Mapa Pearls Pty Ltd v Haliotis Fisheries Pty Ltd
[2023] VSCA 108
•11 May 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2022 0089 |
| MAPA PEARLS PTY LTD (ACN 604 308 821) | Applicant |
| v | |
| HALIOTIS FISHERIES PTY LTD (ACN 061 835 452) AND OTHERS ACCORDING TO THE SCHEDULE | Respondents |
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| JUDGES: | KYROU, McLEISH and NIALL JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 March 2023 |
| DATE OF JUDGMENT: | 11 May 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 108 |
| JUDGMENT APPEALED FROM: | [2022] VSC 517 (Cavanough J) |
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PROPERTY LAW – Crown leases granted to applicant over two areas of coastal waters and subjacent sea-bed – In application for leases, applicant stated it did not require exclusive use ‘as it is an area of commercial abalone use’ – Applicant did not advertise leases at least 14 days prior to their grant as required by s 137 of Land Act 1958 – Common ground that leases void pursuant to administrative law principles – Leases deprived first to sixth respondents of ability to fish for abalone and sea urchin in lease areas – Leases registered under Transfer of Land Act 1958 (TLA) prior to those respondents becoming aware of them – Whether lease titles indefeasible under s 41 of TLA – Whether judge erred in finding first to sixth respondents had in personam rights against applicant – Leave to appeal granted – Appeal allowed.
PROPERTY LAW – Indefeasibility of title under s 41 of TLA – Nature and sources of in personam rights enforceable against registered proprietor – Whether conduct of applicant in not advertising and stating it did not require exclusive use sufficient to satisfy equitable fraud basis for in personam rights – Whether right of first to sixth respondents to seek to restrain registration of leases on administrative law grounds sufficient basis for in personam rights irrespective of conduct of applicant – Circumstances in which mistake can give rise to in personam rights – No in personam rights established by first to sixth respondents.
PROPERTY LAW – Indefeasibility of title under s 41 of TLA – Circumstances in which a void instrument of grant or transfer can confer indefeasible title upon registration.
EQUITY – Equitable sources of in personam rights – Equitable fraud – Fourth category of equitable fraud in Earl of Chesterfield v Janssen (1751) 2 Ves Sen 125; 28 ER 82 – Unacceptable use of statute – Excess of jurisdiction.
CROWN LAND – Coastal waters – Whether pt I of Land Act 1958 applies only to ‘land in Victoria’ – Whether sea-bed beneath coastal waters is ‘land’ within Land Act 1958 pt I and ‘Crown land’ within s 134(1) – Coastal Waters (State Powers) Act 1980 (Cth) s 5 – Coastal Waters (State Title) Act 1980 (Cth) s 4(1) – Part I applies to coastal waters and sea-bed.
STATUTORY INTERPRETATION – Whether inconsistency between Land Act 1958 and TLA – No inconsistency.
WORDS AND PHRASES – ‘Informality or irregularity’ – TLA s 41.
Transfer of Land Act 1958, ss 8, 28, 40–44, 103, 106; Land Act 1958, ss 4, 12, 134, 137, 137AA; Interpretation of Legislation Act 1984, ss 6(1), 38, 57.
Frazer v Walker [1967] AC 569, Breskvar v Wall (1971) 126 CLR 376, Bahr v Nicolay [No 2] (1988) 164 CLR 604, Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 applied; Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537, Palais Parking Station Pty Ltd v Shea (1980) 24 SASR 425, Tyre Marketers (Australia) Ltd v Martin Alstergren Pty Ltd [1989] V Conv R ¶54-335, City of CanadaBay Council v F&D Bonaccorso Pty Ltd (2007) 71 NSWLR 424, Paragreen v Lim Group Holdings Pty Ltd (2020) 61 VR 293, Boyd v Mayor of Wellington [1924] NZLR 1174, Tutt v Doyle (1997) 42 NSWLR 10, Forrest & Forrest Pty Ltd v Wilson (2017) 262 CLR 510 considered.
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| Counsel | |||
| Applicant: | GA Costello KC with J Wright | ||
| First to Sixth Respondents: | CJ Horan KC with AT Hoel | ||
| Seventh & Eighth Respondents | PG Willis SC | ||
| Ninth Respondent | No appearance | ||
Solicitors | |||
| Applicant: | Carbone Lawyers | ||
| First to Sixth Respondents: | Strongman & Crouch | ||
| Seventh & Eighth Respondents | MinterEllison | ||
| Ninth Respondent | No appearance | ||
TABLE OF CONTENTS
Introduction and summary
Facts
Application for leases in December 2011 and events until December 2014
Events between January 2015 and December 2017
Events from January 2018
Relevant statutory provisions
Land Act
Transfer of Land Act
Legal principles regarding in personam qualification to indefeasibility of title
Application for judicial review
Overview of the judge’s reasons
The judge’s reasons in relation to the indefeasibility question
Grounds of appeal and notice of contention
PART A:. GROUNDS IN THE APPLICATION FOR LEAVE TO APPEAL
The parties’ submissions on grounds 1 and 2 in the application for leave to appeal
Decision on grounds 1 and 2 in the application for leave to appeal
Ground 3 in the application for leave to appeal
PART B:. GROUNDS IN THE NOTICE OF CONTENTION
Ground 1 of the notice of contention: Mistake
Ground 2 of the notice of contention: Breach of statute; excess of jurisdiction
Ground 3 of the notice of contention: Leases incapable of registration
Ground 4 of the notice of contention: Meaning of ‘informality or irregularity’
Ground 5 of the notice of contention: Inconsistency between Land Act and TLA
Ground 6 of the notice of contention: Correction of the Register
Ground 7 of the notice of contention: ‘Crown land in Victoria’
Conclusion
SCHEDULE OF PARTIES
KYROU JA
MCLEISH JA
NIALL JA:
Introduction and summary
This proceeding concerns the validity of two leases granted to the applicant, MAPA Pearls Pty Ltd (‘MAPA’), by the Crown over two areas of coastal waters and subjacent sea-bed off the coast of Gabo Island and Tullaberga Island in Eastern Victoria (‘Leases’). The Leases were granted for the purpose of culturing pearls within abalone, which involves holding abalone in cages affixed to the sea-bed and harvesting the pearls from the abalone once the pearls are formed.
The Leases were granted under s 134 of the Land Act 1958. The lease in respect of the area off Gabo Island (‘Gabo Lease’) was granted on 8 May 2018 and registered in the Register of Titles (‘Register’) under the Transfer of Land Act 1958 (‘TLA’) on 11 May 2018. The lease in respect of the area off Tullaberga Island (‘Tullaberga Lease’) was granted on 7 February 2019 and registered on 13 February 2019. We will refer to the areas the subject of the Leases as the ‘Lease areas’.
The Lease areas contain reefs which produce abalone and sea urchin. The first to sixth respondents (‘Licensee parties’) are commercial abalone (and, in one case, sea urchin) fishers who, well before the granting of the Leases, have held access licences and/or quota units under the Fisheries Act 1995. The access licences and/or quota units enabled them – and other commercial fishers with fishing licences and/or quota units – to commercially fish for abalone and sea urchin in the Lease areas. Prior to the Leases, the commercial activities of MAPA and the Licensee parties had co-existed in the Lease areas, which also remained open to recreational users.
The Licensee parties and other commercial fishers did not have prior notice that the Leases would be granted. They became aware of the Leases in June 2019, when their industry association was informed of the Leases by the Victorian Fisheries Authority (‘VFA’). Subsequently, MAPA made it known to the Licensee parties and other commercial fishers that it would not permit them to continue their fishing operations in the Lease areas.
On 16 August 2019, the Licensee parties commenced a judicial review proceeding in the Trial Division seeking relief on the basis that the Leases were invalid. The initial defendants were the Hon Lily D’Ambrosio MP, the then Minister for Energy, Environment and Climate Change (‘Minister’),[1] and the State of Victoria.[2] On 3 October 2019, MAPA and the Registrar of Titles (‘Registrar’) were added as defendants.[3] We will refer to the Minister and the State of Victoria as the ‘State parties’.
[1]The Minister now has a different title, but that is not presently relevant.
[2]Two delegates of the Minister were also defendants initially, but they were removed as parties by consent.
[3]The Registrar did not participate in the proceeding.
A key issue at trial was whether the conduct of MAPA was such as to give rise to in personam rights enforceable by the Licensee parties against MAPA such that its registered Lease titles were subject to those rights, notwithstanding the indefeasibility principle in s 41 of the TLA.[4]
[4]Section 41 and other provisions of the TLA are set out at [48] below.
On 2 September 2022, a judge in the Trial Division held that the Leases were invalid on the basis that MAPA’s conduct in relation to them amounted to equitable fraud, which gave rise to in personam rights enforceable by the Licensee parties against MAPA’s registered Lease titles.[5]
[5]Haliotis Fisheries Pty Ltd v Minister for Energy, Environment and Climate Change [2022] VSC 517 (‘Reasons’).
On 29 September 2022, the judge made declarations that the Leases were void and of no effect, and orders that the grant of the Leases be quashed and that the Leases be deleted from the Register.[6]
[6]The relevant parts of the judge’s order of 29 September 2022 are set out at [104] below.
On 10 October 2022, MAPA filed an application for leave to appeal which seeks to impugn the judge’s declarations and orders on three grounds.[7] The respondents are the Licensee parties (first to sixth respondents), the State parties (seventh and eighth respondents) and the Registrar (ninth respondent). At the hearing of the application for leave to appeal, the State parties broadly supported MAPA’s position, but the Registrar did not participate.
[7]In these reasons, proposed grounds of appeal are referred to as grounds of appeal. The applicant’s grounds of appeal are set out at [119] below.
The Licensee parties have filed a notice of contention which seeks to uphold the judge’s declarations and orders on the basis of a number of issues which were argued before him but were not decided by him.[8]
[8]The grounds in the notice of contention are set out at [195], [205], [220], [234], [248], [258] and [261] below.
Prior to the hearing of the application for leave to appeal and the notice of contention on 7 March 2023, this Court made interlocutory orders, including a stay of parts of the judge’s order of 29 September 2022.
For the reasons that follow:
(a)the application for leave to appeal will be granted;
(b)the notice of contention will be dismissed; and
(c)the appeal will be allowed.
Facts
Application for leases in December 2011 and events until December 2014
MAPA is owned by the Menke family. Its directors are siblings Brett, Paul and Sara Menke. Since 1996, well before MAPA was incorporated on 18 February 2015, the Menke family have been in the business of culturing pearls within abalone in the Lease areas pursuant to annual aquaculture licences under the Fisheries Act. From around 2008, the licences were numbered CLA 8 and CLA 9. Since 12 December 2000, the family also had consent under the Coastal Management Act 1995 (‘CMA’) to place cages on the sea-bed in the areas covered by the licences.
The granting of leases on Crown land in Victoria is governed by the Land Act and Victorian government policies. The leasing policy document which was in force at the time of the events that are presently relevant listed a number of circumstances that may justify the granting of a lease by direct negotiation rather than a public competitive process. One of the circumstances was ‘when it is clear beyond reasonable doubt that there is only one prospective tenant for a particular property asset’.
The process by which MAPA applied for, and was granted, the Leases was very protracted. It commenced with correspondence from Gerardus Menke (also known as Gerry) to the then Department of Sustainability and Environment (‘DSE’) in late 2011 ‘regarding the occupation and operation of aquaculture sites adjacent to Tullaberga Island in Gippsland’.[9] Gerry was the father of Brett, Paul and Sara, and another sibling, Anna.[10]
[9]The trial proceeded on the basis that all steps taken on behalf of the Menke family and its business entities in relation to the Leases were to be attributed to MAPA even though some steps preceded MAPA’s incorporation: Reasons [4].
[10]For convenience, we will use first names for members of the Menke family. Although Anna is not a director of MAPA, it appears that she is involved in the family business.
Gerry’s initial correspondence does not appear in the documents before this Court, but we do have a letter dated 30 November 2011 from Timothy Shepherd, the Senior Project Officer – Property Management of DSE, which responded to that correspondence. We do not know whether Gerry’s correspondence specifically mentioned a lease. However, it is clear from DSE’s letter of 30 November 2011 that it advised Gerry that he required a lease. DSE’s letter relevantly stated:
The proposed ongoing occupation and operation of the aquaculture sites on the seabed adjacent to Tullaberga Island, comprising unreserved Crown land, requires a Crown lease for each site to be granted by the Minister … pursuant to section 134 of the Land Act 1958.
