Sahab Holdings Pty Limited v Registrar-General

[2009] NSWSC 1143

Reported Decision: 75 NSWLR 629

New South Wales

Supreme Court

CITATION:	Sahab Holdings Pty Limited v Registrar-General & Anor [2009] NSWSC 1143 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	26-27 May, 5 & 26 June 2009
JUDGMENT DATE :	26 October 2009
JURISDICTION:	Equity
JUDGMENT OF:	Slattery J at 1
DECISION:	ORDERS: (1) Order the first defendant to file an appearance in accordance with UCPR r 6.9 within 14 days, namely by Monday 9 November 2009. (2) Order the first defendant to provide the plaintiff with the first defendant’s reasons for his decision on 22 November 2001 to delete the covenants and right of way in Transfer no. A752953 from the folio of the register for folio identifier A/404929 (the 2001 decision) within 21 days of the date of this order, namely by Monday 16 November 2009. (3) Direct the plaintiff to file any supplementary final submissions dealing with issues arising from the first defendant’s reasons for the 2001 decision by Monday 23 November 2009. (4) Direct the first and second defendants to file any supplementary final submissions either in reply to the plaintiff's submissions pursuant to direction (3) or otherwise dealing with issues arising from the first defendant’s reasons for the 2001 decision by Monday 30 November 2009. (5) Direct the plaintiff to file any submissions in reply to the first or second defendants’ submissions by Monday 7 December 2009. (6) Grant liberty to the parties to apply on one day’s notice. (7) Costs are reserved.
CATCHWORDS:	REAL PROPERTY - restrictive covenants - proceedings to review the decision of Registrar-General's decision removing a right of way from the folio of the reister for the servient tenement - reasons for the decision of Registrar-General ordered to be provided pursuant to duty under s 121 Real Property Act 1900 - duty enforceable under s 65 Supreme Court Act 1970 - submitting appearance under UCPR r 6.11not permitted due to Registrar-General's adversarial role in proceedings
LEGISLATION CITED:	Administrative Decisions (Judicial Review) Act 1977 (Cth) Conveyancing Act 1919 (NSW) Income Tax Assessment Act 1936 (Cth) Real Property Act 1900 (NSW) Real Property Amendment (Compensation) Act 2000 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Allan v Transurban City Link Limited [2001] HCA 58 Black v Garnock [2007] HCA 31 CTC Resources NL v Commissioner of Taxation (1994) 48 FCR 397 Cummins v Mackenzie (1979) 2 NSWLR 803 De Haas v Williams (2004) 132 LGRA 195 Develtor Property Group P/L v Newcastle City Council [2001] NSWLEC 47 Dickinson v Perrignon [1973] 1 NSWLR 72 El Deeb v Magistrates Court of South Australia (1999) 72 SASR 596 Fitter v Public Trustee [2007] NSWSC 1487 McCallum v Commissioner of Taxation (1997) 75 FCR 458 R (Davies) v Birmingham Deputy Coroner [2004] 1 WLR 2739 Tooheys v Minister for Business and Consumer Affairs (1981) 36 ALR 64 United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 Willesee v Willessee (1974) 2 NSWLR 275
PARTIES:	Plaintiff: Sahab Holdings Pty Limited (ACN 002 728 216) First Defendant: Registrar-General Second Defendant: Castle Constructions Pty Limited (ACN 001 602 188)
FILE NUMBER(S):	SC 5563/08
COUNSEL:	Plaintiff: Mr G K Burton SC First Defendant: Mr Walsh Second Defendant: Mr D L Warren
SOLICITORS:	Plaintiff: Kanjian & Company First Defendant: Department of Land Legal Services Second Defendant: Domain Legal

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

SLATTERY J

MONDAY 26 OCTOBER 2009

5563/08 SAHAB HOLDINGS PTY LIMITED (ACN 002 728 216) v REGISTRAR-GENERAL & CASTLE CONTRUCTIONS PTY LIMITED (ACN 001 602 188)

JUDGMENT

1 HIS HONOUR:

Introduction

2 Sailors Bay Road runs in an east west direction in the Sydney suburb of Northbridge. Forming the stem of a “T” intersection, Strathallen Avenue intersects Sailors Bay Road from the south. Strathallen Avenue extends further south from the Sailors Bay Road shopping precinct towards the “suspension bridge” connecting Northbridge with Cammeray and North Sydney. These proceedings concern two parcels of land near the south eastern corner of this “T” intersection.

3 In October 1921 two covenants and a right of way were created burdening a parcel of land on the southern side of Sailors Bay Road and benefiting a parcel of land on the eastern side of Strathallen Avenue. Each of these two parcels of land was subdivided after 1921. As a result, by the early 1960s the covenants and the right of way burdened two parcels of land at 134 Sailors Bay Road and 136 Sailors Bay Road. They benefited two parcels of land at 67 Strathallen Avenue and 69 Strathallen Avenue.

4 In September 2001, eighty years after the covenants and right of way were created, Castle Constructions Pty Limited (Castle), then the registered proprietor of 134 Sailors Bay Road, applied to the Registrar-General to remove them from the folio of the register for its land. At the time a Mr and Mrs Howard were the registered proprietors of 69 Strathallen Avenue. They did not oppose Castle’s application. In November 2001 the Registrar-General acceded to Castle’s application (the 2001 decision).

5 Castle is still the registered proprietor of 134 Sailors Bay Road. In early 2007 Sahab Holdings Pty Limited (Sahab) purchased 69 Strathallen Avenue. In these proceedings Sahab claims principal relief restoring the right of way to the folio of the register for 134 Sailors Bay Road. By notice of motion Sahab seeks the reasons for the 2001 decision. Sahab wants these reasons before its claim for principal relief is determined. The Registrar-General and Castle say that he has no duty to provide reasons at the request of a person who was not the registered proprietor of 69 Strathallen Avenue when the 2001 decision was made. This judgment decides the issue raised by that notice of motion. It also decides another issue concerning the continuation of the Registrar-General’s submitting appearance in the proceedings.

6 In the result I order that the Registrar-General provide reasons for the 2001 decision. The parties may wish to advance or resist the claims for final relief based on the Registrar-General’s reasons. At the conclusion of this judgment I make directions for the provision of the parties’ supplementary submissions based on the Registrar-General’s reasons for the 2001 decision.

7 The account of the events that led to the 2001 cancellation of the covenants and the right of way begins when a Mr and Mrs Middleton created these encumbrances back in 1921.

