Sahab Holdings Pty Ltd v Registrar-General - [2011] NSWCA 395

Court of Appeal

New South Wales

Case Title: Sahab Holdings Pty Ltd v Registrar-General

Medium Neutral Citation: [2011] NSWCA 395

Hearing Date(s): 23 June 2011

Decision Date: 15 December 2011

Jurisdiction:

Before:
McColl JA at 1, Campbell JA at 2, Tobias AJA at 2

Decision:
(1) Direct the parties by 3 February 2012 to file and serve agreed Short Minutes of the orders to be made to give effect to these reasons for judgment.
(2) In the event that such agreement is not possible, direct the parties to file and serve by 3 February 2012 their respective drafts of such short minutes, together with written submissions in support of their respective drafts, and providing reasons why the draft of the opposite party is inappropriate, each such written submission not to exceed 8 pages without the leave of the court.
(3) Grant liberty to apply to any judge who heard the present appeal on 24 hours notice concerning such leave.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
REAL PROPERTY - Easements - Registrar-General expunged right of way from folios in the Register relating to two properties - expungement was procured by mistaken but arguable interpretation of terms of covenants - whether Registrar-General can be compelled to restore right of way to folios in the Register of the two properties -

REAL PROPERTY - Powers of Registrar-General - s 32(6) Real Property Act 1900 - power to cancel recordings -

REAL PROPERTY - Powers of Registrar-General - s 136 - power to call in and correct certificate of title or duplicate registered dealing - whether implied power to correct the Register itself - whether expungement of right of way from Register was "recording" - whether expungement was "wrongfully obtained" - whether expungement was "made in error" - whether Registrar-General was "satisfied" that expungement was "wrongfully obtained" or "made in error" -

REAL PROPERTY - Powers of Registrar-General - s 12(1)(d) - power to correct errors and omissions in the Register - whether expungement of right of way from Register was "error" - whether expungement was "omission" - whether term "omission" in s 12(1)(d) to be construed in the same way as "omission" in s 42(1)(a1) - term "omission" in s 12(1)(d) has the meaning of something "left out" or "not there" irrespective of the cause of, and without the attribution of cause or fault or reason for, the omission -

REAL PROPERTY - Powers of Court - s 138 - power of Court to order the Registrar-General to amend folios of the Register to reinstate the right of way - whether proceedings were proceedings for "recovery" of interest in land - whether certificate of title had not been or not likely to be produced - whether s 138(3) provides separate and independent source of authority for the Court to order the Registrar-General to correct the Register if the proceedings did not fall within s 138(1) or (2) -

REAL PROPERTY - Powers of Court - ss 121, 122 - power of Court to review Registrar-General's decision and order the Registrar-General to amend folios of the Register to reinstate the right of way - s 121 - standing - whether Registrar-General's decision to expunge right of way was decision to have "dealing registered or recorded" - whether decision was decision to have certificate of title issued - whether decision was decision to have exercised or performed function or duty required to be performed by Registrar-General -

REAL PROPERTY - Powers of Court - ss 121, 122 - power of Court to review Registrar-General's decision and order the Registrar-General to amend folios of the Register to reinstate the right of way - s 122 - whether s 122(1) confers jurisdiction to conduct merits-based review of the decision of Registrar-General - whether lapse of time removes Court's power to review - orders that the Court can make limited to orders that the Registrar-General "could, but for the order, have taken" - whether correction of removal of right of way was an order that the Registrar-General "could, but for the order, have taken" - where power conferred on the Registrar-General in terms that make it exercisable "upon such evidence as appears to the Registrar-General sufficient" - when Court is exercising a power of review under s 122, whether the corresponding precondition is that there be evidence that appears to the Court sufficient - whether coda to s 122(4) provides broader power than that contained in s 122(4)(b) -

REAL PROPERTY - Indefeasibility of title - exceptions - "omission" of easement - effect of Dobbie v Davidson (1991) 23 NSWLR 625 - term "omission" in s 12(1)(d) has the meaning of something "left out" or "not there" irrespective of the cause of, and without the attribution of cause or fault or reason for, the omission -

REAL PROPERTY - Easements - construction of grant of right of way and of attendant covenants -

ESTOPPEL - Issue estoppel - where point not expressly decided in earlier decision but where point was necessary to the decision - parties cannot raise points necessary to the earlier decision if to raise them is necessarily to assert that earlier decision was erroneous -

Legislation Cited:
Crown Lands Consolidation Act 1913
Local Government Act 1919
Property Legislation Amendment (Easements) Bill 1995
Real Property Act 1900
Real Property Amendment (Compensation) Act 2000
Strata Schemes Management Act 1996
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Workplace Injury Management and Workers Compensation Act 1988

Cases Cited:
Ashoil Holdings Pty Ltd v Fassoulas [2005] NSWCA 80; NSW ConvR 56-125
Australian Hi-Fi Publications Pty Limited v Gehl (1979) 2 NSWLR 618
Black v Garnock [2007] HCA 31; 230 CLR 438
Blair v Curran [1939] HCA 23; 62 CLR 464
Breskvar v Wall [1971] HCA 70; 126 CLR 376
City of Canada Bay Council v F & D Bonaccorso Pty Limited & Others [2007] NSWCA 351; (2007) 71 NSWLR 424
Cook v Midpart Pty Ltd trading as McDonald's Forster [2008] NSWCA 151
CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1
Dobbie v Davidson (1991) 23 NSWLR 625
Ex parte Gallagher (1908) 8 SR (NSW) 230
FNCB-Waltons Finance Limited v Crest Realty Pty Limited and Others (1977) 10 NSWLR 621
Frazer v Walker [1967] AC 569
Halloran v Minister Administering National Parks and Wildlife Act 1974 [2006] HCA 3; 229 CLR 545
IAC (Finance) Pty Limited v Courtnay [1963] HCA 64; (1963) 110 CLR 550
James v The Registrar-General (1967) 69 SR (NSW) 361
Lolakis v Konitsas [2002] NSWSC 889; 11 BPR 20499
McGuinness v The Registrar General (1998) 44 NSWLR 61
Mogo Local Aboriginal Land Council v Eurobodalla Shire Council & Others [2002] NSWCA 12; (2001) 54 NSWLR 15
Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46
Mulwala & District Services Club Ltd v Owners - Strata Plan 37724 [2000] NSWSC 1040; 50 NSWLR 458
NSW Police Force v Winter [2011] NSWCA 330
Perpetual Trustees Victoria Ltd v English [2010] NSWCA 32; (2010) 14 BPR 27,339
Pirie v Registrar General [1962] HCA 58; 109 CLR 619
Powercell Pty Limited v Cuzeno Pty Limited [2003] NSWSC 600; (2003) 11 BPR 21,385
Powercell Pty Limited v Cuzeno Pty Limited [2004] NSWCA 51; (2004) 11 BPR 21,429
Powercell Pty Ltd v Cuzeno Pty Ltd [2005] HCA Trans 94
Proprietors SP 9968 v Proprietors SP 11173 [1979] 2 NSWLR 605
Quach v Marrickville Municipal Council (No 1) (1990) 22 NSWLR 55
Quach v Marrickville Municipal Council (No 2) (1990) 22 NSWLR 65
Queensland Premier Mines Pty Ltd v French [2007] HCA 53; 235 CLR 81
Re N Jobson and the Real Property Act 1900 (1950) 51 SR (NSW) 76
Sahab Holdings Pty Limited v Registrar-General & Anor [2009] NSWSC 1143
Sahab Holdings Pty Ltd v Registrar General and Anor (No 2) [2010] NSWSC 162
Sahab Holdings Pty Ltd v Registrar-General and Anor [No 3] [2010] NSWSC 403
Scallan v Registrar-General (1988) 12 NSWLR 514
Sapina v Coles Myer Ltd [2009] NSWCA 71
St Abanoub v Registrar-General [2002] NSWSC 615
State Bank of New South Wales v Berowra Waters Holdings Pty Limited (1986) 4 NSWLR 398
State Transport Authority of New South Wales v Chemler [2007] NSWCA 249
Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61
Treweeke v 36 Wolseley Road Pty Limited [1973] HCA 27; 128 CLR 274

Texts Cited:
Professor Peter Butt "Land Law" 6th ed., Law Book Co, 2010
Woodman & Nettle "The Torrens System in NSW", Thompson Lawbook Co

Category: Principal judgment

Parties:
Appellant: SAHAB HOLDINGS PTY LTD (ACN 002 728 216)
First Respondent: REGISTRAR-GENERAL
Second Respondent: CASTLE CONSTRUCTIONS PTY LTD (ACN 001 602 188)

Representation

- Counsel:
Appellant: G K Burton SC
First Respondent: P B Walsh
Second Respondent: M L D Einfeld QC/ J Horowitz

- Solicitors:
Appellant: Kanjian & Co
First Respondent: Land and Property Management Authority Legal Services
Second Respondent: Domain Legal

File number(s): 2008/281514

Decision Under Appeal

- Court / Tribunal:

- Before: Slattery J

- Date of Decision:

- Citation: Sahab Holdings Pty Limited v Registrar-General & Anor [2009] NSWSC 1143; Sahab Holdings Pty Ltd v Registrar General and Anor (No 2) [2010] NSWSC 162; Sahab Holdings Pty Ltd v Registered-General and Anor [No 3] [2010] NSWSC 403

- Court File Number(s) 5563/08

Publication Restriction:

HEADNOTE

[This headnote is not to be read as part of the judgment]
In 1921, the property known as 134 Sailors Bay Road, Northbridge (134 Sailors Bay) was burdened by a right of way. The benefit of the right of way was appurtenant to 69 Strathallen Avenue, Northbridge (69 Strathallen).
Castle Constructions Pty Ltd (Castle) acquired 134 Sailors Bay in June 2001. In September 2001 Castle lodged a request with the Registrar-General seeking the cancellation of the right of way. The Registrar-General acceded to this request, cancelling or deleting the right of way from the folios in the Register relating to the two properties.
Sahab Holdings Pty Ltd (Sahab) acquired 69 Strathallen in April 2007. In September 2008 Sahab lodged a document with the Registrar-General seeking the restoration of the right of way to the folios in the Register relating to the two properties. On 2 October 2008 the Registrar-General declined Sahab's request.
Sahab commenced proceedings in the Supreme Court. Sahab sought a declaration that the right of way had been wrongly extinguished and alternative orders that the Registrar-General restore the right of way to the folios in the Register of the two properties.
In May 2009 Sahab filed a notice of motion seeking an order that the Registrar-General give reasons for his 2001 decision (the May motion). On 26 October 2009 Slattery J held that Sahab was entitled to succeed on the May motion: Sahab Holdings Pty Limited v Registrar-General & Anor [2009] NSWSC 1143.
On 8 March 2010 Slattery J delivered judgment on the substantive issues: Sahab Holdings Pty Ltd v Registrar-General and Anor (No 2) [2010] NSWSC 162. His Honour rejected the various statutory bases upon which Sahab had relied in support of the proposition that the Registrar-General was bound to correct the Register. Having found no basis for the relief sought by Sahab, his Honour ordered that Sahab's summons be dismissed.
On 5 May 2010 Slattery J delivered his judgment as to costs: Sahab Holdings Pty Ltd v Registrar-General and Anor [No 3] [2010] NSWSC 403. His Honour ordered that the Registrar-General pay Sahab's costs of the May motion; that Sahab pay the Registrar-General's costs other than on the May motion; and that there be no order as to costs between Sahab and Castle or as between the Registrar-General and Castle.
Sahab now appeals against Slattery J's order dismissing its summons. Castle has filed a summons seeking leave to cross-appeal against his Honour's orders as to costs.
Held ( per Campbell JA and Tobias AJA, McColl JA agreeing )
Basis for the 2001 decision
1. The Registrar-General neither purported nor was empowered to act in cancelling the recording of the right of way on the Register pursuant to s 49 Real Property Act 1900. This was because there had been no abandonment of the right of way either pursuant to s 49(2) or the general law. [54(d)]
2. Likewise, the Registrar-General neither purported nor was empowered to act in cancelling the recording of the right of way on the Register pursuant to ss 81I or 81J Real Property Act 1900. [54(a),(b),(c)]
3. Rather, s 32(6) provided the power pursuant to which the Registrar-General acted in cancelling the recording of the right of way on the Register. [55]
Was Castle's 2001 request a "dealing"?
4. Castle's 2001 request seeking the cancellation of the right of way was not a " dealing " within the meaning of the Real Property Act . [66]
Construction of the grant of right of way and attendant covenants
5. On the proper construction of the grant of the right of way and the attendant covenants, the existence of the right of way was not conditional upon the continued operation of any of the covenants. The covenants relating to the right of way continued in operation. Moreover the grant of right of way was permanent and not dependent on the ownership by the transferors or their executors, administrators and assigns other than purchasers of sale of the dominant tenement. [75], [78]
Power of the Registrar-General to reinstate right of way on the Register
Section 136
6. Section 136(1) merely enables the Registrar-General to call in and correct the certificate of title or duplicate registered dealing, but does not empower the Registrar-General to correct the Register itself. [154]
7. The Registrar-General did not have power to restore the right of way pursuant to s 136(1)(c). The expungement of the right of way from the Register was a " recording " [152]. However, the recording was procured by what ultimately turns out to have been a mistaken, but arguably correct, interpretation of the terms of the covenants. [161] Such a recording cannot be categorised as a recording that was " wrongfully obtained ". Moreover, the Registrar-General was not " satisfied " that the recording in the Register had been " wrongfully obtained ". [152]
8. The Registrar-General did not have power to restore the right of way pursuant to s 136(1)(b). The Registrar-General was not " satisfied " that the recording in the Register had been " made in error ". [194]
Section 12(1)(d)
9. The Registrar-General did have power in 2008 to restore the right of way under s 12(1)(d). This was because at that point there was an " omission " of the right of way from the Register. The term " omission " in s 12(1)(d) should be construed the same way as the term " omission " in s 42(1)(a1). [274] The term " omission " in s 12(1)(d) therefore has the meaning of something " left out " or " not there " irrespective of the cause of, and without the attribution of cause or fault or reason for, the omission. [273]-[274] After its removal from the Register, the right of way was " not there " in that it was not recorded on the folio of the Register. [266] Accordingly the right of way had been omitted within the meaning of s 12(1)(d). [274]
10. It was not necessary to decide whether the concept of " error " in s 12(1)(d) could be engaged even if the concept of " made in error " in s 136(1)(b) was not. [198] It was also unnecessary to decide whether making an expungement from the Register by reason of an erroneous decision in the Department has the effect that the absence of the expunged entry is an " error in the Register " within the meaning of s 12(1)(d). [198]
Indefeasibility
11. Castle did not obtain indefeasible title under s 42(1) because that indefeasibility is subject to an exception relating to " the omission...of an easement " in s 42(1)(a1). In Dobbie v Davidson (1991) 23 NSWLR 625, the Court of Appeal (Kirby P, Priestley and Handley JJA) construed the term " omission " in s 42(1)(a1) to mean something " left out " or " not there " irrespective of the cause of, and without the attribution of cause or fault or reason for, the omission. After its removal from the Register, the right of way was " not there " in that it was not recorded on the folio of the Register which would otherwise have attracted the indefeasibility provisions of s 42(1). [266] Accordingly the right of way had been omitted within the meaning of s 42(1)(a1). [275]
12. Because Castle did not obtain indefeasible title under s 42(1), it was unable to rely on s 118(1). [249] Section 118 is applicable only if Castle obtained an indefeasible title freed from the right of way on the expungement of the right of way. [239]
Power of the Registrar-General to recall the duplicate certificate of title
13. The Registrar-General could not have called in the duplicate certificate pursuant of title pursuant to s 136(1)(b) on the basis that the recording had been " made in error " because he was not satisfied that a recording had been made in error in the Register. [235]
Power of the Court to compel the Registrar-General to reinstate right of way on the Register
Section 138
14, Sahab's proceedings were proceedings " for the recovery of any land, estate or interest from the person registered as proprietor " within the meaning of s 138(1). [103] The term " recovery " is not restricted to the regaining of an estate or interest which was once had but of which the moving party has been deprived. [100] Instead, rather the term " recovery " encompasses a claim for an interest in land to which one was at all times entitled albeit without one's knowledge of that fact and where it has been taken by a process that turns out to be defective and ineffective. [100] Since Sahab's proceedings fell within s 138(1) and the indefeasibility provisions were not engaged, the Court could make orders under s 138(3). [103], [130], [275]
15. Sahab's proceedings did not fall within s 138(2). This is because there was no evidence to suggest that if called upon to do so, Castle would not have produced to the Registrar-General the certificate of title. [107]
16. It was not necessary to decide whether s 138(3) provided a separate and independent source of authority for the Court to order the Registrar-General to correct the Register if the proceedings did not fall within s 138(1) or (2). [130]
Sections 121 and 122
17. The Registrar-General's 2001 decision was a decision within the meaning of s 121(b). [206] It is possible that the decision was also one within s 121(a) and (c) [206]-[208]. In any event, Castle and the Registrar-General are estopped from denying that the 2001 decision did not fall within s 121(a), (b) or (c). [219] Accordingly, Sahab was a " person dissatisfied " with the Registrar-General's decision within the meaning of s 121(1) and the precondition for operation of s 122 is satisfied. [220]
18. Section 122(1) confers on the Supreme Court jurisdiction to conduct a " review of the decision ". That jurisdiction is wider than the powers that are conferred when there is an appeal to the Court of Appeal and extends to a merits-based review of the decision of the Registrar-General. [223]-[224]
19. Lapse of time alone does not remove the Court's power to review under s 122(1). [227]
20. When the Court conducts a review of the Registrar-General's decision under s 122(1), the relevant order which the Court could make is limited by s 122(4)(b) to an order that the Registrar-General " could, but for the order, have taken ". [229] Because s 12(1)(d) empowered the Registrar-General to correct the removal of the right of way when requested to do so in 2008, the correction was an action that the Registrar-General " could, but for the order, have taken ". Accordingly, the precondition for the Court to make an order under s 122(4)(b) was satisfied. [231]

21, The Real Property Act may confer a power on the Registrar-General in terms that make it exercisable " upon such evidence as appears to the Registrar-General sufficient ". When the Court is exercising a power of review under s 122 of the exercise or non-exercise of such a power, the corresponding precondition is that there be evidence that appears to the Court sufficient. [232]
22. It is not necessary to decide whether the coda to s 122(4) provides a broader power than that contained in s 122(4)(b). [233]
Power of the Court to compel the Registrar-General to recall the duplicate certificate of title
23. There is no power of judicial review available to the Court under s 65 Supreme Court Act 1970 that would enable the Court to require the Registrar-General to use his power under s 136(1) to correct an error which the Registrar-General was clearly satisfied had not occurred. [156], [196]
24. When the Court is conducting a review under s 122, if the Court is satisfied that a recording has been made in error in the Register, the Court can order that the certificate of title or any relevant duplicate registered dealing can be delivered up for correction. [235]
25. When the right of way was expunged from the two relevant certificates of title, a recording was made in error in the Register. Therefore the Court has the power pursuant to s 122 combined with s 136(1)(b) to order that the certificate of title be delivered up for correction. [236]

Judgment

McCOLL JA: I had the privilege of reading in draft the judgment of Campbell JA and Tobias AJA. I agree with their Honours' reasons and the orders that their Honours propose.
CAMPBELL JA and TOBIAS AJA:

Table of Contents

Par Nos
Summary	[4]
The history of the litigation	[7]
The history of the right of way and its attendant covenants	[21]
The subsequent dealings with the relevant land	[30]
The 2001 Request	[34]
The 2008 Request	[45]
The statutory basis for the 2001 decision	[49]
Was the 2001 Request a "dealing" within the meaning of the Act?	[59]
The proper construction of the covenants contained in the Middleton transfer	[70]
(a) The primary judge's findings	[70]
(b) Submissions with respect to the issue of construction	[74]
(c) The right of way and the covenants describing its use remain operative	[75]
The provisions of the Act relied upon by Sahab as empowering the Registrar-General to reverse the 2001 decision	[79]
Section 138 of the Act	[95]
(a) The decision of the primary judge	[95]
(b) The case based on section 138(1)	[96]
(i) The parties' submissions	[96]
(ii) The scope of "Recovery" in section 138(1)	[97]
(iii) Characterisation of Sahab's Proceedings	[101]
(c) The case on section 138(2)	[105]
(d) The case based on section 138(3)	[108]
(i) The parties' submissions	[108]
(ii) The decision in Mogo	[109]
(iii) Is section 138(3) available to Sahab?	[129]
(e) Conclusions with respect to s 138	[131]
Sections 136 and 12(1)(d) of the Act	[133]
(a) The primary judge's decision	[133]
(b) A consideration of Berowra Waters and Scallan	[138]
(c) Sahab's reliance on ss 136 and 12(1)(d)	[151]
(d) Section 136(1)(c) - "wrongfully obtained"	[152]
(e) Sections 12(1)(d) and 136(1)(b) - "error"	[165]
(i) The parties' submissions	[165]
(ii) Authority and Commentary on Sections 12(1)(d) and 136(1)(b)	[168]
(iii) Consideration of Section 12(1)(d) and Section 136(1)(b)	[181]
(f) Section 12(1)(d) - "omission"	[199]
(g) Section 136(1)(a) - certificate of title issued in error	[201]
Section 122 of the Act	[202]
(a) The primary judge's decision	[202]
(b) The submissions of the parties	[204]
(c) A question of issue estoppel arises	[210]
(d) Application of s 122(1)	[220]
(e) Application of s 122(4)(b)	[228]
Castle's indefeasibility argument	[237]
Section 42(1)(a1) of the Act	[251]
Conclusion	[275]
Leave to Cross-Appeal on costs	[277]

The facts of this case, like those of many cases involving easements, are more easily understood with the assistance of a plan.

