Ringen Pty Limited v Shelmerdine & Ors; Ringen Pty Limited v Coghill

[1992] HCATrans 340

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M36 of 1992

B e t w e e n -

RINGEN PTY LIMITED

Applicant

and

JANICE MARY SHELMERDINE (As

Administratrix Ad Litem of the

Estate of Peter Edgar

Shelmerdine Deceased),

JOHN BARSON and THE REGISTRAR

OF TITLES

Respondents

Office of the Registry

Melbourne No M37 of 1992

B e t w e e n -

RINGEN PTY LIMITED

Applicant

and

COLIN HALLEY COGHILL and

JOHN BARSON

Respondents

Ringen 1 13/11/92

Applications for special leave

to appeal

MASON CJ
BRENNAN J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 NOVEMBER 1992, AT 11.44 AM

Copyright in the High Court of Australia
MR A.H. GOLDBERG, QC: If the Court pleases, I appear with

my learned friend, MR W.J. MARTIN, QC, for the

applicant. (instructed by Cornwall Stodart)

MR P.A. LIDELL, QC: If the Court pleases, I appear with my

learned friend, MR W.F. LALLLY, for the

respondents. (instructed by Best Hooper)

MR R.M. DOWNING: If the Court pleases, I appear for the

third respondent in proceeding No M36 and would

seek to appear as amicus curiae in proceeding

No M37 for the Registrar. (instructed by the

Victorian Government Solicitor)

MASON CJ: Yes, Mr Goldberg.

MR GOLDBERG:  If Your Honours please, the issues before the

Court relate to principles relating to the

existence of easements, the abandonment of

easements and the basis upon which a claim for

adverse possession can be made against a registered

proprietor. The issues are important in this sense

that they relate to a system of conveyancing that

takes us back in this State to the turn of the
century.

What we have, Your Honours, in outline is legislation that was made available to the

this. Do Your Honours have available a book of

Court - - -

MASON CJ:	We have a book.
MR GOLDBERG:	The book should have in it legislation - - -
MASON CJ:	Summary of legislation.
MR GOLDBERG:	The summary of legislation, then some

authorities and then a copy of the transfer that

was before the court at the time of the trial and

was admitted in evidence. The Register in Title is

available in Court this morning if the Court wishes

to see the original document. _..

MASON CJ:  I think that is highly unlikely. This is a

special leave application.

MR GOLDBERG:  Indeed so, Your Honour.

MASON CJ: There seems to be some misconception here about

the difference between an application for special

leave and an appeal.

MR GOLDBERG:  I do not wish to put it that way. I wish to

highlight the issues which, in my submission, are

important as a matter of principle and in respect

of which the Court of Appeal made errors of law.

Ringen 2 13/11/92

If I can indicate, the situation arises because the

Court of Appeal held that the relevant statutory

provision which applied was section 98 of the

Transfer of Land Act in its present form. That was

said, Your Honours, at page 98 of the application

book. What section 98 of the Transfer of Land Act

provides, Your Honours, is this, that the
proprietor of an allotment of land shown on an
approved plan is entitled to the benefit of

easements of way which are set apart on the plan of

subdivision "as may be necessary for the reasonable

enjoyment of the" dominant tenement.

The question of principle which applies is

this: whether section 98 in its present form,
firstly, applies retrospectively to plans of

subdivision prior to 1954 and in any event apply to

a transfer where a contrary intention was expressed

at a time when a contrary intention excluded the

operation of the deemed existence of the easement.

Might I demonstrate to Your Honours why I put that

of the book which has the legislation in it,	proposition. If Your Honours look at that section legislation - the first one is the Transfer of Land
Act 1890, but the second one is the one to which I was to refer - it is Act No 3168, passed on
21 December 1921 - because this, Your Honours, was
the relevant statutory provision that applied at the time lot 7 on the plan of subdivision -
section 2 says:

A transfer of an allotment of land by

reference to a plan ..... shall be deemed always

to have included a grant therewith of all such

easements of way and drainage -

and I have summarized it, I have paraphrased it.

Your Honours will then see, down at subsection (4):

This section applies only if and as far

as a contrary intention is not expressed in

the transfer and shall have effect - .,..

et cetera. If Your Honours turn to the instrument

of transfer that is at the back of that book, it
has the number 838225 at the top of it,

Your Honours will see, where the description of the

estate and interest transferred is set out, there

are two lines with a line ruled through them:

And together with a right of carriage way over

the land coloured brown on the map on the back

hereof.

Those lines, Your Honours, have been ruled

out -

Ringen	13/11/92
MASON CJ:	Where is the map?

MR GOLDBERG:  The map is on the back, Your Honour. You have

to, in effect, take it out or turn your book upside

down. Does Your Honour see on the back there is a

section, "Memorial of Instrument", and at the

bottom there is a plan.

MASON CJ: Where is the part coloured brown on that plan?

MR GOLDBERG:	The part that is between lots 5 and 7 on its left and 6 and 8 on its right, comprising a 20 foot
width.
MASON CJ:	So it is the whole area of that - - -

MR GOLDBERG:  No, it is part. It runs the full length of

what was alleged to be the road from what is now

Nepean Highway, there called Two Chain Road, down

to the beach over the full length of it as to a

width of 20 of its 66 feet. So the argument that

was advanced was that there you have clearly, we

would submit, a contrary intention. Now there are

two aspects, as a matter of principle -

MASON CJ: That is hardly a special leave point, is it?

MR GOLDBERG: No, Your Honour. The special leave point arises this way. Section 98 is a section that

applies to where a plan is "an approved plan of

subdivision". The concept of an approved plan of

subdivision only came into existence in the 1954

legislation. What happened, going back to the

1890s and beforehand, was that plans of subdivision

only had to be deposited with the Registrar of

Titles. What happened subsequently, the system of

plans of subdivision changed and from 1954 on plans

of subdivision became approved; there was a

procedure for approval and subsequent to that,

even, a situation of registration of plans became

the requisite procedure.

--

BRENNAN J:  Can I just ask you to go back a little. Am I

right in thinking that Act No 3168 provides for a

deemed grant in the cases to which it refers.

