Hill Time Investments Pty Ltd (Receivers & Managers Appointed) v Registrar of Titles Western Australia - [2022] WASC 325

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   HILL TIME INVESTMENTS PTY LTD (RECEIVERS & MANAGERS APPOINTED) -v- REGISTRAR OF TITLES WESTERN AUSTRALIA [2022] WASC 325
CORAM:   MASTER SANDERSON
HEARD:   8 JUNE 2022
DELIVERED          :   21 SEPTEMBER 2022
PUBLISHED           :   21 SEPTEMBER 2022
FILE NO/S:   CIV 1033 of 2022
BETWEEN:   HILL TIME INVESTMENTS PTY LTD (RECEIVERS & MANAGERS APPOINTED)
Plaintiff
AND
REGISTRAR OF TITLES WESTERN AUSTRALIA
First Defendant
COMMISSIONER OF TITLES OF WESTERN AUSTRALIA
Second Defendant
SUNVALE NOMINEES PTY LTD
Third Defendant
GOLDCREST CONSOLIDATED PTY LTD
Fourth Defendant
TERESA MARIA HOLMES
Fifth Defendant
KAREN LOUISE BRICE
Sixth Defendant
TINA JANE LARCOMBE-DAY
Seventh Defendant
COLIN RAYMOND DAY
Eighth Defendant

Catchwords:

Property Law - Refusal of Registrar to register transfer - Turns on own facts

Legislation:

Transfer of Land Act 1893 (WA)

Result:

Order transfer be registered

Category: B

Representation:

Counsel:

Plaintiff	:	SK Dharmananda SC & L N Firios
First Defendant	:	IA Repper
Second Defendant	:	IA Repper
Third Defendant	:	FA Robertson
Fourth Defendant	:	FA Robertson
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	FA Robertson
Eighth Defendant	:	FA Robertson

Solicitors:

Plaintiff	:	Summer Lawyers
First Defendant	:	State Solicitor's Office
Second Defendant	:	State Solicitor's Office
Third Defendant	:	Tan & Tan Lawyers
Fourth Defendant	:	Tan & Tan Lawyers
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	Tan & Tan Lawyers
Eighth Defendant	:	Tan & Tan Lawyers

Case(s) referred to in decision(s):

Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (in liq) v Kelly [2021] WASC 448
Drake v Templeton (1913) 16 CLR 153
Galati v Burns [1987] WASC 266
Gibb v Registrar of Titles (1940) 63 CLR 503
Goodman Court Pty Ltd v Registrar-General of NSW [2014] NSWSC 1828
Hemer Pty Ltd v Benni (No 2) [2011] SASCFC 143
Munro & Baillieu v Adams [1891] 17 VLR 271
R v The Registrar of Titles of Victoria (1915) 20 CLR 379
Re Strahorn [1912] 29 WN (NSW) 7
Registrar-General v Lee (1990) 19 NSWLR 240
Templeton v The Leviathan Proprietary Ltd (1921) 30 CLR 34
Visbord v Irvine [1921] VLR 562
Wydgee Pastoral Co Pty Ltd v Registrar of Titles (1962) 9 LGRA 367

MASTER SANDERSON:

The plaintiff (Hill Time) seeks declaratory and injunctive relief in relation to the transfer of a 108/145 share in a property situated at Albany Highway, Armadale (the Property). The relevant parties executed all of the documents necessary to effect a transfer to Hill Time, including a transfer in the prescribed Landgate form (the Transfer Form) in late 2018. When the Transfer Form was presented to Landgate, the Registrar of Titles failed to register the instrument. It is Hill Time's position the Registrar did so without a statutory basis. The Transfer Form remains unregistered. There have been multiple attempts by Hill Time to rectify the situation with Landgate, but no resolution has been achieved.
The proceedings are brought against the Registrar of Titles, the Commissioner of Titles, and the registered proprietors of 108/145 share. For clarity, where reference in these reasons is made to Landgate, it is to the entity that maintains the land titles registry and performs the associated functions under delegation from the Registrar or Commissioner, as the case may be. I will refer to the first and the second defendants as the Registrar. The originating summons is supported by the affidavit of Jeremy Joseph Nipps sworn 19 January 2022. Mr Nipps is one of the receivers and managers appointed to Hill Time in September 2019.
There is no controversy as to the relevant facts. The property is held by a collection of registered proprietors as tenants in common. A 37/145 share is held by the trustee of a unit trust on behalf of various unit holders. A 108/145 share is held collectively by the third to eighth defendants (the Majority Owners). Hill Time resolved to purchase the Property for the purposes of a development project. For that purpose it obtained finance of $700,000 from certain Lenders. The atypical ownership arrangement required separate dealings with each of the unit holders and the Majority Owners. On or about 14 November 2018, the Majority Owners contracted to sell their 108/145 share in the Property to Hill Time by way of a contract for the sale of land by offer and acceptance (the Sale Contract). At or around the same time, Hill Time entered into an agreement to acquire all of the units of the unit trust holding the remaining 37/145 share of the Property. Hill Time made parallel arrangements to become the trustee of the unit trust. Settlement took place under the Sale Contract in December 2018. The transfer of the unit holders' interests to Hill Time was completed at around the same time.
As part of the settlement, Hill Time and the Majority Owners executed the Transfer Form for the 108/145 share. Duty was assessed and paid on the transfer. The duty remains paid and the transaction has not been cancelled. Hill Time and the Lenders separately executed a first‑ranking mortgage over the 108/145 share.
The registered proprietors were not strangers to the project. It was a special condition of the contract of sale that the Majority Owners would take a second‑ranking mortgage, sitting behind a first‑ranking mortgage in favour of the Lenders. A copy of the relevant documents appears as attachment JN‑4 to Mr Nipps' affidavit and is special condition 6. The Sale Contract referred to the development project and Hill Time was to provide monthly progress reports on the development once groundwork had commenced.
With the transaction documents executed, Hill Time attempted to register these documents with Landgate to effect the agreed arrangements. The Transfer Form was presented to Landgate for lodgement on 21 December 2018 and allocated Landgate lodgement number O060145. It was accompanied by verifications of identity (VOI) and authority for the Majority Owners and for Hill Time, as well as the certificate of duty issued by the Office of State Revenue. Additional documents were presented to Landgate for lodgement. These were:
(a)an application under s 182 of the Transfer of Land Act 1893 (WA) (the TLA) to vest the 37/145 share in Hill Time, reflecting the reunification of legal and equitable title. The application was allocated Landgate lodgement number O060144;
(b)the Lenders' first‑ranking mortgage over the 108/145 share of the Property. The Lenders' mortgage was allocated Landgate lodgement number O060146; and
(c)the Majority Owners' second‑ranking mortgage over the 108/145 share of the Property. The Majority Owners' mortgage was allocated Landgate lodgement number O060147.
It is Hill Time's position that these documents manifested the intention of the parties that Hill Time's acquisition of the 108/145 share of the Property was perfected. Further, there was to be an immediate registration of the security interests granted by Hill Time to the Lenders and the Majority Owners. This appears not to be in issue between the parties. Hill Time says the arrangement was properly predicated on the Registrar's performance of the statutory function under s 53 of the TLA to register instruments presented for registration in the order and from the time of their presentation. The Registrar failed to register any of the documents presented for lodgement in December 2018. It is from this failure to register that these proceedings arise.
On 13 February 2019, Landgate issued a requisition notice. A copy of that notice appears as attachment JN‑14 to Mr Nipps' affidavit. The requisition notice related solely to the vesting application for the 37/145 share. In essence, Landgate required further information to validate the trust arrangements underpinning the vesting. No issue was raised with the Transfer Form or the Lenders' associated mortgage. It is not in issue these documents were entirely satisfactory.