The Middleton Transfer

8 In 1921 Walter and Alice Middleton owned 134 Sailors Bay Road. They also transferred 69 Strathallen Avenue to Cyril Hugh Davis that year. The two covenants and the right of way were created on 26 October 1921 by Transfer A752953 between the Middletons as transferors and Mr Davis as transferee. These covenants and right of way appeared to bind and to benefit 69 Strathallen Avenue. There was a fencing covenant and a covenant prohibiting use of 69 Strathallen Avenue as a butcher shop. The right of way created by the Transfer conferred a right of way over part of the property at the rear of 69 Strathallen Avenue, being the Land and Certificate of Title Folio Identifier A/404929, 134 Sailors Bay Road Northbridge. Transfer A752953 recorded that the transferee covenanted with the transferors as set out in the Schedule of Covenants.

9 The covenants in the Schedule of Covenants are difficult to read in the Transfer and in the subsequent Certificate of Title that was issued. They are reproduced below:

“The transferee for himself and his assigns for the benefit of the residue of the land comprised in the said Certificate of Title registered Volume 2978 Folio 91 but only during the ownership thereof by us (the beneficiaries) our Executors, Administrators and Assigns other than purchasers on sale covenants with us shall be erected on the land hereby transferred to divide it from the adjoining land (being the residue of the land in the said Certificate of Title) without our consent or the consent of our Executors, Administrators or assigns but such consent shall not be withheld if such fence is erected without exposure to us our Executors, Administrators or Assigns and is in favour of any person dealing with the transferee or his assigns such consent shall be deemed to have been given in respect of every such fence for the time being erected and this restriction may be released, varied or modified by the owner or owners for the time being of such adjoining land and the transferee himself and his Assigns further covenants with us our Executors, Administrators and Assigns that the transferee shall not use the said right of way (shown on the sketch marked “A” and annexed to the transfer herein) more than twice daily and that the transferee shall be liable for any damage done to drainage pipes and pits and any other damage caused by the use of the said right of way by the transferee or by any person or persons on his behalf or in delivering goods to the said land transferred herein and the transferee shall not permit any loitering on the said right of way by an person or persons having dealings with the transferee and the transferee shall pay to the beneficiaries one fourth of the rates levied from time to time upon the land comprised in the said right of way and lastly that the transferee shall not use the said land hereby transferred for the purpose of erecting a butcher’s shop thereon nor shall the transferee carry on the businesses of a butcher on such land – The burden of the foregoing covenants is appurtenant to the whole of the land comprised in the herein mention Certificate of Title and the land hereby transferred is subject to the burden of such covenants and the same may be released, varied or modified by the transferors.”

10 Whether or not Sahab is entitled to any final relief depends upon the correct construction of the two covenants and the right of way. The full competing contentions about the construction of the covenants and the right of way are of limited relevance to the present application which is for reasons for the 2001 decision. Sahab’s principal contention about the right of way created by Transfer A752953 was that it was a permanent right of way and was not merely personal to the original transferee Mr Davis. Sahab’s concern is that the Registrar-General may have taken the view, in error, that the right of way was personal (as Sahab would have it) to the original transferee Mr Davis, when the Registrar-General later cancelled it.

11 134 Sailors Bay Road has been sold a number of times since it was owned by the Middletons. Castle purchased it in 2001.

The 2001 Decision

12 By request dated 3 September 2001 (Registered number 7924027 and 7924028) Castle applied to cancel the covenant and right of way in Transfer number A752953 on the folio of the register for 134 Sailors Bay Road (being Folio Identifier A/404929). Castle supported its application with a sworn statutory declaration of a solicitor acting for Castle, William Samuel Dockrill. That statutory declaration of some three paragraphs provided as follows:

1. “I am the Solicitor for Castle Constructions Pty Limited who is the applicant pursuant to a Request to cancel recording of an easement due to the happening of an agreed event where the servient tenement is the land in Folio Identifier A/404929 and the dominant tenement is the land in Folio Identifier 1/726736.
2. I note the Covenant and Right of Way were only to apply during the ownership by the original Transferee, Cyril Hugh Davis in Transfer No. A752953, his executors, administrators and assigns others than the Purchasers on sale.
3. Pursuant to Transfer No. A802709 the said Cyril Hugh Davis transferred the servient (sic) tenement by way of sale. Copies of Transfer No. A802709 and Certificate of Title Volume 3253 Folio 73 are annexed hereto and marked “A” and “B” respectively.”

13 Annexure A to Mr Dockrill’s statutory declaration was Transfer A802709. Annexure B was Certificate of Title Volume 3253 Folio 73 which contained the hand written covenant and right of way, the text of which is reproduced above.

14 Castle’s request was successful. On 22 November 2001 the Registrar-General removed the covenants and right of way in Transfer A752953, Folio of the Register for 134 Sailors Bay Road Northbridge (Folio Identifier A/404929). Reference to the covenant in Transfer A752953 was not removed from the title to 69 Strathallen Avenue.

The Reasons for the 2001 Decision

15 Shortly after Sahab became the registered proprietor of 69 Strathallen Avenue it commenced correspondence with the Registrar-General seeking reasons for and questioning the making of the 2001 decision. The correspondence started on 22 October 2007 with a letter from Kanjian & Company to LPI NSW. This letter set out the history of the dealings described above and requested that the Registrar-General review the decision to extinguish the right of way in 2001. The letter submitted that there may well have been error by the Registrar-General in so proceeding. The basis for the view that there may have been an error by the Registrar-General is then set out in detail. It is not necessary to consider that detail for the purposes of this judgment which only relates to the provision of the Registrar-General’s reasons for the 2001 decision. The letter concluded with the following request, which included a request for reasons for the 2001 decision:

“Can you please consider the views expressed in this letter to determine whether an error was made in extinguishing a right of way. If you are of the view that there was such an error, please advise us of formal steps available to our client to redress it. If, on the other hand, you form a view that there was no error, please advise us of the reasons for this view so that we may communicate them to our client.”

16 The Registrar-General replied in terms that impliedly declined to provide reasons. In a letter of 30 October 2007 the Registrar-General replied to Kanjian & Company, referring to Kanjian & Company’s “Request to review the removal of covenant including right of way number A752953 by Request no. 7924027 on 22 Nov 2007.” The following was the response by the Registrar-General:

“In this case I am not prepared to review the decision to remove the covenant A752953 as I do not deem it a case in which I have the necessary powers to amend the Title without an order of Court.”

17 After this letter arrived Mr Kanjian further pursued the issue by telephone with Mr G Bartier the legal officer of LPI NSW. That telephone conversation resulted in a further letter from Kanjian & Company to Mr Bartier of 5 November 2007. As well as to some extent further arguing the case against the Registrar-General, the request made by Kanjian & Company for further action by the Registrar-General was made in the first paragraph of the letter in the following terms:

“Thank you for taking the time to speak to us on 2 November 2007 about the circumstances in which the right of way the subject of the previous correspondence was extinguished in 2001. We note that you were involved in the making of that decision and that you are calling up the file to review its details and, hopefully, to provide us with a simple and clarifying response to our enquiry so that we, in turn, can put our client’s concerns to rest”.