MR GOLDBERG:	Yes, Your Honour.
BRENNAN J:	Section 98, however, is not speaking about a deemed grant but is a statutory conferral of an
easement.
MR GOLDBERG:	It is a conferral because the word "grant"

does not appear. It is deemed to include.

BRENNAN J: Deemed to include, yes. That means that they

operate in quite different ways, these two

Ringen 13/11/92

sections. Our only concern then is the proper

construction of section 98.

MR GOLDBERG:	There are two aspects of that: one is the proper construction and the second point is this,
whether the savings from repeal provisions in
section 2 of the Transfer of Land Act preserve what the situation was in 1921.
BRENNAN J:	You do not take it any further than this, under

3168, do you, that there was no deemed grant?

MR GOLDBERG: That is so.

BRENNAN J: There is no deemed grant, and in that situation

section 98 operates upon the facts as they exist.

MR GOLDBERG:  It operates on the facts as they exist,

firstly, if they operate in relation to this plan,

and secondly, we would submit that the inclusion of

the easements there is inconsistent with what

occurred prior to 1921.

BRENNAN J: What has that got to do with it?

MR GOLDBERG:  The plan that was submitted in, I think it

was, 1913 or 1914, because the Act of 1921 was

retrospective, at the time the 1921 Act came into

existence, because of this transfer, we would

submit, there was no easement in favour of lot 7 over the road. That had been expressly excluded,

ruled out of the instrument of transfer. So the

situation was, from 1921 onwards when that deemed

grant procedure came into existence, there was no

easement at all.

BRENNAN J: What deemed grant procedure, the 3168? I think

we are at cross purposes. As I understand it, the

question on which this case turns is the

application of section 98, is that correct?

MR GOLDBERG: Yes, Your Honour, in two respects. One is,

does it only apply where you have an approved plan, ;

because our plan here was not an approved plan.

BRENNAN J: Yes, I understand that.

MR GOLDBERG:	And secondly, in any event, was the situation that occurred in 1921, even if section 98 does
somehow apply, section 98 applies, assuming we are
wrong about it only applying to approved plans, the
deletion of the easement in 1921 is an event which
is preserved, notwithstanding the repeal of the earlier legislation.

McHUGH J: When you say deleted in 1921, you mean 1913?

Ringen 13/11/92

MR GOLDBERG:  1913, Your Honour, yes, I am sorry. I say

that because the 1921 Act was retrospective.

BRENNAN J:  I do not understand what that has to do with

section 98. If section 98 creates a statutory

easement - - -

MR GOLDBERG: It does, Your Honour.

BRENNAN J:  - - -what do the transactions anterior to the

corning into effect of section 98 have to say to its

operation?

MR GOLDBERG: Because, Your Honour, section 2(2) of the

Transfer of Land Act preserves the status, operation and effect of what had occurred under

earlier statutes as if those earlier statutes had

not been repealed.

BRENNAN J: But the only effect is zero. Nothing was

effected under 3168.

MR GOLDBERG:	What was effected, Your Honour, was the right to exclude an easement over the land because, were
it not for the contrary intention that was
expressed by the deletion of those words in the
transfer, the contrary intention provision of
section 2(4) of the 1921 Act would have had nothing
upon which to operate.

BRENNAN J: That leaves us with simply a non-application of

section 2(1) of the 1921 Act.

MR GOLDBERG: That is so, Your Honour.

BRENNAN J:  So there is no deemed grant.

MR GOLDBERG: That is so, Your Honour.

BRENNAN J:  So we have got a parcel of land, no deemed grant of an easement - - -

,r

MR GOLDBERG:  Because a contrary intention has been

expressed, Your Honour.

BRENNAN J:	Be it so.
MR GOLDBERG:	Which was a statutory right to take advantage

of if you wished.

BRENNAN J:	Be it so, then section 98 comes into force.
MR GOLDBERG:	On that basis, Your Honour, the point or the proposition in relation to section 98 is that
section 98 only applies to approved plans.
BRENNAN J:	Then is that a special leave point?

Ringen 6 13/11/92

MR GOLDBERG:	Yes, Your Honour, because it is a matter of general application because prior to 1954 plans
were not approved; after 1954 plans were approved
and, indeed, what the learned judge who wrote the
decision of the Court of Appeal said was, he
misunderstood the nature of the legislation and
said that the word "registered" should be construed as applying to the consequence of a deposit of a
plan of subdivision.  He did that, Your Honours, on
page 98 of the application book and, in this
respect, we submit he erred in two respects. If
Your Honours look at page 98 you will see on
line 9:

The phrase "registered by the Registrar

under any Act" in s.4(1) of the Act of 1958

should be construed as including the

consequence of the deposit of a plan under

s.172 of the Act of 1890.

Now, Your Honours, there are two problems with

that. That phrase to which he referred only came

into the Act on 6 June 1989 by the Subdivision

(Amendment) Act. Our relevant acts occur in 1980

and 1981 and the questions which arose then as to

whether the easements had been abandoned, in our

submission, had to be considered by reference to

that legislation. What His Honour has done, we

would submit, in error is pick up a 1989 amendment

and say that should be construed as including a

consequence of the deposit of the plan. But even

if, Your Honours, he was referring to the

expression, the phrase "approved plan of
subdivision", what he says is the word "approved",
even if he had said that, construed as a deposit of

a plan, that is not what the legislation says and

it is not what happened.

Now, this is a situation that applies not only

to our transfer and to our land, but it applies as

a matter of general conveyancing practice. The

question which arises on this aspect of the case, ..-

we would submit, for the decision of this Court is
where plans - and you go back into the 19th

century - were initially deposited and then

subsequently lodged, and from 1954 on approved, is

that a subject that picks up all those earlier

plans where easements were not created in the same

way? And we submit that is the point of principle.

Because if the Court of Appeal is right, then the

consequence of that is that you have a situation

where people would think there are not easements where there may well be easements, simply by the

contiguity of the dominant tenement and the

servient tenement.

Ringen 13/11/92

Your Honours will note at line 19 on page 98

His Honour said this:

I should add that it was common ground on

the hearing of the appeal that if s.98 did not

apply to the plan of 1913 then the operation

with regard to that plan of s.2 of the Act of

1921 would be preserved by the statutory

provisions limiting the effect of repeal.

