Hemer Pty Ltd v Benni (No 2) - [2011] SASCFC 143

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
HEMER PTY LTD v BENNI & ORS (No 2)
[2011] SASCFC 143
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice Sulan)
30 November 2011
REAL PROPERTY - TORRENS TITLE - REGISTRATION - EFFECT OF REGISTRATION - GENERALLY
REAL PROPERTY - TORRENS TITLE - INDEFEASIBILITY OF TITLE - CERTIFICATE OR FOLIO OF REGISTER AS CONCLUSIVE EVIDENCE - GENERALLY
REAL PROPERTY - TORRENS TITLE - LEASES - DETERMINATION - FORFEITURE AND RELIEF AGAINST FORFEITURE
Decision relating to the consequential orders to be made following an earlier ruling of this Court concerning the purported forfeiture of a 99 year lease for peppercorn rent over land in suburban Adelaide – Registrar-General noted re-entries in the Register Book – trial Judge refused to make declarations sought or grant any other relief – this Court ordered that the appeal be allowed and the orders of the trial Judge set aside – where, in light of conflicting authority, an issue arose as to the power of the Court, having regard to section 126 of the Real Property Act 1886 (SA), to direct the Registrar-General to amend or correct the Register Book – Court directed that the Registrar-General, with respect to the first and second respondents, cancel the entry made in the Register Book and reinstate the registration of the lease – no comparable order made on that occasion with respect to the third respondent, as the property had been re-mortgaged to a bona fide purchaser for value.
Held: (Gray J, Doyle CJ and Sulan J agreeing) The Court does have power to make an order for cancellation of an entry in the Register Book made under section 126, subject to the operation of the indefeasibility principle in favour of the registered interest of a bona fide purchaser for value – accordingly, the Court cannot direct the Registrar-General to correct the Register Book in relation to the third respondent.
Landlord and Tenant Act 1936 (SA) s 10; Real Property Act 1886 (SA) s 54, s 64, s 67, s 69, s 94, s 122, s 126, s 145, s 148A and s 220, referred to.
Hemer Pty Ltd v Benni [2011] SASCFC 35; Laffer v Gillen [1924] SASR 170; Laffer v Gillen [1924] SASR 514; Gillen v Laffer (1925) 37 CLR 210; Laffer v Gillen (1927) 40 CLR 86; Jennings Industries Ltd v Commonwealth (1984) 69 FLR 189; Templeton v Leviathan Pty Ltd (1921) 30 CLR 34; Re Strahorn (1912) 29 WN (NSW) 7; R v Registrar of Titles (Vic); Ex parte The Commonwealth (1915) 20 CLR 379; Challenger Managed Investments Ltd v Direct Money Corporation Pty Ltd (2003) 59 NSWLR 452; Frazer v Walker [1967] 1 AC 569; Rogers v Resi-Statewide Corporation Ltd (No 2) (1991) 32 FCR 344; Breskvar v Wall (1971) 126 CLR 376; Palais Parking Station Pty Ltd v Shea (No 3) (1980) 24 SASR 425; PT Ltd v Maradona Pty Ltd (1992) 25 NSWLR 643; Tyre Marketers (Australia) Ltd v Martin Alstergren Pty Ltd (1989) V ConvR 54-335; Commonwealth v New South Wales (1918) 25 CLR 325, considered.

HEMER PTY LTD v BENNI & ORS (No 2)
[2011] SASCFC 143
Full Court: Doyle CJ, Gray and Sulan JJ

DOYLE CJ: I agree, for the reasons given by Gray J, that the orders proposed by Gray J should be made. There is nothing that I wish to add.
GRAY J:
This decision relates to the consequential orders to be made following an earlier ruling of this Court in Hemer Pty Ltd v Benni.[1]That decision concerned the purported forfeiture of a 99 year lease for peppercorn rent over land in suburban Adelaide.
