statutory framework for indefeasibility of title, and that contractual rights that are not registered or otherwise protected under the Act do not automatically merge. The Court distinguished between the creation of an easement and the contractual obligation to create one, finding that the latter could survive registration if not extinguished by other means.

The Court ultimately found that the contractual obligations of Mr Howlin to grant the rights of way had not merged with the registration of the transfers of the dominant land. The specific orders made by the Court would depend on the precise nature of the relief sought and granted, but the core finding was that the unregistered rights of way, arising from contractual obligations, were not extinguished by the registration of the transfers.

Orders