To apply for the proposed Crown leases, please complete the enclosed Application To Use Crown Land form for the proposed aquaculture sites …
…
Subject to the Minister … providing approval in principle to the proposed Crown leases, the process to grant the Crown leases would involve the following:
…
•Agreement to the specific Crown lease document which has been developed by [DSE] … for use in the occupation and operation of aquaculture sites.
…
•Publication of a notice of intention in the Victoria Government Gazette and a locally circulating newspaper for each Crown lease, in accordance with section 137 of the Land Act 1958.
…
[DSE] will provide further details on each of these requirements following consideration of your application.
On 12 December 2011, Gerry completed the ‘Application to Use Crown Land’ form attached to DSE’s letter of 30 November 2011 (‘Gerry’s December 2011 application’). The application was in his name. Under the heading ‘The Crown land I wish to licence is’, he identified two areas of Crown land off Gabo Island and Tullaberga Island which the Menke family already used for aquaculture operations in accordance with the aquaculture licences. Gerry nominated ‘10 + years’ for the term of the proposed use of the land.
In the form, in response to the question whether ‘any improvements [are] proposed for the land?’, Gerry stated:
CLA8 already possess aquaculture cages of no/minor significance to the natural environment. … The improvements do not impede commercial or recreational use. The reason for [the] application is through advice from Mr Andrew [Clarke] suggesting a lease provides security of use of land to continue a locally funded and run business without fear of a [revocation] of use due to circumstance.
The use of this land is needed for future aquaculture use to continue the aquaculture business. This business benefits the local community through employment, promoting local natural products.
In the form, in response to the question ‘Do you propose to have exclusive use of the land?’, Gerry stated:
NO NOT EXCLUSIVE AS IT IS AN AREA OF COMMERCIAL ABALONE USE.
Throughout 2012, DSE sought feedback from other Victorian government bodies, such as Fisheries Victoria (within the Department of Environment and Primary Industries (‘DEPI’)) and Parks Victoria, in relation to the application for Crown leases.
An email dated 23 November 2012 from Darryl Burns, the Ranger in Charge for Far East Gippsland, Parks Victoria, to Mr Shepherd relevantly stated:
Does the Aquaculture Lease give exclusivity of the site to the [lessee]? The waters adjacent to Tullaberga & Gabo are utilised by commercial and recreational fishers and divers. I anticipate issues arising from these groups if this is the case.
In his response to Mr Burns dated 3 December 2012, Mr Shepherd relevantly stated:
By definition, a lease is designed to provide exclusive use of Crown land to a tenant. However, the proposed tenant has indicated that exclusive use is not required in this case as the lease sites are utilised by other commercial and recreational divers. Accordingly, DSE will consider a condition in the lease to maintain public access or alternatively a licence to undertake the aquaculture activities on the sites.
On 6 August 2013, Paul submitted to DSE a document titled ‘Application for Consent for Proposed Use and Development of Coastal Crown Land’ pursuant to the CMA (‘Paul’s August 2013 application’). DSE treated such consent as a precondition for the grant of the proposed leases. In the form:
(a)Paul described the ‘Project Title’ as ‘Lease of Crown Land for Abalone Aquaculture use’, and the ‘Proposal outline’ relevantly as ‘[t]o solidify land use for future aquaculture use, MAPA and Mr Gerry Menke wish to lease the land currently in use’.
(b)Under the heading ‘Project description’, Paul described the cages that were used, and then stated:
The area is open to public recreational use. The area is very remote with little to no public usage. The implementation of sea-floor cages [poses] minimal impact to the local environment …
(c)In describing how the proposal was consistent with the Victorian Coastal Strategy, Paul relevantly stated that MAPA does ‘not harm or impact the local wildlife or environment, and [poses] no risk to any tourism recreational use’. In relation to the Gippsland Coastal Action Plan, he set out seven ‘key objectives’, including the following:
•Impacts on the physical resources: MAPA incurs minimal impact on the aquaculture site CLA8. Drill holes and area used by sea floor cages are negligible at best.
…
•Differing Demands for use of Coast: MAPA does not affect the surrounding use of the available coastline.
…
•Economical Implications: MAPA provides a local abalone pearl sold for economic profit. MAPA provides employment for local residents. MAPA is associated with the town of Mallacoota. MAPA has no negative economic [effect].
By letter dated 9 May 2014, a delegate of the Minister approved Paul’s August 2013 application, which was inaccurately described as an application ‘for transferring existing licence to a lease for the purpose of Aquaculture operations’. The description was inaccurate because the Leases were conditional upon MAPA continuing to hold annual aquaculture licences.[11] No transfer was involved.
[11]See [45] below.
On 22 May 2014, Mr Shepherd sent an email to Andrew Clarke, Manager Aquaculture, Fisheries Victoria, about the proposed leases, attaching an amended version of what was referred to as ‘the standard aquaculture lease document for use in this case’. The email relevantly stated that ‘DEPI will need to arrange for the advertising requirements of section 137 of the Land Act 1958 to be satisfied’.
Tragically, Gerry and his wife, Mary Menke, were killed on 17 July 2014 when Malaysian Airlines flight MH-17 was shot down over Ukraine.
On 31 December 2014, Clarke Legal, the solicitors acting for the estates of Gerry and Mary, wrote to Mr Shepherd requesting that the application for the Crown leases be progressed. Around this time, DSE was merged with DEPI to form the Department of Environment, Land, Water and Planning (‘DELWP’ or ‘Department’).
Events between January 2015 and December 2017
Between January 2015 and May 2017, there was correspondence between officers of the Department, officers of Fisheries Victoria, Clarke Legal and Paul in relation to the proposed leases, including matters that had to be completed in order for the leases to be granted.
On 3 March 2015, an officer of the Department sent a letter to Clarke Legal identifying several matters that required completion prior to the grant of Crown leases. The letter relevantly stated the following in relation to one such matter:
Publication of a notice of intention in the Victorian Government Gazette and a locally circulating newspaper for each Crown lease, in accordance with [section] … 137 of the Land Act 1958. Following the completion of the plan for lease purposes, this office will provide you with the appropriate notice for publication.
By letter dated 23 February 2017, Daniel Dyson of the Department advised Paul relevantly as follows:
In accordance with s 137 of the Land Act 1958 and the Leasing Policy for Crown Land in Victoria 2010, [MAPA] is required to advertise its intention to lease, in both the Victorian Government Gazette and a locally circulating newspaper. Copies of the advertisements must be forwarded to this office when published. A sample advertisement containing the relevant details will be provided once the precise lease area is appropriately defined by survey.
On 24 February 2017, Paul sent an email to Mr Dyson which set out steps he was taking with surveyors and stated, ‘[f]rom there we can get approval for the survey and gazette the lease application’. In the email, Paul confirmed that he had paid a fee of $896.40 for the application, preparation and registration of the proposed leases.
On 27 February 2017, Mr Dyson sent an email to Paul stating that ‘[a]ny approval-in-principle [of the proposed leases] would be subject to the survey plans being certified by the Surveyor-General and the advertising requirements (gazette/local newspaper) being met’.
In February 2017, the aquaculture licences were reissued in MAPA’s name so that the same entity was the licensee under the licences and the lessee under the proposed leases.
On 11 May 2017, Paul sent Mr Dyson an email which included the following:
Do we need to Gazette the lease application soon, or is that the last step after the OK from the surveyor general? If so do you have an example that I could use, as I could get this ready.
Mr Dyson replied later that day, relevantly stating:
The Crown allotment details will need to be confirmed by the Surveyor-General Victoria before advertising can be undertaken. I will provide you with the relevant information for advertising at the appropriate time.
The Department never sent to MAPA the ‘relevant information for advertising’.
On 20 July 2017, the annual rental for the proposed lease for the area off Gabo Island was assessed at $750 and the annual rental for the proposed lease for the area off Tullaberga Island was assessed at $375, in accordance with the Valuation of Land Act 1960.
On 17 August 2017, a delegate of the Minister gave approval in principle to the grant of the proposed leases. The briefing note to the delegate which recommended approval relevantly stated ‘it is clear beyond reasonable doubt that MAPA … is the only prospective tenant due to it holding a Fisheries Licence to operate at these sites’, and ‘MAPA … will be required to undertake a public notification process to ensure an open, fair and impartial lease application process’. The briefing note did not refer to the issue of exclusive use by MAPA of the areas to be leased to it or to the effect of the leases on other users of those areas.
By a letter dated 23 October 2017, Mr Dyson advised Paul that a delegate of the Minister had given approval in principle to the grant of the proposed leases. The letter enclosed a proposed lease document which was described as being ‘in the Department’s standard format for aquaculture leases under Sec. 134 of the Land Act 1958’. The letter relevantly stated:
In accordance with section 137 of the Land Act 1958, [MAPA] is required to publish a notice of intention to lease in the Victoria Government Gazette and a locally circulating newspaper. The notices are to be lodged in this office once published. The instructions for publication will be provided upon finalisation of lease plans from the Surveyor-General Victoria.
The Department did not subsequently provide to MAPA any ‘instructions for publication’. Notices of the application for the proposed leases were never published in any newspaper or in the Victorian Government Gazette as required by s 137 of the Land Act. MAPA did not lodge with the Department any published notices.
Events from January 2018
At trial, Paul swore two affidavits and was not cross-examined. In his affidavit of 14 December 2019, Paul deposed that, in about early April 2018, he telephoned Mr Dyson and told him that he ‘did not know what the Government Gazette was, or what was required to undertake the public notification’. He also deposed that Mr Dyson responded with words to the effect that ‘[t]he advertising will be handled on our end’ and that he ‘assumed that DELWP took care of the public notification’. In his affidavit of 26 February 2020, Paul deposed that, at the time MAPA received the execution versions of the proposed leases,[12] he ‘assumed, based on [his] discussion with Mr Dyson, that DELWP had taken care of the notification and that the leases had been granted in accordance with requirements’. He also deposed that he ‘did not know that there was any issue with the notice not having been given until well after [the leases] had been granted’. Paul’s evidence did not mention what attempts, if any, he had made to verify that a notice had been advertised.
[12]See [43]–[44] below.
The State parties had no record of the conversation between Paul and Mr Dyson. No affidavit was sworn by a witness for the State parties which contradicted Paul’s evidence. Although the judge described Paul’s evidence that Mr Dyson told him that the Department would handle the advertising as ‘surprising’, he accepted that evidence.[13]
[13]Reasons, [10], [87].
On 16 April 2018, Mr Dyson sent to Paul by email the final proposed lease for the Gabo Island site for execution by MAPA. Mr Dyson’s email did not mention either the issue of exclusive use or the issue of publication in accordance with s 137 of the Land Act. MAPA did not seek to negotiate any of the terms of the proffered lease. Rather, Paul and Sara signed it on behalf of MAPA and returned it to the Department. On 8 May 2018, a delegate of the Minister signed the Gabo Lease. The briefing note to the delegate provided background information, but did not refer to the two abovementioned issues. The Department lodged the Gabo Lease for registration in the Register, and it was registered on 11 May 2018.
On 8 January 2019, an officer of the Department sent to Paul by email the final proposed lease for the Tullaberga Island site for execution by MAPA. Once again, the email did not mention the two issues referred to at [43] above, and MAPA did not seek to negotiate any of the terms of the proffered lease. The lease was signed by Paul and Anna on behalf of MAPA and returned to the Department. On 7 February 2019, a delegate of the Minister signed the Tullaberga Lease. The briefing note to the delegate was similar to the briefing relating to the Gabo Lease. The Department lodged the Tullaberga Lease for registration in the Register, and it was registered on 13 February 2019.
The parties to the Leases are the Minister as the landlord and MAPA as the tenant. The Leases are for a term of 21 years, with an option to renew for a further term of 10 years. They contain provisions conferring on MAPA exclusive possession of the Lease areas for the ‘Permitted Use’, which is defined in cl 1.1 as the use of the Lease areas for the purposes set out in the applicable aquaculture licence. Clause 16.1 sets out a number of events of default, including the non-renewal, revocation, cancellation or surrender of the applicable aquaculture licence for a period of 120 days or in aggregate for a period of 360 days during the term of the lease. Clause 14 sets out indemnities in favour of the Minister, including for claims against the Minister arising from MAPA carrying out the ‘Permitted Use’.
As we have already stated, the Licensee parties became aware of the Leases in June 2019 and they commenced their judicial review proceeding on 16 August 2019.
