Lee v Coffee Republic Pty Ltd

[2006] TASSC 6

[2006] TASSC 6

CITATION:            Lee v Coffee Republic Pty Ltd & Anor [2006] TASSC 6

PARTIES:  LEE, Elizabeth Anne
  v
  COFFEE REPUBLIC PTY LTD
  and
  ERINA DEVELOPMENTS PTY LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  LDR 66/2005
DELIVERED ON:  23 February 2006
DELIVERED AT:  Hobart
HEARING DATE:  9 February 2006
DECISION OF:  Master S J Holt

CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Practice under Rules of Court – Pleadings – Striking out.

Supreme Court Rules 2000 (Tas), rr258 and 259.

Aust Dig Procedure [272]

Conveyancing – Land titles under Torrens system – Easements – Creation – Indorsements on certificates as evidence – Indorsement on certificate of dominant tenement – Conclusiveness of indorsements.

Land Titles Act 1980 (Tas), s106.
Aust Dig Conveyancing [253]

REPRESENTATION:

Counsel:
           Plaintiff:  R W Pearce
           1^st defendant:  M J Grove
Solicitors:
           Plaintiff:  Douglas & Collins
           1^st defendant:  Bishops

Judgment Number:  [2006] TASSC 6
Number of paragraphs:  13

Serial No 6/2006
File No LDR 66/2005

ELIZABETH ANNE LEE v COFFEE REPUBLIC PTY LTD
and ERINA DEVELOPMENTS PTY LTD

REASONS FOR DECISION  MASTER S J HOLT
  23 February 2006

1. The first defendant has applied for an order striking out the plaintiff's statement of claim on the ground that the pleading "does not disclose a cause of action or is, alternatively, embarrassing". 

1. The statement of claim insofar as it concerns the first defendant is as follows.  The plaintiff is the registered proprietor of land described in folio of the Register volume 44900 folio 1.  Appurtenant to that land is "the right to go, return, pass and re-pass" over land marked "Roadway" on Diagram 44900.  The first defendant by its servants or agents has entered into possession of the roadway and is using it for a "coffee shop business".  That use is without the permission of the plaintiff and "constitutes a substantial interruption to and interference with the plaintiff's right of way".  The interference continues and the plaintiff claims an injunction restraining the first defendant from "occupying the roadway" and "interrupting or interfering with the plaintiff's right of way".

1. The first defendant says that for a finding to be made that there is a right of way the servient land must be identified.  If it is land under the Torrens system the burden of the easement must be stated on the title and if it is not so stated the easement claimed must be shown to fall within an exception to the indefeasibility rule under the Land Titles Act 1980 ("the Act"), s40(3)(e). Further, the first defendant says that the grant or set of facts by which the easement was created must be proved. Because this detail has not been alleged in the statement of claim the first defendant says that the pleading is bad.

1. The statement of claim, of course, is wide enough to accommodate the plaintiff putting the folio of the Register, which concerns her land, into evidence, including a statement in the folio to the effect that the land described in the folio has appurtenant to it the benefit of the claimed easement.  The first defendant's submission that this is not enough is based upon two propositions.  The first is that Parramore v Duggan (1995) 183 CLR 633 shows at 636 in the words of Brennan J (as he then was) 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 Act". The second is that upon a proper construction of the Act, s106, a statement in a folio of the Register to the effect that the land described in the folio has the benefit of an easement is not sufficient evidence that the land has that benefit unless in addition facts showing that the easement would exist at common law are established.

1. 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.  The folio of the Register, however, for Mr Parramore's land did not show the burden of an easement.  The matter came before the Court at first instance 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.  

1. Brennan J at 635 referred with approval to the essential characteristic of the Torrens system stated by Barwick CJ in Breskvar v Wall (1971) 126 CLR 376 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."