18 No written response was received to the letter of 5 November 2007. A further telephone conversation took place between Mr Kanjian and Mr Bartier on 9 November 2007. As a result of that conversation Mr Kanjian decided to formalise a request for the Registrar-General’s reasons for the 2001 decision. He did so in a letter dated 12 November 2007 in the following terms:

“Further to our telephone conversation on 9 November 2007, we confirm our request for the Registrar-General to provide a copy of his reasons for extinguishing the right of way on 22 November 2001 in response to requests nos 7924027 and 7924028. This application is made pursuant to s 121 of the Real Property Act, 1900.
When providing the requested reasons, we would be grateful if the Registrar-General could address the considerations raised in our earlier letters dated 5 November and 22 October 2007. A timely response would also be appreciated.”

19 Again no written response was received from the Registrar-General. Some change of internal responsibility for the management of the file took place within the Registrar-General’s office in the intervening period. Mr Kanjian spoke to another officer, Mr Greg Channell, Director of Investigations, Legal Division on 12 December 2007. Mr Kanjian sought to make further contact with Mr Channell but was unsuccessful. Mr Kanjian decided to correspond with Mr Bartier on 18 December 2007 in the following terms:

“We refer to our telephone conversation on 12 December 2007 and note that Mr Greg Channel, Director of Investigations – Legal Division – now has carriage of the matter. On the following day, we endeavoured to speak to Mr Channel by telephone. He was unavailable. We left a message but he has not yet returned our call.
The purpose of our enquiry is to determine when the Registrar-General will provide reasons for extinguishment of the right of way requested in our letter dated 12 November 2007. Can you please refer this enquiry to Mr Channel for his attention. When you do, can you please also ask him to let us have a copy of the notice sent to the previous owners of the property, 69 Strathallen Avenue, Northbridge, advising of the intention to act on the request received from the adjoining owner to extinguish the right of way. We note form request 7924028W dated 3 September 2001 that the adjoining owner gave the names of the owners of the dominant tenement as Lesley Charles Howard and Edna Maria Howard. The address of the dominant tenement was given as the address for service.”

The Registrar-General’s 2008 Decision

20 As a result of his correspondence with the Registrar-General and with representatives of Castle, Mr Kanjian thought that 69 Strathallen Avenue would be disadvantaged by what appeared to be the permanent loss of the benefit of the right of way. He decided on behalf of Sahab to request the Registrar-General to reinstate the right of way.

21 On 22 September 2008 Sahab applied to the Registrar-General to reinstate the right of way under a “request” (form 11R) in which the Nature of Request was described as:

“to restore to the folios of the register of the servient and dominant tenements the right of way referred to in the registered dealing (A752953). Section 136(1) of the Real Property Act 1900”.

22 Mr Kanjian supported the request with his statutory declaration which set out the facts recounted above. Based on that statutory declaration Sahab contended that the right of way “was wrongly and in error expunged from the register in 2001”.

23 In answer to that request on 2 October 2008 the Registrar-General advised that he was not prepared to grant the request (the 2008 decision) for reasons set out in a portion of the letter of that date as follows:

“As you are aware, right of way A752953 was removed from A/404929 and 1/726736 on 22 November 2001 on registration of Request 7924028 (“the Request”) made by the registered proprietor of the servient tenement Castle Constructions Pty Limited. A statutory declaration sworn by William Samuel Dockrill in relation to the terms of right of way A752953, as set out in Schedule “B” to Memorandum of Transfer A752953, was attached to the Request.
At paragraph numbered 24 of the statutory declaration sworn by Ken Kanjian on 22 September 2008, it is asserted that Mr Dockrill’s statutory declaration was “based on a material error”. At paragraph numbered 27 of his statutory declaration, Mr Kanjian has put forward a different interpretation of the terms of Schedule “B” to Memorandum of Transfer A752953.

Once the Registrar-General determined to grant the Request, notice was sent to the owners of the dominant tenement (who at the time were Edna Maria Howard and Leslie Charles Howard) of the Registrar-General’s intention to remove right of way A752953 from A/404929 and 1/726736. In accordance with Departmental practice, as no caveat or Supreme Court order restraining the Registrar-General from removing right of way A752953 was lodged by Edna Maria Howard or Leslie Charles Howard, the Registrar-General registered the Request and accordingly removed right of way A752953 from A/404929 and 1/726736.”

24 After providing the reasons set out above the Registrar-General had suggested that Sahab may wish to approach Castle for its consent to the grant of an easement or if that were not possible that Sahab may wish to apply to the Supreme Court for an order imposing an easement utilising s 88K Conveyancing Act 1919 (NSW).

25 Sahab was not satisfied with the Registrar-General’s response and took issue with it in a number of respects. Sahab’s letter of 14 October 2008 asked the Registrar-General that if there are “any other reasons for your decision, we request pursuant to (s 121 Real Property Act 1900 (NSW)) that we be advised of them in writing noting that subsection (2) imposes a duty on you to respond to this request”. The letter also pointed out that Sahab was likely to bring review proceedings in the Supreme Court pursuant to s 122 Real Property Act. It emphasised the limitations upon the position of the Registrar-General provided for in s 122(3) Real Property Act, namely that if the Registrar-General has provided reasons for a decision that the Registrar-General “may not rely on any grounds that are not set out in those reasons except by leave of the Supreme Court”. The letter also went on to deal with the Registrar-General’s alternative suggestion about s 88K Conveyancing Act and said that Sahab should not be put to that trouble and expense when all it was seeking to do is reinstate to the register a right that it says was wrongfully taken away from it in 2001. The letter pointed out that from Sahab’s perspective it was s 136 Real Property Act rather than s 88K Conveyancing Act which provided the quick, convenient and inexpensive mechanism for doing justice between the parties.

26 The Registrar-General stated his final position about the reasons he was prepared to provide on 20 October 2008 in a letter to Kanjian & Company of that date. He made clear in this letter that his reasons for his 2008 decision not to restore the right of way were contained in his earlier letter:

“my letter dated 2 October 2008 set out the reasons for my decision not to restore right of way A752953 (“the Right of Way”) to the above mentioned folios of the Register pursuant to s 136(1) of the Real Property Act 1900 (NSW).”

27 However the Registrar-General added in this letter material he undoubtedly regarded as supplementary reasons for his 2008 decision. At the end of the letter of 20 October 2008 he said “please be advised that this letter and my letter dated 2 October 2008 are reasons for my decision not to restore the Right of Way to the above mentioned folios of the Register”.