Summary

The Registrar-General expunged a right of way from folios in the Register relating to two properties. That expungement was procured by a mistaken but arguable interpretation of the terms of covenants attendant to the right of way. The owner of the dominant tenement sought an order that the Registrar-General be compelled to restore the right of way to the folios and relevant certificates of title.
This case is a complex one. It requires analysis of:
(1) the appropriate construction of the grant of the right of way and the attendant covenants to determine whether the grant continued in operation;
(2) the Registrar-General's power to cancel the recording of the right of way in the Register;
(3) the Registrar-General's power to correct errors and omissions in the Register;
(4) the Court's power to order the Registrar-General to amend folios of the Register to reinstate the right of way;
(5) the effect of the principle of indefeasibility of title on attempts to compel the Registrar-General to restore the right of way to the folios and relevant certificates of title; and
(6) the power of the Registrar-General, and the Court, to require the duplicate certificate of title to be brought in for amendment.
A plethora of statutory provisions from the Real Property Act 1900 (the Act) were cited to us in relation to these various issues. We have concluded that the Registrar-General was empowered to correct the expungement of the right of way when he was requested to do so and, therefore, that the Court has jurisdiction to order the Registrar-General to restore the right of way to the folios and relevant certificates of title. We have further concluded that it is appropriate for the Court to make such an order. Furthermore, we consider that the situation falls within the exception to indefeasibility of title in s 42(1)(a1) and, therefore, that the principle of indefeasibility of title does not pose an obstacle to the orders we would make. Finally, there is power for the duplicate certificate of title to be called in so that the right of way can be noted on it, and that power should be exercised.

The history of the litigation

The appellant, Sahab Holdings Pty Limited (Sahab), is the registered proprietor of Lot 1 in Deposited Plan 726736 known as 69 Strathallen Avenue, Northbridge (69 Strathallen). The second respondent, Castle Constructions Pty Limited (Castle), is the registered proprietor of Lot A in Deposited Plan 404929 and known as 134 Sailors Bay Road, Northbridge (134 Sailors Bay). The rear or eastern boundary of 69 Strathallen abuts part of the western boundary of 134 Sailors Bay.
Castle acquired 134 Sailors Bay in June 2001 at a time when it was burdened by a right of way 10 foot wide which extended along its western boundary from Sailors Bay Road to a point on 134 Sailors Bay aligned with the prolongation of the southern boundary of 69 Strathallen (the right of way). The benefit of the right of way was appurtenant to 69 Strathallen. It was created by Memorandum of Transfer A752953 dated 26 October 1921 which was registered on 16 November 1921.
On or about 3 September 2001 Castle lodged with the first respondent, the Registrar-General, a formal document titled " REQUEST " seeking the cancellation by the Registrar-General of the right of way (the 2001 Request). The Registrar-General acceded to this request on 22 November 2001 (the 2001 decision). He then cancelled or deleted the right of way from the folios in the Register retained by him for the purposes of the Act relating to 134 Sailors Bay (as the servient tenement) and 69 Strathallen (as the dominant tenement).
On 5 April 2007 Sahab acquired 69 Strathallen. On or about 22 September 2008 it lodged with the Registrar-General a formal document also titled " REQUEST " (the 2008 Request) seeking the restoration of the right of way to the folios in the Register relating to 134 Sailors Bay and 69 Strathallen. By letter dated 2 October 2008 the Registrar-General declined the 2008 Request (the 2008 decision).
On 7 November 2008 Sahab filed a summons in the Equity Division of the Supreme Court to which it initially joined the Registrar-General as the only defendant. It claimed a declaration that the right of way had been wrongly extinguished on or about 22 November 2001 when the Registrar-General acceded to the 2001 Request lodged by Castle as the registered proprietor of the servient tenement, 134 Sailors Bay. It then sought alternative orders based upon various provisions of the Act that the Registrar-General restore the right of way to the folios in the Register of the two tenements.
By Notice of Motion filed on 23 December 2008 Castle sought to be joined as a defendant to the proceedings. That motion was successful and Castle was joined as the second defendant and an Amended Summons was duly filed on 17 February 2009. Apart from some minor amendments to the orders sought in the original Summons including reliance on s 65 of the Supreme Court Act 1970 (NSW) (the SC Act), the only order sought against Castle was that it deliver up or cause to be delivered up the Certificate of Title for the servient tenement (134 Sailors Bay) for the purpose of it being amended to accord with the orders sought by Sahab for restoration of the right of way to the relevant folios of the Register.
The hearing of the amended summons commenced before Slattery J on 26 May 2009. At that point the Registrar-General had filed a submitting appearance and took no part in the argument. The matter thus proceeded on that and the following day when his Honour heard argument from Sahab and Castle on the substantive issues with particular reference to whether the Registrar-General had the necessary power under the Act to restore the right of way to the Register. He had the benefit of what he described in the transcript as full written and oral submissions.
During the hearing on 27 May, his Honour gave leave to Sahab to advance its claim for principal relief by moving for the Registrar-General to give reasons for the 2001 decision. That Notice of Motion was filed on 28 May 2009 returnable on 5 June (the May motion). The Registrar-General was invited to consider whether he wished to make submissions on the substantive issues in the proceedings. He appeared on the hearing on 5 June when he was directed either to file an unconditional appearance or to file an application for leave under Uniform Civil Procedure Rules 2005 (NSW), r 6.11(2) to make submissions despite filing a submitting appearance. The Registrar-General then filed written submissions as to his powers and functions.
The May motion sought an order pursuant to s 121(2) of the Act or s 65 of the SC Act that the Registrar-General provide in writing his reasons for the 2001 decision. The parties, including the Registrar-General, filed written submissions with respect to whether the Registrar-General had a duty to provide reasons at the request of someone like Sahab who was not the registered proprietor of 69 Strathallen when the 2001 decision was made. Both Castle and the Registrar-General contended that the latter had no such duty.
The argument on the May motion was heard on 26 June 2009. On 26 October 2009 the primary judge delivered his judgment on that motion: Sahab Holdings Pty Limited v Registrar-General & Anor [2009] NSWSC 1143 (the first judgment). He held that Sahab was entitled to succeed on the motion. He therefore ordered the Registrar-General to provide to Sahab his reasons for the 2001 decision to delete the right of way from the folio relating to 134 Sailors Bay. At the same time his Honour made a number of consequential orders regarding the filing of submissions with respect to the principal relief sought by Sahab in its Amended Summons. Neither Castle nor the Registrar-General has challenged his Honour's principal finding made on the May motion by filing a summons for leave to appeal from the orders made on 26 October 2009 or any of them.
The Registrar-General complied with his Honour's order to provide his reasons for the 2001 decision on 13 November 2009. Supplementary submissions were then filed by all parties to advance or resist Sahab's claims for final relief based on the Registrar-General's reasons. His Honour then proceeded to determine those claims without any further oral argument.
On 8 March 2010 his Honour delivered judgment (the second judgment) on the substantive issues in which he rejected the various statutory bases which Sahab had advanced in support of the proposition that the Registrar-General was bound to correct the Register and reinstate the right of way to the folios of 134 Sailors Bay as the servient tenement and 69 Strathallen as the dominant tenement. Having found no basis for the relief sought by Sahab in its Amended Summons he ordered that the summons be dismissed: Sahab Holdings Pty Ltd v Registrar General and Anor (No 2) [2010] NSWSC 162 (the second judgment). References to his Honour's reasons are to this judgment unless otherwise indicated. His Honour stood over for further argument the question of the costs of the proceedings.
Argument with respect to costs was heard on 31 March 2010 and on 5 May 2010 his Honour delivered his reasons on that issue: Sahab Holdings Pty Ltd v Registrar-General and Anor [No 3] [2010] NSWSC 403 (the third judgment). He ordered that the Registrar-General pay Sahab's costs of the May motion (which related to whether the Registrar-General was required to provide his reasons for the 2001 decision); that Sahab pay the Registrar-General's costs of the proceedings other than on the May motion; and that there be no order as to costs as between Sahab and Castle or as between the Registrar-General and Castle.
Sahab now appeals against his Honour's order dismissing the Amended Summons. Castle has filed a Summons seeking leave to cross-appeal against the primary judge's order that there be no order as to the costs of the proceedings as between Sahab and Castle. Castle has also filed an Amended Notice of Contention in which, inter alia, it challenges the primary judge's construction of the terms of the easement created by Transfer A752953.