[1] Hemer Pty Ltd v Benni [2011] SASCFC 35.
On 15 July 2011, an order was made that the appeal be allowed and the orders of the trial Judge be set aside. On that occasion orders were made including the following:
That the first and second defendants cause the duplicate of Certificate of Title Register Book Volume 5811 Folio 178 to be delivered up to the Registrar-General by no later than 29 July 2011.
Pursuant to section 64 of the Real Property Act 1886, the Registrar-General is directed (upon delivery to him of the duplicates of the Certificates of Title referred to below) to:
Cancel the entry made on 22 September 2008 of Application 11020258 in respect of the land comprised in Certificate of Title Register Book Volume 5811 Folio 178 and reinstate (if necessary, by the issue of a new original and duplicate Certificate of Title for the land in the names of the first and second defendants) the registration of Memorandum of Lease 2365604 thereon in all respects as it stood immediately prior to the entry of the said Application.
It was not possible at that time to make orders in regard to the entries to the Certificate of Title Register Book Volume 5811 Folio 177 as the property had been re-mortgaged. It is now appropriate to make comparable orders to those set out above in respect of this title. My reasons for joining in the order made on 15 July 2011 and for the making of further orders follow.
Introduction
The lessee of the land, Hemer Pty Ltd, the plaintiff and appellant, at trial before a single Judge of the Supreme Court sought declarations, inter alia, concerning and consequential on the interpretation of a covenant of the lease relating to rates and taxes. Hemer also sought relief against forfeiture. The trial Judge refused to make any declarations or grant any other relief. Hemer appealed to the Full Court.
In this Court’s earlier decision, the Court by majority held that amounts claimed for rates and taxes by the lessors, the defendants and respondents, from the lessee had been calculated on an incorrect basis and that those claims were unenforceable. As a consequence, the majority held that notices purportedly issued by the lessors pursuant to section 10 of the Landlord and Tenant Act 1936 (SA)[2] did not comply with the requirements of that section and that any right of re-entry or forfeiture for breach of covenant was unenforceable. According to the reasoning of the majority, the purported re-entries and forfeitures by the lessors were invalid.
[2] Section 10 of the Landlord and Tenant Act 1936 (SA) provides:
A right of re-entry or forfeiture under any proviso or stipulation in a lease for a breach of any covenant or condition in the lease shall not be enforceable by action or otherwise, unless and until—
(a) the lessor serves on the lessee a notice specifying the particular breach complained of, and, if the breach is capable of remedy, requiring the lessee to remedy the breach, and in any case requiring the lessee to make compensation in money for the breach; and
(b) the lessee fails within a reasonable time thereafter to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money to the satisfaction of the lessor for the breach.
In the course of my earlier reasons I addressed the question of the Court’s powers to direct the correction of the Register Book. I then observed:[3]
A question that arises for consideration relates to the Court’s powers to direct the Registrar-General to amend or correct the Register Book. As Doyle CJ has pointed out, when dealing with relief against forfeiture, there is conflicting authority as to the power of the Court, having regard to the terms of section 126 of the Real Property Act. The Chief Justice has traced the history of the proceeding in Gillen v Laffer in this Court,[4] the High Court[5] and the Privy Council.[6] Reference is also made to the decision of Kelly J in Jennings Industries Ltd v Commonwealth of Australia,[7] and to the conflict between dicta in the Privy Council on this topic, and the contrary opinion expressed by four members of the High Court of Australia.
[3]    HemerPty Ltd v Benni [2011] SASCFC 35, [147].
[4]    Laffer v Gillen [1924] SASR 170; Laffer v Gillen [1924] SASR 514.
[5]    Gillen v Laffer (1925) 37 CLR 210.
[6]    Laffer v Gillen (1927) 40 CLR 86.
[7]    Jennings Industries Ltd v Commonwealth (1984) 69 FLR 189.
The Court has now heard submissions on this question, including submissions from the Registrar-General.