28 The extra material in the letter of 20 October 2008 could be described as being a further explanation for what the Registrar-General had done. He prefaced it by the word “I make the following submission” and it was as follows:

“Prior to removing the Right of Way from the above-mentioned folios of the Register, I gave notice to the owners of the dominant tenement pursuant to section 12A of the Real Property Act 1900 (NSW). Sub-section 12A(3) provides that:
“Where a person given notice under subsection (1) does not within the time limited by the notice serve upon the Registrar-General or give the Registrar-General written notice of an order made by the Supreme Court restraining the Registrar-General from taking the action, no action by that person or by any person claiming through or under that person shall lie against the Registrar-General in respect of the taking of the action specified in the notice. “
I did not make an error or omission in the execution or performance of my functions or duties under the Real Property Act 1900 (NSW) in relation to land by removing the Right of Way from the above-mentioned folios of the Register;
Section 136(1) of the Real Property Act 1900 (NSW) does not give me the necessary power to restore the Right of Way to the above-mentioned folios of the Register in the current circumstances;
When your clients purchased the land in folio identifier 1/7226736 from Leslie Charles Howard and Edna Maria Howard they would have known, or ought to have reasonably known, that the Right of Way did not at that time benefit 1/726736.
In this regard, I draw your attention to the provisions of section 52A(2)(a) of the Conveyancing Act 1919 (NSW) which provide that:
“A vendor under a contract for the sale of land shall, before the contract is signed by or on behalf of the purchaser, attach to the contract such documents, or copies of such documents, as may be prescribed…”
Section 4(1)(a) of the Conveyancing (Sale of Land) Regulation 2005 (NSW) describes prescribed documents for the purposes of section 52A(2)(a) as:
“such of the documents specified in Schedule 1 (or parts of those documents) as are relevant to the land the subject of the contract for sale…”
Schedule 1 of the Conveyancing (Sale of Land) Regulation 2005 (NSW) lists fifteen prescribed documents. Relevantly to this matter, prescribed document number 3(a) is a property certificate (defined in section 3 of those Regulations) and prescribed document number 4 includes copies of all deeds, dealings and other instruments lodged or registered in the office of Land and Property Information that are shown on the relevant property certificate and that create or purport to create:
(a) easements, or
(b) profits a prendres, or
(c) restrictions on the use of land, or
(d) positive covenants imposed under Division 4 of Part 6 of the Conveyancing Act 1919,
burdening or benefiting or purporting to burden or benefit the land or any part of the land, together with copies of all Memoranda referred to in any such instrument; and
There is not an error, misdescription or omission in the Register in relation to the land in folio identifier 1/726736 as a result of my refusal to register Request AE234360.”

29 The Registrar-General did not provide any other reasons for his 2008 decision. It is on the basis of this correspondence that Sahab seeks in its principal relief to review the 2008 decision.

30 However, in the course of submissions the question arose as to whether or not Sahab could seek reasons for the 2001 decision. As a result of that discussion I gave leave to Sahab to file a motion seeking reasons for the 2001 decision. That motion filed on 29 May 2009 sought orders to the following effect:

“An order pursuant to s 121(2) of the Real Property Act , 1900 (NSW) or s 65 of the Supreme Court Act 1970 (NSW) or otherwise pursuant to any other power available to the Court, the first defendant provide reasons in writing for:

(a) his acceptance of Request 7924028 lodged by the second defendant;

(b) his recording on or about 22 November 2001 of Request 7924028 in the folio of the Register for freehold property comprised in Certificate of Title Folio Identifier A/404929 known as 134 Sailors Bay Road, Northbridge.”

31 It is that motion which is now being determined by the Court.

The Issues

32 The issue for determination on this motion raises for consideration the construction of s 121 of the Act, which provides as follows:

121 Registrar-General to supply reasons for certain decisions

(1) A person who is dissatisfied with the Registrar-General’s decision:


(a) to have land brought under the provisions of this Act, or to have any dealing registered or recorded, or

(b) to have any certificate of title, order for foreclosure or other instrument issued in relation to land, or

(c) to have exercised or performed in relation to land any function or duty which, by this Act, is required to be exercised or performed by the Registrar-General,

may apply to the Registrar-General for a copy of the Registrar-General’s reasons for the decision.

(2) It is the Registrar-General’s duty to provide the person with those reasons.

33 Sahab claims it is entitled to the reasons it has requested for “the Registrar-General’s decision” that it has requested, namely the 2001 decision. It already has reasons for the 2008 decision. It challenges the later decision on the basis of the reasons already provided. It says that the Registrar-General has a duty to provide Sahab with reasons for the 2001 decision.

34 The issues raised by Sahab’s motion are first whether Sahab is “a person who is dissatisfied with the Registrar-General’s decision”. Secondary issues are whether by the 2001 decision the Registrar-General either decided within paragraph s121(1)(a) “to have any dealing registered or recorded” or within paragraph s121(1)(c) decided to exercise or perform in relation to land “any function or duty which, by this Act, is required to be exercised or performed by the Registrar-General”. The Registrar-General did not contest these secondary issues in written or oral submissions for the purposes of the motion. Aspects of these secondary questions will need to be decided when the Court comes to consider the grant of principal relief in the proceedings. The first issue requires construction of s 121 of the Act.

35 A person so “dissatisfied” “may apply to the Registrar-General for a copy of the Registrar-General’s reasons for decision”. In the Kanjian Company letters dated 22 October 2007, 5 November 2007 and 12 November 2007 Sahab applied to the Registrar-General for a copy of his reasons for the 2001 decision. Section 121(2) provides the consequence that if s 121(1) applies, then “it is the Registrar-General’s duty to provide the person with those reasons.”

36 It is to be noted that s 121(1) provides that the person who is dissatisfied may apply for “a copy of the Registrar-General’s reasons for decision” (emphasis added). The legislation contemplates that there will be a set of original reasons recorded by the Registrar-General at about the same time as the making of the decision. The section does not call for the creation of a statement of reasons. All that is to be done is for the existing reasons to be copied and then provided.

37 The s 121(2) Real Property Act duty to provide the person applying with a copy of the reasons is express. If it is not enforceable by any other clear alternative statutory mechanism under the Real Property Act the duty will be enforceable under s65, or if needed, s69 Supreme Court Act 1970. Section 65 provides for the Court to issue orders for the execution of public duties which will have the same compulsive effect as writs of mandamus but without that writ’s technical and procedural limitations: Dickinson v Perrignon [1973] 1 NSWLR 72, at 83. Section 122 Real Property Act does not provide a statutory mechanism for obtaining the Registrar-General’s reasons for decision. Section 122 assumes that the Registrar-General has complied with their s121 (2) duty and has supplied the copy reasons. Section 122 merely provides a statutory mechanism to review the decision in the Supreme Court. Therefore any order to fulfil the s121 (2) duty will be made under s 65 Supreme Court Act 1970. The real question is whether or not the duty arises in this case. It is necessary now to look to the competing contentions of the parties on this question.

