Clarence City Council v Howlin

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[2016] TASSC 61

COURT:  SUPREME COURT OF TASMANIA

CITATION:                Clarence City Council v Howlin [2016] TASSC 61

PARTIES:  CLARENCE CITY COUNCIL
  v
  HOWLIN, Darryl Robert
  QIN, Lihua
  SHI, Xiaomin

McCORMACK, Andrew John
  McCORMACK, Christine Lynette
  CLARKSON, Robert Henry
  CLARKSON, Janet Rose
  CUPPARI, Michael
  CUPPARI, Meredith Ann
  TAPPING, Ralph Desmond
  TAPPING, Beverley Anne
  GRIGGS, Nicholas John
  GRIGGS, Janet Maree
  ATKINS, Walter George
  v
  QIN, Lihua
  SHI, Xiaomin
  RECORDER OF TITLES

FILE NOS:  823/2014

1010/2014

DELIVERED ON:  21 November 2016
DELIVERED AT:  Launceston
HEARING DATES:  15 – 18 March 2016
JUDGMENT OF:  Pearce J

CATCHWORDS:

Real Property – Torrens title – Indefeasibility of title – Exceptions to indefeasibility – Omitted or misdescribed easement – Generally – Exception confined to when land brought under Torrens system.

Land Titles Act1980 (Tas), s 40(3)(e)(ia).
Dobbie v Davidson (1991) 23 NSWLR 625, applied.
Parramore v Duggan [1995] HCA 21, 183 CLR 633, considered.
Aust Dig Real Property [1254]

Real Property – Torrens title – Indefeasibility of title – Exceptions to indefeasibility – Generally – Equitable easement not established.

Land Titles Act1980 (Tas), s 40(3)(e)(ii).
Parramore v Duggan [1995] HCA 21, 183 CLR 633, considered.
Aust Dig Real Property [1242]

Statutes – Acts of parliament – Interpretation – Interpretation Acts and provisions – Preservation of rights, liabilities and legal proceedings on amendment, repeal, lapsing etc of Act or provision – Accrued right, privileges and liabilities – Acquired right to easement as exception to indefeasibility of servient title under repealed Act.

Acts Interpretation Act 1931 (Tas), s 16(1)(c).
Aust Dig Statutes [1053]

Statutes – Acts of parliament – Interpretation – Interpretation Acts and provisions – Preservation of rights, liabilities and legal proceedings on amendment, repeal, lapsing etc of Act or provision – Contrary intention – Preservation of right contrary to principles of Torrens system of title by registration.

Acts Interpretation Act 1931 (Tas), s 16(1)(c).
Real Property Act 1862 (Tas), s 40(b).
Land Titles Act 1980 (Tas), ss 40(3), 173(2).
Breskvar v Wall (1971) 126 CLR 376; Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45, 233 CLR 528; Queensland Premier Mines Pty Ltd v French [2007] HCA 53, 235 CLR 81, referred to.
Aust Dig Statutes [1054]

Real Property – Easements – Easements generally – Creation – By express agreement or under statute – Statutory easements.

Conveyancing and Law of Property Act1884 (Tas), s 84J.
Aust Dig Real Property [1471]

REPRESENTATION:

Counsel:

Plaintiff (823/2014):  S B McElwaine SC
             First Defendant:  In person
             Second Defendant:  In person

Third Defendant:  No appearance

Plaintiffs (1010/2014):  A Walker
             First Defendant:  In person
             Second Defendant:  No appearance

Third Defendant:  P Turner

Solicitors:

Plaintiff (823/2014):  Shaun McElwaine + Associates

Plaintiffs (1010/2014):                   Dobson Mitchell & Allport
             Third Defendant:  Office of the Solicitor-General

Judgment Number:  [2016] TASSC 61
Number of paragraphs:  137

Serial No 61/2016

File No  823/2014

1010/2014

CLARENCE CITY COUNCIL v…

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Details
Case
[2016] TASSC 61
Decision Date

CaseChat Overview and Summary

Clarence City Council sought to enforce an easement over land owned by Howlin. The dispute centred around whether the City Council's title to the easement was subject to exceptions to indefeasibility under the Land Titles Act 1980 (Qld). The Supreme Court of Queensland was tasked with determining whether the City Council could enforce the easement against Howlin despite the omission of the easement from the Register of Titles.