Relevant statutory provisions
Land Act
Sections 134(1), 137 and 137AA(1) of the Land Act relevantly provide as follows:
134 Minister may lease Crown land under this subdivision
(1)Subject to this subdivision, the Minister on behalf of Her Majesty may grant leases under this subdivision of any Crown land for any purposes (except for the purposes of agriculture) at the rent and subject to the conditions, covenants, reservations, restrictions and exceptions which he thinks fit.
…
137 Proposed lessee to give notice of lease arranged privately
Where, under this subdivision, the Minister leases Crown land by private negotiation, the proposed lessee shall, not less than fourteen days before the day on which the lease is to be granted, publish in the Government Gazette and in a newspaper circulating in the district in which the land is situated, a notice specifying –
(a)the particulars of the land which is to be leased;
(b)the purpose and term of the proposed lease; and
(c)the name of the proposed lessee.
137AA Term of lease
(1)Subject to this section, the term of a lease granted under this subdivision shall not exceed 21 years.
Transfer of Land Act
Sections 40 to 44 of the TLA are relevant to the issue of the indefeasibility of MAPA’s registered Lease titles. They relevantly provide as follows:
40 Instruments not effectual until registered
(1)Subject to this Act no instrument until registered as in this Act provided shall be effectual to create vary extinguish or pass any estate or interest or encumbrance in on or over any land under the operation of this Act, but upon registration the estate or interest or encumbrance shall be created varied extinguished or pass in the manner and subject to the covenants and conditions specified in the instrument or by this Act prescribed or declared to be implied in instruments of a like nature.
41 Certificate to be conclusive evidence of title
No folio of the Register under this Act shall be impeached or defeasible by reason or on account of any informality or irregularity in any application or instrument or in any proceedings previous to the creation of the folio or the making of any recording on it; and every folio of the Register shall be received in all courts as evidence of the particulars recorded in it and all the recordings of those particulars in the Register, and shall be conclusive evidence that the person named in the folio as the proprietor of, or having any estate or interest in, or power to appoint or dispose of, the land described in the folio is seised or possessed of that estate or interest or has that power.
42 Estate of registered proprietor paramount
(1)Notwithstanding the existence in any other person of any estate or interest (whether derived by grant from Her Majesty or otherwise) which but for this Act might be held to be paramount or to have priority, the registered proprietor of land shall, except in case of fraud, hold such land subject to such encumbrances as are recorded on the relevant folio of the Register but absolutely free from all other encumbrances whatsoever, except [certain exceptions which are not presently relevant]
(2)Notwithstanding anything in the foregoing the land which is included in any folio of the Register or registered instrument shall be subject to [certain exceptions which are not presently relevant]
43 Persons dealing with registered proprietor not affected by notice
Except in the case of fraud no person contracting or dealing with or taking or proposing to take a transfer from the registered proprietor of any land shall be required or in any manner concerned to inquire or ascertain the circumstances under or the consideration for which such proprietor or any previous proprietor thereof was registered, or to see to the application of any purchase or consideration money, or shall be affected by notice actual or constructive of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding; and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud.
44 Certificate etc. void for fraud
(1)Any folio of the Register or amendment to the Register procured or made by fraud shall be void as against any person defrauded or sought to be defrauded thereby and no party or privy to the fraud shall take any benefit therefrom.
(2)But nothing in this Act shall be so interpreted as to leave subject to an action of ejectment or for recovery of damages or for deprivation of the estate or interest in respect of which he is registered as proprietor any bona fide purchaser for valuable consideration of land on the ground that the proprietor through or under whom he claims was registered as proprietor through fraud or error or has derived from or through a person registered as proprietor through fraud or error; and this whether such fraud or error consists in wrong description of the boundaries or of the parcels of any land or otherwise howsoever.
Section 103(1) of the TLA provides that, if a court directs the Registrar to make any amendments to the Register that are necessary to give effect to any judgment or order of the court, the Registrar must obey that direction. Section 106(1) confers various powers on the Registrar including powers to: ‘delete a folio from the Register’ when necessary due to the operation of the TLA or another Act (s 106(1)(e)(i)); ‘make any amendment of the Register or any other instrument or document’ when necessary due to the operation of the TLA or another Act (s 106(1)(e)(iii)); and ‘take any other step necessary to protect the operation, effectiveness and integrity of the Register, including, but not limited to, the making of a notation on a folio of the Register’ (s 106(1)(f)).
Legal principles regarding in personam qualification to indefeasibility of title
Sections 40 to 44 of the TLA embody the Torrens system of land registration. It is a system of title by registration, as distinct from registration of title.[14]
[14]Breskvar v Wall (1971) 126 CLR 376, 385, 399 (‘Breskvar’); Deguisa v Lynn (2020) 268 CLR 638, 645 [4] (‘Deguisa’).
Under the Torrens system, an instrument – such as a mortgage, lease or other contractual document – may confer contractual rights as between the parties to it and give rise to equitable interests, but no legal title to the interest sought to be created or transferred by it vests in the intended recipient until the underlying instrument is registered.[15]
[15]Frazer v Walker [1967] AC 569, 580 (‘Frazer’); Breskvar (1971) 126 CLR 376, 385–6, 400.
Because legal title vests by virtue of registration under the TLA, rather than by virtue of the underlying instrument, legal title to the interest sought to be created or transferred by the underlying instrument can pass to the intended recipient upon its registration even if that instrument is liable to be declared void for any reason.[16] In Breskvar v Wall, Barwick CJ said: ‘a registration which results from a void instrument is effective according to the terms of the registration’, and that ‘[i]t matters not what the cause or reason for which the instrument is void’.[17]
[16]Boyd v Mayor of Wellington [1924] NZLR 1174, 1187–8, 1190, 1216–17, 1222 (‘Boyd’) (failure to obtain consent required by statute); Frazer [1967] AC 569, 584 (forged signature on mortgage); Breskvar (1971) 126 CLR 376, 386, 392, 397, 406, 412 (transfer void under stamps legislation); Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537, 562 (‘Logue’); Palais Parking Station Pty Ltd v Shea (1980) 24 SASR 425, 428, 430–1 (‘Palais’) (void notice of compulsory acquisition); Tyre Marketers (Australia) Ltd v Martin Alstergren Pty Ltd [1989] V Conv R ¶54-335, 64,183–4 (‘Tyre Marketers’) (misdescription of lessee in notice under s 137 of the Land Act); Horvath v Commonwealth Bank of Australia [1999] 1 VR 643, 650 [16], 654–5 [27], 657–60 [34]–[38], 669–71 [65]–[69], 678–9 [87] (‘Horvath’) (mortgage void as against mortgagor who was a minor); City of Canada Bay Council v F&D Bonaccorso Pty Ltd (2007) 71 NSWLR 424, 438 [43]–[45], 441 [58] (‘Canada Bay Council’) (transfers void because of statutory prohibition on the sale of the particular land).
[17](1971) 126 CLR 376, 386.
Sections 41 to 44 of the TLA have the effect that the title of the registered proprietor of an interest in land cannot be defeated or qualified by an interest of another person other than in accordance with the exceptions set out in the TLA.[18] For this reason, those sections are often referred to as the ‘indefeasibility’ provisions of the TLA and the registered title is often described as ‘indefeasible’. In Frazer v Walker, the Privy Council described indefeasibility as ‘a convenient description of the immunity from attack by adverse claim to the land or interest in respect of which [the registered proprietor] is registered, which a registered proprietor enjoys’ and added that ‘[t]his conception is central in the system of registration’.[19]
[18]Frazer [1967] AC 569, 585.
[19][1967] AC 569, 580.
The indefeasibility provisions of the TLA serve the important public purpose of ensuring that individuals dealing in land in Victoria can rely upon the accuracy of the Register without being required to search chains of title or inquire about the circumstances of the transactions that gave rise to the registration of an underlying instrument.[20] The Register is both conclusive and exhaustive, and searches beyond the Register are generally unnecessary.[21]
[20]Bahr v Nicolay [No 2] (1988) 164 CLR 604, 613, 637, 652 (‘Bahr’).
[21]Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528, 539 [39]; Deguisa (2020) 268 CLR 638, 644–5 [1]–[4].
An important statutory exception to indefeasibility of title is provided for in ss 42(1) and 43 of the TLA, namely, in ‘case of fraud’. This exception requires ‘actual fraud’, which has been held to require personal dishonesty or moral turpitude of the registered proprietor or of a person for whom he or she is legally responsible.[22] The actual fraud required by ss 42(1) and 43 is to be contrasted with equitable fraud, which is discussed below. It is to be noted that, in the present case, the Licensee parties relied upon equitable fraud but not actual fraud within the meaning of ss 42(1) and 43.
[22]Butler v Fairclough (1917) 23 CLR 78, 97; Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) (1965) 113 CLR 265, 273–4; Bahr (1988) 164 CLR 604, 614, 630, 631–2.
Although the indefeasibility provisions of the TLA do not refer to in personam rights (which are also known as ‘personal equities’) against the registered proprietor as a basis for qualifying his or her rights under the registered title, it is well established that those provisions do not preclude an individual with such a claim from obtaining relief against the registered proprietor.[23]
[23]Frazer [1967] AC 569, 585; Breskvar (1971) 126 CLR 376, 384–5; Bahr (1988) 164 CLR 604, 613, 637–8, 653.
In personam claims do not represent a true exception to indefeasibility of title because they are in the nature of claims against the registered proprietor rather than directly against his or her title. However, where such a claim is established, it can result in a court making orders that have the effect that the registered proprietor holds his or her title subject to the claimant’s in personam rights. The remedies that a court may provide to give effect to an in personam claim can include a declaration that the registered proprietor holds the legal title on constructive trust for the claimant, and even that the Register be amended. As the Privy Council stated in Frazer, ‘the certificate [of title] may be cancelled or its owner compelled to hold it upon trust or to deliver it up through an action in personam’.[24]
[24][1967] AC 569, 581.
In Frazer, the Privy Council described the relationship between the principle of indefeasibility and in personam rights as follows:
[The principle of indefeasibility] 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.[25]
[25][1967] AC 569, 585.
As the above passage from Frazer makes clear, in order for an individual who seeks in personam relief against a registered proprietor to succeed, he or she must establish a known legal or equitable cause of action against the registered proprietor.[26] In Horvathv Commonwealth Bank of Australia, Tadgell JA encapsulated this requirement as follows: ‘it should now be acknowledged that … a claim in personam encompasses only known legal or equitable causes of action’.[27]
[26]Grgic v Australian and New Zealand Banking Group Ltd (1994) 33 NSWLR 202, 222–3 (‘Grgic’); Pyramid Building Society (in liq) v Scorpion Hotels Pty Ltd [1998] 1 VR 188, 195–6; Horvath [1999] 1 VR 643, 650–1 [17].
[27][1999] 1 VR 643, 650 [17].
Legal or equitable causes of action which can give rise to in personam relief against the registered proprietor include: a unilateral or common mistake about the interest to be transferred pursuant to an underlying instrument;[28] and equitable fraud.
[28]See [201]–[202] below.
Equitable fraud extends beyond actual fraud and does not require intentional or conscious wrongdoing.[29] It includes what is sometimes referred to as ‘constructive fraud’, which can arise where a person’s conduct falls short of deceit but is regarded by equity as so unconscientious that it should not be allowed to stand.[30] Put another way, equitable fraud involves conduct that is abhorrent to the good conscience upon which the principles of equity are based.[31]
[29]Logue [1979] 1 NSWLR 537, 555, 559.
[30]Logue [1979] 1 NSWLR 537, 555, citing Nocton v Lord Ashburton [1914] AC 932, 954–5.
[31]Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] (2008) 39 WAR 1, 631 [4845].
In Earl of Chesterfield v Janssen,[32] Lord Hardwicke LC referred to four categories of equitable fraud, only the fourth of which is presently relevant. That category applies where the nature and circumstances of the transaction reveal it to be ‘an imposition and deceit on the other persons not parties to the fraudulent agreement’.[33] In Westpac Banking Corporation v Bell Group Ltd (in liq) [No 3], Drummond AJA stated that in order for a case to fall within the fourth head of equitable fraud, there must first be ‘an agreement that works an imposition or deceit on persons not parties to the agreement but who are in such a relationship with one or other of the parties that they will be affected by the agreement’.[34] He went on to state that it is not necessary to show an actual intention to deceive or that the fraudulent agreement has been kept secret from the third parties affected by it. Secondly, he said that the agreement must infringe some head of public policy so as to require equitable intervention.[35]
[32](1751) 2 Ves Sen 125; 28 ER 82 (‘Earl of Chesterfield’).
[33]Earl of Chesterfield (1751) 2 Ves Sen 125, 156; 28 ER 82, 100.