In the present proceeding, the matter has been complicated by the registration of a mortgage to a third party on one of the titles – Certificate of Title Volume 5811 Folio 177. That registration occurred in the interval between the cancellation of the lease and the delivery of the judgment of this Court on the appeal.
I have reached the conclusion that the Court does have power to direct that the Register Book be corrected, subject to the rights of third parties. My reasons follow.
Background Facts
The determination of the present issue is assisted by an understanding of the history of the lease in question.
On 13 August 1962, the lease was registered over a portion of the land and was granted for a term of 99 years commencing on 1 July 1962 and expiring on 30 June 2061 at an annual rent of one shilling payable on demand. The lease relevantly provided:
I, IAN STANMORE TURNER of 22 Godfrey Terrace, Leabrook, Architectural Draughtsman, being registered as the proprietor of an estate in fee simple subject however to such encumbrances liens and interests as are notified by Memorandum underwritten or endorsed hereon in the whole (Memorandum of Transfer dated 30/6/62 from ROBERT CHARLES CHAPMAN to myself being portion of) of the land comprised in/Certificate of Title Volume 2745Folio 182 being Lot No. 71
SUBJECT nevertheless to rights of way and easements to the Minister of Works as thereon mentioned
DO HEREBY LEASE to ROBERT CHARLES CHAPMAN of 61 Sunnyside Road, Glen Osmond, Company Director, that portion of the said land above described marked “D” in the plan attached hereto and coloured red SUBJECT nevertheless to a Right-of-Way and easement to the Minister of Works over portion of the land shown in the said plan attached and marked ‘Easement’ to be held by the said Robert Charles Chapman for a term of ninety nine years commencing from 1/7/62 expiring on the 30^th day of June in the year Two thousand and sixty one at an annual rental of ONE SHILLING (1/-) payable on demand SUBJECT to the following covenants:-
THE LESSEE HEREBY AGREES THAT
(1)the said land hereby leased shall be used wholly and solely for the purpose of a garden and for no other purpose whatsoever
(2)if demanded by the lessor rates and taxes proportional to the land herein leased are to be the responsibility of the lessee.
I, the abovenamed ROBERT CHARLES CHAPMAN do hereby accept this lease of the above described land to be held by me as lessee and subject to the conditions restrictions and covenants above set forth.
On 16 August 2000, the land was subdivided into two allotments – allotments 731 and 732. New certificates of title were issued. Certificate of Title Volume 5811 Folio 177 was issued in relation to allotment 731. Certificate of Title Volume 5811 Folio 178 was issued in relation to allotment 732.
On 2 October 2000, allotment 732 was transferred to Marnie Benni and Martin Ridge, subject to the lease. Ms Benni and Mr Ridge became the lessors of the lease in respect of that portion of the subject land comprised in Volume 5811 Folio 178.
On 6 August 2003, the subject land, allotment 731, comprised in Volume 5811 Folio 177 was transferred subject to the lease. On 11 September 2006, the lease was transferred to Hemer as lessee. On 9 October 2007, the land comprised in Volume 5811 Folio 177 was transferred to Cherise Esme Collins, subject to the lease. Ms Collins became the lessor of the lease in respect of the portion of the subject land comprised in Volume 5811 Folio 177.
On 22 September 2008, the Registrar-General entered a note of two re-entry applications pursuant to section 126 of the Real Property Act 1886 (SA) in respect of the lease; namely, an application by Ms Benni and Mr Ridge on Volume 5811 Folio 178 and an application by Ms Collins on Volume 5811 Folio 177. Each of these applications contained a declaration that Hemer had failed to pay amounts due and owing in breach of a covenant of the lease and that the lessors had re-entered on the land and taken possession of the land.
