Sahab Holdings Pty Limited v Registrar-General [No 2]
[2010] NSWSC 162
•8 March 2010
CITATION: Sahab Holdings Pty Limited v Registrar-General & Anor [No 2] [2010] NSWSC 162 HEARING DATE(S): 26-27 May 2009, 5-26 June 2009, 26 October 2009
JUDGMENT DATE :
8 March 2010JURISDICTION: Equity JUDGMENT OF: Slattery J at 1 DECISION: Summons dismissed. CATCHWORDS: REAL PROPERTY - Torrens title - application for review of Registrar General's 2001 decision removing a right of way from the folio of the register for servient tenement and for review of 2008 decision not to restore the right of way and for relief under Real Property Act ss 12, 122, 136 & 138 - construction of terms of right of way - whether the Registrar General can be ordered to alter the register to restore a right of way under s 138(3) Real Property Act - not proceedings to which s 138 applies - correction of an error by Registrar General would not be authorised under either s 136 (1) or 12 (1) (d) Real Property Act - s 136 only applies to restricted case of wrongful retention of instruments - not established Registrar General made an 'error' as defined in s 12 (1) (d) - application under s 122 for review of Registrar General's decision fails - only available where Registrar General refuses to perform a duty and where action otherwise available to Registrar General - no statutory basis to interfere with the Registrar General's 2001 decision or 2008 decision - summons dismissed LEGISLATION CITED: Conveyancing Act 1919 (NSW), s 88K
Real Property Act 1900 (NSW) ss 12, 49, 80I, 80J, 121, 122, 136, 138
Supreme Court Act 1970 (NSW) s 65
Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 6.11(2)CATEGORY: Principal judgment CASES CITED: Ex parte Gallagher (1908) 8 SR (NSW) 230
McGuinness v The Registrar General (1998) 44 NSWLR 61
Pirie v Registrar General (1962) 109 CLR 619
Sahab Holdings Pty Limited v Castle Constructions Pty Limited [2009] NSWSC 1143
Scallon v Registrar General (1988) 12 NSWLR 514
St Atanoub Properties Pty Limited v Registrar-General [2002] NSWSC 615
State Bank of New South Wales v Berowra Waters Holdings Pty Limited (1986) 4 NSWLR 398
William v James (1867) LR2CP 577PARTIES: 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 WarrenSOLICITORS: Plaintiff: Kanjian & Company
First Defendant: Department of Land Legal Services
Second Defendant: Domain Legal
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
SLATTERY J
MONDAY 8 MARCH 2010
5563/08 SAHAB HOLDINGS PTY LIMITED (ACN 002 728 216) v REGISTRAR-GENERAL & CASTLE CONSTRUCTIONS PTY LIMITED (ACN 001 602 188) [No 2]
JUDGMENT
1 HIS HONOUR: This second judgment in these proceedings deals with issues of final relief. The Court gave its first judgment on 26 October 2009: Sahab Holdings Pty Limited v Castle Constructions Pty Limited [2009] NSWSC 1143. In the first judgment the Court decided that the Registrar General had a duty to give reasons for a decision challenged as part of the claims for final relief.
2 An introduction assists an understanding of the facts and issues in these proceedings and to reduce the need for reference back to the first judgment.
Introduction
3 Sailors Bay Road runs in an east west direction in the Sydney suburb of Northbridge. Strathallen Avenue forms the stem of a “T” intersection with Sailors Bay Road on its southern side. Strathallen Avenue extends further south away from the Sailors Bay Road shopping precinct towards the suspension bridge connecting Northbridge with Cammeray. These proceedings concern two parcels of land near the southeastern corner of this “T” intersection.
4 In October 1921 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 a parcel of land at 134 Sailors Bay Road. They benefited a parcel of land at 69 Strathallen Avenue.
5 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).
6 Castle is still the registered proprietor of 134 Sailors Road. Sahab Holdings Pty Limited (Sahab) purchased 69 Strathallen Avenue in early 2007. As plaintiff Sahab claims principal relief in these proceedings to restore the right of way to the folio of the Register for 134 Sailors Bay Road. Castle, the second defendant, resists that claim. Sahab’s claim for principal relief was heard on 26 and 27 May 2009 and 5 and 26 June 2009. At the commencement of that hearing the Registrar General, the first defendant, had filed a submitting appearance.
7 During the hearing on 27 May the Court gave leave to Sahab to advance its claim for principal relief by moving for the Registrar General to give reasons for the 2001 decision. The motion was filed on 29 May and returnable on 5 June. The Court also invited the Registrar General to consider whether he wished to make submissions on the issues in the proceedings. The Registrar General appeared on 5 June 2009.
8 On 5 June the Court directed the Registrar General either to file an unconditional appearance or to file an application for leave under Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 6.11(2) to make submissions despite filing a submitting appearance. When filing submissions on Sahab’s motion for reasons the Registrar General sought leave to put submissions despite his filing a submitting appearance. The Registrar General filed submissions as to the powers and functions of the Registrar General. The Court's first judgment refused the Registrar General leave under UCPR r 6.11(2). The Court directed instead that the Registrar General file an unconditional appearance under UCPR r 6.9: Sahab Holdings Pty Limited v Castle Constructions Pty Limited [2009] NSWSC 1143 at [85].
9 By their written submissions and at the further oral hearing on 26 June the Registrar General and Castle contended that the Registrar General had no duty to provide reasons at the request of a person, such as Sahab, who was not the registered proprietor of 69 Strathallen Avenue when the 2001 decision was made. My first judgment decided the issue raised by Sahab’s motion and ordered the Registrar General to provide reasons for the 2001 decision: Sahab Holdings Pty Limited v Castle Constructions Pty Limited [2009] NSWSC 1143 at [85]. The Registrar General provided those reasons by 16 November 2009 in conformity with the Court’s orders.