[34](2012) 44 WAR 1, 497 [2601] (‘Bell Group’).
[35]Bell Group (2012) 44 WAR 1, 497 [2601]. See also Argyle Building Services Pty Ltd v Franek [2020] VSCA 196, [55]–[56] upon which we have relied for the summary of the principles set out at [62].
Usually, an in personam claim based upon an equitable cause of action must be such as to engage the conscience of the registered proprietor vis-a-vis the claimant. It is based upon some act or omission of the registered proprietor or of a person for whose conduct the registered proprietor is legally responsible. It cannot be based upon acts or omissions of third parties for which the registered proprietor is not legally responsible.[36]
[36]Grgic (1994) 33 NSWLR 202, 222–3; Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133, 162; Harris v Smith (2008) 14 BPR 98331, 26,238 [67]; [2008] NSWSC 545 (‘Harris’).
Mere notice by a registered proprietor of another person’s interest is not sufficient to give rise to an in personam right to enforce the interest against the registered proprietor.[37]
[37]Logue [1979] 1 NSWLR 537, 563.
Further, the mere fact that an underlying instrument is invalid and liable to be set aside is not sufficient in itself to establish an in personam claim.[38]
[38]Horvath [1999] 1 VR 643, 650–2 [17]–[18], 678–9 [87].
To date, no case has held that a right to apply for an order to have a decision of a public body set aside on public law grounds, in and of itself, can constitute an in personam right for the purposes of the indefeasibility provisions in the TLA.[39]
[39]Mandurah Enterprises Pty Ltd v Western Australian Planning Commission (2010) 240 CLR 409, 425 [43] did not involve consideration of the indefeasibility provisions of Torrens legislation.
Because the judge relied heavily on Mahoney JA’s dissenting decision in Logue v Shoalhaven Shire Council[40] and Brennan J’s decision in Bahr v Nicolay [No 2][41] in support of his finding that the Licensee parties had an in personam claim against MAPA, it is necessary to summarise those cases in detail.
[40][1979] 1 NSWLR 537.
[41](1988) 164 CLR 604.
In Logue, the Shoalhaven Shire Council sold certain land following the owner’s default in payment of rates, and (as it was permitted to do) bought the land itself and became registered proprietor under the Real Property Act 1900 (NSW) (‘RPA (NSW)’). Public notice of the intention to sell, as required by s 602(2)(b) of the Local Government Act 1919 (NSW) (‘LGA 1919 (NSW)’), had been given, but the notice contained an error in the amount of the rate arrears due. The plaintiff, as the executor of the former owner’s deceased estate, claimed that the sale was invalid because the notice did not comply with s 602(2)(b).
Hutley JA (with whom Reynolds JA agreed) held that the notice complied with s 602(2)(b) of the LGA 1919 (NSW), but added that, if the notice did not comply, the Council nevertheless acquired good title as against the plaintiff under s 604(2) of the LGA 1919 (NSW) and the indefeasibility provisions of the RPA (NSW). Section 604(2) relevantly provided that ‘[a]ny … transfer by the council purporting to be made under this Act shall vest the land in the purchaser for an estate in fee-simple in possession, freed and discharged from all trusts obligations estates interests … but subject to [certain specified exceptions]’.
In relation to the RPA (NSW), Hutley JA stated that the plaintiff’s case, at its highest, was that ‘because of want of care by the council in the exercise of its statutory powers, [the former owner] has been improperly deprived of his land, which is vested in the council’, and that this did not give rise to a ‘personal equity’.[42] Hutley JA added that he ‘would not elevate the administrative blunders with which this sale was associated into a source of a personal equity binding the council’.[43]
[42]Logue [1979] 1 NSWLR 537, 543.
[43]Logue [1979] 1 NSWLR 537, 543.
Mahoney JA dissented. He held that the Council’s notice did not comply with s 602(2)(b) of the LGA 1919 (NSW) and that, consequently, the Council did not have power under the LGA 1919 (NSW) to sell the land, and the transfer from the Council to itself was a nullity. He decided that s 604(2) did not apply to the transfer because the conduct of the Council amounted to equitable fraud. In arriving at this conclusion, he examined the various categories of equitable fraud. He said that the category that applied in that case fell within the following principles stated by Fry J in Kettlewell v Watson:
The Court will not allow a man to avail himself of a legal estate which he has recovered, or of the right which he may have under a registered conveyance, when he, at the time he took the legal estate, or at the time of the registration of the conveyance, knew a fact which made it unconscionable for him to take the legal estate or to effect the registration. That unconscionable act requires, of course, the coincidence in the same person of the knowledge and of the act, because, if A knows a thing, and B does something inconsistent with A’s knowledge, there is nothing fraudulent in the act; but, if A knows something which renders it unconscionable for him to do the act, and he does it, then there is fraud.[44]
[44](1882) 21 Ch D 685, 704 (‘Kettlewell’), quoted in Logue [1979] 1 NSWLR 537, 554.
Mahoney JA held that the Council’s reliance on s 604(2) of the LGA 1919 (NSW) to free itself of the plaintiff’s rights amounted to equitable fraud for the following two reasons:
first, the fact that the transaction was a nullity resulted from the council’s failure to carry out its duty under [s 602(2)(b) of the LGA 1919 (NSW)] and, by use of [s 604(2)], it seeks to retain the advantage of the transaction notwithstanding that breach; and, second, when it achieved registration of the transfer to itself, it had such notice of the relevant facts as is appropriate for a finding of fraud.[45]
[45]Logue [1979] 1 NSWLR 537, 556.
In relation to the first reason, Mahoney JA stated that the maxim that a person may not take advantage of his or her wrong was of relevance. He said that, by relying upon s 604(2) of the LGA 1919 (NSW), the Council was seeking to take advantage of its breach of s 602(2)(b) in order to give efficacy to the transfer which the breach rendered a nullity.[46]
[46]Logue [1979] 1 NSWLR 537, 557–8.
In relation to the second reason, Mahoney JA stated:
The facts relevant in the present case are not those relating to the existence of the interest of the [former owner] or the plaintiff. Knowledge of that interest would not make taking of an advantage from [s 604(2) of the LGA 1919 (NSW)] a fraud, if the [section] already operated; it was one of the purposes of [that section] to allow such interests to be extinguished. The relevant facts in such a case as this relate, in my opinion, to the validity of the sale and the transfer. It is from the achievement of the statutory advantage by the council concerned, in the context of such invalidity, that the question of fraud arises.[47]
[47]Logue [1979] 1 NSWLR 537, 560
Mahoney JA held that the Council had notice of the relevant facts: it knew the correct amount of the rate arrears and it did not matter – for the purposes of establishing equitable fraud – that the Council did not deliberately insert the wrong amount in the published notice or that it did not know that this error rendered the transfer a nullity. He relevantly stated:
It is not necessary that [the Council] be conscious that what had occurred was a nullity. It had notice of, and in fact knew of, all of the primary facts from which, without more, it followed that the sale and transfer were a nullity. It failed to draw the conclusion that the advertisement was defective and that, therefore, the following steps had no effect under the statute. If the council had deliberately, though mistakenly, failed to give notice to interested parties under s 602(2)(c) [of the LGA 1919 (NSW)], it could not, in my opinion, plead that it had no notice of the nullity because it did not realise the effect of what it had done or failed to do. I do not think its position is different in the present case.
In my opinion, therefore, for the council to have the advantage of registration given by s 604(2) [of the LGA 1919 (NSW)] would be equitable fraud.
If this be so, then it is open to this Court to hold that, though it holds the title to the land, the council holds it subject to the rights in equity which arise from that fraud. In this … the council holds the land subject to the right of the plaintiff to have the transfer set aside.
…
Here, the fact that the sale and transfer were a nullity arose because of the breach of the duty which [s 602(2)(b) of the LGA 1919 (NSW)] imposed upon the council. The council knew of the matters from which the consequence of nullity flowed; and, in addition, it owed to the person in the position of the plaintiff a duty to observe, in dealings with him, a high standard. These facts, I think, give rise to a personal equity of the relevant kind.[48]
[48]Logue [1979] 1 NSWLR 537, 561, 564.
Mahoney JA held that the personal equity of the plaintiff also applied notwithstanding the indefeasibility provisions of the RPA (NSW).[49]
[49]Logue [1979] 1 NSWLR 537, 564–5.
In Bahr, the Bahrs sold land to Nicolay in June 1980 under an arrangement which involved a lease back to them for three years. Clause 6 of the contract of sale between the Bahrs and Nicolay (‘Bahrs/Nicolay contract’) provided that, upon the expiration of the lease, the parties would enter into a contract under which the Bahrs would re-purchase the land for a certain price. On 26 December 1981, Nicolay sold the land to the Thompsons. Clause 4 of the contract of sale between Nicolay and the Thompsons (‘Nicolay/Thompsons contract’) stated that ‘the Purchaser acknowledges that an agreement exists between [the Bahrs] and [Nicolay]’. The Thompsons became registered proprietors of the land on 31 December 1981. On 6 January 1982, the Thompsons sent to the Bahrs’ solicitor a letter stating ‘we are writing to confirm … the clause relating to the purchase of [the land] by [the Bahrs] is [recognised] by us’. On 8 January 1982, the Thompsons made an offer to the Bahrs to purchase other property and an offer to buy a business from them, provided that they relinquished any right they had to re-purchase the land. In June 1983, when the Bahrs sought to re-purchase the land, the Thompsons refused to sell it to them.
Mason CJ and Dawson J held that cl 4 of the Nicolay/Thompsons contract gave rise to an express trust in favour of third parties to that contract (namely, the Bahrs), the effect of which was that the Thompsons held the land subject to the equitable interest of the Bahrs arising from cl 6 of the Bahrs/Nicolay contract.[50] In the alternative, they held that the fraud exception in the indefeasibility provisions of the Transfer ofLand Act 1893 (WA) applied, with the result that the Bahrs’ prior equitable interest prevailed over the Thompsons’ title. They did so on the basis that, having regard to the intention of the parties expressed in cl 4 of the Nicolay/Thompsons agreement, the Thompsons’ subsequent repudiation of cl 6 of the Bahrs/Nicolay contract constituted actual fraud.[51]
[50]Bahr (1988) 164 CLR 604, 618–19.
[51]Bahr (1988) 164 CLR 604, 619.
Wilson and Toohey JJ held that the combined effect of cl 4 of the Nicolay/Thompsons contract, the Thompsons’ letter of 6 January 1982 and their two offers of 8 January 1982 was to put beyond doubt that they acknowledged they had an obligation to resell the land to the Bahrs.[52] They held that, by taking a transfer of the land on that basis, the Thompsons became subject to a constructive trust in favour of the Bahrs in relation to the equitable interest in the land held by the Bahrs by virtue of cl 6 of the Bahrs/Nicolay contract.[53] They added that, if the position was that the Bahrs’ ‘interest under cl 6 fell short of an equitable estate, they none the less had a personal equity enforceable against the [Thompsons]’.[54] They held that, on either legal basis, the indefeasibility provisions in the Transfer of Land Act 1893 (WA) did not preclude the Bahrs from enforcing their equitable estate or equity because both arose ‘not by virtue of notice of them by the [Thompsons], but because of their acceptance of a transfer on terms that they would be bound by the interest the [Bahrs] had in the land by reason of [the Bahrs/Nicolay contract]’.[55]
[52]Bahr (1988) 164 CLR 604, 638.
[53]Bahr (1988) 164 CLR 604, 638.
[54]Bahr (1988) 164 CLR 604, 638.
[55]Bahr (1988) 164 CLR 604, 638–9.
Brennan J held that cl 4 of the Nicolay/Thompsons contract constituted an undertaking by the Thompsons to Nicolay to hold their title in the land subject to the equitable interest of the Bahrs arising from cl 6 of the Bahrs/Nicolay contract. He added that if cl 4, on its true construction, did not constitute such an undertaking, then the undertaking was given by a collateral agreement between Nicolay and the Thompsons. That agreement was to the effect that, in consideration of Nicolay agreeing to sell the land to the Thompsons, they would hold it subject to the equitable interest in the land of a third party, namely, the Bahrs’ equitable interest arising from cl 6 of the Bahrs/Nicolay contract. Brennan J said that the collateral agreement arose by a combination of cl 4 and the communications between Nicolay and the Thompsons and their respective agents.[56] Brennan J concluded that, in order to prevent the Thompsons from committing equitable fraud by repudiating the undertaking they had given, equity would impose a constructive trust under which the Thompsons held their title on trust to give effect to the Bahrs’ interest.[57]
[56]Bahr (1988) 164 CLR 604, 651–2.