Consideration
Section 126 of the Real Property Act provides:
Registrar-General to note particulars of re-entry in Register Book
The Registrar-General, upon proof to his satisfaction of re-entry by the lessor, in manner prescribed by the lease, or under the power in the third subsection of the last preceding section provided for, or of recovery of possession by a lessor, by any proceeding in law, shall note the same by entry in the Register Book, and the estate of the lessee in such land shall thereupon determine, but without releasing him from his liability in respect of the breach of any covenant in such lease expressed or implied.
It may be observed that there is nothing in the text of section 126 which compels a conclusion that a lessee of a lease that has been determined by an administrative act of the Registrar-General cannot call that administrative act into question before the Court.
Further, the operation of section 126 is conditional upon the formation of an opinion by the Registrar-General that sufficient grounds exist to conclude that either re-entry has occurred, or that the lessor has otherwise recovered possession by legal proceedings. As submitted by the Registrar-General, the section does not impose the more stringent test that lawful re-entry has occurred as a fact. Nor, in contrast to the language used in section 94 of the Act, does section 126 speak in express terms of a ‘lawful forfeiture or determination’.[8]
[8] The text of section 94 is set out later in these reasons.
The Registrar-General’s duties under the Real Property Act are primarily of an administrative nature. The Registrar-General is neither entitled nor equipped to investigate the antecedent circumstances leading to the lodgement of an instrument in the Land Titles Office.[9] It is not the Registrar-General’s role to go behind an instrument produced for registration. It is not the Registrar-General’s role to require proof negativing any fraud or improper dealing where none is suggested on the face of the instrument or by inconsistency with the Register Book.[10]
[9] It is to be noted that the powers conferred by sections 54, 220(a) and 220(d) for example authorise the Registrar-General to make requisitions with respect to instruments to require that they comply with the Real Property Act 1986 (SA) and be in the form approved by the Registrar-General. However, these powers do not authorise investigations that go behind the face of the instrument and inquire into the underlying transaction.
[10] Templeton v Leviathan Pty Ltd (1921) 30 CLR 34, 53 (Knox CJ), 64 (Higgins J, Starke J agreeing at 72); Re Strahorn (1912) 29 WN (NSW) 7, 8 (Rich J); R v Registrar of Titles (Vic); Ex parte The Commonwealth (1915) 20 CLR 379, 402 (Higgins J).
The Registrar-General submitted that a substantial volume of dealings are lodged and registered at the Land Titles Office everyday. It was said that for the efficient performance of the functions imposed on the Registrar-General by the Real Property Act, the Registrar-General must be entitled to accept and act upon instruments which are on their face regular, without paying undue attention to the possibility that in any particular transaction he may be deceived and acting on a wrong basis.[11] It was contended that in the specific context of an application under section 126, the Registrar-General is entitled to rely upon a lessor’s statutory declaration that the lessee has breached one or more of the covenants or conditions expressed or implied in the lease, and that the lessor re-entered upon the land and took possession thereof. In my view, these submissions and contentions are sound and should be accepted.
[11] Reliance was placed in this respect on the observations of Bryson J in Challenger Managed Investments Ltd v Direct Money Corporation Pty Ltd (2003) 59 NSWLR 452, [83]-[84].
The above matters suggest that it should be open to a party to challenge the Registrar-General’s actions in the present proceeding before the Court. The wording in section 126 “but without releasing him from his liability in respect of the breach of any covenant in such lease expressed or implied” provides further support for this conclusion.
The Gillen v Laffer litigation is relevant. That litigation was first the subject of a decision of a Judge of this Court, Poole J, in 1924, then of the Full Court of this Court, followed by the High Court and finally, the Privy Council in 1927.[12] The dispute concerned an agreement with respect to Crown land. The Commissioner of Crown lands, Laffer, had evicted the plaintiff, Gillen, who claimed damages in respect of that eviction. Laffer sent to the Registrar-General a notice that the agreement between the parties with respect to the land had been lawfully determined – whether this was so was in issue in the dispute before Poole J.[13] Poole J was concerned with the construction of section 94 of the Real Property Act, which then provided:
The Registrar-General, upon receipt of notice from the Commissioner of Crown Land that any Crown lease has been lawfully forfeited or determined in whole or in part, shall make an entry to that effect in the Register of Crown Leases, and such forfeiture or determination, shall thereupon have effect.