The history of the right of way and its attendant covenants

Sailors Bay Road runs in an east-west direction at Northbridge. Strathallen Avenue forms the stem of a "T" intersection with Sailors Bay Road on its southern side. It extends further south away from the Sailors Bay Road shopping precinct towards the suspension bridge connecting Northbridge with Cammeray. The two parcels of land the subject of the present appeal are located near the south-eastern corner of this "T" intersection.
In early October 1921 the lands that later became 134 Sailors Bay and 69 Strathallen were part of a larger parcel of land held in common ownership. Walter William Charles Middleton and Alice Beatrice Middleton (the Middletons) were the registered proprietors as joint tenants of a single parcel of land comprising Lots 3 and 7 of Section 3 in Deposited Plan 7122 being the whole of the land in Certificate of Title Volume 2978 Folio 91. The northern boundary of Lot 7 had a width of fifty feet and fronted Sailors Bay Road. The western boundary of Lot 3 had a width of forty-six foot eight inches with a frontage to Strathallen Avenue.
Lots 3 and 7 were subdivided into smaller parcels of land, two of which are the subject of this appeal. They were each subdivided once but the two subdivisions occurred at different times. The Middletons subdivided Lot 3 in October 1921 to create two allotments divided along their east-west axis. Each of those subdivided lots became 67 Strathallen Avenue and 69 Strathallen Avenue respectively. The latter (now known as Lot 1 in DP 726736) had a frontage to Strathallen Avenue of nineteen feet six inches or 5.945 metes. The subdivision of Lot 7 resulted in what is now 134 Sailors Bay (being Lot A in DP 404929) having a frontage to Sailors Bay Road of thirty nine feet ten and a half inches (compared to its original width of fifty feet).
On 26 October 1921, the Middletons transferred 69 Strathallen to Cyril Hugh Davis by Memorandum of Transfer A752953 (the Middleton transfer). The terms of that transfer gives rise to questions of construction which are the subject of Castle's Amended Notice of Contention. It is therefore appropriate to set it out in detail.
After reciting that the Middletons were the proprietors of an estate in fee simple in the land thereafter described subject to such encumbrances, liens and interests as were notified therein, the instrument recited the transfer by the Middletons (as transferors) to Mr Davis (as transferee) of part of the land in Certificate of Title Volume 2978 Folio 91 being part of Lot 3 of Section 3 Deposited Plan 7122 as shown on the sketch plan annexed thereto and marked with the letter "A" and edged 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'"
Under the heading "ENCUMBRANCES, &c, REFERRED TO" there appears the words " Subject to the covenants and conditions contained in Instrument of Transfer No A47502 ". These covenants are not presently relevant.
The second page of the Middleton transfer is Sketch "A". That is the plan that is reproduced, with some additions, at [3] above. It depicts the outline of the parcel of land that became 69 Strathallen having the dimensions of one hundred and forty feet along its northern and southern boundaries and nineteen foot six inches along its eastern and western boundaries. It is edged in red. That part of the sketch edged blue is the right of way over Lot 7 being in the form of a rectangular box abutting the eastern boundary of the land transferred as well as the two allotments to its north and containing the description "Right of Way - 10 feet wide".
The Schedule of Covenants marked "B" is on the third page of the Middleton transfer. It is handwritten and, therefore, difficult to read. However, the parties agreed on the following transcription:
" 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) our executors, administrators and assigns 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 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 for 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 that 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 use the said land hereby transferred for the purpose of erecting a butcher's shop thereon nor shall the transferee carry on the business of a butcher on such land - The burden of the foregoing covenants is appurtenant to the whole of the land comprised in the herein before mentioned 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." (emphasis added)

On 19 November 1921 the Registrar-General issued a new Certificate of Title to Mr Davis being Volume 3253 Folio 73 in consequence of the registration of the Middleton transfer. The Schedule of Covenants recorded in the preceding paragraph is reproduced in handwriting in the body of that Certificate of Title. In that transcription the "a" of the word "and" which commences that part of the covenants which we have secondly emphasised in the preceding paragraph has been capitalised thus suggesting that what follows is separate from what precedes it. Although not so clear as in Certificate of Title Volume 3253 Folio 73, the same word in the original Schedule of Covenants marked "B" in the Middleton transfer, at least arguably, also capitalises the "a" of "and" at the commencement of that part of the covenants which we have emphasised. We mention this aspect of the matter as it is relevant to the issue of construction of the covenants with which we deal at [70] ff below.

The subsequent dealings with the relevant land

By Memorandum of Transfer No A802709 dated 4 April 1922, Cyril Hugh Davis transferred the whole of the land in Certificate of Title Volume 3253 Folio 73 being 69 Strathallen to Gordon Victor Cormack.
As we have already observed, the Middletons were the registered proprietors of Lot 7 of Section 3 in DP 7122 being the whole of the land in Certificate of Title Volume 3325 Folio 201. That lot and the immediately adjoining land being Lot 8 of Section 3 in DP 7122 were subdivided by the executors of the Middletons in 1958. This was effected by Memorandum of Transfer G929816 to which was annexed a plan which became FP404929 which was a subdivision of the land in Certificate of Title Volume 3325 Folio 201 into Lots A and B, the former being 134 Sailors Bay and the latter being 136 Sailors Bay Road. By Memorandum of Transfer H403542 dated 18 January 1960 the executors of the Middletons transferred Lot A (being 134 Sailors Bay) to Andrew Stewart Townsend and Dulcie Doreen Townsend (the Townsends). On 13 September 1960 Certificate of Title Volume 7987 Folio 98 was issued pursuant to that transfer which contained the following notification:
"Right of Way affecting the piece of land 10 feet wide coloured brown in the plan hereon created by Transfer No. A752953."
Transfer No G929816 also created a right of carriageway over the rear portion of Lot A for the benefit of Lot B which connected to the right of way the subject of the present proceedings.
The relevant effect of the foregoing was that in 1960 the executors of the Middletons ceased to be the owners of 134 Sailors Bay as a consequence of the purchase of that land from the executors by the Townsends. It was Castle's contention that the effect of that change of ownership was that the right of way ceased to affect 134 Sailors Bay as the servient tenement. Thereafter 134 Sailors Bay changed hands on a number of occasions eventually being acquired by Castle in or about June 2001.

The 2001 Request

On or about 3 September 2001 Castle, through its solicitor, William Samuel Dockrill, lodged with the Registrar-General a formal printed document in what was apparently a form approved by the Registrar-General and titled " REQUEST ". Supposedly pursuant to s 36(1A) of the Act, it had the reference number 7924028 allotted to it. The document noted that the "Servient Land" was the land in Folio Identifier A/404929 and the "Dominant Land" was the land in Folio Identifier 1/726736. Against the heading " REGISTERED DEALING " there was a reference to "A752953".
Against the heading " NATURE OF REQUEST ' the following appeared:
"Application to cancel recording of easement due to the happening of an agreed event.
Easement to be cancelled: Covenant and Right of Way A752953"
Opposite the heading " TEXT OF REQUEST " the following was stated:
"The Applicant applies to have the recording of the covenant and right of way cancelled on the folio of the Register referred to above.
The names and addresses of all parties having a registered interest in the land benefited by the covenant and right of way are set out below"
There followed a reference to the registered proprietors of 69 Strathallen then being Edna Maria Howard and Leslie Charles Howard (the Howards). The Request was certified by Mr Dockrill in the following terms:
"We certify this dealing correct for the purposes of the Real Property Act 1900".
The 2001 Request was accompanied by a statutory declaration by Mr Dockrill in the following terms:
"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 the 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 other than the Purchasers on sale.
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."
During the course of the hearing there was some debate as to what was intended in the Request by the words " happening of an agreed event ". It was contended by Sahab that the document was misleading in that it had never been agreed between Sahab and Castle that there was such an event. However, in our view it is clear that the reference to " an agreed event " in the Request, when read in conjunction with paragraph 2 of Mr Dockrill's statutory declaration, was a reference to the opening words of the covenant which we have first emphasised at [28] above and which had been agreed between the transferor and transferee in the Middleton transfer. In other words, Castle was contending that pursuant to the terms of the Middleton transfer, the right of way ceased to burden 134 Sailors Bay on the sale of that land by the Middletons, their executors, administrators and assigns. As this had occurred in 1960 (see [31] above) when that land was transferred to the Townsends, the right of way had then ceased to exist.
We interpolate that the Registrar-General's current website lists the Request as Form 11R which was the form used for the 2008 Request. It is not relevantly different in content and layout to the 2001 Request. Interestingly, with respect to "Dealing requirements" on the website for "Easements" following the sub-heading "Cancellation of easement by happening of agreed event" appear the words:
"an easement may be cancelled if, in the terms of the grant of easement, the duration of the easement was limited."
Whether these guidelines by the Registrar-General were in existence in 2001 is not known although it would be a coincidence if they were not in some form given the use by Mr Dockrill of the words "happening of an agreed event". We return to the narrative.
It was common ground that the Registrar-General notified the Howards of the application contained in the 2001 Request. According to a letter from the Registrar-General to Sahab's solicitors dated 2 October 2008 such notice was given in the following circumstances:
"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 the 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."
The reference at the end of the paragraph to A/404929 is to the servient tenement (134 Sailors Bay) and to 1/726736 is to the dominant tenement (69 Strathallen). It may well be that the assertions contained in the letter of 2 October 2008 referred to in the preceding paragraph involve a degree of reconstruction on the part of the Registrar-General.
As we have already noted, the primary judge had ordered the Registrar-General to provide Sahab with his reasons for the 2001 decision. Those reasons were provided by letter from the solicitor for the Registrar-General to Sahab's solicitors dated 13 November 2009. It stated the following:
"In accordance with Order No 2 of the Orders made on 26 October 2009 I enclose a copy of Minute 4(i) of Registrar General's Minute papers for Requests 7924027 and 7924028 which records the Registrar General's reasons for registration of Request 7924028.
For the sake of clarity I advise that Minute (4)(i) reads:
'No objection received to the applications. Applications granted.'
For the sake of further clarity I advise that 'objection' referred to any objection to the Registrar General's notice of 8 October 2001 to the owners of the dominant tenement giving them notice of intention to cancel the recording of the easement and restrictive covenant.
The notice was sent because the Registrar General agreed with the applicant of Request 7924028, that the easement and covenant had expired by virtue of its own terms."
The difficulty with the contents of this letter is that, as will appear, s 121(1) of the Act (being the statutory foundation for his Honour's Order No 2 made on 26 October 2009), refers to an application to the Registrar-General for a " copy " of his reasons for the relevant decision and s 121(2) provides that it is the Registrar-General's duty to provide the applicant with " those reasons ". The letter of 13 November 2008 which purports to provide those reasons is not, of itself, a " copy " of the Registrar-General's reasons if that is intended to refer to the documentary material containing his reasons which existed at the time of the relevant decision. The only document produced as being in existence at that time was the Minute which, if anything, would indicate that the only reason the application was granted was because no objection had been lodged to its granting by the registered proprietors of 69 Strathallen (the Howards).
In this context there was significant debate on the hearing of the appeal as to whether there was any evidence that the Registrar-General actually turned his mind to the terms of the covenants contained in the Middleton transfer and, in particular, whether it could be accepted as asserted by the Registrar-General in his letter of 13 November 2009, that he had in fact agreed with Castle's 2001 Request that " the easement and covenant had expired by virtue of its own terms ". We do not consider that it is necessary to ultimately resolve this issue although it is to be noted that if the right of way ceased to burden the servient tenement as a consequence of the terms of the covenant contained in the Middleton transfer, it was because of the sale of 134 Sailors Bay by the Middletons or their executors and not by Mr Davis as asserted in paragraph 3 of Mr Dockrill's statutory declaration. Mr Davis was the predecessor of the Howards as the registered proprietor of the dominant tenement, 69 Strathallen. He was the transferee in the Middleton transfer whereas the opening words of the covenant, if they contain any relevant time limit, relate to the period of ownership of the Middletons as transferors and their executors rather than that of Mr Davis as transferee. However, the fact remains that the 2001 Request was acceded to by the Registrar-General and, as Sahab itself accepted, the right of way was extinguished and expunged from the folios of the Register of both the servient and dominant tenements.