[57]Bahr (1988) 164 CLR 604, 654, 656.
Brennan J made the following general observations:
A registered proprietor who has undertaken that his transfer should be subject to an unregistered interest and who repudiates the unregistered interest when his transfer is registered is, in equity’s eye, acting fraudulently and he may be compelled to honour the unregistered interest. A means by which equity prevents the fraud is by imposing a constructive trust on the purchaser when he repudiates the unregistered interest. That is not to say that the registration of the transfer to such a proprietor is affected by such fraud as may defeat the registered title: the fraud which attracts the intervention of equity consists in the unconscionable attempt by the registered proprietor to deny the unregistered interest to which he has undertaken to subject his registered title.
…
Therefore, although a purchaser who secures registration of a transfer of the fee simple merely with notice of a third party’s right to purchase acquires on registration of his transfer a title freed of any obligation to the third party which equity would otherwise impose, a purchaser who has undertaken – whether by contract or by collateral undertaking – to hold his title subject to a third party’s right to purchase remains bound by his undertaking after registration of his transfer. If he should repudiate the third party’s right to purchase, equity imposes a constructive trust so that the registered proprietor holds his title on trust for the third party to the extent of the third party’s interest.[58]
[58]Bahr (1988) 164 CLR 604, 654, 655.
Mason CJ and Dawson J, and separately Wilson and Toohey JJ, cited the discussion of the general principles relating to personal equities by Mahoney JA in Logue in support of the proposition that ‘an equity’ against a registered proprietor may arise ‘from conduct of the registered proprietor before registration’ which can be enforced against him or her.[59]
[59]Bahr (1988) 164 CLR 604, 613, 638.
In the present case, as the judge or the parties made extensive references to Boyd v Mayor of Wellington,[60] Palais Parking Station Pty Ltd v Shea,[61] Tyre Marketers (Australia) Ltd v Martin Alstergren Pty Ltd,[62] City of Canada Bay Council v F&D Bonaccorso Pty Ltd[63] and Paragreen v Lim Group Holdings Pty Ltd,[64] it is convenient to summarise those cases also.
[60][1924] NZLR 1174.
[61](1980) 24 SASR 425.
[62][1989] V Conv R ¶54-335.
[63](2007) 71 NSWLR 424.
[64](2020) 61 VR 293 (‘Paragreen’).
In Boyd, the Governor-General of New Zealand by gazetted proclamation took Boyd’s land (upon which there was a building), in exercise of powers under the Tramways Act 1908 (NZ), the Municipal Corporations Act 1908 (NZ) (‘MCA (NZ)’) and the Public Works Act 1908 (NZ) (‘PWA (NZ)’), and vested the land in the Wellington Corporation. The Corporation registered the transfer under the Torrens legislation of New Zealand. Section 15(b) of the PWA (NZ) provided that, where land was occupied by a building, the land could be taken only with the consent of the owner or the Governor in Council. Neither Boyd nor the Governor in Council had given consent. Section 367(1) of the MCA (NZ) provided that a gazetted proclamation was conclusive evidence that the proclamation had been properly and lawfully made, and s 367(2) provided that a misnomer, inaccurate description or omission in a proclamation did not suspend or impair the operation of the proclamation.
Boyd sought declarations that the proclamation was void, that the registration was obtained by fraud or otherwise wrongfully, and that he was entitled to have the transfer removed from the register. By majority, the New Zealand Court of Appeal decided that, even if the proclamation was void, because Boyd had not established fraud, the Wellington Corporation’s title was indefeasible.[65] Further, Stout CJ and Adams J held that, even if the Corporation did not obtain conclusive title upon registration, s 367 of the MCA (NZ) rendered the taking of the land valid.[66]
[65]Boyd [1924] NZLR 1174, 1187–8, 1190, 1194, 1216–17, 1222. The majority’s decision was approved by the Privy Council in Frazer.
[66]Boyd [1924] NZLR 1174, 1189–90, 1216.
In Palais, a public officer compulsorily acquired the applicant’s land by publishing a notice of acquisition, and became the registered proprietor. The notice was void because the relevant minister, rather than the public officer, had the legal power to compulsorily acquire the land. The public officer had acted in good faith, without knowledge of the legal error. By majority, the Full Court of the South Australian Supreme Court held that, even though the notice of acquisition was void and ineffectual to vest the land in the public officer, he acquired indefeasible title upon registration.[67] The majority rejected a submission by the applicant that it had an in personam right to a retransfer of the land on the basis that it was unconscionable for the public officer to retain the land due to his lack of power to acquire it.[68] The majority relevantly stated:
[T]he express approval [in Frazer] of the actual decision in [Boyd] carries with it the implication that the mere retention of the land after it becomes known that the instrument leading to registration is void, does not found a claim in personam for the retransfer of the land.
…
The remaining question is whether there was anything in the conduct of the [public officer] in relation to the acquisition capable of giving rise to an equity in the dispossessed owner enforceable in personam against the [public officer] to have the land restored. There is no question of fraud, oppression or bad faith of any kind. There is no negligence or breach of duty of the kind relied upon by Mahoney JA in [Logue]. … The entire error lay in acquiring the land through the wrong officer of State. Although the registered proprietor is the [public officer], whose name now appears on the title, the proprietor is in reality the State of South Australia. … [There is] no basis in the facts for any personal equity arising out of the circumstances of the acquisition.[69]
[67]Palais (1980) 24 SASR 425, 426, 430–1.
[68]Palais (1980) 24 SASR 425, 426, 430.
[69]Palais (1980) 24 SASR 425, 431, 433–4.
In Tyre Marketers, prior to the plaintiff being granted a Crown lease under s 134 of the Land Act, it published a notice under s 137 which misdescribed the plaintiff’s name. The lease was registered under the TLA. The defendant subsequently acquired the freehold interest from the Crown and asserted that the lease was void due to non-compliance with s 137, and that this non-compliance gave rise to an in personam right in favour of the defendant which enabled it to have the lease set aside.
Marks J assumed, without deciding, that the misdescription of the lessee in the notice published under s 137 of the Land Act was capable of rendering the lease void.[70] He held that any such invalidity in the notice was not capable of rendering the plaintiff’s lease title defeasible.[71] Based upon authorities such as Frazer, Breskvar and Bahr, he said that ‘the title cannot be impeached by reliance on defects or irregularity in the procedure or instrument leading to registration’.[72] He noted that the defendant had not submitted that the plaintiff’s non-compliance with s 137 constituted actual or equitable fraud. He rejected an argument by the defendant that an equity of the type found by Mahoney JA in Logue applied in the case before him.[73]
[70]Tyre Marketers [1989] V Conv R ¶54-335, 64,180–1.
[71]Tyre Marketers [1989] V Conv R ¶54-335, 64,182.
[72]Tyre Marketers [1989] V Conv R ¶54-335, 64,183.
[73]Tyre Marketers [1989] V Conv R ¶54-335, 64,184.
Marks J observed that in Bahr, Mason CJ and Dawson J, and separately Wilson and Toohey JJ, only approved Mahoney JA’s judgment to the extent that he said that the equity under discussion was capable of arising from conduct before or after registration. Marks J added that ‘[n]othing was said in Bahr to suggest that the majority in Logue was wrong or that an equity can arise out of a defect of procedure leading to registration of an interest in land’.[74] Marks J also stated that, in any event, Logue was distinguishable because ‘what transpired in Logue was between the parties themselves, the forfeiture being a consequence of the nature and content of written communication by the [Council] to the [plaintiff] with defective notice (according to Mahoney JA but not the majority) of the rates owing’.[75]
[74]Tyre Marketers [1989] V Conv R ¶54-335, 64,184.
[75]Tyre Marketers [1989] V Conv R ¶54-335, 64,184.
Marks J concluded his analysis of the effect of the assumed invalidity of the lease due to non-compliance with s 137 of the Land Act, as follows:
The invalidity in this case is said to have stemmed solely from failure to comply strictly with a statutory requirement which did not in any way bear on the agreement comprised by the lease, its terms or any understanding, arrangement or communication between the parties. Moreover, the non-compliance relied on was of very little consequence to anyone as the principal object of sec. 137 is to ensure notice to the public, particularly those likely to be interested, of the dealing in Crown land. The particulars actually published substantially met that object, the only defect of consequence being [the misdescription of the lessee].
In my opinion, the circumstances here are analogous with those of … Boyd, Frazer, and Breskvar which held title of the registered proprietor, was indefeasible notwithstanding the registration was consequent on void instruments or invalidity of procedure.[76]
[76]Tyre Marketers [1989] V Conv R ¶54-335, 64,184.
In Canada Bay Council, the Council sold two parcels of ‘community land’ in breach of s 45(1) of the Local Government Act 1993 (NSW) (‘LGA 1993 (NSW)’), which provided that the Council ‘has no power to sell … community land’. The purchaser registered the transfers under the RPA (NSW). The first respondent sought a declaration that the registration of the transfers was void and an order that the register be rectified. The New South Wales Court of Appeal proceeded on the assumption that the breach of s 45(1) rendered the transfers void.[77] In determining whether registration of the transfers resulted in the transferee’s titles becoming indefeasible despite the breach of s 45(1), the Court considered whether s 45(1) prevailed over the RPA (NSW). The Court answered that question in the negative for the following reasons:
[A]lthough the [Council] acknowledged that s 45(1) of the [LGA 1993 (NSW)] had the effect of invalidating the transaction between it and the [transferee], it submitted that any person could have moved the Land and Environment Court for orders restraining the [transferee] from registering the transfer from the [Council] and otherwise setting the transaction underlying the transfer aside. However, once the Registrar-General registered the transfer, the indefeasibility provisions of the [RPA (NSW)] were engaged and prevented that occurring.
In our view this submission should be accepted. The authorities are clear that a court should read statutes together if it possibly can. Thus we can accept the word ‘sequential’ adopted by Kirby J in Hillpalm insofar as the statutes do have effect sequentially, that is, that up until registration the transaction or transfer is null and void but on registration, as Breskvar v Wall holds, there is virtually a new Crown grant of the fee simple in the land, so that from that moment the transferee obtains a new clean title. The result is that the transferee’s title is wholly derived from the act of registration by the Registrar-General and not upon the transfer or the antecedent transaction which gave rise to the transfer.
…
That leaves only the key question as to whether the relevant provisions of the [LGA 1993 (NSW)] and the [RPA (NSW)] can operate together. In our view the [Council’s] submission, that they can, should be accepted. Until registration there was the opportunity to set the transaction aside and prevent registration; after registration that opportunity was lost.[78]
[77]Canada Bay Council (2007) 71 NSWLR 424, 441 [58].
[78]Canada Bay Council (2007) 71 NSWLR 424, 446–7 [82]–[83], [86] (citations omitted).
In Paragreen, a lane that formed part of the title to land ‘A’ was the subject of an easement of carriageway in favour of adjoining land, land ‘B’. In 2000, litigation between the respondent (the owner of land ‘B’) and the then owner of land ‘A’ (Judisco) was settled upon written terms under which Judisco undertook on behalf of itself and its successors in title not to park vehicles on the lane. In 2009, Judisco sold land ‘A’ to one Ryan. In 2011, Ryan sold land ‘A’ to the applicants and included a copy of the 2000 terms of settlement in the vendor’s statement attached to the contract of sale. Although the applicants were aware of the terms of settlement by virtue of the vendor’s statement, after they purchased land ‘A’, they parked vehicles on the lane.
This Court held that the trial judge had erred in finding that the conduct of the applicants was ‘contrary to good conscience’ and was sufficient to engage the fraud exception in s 42 of the TLA.[79] The Court concluded that, although the applicants were aware of the terms of settlement, the contract of sale between them and Ryan did not include any provision by which they agreed to be bound by the terms of settlement. The Court held that, unlike Bahr, this was a case of mere knowledge by the applicants of the respondent’s rights under the terms of settlement,[80] which was insufficient to establish actual fraud, or to ‘constitute the basis of any in personam claim’.[81]
[79]Paragreen (2020) 61 VR 293, 316–17 [83], [86]–[87].
[80]Paragreen (2020) 61 VR 293, 316 [82].
[81]Paragreen (2020) 61 VR 293, 318 [93].
Application for judicial review
The Trial Division proceeding was commenced on 16 August 2019 by way of an application for judicial review under O 56 of the Supreme Court (General Civil Procedure) Rules 2015.