Poole J held that the determination referred to in section 94 was a “lawful” forfeiture or determination and as the purported determination by Laffer was not lawful, the entry noted by the Registrar-General was ineffective.
[12] Laffer v Gillen [1924] SASR 170; Laffer v Gillen [1924] SASR 514; Gillen v Laffer (1925) 37 CLR 210; Laffer v Gillen (1927) 40 CLR 86.
[13] Laffer v Gillen [1924] SASR 170.
On appeal to the Full Court,[14] it was held that there had been an effective determination of the agreement before the Registrar-General’s entry was made. The Full Court did not address the observations of Poole J regarding the construction of section 94. However, as noted by Doyle CJ in the earlier decision of this Court in Hemer Pty Ltd v Benni,[15] Gillen argued before the Full Court:[16]
The entry by the Registrar-General was effective to determine the agreement if the cancellation was lawful at the time of registration, and after registration the cancellation cannot be impeached, even if the forfeiture were unlawful. This is the conjoined effect of the Crown Lands Act 1915, sec. 63, and the Real Property Act 1886, sec. 94.
[14] Laffer v Gillen [1924] SASR 514.
[15] Hemer Pty Ltd v Benni [2011] SASCFC 35, [82].
[16] Laffer v Gillen [1924] SASR 514, 522.
Gillen appealed to the High Court.[17] The High Court reversed the decision of the Full Court and each member agreed with Poole J’s construction of section 94.
[17] Gillen v Laffer (1925) 37 CLR 210.
The text of section 94 bears some similarity to the text of section 126 of the Real Property Act. The High Court took the view that section 94 gave effect only to a lawful forfeiture or determination. It follows from their Honours’ reasoning that an entry made in the Register of Crown Leases could be set aside where the antecedent forfeiture was unlawful. The High Court did not address the operation of section 126.
The Privy Council[18] took a different view, allowing the appeal. The Privy Council construed section 94 to have the effect that forfeiture or determination of a lease occurred when the Commissioner says that it had been lawfully effected as opposed to the circumstance where a lease had in fact been lawfully forfeited or determined. In their reasons, the Privy Council compared the operation of section 126 with that of section 94 and expressed the view that an entry made by the Registrar-General under section 126 was effective to determine a lease irrespective of whether the lessor’s re-entry was lawful or valid.
[18] Laffer v Gillen (1927) 40 CLR 86.

The Privy Council then went on to hold that the validity of the re-entry could not be questioned once the entry on the Register Book had been made. The Registrar-General in this proceeding challenged this proposition, contending that such a conclusion was inconsistent with the scheme of the Real Property Act.
I do not consider that this Court is bound to follow the views expressed by the Privy Council in 1927 in Laffer v Gillen. The construction of section 126 was not in issue. The observations of the Privy Council were obiter. It appears further that the Privy Council did not have the advantage of full submissions on other aspects of the Real Property Act, including in particular the principle of indefeasibility. The view that I have taken accords with the view expressed by the members of the High Court.
Consideration – Correction of the Register Book
It is evident from the terms of section 69 of the Real Property Act that once a transfer, mortgage or other dealing has been registered, the title of the transferee, mortgagee or other grantee who is a bona fide purchaser for value is immediately indefeasible.However, an interest which was not acquired by a bona fide purchaser for value is not indefeasible, even though it has been registered.
In Frazer v Walker, the Privy Council held that the principle of indefeasibility of title:[19]
… in no way denies the right of a plaintiff to bring against a registered proprietor a claim in personam, founded in law or in equity, for such relief as a court acting in personam may grant. …
[19] Frazer v Walker [1967] 1 AC 569, 585.