Hill Time's then-solicitors, Pacer Legal, responded to the requisition on 9 April 2019. This provoked a second requisition from Landgate on 2 May 2019. This second requisition was again directed solely to the vesting application. Pacer Legal responded in May 2019. There was no response from Landgate until 18 November 2019 ‑ that is six months later. The response was in the form of a third requisition. By that stage, Hill Time had fallen into default under its loan agreement with the Lenders and the receiver and manager had been appointed.
Landgate's third requisition notice continued to raise issues with the vesting application. For the first time, this third requisition raised an issue with the Lenders' mortgage over the 108/145 share. In essence, the requisition sought to clarify the division of the mortgage interest as between the two individual financiers. No issue was raised with the Transfer Form.
Since their appointment to Hill Time, the receivers and managers have tried to have the Transfer Form registered in order to give effect to the arrangements entered into between the parties and to secure the 108/145 share of the Property. On 5 December 2019, Hill Time wrote to Landgate to withdraw the vesting application for the 37/145 share. Although it is not entirely clear from the evidence, this was apparently done in recognition of the difficulties the application had generated with Landgate. It also sought to achieve transfer of the 108/145 share without further delay. Landgate's response was to withdraw all of the documents presented for registration on 21 December 2018, including the Transfer Form. Landgate now concedes this was an error. In opposition to this application, the first and second defendants relied on an affidavit of Nicole Marie Hawser sworn 19 April 2022. Ms Hawser is an Assistant Registrar of Titles and holds the position of Senior Consultant in Dealings. Paragraph 21 of Ms Hawser's affidavit reads as follows:
On review, it is my opinion that it may not have been strictly correct for all the documents listed in paragraph 11 to have been 'withdrawn', because the Cor Cordis letter only expressly requested the withdrawal of vesting application O060144. However, the other documents would have been subject to rejection in any event, as the requisition was not fully satisfied.
It is Hill Time's position that Landgate unilaterally and erroneously 'withdrew' the Transfer Form and returned it to Hill Time along with the vesting application. Given what Ms Hawser says in her affidavit, there can be no doubt this is a correct characterisation of what occurred. Landgate simply made a mistake. They should not have returned the Transfer Form to Hill Time.
As a consequence of Landgate's mistake, Hill Time was compelled to return the Transfer Form to Landgate. This was done on 30 April 2020. Landgate assigned a new lodgement number to the Transfer Form, O400930. This Transfer Form was the exact same Transfer Form as was assigned the number O060145. Nothing had changed. Hill Time has attempted to complete the registration of the Transfer Form since that time. These attempts are recounted in Mr Nipps' affidavit at paragraphs 24 to 35.
Landgate issued a requisition notice on 20 May 2020 requiring, among other things, a second round of VOI and authority to support the 're-lodged' Transfer Form. Hill Time says this condition was unnecessary and the request was made without a proper basis. Further, the request could not be met. The Majority Owners were unwilling to facilitate the registration of the Transfer Form, and on Hill Time's case are seeking to capitalise opportunistically on Landgate's mistakes in order to resile from the agreed arrangement over the transfer and securitisation of the 108/145 share.
It is unnecessary to canvass the lengthy correspondence between Hill Time's solicitors and Landgate over the period June 2020 to November 2021. Hill Time made a final attempt to resolve the registration of the Transfer Form by way of a comprehensive letter to Landgate dated 26 August 2021. This letter appears as attachment JN‑35 to Mr Nipps' affidavit. Hill Time's letter recounted the history of the matter and the proposed various ways forward, including the invocation of the powers under s 180 of the TLA to summons the Majority Owners directly in lieu of requiring Hill Time to provide further verification. Landgate's response was dated 29 October 2021 ‑ around 10 weeks after Hill Time's correspondence. A copy of this letter appears as attachment JN‑37 to Mr Nipps' affidavit. The letter appears to have been written on behalf of both the Registrar of Titles and the Commissioner of Titles. It appears to give three grounds for refusal of the registration of the transfer.
First, it asserts Hill Time voluntarily withdrew the Transfer Form on 5 December 2019, causing the Transfer Form to be rejected. That statement represents an error of fact and can provide no basis for the refusal of registration.
Second, Landgate explains that the Transfer Form formed part of the same 'case' as the rejected vesting application O060144 for the 37/145 share and that there was no 'request to split the documents in a case'. The reference to a 'case' is an apparent reference to Landgate's internal administrative practices, which are detailed in Ms Hawser's affidavit. It would seem that Landgate notionally allocates documents to a 'case' file, and that the Transfer Form was grouped with the vesting application as part of the same 'case'. Counsel for Hill Time pointed out this administrative practice has no apparent basis in the TLA. It is simply an administrative process observed by Landgate.
Third, and proceeding on the premise that the relevant Transfer Form was not presented for lodgement until April 2020 (O400930), Landgate invokes s 181A(3) of the TLA to require a second round of verification and authority for the Transfer Form. The justification for this appears to be:
(a)there has been a lapse of time since the Transfer Form was executed, and receivers and managers have been appointed to Hill Time;