By their amended originating motion dated 3 October 2019, the Licensee parties relevantly sought: declarations that the decisions to grant the Leases were ultra vires and of no effect or were made unlawfully and thus void and of no effect; orders by way of certiorari quashing those decisions; orders by way of prohibition restraining MAPA and the State parties from relying upon or enforcing those decisions or the Leases; and an order that the Registrar delete the Leases from the Register pursuant to s 106(1) of the TLA. The Licensee parties relevantly relied upon: non-compliance with the mandatory notice requirements of s 137 of the Land Act; denial of procedural fairness; and failure to take into account a relevant consideration, being the Licensee parties’ rights. They also alleged that s 134 of the Land Act did not apply to the Lease areas because they were not ‘Crown land’.
On 6 November 2019, the State parties filed a response to the amended originating motion alleging that the Leases were indefeasible by reason of s 41 of the TLA. On 13 November 2019, MAPA filed a brief response adopting the response of the State parties.
On 20 November 2019, the Licensee parties filed a reply in which they relevantly stated that, insofar as each of the Leases was purportedly registered pursuant to the TLA:
(i)because each of the [Leases] was invalid and ultra vires the Land Act, the land the subject of each lease was not alienated by way of lease and there was no Crown grant capable of being registered under the [TLA];
(ii)further or alternatively, the invalidity of or lack of power to grant each of the [Leases] was not a mere informality or irregularity in the instrument of lease or in any proceedings previous to the creation of the folio, such that each [Lease] is not indefeasible by reason of s 41 of the [TLA];
(iii)further or alternatively, if … the [decisions to grant the Leases were] made unlawfully or [are] invalid or ultra vires, or if [they are] void and of no effect, the [Registrar] should be ordered to make amendments to the Register and to delete the folio in respect of each of the [Leases] pursuant to s 103(1) and s 106(1)(e) and (f) of the [TLA];
(iv)further or alternatively, if … the [Leases were] validly registered pursuant to the [TLA] and are indefeasible by reason of s 41 of the [TLA] (which is denied), such registration does not preclude a claim for relief in personam against each of [MAPA and the State parties].
At trial, the Licensee parties relied upon the following bases for an in personam right:
(a)a claim analogous to the successful claim in Bahr;[82]
(b)the Licensee parties’ public law rights to have the Leases declared invalid and set aside;[83] and
(c)mistake.[84]
[82]Reasons, [175].
[83]Reasons, [179].
[84]Reasons, [176]–[178]. See [195]–[199] below.
The evidence in the trial comprised tendered documents and affidavits. No witness was cross-examined.
MAPA filed two affidavits sworn by Paul on 14 December 2019 and 26 February 2020. The Licensee parties filed two affidavits of Christopher Daniel, the fourth respondent. The State parties filed an affidavit of Sarah Crute, the Department’s Director of Land Management Policy.
On 12 December 2019, the Licensee parties unsuccessfully applied for an injunction to re-establish their access to the Lease areas pending the hearing of their judicial review proceeding. That application is not presently relevant.
Overview of the judge’s reasons
The judge determined that the proceeding raised the following six issues:
(1)Were the areas that were ‘purportedly leased’ to MAPA under the Land Act ‘Crown Land’ that was covered by that Act?
(2)Did the ‘admitted’ failure to advertise the proposed leases invalidate the grants of the Leases?
(3)Did the ‘admitted’ failure to hear the Licensee parties invalidate the grants of the Leases?
(4)Did the ‘admitted’ failure to take into account the Licensee parties’ interests and the interests of the wider public, together with and in the context of MAPA’s assurances that it did not require exclusive possession or would have no adverse impacts, the failure to advertise and the failures to hear the Licensee parties, give rise to legal unreasonableness and to jurisdictional error that invalidated the grants of the Leases?
(5)Was there a valid and current Ministerial consent under the CMA for the use and development of the Lease areas and, if not, did this affect the validity of the grants of the Leases?
(6)Are the ‘purported Leases’ beyond challenge as a result of their registration under the TLA, notwithstanding the facts and circumstances surrounding their grant?[85]
[85]Reasons, [16].
The judge stated that: MAPA and the State parties ‘effectively conceded’ that the grants of the Leases were invalid for each of the reasons mentioned in (2), (3) and (4) above; and the Licensee parties ultimately did not press the issue in (5).[86] The judge summarised his overall conclusions as follows:
[86]Reasons, [17], [19].
(i)Having regard to my other conclusions it is unnecessary – and because of [a] post-hearing amendment to the Land Act 1958 it is inappropriate – to determine finally whether the [Lease areas] were covered by that Act.
(ii)The failure to advertise the proposed leases did invalidate the grants.
(iii) The failure to hear the [Licensee parties] did invalidate the grants.
(iv)The failure to take into account the interests of the [Licensee parties] and of the wider public, together with and in the context of MAPA’s assurances, the failure to advertise and the failures to hear the [Licensee parties], did give rise to legal unreasonableness and to jurisdictional error that did invalidate the grants.
(v)It is neither necessary nor appropriate to decide whether there was a valid and current Ministerial consent under the CMA for the use and development of the [Lease areas], because any want of such consent did not of itself go to the legal validity of the grant of the purported leases.
(vi)Whether or not the purported leases would otherwise have been protected by the [TLA], the [Licensee parties] are entitled to ‘in personam’ relief against MAPA for equitable (or constructive) fraud on its part constituted by MAPA’s unconscientious reliance, as against the [Licensee parties], on its registered title in the face of its prior assurances mentioned above and in the face of its non-compliance with s 137 of the Land Act1958, absent which, almost certainly, the purported leases would not have been granted or, at least, would not have been granted in the form in which they were granted (ie without exceptions or reservations to protect the [Licensee parties] and other established users of the [Lease] areas). As a result, the [Licensee parties] are entitled to appropriate relief against the State [parties] and MAPA which, subject to further submissions, may include orders in the nature of certiorari or declarations that the purported leases were invalidly granted and are of no force or effect, together with (if need be) appropriate injunctions and/or an order directed to the Registrar of Titles that the registration of the purported leases be set aside or cancelled. It is not necessary or appropriate to express concluded views on the other arguments raised by the [Licensee parties] in response to the reliance by the State [parties] and MAPA on the ‘indefeasibility’ provisions of the [TLA].[87]
[87]Reasons, [21] (emphasis in original).
The judge made an order on 29 September 2022 which, leaving aside paragraphs dealing with costs and a temporary stay, was relevantly in the following terms:
1There be an order in the nature of certiorari quashing the decision purportedly made by the delegate of the [Minister] on 8 May 2018 pursuant to s 134 of the Land Act 1958 (Vic) to grant a Crown Lease in respect of a part of Gabo Island … (the Gabo Lease).
2There be an order in the nature of certiorari quashing the decision purportedly made by the delegate of the [Minister] on 7 February 2019 pursuant to s 134 of the Land Act 1958 (Vic) to grant a Crown Lease in respect of a part of Tullaberga Island … (the Tullaberga Lease).
3It be declared that the Gabo Lease is void and of no effect.
4It be declared that the Tullaberga Lease is void and of no effect.
5Pursuant to s 103(1) and s 106(1)(e)(i) of the [TLA] … the [Registrar] shall forthwith delete from the Register:
(a)the folio created upon the registration of the Gabo Lease … and
(b)the folio created upon the registration of the Tullaberga Lease …
Issue (6) set out at [102] above is the subject of MAPA’s application for leave to appeal. Issue (1) is one of the matters raised in the Licensee parties’ notice of contention. The judge’s reasons in relation to issues (1) and (6) are discussed separately below under the respective grounds applicable to them. In relation to the other issues, it is sufficient for present purposes to note the following:
(a)In relation to issue (2), the judge concluded as follows. The Department’s failure to ensure compliance with the notice requirements of s 137 of the Land Act resulted from ‘very careless administrative bungling’.[88] Compliance with s 137 is an essential pre-condition to the exercise of power to grant a Crown lease and therefore non-compliance will give rise to a jurisdictional error and result in the invalidity of any subsequent decision to grant such a lease.[89] Although the requirement to give notice in s 137 is directed to the proposed lessee rather than the Minister, the Minister has ‘a significant degree of oversight over compliance with [that requirement]’ and therefore, in the present case both MAPA and the Minister were responsible for ‘the manifest non-compliance with s 137’.[90] For these reasons, the failure to comply with s 137 ‘did invalidate the grants’.[91]
(b)In relation to issue (3), the judge concluded as follows. In breach of the principles of procedural fairness, the Licensee parties were unlawfully denied any opportunity to be heard in relation to the proposed grant of the Leases, and this was another ground for invalidating the Leases.[92] The exercise of the power to grant the Leases adversely affected the Licensee parties’ interests under their licences and quota units which, although statutory in nature, constituted ‘a species of property rights’.[93] The denial of procedural fairness was material to the decision to grant the Leases because, if the Licensee parties had been given an opportunity to be heard, there was at least a realistic possibility that a different decision would have been made.[94] As the decisions to grant the Leases were made in breach of the principles of procedural fairness, the decisions were affected by jurisdictional error and were legally invalid and of no effect.[95]
(c)In relation to issue (4), the judge concluded as follows. The decisions to grant the Leases were legally unreasonable and invalid on that ground also.[96] In particular, it was unreasonable for the Minister’s delegates to decide to grant the Leases without taking any steps to ensure that there had been compliance with the notice requirements of s 137 of the Land Act, or to ascertain whether any person’s rights or interests would be affected by the grants, or to fail to consider imposing conditions in the Leases that preserved the rights of the Licensee parties.[97]
(d)In relation to issue (5), the judge concluded as follows. Although the Department regarded consent under the CMA as an essential precursor to any Crown grant, such consent was not a legal precondition to the grant of the Leases.[98] However, the facts relating to MAPA’s obtaining of consent were relevant to the issue of indefeasibility under the TLA.[99]
[88]Reasons, [123].
[89]Reasons, [126], [129], [131], [140]–[141].
[90]Reasons, [133], [139].
[91]Reasons, [141].
[92]Reasons, [124], [131], [142].
[93]Reasons, [143].
[94]Reasons, [145].
[95]Reasons, [147], [149].
[96]Reasons, [150], [155].
[97]Reasons, [153], [154].
[98]Reasons, [157], [159].
[99]Reasons, [158].
The Licensee parties relied upon Forrest & Forrest Pty Ltd v Wilson,[164] which we will discuss below under ground 4 of the notice of contention.
[164](2017) 262 CLR 510 (‘Forrest’).
The Licensee parties submitted that, as Tyre Marketers was a judgment of a single judge, it was not binding. They also sought to distinguish it on the basis that, as the Crown was not joined as a party in that case, the new owner of the freehold could not put in issue the validity of the Crown lease.
According to the Licensee parties, a purported but invalid grant of a Crown lease cannot be effectively registered under the TLA. They submitted that, in accordance with s 8 of the TLA, Crown land only fell ‘under the operation’ of the TLA if ‘alienated in fee or by way of perpetual lease or for years’. They contended that, in the case of a void grant that is a nullity, the land is not alienated by way of a lease for years.
In our opinion, ground 3 of the notice of contention is not made out.
We accept that, in accordance with s 12(1) of the Land Act, a Minister who seeks to transfer an interest in land by way of a lease for years must comply with all the requirements in that Act that apply to such a transfer. We also accept that, prior to registration of an instrument that transfers a leasehold interest in Crown land, a person with sufficient standing may, on administrative law grounds, apply for orders setting aside the instrument and restraining its registration.
However, even though such an instrument may be held to be void on administrative law grounds, once it is registered, its status as a void instrument does not mean that registration does not confer on the registered proprietor indefeasible title, subject to any exception in the TLA (such as actual fraud) and any applicable in personam rights. That is because, in accordance with the principle set out at [52] above, registration can confer title even if the underlying instrument is void for any reason. Further, for the reasons we have already discussed at [183] and [218] above, the breach of s 137 of the Land Act in the present case did not give rise to in personam rights.
Tyre Marketers supports the above analysis. For the reasons discussed below under ground 4 of the notice of contention, Forrest does not detract from it.
Of course, the Court must give effect to clear statutory language that invalidity of an instrument resulting from non-compliance with a particular prescribed statutory procedure precludes title passing in accordance with that instrument upon registration under the TLA. The Court must also give effect to clear statutory language that the provisions of an Act dealing with particular types of interests in land override the indefeasibility provisions of the TLA.[165] The Licensee parties have not identified any clear statutory language in the Land Act or any other statute that would prevent the Leases from conferring indefeasible title upon registration.