10 In the first judgment on 26 October 2009 the Court also directed a timetable for the parties to advance or resist the claims for final relief based on the Registrar General’s reasons, once they were available. The parties took advantage of that opportunity and filed further written submissions in accordance with a timetable that concluded on 7 December 2009.
11 The events that led to the 2001 cancellation of the right of way and the covenants begin in 1921 when they were created in the Transfer of a portion of a large parcel of land.
The Middleton Transfer
12 In early October 1921 the lands that later became 134 Sailors Bay Road and 69 Strathallan Avenue were part of a larger parcel of land held in common ownership. Walter William Charles Middleton and Alice Beatrice Middleton were registered proprietors as joint tenants of a single parcel of land comprised of two lots, Lot 7 And Lot 3, (both then contained in Certificate of Title Volume 2978 Folio 91) which land had frontages on both Sailors Bay Road and Strathallan Avenue. The Northern boundary of Lot 7 in Section 3 of DP 7122 was adjacent to Sailors Bay Road. The Western boundary of Lot 3 in section 3 of DP 7122 was adjacent to Strathallan Avenue. Both frontages were situated some distance away from the intersection of Sailors Bay Road and Strathallan Avenue. This parcel of land had a total area of 1 rood 9 1/2 perches. A diagram of the land taken from Certificate of Title Volume 2978 Folio 91 minutes of the (exhibit C) is reproduced as Figure 1 in the Appendix to this judgment.
13 Both Lot 3 and Lot 7 were subdivided into the smaller parcels of land that are the subject of these proceedings. They were each subdivided once but the two subdivisions occurred at different times. Mr and Mrs Middleton subdivided Lot 3 themselves in October 1921. Their executors subdivided Lot 7 in the late 1950s.
14 Both Lot 3 and Lot 7 were subdivided the same way, into approximately equal parts down the long axis of each lot. Lot 3 was divided along a line running east west from Strathallan Avenue to Lot 7. Later Lot 7 was subdivided along a line running North South from Sailors Bay Road to Lot 3.
15 The subdivision of Lot 3 in October 1921 created 69 Strathallan Avenue and the right of way and covenants the subject of these proceedings. This subdivision and the transfer creating it are explained and analysed immediately below. The subdivision of Lot 7 is considered later in this judgment. Subdivision of Lot 7 led to the creation of two street addresses in Sailors Bay Road, numbers 134 and 136. 134 Sailors Bay Road is the westernmost of the two lots.
16 In October 1921 Mr and Mrs Middleton divided Lot 3 in the manner described, creating two titles having frontages at 67 and 69 Strathallan Avenue respectively. Lot 67 is the southernmost of these two lots in Strathallan Avenue. It was retained by Mr and Mrs Middleton for a longer period and later sold. Lot 67 has no significance to the issues in these proceedings.
17 On 26 October 1921 Mr and Mrs Middleton transferred 69 Strathallen Avenue to one Cyril Hugh Davis by Memorandum of Transfer A752953 (the Middleton transfer). The Middleton transfer recorded the terms of the right of way, a fencing covenant and a covenant prohibiting use of 69 Strathallen Avenue as a butcher shop. The right of way gave rights over the part of Lot 3 that later became 134 Sailors Bay Road Northbridge.
18 Three parts of the Middleton transfer are significant, the statement of the estate transferred and the encumbrances, the sketch plan marked "A" and the schedule of covenants marked "B".
19 The Middleton transfer recited Mr and Mrs Middleton as the proprietors of an estate in fee simple but subject to the encumbrances notified therein. It recited the consideration paid. It described the Middletons as "the transferors" and Mr Davis as "the transferee". The statement of the estate transferred and encumbrances was then set out as follows (without reproducing the precise layout of the words):
“[The transferors] hereby transfer to the transferee all such our Estate and Interest in ALL the land mentioned in the schedule following -- County Cumberland, Parish Willoughby, Part of Vol. 2978 Fol. 91 [and being] Part Lot 3 of Section 3 deposited plan 7122 as shown on sketch hereto annexed and marked with the letter "A" (such land being therein edged in red) together with the right of way shown in the said sketch and therein edged blue (such right of way being limited as stated in the covenants hereinafter mentioned) -- and the transferee covenants with the transferors as set out in the schedule of covenants hereto annexed and marked "B" – “
20 Under the heading “ENCUMBRANCES, &C., REFERRED TO.” There appears the words "subject to the covenants and conditions contained in Instrument of Transfer number A47502". Below these words the Middleton transfer was dated 26 October 1921 and was apparently signed by Mr and Mrs Middleton above the description "transferors" and by Mr Davis above the description "transferee".
21 The sketch plan marked "A" appears on the second page of the Middleton transfer. The page is headed “Sketch -- A”. Below the sketch on this second page the sketch is identified by the following words, "This is the sketch marked “A" and referred to in the annexed Transfer dated 26 October 1921 from Walter William Charles Middleton and Alice Beatrice Middleton to Cyril Hugh Davis”. On this page Mr and Mrs Middleton also sign against the description "transferors" and Mr Davis signs over the description "transferee".