That was the submission I put to Your Honours a

little earlier. So that is our primary point,

Your Honours. Section 98, in relation to an

approved plan, does not apply to plans which,

putting it shortly, were not approved. And this

plan was never approved.

McHUGH J: That were merely deposited.

MR GOLDBERG:  Yes. When you look, Your Honours, at the

Transfer of Land Act and our Local Government Act which picks up provisions in relation to plans of

subdivision, the concept of approval is not just

synonymous with lodging or depositing but involves

quite a different procedure, because at that stage

plans had to be approved by the Registrar of Title

and he could not give his approval until a local

council had sealed the plan. So it is quite a

different proposition.

BRENNAN J:  Mr Goldberg, can you help me with these words,

"registered by the Registrar under any Act"?

MR GOLDBERG:  Yes, Your Honour.

BRENNAN J: Where do I find those words in the pamphlet

copy?

MR GOLDBERG:  The last sheet, Your Honour, the Subdivision

(Amendment) Act 1989. It should be the last sheet

in that section of legislation. It is the second

sheet, Your Honour, page 788, I think you will
find, of the statute book.	I say that as a means
of identification.	Does Your Honour see about
subparagraph (n).

BRENNAN J: Yes, I have it.

MR GOLDBERG:  The Subdivision (Amendment) Act amended a lot

of statutory provisions, so:

After item 79 of Schedule 2 -

that relates to the Transfer of Land Act, so what

that does is:

Ringen 8 13/11/92

In section 4(1), after the definition of

"Approved form" insert -

'"Approved or registered" in relation to a

plan, means ... '

et cetera.	Now, that is the 1989 statutes,
Your Honour.

BRENNAN J:  What was the meaning prior to that amendment of

"approved plan" in section 98?

MR GOLDBERG:  There was no definition as such in the

statute.

BRENNAN J:  So it was a question of construing it in the

light of whatever statutory provisions were there?

MR GOLDBERG:  Yes, within the context of the statute as a

whole.

BRENNAN J:	What was the meaning of "registered plan"?
MR GOLDBERG:	It was not defined as such until 1989.
BRENNAN J:	In the pamphlet copy of the Transfer of Land

Act, reprint No 9, does section 98 'appear in the

form which is relevant to this case?

MR GOLDBERG:  Yes, Your Honour, substantially yes. I should

point out - - -

BRENNAN J:  Why is lot 7 not a lot shown on a registered

plan?

MR GOLDBERG:  Because the plan was never registered. The

plan did not come into existence under a

registration system of conveyancing in relation to

plans. All you had to do was to deposit it with

the Titles Office in those days.

BRENNAN J:	How did a fresh certificate of title issue without partial cancellation of the original
certificate of title and the issuing of a new
certificate of title in accordance with the
registered plan?
MR GOLDBERG:	As I understand the practice, separate - and I

cannot tell Your Honour about 1921; I can tell

Your Honour about more recently - separate titles

issued in relation to land that was transferred out

of the parent title. So you had transfers out, as

I recall.

BRENNAN J: Without plans being registered or - - -

MR GOLDBERG:  Your Honour, there was no provision for

registration as such. They were simply deposited.

Ringen 9 13/11/92

McHUGH J:	Was that under section 172 of the 1890 Act?
MR GOLDBERG:	Yes, Your Honour, that is so. Because what

section 172 provided was you "shall deposit with

the Registrar a map", and 173 said:

After the subdivision of land and deposit of plan ..... the numbers of the allotments

marked upon such plan may be used as

sufficient description of the land for the

purpose of dealings with any one or more of

such allotments -

So that enabled you to transfer out by reference to

a number on an allotment.

BRENNAN J:  Would you not have had to have a survey before

the - - -

MR GOLDBERG:  Yes, indeed, you did, Your Honour, and indeed

you will see there was Part VIII of the Act, that I

do not have all of in Court, relates to Surveys,

Plans, Parcels and Boundaries, and it is

interesting to note, Your Honour, that under

section 172 of the statute that you have in that

book, there is added on a sentence at the end:

No person shall be permitted to practise as a surveyor under this Act unless specially

licensed for that purpose by the Surveyor-

General.

McHUGH J: Apparently, according to Sedgefield, Practice of

the Office of Titles of 1879, the deposited plan

could be amended by consent if there was a transfer

out of the main title.

MR GOLDBERG:  Does Your Honour refer to that passage in the

judgment?

McHUGH J: In the judgment at page 86.
MR GOLDBERG:	That is certainly referred to by the learned --

judge but that does not, with respect, respond to

the point we are making here.

McHUGH J:	No, I appreciate that.
BRENNAN J:	It makes it rather difficult to conceive of a

Torrens system which operates otherwise than in

accordance with plans that are registered.

MR GOLDBERG:  With respect, Your Honour, the way Your Honour

puts it to me begs the question in a sense, because

the plans were not registered. It was quite a

different system of conveyancing. True it is we

have had a Torrens system for over 100 years, but

Ringen 10 13/11/92

the Torrens system has become refined because we

start off with the word "deposited" with plans,

then we have the word "lodged", then we have the

word "approved", and finally we have the word

"registered", and at each time there is a change in

the words, there also appears to be other changes

in the legislation, other changes in the practice.

Now, we say this is an important matter of

principle. It does not affect just only this
particular piece of land. It applies under the

whole of the legislation and the incremental

improvements, if you like, in the legislation over

the years. But the question of importance is,

incremental improvements in legislation they may

have been, but does this mean, when you did not

have easements in the past for a long long period

of time, now you have them - Your Honour will

appreciate there were many plans of subdivision in

the late 1880s, 1890s, and indeed right through the

turn of the century, but that was done under a

different system of conveyancing. True it was it

is a title by registration system in that sense,

but plans of subdivision have been treated quite

differently.

That is a difficulty we face in this case, and

this is where we say the learned trial judge and,

indeed, the Court of Appeal went wrong, because

what they did, they in effect imposed on the very

early plans of subdivision principles and grants,

if you like, inclusions, deeming of easements, that

just did not exist at that time. So all of a

sudden you have, as it were, like a Phoenix arising

from the ashes, a new easement which did not exist

in the past. That is what happened here,

Your Honour, and that is why we say that is a

matter of principle.