The 2008 Request

Sahab purchased 69 Strathallen on 22 December 2006 and the contract for sale was completed on 5 April 2007. On 22 September 2008 Sahab lodged the 2008 Request with the Registrar-General in the approved form. It was allotted the reference number AE234360. The nature of that Request was stated to be:
"To restore to the folios of the Register of the servient and dominant tenements the right of way referred to in the registered dealing. Section 136(1) of the Real Property Act, 1900."
The registered dealing was identified as Transfer A/752953 being the Middleton transfer.
The 2008 Request was accompanied by a statutory declaration by one of Sahab's directors which, amongst other things, pointed out the error in Mr Dockrill's statutory declaration as to the relevance of the transfer by Mr Davis of his estate in 69 Strathallen. It was also contended that the words of limitation contained in the opening words of the covenant related only to the first covenant being the fencing covenant and had no application to what was asserted to be the second covenant relating to the use of the right of way.
The Registrar-General responded to the 2008 Request in his letter of 2 October 2008 to which reference has already been made: see [10] above. It noted that in the statutory declaration accompanying that Request " a different interpretation of the terms of Schedule 'B' to Memorandum of Transfer A/752953 " had been advanced. The interpretation so advanced was to be compared to that advanced by Mr Dockrill which was based on the cessation of the right of way upon Mr Davis transferring 69 Strathallen by way of sale. The letter then set out the paragraph which we have recorded at [41] above. The Registrar-General concluded that he was not prepared to grant the Request and restore the right of way to the folios for 69 Strathallen and 134 Sailors Bay.
Sahab's solicitors responded by letter dated 14 October 2008 in which they threatened litigation and, in particular, asserted that Sahab was entitled to institute review proceedings in the Supreme Court pursuant to s 122 of the Act. By letter dated 20 October 2008 the Registrar-General replied noting that he had set out in his letter of 2 October 2008 the reasons for his decision not to restore the right of way to the relevant folios of the Register pursuant to s 136(1) of the Act being Sahab's asserted statutory foundation for the 2008 Request. He then relevantly continued in the following terms:
"In addition to the reasons outlined in my letter dated 2 October 2008, I make the following submission:
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 1/726736 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;
...
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.
In accordance with section 121 of the Real Property Act 1900 (NSW), 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 pursuant to section 136(1) of that Act."

The statutory basis for the 2001 decision

At [74] of his reasons the primary judge stated that, as Castle had submitted, the Registrar-General was exercising his powers under s 49 of the Act when he acceded to the 2001 Request and made the 2001 decision cancelling the recording of the right of way from the folios of the dominant and servient tenements.
In 2001, s 49 was relevantly in the following terms:
(1) The Registrar-General may cancel a recording relating to an easement in the Register if the easement has been abandoned.
(1A) The Registrar-General may, under this section, cancel a recording relating to an easement in relation to:
(a) all of the land benefited or burdened by the easement, or
(b) any one or more of the lots, or part of a lot, burdened by the easement, or
(c) any one or one or more of the lots benefited by the easement.
(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 .
...
(4) Before cancelling any such recording, the Registrar-General must consider any submission made, by a person having a registered estate or interest in land benefited by the easement, within the period fixed by the Registrar-General in a notice of intention to cancel the recording served personally or by post on the person. The period must be not less than one month from the date of the notice.
...
(5) The Registrar-General may cancel a recording in the Register relating to an easement:
(a) if satisfied that the recording relates to land for which the easement has no practical application because separate parcels of land that were respectively burdened and benefited by the easement have been consolidated into a single parcel, or ...."
It is noteworthy that the reasons for the 2001 decision provided by the Registrar-General pursuant to his Honour's order made on 26 October 2009 did not assert that he acted pursuant to s 49 when he made the 2001 decision. Nevertheless the primary judge (at [74]) considered that he did, given the material Castle had put before the Registrar-General in the 2001 Request and in the way he dealt with that material. With respect we beg to differ.
At [76] his Honour observed:
"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 s 49 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 s 49(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 Mrs Howard [sic] had not responded to that notice remains unexplained in the evidence."
As appears from [77] of his Honour's reasons, he concluded that the Registrar-General must have accepted Castle's construction of the terms of the Middleton transfer and its implied assertion that as the right of way was legally inoperative then it must have been abandoned. Further, to the extent that the 2001 Request sought cancellation not only of the right of way but also of the covenants in the Schedule of Covenants to the Middleton transfer, the Registrar-General was entitled to use ss 81I and 81J (erroneously referred to as ss 80I and 80J of the Act in the judgment) to achieve a result equivalent to the application of s 49.

A number of comments may be made with respect to those findings:
(a) The 2001 Request did seek the cancellation of the recording in the Register of both the right of way and " the covenant ". As it was acceded to, it would appear that the Registrar-General cancelled not only the right of way but also the covenants purportedly pursuant to s 81I of the Act as s 81J only applies where no application to extinguish a restrictive covenant has been made.
(b) However, s 81I had no application to what has been referred to as the fencing covenant as, first, the 2001 Request did not qualify as an application to which s 81A(1) applied and, secondly, because it was not a " fencing covenant " as that expression was defined in s 81. On the other hand so much of the Schedule of Covenants as related to the right of way by restricting its use to not more than twice daily and, possibly, which prohibited loitering on the right of way, would fall within the definition of " restrictive covenant " in s 81 but would not qualify to be extinguished under s 81I as they would not fulfil the requirements of s 81I(2). This is because they are not (as s 81I(2)(a) requires) a building materials covenant, a fencing covenant or a value of structures covenant; nor are they (as s 81I(2)(b) requires) of a type likely to lose all practical value after 12 years of operation.
(c) On the other hand those covenants as well as that which prohibited use of 69 Strathallen as a butcher's shop could be extinguished by the Registrar-General under s 81J(1)(a) upon the assumption first, that no application had been received by him to extinguish them (which was not Castle's case) and, secondly, Castle's construction of the covenants was accepted by the Registrar-General (which it apparently was) to the effect that the opening words of the covenants limited their operation until the Middletons or their executors transferred the residue land comprised in Certificate of Title Volume 7987 Folio 98 by way of sale (which occurred in 1960).
(d) There can be little doubt that whatever the statutory foundation for the Registrar-General cancelling or extinguishing the right of way from the folios of the Register relating to 69 Strathallen and 134 Sailors Bay, he neither purported nor was empowered to act pursuant to s 49 as clearly there had been no abandonment of the right of way either pursuant to s 49(2) or the general law: Treweeke v 36 Wolseley Road Pty Limited [1973] HCA 27; 128 CLR 274; Proprietors SP 9968 v Proprietors SP 11173 [1979] 2 NSWLR 605 at 616-617; Lolakis v Konitsas [2002] NSWSC 889; 11 BPR 20499 at [58]-[65]; Ashoil Holdings Pty Ltd v Fassoulas [2005] NSWCA 80; NSW ConvR 56-125 where, with the agreement of Handley JA and MW Campbell AJA, Tobias JA considered the principles governing abandonment at [29]-[36]; see generally, Woodman & Nettle " The Torrens System in NSW ", Thompson Lawbook Co at [49.60].
(e) Notwithstanding the primary judge's view to the contrary at [77] of his reasons, we can detect nothing in the materials provided by Castle in its 2001 Request or in the manner in which the Registrar-General acted on that material, including his reasons as provided in compliance with the order made by his Honour on 26 October 2009, that would enable the inference to be drawn that in making the 2001 decision he was exercising his powers under s 49(1) of the Act, or, for that matter, under s 81I or even s 81J.
(f) Neither before the primary judge or this Court did the Registrar-General suggest that the 2001 decision was so based.
However, if it be necessary to identify the power pursuant to which the Registrar-General acted in cancelling the recording of the right of way on the folios of the Register relating to the dominant and servient tenements, it is to be found in s 32(6) of the Act which was in the following terms:
"The Registrar-General shall have, and shall be deemed always to have had, power to cancel in such manner as the Registrar-General considers proper any recording in the Register that the Registrar-General is satisfied does not affect the land to which the recording purports to relate."
Upon the basis that the Registrar-General accepted Castle's contention that the right of way had ceased to exist upon the sale of 134 Sailors Bay in 1960, it no longer affected that land, as a consequence whereof he had the power to cancel the recording of the right of way in the Register pursuant to s 32(6).
Before taking any such action, he was required by s 12A(1) to give notice of the proposed action to any person that he considered should be notified of it. Pursuant to that obligation he notified the Howards. Section 12A(3) then provided:
"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 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."
In any event, the confirmation by the Registrar-General that he was not prepared to accede to the 2008 Request lodged by Castle to restore the right of way to the Register resulted in the institution of the present proceedings by way of summons on 7 November 2008. Irrespective of the statutory foundation for the 2001 decision, the question at issue was whether, if it be established that the right of way and its restrictive covenants are still operative, the Registrar-General or the Court has the power to correct the Register so as to reverse that decision.

Was the 2001 Request a "dealing" within the meaning of the Act?