22 The second page of the Middleton transfer, "Sketch A" is reproduced as Figure 2. Is not possible to reproduce the sketch in colour in this judgment but the coloured portions can be precisely described. In Figure 2 (reproduced in the Appendix to this judgment) the outline of the parcel of land that became 69 Strathallan Avenue, and having the marked dimensions of 140 feet by 9 feet 6 inches, is edged in red. In Figure 2 the part of Lot 7 forming a box around the words "Right-of-Way -- 10 feet wide" is edged in blue.
23 The schedule of covenants marked "B" is on the third page of the Middleton transfer. As is set out above, the first page of the Middleton transfer recorded that "the transferee covenants with the transferors as set out in the Schedule of Covenants". The covenants in the Schedule of Covenants in the Middleton transfer are difficult to read. The covenants recorded in the Certificate of Title (Volume 3253 Folio 73) issued to Mr Davis after the transfer, were equally difficult to read. Despite difficulties with this handwriting, counsel for the parties were able to agree upon what was recorded. I should record that in my previous judgment some errors appear in the transcription from the Schedule of Covenants. These have been corrected in the version below which is the version agreed between counsel:
“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 transferors) our Executors, Administrators and Assigns other than purchasers on sale covenants with us (the transferors) that no fence 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 expense 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 any person or persons having dealings with the transferee and the transferee shall pay to the transferors 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 sue 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.”
24 There was a minor aspect of the wording of the schedule of covenants which was not agreed between counsel but the difference is not material to the matters in issue between the parties.
25 Sahab’s first step towards any form of final relief depends upon it establishing the correctness of its construction of the words of the two covenants and the right of way. Sahab’s case is that Castle misled the Registrar General with a wrong construction of the terms of the right-of-way, which led to error in the Registrar General’s 2001 decision by which he removed reference to it from the Folio of the Register relating to 134 Sailors Bay Road. The convenient starting point for the construction argument is to examine what Castle put to the Registrar General before he made the 2001 decision. Castle's contention at that time was, and now is, that the covenant and the right-of-way created in the Middleton transfer were only to apply during the ownership of 69 Strathallan Avenue by the original transferee, Cyril Hugh Davis. In contrast, Sahab’s principal contention is that the Middleton transfer creates a permanent right of way, which was not personal to the original transferee Mr Davis.
The Castle Request and the 2001 Decision
26 By request dated 3 September 2001 (Registered numbers 7924027 and 7924028 - the Castle request) Castle applied to cancel the covenant and right of way in the Middleton transfer from the Folio of the Register for 134 Sailors Bay Road (being Folio Identifier A/404929). Castle supported its application with a three paragraph sworn statutory declaration of the solicitor then acting for Castle on the matter, Mr William Samuel Dockrill. Mr Dockrill declared in support of the Castle request:
“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.
3. Pursuant to Transfer No. A802709 the said Cyril Hugh Davis transferred the servient 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.”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.
27 Annexure A to Mr Dockrill’s statutory declaration was Transfer A802709 showing when Mr Davis ceased to be the registered proprietor of 69 Strathallan Avenue. 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.
28 The Castle request was successful. On 22 November 2001 by dealing 7924028 the Registrar General cancelled the covenants and right of way recorded in the Middleton Transfer from the Folio of the Register for 134 Sailors Bay Road Northbridge (A/404929). Reference to the covenant and the right-of-way in the Middleton transfer was not removed from the title to 69 Strathallen Avenue. Although Castle succeeded with the Registrar General, it did not advance the correct construction of the terms of the right-of-way and the covenants.
The Construction of the terms of the Right of Way and the Covenants
The Preferred Construction
29 In summary, properly construed the Middleton transfer created a permanent right of way over the land, which is now 134 Sailors Bay Road. The rights conferred on the registered proprietor of 69 Strathallan Avenue did not end when Mr Davis ceased to be its registered proprietor. The proper construction of the Middleton transfer is that the words of limitation in the right-of-way, set out in the Schedule of Covenants are just that, words of limitation. The existence of the right of way is not conditional upon the continued operation of any of the covenants. The covenant relating to the right of way still continues. If the covenant relating to the right of way has come to an end, it did so when Mr and Mrs Middleton sold the burdened land, Lot 7 DP 7122 not when Mr Davis sold 69 Strathallen Avenue. Sahab’s arguments about the proper construction of the right-of-way in the covenants are generally persuasive although they are not fully accepted. There are several indications of the preferred construction in the language of the Middleton transfer.
The Covenants do not terminate the right-of-way
30 First, there is an important relationship between the words creating the right-of-way in the Middleton transfer and the text of the Schedule of Covenants. The words creating the right-of-way refer to the transfer of the land at 69 Strathallan Avenue described in “Sketch A” and then continue, "... together with the right-of-way shown in the said sketch and therein edged blue (such right-of-way being limited as stated in the covenants hereinafter mentioned) –”. The words of transfer and the grant of the right of way, “together with the right of way…” and “Sketch A” bespeak a permanent grant of a right of way. The only restriction on the scope of the right of way to be enjoyed is the express reference to the right of way “being limited as stated in the covenants…” (Emphasis added). Nothing in the words of transfer and grant themselves indicate that the right of way could be wholly brought to an end through the words of limitation in the Schedule of Covenants. It would be surprising therefore if a mechanism to end the right of way altogether were found in the Schedule of Covenants, which covers several different subjects.
31 Only the second of the three covenants created in the Schedule of Covenants is the transferee’s covenant about the use of and the liability to maintain the right-of-way. The other two covenants in the Schedule of Covenants, a fencing covenant and a covenant against operating 69 Strathallan Road as a butcher's shop, have no relationship to the right-of-way.