[165]See, eg, Travinto (1973) 129 CLR 1, 30, 33–5.
Section 8(1) of the TLA does not affect the above analysis. Where an instrument is void on administrative law grounds, it can be set aside and its registration can be restrained. If such administrative law relief is granted, the instrument will not legally alienate an interest in land in accordance with its terms, whether that interest is a fee simple interest or a leasehold interest. In such a case, that interest will not fall ‘under the operation of’ the TLA and therefore its indefeasibility provisions will not be engaged. However, if the instrument is registered, the interest with which it deals will be alienated according to the terms of the instrument and that interest will fall ‘under the operation of’ the TLA, and constitute the initial Crown grant. Consequently, the registered proprietor of that interest will acquire indefeasible title in accordance with ss 40 to 44 of the TLA, subject to any exception in the TLA (such as actual fraud) and any applicable in personam rights. Palais[166] and Canada Bay Council[167] demonstrate that, even though a void instrument is ineffectual to vest an interest in land in a person, indefeasible title to the interest vests in that person upon registration.
[166]See [86] above.
[167]See [91] above.
For the purposes of the analysis in [229] to [232] above, we see no basis for distinguishing between a Crown lease that is invalid because of a failure to comply with the publication requirement in s 137 of the Land Act and a Crown lease that is invalid on some other basis or, for that matter, any other invalid instrument.[168]
[168]See the cases cited at n 16 above.
Ground 4 of the notice of contention: Meaning of ‘informality or irregularity’
Ground 4 of the notice of contention is in the following terms:
Further or alternatively, the total failure to comply with s 137 of the Land Act and the absence of power to grant the Leases under s 134 of the Land Act was not an ‘informality or irregularity’ within the meaning of s 41 of the [TLA].
Ground 4 is founded upon the opening words of s 41 of the TLA, namely, ‘No folio of the Register under this Act shall be impeached or defeasible by reason or on account of any informality or irregularity in any application or instrument or in any proceedings previous to the creation of the folio’.
On the basis of Forrest,[169] the Licensee parties submitted that an absence of power to grant a Crown lease cannot be treated as an ‘informality or irregularity in any application or instrument or in any proceedings previous to the creation of the folio’ for the purposes of s 41 of the TLA.
[169](2017) 262 CLR 510, 521 [33], 529 [64]–[65], 532 [76].
Forrest dealt with mining leases under the Mining Act 1978 (WA) (‘MA (WA)’). Under that Act, a number of steps had to be taken before the relevant minister could grant a mining lease under s 71. Section 74(1)(ca)(ii) specified one such step, namely, that an application for a lease must be accompanied by a report known as a mineralisation report. Other steps included the giving of notice to an owner or occupier of land of an application for a lease over that land. Subsections 75(4) and (5) provided that, where an objection to an application for a lease was lodged, the mining warden had to hear the objection and make a recommendation to the relevant minister as to whether the application should be granted. Section 75(4a) had the effect that the mining warden could hear an objection only where the application for a mining lease was accompanied by a mineralisation report. Under s 116(1), if the relevant minister decided to grant a lease, the applicant was entitled to receive an instrument of lease which could be registered in a register kept under the MA (WA). Section 116(2) relevantly provided as follows:
Except in the case of fraud, a mining tenement granted or renewed under this Act shall not be impeached or defeasible by reason or on account of any informality or irregularity in the application or in the proceedings previous to the grant or renewal of that tenement …
The appellant in Forrest lodged objections to certain applications for mining leases. The mining warden determined that he had jurisdiction to hear the objections notwithstanding that the applications had not been accompanied by mineralisation reports as required by s 74(1)(ca)(ii) of the MA (WA). The mining warden prepared a report for the relevant minister recommending that the applications be granted. The appellant commenced a judicial review proceeding seeking an order quashing the mining warden’s recommendation.
The majority of the High Court decided, by reference to the principles in Project Blue Sky Inc v Australian Broadcasting Authority,[170] that various statutory requirements, including those of s 74(1)(ca)(ii), were conditions precedent to the valid exercise of the power to grant a mining lease. The majority held that, as the applications were not accompanied by mineralisation reports, the mining warden did not have jurisdiction to hear the appellant’s objections and did not make a valid report and recommendation to the relevant minister.[171] The majority applied the following principles:
[W]here a statutory regime confers power on the executive government of a State to grant exclusive rights to exploit the resources of the State, the regime will, subject to provision to the contrary, be understood as mandating compliance with the requirements of the regime as essential to the making of a valid grant. When a statute that provides for the disposition of interests in the resources of a State ‘prescribes a mode of exercise of the statutory power, that mode must be followed and observed’. The statutory conditions regulating the making of a grant must be observed. A grant will be effective if the regime is complied with, but not otherwise.
…
Nothing said in Project Blue Sky diminished the force of the authorities which support this approach. Adherence to this approach supports parliamentary control of the disposition of lands held by the Crown in right of the State.[172]
[170](1998) 194 CLR 355.
[171]Forrest (2017) 262 CLR 510, 528 [63].
[172]Forrest (2017) 262 CLR 510, 529 [64]–[65] (citations omitted).
At the time the appellant commenced the judicial review proceeding, the relevant minister had granted one out of the three mining leases that the mining warden had recommended, and consequently only one lease was registered on the register kept under the MA (WA). The majority in Forrest made the following observations in relation to the meaning of ‘informality or irregularity’ in s 116(2) of that Act:
‘Informality’ means a want of legal form as distinct from a want of legal substance. The term ‘irregularity’ refers to a lack of regularity in the method or manner in which a power is exercised: it is a term used in deliberate contrast to an act beyond power.[173]
[173]Forrest (2017) 262 CLR 510, 532 [76] (citations omitted).
The majority held that a failure to observe the requirements of s 75(4a) of the MA(WA) was not an ‘informality or irregularity’, and thus the mining warden did not have jurisdiction to hear the appellant’s objections to the applications.[174]
[174]Forrest (2017) 262 CLR 510, 532 [76], 538–9 [99].
The State parties relied upon Miller v Martin[175] and Malone v La Playa Nominees Pty Ltd[176] in support of their contention that ‘informality’ and ‘irregularity’ are broad and unqualified terms, to be given their ordinary meaning, consistently with the policy of s 41 of the TLA that the registered title is conclusive.
[175][2021] VSCA 108, [104]–[106] (‘Miller’).
[176][2022] VSC 83, [36] (‘Malone’).
MAPA argued that the Minister’s failure to give notice, and the grant of the Leases despite that, were merely an ‘informality or irregularity’ for the purposes of s 41 of the TLA.
In our opinion, ground 4 of the notice of contention is not made out.
Forrest does not assist in the resolution of the question whether a lease title arising from registration under the TLA engages the indefeasibility provisions of the TLA notwithstanding that the decision to grant the lease is void due to non-compliance with the public notice requirement in s 137 of the Land Act. That is so for the following reasons:
(a)Forrest did not deal with Torrens legislation, but with an Act that was specific to mining leases. As the New South Wales Court of Appeal stated in Roads and Maritime Services v Desane Properties Pty Ltd, the construction of the phrase ‘informality or irregularity’ by the majority in Forrest was influenced by their findings about the objects of the MA (WA).[177] Further, as Tottle J pointed out in Wyloo Metals Pty Ltd v Quarry Park Pty Ltd,[178] under the MA (WA) title lies in a grant rather than in registration, and that Act does not contain all of the provisions of the Torrens legislation that underpin indefeasibility of title.
(b)The decision of the majority in Forrest that the failure to comply with the requirements in the MA (WA) rendered the mining warden’s decision invalid is consistent with the agreed position of the parties in the present case – and reflected in the judge’s decision – that the failure to comply with s 137 of the Land Act rendered the decisions to grant the Leases invalid.
(c)The words ‘informality or irregularity’ in s 41 of the TLA must not be considered in isolation but in the context of the legislative scheme established by ss 40 to 44 which makes clear that a registered title is indefeasible subject only to fraud and the other statutory exceptions.
(d)If Forrest is treated as authority for the proposition that the indefeasibility provisions in the TLA only apply where an ‘informality or irregularity’ as construed in Forrest exists, Forrest would be inconsistent with a long line of cases which have held an indefeasible title is created upon registration of an instrument even if the instrument is void for any reason. Those cases are listed in n 16 above. They include: Boyd, which held that a proclamation being void due to a failure to obtain statutory consent did not preclude indefeasibility; Breskvar, which held that the fact that a transfer was void under stamps legislation did not preclude indefeasibility; and Tyre Marketers, which held that a Crown lease being void due to non-compliance with the notice requirements of s 137 of the Land Act did not preclude indefeasibility. It is difficult to see how the failures to comply with statutory provisions in these cases would fall within the construction of ‘informality or irregularity’ adopted by the majority in Forrest.
[177](2018) 98 NSWLR 820, 859 [202].
[178][2021] WASC 356, [97].
In our opinion, nothing in Forrest affects the well-established principle that, under the TLA, title arising from the registration of a void instrument is indefeasible unless a statutory exception applies or an in personam claim can be established against the registered proprietor. In the present case, the Licensee parties have not established any statutory exception or any in personam right as against MAPA’s registered lease titles.
Miller and Malone do not provide any assistance in the present case. That is because they deal with the conclusiveness of a registered title and do not discuss the meaning of the phrase ‘informality or irregularity’ in s 41 of the TLA.[179]
[179]Miller [2021] VSCA 108, [104]–[106]; Malone [2022] VSC 83, [36].
Ground 5 of the notice of contention: Inconsistency between Land Act and TLA
Ground 5 is in the following terms:
Further or alternatively, the statutory pre-conditions and limits on the exercise of power to grant Crown leases under s 134 of the Land Act, including the requirements imposed by s 137 of the Land Act, are inconsistent with and prevail over the provisions of the [TLA] (including ss 40 to 44 dealing with the effect of registration).
The Licensee parties submitted that ss 134 to 137A of the Land Act – which contain essential preconditions to the exercise of power to grant a Crown lease – override the indefeasibility provisions in the TLA. They contended that, as a result, registration of a purported lease granted in breach of the Land Act and without statutory power does not validate the purported lease. That was said to be so for the following reasons:
(a)The provisions of the Land Act governing the creation and disposal of interests in Crown land are more specific and fundamental than the provisions of the TLA designed to confer indefeasible title upon interests in land once registered. The TLA ‘is not a fundamental or organic law to which other statutes are subordinate’.[180]
(b)Sections 40 to 44 of the TLA cannot be treated as rendering the statutory limits upon and preconditions of the exercise of the powers conferred by the Land Act as superfluous by reason of the mere act of registration. Doing so would give officers of the executive an unconstrained discretion to ignore limits upon their powers and create interests in Crown land.
[180]The Licensee parties relied upon Travinto (1973) 129 CLR 1, 35.
In our opinion, ground 5 of the notice of contention must be rejected.
We accept that the TLA applies generally to land whereas the Land Act applies specifically to Crown land. However, the question to be determined is not whether the Land Act prevails over the TLA, but whether the provisions of the Land Act which prescribe formalities for the transfer of Crown land prevail over the provisions of the TLA which confer indefeasibility of title upon registration of instruments affecting interests in land. Framed in this way, the comparison is not between a general statutory provision and a specific statutory provision, but between statutory provisions which each deal with specific subject matters.
Both sets of provisions are of long standing and are included in Acts which were part of the consolidation of statutes in 1958. The provisions have co-existed harmoniously for many years. In these circumstances, it is difficult to characterise one set of provisions as being inconsistent with the other in order to support a conclusion that the former overrides the latter.
There is a very strong presumption that statutory texts enacted by the same legislature are not intended to be contradictory. They are therefore to be construed as far as possible to operate in harmony and not in conflict.[181] In the present case, the two sets of provisions can be given effective operation and reconciled on the following basis:
(a)Prior to registration under the TLA, an instrument which is void due to non-compliance with the provisions of the Land Act may be declared to be such and its registration can be restrained.
(b)The non-compliance with the Land Act which rendered the instrument void does not prevent the indefeasibility provisions of the TLA applying to the title conferred by registration of the instrument, subject to any exceptions in the TLA and any applicable in personam rights.
[181]Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1, 33 [98].
The conclusion at [253] above is supported by the principle set out at [52] above, namely that registration of an instrument can confer indefeasible title even if it is void for any reason.[182] We see no reason for not applying that principle to an instrument for the transfer of Crown land which is void due to non-compliance with the transfer provisions of the Land Act.
[182]See Horvath [1999] 1 VR 643, 657–9 [33]–[37], 669–75 [65]–[79].
