[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right, privileges and liabilities – Acquired right to easement as exception to indefeasibility of servient title under repealed Act.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 personThird Defendant: No appearance
Plaintiffs (1010/2014): A Walker
First Defendant: In person
Second Defendant: No appearanceThird 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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CaseChat Overview and Summary
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.
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