The Registrar-General’s Submissions

38 The Registrar-General’s submissions were supported by Castle which did not advance separate written submissions on the motion.

39 The Registrar-General addressed the question of whether the plaintiff has standing to seek an order pursuant to s 121(2) Real Property Act. The Registrar-General submitted that the plaintiff was not “a person dissatisfied” relevantly for the purposes of the Real Property Act.

40 The Registrar-General submitted that authority was lacking in the context of the Real Property Act as to what the term “a person who is dissatisfied” means. The Registrar-General referred by analogy to the use of the term in revenue statutes: CTC Resources NL v Commissioner of Taxation (1994) 48 FCR 397 per Gummow J at 404-405 and McCallum v Commissioner of Taxation (1997) 75 FCR 458. The Registrar-General pointed out that other terms like “person interested”, “person affected”, or “person aggrieved” are frequently used in conjunction with standing in other contexts. The Registrar-General reminded the Court that in each case the term served as a “control mechanism” to limit the class of person entitled to exercise the statutory remedy.

41 Basing his reasoning in Allan v Transurban City Link Limited [2001] HCA 58; (2001) 208 CLR 167 per Gleeson CJ, Gaudron, Gummow, Kirby, Hayne and Callinan JJ [15]-[16], the Registrar-General submitted that the relevant task before the Court was that identified in the following pasage:

“A particular statute may establish a regime which specifically provides for its own measure of judicial review on the application of persons meeting criteria specified in that statute [ Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247 at 266 [48]]. The present case involves such a statute. The starting point, as indicated by several authorities in the Full Court of the Federal Court [ Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd [1994] FCA 996; (1994) 49 FCR 250 at 261, 272; Edwards v Australian Securities Commission (1997) 72 FCR 350 at 367-369; Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1 at 4-5, 34-37], is the construction of the Authority Act [ Development Allowance Authority Act 1992] with regard to its subject, scope and purpose.”

42 The Registrar-General submitted that the relevant task being to assess the subject scope and purpose of the Real Property Act the Registrar-General submitted that the relevant starting point was Black v Garnock [2007] HCA 31 per Gummow and Hayne JJ at [10] that the task of construction of the Real Property Act must be undertaken recognising and applying the fundamental proposition that “the Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration”. The Registrar-General also referred to Callinan J’s statement in the same case at [75] that “the principal way in which the legislation has achieved its object has been its elevation of the Register above all else”.

43 The Registrar-General then submitted that the Court should reject Sahab’s submission that it is “a person dissatisfied” with the 2001 decision. Sahab had no interest in 69 Strathallen Avenue, the property with the benefit of the easement at the time of the 2001 decision. Because of that lack of interest there was no circumstance at that time which could have caused Sahab to be “dissatisfied” with the decision within s 121(1) Real Property Act. As Sahab could not have called for reasons at the time it cannot call for them now.

44 The Registrar-General says that Sahab purchased the property knowing that the right of way had been removed. Therefore Sahab’s real source of dissatisfaction is not the decision of the Registrar-General in 2001 but the purchase by the plaintiff in the hope that the 2001 decision by the Registrar-General would be reversed.

45 The Registrar-General further says that the construction for which the plaintiff contends is at odds with the purposes of the Real Property Act. It is said that it is not consistent with the purposes of the Real Property Act to allow the plaintiff to challenge the Registrar-General’s 2001 decision. The Registrar-General argues that the plaintiff seeks to go behind the register and re-argue a controversy in which the plaintiff had no interest at the time the Registrar-General made its decision. The Registrar-General adds that any interpretation of the legislation which allowed the plaintiff to do this would not sit well with the object of the Real Property Act to provide certainty of title.

46 The Registrar-General does not appear to take issue with the fact that s 65 will enable the Court to make orders equivalent to mandamus provided the Registrar-General is under a duty to give reasons to the plaintiff. The Registrar-General’s contention is that the Registrar-General is under no such duty because Sahab is not a person dissatisfied.

Sahab’s Submissions

47 Sahab points to the fact that there is no time limit in s 121 Real Property Act as to when reasons can be requested. Sahab says this answers the Registrar-General’s submission that absence of an ownership interest at the time of the relevant decision is a criterion for standing. Sahab submits there is no limit on the class of persons affected by the relevant decision.

48 Furthermore, Sahab submits that the conclusiveness of the register relied upon by the Registrar-General is not an answer to Sahab’s request for reasons. Sahab submits that the rights conferred by s 121 Real Property Act are rights existing within the system of title registration and are part of it. Sahab says that it is now a registered proprietor within the system of registration. As a registered proprietor the plaintiff has a legitimate ground for the dissatisfaction with a matter affecting its title. It had grounds for dissatisfaction when it requested reasons for the 2001 decision after it became the registered proprietor of 69 Strathallen Avenue.

49 Sahab also says that the arguments advanced by the Registrar-General based on the need for certainty of the register are really answered by the contentions available on the claims for final relief in these proceedings.

50 Sahab then submits that the words “person dissatisfied” in s 121 Real Property Act are a broader description than other terms in relation to standing such as “person interested”, “person aggrieved” and “person affected”. It is said by Sahab that “person aggrieved” is a term sufficiently broad to encompass the plaintiff, Sahab: Tooheys v Minister for Business and Consumer Affairs (1981) 36 ALR 64 per Ellicott J 79, adopted by the full Court in United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 at 527; and see Hill J in McCallum v Commissioner of Taxation (1997) 75 FCR 458 (Full FedC) at 466.

51 Sahab says that the relevant criterion to be applied is that the person dissatisfied is one who has objectively a real and not a hypothetical interest at the time of making the request for reasons. Since no other time limit is specified, the “decision” is an act which affects the property title beyond the time at which the decision is made. Sahab emphasises that the only relevant point of connection is between “the request for reasons and the person making the request”: see Hill J in McCallum v Commissioner of Taxation (1997) 75 FCR 458 (Full FedC) at 464C. At the point in time at which Sahab requested the reasons it clearly had a real interest which was directly related to its title to 69 Strathallen Avenue.

52 Sahab further submits that if when the reasons are disclosed for the 2001 decision that leads to a review of the decision which is favourable to Sahab’s contentions, then Sahab’s title would be placed in the position that it should have been in all along - the right of way should have remained on the title of 134 Sailors Bay Road.

Decision

53 Sahab’s submissions in this case are to be preferred for several reasons.

54 First, s 121 Real Property Act refers to a “person” applying to the Registrar-General for reasons, not a “registered proprietor”. There is no express legislative narrowing of the class that may apply for reasons to a particular subclass less in number than “persons dissatisfied”. There is no statutory basis to limit the class of those who may request reasons to existing registered proprietors. Indeed it is difficult to see in the language of s121 why the class of applicants for Registrar-General’s reasons should be limited, as the Registrar-General contends, to existing registered interests. Other persons who hold existing but unregistered caveatable interests could readily satisfy the test of being “persons dissatisfied”.

