Nash v Registrar of Titles
[2023] VSC 467
•10 August 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2023 01329
BETWEEN:
| KENNETH ROBERT NASH (according to the attached Schedule) | Plaintiffs |
| v | |
| REGISTRAR OF TITLES | Defendant |
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JUDGE: | Irving AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 July 2023 |
DATE OF JUDGMENT: | 10 August 2023 |
CASE MAY BE CITED AS: | Nash & Anor v Registrar of Titles |
MEDIUM NEUTRAL CITATION: | [2023] VSC 467 |
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REAL PROPERTY – Registration of Easement – Easement not registered on certificate of title when the relevant land was converted from general law to Torrens system land – Whether Registrar should be direct to amend Register under s 103(1) of the Transfer of Law Act 1958 (Vic) – Order made.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr P Barton | G&M Lawyers |
| No appearance for the Defendant |
HIS HONOUR:
Introduction
Kenneth Robert Nash and Gail Eleanor Nash (plaintiffs) are the registered proprietors of the land at 205–207 Dryburgh Street, North Melbourne, being the land more particularly described in Certificate of Title Volume 08598 Folio 671 (Property). The plaintiffs have commenced this proceeding to correct a mistake in the certificate of title that occurred when the Property was converted in the 1960s from general law land to Torrens system land. The mistake the plaintiffs seek to correct is the omission of an appurtenant easement in the Title Plan relevant to the plaintiffs’ certificate of title.
The plaintiffs ask the Court to make orders under s 103 of the Transfer of Land Act 1958 (Vic) (TLA).
The Registrar of Titles does not oppose the plaintiffs’ application and has provided the plaintiffs with comments on the terms of the order the Court might make.
For the reasons given below, I will grant the plaintiffs’ application.
Background
The plaintiffs’ application is supported by:
(a) the affidavit of Kenneth Robert Nash sworn 26 March 2023;
(b) the affidavit of Christian Marcus sworn 24 March 2023;
(c) the affidavit of Graeme Wayne Keeshan sworn 24 March 2023; and
(d) written submissions filed 20 July 2023.
Mr Marcus is the plaintiffs’ solicitor. He deposed that:
(a) the plaintiffs are the registered proprietors of 205–207 Dryburgh Street, North Melbourne being the land more particularly described in Certificate of Title Volume 08598 Folio 671.
(b) Dryburgh Street runs north-south and the plaintiffs’ land is on the west side of Dryburgh Street. The plaintiffs’ land is 22 feet 3 and a half inches north of the intersection of Dryburgh Street and De Feu Street. De Feu Street runs west.
(c) the land in the plaintiffs’ certificate of title contains Lots 1 and 2 of the Laurens Subdivision (as described in Mr Keeshan’s affidavit) plus some adversely possessed land.
(d) lots 1 and 2 in the Laurens Subdivision had the benefit of a 10 feet wide right of way (Right of Way) running north-south to De Feu Street.
(e) the benefit of this easement was overlooked when the plaintiffs’ land was converted in the 1960s from general law land to Torrens system land and so is not referred to as an appurtenant easement in the Title Plan relevant to the plaintiffs’ certificate of title.
(f) part of the Right of Way (about 9 sq. metres) was claimed to be adversely possessed by Seada Besic and her predecessors and is not Lot 1 in Title Plan 966811J, being the land in Certificate of Title Volume 12051 Folio 842 of which the registered proprietor is Cicero Nominees Pty Ltd.
(g) apart from the land acquired by adverse possession by Seada Besic, the rest of the Right of Way has never been acquired by a third party and remains in the name of the original subdivider, John Laurens.
(h) Mr Marcus has conducted searches and determined that John Laurens had no biological heirs, but did have an adopted daughter who had children.
(i) Mr Marcus has not been able to locate any application to the Register of Titles by a member of the Laurens family related to the Right of Way.
(j) Mr Marcus wrote on behalf of the plaintiffs to the Registrar or Titles on 13 November 2020 seeking that the right of carriageway over the Right of Way be recorded on the plaintiffs’ certificate of title.
(k) in response the Registrar of Titles invited the plaintiffs to consider whether:
(i) the land over which the right of carriageway is claimed (the subservient land) can be converted from general law land by order of the Court as the owner is now deceased, with any easement affecting that parcel shown on the resulting plan;
(ii) an identified folio can be created under s 26E of the TLA and an application made under s 26F to record notice of the easement on that identified folio;
(iii) combined with the application under ss 26E and 26F, an application under s 72 as to appurtenancy is appropriate, supported by the deed of carriageway or a declaration from a Court that a right of carriageway exists in the subservient land in favour of the dominant land if the deed is inadequate.
