Re Land Title Act 1994 - [1999] QSC 32

IN THE SUPREME COURT
OF QUEENSLAND No. 1170 of 1999
Brisbane
Before Mr Justice Muir
[Re Land Title Act 1994]
BETWEEN:

IN THE MATTER OF
THE SUPREME COURT RULES
- and -

IN THE MATTER OF THE LAND TITLE ACT
OF 1994
- and -

IN THE MATTER OF GRAEME MITCHELL,
REGISTRAR OF LAND TITLES

REASONS FOR JUDGMENT - MUIR J.
Delivered 26 February 1999

In this application, commenced by originating summons, the applicant, Douglas Macleod Beams seeks an order that -
“The Registrar of Land Titles forthwith correct the freehold land register by properly recording particulars of re-survey plan 905522 registered on 22 December 1998 in the Freehold Land Register in accordance with Section 173 of the Act.”
Events leading up to the application
In March 1997 the respondent Registrar refused registration of survey plan 905522 (“the survey plan”) prepared by licensed surveyor George Enever Pty Ltd for the applicant. The
plan is in respect of a parcel of land (“the land”) described as Lot 29 on RP 12574 situated at 61 Gillan Street, Norman Park. The land has three boundaries, one of which is Norman Creek. The others are the survey line which marks the boundary between the lot and Gillan Street, and a survey line which marks the boundary between Lot 29 and Lot 28. The survey plan shows the Norman Creek boundary as the mean high water mark line of the creek. It differs from RP 12574, prepared and registered in 1915, in that the mean high water mark on the survey plan extends outwards into the creek for distances between about 6 to 11 metres beyond the line shown as the bank of Norman Creek in the 1915 plan. The applicant contends that the difference in the boundary results from natural accretions and, perhaps, partly from an error or errors in the 1915 plan. The respondent took the view that at least part of the additional area came about through filling or reclamation works and is Crown land.
After a trial held on 13 November 1998 I held that -
·the respondent was not entitled to withhold registration of the survey plan;
·it is not a function of the respondent to resolve possible points of contention between persons interested in the same parcel of land - in this case the applicant on the one hand and the Crown on the other;
·registration of the plan of survey would not change the lawful boundaries of the land contained in the Certificate of Title in respect of the land.
The respondent appealed, unsuccessfully, from that decision. The applicant’s surveyor then sought registration of the survey plan and, in response to a requisition issued by the respondent, struck out the words “cancelling Lot 29 on RP 12574" in the following description at the foot of the survey plan -
“Plan of Lot 29, being resurvey of Lot 29 on RP 12574 cancelling Lot 29 on RP 12574. ”
The respondent endorsed on the survey plan the words -
“This plan is a resurvey only and does not cancel or otherwise effect (sic) the title to Lot 29 on RP 12574.”
The respondent then purported to register the survey plan.
The applicant conducted a search of the Land Registry on 22 December 1998. The “registration confirmation statement” issued in consequence of the applicant’s search did not reveal the existence of the survey plan.   Under the heading “ESTATE AND LAND” the following appeared -
“Estate in Fee Simple
Lot 29  REGISTERED PLAN 12574
County of STANLEY       Parish of BULIMBA”
Under the description “Title Reference” appears the words “this is the current status of the title as at 15:10 on 22/12/1998".
The question in issue between the parties
The applicant contends that the survey plan has not in fact been registered or, alternatively, the respondent is in breach of his obligations under the Land Title Act 1994 (“the Act”) in that, on the present state of the freehold land register, it is not possible for a person to “search and obtain a copy of .. the indefeasible of (the) lot”.
The respondent’s contentions
The respondent submits that he has complied with the requirements of the Act.
He refers to my conclusion that registration of the survey plan will not have the consequence that land not under the Act will become land contained in a Certificate of Title and to the following like conclusion of the Court of Appeal -
“.. if the plan is later proved to have the wrong description of Lot 29 or to have wrongly described the boundaries of Lot 29 then the registered proprietor of Lot 29 does not obtain indefeasibility of title to land apparently within Lot 29 because of the wrong description of the boundaries of the plan .. any change in the length of each of these two/lines is established by the natural feature - Norman Creek, and in our view any such change is not essential because statements of those particular lengths are surplusage when it comes to recording in the Freehold Land Register the particulars to identify Lot 29 and comply with s 28(1)(a) of Land Title Act. In identifying Lot 29 it suffices to say one boundary is the mean high water mark of Norman Creek.”
The submission proceeded -
“It follows that neither the judgment of Muir J nor the Court of Appeal requires the Registrar of Land Titles to now correct the Freehold Land Register by recording particulars of Resurvey Plan 905522.”
Further or alternatively it is submitted -
“ ..
9.The affidavit of Grahame John Mitchell [the Acting Registrar of Titles] also demonstrates that because the automated title system is a register of freehold land interests, a search of any indefeasible title shows current interests only. A resurvey plan does not create an interest. Accordingly, a search of an indefeasible title and in this case the indefeasible title for lot 29 on registered plan 12574 owned by Mr Beames only shows current interests. According to present practice there is no history on a current title search.
10.An alternative search mechanism available to any member of the public is an historical search. An historical search shows all registrations that have occurred since April 1994, when the automated title system commenced operations. An historical title search which is available to anybody on request and payment of the required fee will clearly show the registration of resurvey plan 905522.”
It is desirable that I set out the relevant part of Mr Mitchell’s evidence in full.
