Refina Pty Ltd v Binnie

The appeal before the Court of Appeal of New South Wales concerned a dispute between Refina Pty Ltd (the appellant) and Binnie (the respondent) regarding a strip of land. The appellant sought an order to correct an alleged error in a registered plan of subdivision by omitting the disputed strip, which it claimed was included in error. The underlying issue involved competing claims to this strip of land, with the appellant asserting a possessory title and the respondent holding registered title.

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.