Your Honours, there is a second matter of

principle that follows on with that and it is on a

different point. It is how you relate to or the

significance to be granted to the deletion of the
easement from the transfer.	I say that for this
reason.	If Your Honours look at the bottom of

page 98, His Honour then deals with the point that

was made that there was a contrary intention

expressed in the transfer and His Honour, at the

top of page 99, sets it out.	Your Honours will see
at line 13 he says:

the applicable section is s.98 of the Act of

1958, which does not mention a contrary

intention.

He then says this:

Ringen 11 13/11/92

We were referred to NZI Capital Corporation

Pty. Ltd. v. Child (1991) 23 N.S.W.L.R. 481, where authorities on whether regard may be had

to the deleted portion of a document are

considered.

His Honour then said simply:

regard cannot be had to the deleted portions

in considering whether a "contrary intention"

is expressed in this transfer:

Now, we would submit he said the transfer is to be

considered as if it had been re-engrossed without

the deleted matter. We submit this raises another

matter of principle and it is a matter that

Your Honour the Chief Justice picked up in the

Codelfa case, 149 CLR 337, which is also in our

book, and it is at page 352 where, if I may say so

with respect, Your Honour opined as to what might

be the situation where you have got deletions.	In
the NZI Capital Corporation case,
Mr Justice Rogers, the Chief Justice of the
Commercial Division, was faced with a situation
where there had been a deletion and he took the
view, as a result of a decision of .the House of
Lords, that you could look at a deletion to
determine whether or not there was or was not a
provision for repayment of principal in the
statute. In the Codelfa case at page 352,

Your Honour the Chief Justice said - at the top of

the page Your Honour looked at the rule in relation

to evidence of surrounding circumstances and

Your Honour said this, at the bottom of page 352, six lines from the bottom of the page:

There may perhaps be one situation in

which evidence of the actual intention of the

parties should be allowed to prevail over

their presumed intention. If it transpires
that the parties have refused to include in

the contract a provision which would give

effect to the presumed intention of persons in

their position it may be proper to receive

evidence of that refusal. After all, the
court is interpreting the contract which the

parties have made and in that exercise the

court takes into account what reasonable men

in that situation would have intended to

convey by the words chosen.

Now, we submit that the issue which has not yet been authoritatively determined is, well, what can

a court do in construction, where you have a

document where words are deleted? In the case of

NZI Capital Corporation Mr Justice Rogers referred to that passage from Your Honour the

Ringen 12 13/11/92

Chief Justice's judgment in Codelfa, he looked at

some texts on insurance law and said:

Mason J's tentative view in favour of

admissibility in Codelfa escapes mention.	The
authors conclude, (par 3.470 at 1643):

"There is no logical reason, it is

submitted, why a deleted passage ought not be

treated as a surrounding circumstance -

and he then said this in his judgment at page 494,

which is also in the folder, at section Con 494:

Notwithstanding the tentative way in

which Sir Anthony Mason concluded his view in

favour of admissibility it is sufficient to
allow me to confront the "strong body of
authority" in England that deterred Bingham J

from adopting the more recent views of the Law

Lords, I consider myself free to contemplate

the admission of the fact of deletion of the clause for repayment in the precedent in the

Indo-Suez agreement.

So we submit, Your Honours, that the alternative or

further matter of principle to be considered is how

do you construe a document where something has been

deleted from it and it is said that that deletion

shows that the parties had an intention that that

subject-matter deleted was not to apply; not a case

of forming part of a bargain as it did in the NZI

case, but it is not to apply to this property

relationship. Mr Justice Rogers took the view that

what Your Honour the Chief Justice had said in

Codelfa was, in his words, tentative, and that is a

matter, we submit, which, on the authorities to

date certainly in this Court, is not a matter which

is laid down authoritatively, certainly was not

regarded so by Mr Justice Rogers.

Those are the points that apply in relation to

the existence of the easement. Might I then turn	-
to the next issue that we wish to submit which is
the abandonment of the easement.

BRENNAN J: Could I just stop you a moment? Is it right

that your argument has relevance in	relation to
cases prior to the enactment of the	1989 amendment
but not after?

MR GOLDBERG:  Our argument, with respect, applies, if you

like, hereon, unless you have a legislative

amendment that says "any plans of subdivision which

have been deposited, lodged, approved or registered

in a titles office since 1921 are deemed to include

a grant of easement." You see, Your Honour, our

Ringen 13 13/11/92

proposition is between 1921 and 1954 or thereabouts

plans were only deposited. From 1954 on they were

approved - quite a different procedure. That is

our point.

BRENNAN J: What is the effect of the 1989 amendment?

MR GOLDBERG:  In relation to our point, nothing, because our

plan was never registered or approved. I am

responding to Your Honour this way: as yet the

answer is it affects everything. It could be

"changed" by having retrospective legislation that

says "any plan lodged, deposited, approved or

transferred since 1921" et cetera. Your Honour

will appreciate I have not developed the argument

at this stage in full. I have just tried to

identify the outline of it.

Might I then, Your Honours, turn to the question of the abandonment of the easements, and

that issue arises this way: that what was raised

by the defendant in the court by way of

counterclaim was the easements - if there were

easements, in any event, they have been abandoned.

It is probably difficult for Your Honours to

visualize how this land appears but it had - - -

MASON CJ:  We have read the descriptions of it, Mr Goldberg. There is no need to spend time on that.

MR GOLDBERG: Well, Your Honours, the point was it had never

been used for vehicular traffic; it could not be

used for vehicular traffic and there had not been
use of the land across it from top to bottom by

foot traffic. Section 73(3) of the Transfer of

Land Act, Your Honours - - -

MASON CJ: This is the non-user for 30 years point. The

question is whether intention is relevant.

MR GOLDBERG:  Yes, Your Honour, that is simply the point and

we say there is a statutory scheme now; there is
section 73(3) that does not include intention.	-
Wolfe's case, Mr Justice Tadgell, in this court, we
would submit with respect, is in error and was
wrongly decided. Section 73(1) which says you can
get an easement removed if it has been abandoned, you go through the normal steps. But when you go to section 73(3) it tells you, "Look, if you've got
30 years non-user, that's sufficient evidence of
abandonment." If you have got evidence of abandonment, Your Honours, that does not include
the common law abandonment principles, you have to
show intention.