(b)there has been a change in the representation of some of the registered proprietors, and some registered proprietors may not be represented; and
(c)serious allegations were made in a letter from Lane Buck & Higgins dated 19 May 2020. As Mr Nipps explains in his affidavit, Lane Buck & Higgins ceased acting in January 2021, and the firm's short cameo in this matter was limited to sending that one letter.
In addition, the letter records that the Deputy Commissioner of Titles summarily rejected Hill Time's proposal for the Commissioner of Titles to use the powers under s 180 in lieu of fresh verifications. No reasons were provided for this decision. Hill Time responded on 19 November 2021 to clarify aspects of Landgate's position. That provoked a final response from Landgate, including the provision of reasons for the Commissioner's refusal. These reasons were, in effect, that the powers under s 180 are reserved for investigations into fraud or improper dealing, and there was no such investigation in this case. That being so, it follows that there is no question of fraud or improper dealing which could preclude the registration of the Transfer Form from the perspective of Landgate. It is the position of Hill Time that all of the correspondence and the history of dealings overall leads to the conclusion Landgate's concern is limited to the status of the operative Transfer Form and the perceived need for a second round of verification.
It is Hill Time's position the Transfer Form ought to be registered, and appropriate orders should be made to facilitate its registration by the Registrar. Hill Time's principal position is that the Transfer Form bearing lodgement number O060145, presented to Landgate on 21 December 2018, could and should have been registered at that time and remains registrable today. Hill Time says the Registrar's refusal to register the Transfer Form has no statutory basis.
To make good that position, Hill Time's counsel undertook a detailed examination of the statutory regime governing the registration of instruments under the TLA. What follows is a summary of those submissions.
Section 48 requires the Registrar to establish and maintain a register of certificates of title. Section 52 governs how certificates of title come to be included on the register. Section 53 compels the Registrar of Titles to register instruments as and when they are presented for registration:
(a)the Registrar shall register an instrument presented for registration in the order, and from the time, of its presentation;
(b)instruments purporting to affect the same estate or interest have priority as between each other according to the time of registration and not according to the date of the instrument, notwithstanding any actual or constructive notice.
Section 53(1) is expressed in mandatory terms ‑ the Registrar shall register. The underlying principle of the Torrens System is that 'the Register is everything', and registration is the source of title.
Section 82(1) enables a registered proprietor of land to transfer their interest by way of a transfer in an approved form. By s 82(1A), legal transfer is effective when the approved form is registered.
Section 85 is to the effect that an unregistered transfer form has the same efficacy as a deed. That section reads as follows:
Every transfer or other instrument shall be deemed of the same efficacy as if under seal; and when signed by the proprietor and registered shall be as valid and effectual to all intents and purposes for conveying passing or conferring the estates interests or rights expressed to be thereby transferred leased or created respectively as a deed duly executed and acknowledged by the same person would have been under any law heretofore or now in force in Western Australia or as any other form of document would have been either at law or in equity.
The section appears straightforward and clear, but remarkably enough, the present state of the law is to the effect that a transfer (or other instrument) is not to be treated as a duly executed deed. In Visbord v Irvine [1921] VLR 562, the Full Court of the Supreme Court of Victoria was dealing with a section which is identical to s 85. Cussen J said (at 565):
… but it has never been decided that an unregistered transfer has the effect of a document under seal. I am influenced to some extent by the fact that great difficulty might be created if all unregistered instruments were given the effect of deeds. Some limitation must be placed on the expression 'other instrument' because of the difficulties that would be occasioned by giving 'instrument' the wide meaning contended for. I freely admit that the section, looked at by itself, apart from the headings presents difficulty in giving this construction to it, especially as the words 'when such instrument has been registered' are used in the second part of the section. The word 'transfer' and the word 'instrument' are sometimes used to describe a registered transfer and a registered instrument; but I do not think that much help is here obtained by studying the other sections. Nor am I influenced by the history of this section; but I arrive at my conclusion because of the difficulties that would follow any other interpretation, and because the authorities, sofar as they go, support this view.
The only case referred to in support of his Honour's decision is Munro & Baillieu v Adams [1891] 17 VLR 271. In this jurisdiction, the decision was followed by Kennedy J in Galati v Burns [1987] WASC 266. His Honour was clearly dubious as to whether Visbord was correctly decided. He followed it on the basis he was bound to do so because it was binding precedent. The issue does not arise in this case. Hill Time was prepared to proceed on the basis the law is as stated in Visbord.