32 Second, inside the Schedule of Covenants the words that introduce a temporal limitation on the obligations of the transferee, contemplate the ending only of the covenants themselves and not the ending of the right of way. The introductory words are “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 transferors our Executors Administrators and Assigns other than purchasers on sale covenants with us (the transferors) … that no fence shall be erected…” (Emphasis added) In their ordinary meaning these words, if read distributively across all three covenants, merely qualify the application of the covenant limitation to the right of way (not the right of way itself). It is difficult to make the words of any of the covenants work to rescind the grant at all.
33 Third, merely because the grant of the right of way is expressed in the Middleton transfer to be “limited as stated in the covenants hereinafter mentioned” does not mean that every limitation found in the operation of the covenants must be a limitation on the grant of the right-of-way. This seems to be the error of reasoning that has occurred in the arguments supporting the conclusion that the right-of-way comes to an end when one or other of 69 Strathallan Avenue or 134 Sailors Bay Road was sold by its original owners.
34 Fourth, the principle is that absent a contrary intention the grant of an easement should be construed against the grantor: William v James (1867) LR 2 CP 577 at 581. Castle is the successor to the original grantors, the Middletons the grantor of the easement. It is not necessary to invoke here what is a rule of construction of easements to resolve an ambiguity. I have found here that the meaning of the words of the right-of-way in the covenant in the Middleton transfer are clear. Were it necessary to deploy this principle of construction it would also assist the conclusion I have reached
No event affects the life of the covenant relating to the right-of-way
35 Fifth, the opening words of the Schedule of Covenants should be read as applying only to the first covenant (the fencing covenant). It is argued that the words "but only during the ownership thereof by us (the transferors) our Executors Administrators and Assigns other than purchasers on sale ” placed before the first covenant trigger an event that affects the life of the easement on disposal of the transferors’ land by sale. But that argument can only succeed if those words apply not only to the first covenant in the Schedule of Covenants but to the second covenant which relates to the use of the right-of-way.
36 It is difficult to see how they can be read to apply to the second covenant. This is first because the introductory words for all the covenants are different and seem to be tailored to fit the subject matter of each covenant. The content of the fencing covenant refers to the need for the transferee's consent to the erection of certain fences. The covenant would become unworkable after a disposal of the Middleton's land by sale. The same cannot be said of the other two covenants which could operate equally well for the Middleton's or any subsequent purchaser from them. Second, the structure of the Schedule of Covenants strongly suggests three independent covenants, especially the second covenant, "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 more than ...". The second covenant creates a standalone description of the transferee's covenant obligation without the need to import any earlier wording from the first covenant.
Impact of this construction on the Castle request
37 Sixth, the Castle request that led to the Registrar General's 2001 decision was wrong even on its own assumption that the Schedule of Covenants was capable of bringing the right-of-way to an end upon a disposal by sale. The “transferors” referred to in the opening words of the first covenant, "but only during the ownership thereof by us (the transferors)" are clearly the Middletons, not Mr Davis. The Castle request to the Registrar General is in error in suggesting that these words meant that the covenant and the right-of-way "were only to apply during the ownership by the original transferee, Cyril Hugh Davis".
Castle's arguments
38 Most of Castle’s arguments are to the contrary of and have been answered by the construction of the Middleton transfer that I have stated above. One of Castle's arguments deserves special mention though. Counsel for Castle, Mr Warren, submits that particular attention should be given to the words that establish the right-of-way "such right-of-way being limited as stated in the covenants hereinafter mentioned" (Castle’s emphasis added). Mr Warren emphasizes that the words refer to a number of covenants, not merely one covenant. He then submits, "if the right-of-way was not limited to the ownership by the transferors, other than purchasers on sale, there would be no need for these words to be included when creating the right-of-way as the right-of-way and covenant as to use would run for an indefinite period of time over the servient tenement." The difficulty with this argument is that if the content of the covenant does not obviously apply to the right-of-way it is difficult to see how it can limit the right-of-way.
39 Having considered the legal effect of the Middleton transfer it is now necessary briefly to outline the other relevant events concerning the subdivision and disposal of 134 Sailors Bay Road and 69 Strathallan Avenue.
Events between 1921 and 2001
40 Approximately six months after the Middleton transfer in October 1921 the Middletons’ appear to have sold the southernmost portion of Lot 3, namely 67 Strathallan Avenue. This sale is to be inferred from the fact that when a new certificate of title was issued to Mr and Mrs Middleton on 16 June 1922 (exhibit D) it only showed them as registered proprietors of lot seven of section 3 of DP 7122. There was no reference in this certificate of title to their ownership of any remaining part of Lot 3.
41 On 31 March 1958 the executors of the Middletons’ subdivided Lot 7 and transferred the newly created separate title for 136 Sailors Bay Road to Ella McNeill. This transfer created a right-of-way over the exact same area of the servient tenement, 134 Sailors Bay Road as the right-of-way created by the Middleton transfer and the subject of these proceedings. Also created was an easement over a small strip of land adjacent to the southern boundary of 134 Sailors Bay Road to allow access from the rear of 136 Sailors Bay Road across to the driveway on the Western side of 134 Sailors Bay Road. The course of the right-of-way is evident from the Certificate of Title (Volume 7987 Folio 98) for 134 Sailors Bay Road (part of exhibit KK1) set out in Figure 3 reproduced in the Appendix to this judgment.
42 Certificate of Title (Volume 7987 Folio 98) was issued in September 1960 for 134 Sailors Bay Road after the Middletons' executors sold that remaining property to Andrew Stuart Townsend and Dulcie Doreen Townsend. An interesting feature of this Certificate of Title is that it shows 134 Sailors Bay Road being burdened by the right of way created in the Middleton transfer but not having the benefit of the covenants created in the same transfer.