MASON CJ:  Is the Victorian provision the only one that is

expressed in this way?

Ringen 14 13/11/92

MR GOLDBERG: Expressed in that way, yes, Your Honour. But,

again, Your Honours, you will appreciate it is a
matter that has operation, not just in our

particular case, but has general operation.

MASON CJ: I follow that. What about the legislative

history? Does that throw any light on it? In

other words, was there a predecessor to this

particular provision, and how was that expressed?

MR GOLDBERG:  Your Honour, the predecessor - we went back,

Your Honours, to the 1928 legislation. If I can

hand that up to Your Honours, and a copy to our

learned friends. It was section 102 of the 1928

legislation. Subsection (3), Your Honours, will be

as close as I can get.

MASON CJ: Yes.

MR GOLDBERG:  The words that do not appear are "such proof

shall constitute sufficient evidence that such

easement has been abandoned."

MASON CJ: What has been the understanding of the effect of

section 73? I have in mind, what do the textbooks

say about it in Victoria?

MR GOLDBERG:  Very interesting, Your Honour. The late

Mr Voumard said this, Your Honours, at page 436 of

his fourth edition. I am sorry, Your Honours, I do

not have copies of this:

Formerly the rules of the common law as to the

abandonment of an easement were not applicable

to registered easements under the Act, but the

Commissioner of Titles, upon being satisfied that an easement of way had not been used or

enjoyed for a period of at least 30 years, had

power to remove it from the certificate of

title of the servient owner, and thereupon the

easement was deemed to have been abandoned and

extinguished.

See Transfer of Land Act, section 102 -

which is the section I have just handed up to

Your Honours.

The law in relation to this matter was altered

by the Transfer of Land Act 1954, the present

position being that set out in ss 73 -

and what he says, Your Honours, is this: he refers

to the section - he says:

Ringen 15 13/11/92

This clearly makes applicable to land under

the Act the rules of the common law as to

abandonment and extinguishment -

but he is only referring to subsection (1) there. He does not pick up or refer to subsection (3) at

all. Subsection (3) was the subject of

consideration by Mr Justice Tadgell in Wolfe's case

but we submit that there His Honour, with respect,

erred as a matter of law.

MASON CJ: His view was adopted by the Court of Appeal

Division in this case.

MR GOLDBERG:  Yes. Well, what they did was, Your Honours:

Mr Justice Brooking relied on it, Your Honours, and simply said, at page 117 of the application book,

line 16:

I agree with the view taken by Tadgell, J.

that the section requires the Registrar to

determine whether, having regard to common law

principles, the easement has in whole or in

part been abandoned or otherwise extinguished

and that s.s.(3) does not require the

Registrar, once the proof mentioned in it is

made, to determine that the easement has been

abandoned if there is other evidence which,

having regard to common law principles -

et cetera, et cetera.

MASON CJ: Yes, we have read that.

MR GOLDBERG: Well, Your Honour, that is the point. The

final point, as a matter of principle,

Your Honours, is the adverse possession point which

is this: what had happened in this case, the Court

will remember, is that there was this laundry that

intruded - it is shaped in a sort of a "V" over the

land. That had existed since just before 1950

through to 1980. What happened in 1980 was that
our client fenced it off and what was said was that	--
rights of adverse possession had accrued and had extinguished his title to that land.

We submit that in order to be able to have a

title and obtain a title by adverse possession, you

actually have to apply for the title and obtain it

before the title can be extinguished. Now, this

was a point that was argued but Mr Justice Brooking

did not deal with it at all, and the proposition is

this way, that sections 40, 41 and 42, et cetera,

those sections of the Transfer of Land Act, make

the certificate of title conclusive evidence of

what you have got. True it is that that title is

subject to any rights that a person has by adverse

Ringen 16 13/11/92

possession. A person who has rights by adverse

possession though can claim them against the world, but if you are registered - and this is the point -

in our system of title by registration, until you

get into a position of applying to register your

title by adverse possession, you cannot exclude the

registered proprietor from acting in relation to

his land. What happened at the time in October

1980 was it was fenced off; no application to

acquire the title by adverse possession had been

made to the registrar and we submit that you have

that tension, as it were, between the adverse

possession provisions that entitle you to obtain

possession and the principles that refer to title

by registration.

There is a conflict, if I can put it this way,

Your Honour: section 18 of our Limitation of
Actions Act says that:

at the expiration of the period prescribed by

this Act for any person to bring an action to

recover land ..... the title of that person to

the land shall be extinguished.

So what that means, on one view, is if our client,

for 30 years, had gone - has to be more than

15 years - his title was extinguished but he was

still registered as the proprietor of that land and

his certificate was conclusive. That is our third

point of principle, Your Honours, which applies far

and beyond just this application.

MASON CJ:	I thought you said that the Full Court did not deal with that question.	My impression was that
they did and rejected it.

MR GOLDBERG:  No, Your Honours, they dealt with the point

about aggregating successive periods of ownership

of adverse possession. The adverse possession

point starts at 120, Your Honours. It is at 122,

Your Honours, where the point, in a sense, is left

open. It is line 8: 

For on his Honour's findings - not challenged before us - the adverse possession had begun

in 1950 and the sale of lot 7 to the Symes had

not taken place until 1966. The 15 year
period necessary under Victorian law must on
his Honour's findings have expired in 1965.

By that time the title of the true owner had

already been extinguished, and by possession

which was not that of successive occupiers.

But that begs the question, with respect,

Your Honours, because our client is still

registered as the proprietor of that land. We

Ringen 17 13/11/92

submit that the only way that can be defeased is if

the person, whilst he is in possession, applies to

be registered as the owner of that land. And what

had happened here: he had not done so. We entered

into occupation, into possession of the land again,
physically fenced it off, yet the court said that

the title had been extinguished.

BRENNAN J: What is the section of the Transfer of Land Act

which provides for the person who has had adverse

possession for the prescribed period, acquiring a

certificate of title?