Hill Time says properly analysed, Landgate has justified its inaction on two grounds. First, it is contended that the Transfer Form was withdrawn by Hill Time on 5 December 2019, relieving the Registrar of the duty to register. Hill Time says that ground is simply wrong as a matter of fact. The purported 'withdrawal' of the Transfer Form was a unilateral and mistaken action by Landgate in contravention of the TLA. Landgate's error cannot be visited upon Hill Time to compromise the right to registration under the statute. Second, Landgate says the Transfer Form was included within the same 'case' as the vesting application, such that the rejection of one compelled the rejection of the other. Hill Time says the concept of a 'case' file and the consequences for the treatment of individual documents within a 'case' has no statutory basis under the TLA. Rather, it is an administrative practice adopted by Landgate operating at the level of how documents are processed and records kept within Landgate. Any such practice is subordinate to the requirements of the TLA, including s 53. Hill Time says proceeding by reference to a policy that is inconsistent with the proper observance of the statutory criteria is unlawful and of no legal effect. The Registrar's paramount duty is to register the Transfer Form upon its presentation.
These then are the submissions put by Hill Time. The Registrar began his submissions by saying they make 'no submission as to whether or not the plaintiff is entitled to be registered as the proprietor of the 108/145 share in the Property and if so what other encumbrances (such as mortgages) should be registered on the title'. This, with respect, seems a curious approach to adopt. But the position of the Registrar becomes more curious still. Paragraph 2 of counsel's written submissions is in the following form:
If this Honourable Court were to hold that the Plaintiff is entitled to be registered as proprietor of the 108/145 share in the Property, the First and Second Defendants would facilitate such registration (together with registration of any associated encumbrances as are appropriate). This would require a new lodgement of documents.
The position then appears to be this. The first and second defendants have no reason to believe the Transfer Form is not valid or appropriate. Presumably that means they do not allege it is tainted by fraud or in some other way defective. So the Transfer Form can be registered and presumably will be registered but only if it is accompanied by an order from this court. As to why a 'new' lodgement of documents would be required is unexplained.
The focus of the submissions of the first and second defendants appears, in part at least, to be the form of orders sought by Hill Time in the originating summons. The relevant paragraphs of the originating summons read as follows:
1.a declaration that the Registrar of Titles' refusal to register, in accordance with s 53(1) of the Transfer of Land Act 1893 (WA) (the TLA), the Transfer of Land Form first presented for registration in December 2018 for the transfer by the third to eighth defendants of a 108/145 share in the property at Certificate of Title Volume 1315, Folio 768 to the plaintiff (the Transfer Form), being an instrument of the same efficacy as a deed under TLA s 85, for the apparent reasons stated by letter dated 29 October 2021 that, in effect:
(a)there has been a lapse of time since the Transfer Form was executed and receivers and managers have been appointed;
(b)there has been a change in representation of some registered proprietors, and some registered proprietors may not be represented; and
(c)serious allegations were made in a letter from Lane Buck & Higgins dated 19 May 2020,
is without statutory basis and invalid;
2.a mandatory injunction compelling the Registrar of Titles to register the Transfer Form in accordance with TLA s 53(1);
3.alternatively, a mandatory injunction compelling the Commissioner of Titles to exercise her discretion under TLA s 180(1) to summons the third to eighth defendants to verify their signatures on the Transfer Form and, thereafter upon the verification of their identities, compelling the Registrar of Titles to register the Transfer Form in accordance with TLA s 53(1);
In his written submissions, counsel for the first and second defendants had this to say about the proposed orders:
3.The First and Second Defendants submit that the first and second orders sought by the Plaintiff in its Originating Summons are inapt and should not be made, for the following reasons:
3.1.a Transfer Form, given the number Transfer O060145, was lodged on 21 December 2018 and withdrawn on 12 December 2019 (the withdrawal);
3.2.the same Transfer Form, given the number Transfer O400930, was lodged on 5 May 2020 and rejected on 10 March 2021 (the rejection);
3.3.any events relating to Transfer O060145 and the withdrawal have been superseded by the re-lodgement of the Transfer Form as Transfer O400930 in April 2020 (and its subsequent rejection);
3.4.in any event, at the time of the withdrawal in December 2019:
(a)requisitions relating to the mortgages that were to be registered together with Transfer O060145 remained outstanding;
(b)it would have been inappropriate to register the transfer without the associated mortgages because this would have left the mortgagees unprotected; and therefore
(c)had it not been withdrawn, Transfer O060145 would have been rejected together with the mortgages, because of the outstanding requisitions;
3.5.at the time of the rejection in March 2021:
(a)there were three requisitions outstanding in relation to the registration of Transfer O400930; and
(b)these having been outstanding since October 2020, and the Plaintiff having provided no response whatsoever since October 2020, the Assistant Registrar of Titles was entitled to reject the transfer under sections 181A, 192D, 192E and 192 of the Transfer of Land Act 1893 (TLA), and did so;
3.6.an element of the outstanding requisitions related to the appropriateness of registering the Transfer Form without the mortgages that had previously (in 2018) been presented for registration with it, in circumstances where the First and Second Defendants were on notice that the vendors and mortgagees:
(a)expressly alleged the Contract was frustrated and at an end; and
(b)expressly alleged the Transfer Form had been signed by and on behalf of the Vendors on the absolute condition that it was to be registered with and only with the Vendor's Mortgage, which was no longer lodged for registration; and
(c)refused to re-verify their identity or confirm authority to deal with the property per the Transfer Form;
3.7.the Plaintiff's purported compliance with two of the three outstanding requisitions, and provision of more extensive reasoning in favour of removing the remaining requisition, occurred in August 2021, many months after the requisitions were due to be complied with and after Transfer O400930 had been rejected;
