Re: Land Title Act of 1994
[1999] QSC 100
•6 May 1999
IN THE SUPREME COURT
OF QUEENSLAND No. 1170 of 1999Brisbane
Before Mr Justice Muir
[Re: Land Title Act of 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 TITLESREASONS FOR JUDGMENT - MUIR J.
Delivered 6 May 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 Registrar’s Act.
Counsel: Mr BJ 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
IN THE SUPREME COURT
OF QUEENSLAND No. 1170 of 1999Brisbane
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 6 May 1999
On 26 February 1999 the applicant in this matter, Douglas Macleod Beams, made application by originating summons for 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.”
The application succeeded and I declared that the respondent Registrar of Land Titles was required, under the Land Titles Act 1994, to register re-survey plan No 905522 (“the new plan”) 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 (“the land” or “the lot”) and which is accessible on a search of an indefeasible to the lot.
At the time of that application and order, a person conducting a standard search of the title would not have been alerted to the existence of the new plan. Then, the “registration confirmation statement”, issued in consequence of a title search, in respect of the lot would have included, under the heading “ESTATE AND LAND”, the following -
“Estate in Fee Simple
Lot 29 REGISTERED PLAN 12574
County of STANLEY Parish of BULIMBA”, but would
not have revealed the existence of the new plan. Under the description “Title Reference” the words “this is the current status of the title as at (time) on (date)” would have appeared.
The existence of the new plan would have been revealed to a person conducting a title search only if that person undertook a different or additional search which the respondent described as an “historical search”.
In my reasons for judgment I said -
“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.”
After the giving of the above declaratory relief, the Registrar altered the register so that a current title search in relation to subject lot included the notation “PLAN OF RE-SURVEY 905522” under the heading “ADMINISTRATIVE ADVICES”. That heading appears immediately after the heading “EASEMENTS, ENCUMBRANCES AND INTERESTS”.
It was sworn on behalf of the respondent that to include reference to the new plan under the heading “EASEMENTS, ENCUMBRANCES AND INTERESTS” would require the re-designing of the database tables of the Land Titles Office. It is conceded on behalf of the applicant that the alteration to the register made by the respondent complies with the requirement of s.30 that the new plan be included in that part of the freehold land register which records the current status of the title of lot 29 on RP 12574. However, it is contended that the new plan has not been included in that part of the register which “is accessible on a search of the ‘indefeasible title’ to the lot”. In support of this contention, the applicant submits -
·Administrative advices are not “particulars” or “current particulars” but information useful for administrative purposes only and deal, normally, with unregistered matters.
·There has been a failure to comply with s.32 of the Act which provides -
“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.”
·The absence of the word “registered” before the words “PLAN OF RE-SURVEY 905522" “suggests that” the new plan “is an unregistered dealing”.
·The parts of the “indefeasible title” where the current particulars, and the dealing numbers should, and normally do, appear are under “REGISTERED OWNER” and under the heading “EASEMENTS, ENCUMBRANCES AND INTERESTS”.
I do not accept the respondent’s submissions. In my view, the alteration of the register by the respondent has made the register conform to the terms of the declaration.
Section 8(1) of the Act provides -
“A register kept by the registrar may be kept in the form (whether or not in a documentary form) the registrar considers appropriate.”
Of course, s.8 cannot empower the respondent to keep the register in such a way that it fails to comply with specific requirements of the Act. But, in my view, no such specific requirements are infringed. I concede that the inclusion of the reference to the new plan under the heading “ADMINISTRATIVE ADVICES” has its imperfections, but I am not prepared to find that this method of recording is erroneous or even misleading. The fact that the word “registered” does not appear before “PLAN OF RE-SURVEY NO. 905522" does not appear to me to suggest lack of registration. A few lines down in the current title search the words “UNREGISTERED DEALINGS - NIL” appear. Also, there are references to mortgages, a transfer, a caveat and a deed of grant under the heading “EASEMENTS, ENCUMBRANCES AND INTERESTS”. In none of those instances does the word “registered” appear. Yet it is plain enough, I think, that reference is being made to registered instruments.
I dismiss the application and order that the applicant pay the respondent’s costs of and incidental to the application to be taxed. The reference to “application” is to the application made pursuant to the liberty to apply provisions in my order of February 1999.
0
0
0