NEW SOUTH WALES COURT OF APPEAL
CITATION:
Refina Pty Ltd v Binnie [2010] NSWCA 192
FILE NUMBER(S):
2009/298519
HEARING DATE(S):
12 March 2010
JUDGMENT DATE:
11 August 2010
PARTIES:
Refina Pty Limited (Appellant)
Kevin Douglas Binnie (First Respondent)
The Registrar General of New South Wales (Second Respondent)
JUDGMENT OF:
Allsop P Campbell JA Young JA
LOWER COURT JURISDICTION:
Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):
SC 1437/08
LOWER COURT JUDICIAL OFFICER:
Brereton J
LOWER COURT DATE OF DECISION:
3 September 2009
LOWER COURT MEDIUM NEUTRAL CITATION:
Refina Pty Ltd v Binnie [2009] NSWSC 914
COUNSEL:
P Tomasetti SC and J Atkin (Appellant)
M K Meek SC and R Kako (First Respondent)
Second Respondent Submitted
SOLICITORS:
Gregory J Halpin (Appellant)
Diamond Conway (First Respondent)
Second Respondent Submitted
CATCHWORDS:
Appeal- Civil- no appeal as of right- area of land concerned worth under $10,000- leave to appeal given. Conveyancing- Conveyancing Act 1919, s 195H- whether appellant entitled to order requiring Registrar General to "correct error" by omitting strip from plan- whether the registered plan failed to implement the intentions of the parties who prepared and lodged the plan- where disputed strip not expressly referred to in council consent to subdivision but subsequently included in registered plan of subdivision. Real Property- Torrens title- possessory title- Real Property Act 1900, Part 6A- strip of land adjoining neighbouring properties- appellant previously entitled to make application for possessory title by reason of adverse possession for 50 years- whether possessory claim destroyed by registration of plan of subdivision consolidating contested strip into larger lot- whether the Limitation Act 1969, ss 27 and 65 apply to Torrens system land to extinguish the title of the registered proprietor and prevent the registered proprietor from obtaining ejectment against the adverse proprietor- whether appellant had personal equity against respondent in respect of disputed strip arising from possession. Words and Phrases- "error" or "omission".
LEGISLATION CITED:
Conveyancing Act 1919, ss 195C, 195H, 195J, 196(5)
Environmental Planning and Assessment Act 1979
Limitation Act 1969, ss 8(1)(a), 27(2), 65, Schedule
4
Real Property Act 1900, ss 40, 42(1)(a), 45B-45G
CATEGORY:
Principal judgment
CASES CITED:
Allen v Roughley [1955] HCA 62; 94 CLR 98
Baiada Pty Ltd v The Registrar General (1994) 6 BPR 13,704
City of Canada Bay Council v F & D Bonaccorso Pty Ltd (2007) 71 NSWLR 424; 156 LGERA 294
Fraser v Walker [1967] 1 AC 569
Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537
Oxford Meat Co Pty Ltd v McDonald [1963] SR (NSW) 423
Marsden v McAlister (1887) 8 LR (NSW) 300
Michael v Onisiforou (1988) 1 BPR 9356
MJ Davis Industrial Pty Ltd v Fairfield City Council [1999] NSWSC 829; 107 LGERA 118; [2000] NSWCA 287; 10 BPR 18,495 (CA)
Newington v Windeyer (1985) 3 NSWLR 555
Perry v Clissold [1970] AC 73
Quach v Marrickville Municipal Council (No 2) (1990) 22 NSWLR 55
Rourke v Schweikert (1888) 9 LR (NSW) (Eq) 152
Spark v Meers [1971] 2 NSWLR 1
Continue reading Refina Pty Ltd v Binnie
Sign in free to access the full text
- AGLC
- Refina Pty Ltd v Binnie [2010] NSWCA 192
- Case
- [2010] NSWCA 192
- Decision Date
CaseChat Overview and Summary
The court was required to determine several key legal issues. Firstly, it had to consider whether the registered plan of subdivision contained an "error" or "omission" such that the Registrar General could be compelled to correct it by omitting the disputed strip, and whether the plan failed to implement the intentions of the parties who prepared and lodged it. Secondly, the court had to decide whether the appellant's claim to a possessory title, established through 50 years of adverse possession, was extinguished by the subsequent registration of the plan of subdivision which consolidated the contested strip into a larger lot. Finally, the court considered whether the provisions of the *Limitation Act 1969*, specifically sections 27 and 65, applied to Torrens system land to extinguish the registered proprietor's title and prevent them from obtaining ejectment against the adverse possessor, and whether the appellant possessed a personal equity against the respondent arising from its possession.
The Court of Appeal ultimately dismissed the appeal. While granting leave to appeal, the court found that the appellant had not established grounds for the correction of the registered plan. The court reasoned that the inclusion of the strip in the registered plan, even if not expressly referred to in the council consent, did not constitute an error that could be rectified under section 195H of the *Conveyancing Act 1919*. Furthermore, the court determined that the registration of the plan of subdivision had the effect of consolidating the strip into the respondent's lot, thereby extinguishing any possessory claim the appellant might have had under Part 6A of the *Real Property Act 1900*. The court concluded that the *Limitation Act 1969* did not operate to extinguish the title of a registered proprietor under the Torrens system in the circumstances presented, nor did it create a personal equity in favour of the appellant. Consequently, the appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.
Orders
Orders of the court
(1) Leave to appeal should be given.
(2) A proper notice of appeal must be filed within 7 days of this decision in the form of the draft notice in the White Book.
(3) Appeal dismissed.
(4) Appellant to pay the costs of the appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.