43 In June 1964 Mr and Mrs Townsend transferred 134 Sailors Bay Road to Kenneth Berkeley Jenkins and Elaine Joyce Jenkins (Exhibit 1) by memorandum of transfer J673481. Another interesting feature of the Townsend transfer to Jenkins is that it was subject to the right-of-way created by the Middleton transfer but it does not record the benefit of the covenants in the Schedule of Covenants to that transfer.
44 This is only of historical interest and I do not make use of it to construe the terms of the Middleton transfer but it is noteworthy that none of the Middleton executors, the Townsends or Mr and Mrs Jenkins, when selling or buying 134 Sailors Bay Road appeared to share Castle's view of the construction of the terms of the Middleton transfer - that the right-of-way expired after Mr and Mrs Middleton (or Mr Davis) sold their interests. It would probably have been in the interests of the vendors to attempt to remove the right of way but they did not choose to take any such action. It would equally have been in the interests of the subsequent purchasers, Mr and Mrs Townsend and Mr and Mrs Jenkins to apply to remove the right-of-way.
45 Since being in the ownership of Mr and Mrs Townsend 134 Sailors Bay Road was sold a number of times before Castle purchased it in 2001. After purchasing 134 Sailors Bay Road, Castle initiated the application described above as the Castle request, which would in due course lead to the Registrar General's 2001 decision.
46 Sahab exchanged contracts for the purchase of 69 Strathallan Avenue from Leslie Charles Howard and either Maria Howard on 22 December 2006 for a price of $900,000. The contract settled on 5 April 2007. It is uncontested in these proceedings that at the time of that purchase Sahab was aware of the 2001 decision cancelling the recording of the right-of-way in the Folio of the Register for 134 Sailors Bay Road.
The Registrar General’s Reasons for the 2001 Decision
47 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 2001 decision to extinguish the right of way. The letter submitted that there may 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.”
48 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 A752973 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 the Court.”
49 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”.
50 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.”
51 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.”
52 No other relevant information about the 2001 decision came from the Registrar General before Sahab filed its motion of 29 May 2009 seeking an order pursuant to s 121 (2) Real Property Act 1900 (NSW) and s 65 Supreme Court Act 1970 (NSW) that the Registrar General provide reasons for accepting the Castle request.
53 The first judgment ordered the Registrar General to provide reasons for the 2001 decision in the following terms:
“[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.
(7) Costs are reserved.”(6) Grant liberty to the parties to apply on one day’s notice.
54 In conformity with the Court’s orders made on 26 October 2009 the Registrar General provided the court and the parties on 13 November 2009 with a copy of Minute paper 4(i) of the Registrar General's Minute papers for requests 7924027 and 7924028 which records the Registrar General’s reasons for the registration of Request 7924028, the Castle request. Though produced in the course of submissions, and now the subject of submissions itself, this document and the solicitor's letter providing it has not been tendered in evidence. Subject to the right of all parties to object to this course it will be Marked Exhibit 3 in these proceedings. The reasons for registration of the request 7924028, the Castle request, appear from Minute paper 4 (i). They are brief. Minute paper 4(i) reads, "no objection received to the application. Application is granted.”
55 In his letter of 13 November 2009 forwarding Minute paper 4(i) the solicitor for the Registrar General provided the following further explanation of the Minute paper, “For the sake of further clarity I advise that ‘objection’ referred to in any objection to the Registrar General’s notice of October 2001 to the owners of the dominant tenement giving them notice of intention to cancel the recording of the easement and restrictive covenant”. This document was the subject of submissions on all sides.
The Registrar General’s 2008 Decision
56 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.
57 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”.
58 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”.
59 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 to 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 practise, 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.”
60 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).
61 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.
62 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).”
63 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”.
64 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 words “I make the following submission” and it was as follows:
“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. “• “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:
• 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:
• 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.”(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
65 The Registrar General did not provide any other reasons for his 2008 decision. It is on the basis of this correspondence that Sahab seeks to review the 2008 decision in its principal relief.
Current State of the Two Properties
66 The evidence as to the current state of 134 Sailors Bay Road and 69 Strathallan Avenue is relatively uncontroversial. It appears from the affidavit of Sahab’s director Mr Kanjian, the affidavit of Castle's director Victor Lahoud of 22 December 2008 and a survey (exhibit E) undertaken by Theo Mossel & Associates consulting surveyors.
67 Until the end of 2001 the right of way over the driveway of 134 Sailors Bay Road was used to provide vehicular and pedestrian access to the rear yard of 69 Strathallan Avenue. Mr Kanjian says this but there is also a strong inference to similar effect from the physical layout of 69 Strathallan Avenue.
68 Since April 2007, and probably for some time before that date a two story brick building occupied the western two thirds of 69 Strathallan Avenue. The ground floor of the building is leased to and used by a dry cleaning outlet. The first floor of the building is an office. But that office is unused. The rear third of 69 Strathallan Avenue is an open courtyard which is also presently unused. Access to the first floor offices is via a metal staircase at the rear of the building. There is no access to the office from within the ground floor of the building.
69 A steel gate stands on the common boundary between 69 Strathallan Avenue and 134 Sailors Bay Road. This steel gate is now welded closed. Castle has erected a timber dividing fence which runs parallel to the steel gate and very close to it but on the 134 Sailors Bay Road side of the boundary. These barriers were put up or added to after the 2001 decision.