The conclusion at [253] above is also supported by an analysis of the public interests underlying the two sets of provisions. The Land Act reflects the important principle that the creation and transfer of interests in Crown land are under the control of Parliament rather than the executive. There is clearly a public interest in the provisions of the Land Act which reflect this principle – by prescribing procedures and formalities for the transfer of Crown land – being complied with, to ensure that the executive disposes of publicly owned land in a lawful and accountable manner. For the reasons set out [54] above, it is in the public interest that individuals dealing in land in Victoria can rely on the accuracy of the Register. That public interest applies equally to Crown land as well as privately held land, and would be seriously undermined if the indefeasibility provisions of the TLA did not apply to Crown land where there has been non-compliance with the provisions of the Land Act governing the transfer of such land.
The analysis of the New South Wales Court of Appeal in Canada Bay Council, which is set out at [91] above, also supports these conclusions.
This result does not render the provisions in the Land Act governing the transfer of Crown land superfluous or give officers of the executive an unconstrained discretion to ignore those provisions. That is because, prior to registration of an instrument transferring Crown land, any person with standing could apply to the Court for orders setting aside the instrument or restraining its registration, or a declaration that the instrument is void. Further, any person with an in personam right against the new registered proprietor may seek to enforce that right.
Ground 6 of the notice of contention: Correction of the Register
Ground 6 is in the following terms:
Further or alternatively, the registration of the purported but invalid Leases was an error that may be corrected by the Registrar on a direction from the Court under ss 103 or 106(1)(e) and (f) of the [TLA].
The Licensee parties submitted that the matters upon which they relied in relation to grounds 3 to 5 of the notice of contention constituted errors in MAPA’s lease titles that were capable of being corrected by the Registrar removing those titles from the Register pursuant to ss 103 and 106 of the TLA.
In our opinion, ground 6 cannot be made out. That is because, as we have rejected grounds 3 to 5, the Licensee parties have not established any errors in MAPA’s lease titles that would engage the Registrar’s powers under ss 103 and 106 of the TLA to remove those titles.
Ground 7 of the notice of contention: ‘Crown land in Victoria’
Ground 7 of the notice of contention is in the following terms:
Each of the areas the subject of the purported Leases was not ‘Crown land in Victoria’ within the meaning of ss 4 and 134 of the Land Act as in force at the time of the purported grants (namely, 8 May 2018 and 7 February 2019 respectively) because:
a.each of the areas is outside the territorial limits of the State of Victoria, and is therefore not ‘in Victoria’ within the meaning of s 4 of the Land Act; and/or
b.each of the areas is not ‘Crown land’ within the meaning of s 134 of the Land Act;
and, accordingly, s 134 of the Land Act did not confer power to grant each of the Leases.
This ground raises the first issue identified by the judge as set out at [102] above. It arises because the Lease areas lie outside Victoria. The Licensee parties submitted that, although laws could have been made applying s 134 of the Land Act to the Lease areas, Parliament had not done so.
The judge decided not to resolve this issue, partly because it would make no difference to the ultimate outcome, and partly because s 4 of the Land Act, on which the ground substantially depends, was repealed in 2020.[183]
[183]Reasons, [21(i)], [110]–[112], citing Parks and Crown Land Legislation Amendment Act 2020, s 37.
The ground relies on the words ‘land in Victoria’ in s 4 of the Land Act, and ‘Crown land’ in s 134(1). The latter provision is set out at [47] above. It permits the Minister to grant leases ‘of any Crown land’. Section 4 provided, when the Leases were granted:
4 Application of Part
Except as otherwise expressly provided in this Part, this Part applies to all Crown land in Victoria.
The reference to ‘this Part’ is to pt I of the Land Act, comprising ss 3–229.
The term ‘land’ is defined in s 38 of the Interpretation of Legislation Act 1984 (‘ILA’) relevantly to include, unless the contrary intention appears, ‘land covered with water’. The expression ‘Crown land’ is not defined in the Land Act or the ILA.
The Lease areas lie outside the territorial limits of Victoria, relevantly the low water mark.[184] They are nonetheless owned by Victoria, by virtue of s 4(1) of the Coastal Waters (State Title) Act 1980 (Cth) (‘State Title Act’), which provides:
By force of this Act, but subject to this Act, there are vested in each State, upon the date of commencement of this Act, the same right and title to the property in the sea‑bed beneath the coastal waters of the State, as extending on that date, and the same rights in respect of the space (including space occupied by water) above that sea‑bed, as would belong to the State if that sea‑bed were the sea‑bed beneath waters of the sea within the limits of the State.
[184]New South Wales v Commonwealth (1975) 135 CLR 337 (‘Seas and Submerged Lands Act Case’).
In other words, the State has title to the sea-bed beneath the ‘coastal waters’ of the State, which includes the Lease areas.[185]
[185]The expression ‘coastal waters of the State’ is defined by s 3(1) of the Coastal Waters (State Powers) Act 1980 (Cth), which is applied by s 3(1) of the State Title Act.
In addition, the State is empowered to legislate with respect to the sea-bed within the coastal waters of Victoria, including the Lease areas, by virtue of s 5(a) of the Coastal Waters (State Powers) Act 1980 (Cth) (‘State Powers Act’), which provides:
5 Legislative powers of States
The legislative powers exercisable from time to time under the constitution of each State extend to the making of:
(a)all such laws of the State as could be made by virtue of those powers if the coastal waters of the State, as extending from time to time, were within the limits of the State, including laws applying in or in relation to the sea‑bed and subsoil beneath, and the airspace above, the coastal waters of the State …
Reference should also be made to s 57 of the ILA, which is relevantly in the following terms:
57 Application of laws of Victoria in certain off-shore areas
(1) Subject to this section, the provisions of the laws in force in Victoria whether written or unwritten and as in force from time to time and the provisions of any instrument made under any of those laws apply in the offshore area.
(2) The provisions referred to in subsection (1) apply to and in relation to –
(a) any act done or omitted to be done at a place in the offshore area which is within the outer limits of the coastal waters of Victoria;
(b)any act done or omitted to be done in the offshore area by a person connected with Victoria; and
(c) any matter, thing or circumstance existing or arising in the offshore area which involves or relates to persons connected with Victoria –
as if the offshore area were part of Victoria.
It is unnecessary to set out the definition of the ‘offshore area’. It includes the ‘coastal waters of the State’, as defined (which are also the ‘coastal waters of Victoria’). As mentioned, those coastal waters include the Lease areas.
The Licensee parties submitted that there was nothing in the Land Act to show that the power under s 134(1) to grant leases of ‘any Crown land’ extends to the sea-bed underlying coastal waters, which are outside the territorial limits of Victoria. They submitted that s 4 showed that s 134(1) only operated to permit the grant of leases of Crown land ‘in Victoria’.
Further, the Licensee parties submitted that the relevant waters and sea-bed were not ‘land’ or ‘Crown land’, in any event. This argument alluded to the use of coastal waters for navigation, recreation and other purposes, and relied on authority to the effect that the word ‘land’ is not apt to describe the sea-bed.
In our opinion, these arguments must be rejected.
The meaning of the words ‘all Crown land in Victoria’ in s 4 of the Land Act is to be resolved by ordinary principles of statutory construction.[186] In that regard, there is no general principle that ‘land’ does not include the sea-bed. The High Court has said:
No doubt ‘land’ is a word that can be used in a way that would encompass the seabed. It may be doubted, however, that the word would ordinarily be understood as encompassing the seabed. The distinction between ‘land’ and ‘sea’ is often made.[187]
[186]Risk v Northern Territory (2002) 210 CLR 392, 403–4 [26], 418 [83], 435 [123] (‘Risk’); Coverdale v West Coast Council (2016) 259 CLR 164, 172 [21], 176 [37].
[187]Risk (2002) 210 CLR 392, 403–4 [26], citing Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973) 128 CLR 199.
The meaning of ‘land’ in ss 4 and 134(1) of the Land Act cannot be considered in isolation from another question of construction, namely whether the words ‘applies to all Crown land in Victoria’ in s 4 are words of limitation or expansion. On one view, those words confine the operation of pt I to land within the territorial limits of Victoria, namely up to but not beyond the low water mark. By definition, that would mean that the sea-bed was excluded. On another view, s 4 merely confirms that all land in Victoria is subject to the operation of pt I, saying nothing about the position regarding land outside Victoria.
In our opinion, several considerations support the latter construction.
First, s 57 of the ILA, set out above, provides that, subject to that section, the laws in force in Victoria apply in the ‘offshore area’ to anything existing or arising in the offshore area which involves or relates to persons connected with Victoria as if the offshore area were part of Victoria. This provision can be seen to apply State laws to the offshore area in exercise of the legislative powers conferred by the State Powers Act. The question is whether an intention contrary to this provision appears from s 4.[188]
[188]ILA s 4(1).
Secondly, there would be no apparent statutory purpose in confining pt I of the Land Act to land within the territorial limits of Victoria, in circumstances where the Parliament has title to the land beneath the coastal waters of Victoria and legislative power with respect to that land and those waters. Section 6(1) of the ILA requires every Act to be ‘construed as operating to the full extent of … the legislative power of the State of Victoria’.
Thirdly, the confined construction would be anomalous because it is elsewhere plain that pt I of the Land Act extends to land below the surface of water, by virtue of the definition of ‘land’ in s 38 of the ILA. That is confirmed, for example, by provision in s 140A of the Land Act for the grant of licences in respect of specified ‘Crown lands [including certain beds of streams and lakes] … for the purposes of a jetty landing stage boat ramp slipway net rack or mooring’.
Fourthly, the legislative history of s 4 of the Land Act suggests that it has never had a confining operation. As first enacted, its purpose was to extend certain provisions of pt I to apply to lands in the Mallee country, which were the subject of pt II, entitled ‘Special Provisions for Mallee Lands’. In that context, s 4 provided:
Except where express provision is otherwise made in Part II of this Act, the provisions of Divisions 2, 3, 8, 9, 12, 13 and 14 of this Part shall as far as they are applicable or capable of being applied extend to lands in the Mallee country. Save as aforesaid and save as expressly provided in this Part or in Part II, nothing in this Part shall apply to or affect lands in the Mallee country.[189]
[189]Emphasis added.
Part II was repealed in 1995, at the same time as s 4 was substituted to take the form earlier set out.[190] The new form of the provision did no more than state the obvious, namely that once there was no class of ‘lands in the Mallee country’, pt I applied throughout Victoria.
[190]Crown Lands Acts (Amendment) Act 1994, ss 4, 25.
Finally, s 12(1) of the Land Act, set out at [222] above, provides for the grant, conveying or disposal of ‘lands for the time being belonging to the Crown’ under and subject to the provisions of pt I. This provision suggests that pt I extends to any land belonging to the Crown. Again, there would be no evident purpose in permitting land outside the territorial boundaries of Victoria to be dealt with outside the Act. Such a dispensation would, to the contrary, be inconsistent with the longstanding requirement that disposal of Crown land requires statutory authority.
We have not found the fact that coastal waters may need to be, or are, used for navigation or recreational purposes (for example), to which the Licensee parties made passing reference, useful in addressing these issues. While such considerations might bear on the exercise of powers with respect to land outside the territorial limits of Victoria, there is no reason to think that the contemplated uses are inconsistent with the very existence of such powers.
It follows that ‘land in Victoria’ in s 4 of the Land Act is not to be construed as confining the operation of pt I of the Act, that ‘land’ in the Act includes the sea-bed beneath the coastal waters of the State, and that this sea-bed constitutes ‘Crown land’ within the meaning of s 134(1).
Ground 7 of the notice of contention is therefore not made out.
Conclusion
For the above reasons, we have reached the conclusions set out at [12] above.
SCHEDULE OF PARTIES
MAPA PEARLS PTY LTD (ACN 604 308 821) Applicant v HALIOTIS FISHERIES PTY LTD (ACN 061 835 452) First Respondent STRAUSS ABALONE PTY LTD (ACN 156 363 996) Second Respondent THIRTEENTH MOUNT COPE PTY LTD
(ACN 005 804 697)Third Respondent CHRISTOPHER CHARLES DANIEL Fourth Respondent VANESSA INGRAM DANIEL Fifth Respondent SURCHIN PTY LTD (ACN 119 232 192) Sixth Respondent THE HON LILY D’AMBROSIO, MINISTER FOR ENERGY, ENVIRONMENT AND CLIMATE CHANGE Seventh Respondent THE STATE OF VICTORIA Eighth Respondent REGISTRAR OF TITLES Ninth Respondent
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