Mr Keeshan is a professional title searcher. His affidavit exhibits documents demonstrating:
(a) The Crown Grant of a Town Lot 1809/1859 to George Henry Knight dated 20 July 1859, the original document covering the land the subject of this proceeding and other land;
(b) Book 85 Memorial No. 861 which refers to a Deed of Exchange and Mutual Conveyance dated 21 October 1859 between John Laurens and George Henry Knight pursuant to which mutual separate rights are granted to each of them. George Henry Knight conveyed to John Laurens the ‘2nd parcel’, ‘Together with a right of way over the right of way reserved being 10’ on either side’. Mr Keeshan deposed that the ‘2nd parcel’ is allotment 7 and is 100 feet wide and 264 feet long. Mr Keeshan also deposed that between the parcels, running west from Dryburgh Street, North Melbourne, is a right of way which is now known as De Feu Street.
(c) A ‘Plan of sub by John Laurens of allot 7 sec 75 Jika Jika’ showing the subdivision into five lots (ie, the Laurens Subdivision), and a ‘Lane’ 10 feet wide running north-south (ie, the Right of Way).
(d) Memorial No. 249 Book 90 dated 16 February 1860, being the conveyance of Lot 1 of the Laurens Subdivision (currently 207 Dryburgh Street, North Melbourne) from John Laurens to Thomas Rains, which states:
Together with the undoubted right and privilege to and for the said Thomas Rains his heirs and assigns…. in through over and upon the said roads and rights of way [to the west of Lot 1 on the Plan of Subdivision].
(e) A document created by the Land Titles Office confirming rights of carriageway over what is identified as ‘R.O.W. 10’ WIDE’, being the Right of Way and ‘R.O.W. 20’ WIDE’, being De Feu Street.
(f) Memorial 319 Book 86 being a conveyance by John Laurens to John Hart-Smith of Lot 2 on the Laurens Subdivision (currently 205 Dryburgh Street, North Melbourne) and referring to carriageway use of the ‘road or right of way ten feet wide’ situated to the west of Lot 2.
(g) A document created by the Land Titles Office confirming rights of carriageway over what is identified as ‘R.O.W. 10’ WIDE’, being the Right of Way and ‘R.O.W. 20’ WIDE’, being De Feu Street.
(h) Memorial No. 968 Book 88 being the conveyance from John Laurens to Mary Ann Doyle of a lot which is currently 203 Dryburgh Street, North Melbourne, and including a right of ‘free ingress and egress’ over the Right of Way.
(i) Memorial No 518 Book 688 being the 1965 conveyance by Kathleen Quin to Alfred Robert Nash and Kenneth Robert Nash of Lots 1 and 2 in the Laurens Subdivision.
(j) Application No. 54048 being the application to bring Lots 1 and 2 in the Laurens Subdivision under the TLA along with the ‘C’ land which is part of the Right of Way which had been acquired by adverse possession. This part was 4 feet 5 and a half inches wide and 17 feet 11 inches long. The application notes the ‘C’ land was ‘formerly part of a right of way 10’ wide reserved by John Laurens. No dealings by John Laurens of this road therefore he is the L.R.O.’. The application also notes, ‘’C’ land (small parcel) is claimed by possession – proofs adequate’.
(k) Certificate of Title Volume 08598 Folio 671 in its original 1967 form showing Alfred Robert Nash and Kenneth Robert Nash as registered proprietors of land that was part of Crown Allotment 7 Section 75 at North Melbourne Parish of Jika Jika. The land delineated is identical to Lots 1 and 2 of the Laurens Subdivision together with the ‘C’ land.
(l) A Register Search Statement produced on 12 November 2020 of Certificate of Title Volume 08598 Folio 671, being 205–207 Dryburgh Street, North Melbourne. The land is described as Lot 1 on Title Plan 689600R (formerly known as part of Crown Allotment 7 Section 75 at North Melbourne Parish of Jika Jika, created by application No. 54048 01/12/1967.
(m) A Register Search Statement produced on 26 April 2018 of Certificate of Title Volume 10127 Folio 910, being 2 De Feu Street, North Melbourne. The land is described as Lot 1 on Title Plan 000806R, created by an application made in 1993. The registered proprietor is Seada Besic.
(n) An application to bring land under the TLA made by Seada Linardi on 24 July 2018. By this application Seada Linardi acquired approximately 9.2 sq. metres of land in the north west part of the Right of Way by adverse possession, which became Lot 1 in Title Plan 966811J. This then became the land in new Certificate of Title Volume 12051 Folio 842. On 14 October 2019 this land was transferred by Seada Besic to Rodi Developments Pty Ltd and Cicero Nominees Pty Ltd. A Register Title Search produced on 26 October 2021 shows Cicero Nominees Pty Ltd as the registered proprietor.