55 Second there is no time limit of any kind on requesting reasons within the mechanism provided by s121. Still less is there any time limit on applying to the Supreme Court for a review of the decision once the Registrar provides reasons. Express time limits on requesting reasons from public authorities for decisions and then for acting on those reasons are not uncommon: see for example s 13(2) Administrative Decisions (Judicial Review) Act 1977 (Cth). There is a practical time limit on fulfilment of the Registrar-General’s duty to provide reasons under s 121(2). The practical limit is set by the time-related discretionary factors in play when the Court is considering whether or not to make an order under s 65(1) or (2) Supreme Court Act. These time-related discretionary factors would include excessive delay, unexplained delay and any prejudice suffered by third parties during a period of delay. Sometimes too the effect of a decision may take time to be appreciated by all persons “dissatisfied” by a decision. The unconfined time period in s 121 will accommodate such cases.

56 Third, as Sahab submits, whether or not Sahab was a registered proprietor at the time of the 2001 decision, Sahab now qualifies as a registered proprietor in respect of 69 Strathallen Avenue the title that is affected by the decision in a substantial way.

57 The issues here are analogous to those thrown up by legislative structure considered by Hill J in McCallum v Commissioner of Taxation (1997) 75 FCR 458 at 464. There his Honour was considering the right of a taxpayer under the Income Tax Assessment Act 1936 (Cth) “who is dissatisfied with an assessment made in relation to the taxpayer to object against it”. His Honour found that the right to object was to be determined at the time of objection (464C) and that a person will only be “dissatisfied” in the relevant sense if that person is a person to whom the particular tax ruling is capable of having legal effect (465G).

58 The “dissatisfaction” with the Registrar-General’s decision required by s 121 Real Property Act should at least exist when the person applies for reasons. If the decision has been reversed or rescinded by the time reasons were requested, then there would probably be no grounds for “dissatisfaction”. It may be that the cause of the “dissatisfaction” arises at the time of the decision but that is not required by the provision. It is sufficient, in my view, for there to be a person “dissatisfied” in the relevant sense required by s 121(1) if that person is one who is legally affected by the decision when the person applies for reasons. Sahab is so affected. It is artificial to say, as the Registrar-General submits, that the cause of Sahab’s “dissatisfaction” is its purchase rather than the decision. When Sahab purchased 69 Strathallen Avenue the right of way was noted on the folio of the register for that property. The absence of a corresponding entry on 134 Sailors Bay Road is a cause of continuing “dissatisfaction” for Sahab.

59 It is not necessary to explore the distinctions between the various terms used in connection with standing such as “person interested” and “person aggrieved” discussed by Ellicott J in Tooheys v Minister for Business and Consumer Affairs (1981) 36 ALR 64 at 79, as subsequently considered the full Court in United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 at 527.

60 Fourth, as the Registrar submits the construction of s 121 should be approached in its statutory context with regard to the subject, scope and purpose of the Real Property Act. Section 121 is part of a mechanism to facilitate appeal or review rights under other provisions of the Real Property Act. If those appeal and review rights are not limited to the class of the registered proprietors at the time that the decision was made, then there is no reason why s 121 should bear that restriction. There is nothing in s 122 which provides for the conduct of a review by the Supreme Court which would suggest that such a time limitation should be applied. The present claims for final relief in these proceedings include a claim for a declaration that the 2001 decision caused the right of way over 134 Sailors Bay Road to be wrongfully extinguished.

61 Section 121 operates within the system of title registration and facilitates the exercise of rights that are compatible with the operation of that system. To seek reasons of this kind from the Registrar-General is merely to engage a mechanism embedded within the Real Property Act which is compatible with the system of indefeasibility of title. If Sahab has the right to alter the register legitimately by statutory mechanisms available under s 122 Real Property Act and which themselves are not incompatible with the system of indefeasibility, why should it not be able to seek reasons for the Registrar-General’s decisions so as to facilitate those rights? Indeed the potential source of any alleged incompatibility with the system of indefeasible title is not the requesting of the Registrar-General’s reasons but the right of review itself in s 122. It should also be noted that the right to apply for reasons under s 121 may assist the pursuit of other rights against the Torrens Assurance Fund under Part 14 Real Property Act.

62 This is all the more so when consideration is given to other aspects of the legislation introduced by the Real Property Amendment (Compensation) Act 2000 (NSW). The Registrar-General’s duty in s 121 Real Property Act to provide reasons serves the purpose of facilitating a variety of review and compensation claims both through the Courts and by separate administrative processes. The provision of reasons to persons entitled to take advantage of these various processes assists in facilitating access to them. The restrictions being propounded by the Registrar-General in this case do not sit easily with the fact that a purpose of the legislation was to make these compensation processes accessible.

The History of the Provision

63 The Real Property Amendment (Compensation) Act substantially reworked the provisions of the Real Property Act concerning civil rights and remedies and claims for compensation against the Torrens Assurance Fund. The Real Property Amendment (Compensation) Act introduced changes to the Real Property Act in this area and enacted s 121 and s 122 in their current form. The Real Property Amendment (Compensation) Act commenced on 15 September 2000. The current form of s 121 and s 122 were the applicable provisions at the time that the Registrar-General made the 2001 decision.

64 I have reached my conclusions as to the construction of s 121 Real Property Act without the need to consider its legislative history. The provision is not ambiguous or obscure. The parties did not suggest that I should have recourse to material not forming part of the Real Property Act or the Real Property Amendment (Compensation) Act. Nevertheless the amendments that have occurred to this part of the Real Property Act assist in confirming the construction I have given to the provision.

65 Section 121 was markedly different in relevant respects prior to the enactment of the Real Property Amendment (Compensation) Act. Specifically the class of persons who were entitled to seek reasons was narrower than the persons who could seek such relief under the current s 121. The pre 2000 version of s 121 was the following:

“Real Property Act 1900 No 25
Historical version for 1 January 2000 to 14 September 2000

121 Registrar-General may be required to justify certain actions

(1) If upon the application of any proprietor to have land brought under the provisions of this Act, or to have any dealing registered or recorded, or to have any certificate of title, order for foreclosure or other instrument issued, or to have any act or duty done or performed which, by this Act, is prescribed to be done or performed by the Registrar-General, the Registrar-General refuses so to do, or if such proprietor is dissatisfied with the direction upon the application given by the Registrar-General as hereinbefore provided, such proprietor may require the Registrar-General to set forth in writing under the Registrar-General’s hand the grounds of the Registrar-General’s refusal or the grounds upon which such direction was given, and such proprietor may, if he or she thinks fit, commence proceedings in the Supreme Court for relief under this section.