During the course of argument on the appeal the question arose as to the characterisation of the 2001 Request. Clearly it was in a form which the Registrar-General had approved. But was it a " dealing " as defined? It is to be noted that the 2001 and 2008 Requests each contained a certification that " this dealing " was correct for the purposes of the Act. However, the Registrar-General could not make the Request a " dealing " unless the document fell within the relevant definition of that term.
On the other hand there is little doubt that he accepted that it was a "dealing" as he allotted it a distinctive reference (7924028W) purportedly pursuant to s 36(1A) of the Act. That provision empowers the Registrar-General to allot a number to a document he accepts only if it is a "dealing, memorandum or caveat" . The 2001 Request is clearly not a caveat. Though "memorandum" is a word used in various different contexts in the Act, s 36(1) confines its meaning, for the purposes of s 36, to the meaning it has in s 80A(1), namely, a document, in effect, setting out standard form covenants. The 2001 Request did not meet that description.
Upon being allotted its distinctive reference, the 2001 Request became lodged within the meaning of the Act: see s 36(1B). According to an historical search of the Registrar-General's records, he recorded the Request on 22 November 2001.
In s 3(1)(a) of the Act the word " Dealing " is relevantly defined as
"[a]ny instrument ... which is registrable or capable of being made registrable under the provisions of this Act, or in respect of which any recording in the Register is by this or any other Act ... permitted to be made."
In the same section " Instrument " is defined as
"[a]ny grant, certificate of title, conveyance, assurance, deed, map, plan, will, probate, or exemplification of will, or any other document in writing relating to the disposition, devolution or acquisition of land or evidencing title thereto."
It follows from the foregoing that to be a " dealing " within the meaning of the Act there must be an " instrument " as defined. The fact that the Registrar-General had apparently approved the form of a Request does not mean that it fell within the definition of " instrument " unless, relevantly, it was a document relating to the disposition of land (or an interest in land), or evidencing title thereto.
The 2001 Request sought the cancellation or expungement of the recording of the right of way from the folios of 69 Strathallen (as the dominant tenement) and 134 Sailors Bay (as the servient tenement). The right of way was, clearly, an interest in land. However, we do not accept that an application to cancel or expunge the recording of the right of way from the folios of the Register of those two parcels of land involved " the disposition " of the right of way given the context in which the word is used in the phrase " disposition, devolution or acquisition of land ". While the 2001 Request proceeded on the assumption that the title to the two relevant parcels of land included the benefit and burden, respectively, of the easement, that is not sufficient to make the 2001 Request a document "evidencing title" to the land.
We therefore do not accept that of itself the 2001 Request was a " dealing " within the meaning of the Act.
In Mulwala & District Services Club Ltd v Owners - Strata Plan 37724 [2000] NSWSC 1040; 50 NSWLR 458 Young J held that a document lodged with the Registrar-General to register a strata title by-law was an " instrument " and, therefore, a " dealing ". The basis of his Honour's decision was that the by-law in question would affect the proprietor's rights to use the common property, and a substantial interference with that right could be a matter going to the " title " to the common property. Section 48 of the Strata Schemes Management Act 1996 had the effect that an amendment to by-laws passed pursuant to s 47 of that Act had no force or effect until a notification in an approved form of the by-law affecting the amendment had been lodged with the Registrar-General, and registered. However, even before registration, the by-law effecting the amendment had the capacity to affect title, because changes in rights to use the common property would arise from it as soon as the comparatively mechanical steps of lodgement and registration had occurred. By comparison, in the present case there was no precedent action or event that was a "disposition, devolution or acquisition of land" or which had the capacity to affect title at the time the 2001 Request was lodged . Lodgement and registration of the 2001 Request was insufficient, by itself, to make any change to the title to the relevant land.
It was also contended by Castle that as the act of cancellation of the right of way was inextricably connected to the 2001 Request, then the combination of the two constituted a " dealing ". We do not accept this submission. An " instrument " is a document, not a document plus what is done with it.
However, notwithstanding that in our view it was incorrect to do so, the matter proceeded before the primary judge and generally on the appeal upon the basis that the 2001 Request did constitute a " dealing ". As the matter was conducted by the parties on that basis, including by the Registrar-General, we shall proceed as though the 2001 Request was a "dealing" . We note, however, that whether or not the 2001 Request was a " dealing " within the meaning of the Act had no bearing upon the Registrar-General's power to cancel the recording of the right of way in the Register pursuant to s 32(6) upon the basis that he was satisfied that it no longer affected the land to which the recording related, namely, 134 Sailors Bay, as the servient tenement. Nor does the route by which we ultimately reach our conclusions concerning the orders to be made in this case depend upon whether the 2001 Request is a "dealing" .

The proper construction of the covenants contained in the Middleton transfer

(a) The primary judge's findings

The primary judge dealt with the construction of the grant of the right of way and the covenants contained in the Schedule of Covenants at [29]-[36] of his reasons. His Honour considered that the existence of the right of way was not conditional upon the continued operation of any of those covenants and that the covenants relating to the right of way continued in operation. In this respect his Honour (and the parties) accepted that there were three covenants contained in Schedule "B" to the Middleton transfer. They were as follows:
(a) The first covenant was the fencing covenant which concluded with the words
"and this restriction may be released, varied or modified by the owner or owners for the time being of such adjoining land."
(b) The second related to the right of way and commenced with the words
"and the transferee for himself and his assigns further covenants with us, our executors administrators or assigns that"
followed by four restrictions: first, the right of way was not to be used more than twice daily; secondly, the transferee was to be liable for any damage done to any drainage pipes and pits and any other damage caused by the use of the right of way by the transferee or by persons delivering goods to the dominant tenement; thirdly, the transferee was not to permit any loitering on the right of way and, fourthly, the transferee was to pay to the transferors one-fourth of the rates levied from time to time upon the land comprising the right of way.
(c) The third covenant (which was a restrictive covenant) prohibited the transferee using the land transferred (69 Strathallen) as a butcher shop.
Following the third covenant was a provision which we regard as significant:
"The burden of the foregoing covenants is appurtenant to the whole of the land comprised in the herein before mentioned 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."
It may well be that in the immediately preceding citation the first reference to " burden " should be a reference to " benefit ". In other words, the restrictions relating to the second and third covenants were for the benefit of the transferor who retained the land in Certificate of Title Volume 2978 Folio 91 other than so much thereof as was transferred to Mr Davis and which became 69 Strathallen. That might follow (though imperfectly), from "the before mentioned Certificate of Title" being a certificate that related to both the land that the Middletons transferred to Mr Davis, and the land that the Middletons retained.
The primary judge's reasons for finding that the right of way remained in existence as did the covenants restricting its use, may be summarised as follows:
(a) The words in the body of the Middleton transfer "... 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 hereafter mentioned)" bespeak a permanent grant of a right of way: the words "being limited as stated in the covenants" contain restrictions on the scope of the right of way to be enjoyed rather than on its existence;
(b) So far as the terms of the Schedule of Covenants was concerned, the opening words that introduced a temporal limitation on the obligations of the transferee contemplated the ending only of the covenants themselves and not the right of way as such. In their ordinary meaning those words, if read distributively across all three covenants, merely qualified the application of the covenanted limitations to the right of way and not to the right of way itself. It was difficult to make the words of any of the covenants work to rescind the grant contained in the body of the Middleton transfer;
(c) Merely because the grant of the right of way was expressed in the Middleton transfer to be " limited as stated in the covenants hereafter mentioned " did not mean that every limitation found in the operation of the covenants must be a limitation on the grant of the right of way itself;
(d) In accordance with authority and in the absence of a contrary intention, the grant of an easement should be construed against the grantor. His Honour considered the meaning of the words of the right of way in the covenant in the Middleton transfer were clear;
(e) The opening words of the Schedule of Covenants should be read as applying only to the first covenant being the fencing covenant. It was difficult to see how they could be read to apply to the second covenant (being the right of way) given that it had its own introductory words, namely,
"and the transferee for himself and his assigns further covenants with us, our executors, administrators and assigns that ..."
(f) Further, the contents of the fencing covenant refer to the need for the transferee's consent to the erection of certain fences which would become unworkable after the 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 benefit of the Middletons or any subsequent purchaser from them;
(g) Finally, the structure of the Schedule of Covenants strongly suggested three independent covenants; the opening words of the second covenant created a stand alone description of the transferee's obligations with respect to his enjoyment of the right of way without the need to import the opening words of the fencing covenant.

(b) Submissions with respect to the issue of construction

By its Amended Notice of Contention, Castle submitted first, that the opening words of the Schedule of Covenants as well as the words of limitation in the body of the Middleton transfer were intended to limit the existence of the right of way so that it expired when the Middletons or their executors transferred the servient tenement by way of sale. On the other hand, Sahab contended that the right of way continued to exist but that the four restrictions on its use ceased upon any such transfer.

(c) The right of way and the covenants describing its use remain operative

In our view, both these contentions should be rejected. We consider that his Honour was correct in confining the opening words of the Schedule of Covenants to the fencing covenant alone. That it is a stand alone covenant is supported by reference to its concluding words, namely,
"and this restriction may be released, varied or modified by the owner or owners for the time being of such adjoining land."
The " adjoining land " was that retained and owned by the Middletons, being the residue of the land in Certificate of Title Volume 2978 Folio 91.
It seems to us that the fencing covenant commences with the opening words of the Schedule and concludes with the words which we have just recorded. The right of way itself is the subject of the grant in the body of the Middleton transfer albeit that it is to be limited as stated in the covenants, this being reference to the four limitations or restrictions to which we have referred at [70(b)] above. This construction is further supported by the opening words of the second covenant, namely,
"and the transferee for himself and his assigns further covenants with us, our executors, administrators and assigns that ..."
which would not have been necessary had the opening words of the Schedule of Covenants applied to all the covenants which followed them.
Furthermore, the last sentence of the Schedule of Covenants which we have recorded at [71] above is applicable only to the second and third covenants as the first covenant (the fencing covenant) has its own independent words of release, variation and modification. Finally, there is the point concerning capitalisation that we made at [29] above.
Accordingly, in our opinion not only was the grant of the right of way permanent and not dependent upon the ownership by the Middletons or their executors, administrators and assigns other than purchasers of sale of the servient tenement, but the four restrictions set out in the Schedule of Covenants relating to the right of way are also not dependant upon the retention by the Middletons of that tenement. It follows, therefore, that the primary judge was correct to find that the right of way did not cease to affect 134 Sailors Bay as the servient tenement when the executors of the Middletons transferred that property in 1960 and that it continued to burden that land for the benefit of 69 Strathallen subject to the four restrictions on its use and enjoyment contained in the second covenant.