“20... Because the automated title system is a register of freehold land interest, a search of any indefeasible title shows current interest only. A resurvey plan does not create an interest. Accordingly, a search of an indefeasible title and in this case the indefeasible title for lot 29 on registered plan 12574 owned by the Applicant only shows current interest. According to present practice there is no history on a current title search. An alternative search mechanism available to any member of the public is an historical search. An historical search shows all registrations that have occurred since April 1994, when the automated title system commenced operation. An historical title search which is available to anybody on request and payment of the required fee will clearly show the registration of resurvey plan 905522.”
Relevant statutory provisions
Sections 27 and 28 of the Act relevantly provide -
“Registrar must keep register
27. The registrar must keep a register of freehold land (“the freehold
land register”).”
Particulars the registrar must record
28.(1) The registrar must record in the freehold land register the particulars
necessary to identify -
(a)       every lot brought under this Act; and
...
(e)        all instruments registered in the register ...
(2) The registrar must also record in the freehold land register anything else
required to be recorded by this ... Act.”
Section 30 places an obligation on the Registrar to register instruments which comply with the requirements of the Act. Section 31 provides that on registration “the instrument forms part of the register.”
The definition of “register” in Schedule 2 of the Act is as follows -
“‘register’ a lot, interest, instrument or other thing means record the particulars of the thing in the freehold land register.”
Section 32 imposes requirements in respect of registration. It provides -
“Registrar must give distinguishing reference to each instrument
32. In registering an instrument affecting a lot, the registrar must give the
instrument a distinguishing reference and record the reference in the particulars in the freehold land register about the lot.”
Section 35 gives members of the public the right to search the register. It provides -
“... a person may -
(a)       search and obtain a copy of -
(i)        the indefeasible title of a lot; or
...
(iv)information kept under this Act; and
(b)       obtain a copy of the indefeasible title of a lot ... certified
by the registrar to be an accurate copy.”
Sections 37 and 38 provide -
“Creation of indefeasible title
37. An indefeasible title for a lot is created by the recording of the particulars of the lot in the freehold land register.
Meaning of ‘indefeasible title’
38. The indefeasible title for a lot is the current particulars in the freehold land register about the lot.”
Consequently, s 35(1)(a) entitles persons to search and obtain in respect of a lot “the current particulars in the freehold land register about the lot.”
For the sake of completeness it is desirable also to refer to ss 173 and 174 which provide-
“How an instrument is registered
173. The registrar registers an instrument in the freehold land register by
recording in the freehold land register the particulars necessary to identify the
instrument.
When an instrument is registered
174. An instrument is registered when the particulars are recorded in the
freehold land register.”
Analysis of relevant provisions of the Act
In my view the respondent has failed to “register” the survey plan.
As I have just noted, section 35 entitles a person to search the register and obtain a copy of ‘the current particulars in the freehold land register about the lot.”
In my view “current particulars” of a lot include, at least, a reference to the most recent plan of survey registered in respect of the lot. It seems to me to be rather artificial to conclude that the right created by section 35 would be availed of in circumstances in which a person making a search of the register to ascertain the current particulars in relation to the title would not be alerted to the existence of the most recent plan of survey unless that person also undertook what the respondent describes as an “historical title search.”
The conclusion that what has been effected by the respondent falls short of registration may be arrived at by another route. Section 30 requires the registrar to register a plan of survey if the person lodging it “complies with the requirements of this Act for its registration.” On registration the instrument forms part of the freehold land register. (Section 31) Section 32 requires the registrar, when effecting registration, to “give the instrument a distinguishing reference and record the reference on the particulars in the freehold land register about the lot.” As noted earlier, the “indefeasible title for a lot” is created on the recording of the particulars of the lot in the freehold land register” (Section 37) and the “indefeasible title for a lot” comprises the “current particulars.”
There will not be fulfilment of the requirements of those sections in respect of a new plan of survey for which registration is sought, and which meets the requirements of section 30, unless the instrument is given a distinguishing reference and that reference is recorded “in the particulars in the freehold land register about the lot”. No such recording takes place in respect of a “current” instrument unless it is placed in that part of the register used for the purposes of recording current particulars.
Proposed orders
I will hear argument as to the form of relief which ought be granted to the applicant. My tentative view is that I should -
(a)Declare that the respondent is required under the Land Titles Act 1994 to register the re-survey plan 905522 by including the words and figures “Plan of re-survey No. 905522" in
that part of the freehold land register which records the current status of the title of lot 29 on registered plan 12574 in the County of Stanley, Parish of Bulimba and which is accessible on a search of an indefeasible to the to the lot.
(b)Each party have liberty to apply on the giving of two days notice in writing to the other.
(c)The respondent pay the applicant’s costs of and incidental to the application to be taxed.
IN THE SUPREME COURT
OF QUEENSLAND  No. 1170 of 1999
Brisbane
Before Mr Justice Muir
[Land Title Act 1994]
BETWEEN:
IN THE MATTER OF
THE SUPREME COURT RULES
- and -
IN THE MATTER OF THE LAND TITLE ACT
OF 1994
- and -
IN THE MATTER OF GRAEME MITCHELL,
REGISTRAR OF LAND TITLES
REASONS FOR JUDGMENT - MUIR J.
Delivered 26 February 1999
CATCHWORDS:     Construction of Land Title Act 1994 - manner in which a plan of re- survey is required to be registered - obligation to register - sections 27, 28, 30, 32, 35, 37 and 38 of the Act
Counsel:  Mr B.J. Clarke for the applicant
Mr J. Douglas Q.C, with him Mr P.J. Flanagan for the respondent
Solicitors:  Stephens & Tozer for the applicant
B.T. Dunphy, Crown Solicitor for the respondent
Hearing Date:              16 February 1999