It is to be accepted that an entry made by the Registrar-General under section 126 of the Act is effective to determine a lessee’s estate at law. In my view, it does not follow, however, that the entry is effective to extinguish the totality of the lessee’s rights. In particular, it does not follow that the entry is effective to extinguish the lessee’s right to seek to have a registration of re-entry and forfeiture set aside. In my opinion, an entry in the Register Book procured by a lessor as the result of an invalid re-entry application can be challenged and set aside at any time prior to registration of the interest of a bona fide purchaser for value.
It is now appropriate to turn to section 64 of the Real Property Act, which provides:
Powers of court to direct cancellation of certificate or entry
In any proceeding in the Court respecting any land, or any transaction, contract, or application relating thereto, or any instrument, caveat, memorial, or other entry affecting any such land, it shall be lawful for the Court to direct the Registrar-General to cancel, correct, record, substitute, issue, or make any certificate, or any memorial or entry in the Register Book, notwithstanding that the relevant duplicate certificate has not been produced to him, or otherwise to do such acts and make such entries as may be necessary to give effect to any judgment, decree, or order of such Court given or made in such proceeding, and the Registrar-General shall obey every such direction.
Section 64 empowers the Court to make an order for the cancellation of an instrument, entry or memorial in the Register Book and otherwise to do such acts as are necessary to give effect to a judgment or declaration in proceedings with respect to land. It was submitted that the consequence of the Full Court judgment in Hemer Pty Ltd v Benni is that the rights of Hemer bind the lessors in personam and provide a foundation for the making of an order under section 64 for the cancellation of the re-entry applications and for reinstatements of the registration of the lease as against the lessors. The power can, in my view, be exercised provided that it would not be inconsistent with any of the principles of indefeasibility conferred by section 69 of the Real Property Act.[20]
[20] See Rogers v Resi-Statewide Corporation Ltd (No 2 ) (1991) 32 FCR 344, 351 (von Doussa J).
The Court does have power to make an order for cancellation of an entry in the Register Book made under section 126 of the Real Property Act, subject to my views which follow in relation to the operation of the indefeasibility principle in favour of a bona fide purchaser for value.
Bona Fide Purchaser for Value
With respect to the land in Certificate of Title Volume 5811 Folio 177, Westpac Banking Corporation has been registered on the title as mortgagee. As earlier mentioned, this mortgage was entered into and registered in the interval between the cancellation of the lease and the Full Court judgment in Hemer Pty Ltd v Benni. The parties accepted that Westpac was a bona fide purchaser for value.
The Registrar-General submitted that the scheme of the Real Property Act is that the entitlement to a registered interest held by a bona fide purchaser for value cannot be impeached by reason of defect or irregularities in the procedure leading to registration. As the High Court observed in Breskvar v Wall:[21]
The Torrens system of registered title…is not a system of registration of title but a system of title by registration. …Consequently, a registration which results from a void instrument is effective according to the terms of the registration. It matters not what the cause or reason for which the instrument is void.
[21] Breskvar v Wall (1971) 126 CLR 376, 385-386 (Barwick CJ).
This Court was taken to a number of examples to illustrate that registration of a void instrument can confer an indefeasible interest upon a bona fide purchaser for value.[22]
[22] Those examples being:
- a void notice of acquisition: Palais Parking Station Pty Ltd v Shea (No 3) (1980) 24 SASR 425.
- an instrument rendered void by stamp duty legislation: Breskvar v Wall (1971) 126 CLR 376.
- an instrument that is a forgery and so void: Frazer v Walker [1967] 1 AC 569.
- an instrument rendered void by reason of non est factum: “it is not my deed”; a defence that denies the execution of an instrument on the basis that he mind of the signing party did not accompany her or his signature: see PT Ltd v Maradona Pty Ltd (1992) 25 NSWLR 643, 673, 675-681 (Giles J).