70 The 3.048 metre (10 feet wide) driveway still runs along the Western boundary of 134 Sailors Bay Road. It probably still services traffic to and from 136 Sailors Bay Road.
71 Once the right of way over the driveway was extinguished the occupier of the first floor office of 69 Strathallan Avenue moved out. The rear yard and first floor office of 69 Strathallen Avenue have not been able to be used ever since the right of way was cancelled. Mr Lahoud says on behalf of Castle that if the right of way is restored that the burden of it will again be imposed on its property.
Relief Sought
72 Sahab’s summons seeks several forms of relief. It seeks a declaration that the right of way created by the Middleton transfer "was wrongly extinguished" in the 2001 decision. It seeks orders pursuant to section 65 of the Supreme Court Act, or ss 122(4)(b) or 138(3) Real Property Act or otherwise by law that the Registrar General restore the right of way (or accede to Sahab’s request to restore the right-of-way) under those sections or under s 12(1)(d) or s 136(1) Real Property Act. It seeks consequential relief for delivery up of the Certificate of Title of 134 Sailors Bay Road to be amended and for notification to any mortgagee of 134 Sailors Bay Road.
73 In order to examine Sahab’s entitlement to relief, if any, it is necessary to examine the powers that the Registrar General exercised when the 2001 decision was made and whether any power now exists under the Real Property Act or otherwise to order the Registrar General to reopen and remake that decision.
The basis for the 2001 decision
74 The Registrar General was exercising his powers under s49 Real Property Act when he acceded to the Castle request and made the 2001 decision. He was not obviously exercising powers to correct an error in the Register under either s12(1)(d) or s136(1)(b) Real Property Act. Both in the material that Castle put to the Registrar General in 2001 and in the way that he dealt with that material, it appears that, as counsel for Castle submits, the Registrar General was exercising his powers under s 49.
75 Section 49(1) – (4) Real Property Act provide as follows:
“49 Cancellation of recordings of easements after abandonment, consolidation of tenements or release
(1A) The Registrar-General may, under this section, cancel a recording relating to an easement in relation to:(1) The Registrar-General may cancel a recording relating to an easement in the Register if the easement has been abandoned.
(a) all of the land benefited or burdened by the easement, or
(c) any one or one or more of the lots benefited by the easement.(b) any one or more of the lots, or part of a lot, burdened by the easement, or
(3) However, an easement is not capable of being abandoned:
(2) An easement may be treated as abandoned if the Registrar-General is satisfied it has not been used for at least 20 years before the application for the cancellation of the recording is made to the Registrar-General, whether that period commenced before, on or after, the date of assent to the Property Legislation Amendment (Easements) Act 1995 .
(a) if the easement does not benefit land, or
(c) if the easement is of a class of easements prescribed by the regulations as being incapable of being abandoned.(b) to the extent (if any) that the easement benefits land owned by the Crown, or by a public or local authority constituted by an Act, or
- (a) serve a notice of intention to cancel the recording, personally or by post, on:
(ii) in any other case—all persons having a registered estate or interest in land benefited by the easement, and(i) where the instrument creating the easement does not allow the identification of the land benefited by the easement—any person that the Registrar-General considers should receive such a notice taking into consideration the nature and location of the easement, the circumstances surrounding the creation of the easement and the physical characteristics of any relevant land, or
(b) consider any submission made by those persons (but only if the submission is made by the date specified in the notice, being a date later than one month from the date on which the notice is served).”
76 Incorrect and misleading though it was, Mr Dockrill’s statutory declaration was designed to show that the right-of-way had been abandoned by reason of the sale long ago of Mr Davis's interests in 69 Strathallan Avenue. The spare reasons for the 2001 decision that the Registrar General has produced tend to confirm that s49 Real Property Act was the power that was used. Quite apart from the material advanced by Mr Dockrill, the Registrar General considered that there was "No objection received to the applications.” and he granted the application. The lack of any objection to the Registrar General’s notice under s49(4) of the prospective cancellation of the right-of-way, sent on 8 October 2001 to Mr and Mrs Howard, furnishes some evidence of abandonment on which he could act. The evidence now before the Court of course presents a rather different picture, although why Mr and Mrs Howard had not responded to that notice remains unexplained in the evidence.
77 Castle now submits that the right-of-way was abandoned because that follows from Castle's construction of the terms of the Middleton transfer. Castle says that if the right-of-way was legally inoperative then it must have been abandoned. I disagree with Castle’s construction of the Middleton transfer. I also accept the evidence of Mr Kanjian that the right-of-way was used right up until 2001. But that was not the picture before the Registrar General in November 2001. He acted on the material identified, exercised his discretion under section 49 (1) and the matter is now concluded. The question now is whether Sahab can demonstrate that the court has power to correct that decision. Sahab relies on several powers under the Real Property Act to achieve this.
78 To the extent that the Castle request also sought cancellation of the covenants in the Middleton transfer the Registrar General was entitled to use ss 81I and 81J Real Property Act to achieve a result equivalent to the application of section 49 for similar reasons.
Section 138(3) Real Property Act
79 Sahab seeks orders under s 138(3) Real Property Act to restore the right-of-way to the Folio of the Register for 134 Sailors Bay Road. Section 138 (1) -- (3) Real Property Act provide as follows:
“ 138 Court may direct cancellation of folios and other actions related to folios
(1) A court may, in proceedings for the recovery of any land, estate or interest from the person registered as proprietor of the land, make ancillary orders of the kind set out in subsection (3), if the court is of the opinion that the circumstances of the case require any such order to be made.