Mr Keeshan deposed that other than the dealings above, the remaining part of the Right of Way has never been adversely acquired by a third party. Mr Keeshan said that when Lots 1 and 2 in the Laurens Subdivision were brought under the TLA in the form of Certificate of Title Volume 08598 Folio 671 the application erroneously omitted the right of carriageway of the Right of Way.
Mr Nash deposed that he and his late father, Alfred Robert Nash, became the registered proprietors of 205–207 Dryburgh Street, North Melbourne on 1 December 1967. Mr Nash’s wife became the sole registered proprietor on 24 April 1974 and he and his wife became joint registered proprietors on 26 September 2001, and remain so today.
Mr Nash deposed that in the 1960s he demolished the two houses that were situated on the Property when he bought it with his father, and he erected a factory on the site which remains on the Property. Mr Nash said he was aware of the Right of Way when he bought the Property with his father and intended the factory to have rear access to De Feu Street via the Right of Way for delivery and dispatch of goods. Accordingly, the factory was built with a roller shutter door, a fire escape and entrance door at its rear.
Mr Nash said that until about 1980 the factory was occupied by Fairway Lighting of Australia Pty Ltd, of which he and his wife were directors and shareholders. During this occupation the Right of Way was used to receive and dispatch goods.
Mr Nash deposed that between 1980 and 2019 the Property was leased to about four successive tenants who used the factory for different businesses. Mr Nash observed the tenants continued to use the Right of Way to receive and dispatch goods.
Mr Nash said that from 2016 Seada Besic owned 2 De Feu Street, North Melbourne, the property opposite the factory across the Right of Way. Mr Nash said he did not oppose Ms Besic’s application to acquire 9 sp. metres of the Right of Way by adverse possession. Mr Nash said he has reached agreement with Ms Besic and Cicero Nominees Pty Ltd for carriageway over the adversely possessed land and so this proceeding does not concern the adversely possessed land.
Finally, Mr Nash said he became aware about three to five years ago that when the Property was converted to land under the TLA in the 1960s the rights over the Right of Way were mistakenly omitted.
Statutory provisions and principles
Sections 26E and 26F of the TLA provide:
Section 26E Creation of identified folio
(1)The Registrar may create an identified folio of the Register for land not under the operation of this Act—
(a)if the Registrar is directed, required or permitted by or under an Act to make a recording in or amendment to the Register in respect of a dealing with or interest in that land (other than a specified dealing) and the Registrar does not consider it appropriate to create a provisional folio or ordinary folio under this Part for that land; or
(b)if a person lodges with the Registrar an instrument or document showing evidence of that person’s interest in that land (other than an instrument or document showing evidence of a specified dealing in the land); or
(c) otherwise if sufficient information is available to the Registrar to properly identify the land.
(2)The Registrar must not create an identified folio unless the Registrar is satisfied that sufficient information is available to the Registrar to properly identify the land.
(3) This section does not apply to unalienated land of the Crown.
(4) In this section—
interest includes a judgment, decree, order or process of execution of a court;
specified dealing includes a vesting in fee simple of land in any person or body by order of a court or by or under an Act.
Section 26F Recording of interests on identified folio
(1)Any person with or claiming an interest in land described in an identified folio may lodge with the Registrar a notice in an appropriate approved form together with an instrument or document showing evidence of that person’s interest in that land (other than a specified dealing in the land).
(2) The Registrar may record on an identified folio for land—
(a) an interest in that land for which evidence is given under subsection (1); or
(b) any matter, notice or document relating to that land (other than a specified dealing) in respect of which the Registrar is directed, required or permitted by or under an Act to make a recording in or amendment to the Register.
(3) In this section—
interest includes a judgment decree, order or process of execution of a court;
specified dealing includes a vesting in fee simple of land in any person or body by order of a court or by or under an Act.
Section 103 of the TLA provides:
Section 103 General provision as to correction of errors etc.
(1)In any proceeding in a court relating to any land or any instrument or dealing in respect thereof if the court directs the Registrar to make any amendments to the Register or otherwise to do any act or make any recordings necessary to give effect to any judgment decree or order of the court the Registrar shall obey such direction.
…
(1AB)The Registrar may only make amendments to the Register under subsections (1) and (1AA) if an application in the appropriate approved form is lodged.