MR GOLDBERG: That is section 60, Your Honour. If

Your Honour has reprint No 9, page 64:

A person who claims that he has acquired a

title by possession to land which is under

this Act may apply -

but does he have to be in possession at the time he

is applying or can he have gone out of possession?

Because what happens if he has gone out of

possession, the registered proprietor comes back and the registered proprietor says, "My title is conclusive evidence."

Your Honours may recall that you had two

people here prior who had been there for upwards of

15 years. What happens if both of them applied

whilst the registered proprietor was there? In

other words, if you had a person who is in

possession for 16 years, then goes out; another

person comes in for 16 years, can the first person

then apply? We submit, no. We submit the only

person who can apply and defease the title in

respect of which the certificate of title is

conclusive is a person who is in possession at the

time they apply for their title by adverse

possession to be registered. With respect,

Your Honours, that point was not dealt with by the

Court of Appeal, but successive occupiers was. We

do not challenge that for the purpose of this

appeal.

MASON CJ: But if you be right, why is it necessary to

provide that adverse possession is an exception to

the conclusiveness of the registered title?

MR GOLDBERG:  It says, "Your rights", Your Honour. The

actual words are:

the land shall be subject to any rights

subsisting under adverse possession of the

land.

Ringen 18 13/11/92

But	that does not mean that you can get registered.
You	see, what was proposed was that the person who
got	adverse possession of our land be registered as
the	owner of it, on title, that is the point.

Your Honours, there were a myriad of other

matters but I do not seek to submit that they raise
special leave points, but we submit they are
relevant to what led the judge into a strained
interpretation or a misconception of a number of
the statutory provisions. It is on the basis of
those submissions, Your Honours, we submit there
are matters of sufficient principle and discernment

of error for special leave to be granted.	If the
Court pleases.

BRENNAN J:  If special leave were granted and an appeal were

allowed on any of the points that you have argued,

what would be the necessary consequence?

MR GOLDBERG:  The necessary consequence would be,

Your Honour, that the upper part of the land would be free of any easements at the least.

BRENNAN J: Are you saying it would not be necessary for the

Court to consider any other aspect:of the case?

MR GOLDBERG:  If the points I have argued were to be

accepted, we would then have a free and

unencumbered title to what is called the high

plateau of the land. It may be that at the

bottom - and this is a point I have not developed -

there was some evidence that at the bottom down by
the beach people had walked to the beach front from

the bottom allotment. That matter would still be

dealt with - even that matter would be covered if
our submissions are accepted that there were no

easements over this land because it is not an

approved plan. On reflection, Your Honour, it

would deal with all the matters.

MASON CJ: Yes, Mr Lidell?
MR LIDELL:	If the Court pleases. I think, initially, my

learned friend needed to apply for leave out of

time. We were not going to object. But on the assumption that he has applied for leave out of

time to make this appeal, and that will be - - -

MASON CJ: What, this is to cover the shortfall of

15 minutes in time?

MR GOLDBERG:	I am sorry, Your Honour, I - - -
MR LIDELL:	am not taking the point, if the Court please, I

am simply indicating that for the purpose of the

Ringen 19 13/11/92

record I think that that should be done before

I - - -

MASON CJ: Yes. Well, there is an application for extension

and we note what you say.

MR LIDELL: If the Court pleases. Well, perhaps if I could

go back to the initial point and follow the order

that my learned friend dealt with the various

issues that he seeks to raise. Section 98 is not

in a form that is used throughout Australia. It is a section which is peculiar in the sense that it is
a matter of interpretation interpreting it and in the interpretation it will probably not be of any

assistance in relation to similar legislation in
other States.

Perhaps if I can hand up a copy of Bradbrook and Neave which indicates that point just in a

summary way. I simply wish to refer to the bottom

of the first page, "Plan of Subdivision", and then

it says:

Victoria and New South Wales have legislation

stipulating the requirements of the contents
of plans of subdivision.

And then that relevant legislation was set out:

Victoria and Tasmania have legislation
providing for the creation of implied

easements -

and that is set out. Without analysing it in

detail, it is fairly obvious that there are

significant differences.	Then if we go down to
paragraph 463, we see that:

New South Wales, South Australia and Western

Australia have legislation -

but it is different. It is couched in terms that .,..

are there set out. Again, in respect of

legislation in South Australia and Western

Australia, that is dealt with finally on the next

page.

In terms, then, of the construction of this

legislation, it is not a matter of importance other

than to the people who reside in this State and

need to have this legislation dealt with.

MASON CJ:  But so far, Mr Lidell, we have not yet taken the

view that the fact that a statutory provision is

confined to one State is of itself insufficient

ground for granting special leave.

Ringen 20 13/11/92

MR LIDELL:  I appreciate that. It is not a knock-out point,

as it were. It is a starting point though, we say,

to see just what is the sequence of this.

MASON CJ: All right; what is the next point. Having got

one rung up the ladder - - -

MR LIDELL:  Yes. Well then, in terms of the significance of

it at present, my learned friend did not refer to

the definition which came into effect in 1991 of

"registered plan". I am afraid there is not a copy

of that available. Perhaps if I can read it out: ~registered plan" means -

after the commencement of section 44; or

(a) a plan registered or approved by the

(b) a map or plan deposited or lodged with the
Registrar under section 97 of the Transfer of

Land Act 1954 or a corresponding previous

subsequent enactment.

Thus the result is, in our submission, that the Act

now operates in such a way as would deal with most

of the situations, if not all of them, pursuant to

section 98. So, it has been deliberately extended

and, to that extent, it reduces the point that my

learned friend seeks to make as a general point of

great significance to one which is very much

confined to somewhat unique situations.

McHUGH J:  Does it affect the operation of section 2(4) of the Transfer of Land Act?

MR LIDELL: Yes, it does, in our submission. "This Act

applies to subdivision of land and consolidation of

land and creation, variation or removal of any

easement or restriction."

The history of the legislation has been dealt

with in detail by Mr Justice Brooking but the end

result which he ultimately reached - and, of

course, this was a judgment with which the other

two members of the court concurred - was that

section 98 is now retrospective and having regard

to that amendment which I have read, it covers the

position of the subject land.

It is, after all, simply a matter of statutory

construction. The Full Court or the Appellate

Court were unanimous in that regard. In relation

to Mr Justice Nathan's decision, I do not think

really one gets much assistance from that.