3.8.having been respectively withdrawn (and superseded by relodgement) and rejected, Transfer O060145 and Transfer O400930 are now incapable of registration – the Transfer Form is not 'lodged' or 'pending' and awaiting unilateral action of the First or Second Defendant that can be compelled by injunction, because it is no longer an instrument 'presented for registration'; and
3.9.in any event, the First and Second Defendants would require direction from the Court or all parties as to what other dealings (such as mortgages) should be registered together with any transfer.
4.The third order sought by the Plaintiff in its Originating Summons should not be made, because:
4.1.section 180(1) of the TLA does not impose a duty upon the Second Defendant, the performance of which would be compellable by this Honourable Court; and
4.2.in any event, the relevant issue is not solely of verification of signatures on the Transfer Form, but includes confirmation of the Platintiff's authorisation to present the Transfer Form for registration and entitlement to be registered as registered proprietor, a question which would not be resolved by the mandatory injunction sought.
As I understand these submissions, their primary position is that s 53 of the TLA does not impose upon the Registrar an absolute obligation to register any dealing presented for registration in the approved form. Paragraphs 16 and 17 of the written submissions are in the following terms:
16.To the contrary, as stated by Virtue J in Wydgee Pastoral Co Pty Ltd v Registrar of Titles (1962) 9 LGRA 367 at 370-371, and citing High Court authority:
It is well settled that the Registrar had some discretion as to whether he should register an instrument even if it be in the most perfect form: '… the Registrar is not an automaton; he has a high and responsible public duty to discharge, and he has an obligation to see that the purpose of the Act is neither destroyed nor prejudicially affected. He has the right and the duty to preserve his entries and records from confusion, and to prevent the intrusion of anything calculated to obscure or mislead, or even to impede the ordinary and practical working of his department. He has also in certain cases a necessary discretion, though forms are complied with, to act so as not by undue haste or too facile compliance with any application to do what appears to him may be a wrong to another person or bring a claim upon the insurance fund' ‑ Perpetual Executors & Trustees Association of Australia Ltd. v. Hosken [(1912) 14 CLR. 286, at 295] per Isaacs J.
He also has a duty to refuse to register a document if it is clear that it purports to effect a transaction which the registered proprietor is not by law justified in effecting: R. v. Registrar of Titles (Vic.); Ex parte Commonwealth, per Powers J. [(1915) 20 C.L.R. 379, at p. 405]; and see also per Higgins J. [at 402]. [emphasis added]
17.Justice Virtue continues at 371:
The matter is also dealt with in Templeton v. Leviathan Pty. Ltd. [(1921) 30 CLR 34, at 53], in the judgment of Knox C.J.: 'In my opinion where it has come to the knowledge of the Registrar that a dealing lodged for registration is a breach of trust, or that for any other reason the person dealing with the land as registered proprietor is not competent at law or in equity to deal with it in the manner proposed, it is his duty to refuse to register.' [emphasis added]
Further, it was submitted that it is not only s 53 which must be considered. Section 192 empowers the first defendant to require the correction and/or re‑execution of erroneous or defective documents. It entitles the first defendant to reject any document that is not corrected within the time allowed. Sections 181A and 181B permit the first and second defendants to require any person who lodges any document to give a certification in or in relation to the document and to verify the identity and authority of any person who is a party to the transaction. It entitles the first or second defendants to reject the document if the requirement is not complied with. Sections 192D and 192E empower the first defendant to refuse to register a document if it does not comply with the requirements of the TLA or a requirement determined under s 182 of the TLA. Further, the first defendant may give a notice requiring the non‑compliance to be rectified. If it is not rectified then under s 192 the document may be rejected.
In summary then, the Registrar's position is this. By March 2021 there had been no response at all to the requisition notices of 30 October 2020, 8 February 2021 and 22 February 2021. The last correspondence from the representatives of the lodging party dated 31 July 2020 and 8 October 2020 had indicated that their client could not comply with the requisition regarding VOIs including authority to deal from each transferor. The Registrar accepts the correspondence had questioned the basis for requiring the VOI. The Registrar says the plaintiff was afforded ample time to comply with the requisitions and did not do so. In circumstances where serious allegations had been made by solicitors acting for some of the transferors, the Registrar was entitled to require further VOIs and entitled to refuse registration when those VOIs were not forthcoming
It is possible to deal with the submissions made on behalf of the third, fourth, seventh and eighth defendants in short order. Essentially they support the position of the Registrar and say there is a sound statutory basis upon which registration could be refused. The argument put by counsel was nuanced and differed slightly from the way in which the case was put by counsel for the Registrar. In particular, the third, fourth, seventh and eighth defendants maintained that even if there was an error on the part of the Commissioner or Registrar, relief should be refused on discretionary grounds. The argument on this point was as follows. It was submitted, and it is undoubtedly correct, if relief was refused against the first and second defendants, Hill Time could take action for specific performance of the underlying contract. If that was done, the Majority Owners would raise by way of defence a number of contentions. First, they would say the contract was unenforceable because the Majority Owners received no consideration for the transfer of property. Their entitlement to any form of consideration was in all the circumstances speculative or conditional. Equity will not specifically enforce an agreement which is not supported by valid consideration and Hill Time's action may therefore fail. Second, the Majority Owners say the plaintiff is not ready and willing to perform an essential obligation of the contract, namely to reconvey the unencumbered property back to the Majority Owners, and for that reason, equity would deny the plaintiff specific performance of the contract.