The court had to address whether the omission of the easement from the City Council's title constituted an exception to indefeasibility under section 40(3)(e) of the Land Titles Act 1980. Additionally, the court considered whether an equitable easement could be established, given the City Council's long-term use of the easement without the owner's consent. The court also examined whether the easement was preserved under the repealed Real Property Act 1862 (Qld), despite the Land Titles Act's introduction.

The court held that the omission of the easement from the City Council's title did not constitute an exception to indefeasibility because the omission was not an "easement arising by implication or under a statute" as contemplated by section 40(3)(e). The court reasoned that the omission exception applied only when land was first brought under the Torrens system, not in subsequent dealings. Furthermore, the court found that the City Council had not established an equitable easement, as it had not shown that Howlin was aware of and acquiesced in the City Council's use of the easement. Lastly, the court determined that the City Council's right to the easement did not accrue under the repealed Real Property Act 1862, as the easement was not created under that Act.

The court ruled in favour of Howlin, holding that the City Council could not enforce the easement over the land due to the lack of an exception to indefeasibility and the absence of an established equitable easement.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The LTA commenced by proclamation on 1 October 1981. It repealed a number of Acts including the RPA 1862: s 173 and Sch 2. The provisions of the LTA dealing directly with title by registration are ss 39 and 40 which relevantly provide:"39 Folio of the Register conclusive evidence of title, &c (1) A folio of the Register is evidence of the particulars recorded in the folio.(2) Except as otherwise provided in this Act, a folio of the Register is conclusive evidence that — (a) the person named in the folio as registered proprietor of or as taking an estate or interest in the land described in the folio is entitled to that land for that estate or interest; and(b) that land has been duly brought under this Act.40 Estate of registered proprietor indefeasible (1) For the purposes of this section indefeasible, in relation to the title of a registered proprietor of land, means subject only to such estates and interests as are recorded on the folio of the Register or registered dealing evidencing title to the land.(2) Subject to subsections (3) and (4), the title of a registered proprietor of land is indefeasible.(3) The title of a registered proprietor of land is not indefeasible — …(e) so far as regards — (i)an easement arising by implication or under a statute which would have given rise to a legal interest if the servient land had not been registered land; or(ia)an easement created by deed but unintentionally omitted from the folio of the Register for the servient land when that servient land was brought under this Act or the repealed Act; or(ib)an easement that has been created under this Act but unintentionally omitted from the folio of the Register for the servient land; or(ii)an equitable easement, except as against a bona fide purchaser for value without notice of the easement who has lodged a transfer for registration; …". An earlier form of s 40(3)(e) was considered in Parramore v Duggan (1995) 183 CLR 633. At the time that Parramore was decided the exceptions to indefeasibility for easements were confined to those in subpars (i) and (ii). Subparagraphs (ia) and (ib) were subsequently, although at different times, inserted by amendment. However the underlying force of the decision in Parramore remains applicable. The principal judgment was written by Toohey J, with whom Brennan, Deane, Dawson and McHugh JJ agreed. Brennan J (as he then was) gave some additional reasons, and stated at 636 that an "easement cannot be enforced unless the certificate of title of the registered proprietor of the servient tenement states that that title is subject to the easement or unless the easement falls within s40(3)(e) of the LTA". In Parramore, Mrs Duggan was the registered proprietor of land and the folio of the register stated that appurtenant to that land was a right of way over land marked "roadway" on adjoining land which was owned by Mr Parramore. However the folio of the register for Mr Parramore's land did not show the burden of an easement. The matter came before the court as a special case stated and a question was whether Mr Parramore's title, which was not expressed to be subject to any easement, could be so subject merely by virtue of the statement on Mrs Duggan's title. Brennan J, at 635, referred with approval to the essential characteristic of the Torrens system stated by Barwick CJ in Breskvar v Wall (above) at 385-386 as follows: "The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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