Registrar-General of New South Wales v Cihan

The case of *Registrar-General of New South Wales v Cihan* involved an appeal to the Court of Appeal of New South Wales concerning the status of an easement under the Torrens system. The dispute centred on whether an easement, originally created when both the dominant and servient tenements were under Old System title, was validly recorded or had been omitted from the current folio relating to the servient tenement after conversion to Torrens title and subsequent subdivision. The Registrar-General of New South Wales was the appellant, and Mehmet Cihan, along with other defendants, were the respondents.

The primary legal issues before the Court of Appeal were whether the notification of an easement in the current folio for the servient tenement constituted a "recording" of that easement, and consequently, whether the easement had been "omitted" from the folio within the meaning of section 42(1)(a1) of the *Real Property Act 1900* (NSW). The court was asked to determine if the description of the easement in the folio, which referred to an earlier folio for a general description of the benefited land but did not explicitly identify the dominant tenement in the current folio itself, was sufficient to constitute a valid recording.

The Court of Appeal, comprising Allsop P, Barrett JA, and Tobias AJA, reasoned that the notification in the current folio, which referred to an encumbrance and provided a description of the easement, was sufficient to constitute a "recording" of the easement. The court held that the reference to the earlier folio, which contained the necessary details to identify the dominant tenement, meant that the easement was not omitted but rather recorded in the current folio. Therefore, the easement was not considered to have been omitted from the folio for the purposes of section 42(1)(a1) of the *Real Property Act 1900*.

The appeal was allowed, and the orders made in the Equity Division were set aside. The court answered the questions for separate determination by stating that the easement was indeed recorded in the current folio and had not been omitted. Consequently, Mehmet Cihan was ordered to pay the Registrar-General's costs of the appeal and the application for leave to appeal.