As I mentioned above, Hill Time described the position of the Majority Owners as 'opportunistic'. It is an apt description. Hill Time is in possession of a transfer because of an agreement reached between various parties and that agreement was not impugned by fraud or any other event which would in and of itself prevent registration. The question here is the right and entitlement of Hill Time to registration of the instrument. To now dredge up the contractual dealings which led to that instrument is inappropriate.
In responding to submissions made by the first and second defendants, Hill Time accepts that the Registrar has 'some discretion' as identified by Virtue J in Wydgee Pastoral Co Pty Ltd v Registrar of Titles (1962) 9 LGRA 367. However, Hill Time says that case is distinguishable. It concerned an application under s 203 of the TLA requiring the Registrar to substantiate his decision to refuse registration. The Registrar justified his refusal on the basis that the registered proprietor's lodgement failed to comply with town planning conditions requiring portions of the subject land to be transferred to the Crown. The town planning conditions were fulfilled and registered at the Titles Office. It was therefore a case where a problem was manifest on the face of the record and subject of direct attention by an instrumentality of the State. Virtue J upheld the Registrar's refusal to register. In doing so, he identified some of the principles said to effect the Registrar's discretion to refuse to register instruments for specific and limited purposes. Hill Time accepted there was no absolute obligation to register any dealing presented for lodgement. Its submission was the discretion was tightly controlled.
Counsel for Hill Time, both in written and oral submissions, canvassed a range of authorities which deal with this question of the discretion of the registrar. Counsel began with Re Strahorn [1912] 29 WN (NSW) 7. This is a decision of Rich J (then a judge of the New South Wales Supreme Court). For present purposes the facts are irrelevant. But dealing with the power of, in this case, the Registrar General with respect to registration of a transfer, his Honour said:
Where the Registrar-General has presented to him for registration a properly executed transfer accompanied by the grant or certificate of title of the land affected by the transfer his duty to register the same is purely ministerial and not judicial. … There is no caveat or injunction against registration, and nothing appearing on the register to interfere with the same, he had no option but to register.
In R v The Registrar of Titles of Victoria (1915) 20 CLR 379 various members of the High Court defined the Registrar's function in narrow terms. Once again the facts are not presently of concern. Griffiths CJ put the position as follows:
While the Registrar of Titles may be justified in refusing to register an instrument which is on its face a breach of trust, or is forbidden by positive law, it is not, in my opinion, competent for him to examine the propriety of the bargain or the sufficiency of the consideration for an instrument presented for registration, unless he has independent reasons for suspecting fraud, in which case he would, I think, be justified in holding his hand.
Higgins J was of the same view. His Honour said:
The position of the Registrar, then, is that the document presented for registration does not show on its face a valid disposition of the land. I take it that the Registrar's duty is confined to seeing that the instrument is in accord with the prescribed practice, and that it is signed by a registered proprietor competent to effect a transfer of the sort disclosed by the instrument. He is not concerned to inquire into the circumstances, or even to verify the facts stated.
Powers J, although agreeing generally with Higgins J, expressed the position slightly differently. His Honour said:
… it is the Registrar's duty generally to register documents correctly executed by a registered proprietor without inquiring into the consideration, yet it is his duty to refuse to register a document if it is clear that it purports to effect a transaction which the registered proprietor is not by law justified in effecting.
Griffith CJ dealt with the issue again in Drake v Templeton (1913) 16 CLR 153. His Honour said:
In my opinion, this case is governed by the two cases already decided by this court – Perpetual Executors' Association v Hosken, and Mahony v Hosken (above). In those cases it was laid down as plainly as we could lay it down, that the object of the Transfer of Land Acts was not to obstruct business, but to facilitate it, and that the Registrar is not justified in refusing registration of a document on the ground that it does not literally comply with the precise form prescribed for such instrument, provided that any variation from that form does not affect the substance of the document. The Act itself says so in the plainest language.
The High Court again considered this issue in Templeton v The Leviathan Proprietary Ltd (1921) 30 CLR 34. Knox CJ put the position as follows:
On the facts and documents within the knowledge of the Registrar of Titles in his official capacity, the dealing sought to be registered was a breach of trust on the part of the trustees. What is his duty in such a case? Must he register the dealing, or is he entitled to refuse to register? In my opinion, where it has come to the knowledge of the Registrar that a dealing lodged for registration is a breach of trust, or that for any other reason the person dealing with the land as registered proprietor is not competent at law or in equity to deal with it in the manner proposed, it is his duty to refuse to register. I do not suggest, nor was it contended, that where the Registrar merely suspects that the dealing may be a breach of trust or otherwise improper, but knows no facts to justify him in concluding that it is so, it is any part of his duty or that he has any right to ask for information or make inquiries in order to ascertain the true facts. I desire to limit my opinion with regard to his power to refuse registration to those cases in which the facts within his knowledge appear to him to show that the proposed dealing is improper. The line of demarcation is indicated by the remarks of A'Becket, J, in the British Bank to Evans, 5 ALR at pp 293-4, where he distinguishes the decisions in Ex parte Wisewould, 16 VLR 149, and Ex parte Campbell, 9 A.L.T. 183; and by the observations of Hodges, J, in Ex parte Briggs, 19 ALR 501.
Under ss 55 and 233(iii) of the Act the duty is cast on the Registrar in certain cases to protect the rights of persons whose interests are not show on the register, and I can see nothing in the Act to support the contention that in every other case the Registrar is bound to register a dealing, although he knows that the effect of his doing so may be to exclude or destroy the interests of persons having equitable rights against the registered proprietor.