However, that does not of itself have the consequence that the expungement of the right of way did not result in Castle obtaining an indefeasible title to its land free of the right of way. While registration of a dealing is the most common way by which an indefeasible title is obtained, the critical thing for indefeasibility under s 42, is what appears on the folio of the Register that relates to a particular parcel of land, and the exceptions to indefeasibility that s 42 itself creates. It is possible to derive an indefeasible title through a new folio of the Register being issued without any dealing being involved (eg under s 13A, s 17 or s 46C of the Act). And it would be assuming what is in dispute in the present case to say that an exercise of the power to amend the Register under s 32(6) c annot result in an indefeasible title being created.
As we explain below, in our opinion s 42(1)(a1) of the Act has the effect that Castle cannot rely on a submission that it has an indefeasible title to 134 Sailors Bay freed from the burden of the right of way as an answer to Sahab's claims. If this be so, then its reliance on s 118(1) is misconceived.
We should add for completeness that, subject to the effect of s 42(1)(a1) on the present case, the position would have been different had Castle transferred or mortgaged 134 Sailors Bay after the 2001 decision and at a time when the Register no longer recorded the right of way. Upon registration of the transfer or mortgage the transferee or mortgagee, as the case may be, would take title freed from the right of way: s 42(1). A transferee (but not a mortgagee who does not take an interest under a dealing executed by a registered proprietor: IAC (Finance) Pty Limited v Courtnay [1963] HCA 64; (1963) 110 CLR 550) would also have the protection of s 43A in the interval between completion of a purchase (or other transaction) and registration of the relevant dealing (usually a transfer) if during that interval it received notice of the right of way as an unregistered instrument.

Section 42(1)(a1) of the Act

The engaging of s 42(1)(a1) arose during the course of oral argument on the appeal. It was not relied upon by Sahab before the primary judge. After it was raised in argument, Sahab embraced it. No objection was taken to it doing so either by Castle or the Registrar-General. The parties were granted leave to provide supplementary written submissions on this issue which they did.
The indefeasibility of title established by s 42(1) of the Act is subject to the following exception:
"(a1) in the case of the omission...of an easement subsisting immediately before the land was brought under the provisions of this Act or validly created at or after that time under this or any other Act..."
It is not in contest that the right of way, being an easement, was validly created after 134 Sailors Bay was brought under the provisions of the Act. The question which arises for consideration is whether there has been an " omission " of the easement from the folio of the Register relating to 134 Sailors Bay. If there has been such an omission, then s 12(1)(d) empowered the Registrar-General to correct that omission. His failure to do so was capable of attracting the jurisdiction of the Court to order that the Register be corrected as no question of indefeasibility would arise as there have been no dealings with 134 Sailors Bay since the 2001 decision with the consequence that s 45 has not been engaged.
The construction of the word " omission " in s 42(1)(a1) was the subject of detailed discussion in this Court in Dobbie v Davidson (1991) 23 NSWLR 625. At that time the relevant provision was s 42(b) which provided an exception:
"in the case of the omission or misdescription of any right-of-way or other easement created in or existing upon any land."
It was not suggested that there was any relevant difference between the two provisions so far as the proper construction of the word " omission " in each of them is concerned.
The Court in Dobbie was constituted by Kirby P, Priestley and Handley JJA. Both Kirby P and Priestley JA gave detailed separate judgments. Handley JA agreed with Priestley JA subject to some comments not presently relevant. Each of their Honours concluded that the word " omission " in s 42(b) of the Act meant " left out " or " something not there ".
In so holding their Honours rejected the construction of the word " omission " adopted by Mahoney JA, with whom Reynolds and Samuels JJA agreed, in Australian Hi-Fi Publications Pty Limited v Gehl (1979) 2 NSWLR 618 to the effect that " omission " in the context of s 42(b) meant not just that the right of way was missing from the Register but that it was " not there " because something which ought to have been done under the Act by the Registrar-General or by someone else, had not been done.
In Dobbie v Davidson , Mr and Mrs Dobbie owned a property called "Lumley Park" which had been brought under the provisions of the Act in 1964, the Dobbies becoming registered as its proprietors in 1998. Mr and Mrs Davidson owned the property known as "Ellerslie". A substantial part of the boundary of that property formed a common boundary with part of "Lumley Park". In order to gain access to "Ellerslie" from the nearest public highway, Mr and Mrs Davidson had continuously used for almost 60 years a dirt road which led from the highway through "Lumley Park" to their property and which was their only means of access. They claimed a prescriptive right of way over the dirt road.
The trial judge, Waddell CJ in Eq, held that immediately prior to "Lumley Park" being brought under the Act, the disputed right of way existed by prescription. However, notwithstanding that the right of way existed at that time, it was not recorded on the folio of the Register relating to "Lumley Park". This was not because of any breach of any obligation by the Registrar-General; it was simply because he was not made aware of it. The question therefore arose as to whether that was an " omission " within the meaning of s 42(b). His Honour held that it was and an appeal from his decision to this Court was dismissed.
In this Court, Kirby P set out a number of reasons why, in his opinion, " omission " in s 42(b) meant " left out " or " not there ". He first referred to the primary dictionary definition of " omit " as " to leave out ". This was a use of the idea of " omission " in a colourless sense, imputing neither fault nor praise for the omission but merely describing what the word normally involves. His Honour considered that the word should be given its primary meaning of " left out " irrespective of the cause or reason which resulted in it being left out. The trend of the authorities, the President said,
"appears simply to regard the effect of the statutory registered title as not operating to destroy or extinguish pre-existing easements and rights-of-way. Repeatedly, the view taken of 'omission' in the context paid no regard to notions of fault on the part of the Registrar-General or anyone else."
In rejecting the construction urged by Mr and Mrs Dobbie relying upon Gehl, the President considered that it would be unduly disruptive of the orderly and expeditious consideration of primary applications to bring land under the Act if the Registrar-General were obliged, in every case, to address attention to the possibility that undisclosed rights of way or other easements might exist in favour of adjoining land. He continued (at 632):
"A preferable approach to the construction of the Registrar-General's obligations is to regard the applicant who wishes to bring land under the Act as having the burden of making out title, so that the Registrar-General's obligation is to examine the title so adduced. An applicant who then omits (whether intentionally or unintentionally) the disclosure of a right-of-way or other easement should be taken to do so at peril to that applicant's title (and the title of successors) is subject to the right-of-way or other easement which is not extinguished by the mere issue of the certificate of title omitting it...Above all, [such an approach] would preserve valuable established rights which have simply been 'omitted' in the sense of 'left out'."
The President therefore rejected any construction of " omission " which required some fault or failure on the part of the Registrar-General or, for that matter, anyone else.
Priestley JA in his reasons rejected an intermediate meaning, namely, " not there merely because a person did not do something that person was entitled to do " (to use the words of Mahoney JA in Gehl at 622). At 646 his Honour stated that s 42(b) did not, to his mind, give any indication that the omission or misdescription must come about because of any particular class of event, or, to put the same point another way, that either word was to be read in some qualified way.
After analysing the judgment of Mahoney JA in Gehl, his Honour noted (at 658) that Mr and Mrs Dobbie asserted that Gehl established that the meaning of " omission " in s 42(b) was confined to something missing because something which ought to have been done under the Act, or by the Registrar-General, had not been done. However, Gehl did not require a determination of the issue raised in the present case, which was whether a prescriptive right of way over land at the time it was being brought under the Act was extinguished because it was not noted on the certificate of title then issued. In any event, his Honour considered (at 659) that Mahoney JA left open as " arguable " the possibility that " omission " might extend to a case where something was not there merely because someone had not done something which that person was entitled to do. Accordingly, Priestley JA concluded that " omission " in s 42(b) meant " something not there ". If the right of way was not on the relevant certificate of title, then there was an " omission " and nothing more was required.
Thus as observed by Professor Butt, ibid at [20 84], this Court in Dobbie rejected the proposition for which Gehl was said to be authority, namely, that " omitted " in the former s 42(1)(b) did not mean simply " not there " so that unless fault or neglect could be sheeted home to the Registrar-General, the unrecorded easement remained unenforceable. On the contrary, the correct position as established by Dobbie was that it was sufficient to show that the easement was " left out " in the colourless sense of being " not there ", it being unnecessary to link its absence to the Registrar-General's fault or neglect.
Castle nevertheless submitted that the facts of Dobbie v Davidson were quite different to those of the present case. In that case the easement or right of way had never been recorded on the relevant folio whereas in the present case it had been but was later expunged therefrom. In other words, a positive act on the part of the Registrar-General to remove the right of way from the Register did not involve an " omission " within the meaning of s 42(1)(a1). The Registrar-General also submitted that a considered decision by him to actively and positively expunge the recording of the right of way from the Register could not be an " omission " within the meaning of s 42(1)(a1). An " omission " involved something passive and excluded a positive act.
As was observed during the course of argument, the " omission " of an easement, in the context of s 42(1)(a1), is not an act but a status. True it is that the removal of the recording of the right of way on the folio of 134 Sailors Bay involved an act on the part of the Registrar-General. But after its removal the right of way was no longer " there " in the sense that it was an estate or interest recorded in a folio of the Register. Irrespective of how it came about, at the time of the 2008 decision the right of way was " not there " in that it was not recorded on the folio of the Register which would otherwise have attracted the indefeasibility provisions of s 42(1).
The point was made good in the course of argument by a member of the Court. As s 42(1) is directed to the state of the Register and as the conclusiveness of the Register is the fundamental premise upon which the Torrens system of title by registration is founded, if one looks at the Register and the easement is not there but should be, it follows that it has been omitted. The reason for its omission or why it is " not there " is irrelevant.
In our opinion, the fact that the Registrar-General, at the request of Castle, removed the right of way from the folio of the Register relating to 134 Sailors Bay so that that act constituted the cause or reason for the right of way no longer being " there " upon the title to that land, does not affect whether s 42(1)(a1) applies. An example of how it is unnecessary to search for the reason for the omission of an easement is that it has been held that there is no reason for confining the word " omission " in the subsection to an easement which is not only " left out " or " not there " but also has never been there until the relevant land was brought under the provisions of the Act. In his reasons in Dobbie (at 633) Kirby P rejected a construction of " omission " as being one which resulted through some fault or failure on the part of the Registrar-General or, for that matter, anyone else. So also did Priestley JA at 660. In the present case it could be said that the right of way has been omitted (in the sense of removed from the relevant folio) due to the fault of the Registrar-General in acceding the 2001 Request based, on one view, on a mistaken interpretation of the terms of the right of way. If this be correct, as in our opinion it is, then the factual difference between the present case and Dobbie v Davidson is not one that can justify a gloss on the meaning of " omission " that this Court did not consider appropriate in Dobbie.
Before leaving this issue we should mention that both Castle and the Registrar-General drew the Court's attention to the Explanatory Note to the Property Legislation Amendment (Easements) Bill 1995 which proposed the insertion of s 42(1)(a1) into the Act. The Note includes the following statement:
"In the case of an easement that is omitted it does not make any difference if the easement has never been recorded in the folio or, although previously recorded, it is omitted from the folio because of an administrative error".
The Note went on to assert that the amendment was consistent with the decision in Dobbie v Davidson .
It was therefore submitted that s 42(1)(a1) had no application to the present case as it was only intended to apply to the two situations considered by this Court in Dobbie v Davidson , namely:
(i) where an easement has never been recorded in the folio, and
(ii) where an easement previously recorded has been omitted due to administrative error.
Neither situation applied to the present case where the Registrar-General had made a deliberate decision to remove the easement from the relevant folio.
The Registrar-General also drew attention to the fact that the same Bill introduced into the Act the present s 49 by which he may cancel the recording of an easement in a folio of the Register if satisfied that it has been abandoned. The Explanatory Note envisages that the satisfaction of the Registrar-General as to 20 years or more of non-use of an easement is to be the sole criteria of abandonment. However, in this respect there is a clear tension between the Explanatory Note and the text of s 49. Section 49(2) provides as follows:
"An easement may be treated as abandoned if the Registrar-General is satisfied it has not been used for at least 20 years..."
Had that been the sole criteria of abandonment then the introductory words of s 49(2) would have read as follows:
"An easement is abandoned only if the Registrar-General is satisfied..."
Section 49(2) empowers, but does not require, the Registrar-General to treat lack of use for 20 years as an abandonment even if otherwise abandonment has not been established in accordance with general principles. The text of the section obviously takes precedence over the Explanatory Note.
The same comment applies to that part of the Explanatory Note that might otherwise suggest that an easement is only omitted within the meaning of s 42(1)(a1) if it has never been recorded in the folio or, although previously recorded, has been omitted from the folio because of an administrative error. The second situation is not consistent with Dobbie v Davidson which made it clear that whether an easement has been omitted due to an administrative error or for any other reason is irrelevant: it was " not there " and that is sufficient.
Accordingly, in our view it is impermissible to use the Explanatory Note to construe the word " omission " in s 42(1)(a1) in a manner different to the construction of that word adopted by this Court in Dobbie v Davidson . The Court made it clear in that case that the word had the meaning of " left out " or " not there " irrespective of the cause of, and without attribution of cause or fault or reason for, the omission. We would therefore reject the submissions of Castle and the Registrar-General on this issue.
For the foregoing reasons, in our opinion the right of way has been omitted within the meaning of s 42(1)(a1). As it was not suggested that the word " omission " in that provision should be construed any differently to the word " omission " in s 12(1)(d), and in general the one word should be given the same meaning whenever it occurs in a statute unless the context requires otherwise, it follows that the Registrar-General was empowered to correct that omission in 2008 when requested to do so. In this respect it needs to be recalled that the Registrar-General considered he had no power to correct the Register but in our view that was a stance that was incorrect. Having the power to correct the Register, it is clear that he should have done so and it is now open to ensure that the Register is corrected by ordering that the Registrar-General amend the folios of the Register relating to the dominant and servient tenements by recording therein the right of way. Further, he should be ordered to issue new certificates of title to each of Sahab and Castle giving effect to those amendments. Neither Castle nor the Registrar-General contested the proposition that if the right of way had been omitted within the meaning of s 42(1)(a1), there was no impediment to the Court making the orders to which we have referred: cf St Abanoub Properties at [39].