- an instrument rendered void by non-compliance with the legislation under which it was purportedly made: see Tyre Marketers (Australia) Ltd v Martin Alstergren Pty Ltd (1989) V ConvR 54-335.
The Registrar-General submitted that there was no material difference between section 126 and other sections of the Real Property Act that provide for the effect of registration. Reference was made to sections 67, 122, 145 and 148A(2).[23] It was contended that in each of those sections, the relevant event that caused the legal interest to pass, to be discharged or otherwise extinguished was the entry in the Register Book.[24]
[23] Those sections provide:
67—Instruments not effectual until registration
No instrument shall be effectual to pass any land or to render any land liable as security for the payment of money, but upon the registration of any instrument in manner herein prescribed, the estate or interest specified in such instrument shall pass, or, as the case may be, the land shall become liable as security in manner and subject to the covenants, conditions, and contingencies set forth and specified in such instrument or by this Act declared to be implied in instruments of a like nature.
122—Effect of entry of surrender
Upon every entry made in the Register Book, in pursuance of either of the two preceding sections, the estate or interest of the lessee in the land shall revest in the lessor.
145—Entry of satisfaction of annuity
Upon the proof of the death of the annuitant, or of the occurrence of the event or circumstance upon which, in accordance with the provisions of any encumbrance, the annuity or sum of money thereby secured shall cease to be payable, and that all arrears of the said annuity or money have been paid, satisfied, or discharged, the Registrar-General shall make an entry in the Register Book noting that such annuity or sum of money is satisfied and discharged, and shall cancel the encumbrance; and upon such entry being made in the Register Book, the land comprised in the encumbrance shall cease to be subject to or liable for such annuity or sum of money; and the Registrar-General shall make a similar entry on the duplicate certificate of the encumbered land when produced to him or her for that purpose.
148A—Entry in Register Book where rights of mortgagee barred by Statute
(2) Upon the making of an entry in the Register Book pursuant to this section the mortgage shall be deemed to be discharged.
[24] In this respect, reliance was placed on the decision of Isaacs and Rich JJ in Commonwealth v New South Wales (1918) 25 CLR 325, 342.
The appellants rejected the Registrar-General’s submission that any Court order concerning the Collins land is subject to the principle of indefeasibility of title. Further, the appellants highlighted two considerations which they submitted the Registrar-General had overlooked. First, it was said that all statutes dealing with proprietary interests should be read together and harmoniously so that their interaction and operation can be understood. Secondly, it was said that when relief is granted it is as there had been no forfeiture so that for “all purposes, and as between all parties, rights and liabilities are absolutely unaffected”, it is the original lease that continues not a new lease. Consequently, the appellants argued that when the Court grants relief, it does so by an order that results in the restoration of the status quo ante and that ex hypothesi, the question of priorities between the lease and the mortgage is only then to be dealt with according to the relevant sections of the Real Property Act and the relevant common law principles. The ultimate conclusion submitted by the appellants was that there is no impediment to making the orders sought concerning the Collins land.
Westpac’s title as registered mortgagee was unimpeachable. In my view, the principles of indefeasibility have application. Accordingly, Westpac’s title as bona fide purchaser for value is indefeasible and the Court cannot direct the Registrar-General to correct the Register Book in relation to Certificate of Title Volume 5811 Folio 177.
The Court has, however, now been advised that arrangements have been made with Westpac for the Registrar-General to correct the Register Book reinstating the lease with priority to the Westpac registered mortgage. In these circumstances, it is unnecessary to consider the alternative remedies that would be available.
Conclusion
I am of the view that the Court does have power to make an order for cancellation of an entry made under section 126 of the Real Property Act, subject to the operation of the indefeasibility principle in favour of a bona fide purchaser for value.
I would make comparable orders to those set out at the outset of these reasons with respect to Certificate of Title Register Book Volume 5811 Folio 177.
SULAN J: I agree with Gray J and the orders that he proposes.