Ringen 21 13/11/92

MASON CJ:  Mr Lidell, can you make arrangements to have us

provided with a copy of that amendment that you

read out?

MR LIDELL:  Yes. Perhaps the Registrar may have a spare

copy.	We certainly will do that, if the Court
pleases.

MR GOLDBERG:  I can hand up my copy of the Act now if it is

of any assistance. It is the Subdivision Act,

Your Honour, not the Transfer of Land Act.

MASON CJ:  I see.

MR LIDELL: It is noted in the notes to section 98.

MASON CJ:  What is the expression, the definition, the new

definition?

MR LIDELL:	My copy, unfortunately, has now been taken out for copying.	The definition of "registered plan",
is the - - -

MASON CJ: "Registered plan".

MR LIDELL: Yes.

BRENNAN J:  Mr Lidell, do these definitions apply to the

Transfer of Land Act?

MR LIDELL: Yes. If I can refer Your Honours to

section 97(2), I think it is.

MASON CJ: Well, that provides for an inconsistency between

the Subdivision Act and the Transfer of Land Act,

in which event the Subdivision Act is to prevail.

BRENNAN J:  What is it that translates the Subdivision Act

definitions into the Transfer of Land Act?

MR LIDELL: This section, section 97:

This Act and any subordinate	--
instrument ..... made under it apply to the
Subdivision Act 1988 as if that Act formed
part of this Act, and that Act must be read as
one with this Act.

MASON CJ: It is 97(1), not 97(2).

MR LIDELL: Yes. Well, that is the one I just referred to.

If the Court pleases, the position, in our

submission, is correctly set out by

Mr Justice Brooking in his judgment at page 98

where he gives the interpretation. This is the
question of interpretation which he and the other

two members of the court decided and the judge

Ringen 22 13/11/92

below did not make any ruling on it and thus, in

our submission, the Court ought not allow special

leave to be granted on a point such as this

especially when it seems to be a common-sense

decision. It is not as if the interpretation that

he and the court put on it is one that causes

disruption and may either need legislation or

correction of this Court, it is a very sensible

and, we say, appropriate decision and it is

technically correct.

There is no evidence, really, other than my

learned friend's assertions that it is a matter of
principle and a matter of importance but perhaps

the counsel for the Registrar can take that point

further but as far as we are aware this is a

somewhat unique case situation and we say in those

of a grant of special leave. circumstances that point should not be the subject

MASON CJ: Mr Lidell, I take it you rely on the reasoning in

the judgment of Mr Justice Brooking?

MR LIDELL:  Yes, we do, and as to the other very special

situation of the Transfer of Land Act with

something being crossed out on it - - -

MASON CJ: Well, you say that is a particular point?

MR LIDELL:  Very, very much so. As far as we know that sort

of thing may have happened before. There is no

evidence of it. It is a somewhat unique situation

and it is not a Codelfa case really. The document

is there.	I think there is a statement of approval
on it that it was approved.	The plan was approved.

And then there is this curiosity; something is

deleted and it is a question whether you infer from

that it was deleted and what you can draw from that

is very very much a peculiar situation and it would

hardly be - - -

MASON CJ: What about adverse possession? What do you say

about that?

MR LIDELL: Adverse possession, in our submission, was found

which was raised as to whether you needed this

by both Mr Justice Nathan and then by the Full

continuity but that point has not been taken.	The
only point th~t has now been taken seems to be a
point that, I must say, we cannot quite follow.

The person in possession has now the right to

occupy; he cannot be forced out of possession and

he is able to have the title transferred into his
name. That was the relief that was sought and that

is the relief that has been granted.

Ringen 23 13/11/92

McHUGH J:	What was put against you was that you were turfed out of possession in 1981.
MR LIDELL:	Yes, but - - -

McHUGH J: And therefore you cannot apply; that you can only

defeat the applicant's title while you are in

possession and if you had made an application.

MR LIDELL:  Yes, but in any event, time had expired and we

are now certainly in a position of being able to

make that application. We say that if you can

prove the continuity of occupation, then that is

sufficient to give you title. The fact that you

may not have been there on a particular occasion is

not, in our submission, an answer. It is not, we

say, a basis for giving leave to appeal.

Indeed, 70 years ago this Court appears to

have refused to grant leave to appeal on what

seemed to be a similar sort of case. Appeals in

those days were fairly easy to get as of right but

I hand up a copy of that. It is sufficient, I

think, just to look at the headnote. It is a very

short point, but having uncovered it, we thought we

would, in view of what Your Honour now says, draw

attention to it, the significance being as appears

in 28 CLR 607 that special leave was refused by the

Full Court in relation to that decision.

McHUGH J: This was a case of old system title, was it not?

MR LIDELL: Yes, it would have been because at that stage I

think you could not get adverse possession of

Torrens Title System in New South Wales.

McHUGH J:  Mr Lidell, the 1991 legislation may have

destroyed much of the public importance of this

case but do you maintain that the judge and that

Mr Justice Brooking was right at page 98 of the

book when he said that:

.,.

The phrase "unregistered by the Registrar

under any Act" ins 4(1) of the Act of 1958

should be construed as including the

consequence of the deposit of a plan -

MR LIDELL:  Yes, Your Honour, we stand by that.

McHUGH J: But that phraseology only came in when, in 1989,

did it not?

MR LIDELL:	Yes.
MASON CJ:	6 June.

Ringen 24 13/11/92

MR LIDELL:  And it is, in our submission, retrospective and

intended to be effective in such a situation.

MASON CJ: Mr Lidell, we will adjourn now and we will resume at 2.00 o'clock.

AT 12.59 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

MASON CJ: Mr Lidell, have you anything else to add?

MR LIDELL:  I have not dealt with the fourth point. There

were four points, and the second-last one that my

learned friend made concerned the construction of

section 73A of the Transfer of Land Act. It is, we

would concede, a matter of general importance but
we would say that the operation of that is so clear

that this Court does not need to rule on it. The

contention that was put was that this section

eliminated the need for proving abandonment; in

other words it set up an alternative system which

made it very much easier to get rid of easements.