After quoting this passage he continued as follows:

"A Torrens system statute necessarily contains two key provisions: one, a provision that makes a certificate (or duplicate certificate) of title conclusive proof of the title of the registered proprietor so that no other person can be heard to claim that he or she is the proprietor of the title to which the certificate relates; and, two, a provision that makes that title immune from defeasance by a paramount title.  …

…

It is erroneous to regard indefeasibility as relating to an interest which merely confers rights in or over the land of another registered proprietor whose title is indefeasible. A registered proprietor of a dominant tenement has an indefeasible title to the land to which the easement is appurtenant but the easement is not indefeasible. Similarly, where the servient tenement is land to which a registered proprietor has title under the Act, that title is indefeasible. Unless the easement is registered on the certificate of that title, or unless the easement falls within one of the exceptions contained in s 40(3), the unencumbered title of the registered proprietor of the servient tenement is not subject to the easement: see s 40(1). In other words, the registered proprietor of land to which an easement is appurtenant has an indefeasible title to that land but not to the easement, so that the 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 s 40(3)(e) of the Act."

1. The Act, s106, is as follows:

"106(1)  Subject to subsection (2), a statement in a folio of the Register to the effect that the land comprised in the folio has the benefit of an easement shall be conclusive evidence that the land has that benefit. 

(2)  Subsection (1) shall not be construed so as to give effect as an easement to a right which is not recognised as an easement at common law.

(3)  An easement shall not be implied from anything appearing on a plan deposited with the Recorder after the proclaimed date."

1. In Parramore Toohey J said at 643:

"Section 106(1) is an evidentiary provision. It prevents a collateral attack upon the existence of an easement to which the title refers. But it does not preclude reliance upon any other provision of the Act which confers indefeasibility of title upon the registered proprietor of servient land free from the easement.."

1. It is evident from the passages to which I have referred that Parramore does not support the first defendant's contentions as to what must be proved and hence pleaded by the plaintiff.  What Parramore shows is this:

(a)                It is the content of the Register itself which vests title and not the documents or historical facts which led to the registration which determines the nature and extent of the title.

(b) By virtue of the Act, s106, the proprietor of the dominant land will prima facie establish that the land has the benefit of an easement stated on the folio by putting the folio of the Register into evidence. 

(c)Putting aside alterations to the Register (eg, because an easement has expired or has been abandoned) no collateral attack as to the existence of the easement can be made except by a person relying upon a provision in the Act which confers indefeasibility of title on the servient land free from the easement.

1. The Act, s106(2) only leaves open for enquiry the question of whether the right as described in the folio of the Register is a right of a kind which is recognised as an easement at common law. To read the subsection as requiring an enquiry into the history and derivation of the registered title as the first defendant would have it, would be contrary to the purpose of s106(1) as described by Toohey J in Parramore at 643 (supra) and would be against the essential characteristic of the Torrens system, namely, that it is "not a system of registration of title but a system of title by registration".

1. I conclude that as to the fact of the existence of an easement benefiting registered land all the plaintiff need plead and prove is the content of the folio of the Register for the dominant land naming the plaintiff as registered proprietor and describing an easement appurtenant to that land. Thereafter under s106(2) there might be argument as to whether the right as described in the folio of the Register is a right of a kind which is recognised as an easement at common law, but this is not a matter for pleading or evidence. For the reasons explained in Parramore, a defendant who can plead and then show that the servient land is registered land under the Act and that the burden of the easement is not stated on the folio of the Register for that land will defeat the plaintiff's claim unless the plaintiff by way of reply pleads and then by evidence shows that the easement exists notwithstanding the indefeasibility rule by virtue of the Act, s40(3)(e). Otherwise it is for the defendant by way of counterclaim to plead and prove matters justifying an alteration to the Register.

1. The first defendant has also submitted that the nature and extent of the alleged interference has not been adequately identified in the pleading.  According to the pleading the first defendant is using the roadway for a coffee shop and that use is a substantial interruption to and interference with the plaintiff's right of way.  If anything more might be required it is by way of elaboration only and so can be dealt with by particulars without alteration to the pleading. 

1. The statement of claim does not fail to disclose a cause of action and is not embarrassing.  There will be an order dismissing the strike out application.