Higgins J put the position this way:
I propose to consider presently the effect of the order on originating summons; but, apart from the effect of that order, I am clearly of opinion that the Registrar was right in refusing to register these three instruments tendered, inasmuch as, on the face of the documents submitted, they constituted a breach of trust, an improper dealing within the meaning of s 233 (III). It is true that no King's caveat or other caveat had been lodged under that section, and that no copy of the will and codicil had been deposited under s 55; but these devices are treated as merely means to the end of preventing improper dealings, and it has been repeatedly held that the Registrar may simply refuse to register - British Bank to Evans, 5 ALR 292; Ex parte Briggs, 19 ALR 501; Ex parte Equity Trustees Company, 17 ALR 154, at p 159. The Registrar has to discharge, not merely ministerial, but also judicial, duties; and it is his duty to "prevent instruments from being registered which in law as well as fact ought not to be placed on the register" - Registrar of Titles v Paterson, 2 App Cas. 110; Ex parte Bond, 6 VLR (L.) 458, 463; R v Registrar, Ex parte Briggs, 19 ALR 501; Ex parte National Trustees Company, 4 ALR 76. It is not his duty to require proofs negativing any fraud or improper dealing, where there is nothing on the face of the documents submitted to suggest it - Ex parte Wisewould, 16 VLR 149; Ex parte Equity Trustees Company, 17 ALR 154; Ex parte Campbell, 9 A.L.T. 183; Ex parte Danaher, 17 ALR 160; or to inquire into unregistered interests as to which the purchaser or person dealing with the registered proprietor is relieved from inquiry under s 179. But in this case the proposed transaction on its face is a breach of trust, and improper; and the burden of showing that the instruments ought to be registered falls on the applicant for the mandamus.
In Gibb v Registrar of Titles (1940) 63 CLR 503, Dixon J took a limited view of the discretion of the registrar. His Honour said:
For the rest it must be remembered that the Courts have conceded to the Registrar of Titles a control over the register which would enable him 'to preserve his entries and records from confusion, and to prevent the intrusion of anything calculated to obscure or mislead or even to impede the ordinary practical working of his department'.
Perhaps in the present context it is apposite to note his Honour went on to say:
The court, however, is invested with a special jurisdiction under s 248, and, when that jurisdiction is invoked, it becomes the duty of the court to say whether, notwithstanding the determination of the Registrar, the particular instrument ought to be registered.
In Registrar-General v Lee (1990) 19 NSWLR 240, Meagher JA firmly rejected an argument to the effect that the Registrar had a discretion in difficult cases. Kirby P agreed. Meagher JA said:
The appellant contended that even if the 'plan of division' were registrable he had no duty to register it in the circumstances; if the registrability of a plan raised difficult questions, and the right of the respondent to obtain registration was obscure or arguable, he had a discretion to refuse registration, because that would not be unreasonable. In my view this argument ought be firmly repelled. The Conveyancing Act ought be construed as imposing on the Registrar‑General a duty to register any instrument which is in law registrable, and a duty to refuse registration to all instruments which in law are not registrable. There can be no third alternative. No doubt, declaratory relief is always available to decide doubtful cases; but the expedient of refusing registration merely on the grounds of difficulty is a luxury which is not available.
It must be noted Meagher JA was in dissent as to the outcome of this appeal. That does not appear to affect the statement of principle quoted above. However, it should also be noted this statement was not determinative of the issue raised by the appeal. To that extent his Honour's comments, no matter how forceful, must be seen as obiter.
In Hemer Pty Ltd v Benni (No 2) [2011] SASCFC 143, Gray J, delivering the decision of the court had this to say:
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. It is not the Registrar-General's role to go behind an instrument produced for registration. It is not the Register-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.
In Goodman Court Pty Ltd v Registrar-General of NSW [2014] NSWSC 1828 and in Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (in liq) v Kelly [2021] WASC 448 there are statements to similar effect.
Based upon these authorities, counsel submitted that the duty and discretion of the Registrar could be set out as follows:
(a)the Registrar's paramount duty is to register instruments presented for lodgement, to a great extent automatically or administratively;
(b)the duty is owed to the individual seeking registration;
(c)the Registrar's limited discretion not to register operates in exceptional circumstances and arises only if the Registrar identifies, affirmatively and on the face of the record, not merely on suspicion or supposition, that there is a cogent reason to refuse registration; and
(d)the reasons are narrowly defined: for example, where registration would give effect to a fraudulent or unlawful transaction, or interfere with the proper functioning of the Registrar's office in a way causing embarrassment or confusion.
In my view, these principles govern the way in which the Registrar is obliged to deal with instruments presented for registration. In this case, they have not complied with those requirements. They should have done so. I can see no actions on the part of Hill Time which would in any way justify the way in which the first and second defendants have dealt with their application. Hill Time is entitled to the relief it seeks.
When first reading the documents in this matter, still more during the course of submissions and particularly in preparing these reasons I have had an uneasy feeling some facts were being overlooked. It was as if I was doing a jigsaw puzzle while firmly of the view a piece was missing. In fact no piece was missing and the picture is complete but I am left with existential angst. I can understand why the Registrar did not register the transfer prior to Hill Time withdrawing the vesting applications. I can also understand why the documents including the transfer form were returned to Hill Time in December of 2018. Mistakes happen. But when the transfer form was returned to Landgate and particularly after Hill Time's solicitors wrote a detailed letter to Landgate in August of 2021, I cannot understand why the transfer form was not registered. Perhaps it was hubris. Perhaps Landgate's bureaucratic processes trumped common sense. But the position adopted by the Registrar seems unreasonable.
Moreover, it might have been thought when proceedings were issued and the matter was placed in the hands of the State Solicitor's Office a concession would have been made and the transfer form would have been registered. Rather than that happening, the Registrar, presumably advised by the State Solicitor's Office, seems to have taken the approach that he had a discretion to refuse registration and he intended to use that discretion in this case. It was not as though any evidence was led of wrongdoing on the part of Hill Time. In fact administrators had been appointed to Hill Time and those administrators have statutory duties which should have given the Registrar comfort and satisfied him there was no reason why registration should not take place.
Even now I am not entirely convinced the Registrar will register the transfer form without further documents being required from Hill Time. So let me make the position plain. The transfer form should be registered - no more requisitions, no more VOI's, no more requirements to file any documentation. The orders sought by Hill Time did not specify a time within which registration was to take place. If, after conferral, the plaintiff is not satisfied registration will be undertaken forthwith then I will make an order which contains a temporal requirement.
On publication of these reasons the parties should confer as to the form of orders. If no agreement can be reached within seven days, then the parties are to lodge their form of orders. As to costs, if no agreement can be reached on that issue, then short submissions are to be lodged within seven days.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MM
Associate
21 SEPTEMBER 2022