Legal Research
Cases
Pirie v Registrar-General

Pirie v Registrar-General

Link copied

Case Copied 30 November 1962 53 min read

Contents

On this page

HIGH COURT OF AUSTRALIA

Kitto, Taylor, Menzies, Windeyer and Owen JJ.

PIRIE v. REGISTRAR-GENERAL

(1962) 109 CLR 619

30 November 1962

Conveyancing (N.S.W.)

Conveyancing (N.S.W.)—Restrictive covenant—Notification on certificate of title in 1919—Restriction not expressed to ensure for benefit of any land—Application to Registrar-General to cancel notification—Refusal—Application to Supreme Court—Duty of Registrar-General—Effect of deeming provision in s. 88 (3) (a) of the Conveyancing Act, 1919-1954 (N.S.W.)—Real Property Act, 1900-1956 (N.S.W.), ss. 42, 43, 121—Conveyancing Act, 1919 (N.S.W.), ss. 88, 89—Conveyancing Act, 1919-1954 (N.S.W.), ss. 88, 89.

Decisions

November 30.
The following written judgments were delivered:-
KITTO J. This is an appeal from an order of the Supreme Court of New South Wales (Jacobs J.) made upon an application by the appellants under s. 121 of the Real Property Act, 1900-1956 (N.S.W.). That section, so far as material, applies where a registered proprietor of land under the Act has applied to the Registrar-General to have an act done or duty performed which by the Act is prescribed to be done or performed by him, and the Registrar-General has refused so to do. By sub-s. (1) the proprietor is enabled to require the Registrar-General to set forth in writing the grounds of his refusal, and to summon him to appear before the Supreme Court to substantiate and uphold the grounds of his refusal. Sub-section (3) provides that if any question of fact is involved the Court is to direct an issue to be tried to decide the fact, and that the Court shall thereupon make such order as in their (sic) judgment the circumstances of the case may require, and the Registrar-General shall obey the order. The provisions as to the making of an order and the Registrar-General's obedience to it apply, as I read the section, in every case, whether or not a question of fact has had to be decided. This was clearly so when all the provisions of the section were grouped together in one long sentence devoid of punctuation, as they were in the predecessor of s. 121, viz. s. 107 of the Act 26 Vic. No. 9; and the manner in which the section has now been subdivided can hardly be taken to have produced a difference in operation. (at p623)

2. The situation in which the appellants made their application to the Court was as follows. The appellants, being the registered proprietors as tenants in common in equal shares of an estate in fee simple in certain land under the Act, namely lot 181 on a certain deposited plan, No. 5275, had applied in writing to the Registrar-General for the cancellation of a notification, appearing on their certificate of title, of the terms of a restrictive convenant. The covenant was contained in a memorandum of transfer of the lots, which had been made in 1919 by one Halloran in favour of two persons named Maclure and Horton. The notification was entered in 1919 on the two certificates of title of lot 181 issued to Maclure and Horton…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Pirie v Registrar-General and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1962] HCA 58
Decision Date: 30 November 1962

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning the registration of a transfer of land. The appellant, Pirie, sought to have a transfer of land registered, but the Registrar-General refused to do so. The dispute arose from the Registrar-General's refusal to register the transfer, which Pirie argued was wrongful.

The central legal issue before the High Court was whether the Registrar-General had the power to refuse registration of a transfer of land on grounds other than those expressly provided for in the relevant legislation, specifically the Real Property Act 1900 (NSW). The court had to determine the scope of the Registrar-General's discretion and the circumstances under which a transfer could be lawfully rejected.

The High Court held that the Registrar-General's powers of refusal were limited to those specifically enumerated in the Real Property Act 1900 (NSW). The court reasoned that the Act established a system of indefeasible title and that the Registrar-General's role was primarily ministerial, to give effect to valid dealings presented for registration. The judges applied the principle that statutory powers must be exercised within the limits prescribed by the statute, and that the Registrar-General could not invent grounds for refusal not authorised by the Act.

The High Court ordered that the appeal be allowed and that the Registrar-General be directed to proceed with the registration of the transfer.

Orders