(3) A court may order the Registrar-General to do one or more of the following:(2) A court may, in proceedings for the possession or production of a certificate of title or in proceedings in which the court makes a determination as to an estate or interest in land, make ancillary orders of the kind set out in subsection (3), if the court is of the opinion that the certificate of title has not been, or is not likely to be, produced by a person for the purposes of the registration of a dealing affecting the land concerned.
(a) cancel or amend a folio of the Register,
(b) cancel, amend or make a recording in a folio of the Register,
(c) create a new folio of the Register,
(d) issue a new certificate of title.”(c1) create a new edition of a computer folio,
80 The orders that may be made under s 138 (3) are ancillary orders that may be made in the circumstances to which s 138 (1) applies. The present proceedings are not proceedings "for the recovery of any land, estate or interest from the person registered as proprietor of the land". They are proceedings against the Registrar General to compel him to exercise his powers under the Real Property Act to alter the Register. Any ancillary relief sought against Castle to produce a Certificate of Title for 134 Sailors Bay Road is purely incidental to that main purpose.
81 An order will only be made under the section "if the court is of the opinion that the circumstances of the case require any such order to be made". I do not accept Castle's submission that an order could not be made under this section in any event, because Castle's construction of the Middleton transfer is correct and the right-of-way could never be used. But for its cancellation, the right-of-way was legally available to be used by Sahab. However it is difficult to see how this provision could be used to correct what is claimed to be an error in the Register when correction of an error would not be authorised under either s 136 (1) or 12 (1) (d) Real Property Act as these reasons explain below.
Section 136(1) Real Property Act
82 Sahab also submits that the Registrar General should restore the right-of-way to the Folio for 134 Sailors Bay Road under the powers conferred by section 136(1) Real Property Act. There are a number of difficulties in the present case for Sahab with this argument.
83 Section 136(1) Real Property Act provides:
(1) Where the Registrar-General is satisfied that:“ 136 Wrongful retention of certain instruments
(a) a certificate of title has been issued in error or contains any misdescription of land or of boundaries,
(b) a recording has been made in error in the Register,
(c) a certificate of title or recording in the Register has been fraudulently or wrongfully obtained, or
or where the possessory applicant has pursuant to a possessory application made by the possessory applicant become registered as the proprietor of an estate or interest in land comprised in a folio of the Register for which a certificate of title has been issued, the Registrar-General may by notice in writing to the person to whom the certificate of title or duplicate registered dealing, as the case may be, has been issued, or by whom it has been so obtained or is retained, or by whom any certificate of title or duplicate registered dealing showing any such recording is held, require such person to deliver up the certificate of title or duplicate registered dealing, as the case may be, for the purpose of it being cancelled or corrected, as the case may require.”(d) a certificate of title or duplicate registered dealing is fraudulently or wrongfully retained:
84 First, the authorities have often expressed real limitations on the scope of s 136(1). In State Bank of New South Wales v Berowra Waters Holdings Pty Limited (1986) 4 NSWLR 398 at 404 Needham J said that s 136 gave significant and extensive powers to the Registrar General but that the power of correction or cancellation of a recording made in error could not be more extensive than the power given by s 12 (1) (d) and that s 136 appeared to be restricted to cases where documents are sought by the Registrar General from persons who should not be in possession of them. In Scallon v Registrar General (1988) 12 NSWLR 514 at 520 Young J said that s 136(1) could not be called into play in circumstances where the Registrar General does not wish to avail himself of it.
85 Second, and also with relevance to s 12(1)(d), this is not a case where the 2001 decision can necessarily be regarded as making “an error” in the Register or where an recording in the Register could be treated as being "wrongfully obtained”: s 136(1)(b) and (c). The meaning of "error" in section 12(1)(d) was considered by Needham J in State Bank of New South Wales v Berowra Waters Holdings Pty Limited (1986) 4 NSWLR 398 at 403F-G. There his Honour was dealing with the registration under the Real Property Act of a discharge of mortgage in proper form, where registration of a discharge had resulted from a mistake on the part of a registered mortgagee. It was held that the discharge destroyed the charge previously binding on the land and created a new indefeasible interest. Despite the errors in the discharge Needham J found that if a notification in the Register of a document in proper form which is permitted by the Act creates "an error" merely because it makes an incorrect statement then "the Registrar General would be empowered to correct such things as caveats making incorrect claims as to interest, mortgages containing incorrect recitals, and even, one would assume, forged transfers. I do not think that section 12(1)(b) goes that far.”
86 Here the mere fact that Mr Dockrill placed an incorrect construction on behalf of Castle on the terms of the Middleton transfer does not mean that the result is an "error" in the Register. Nor does it mean that a recording in the Register has been "wrongfully obtained". The Registrar General in fact appears to have acted on some evidence of abandonment.
Section 12 and 12A Real Property Act
87 Sahab also relies upon s 12(1)(d) and s 12(3) Real Property Act to alter the Registrar General's 2001 decision and restore the easement to the Folio for 134 Sailors Bay Road. Section 12(1)(b) and 12(3) provide as follows:
(1) The Registrar-General may exercise the following powers, that is to say:“ 12 Powers of Registrar-General
….
- (b) The Registrar-General may summon any person referred to in paragraph (a) or any person who to the Registrar-General appears to be interested in any land, title to land, or instrument affecting land, the subject of a dealing to appear and give an explanation respecting that land, title, or instrument.
- ….
