Clarence City Council v Howlin

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 The court also examined whether the easement was preserved under the repealed Real Property Act 1862 (Qld), despite the Land Titles Act's introduction.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 Lastly, the court determined that the City Council's right to the easement did not accrue under the repealed Real Property Act 1862, as the easement was not created under that Act.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.