(2) The Court may:
(a) order that public notice, by advertisement or otherwise, be given of the proceedings,
(b) order, of its own motion or on the application of any person, that a person be added as a party to the proceedings and make orders ancillary thereto as to service or otherwise,
(c) order, in respect of any defendant, that service upon the defendant of the originating process and of all other documents in the proceedings be dispensed with.
(3) Subject to the Supreme Court Act 1970, the Court shall not, in respect of any defendant, order that service upon the defendant be dispensed with unless the Court is satisfied that:
(a) the defendant cannot be found in New South Wales,
(b) it is uncertain whether the defendant is living, or
(c) service cannot be effected upon the defendant without expense disproportionate to the value of the defendant’s interest.

(4) Where service upon a defendant is dispensed with under this section, the defendant shall be taken to have submitted to all orders made by the Court in the proceedings.

(5) The Court shall, if any question of fact is involved, decide that question.

(6) The Registrar-General may, with the leave of the Court, rely upon grounds other than those set forth by the Registrar-General under subsection (1).

(7) The Court:
(a) shall either:
(i) uphold the refusal or direction of the Registrar-General, or
(ii) order the Registrar-General to take action to give effect wholly or partly to the application of the proprietor or order that such direction as the Court thinks fit be substituted for the direction of the Registrar-General, and
(b) shall make such further or other order as the Court thinks fit.

(8) This section does not apply to the determination of the position of a boundary under Part 14A.”

66 It can be seen from an analysis of the pre-2000 s 121 that only proprietors were entitled to seek reasons under s 121(1). This is reinforced by the words, “…such proprietor may require the Registrar-General to set forth in writing under the Registrar-General’s hand the grounds of the Registrar-General’s refusal or the grounds upon which such direction was given…” Other “persons” might be added to proceedings once they were commenced in the Supreme Court under s 121(2)(b). The pre 2000 s 121 may have given the Registrar-General a basis to argue that only registered proprietors current at the time of his decision were capable of being “dissatisfied” and entitled to reasons. The change that occurred with the Real Property Amendment (Compensation) Act broadened the class entitled to apply for reasons from the Registrar-General.

67 There are other differences between the pre 2000 legislation and the present legislation. The pre 2000 s 121 did not contain a clear statement, such as the present s 121(2) does, that once the relevant s121(1) circumstances are established that the Registrar-General has “a duty” to provide the reasons for which the person has applied. The present form of s 121(2) aids access to s65 Supreme Court Act relief in obtaining the Registrar-General’s reasons. This difference is consistent with the other changes effected through the Real Property Amendment (Compensation) Act to widen and facilitate administrative and curial remedies in relation to the Registrar-General’s decisions about entries to the register.

68 Section 122 of the pre 2000 legislation was also in terms materially different to the current s 122. The existing legislation essentially splits the obligations found in the pre 2000 s 121 and places them in two provisions, now found in the present s 121 and s 122.

69 The Real Property Amendment (Compensation) Act was developed following upon a reference to the New South Wales law Reform Commission in January 1988 to inquire into the operation of the compensation provisions of the Real Property Act. In August 1996 the Law Reform Commission produced its final report, entitled “Torrens Title: Compensation for Loss” on which the Real Property Amendment (Compensation) Act was largely based. The legislation was developed from the Report over the next three years. Neither the second reading speech for the Real Property Amendment (Compensation) Act, the explanatory memorandum or the Law Reform Commission’s report consider the reasons for the precise changes to the terms of s 121 that are in focus in this case.

The Registrar-General’s Submitting Appearance

70 The Registrar-General has filed a submitting appearance pursuant to r 6.11 Uniform Civil Procedure Rules 2005 (NSW). Submitting appearances are provided for in UCPR r 6.11 as follows:

“6.11 Defendant may submit to judgment by notice of appearance
(cf SCR Part 11, rule 4 (3), (4) and (5))

(1) A defendant who intends to take no active part in proceedings may include in the defendant’s notice of appearance a statement to the effect that the defendant submits to the making of all orders sought and the giving or entry of judgment in respect of all claims made, to which may be added the words “, save as to costs”.

(2) Except by leave of the court, a defendant who has filed a notice of appearance containing a statement referred to in subrule (1) may not file a defence or affidavit or take any other step in the proceedings.

Note. See rule 20.34 which allows the defendant in proceedings on a liquidated claim to file a statement acknowledging the whole of the amount of the claim.”

71 The Registrar-General seeks the leave provided for in UCPR r 6.11(2) to make submissions generally in the proceedings on the matters raised by Sahab and Castle. Sahab opposes the grant of leave and says that the Registrar-General should file an ordinary appearance under UCPR r 6.9. Sahab says the Registrar-General should never have filed a submitting appearance given the relief being sought, which primarily involves his statutory responsibilities.

72 This raises the question whether the Registrar-General’s conduct of the proceedings to date is incompatible with his maintaining a submitting appearance and if it is what should now follow from that. It is appropriate to resolve this question now because of its possible costs consequences. Costs will usually not be ordered against a party, usually an inferior court or tribunal subject to judicial review, where the party files a submitting appearance under UCPR r 6.11 and thereby submits itself to any order of the reviewing court: El Deeb v Magistrates Court of South Australia (1999) 72 SASR 596, at 598 per Doyle CJ, Bleby J and Martin J concurring. This is the usual rule except in a clear case of serious misconduct or where the decision reviewed was perverse in the sense of revealing obstinacy in error: Willesee v Willessee (1974) 2 NSWLR 275 and Cummins v Mackenzie (1979) 2 NSWLR 803 at 810-812. Analogous principles apply to administrative decision makers such as local government authorities: Develtor Property Group P/L v Newcastle City Council [2001] NSWLEC 47, at [42].

73 There are likely to be some cost consequences of the current motion. It can be anticipated that Sahab, for example, may wish to argue, whatever the outcome of the claim for principal relief that the Registrar-General should pay the costs of the current motion. Whether the Registrar-General appears as a submitting party or otherwise is a threshold question at least for considering the Registrar-General’s liability to costs.

74 The Registrar-General’s submitting appearance pursuant to UCPR 6.11 comes after several procedural steps. These may be briefly outlined. In the Summons commencing these proceedings and filed on 7 November 2008 Sahab joined the Registrar-General as the sole defendant against whom relief was sought. The Registrar-General appeared in answer to that summons on 12 November 2008 pursuant to UCPR r 6.9. The Registrar-General then filed an Amended Notice of Appearance on 17 December 2008. In the amended notice the Registrar-General declared as UCPR r 6.11 requires that he “submits to the making of all orders sought, and the giving or entry of judgment in respect of all claims made, save as to costs.” This is the Registrar-General’s present submitting notice.