- (3) Where the Registrar-General, in the exercise of the powers conferred upon the Registrar-General by subsection (1) (d), makes a correction in the Register:
(a) the Registrar-General shall, by an appropriate recording in the Register, authenticate the correction and record the date thereof,
(b) to the extent that, but for this paragraph, the correction would prejudice or affect a right accrued from a recording made in the Register before the correction, the correction shall be deemed to have no force or effect,
(d) the Registrar-General shall, while any right preserved by paragraph (b) is subsisting, maintain available for search a record of the date, nature and effect of the correction.”(c) subject to paragraph (b), the Register shall, as so corrected, have the same validity and effect as it would have had if the error or omission had not occurred, and
88 In State Bank of New South Wales v Berowra Waters Holdings Pty Limited (1986) 4 NSWLR 398, at 403 D-F Needham J considered both provisions and said that he could not conclude that the provisions empower the Registrar General "to breach the ramparts of indefeasibility in a manner prohibited to the Court by the Act. Section 12 (3)(b) is, in my opinion, equivocal on the matter. My inclination is to treat s 12(1)(d) as being restricted to departmental errors and omissions.”
89 In McGuinness v The Registrar General (1998) 44 NSWLR 61 at 69C Hodgson CJ in Eq refused to interpret s 12(1)(d) as providing a broad power to correct errors recorded in the Register as to the correct beneficial ownership of property. His Honour said, "It seems to me that that approach would be inconsistent with the intention of the Act that the Register be conclusive".
90 These provisions are not available for the purpose Sahab seeks in this case.
Section 122(4)(b)
91 Finally Sahab seeks to rely upon s 122(4)(b) Real Property Act which provides as follows:
“ 122 Review of decisions by Supreme Court
(1) A person who is dissatisfied with a decision referred to in section 121 (1) may apply to the Supreme Court for a review of the decision.
(2) For the purpose of conducting such a review, the Supreme Court may reconsider and determine any question of fact involved in the decision.
(4) After reviewing the Registrar-General’s decision on an application under this section, the Supreme Court:(3) If the Registrar-General has provided reasons for the decision, the Registrar-General may not rely on any grounds that are not set out in those reasons except by leave of the Supreme Court.
(b) may order that the Registrar-General take such action in relation to the matters raised by the application as the Supreme Court considers appropriate, being action that the Registrar-General could, but for the order, have taken,(a) may uphold the decision, or
and may make such further or other orders as the Supreme Court considers appropriate.
(5) This section does not apply to the determination of the position of a boundary under Part 14A.”
92 There are several obstacles to Sahab’s reliance upon s 122 of the Real Property Act. Whatever its merits, the result of the 2001 decision was to give indefeasible title to a fee simple in 134 Sailors Bay Rd without the burden of the right of way defined by the Middleton Transfer. Sahab seeks orders to change that state of affairs. Section 122 cannot be used to alter the Register in a way that would conflict with the paramount status of the Register: s 42 Real Property Act.
93 The authorities with respect to s 122 show that the provision cannot be invoked to compel the Registrar General to exercise a discretion but is available where the Registrar General refuses to perform a duty: Ex parte Gallagher (1908) 8 SR (NSW) 230. In relation to the Registrar General’s 2008 decision, which is a refusal to reopen the 2001 decision, it is difficult to see what duty the Registrar General is presently required to exercise or perform. In relation to the 2001 decision, the Registrar General’s functions and powers have been exercised long ago and s 122 is concerned with the performance of present identifiable duties.
94 It is difficult to see what statutory requirement there is now to compel the Registrar General to act in relation to the 2001 decision. Counsel for Sahab took me to passages from Pirie v Registrar General (1962) 109 CLR 619 and specifically Kitto J at 624 and Windeyer J at 644. In one of those passages Windeyer J says “it follows I think that the Registrar General whose duty it is to put no unauthorised entries in the register book is under a corresponding duty to remove any of that or not to be there”. Whatever can be said of the 2001 decision, the entry in the Register that resulted from it was not “unauthorised”.
95 Further, any order the Court makes under s 122 (4)(b) addressed to the Registrar General can only be in respect of “action that the Registrar General could but for the order have taken”. The further difficulty for Sahab with its argument is that if the proposed alteration to the Register is not authorised by one of the other provisions such as s 12(1)(d) or s 136, then s 122 (4)(b) inhibits the taking of that step.
Review of Decisions
96 I can find no statutory basis to interfere with the Registrar General's 2001 decision. Having considered the lack of efficacy of each of the potential statutory remedies under the Real Property Act relied upon by Sahab I do not consider that s 65 of the Supreme Court Act further assists the plaintiff. Sahab also took me to Barrett J’s decision in St Atanoub Properties Pty Limited v Registrar-General [2002] NSWSC 615 at [34] and the operation of s 32(6). The context of that case dealing with the Registrar General's administrative practices and their correspondence with the Act does not make the case particularly useful for the issues now under consideration.
97 After the parties had an opportunity to examine the Registrar General's reasons for the 2001 decision they put submissions as to the effect of those reasons. Both sides focused on the fact that the Registrar General's reasons for the 2001 decision were very spare. The limited materials available about the 2001 decision do not enable me to infer that the Registrar General has acted contrary to law in making the 2001 decision. The submissions on both sides about what the Registrar General did in 2001 are largely speculation. It seems to me that review of the 2008 decision can stand on no better ground than the 2001 decision, as it is merely an attempt to reopen the 2001 decision.
Conclusion
98 In the result I have found no basis for the relief sought by the plaintiff in the amended summons. The summons should be dismissed. The parties should bring in short minutes of order to give effect to this judgment. There may be argument about the costs of these proceedings. Unless costs are agreed I will invite the parties to list the matter for argument on costs in the near future.
APPENDIX
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