(2)(a)The Registrar may upon such evidence as appears to the Registrar sufficient correct errors in the Register or in any plan of subdivision or unregistered instrument and supply entries or recordings omitted to be made therein under the provisions of this Act, but in any such case the Registrar shall not erase, delete or render illegible the original entry or recording, and shall indicate on that entry or recording the date on which the correction or recording was made.
(2)(b)Every correction recording or entry under subsection (2)(a) shall have the like validity and effect as if the error or omission had not occurred, but without prejudicing any rights accrued for any recording made in the Register prior to the actual time of correcting the error or supplying the omitted entry or recording.
In Marchesi v Registrar of Titles (Marchesi),[1] a case involving an application for a direction that the Registrar of Titles cancel a certificate of title, Ferguson J considered the authorities about the circumstances in which the Court will make orders under s 103(1). Her Honour noted that there were only a few reported authorities that have considered s 103(1). Several of those cases emphasised the need for the court to exercise caution and that the making of orders under s 103(1) should be regarded as an option of last resort. Ferguson J noted that these cases generally involved applications for directions that the Registrar of Titles issue new or duplicate certificates of tile, raising concern that a duplicate certificate of title might make it easier for fraud or other improper dealings with the land to be effected. Her Honour said:
Whilst caution must be taken in making such orders, I do not think that it is necessary to exhaust every other avenue if doing so would not serve any practical purpose but rather would only serve to delay an inevitable application under the section at a later time. However, if there are other practical steps that can be taken that are likely to result in the production of the title without the need for orders under s 103(1) being made, then that route should be pursued in the first instance.[2]
[1][2010] VSC 524.
[2]Ibid [19].
In PropertyShare Holdings Pty Ltd v 8 Hopetoun Rd Pty Ltd & Ors,[3] Kennedy J considered an application for a direction to the Registrar to amend the Register under s 103(1). In this case the application was for an order that an electronic mortgage be rectified by reason of an error in the name of the registered mortgagee of the relevant property. The error had arisen through a mistake of the mortgagee’s solicitor. Kennedy J considered the authorities, in particular Marchesi and the cases Ferguson J had considered in that decision. Kennedy J, in deciding to make a direction, accepted that the power in s 103(1) ought to be exercised with caution but noted that the facts of the case before her Honour did not involve the potential existence of duplicate certificates of title.
[3][2020] VSC 265.
Consideration
I am satisfied that it is appropriate to give a direction under s 103(1) in the circumstances of this case. First, the affidavit evidence before the Court demonstrates the existence of the Right of Way and its omission from the application to bring the land under the Torrens System. Second, the circumstances of this case do not involve the creation of a duplicate certificate of title and so concerns of fraud or other improper dealing are not present. Third, the Registrar of Titles is aware of the application, does not oppose it and has provided the plaintiffs with comments on the terms of the proposed orders.
Conclusion
I will order that:
(a) The requirements of rr 5.03(1) and 8.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) be dispensed with.
(b) The plaintiffs are authorised to commence this proceeding by originating motion.
(c) Pursuant to s 103(1) of the TLA, the Registrar of Titles is directed to create an identified folio pursuant to s 26E of the TLA for the right of way running approximately north-south, adjoining the western end of the land contained in Certificate of Title Volume 08598 Folio 671, having its southern end at De Feu Street, North Melbourne (save for that part of the right of way which is now part of Certificate of Title Volume 12051 Folio 842), which right of way was originally the Lane 10 feet wide running approximately north-south in the plan of subdivision by John Laurens of Allotment 7 Section 75 Jika Jika.
(d) The Court declares that the right of way running approximately north-south, adjoining the western end of the land contained in Certificate of Title Volume 08598 Folio 671, having its southern end at De Feu Street, North Melbourne (save for that part of the right of way which is now part of Certificate of Title Volume 12051 Folio 842), which right of way was originally the Lane 10 feet wide running approximately north-south in the plan of subdivision by John Laurens of Allotment 7 Section 75 Jika Jika, is subject to an easement of carriageway of 10 feet wide and 56 feet long running north-south, in favour of the land contained in Certificate of Title Volume 08598 Folio 671.
(e) The Court declares that the land contained in Certificate of Title Volume 08598 Folio 671 has appurtenant thereto an easement of carriageway of 10 feet wide and 56 feet long running north-south adjoining the western end of the land.
SCHEDULE OF PARTIES
| S ECI 2023 01329 | |
| BETWEEN: | |
| KENNETH ROBERT NASH | First Plaintiff |
| GAIL ELEANOR NASH | Second Plaintiff |
| - v - | |
| REGISTRAR OF TITLES | Defendant |
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