But it is clear that the nature of this section is

that it is simply an alternative procedural way of

getting rid of an easement, but it is very much in the discretion of the Registrar. You apply to him

and he then may consider the matter. He may,

notwithstanding anything to the contrary, at his

discretion create a folio of the register which

records that the easement shall not be preserved. But from the very nature of the language used in

that section, it is simply an alternative way

whereby the Registrar may do something, but he

cannot be forced to do anything.

In this particular case, an application had

been made to him but he had not taken it any .r

further and it was sought to argue that that was

the way in which this matter should have been

resolved. But Mr Justice Tadgell, in the case of

Wolfe v Freijahs' Holdings Pty Ltd, (1988} VR 1017,

had given a decision - - -

MASON CJ:  We are aware of that.

MR LIDELL:  Yes. I just add that Mr Justice Nathan said the

same, followed that at pages 36, 37, and then -

MASON CJ:  The Full Court followed it.

Ringen 25 13/11/92

MR LIDELL:  The Full Court followed, Mr Justice Brooking

followed it. So nobody has ever said anything else

other than our learned friends in relation to that

particular point. That, I think, concludes what we

wish to say.

MASON CJ: Thank you, Mr Lidell. Mr Downing.

MR DOWNING:  The Registrar of Titles would not be wishing to

add anything of any substance, but if I could point
out that section 172 of the 1890 Act refers to the
setting apart of roads and delineation of roads for

the use of purchasers. On the actual plan that was

lodged which, unfortunately, has not been

adequately photocopied or reproduced in the

judgment, makes it quite clear that the plan was

lodged and roads coloured brown. So that they

were, at that stage in 1912 when the plan was

lodged with the Registrar of Titles, the roads were

in fact set apart for the purposes of future

purchasers. If I might also add that the - - -

McHUGH J: What significance does that have? Does not the

British Bank case say that it was only there as a

point of reference?

MR DOWNING:  Yes. I merely mention it because the plan of

subdivision as reproduced does not adequately point

out that it does have the notation, "Plan may be

lodged, roads coloured brown". If I might also

indicate that the Registrar has adopted a practice

of regarding section 98 of the Transfer of Land Act

as having a retrospective effect and an effect in

respect of all allotments of land shown on an

approved plan of subdivision or lot shown on a

registered plan and has regarded the definition of

"registered plan" and "approved plan" as being

effectively a plan lodged or approved pursuant to

the current enactment and its predecessors.	And
this has been the practice of the Registrar.

McHUGH J:  Does the Registrar take the view that the 1991 amendment has the effect that it applies even

though there was an indication to the contrary in

the original documents deposited?

MR DOWNING:	I believe that that would be consistent, yes.
MASON CJ:	Is the Registrar's practice based on a view of the definition of "registered plan" in the 1991
amendment to the Subdivision Act or was it a view
taken before that amendment?
MR DOWNING:	As I understand it, Your Honour, it was a view

taken before that amendment or that incorporation.

Ringen 26 13/11/92

MASON CJ:  The view was taken that the 1991 amendment

provides confirmation of the correctness of that

view?

MR DOWNING:  Yes. I do not know that there is anything

further, save as to say that if one looks at

section 97 in the eighth reprint of the Transfer

of Land Act, in subsection (1) it refers to the

lodgment of a plan of subdivision and in

subsection (5) it refers to the approved plan of

subdivision.	So that there was the use of both
terms in the old section 97.	I do not know that

there is anything else that the Registrar

would - - -

McHUGH J:  Have you got any submission on the adverse

possession?

MR DOWNING:  No, sir. The Registrar would not wish to enter

the arena in respect of that. He believes that he

has a very limited role pursuant to section 60.

MASON CJ: Thank you, Mr Downing. Yes, Mr Goldberg.

MR GOLDBERG:  Your Honours, the only submission we wish to

make in reply is that whatever the Registrar has

done as a matter of practice is not with respect to

the point if the proper construction of the

legislation and the savings that relate back to

earlier plans, as a matter of proper construction,

still apply.

MASON CJ:  Do you want to say anything about the definition

of "registered plan" introduced in 1991 in the

Subdivision Act?

MR GOLDBERG: There are some difficulties with that,

Your Honours, for this reason: the definition appears in the Subdivision Act and relates to:

a map or plan deposited or lodged -

under any other enactment. When one looks at -

section 97, it is certainly not subsection (2)

which assists to make it applicable. That just

relates to inconsistency - - -

MASON CJ:	What about 97(1)?
MR GOLDBERG:	What that says, Your Honour, is that they must

be read as one. It is not immediately clear that

that means that the plan that was deposited in 1913

and which was operated on by the 1921 Act still did

not have the effect that it had at that time.	In
other words, the situation that occurred at that

time and occurred thereafter has applied, certainly

up until the 1991 Act. Our proposition is that

Ringen 27 13/11/92

what the Court of Appeal did, the Court of Appeal

did not proceed on this basis at all. The Court of

Appeal should have looked at what the legislation

was at the time. It may be this has got more of a

confined operation hereafter, Your Honours, but it

certainly does not affect our argument. If

Your Honours please.

MASON CJ: In our view, the first three grounds argued by the

applicant, namely those relating to s. 98 of the

Transfer of Land Act 1958 (Viet.), the form of the instrument of transfer ands. 73 of the Transfer of

Land Act, do not have sufficient prospects of

success to warrant the grant of special leave to

appeal. In expressing that view of the first and

third points, we have had particular regard to the

definition of the expression "registered plan" in

s. 3 of the Subdivision Act 1988 (Viet.) as amended

in 1991 ands. 97(1) of the Transfer of Land Act.

There will, however, be a grant of special leave to appeal in relation to the adverse

possession point in both applications. The grant

of special leave will be limited to that ground of
appeal. Otherwise the applications for special

leave to appeal are refused.

MR GOLDBERG: If the Court pleases.

MASON CJ:  I should perhaps say that having regard to the

confinement of the grant of special leave, the comparatively limited size could be filed and would be adequate for the purposes of the presentation of

the argument.

MR GOLDBERG: If Your Honour pleases.

AT 2.14 PM THE MATTER WAS ADJOURNED SINE DIE

--

Ringen 28 13/11/92