75 Castle then sought to be joined as a defendant by notice of motion filed on 23 December 2009. That motion was contested before McLaughlin AJ on 6 February 2009. Castle sought joinder on the basis that its property rights were affected and submitted that it should have been joined initially. Sahab resisted the joinder on the basis that under UCPR r 6.24 the Registrar-General was the appropriate and only defendant in the statutory procedure being invoked in the proceedings. In the result Castle was joined as the second defendant and Sahab was ordered to pay both Castle’s and the Registrar-General’s costs of the motion.

76 After argument took place before me on 26 and 27 May 2009 the Court gave notice to the Registrar-General and requested him to consider whether he wished to appear and make submissions on the issues which were the subject of the proceedings. The Registrar-General appeared by counsel, Mr Walsh on 5 June 2009. Orders were made that day directing the Registrar-General either to file an unconditional appearance or to file any application for leave pursuant to UCPR r 6.11(2). When the Registrar-General filed submissions on the motion he also sought leave to put submissions generally in the case notwithstanding his submitting appearance.

77 In addition to seeking this leave the Registrar-General made submissions. The Registrar-General opposed the contention that he had a duty to provide reasons for the 2001 decision. He put submissions as to the proper construction of relevant provisions of the Real Property Act.

78 A question then arises as to whether or not in light of the submissions the Registrar-General has put and may yet put in the proceedings the Registrar-General can maintain a submitting appearance. The Registrar-General maintains he should be permitted to continue to conduct the proceedings with the current submitting appearance under UCPR r 6.11. Sahab contends that he cannot.

79 The terms of UCPR r 6.11 specify that a submitting appearance means that a party so appearing submits to all orders sought (save as to costs). UCPR r 6.11(2) makes clear that the prohibition in UCPR r 6.11(1) of acting without leave extends to the filing of pleadings and evidence and the taking of “any other step in the proceedings”. Authority confirms that a party who has filed a submitting appearance cannot contest the plaintiff’s claim or take any other step in the proceedings: Fitter v Public Trustee [2007] NSWSC 1487.

80 The Registrar-General will not be granted leave under UCPR r 6.11(2). The Registrar-General has actively opposed the relief Sahab claims on the motion. The Registrar-General has contended for a particular construction of relevant provisions of the Real Property Act. Thereby he has taken an adversarial role in the proceedings that is not just inconsistent with the terms of a UCPR r 6.11 submitting appearance but his actions are likely to have increased the costs of others parties such as Sahab. The Registrar-General must either be ordered to file a UCPR r 6.9 appearance or granted leave under UCPR r 6.11(2).

81 A grant of leave under UCPR r 6.11(2) is theoretically open but this is not the case to grant leave. The Registrar-General points to the fact that the Court itself has indicated that the issues between the parties may raise issues of general importance about the powers and functions of the Registrar-General when the Court notified the Registrar-General of the proceedings. Mr Walsh says the Registrar-General is now responding to the Court by putting submissions on those issues. The Court is much assisted by these submissions. The Registrar-General says through his counsel in substance that he does not wish to take an adversarial role. However the Registrar-General’s opposition to Sahab’s motion goes further than providing general submissions on the Registrar-General’s powers and functions. The Registrar-General’s submissions in opposition to Sahab’s motion go beyond a submitting appearance. They sufficiently resemble an adversarial stance, that leave will not be granted.

82 In any event there are no real costs advantages for the Registrar-General in maintaining a submitting appearance. Even a submitting party may be ordered to pay costs if the submitting party does take an active role in the proceedings beyond procedural matters: see for example R (Davies) v Birmingham Deputy Coroner [2004] 1 WLR 2739 and De Haas v Williams (2004) 132 LGRA 195. There is therefore no real disadvantage to the Registrar-General in ordering the filing of a UCPR r 6.9 appearance.

83 Finally if leave were not to be granted, the Registrar-General has not sought in the alternative to be permitted to withdraw either his submissions on the motion or his other submissions. Thus the proper order in the circumstances is to order the Registrar-General to file an appearance in the proceedings under UCPR r 6.9.

Conclusion and Orders

84 I have found that the Registrar-General has a duty to provide Sahab with reasons for the 2001 decision. I have also found that the Registrar-General must withdraw his submitting appearance and file a full appearance under UCPR r 6.9. It is necessary to give directions to allow the parties to make such supplementary submissions as they are advised once they have received the Registrar-General’s reasons. Although the plaintiff has been successful on this motion the costs of the motion should be decided at the same time as costs orders in relation to the proceedings as a whole. Costs will therefore be reserved.

85 I make the following orders and directions:

(1) Order the first defendant to file an appearance in accordance with UCPR r 6.9 within 14 days, namely by Monday 9 November 2009.

(2) Order the first defendant to provide the plaintiff with the first defendant’s reasons for his decision on 22 November 2001 to delete the covenants and right of way in Transfer no. A752953 from the folio of the register for folio identifier A/404929 (the 2001 decision) within 21 days of the date of this order, namely by Monday 16 November 2009.

(3) Direct the plaintiff to file any supplementary final submissions dealing with issues arising from the first defendant’s reasons for the 2001 decision by Monday 23 November 2009.

(4) Direct the first and second defendants to file any supplementary final submissions either in reply to the plaintiff’s submissions pursuant to direction (3) or otherwise dealing with issues arising from the first defendant’s reasons for the 2001 decision by Monday 30 November 2009.

(5) Direct the plaintiff to file any submissions in reply to the first or second defendants’ submissions by Monday 7 December 2009.

(6) Grant liberty to the parties to apply on one day’s notice.

(7) Costs are reserved.

86 It should not be necessary for the parties to put any further oral submissions to the Court in relation to the principal relief sought. Supplementary submissions may be provided in writing in accordance with these directions. I have granted liberty to apply. This is available if any adjustment is required to the submissions timetable to accommodate the needs of a party.

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26/08/2010 - Typographical errors - Paragraph(s) 1. In para [5]- the addition of “Bay” after “Sailors” in line 1.2. In para [8] each of the brackets in the 2nd last sentence have been changed to commas. Folio Identifier A/404929 refers to the Sailors Bay Road property.3. In para [9] “sue”has been changed to “use” in the 7th last line of the quote. 4. In para [10] a comma has been added after “error” in the last line of that paragraph.5. In para [12.3] “(sic)” has been added after “servient” in the 1st line. 6.(a) In para [23] “to” has been deleted in the 1st line of the last paragraph of the quote in that paragraph.(b) In para [23] “practise” has been changed to “practice” in the 4th last line of that paragraph.7. In para [28] "may" has been changed to "make" in the 2nd line of the quote.8. In para [44] "as" has been deleted from the 1st line of that paragraph.9. In para [69] the year “August 1997” has been changed to “August 1996”.10. All references to “Registrar General” have been changed to “Registrar-General” in the judgment.