Conclusion

In our view Sahab has succeeded on its appeal with respect to its reliance on ss 122 and 12(1)(d) in combination, with respect to its reliance on s 122 and 136(1)(b) in combination, and with respect to its reliance on s 138. It has not succeeded with respect to its reliance on s 136(1)(b) in isolation, or in its reliance on s 136(1)(c). It has failed to establish that the right of way has been freed from the four conditions that attached to it. It has also succeeded on its late reliance on s 42(1)(a1). It is therefore entitled to an order that the appeal be allowed and that the Registrar-General amend the folios in the Register relating to 69 Strathallen and 134 Sailors Bay by restoring the right of way to those folios and an order that Castle deliver up or take all steps within its power to cause to be delivered up the certificate of title to 134 Sailors Bay for the purpose of giving effect to the order referred to. It may or may not be entitled to some form of declaratory relief.
We have neither received nor heard submissions with respect to such an entitlement but we note that no issue appears to be taken with respect to the remarks of the primary judge at [15]-[17] of the third judgment. It may be that the order for delivery up of the certificate of title to 134 Sailors Bay does not result in actual delivery up of the certificate of title because it is in the hands of a mortgagee who will respond only to a legal obligation on it to deliver up the certificate of title. If that is so, further action by the Registrar-General, or ultimately the court, might be required if the legal rights we have decided exist are to be fully effectuated. However, without knowing the attitude of the mortgagee, and joinder of the mortgagee to legal proceedings, it would be premature to order that any such step be taken.

Leave to Cross-Appeal on costs

In the third judgment the primary judge dealt with issues with respect to the formulation of orders and final relief and costs. As to the latter his Honour's orders were as follows:
(a) the Registrar-General to pay Sahab's costs of the motion of 29 May 2009;
(b) Sahab to pay the Registrar-General's costs of the proceedings other than on the motion of 29 May 2009;
(c) no order as to costs as between Sahab and Castle;
(d) no order as to costs as between Castle and the Registrar-General.
There is no challenge to orders (a), (b) and (d). However Castle seeks leave to cross-appeal against order (c) on the basis that his Honour's discretion miscarried in refusing to order that Sahab pay Castle's costs of the proceedings given that Castle was, except with respect to the issue of the construction of the terms of the right of way and covenants, successful in resisting Sahab's attempt to, as his Honour put it, find " an available path through the legislation to warrant a grant of relief ".
The primary judge encapsulated his reasons for declining to order that Sahab pay Castle's costs of the proceedings (other than Castle's costs on the May motion) at [48] of his reasons in the third judgment as follows:
"In similar vein, Mr Burton says that Sahab was not responsible for creating the position in which it found itself. This factor alone would not incline me to vary the principle that costs follow the event. However, another factor is significant in this case. I have found that Castle advanced an incorrect and misleading statutory declaration to the Registrar-General which led to the 2001 decision. Whilst I am mindful the costs jurisdiction is compensatory and not punitive it is difficult to escape the conclusion in this case when one analyses the careful correspondence pursued by Sahab against the Registrar-General before commencing proceedings, that Castle's conduct ultimately occasioned Sahab to take some step such as this to free itself from the problem of it being landlocked which it then faced. The circumstances are in my view analogous to those which confronted Young J in Scallan's Case at 520-521. Castle's incorrect and misleading statutory declaration is sufficient misconduct in relation to the transaction the subject of the proceedings to warrant departure from the usual principles. I do not think that a costs order against Castle is warranted. I will make no other order as to costs between Sahab and Castle."
The submissions of the parties with respect to Castle's Summons for Leave to Appeal against his Honour's refusal to grant it costs against Sahab in the proceedings only requires consideration in the event that otherwise Sahab's appeal to this Court is dismissed. As we are of the opinion that the appeal should be allowed as Sahab has succeeded not only on the issue of construction but also with respect to its entitlement to call in aid s 138 and s 22 for the purpose of the reinstatement of the right of way, it follows that the foundation which underlay the primary judge's findings with respect to costs as between Sahab and Castle is undermined. In these circumstances the primary judge's order that there be no order as to costs as between Sahab and Castle in the proceedings must be set aside to reflect Sahab's success on its appeal. It also follows that Castle's Summons for Leave to Appeal becomes academic and should, in our opinion, be dismissed with no order as to costs.
However that still leaves the question of an appropriate order for costs with respect to the proceedings at first instance (other than the costs with respect to the May motion). No submissions were put to the Court to suggest that if Sahab's appeal succeeded it should not be entitled to its costs at first instance. However, in its Notice of Appeal it sought an order for costs of the proceedings against both Castle and the Registrar-General.
So far as the question as to whether any order should be made against the Registrar-General is concerned, we note that at [45] of the third judgment his Honour observed that the Registrar-General's involvement in the substantive issues in the proceedings (other than on the May motion) was minimal and that the burden of establishing that Sahab had no statutory remedies to rectify the Register following the 2001 decision fell to Castle. As Sahab had failed before his Honour, he ordered that as between Sahab and the Registrar-General the former should pay the latter's costs on an ordinary basis in respect of all parts of the proceedings other than the costs of the May motion.
Given that Sahab has now succeeded on its appeal, it does not seem to us that it is appropriate that order (b) referred to in [277] above should stand. We therefore express the tentative view that the Registrar-General should pay its own costs of the proceedings other than on the May motion with respect to which he was ordered to pay Sahab's costs, an order that is not challenged.
As between Sahab and Castle, we see no reason why costs should not follow the event as a consequence whereof Castle should be ordered to pay Sahab's costs of the proceedings at first instance other than on the May motion.
With respect to the costs of the appeal, the Registrar-General took an active role in resisting that appeal as did Castle. In view of Sahab's success on the appeal, we see no reason why Castle and the Registrar-General should not pay Sahab's costs of the appeal.
We would therefore tentatively propose the following costs orders:
(a) set aside Order 2 made by Slattery J on 5 May 2010 and so much of Order 3 as provided that there be no orders as to costs as between the appellant and the second respondent;
(b) the second respondent to pay the appellant's costs of the proceedings at first instance other than on the motion of 29 May 2009;
(c) the respondents to pay the appellant's costs of the appeal.
In the event that the parties wish to make any further submissions with respect to the tentative costs orders that we have proposed then we would direct that written submissions in that respect be filed on or before 3 February 2012. If the parties are content with the costs orders we have proposed, they should be incorporated into the Short Minutes. Furthermore, within that same period the parties are to bring in Short Minutes of Order to give effect to what we have said at [236] [274] and [280] above.
The specific orders we propose are:
(1) Direct the parties by 3 February 2012 to file and serve agreed Short Minutes of the orders to be made to give effect to these reasons for judgment.
(2) In the event that such agreement is not possible, direct the parties to file and serve by 3 February 2012 their respective drafts of such short minutes, together with written submissions in support of their respective drafts, and providing reasons why the draft of the opposite party is inappropriate, each such written submission not to exceed 8 pages without the leave of the court.
(3) Grant liberty to apply to any judge who heard the present appeal on 24 hours notice concerning such leave.
**********

Case Title:	Sahab Holdings Pty Ltd v Registrar-General
Medium Neutral Citation:	[2011] NSWCA 395
Hearing Date(s):	23 June 2011
Decision Date:	15 December 2011
Jurisdiction:
Before:	McColl JA at 1, Campbell JA at 2, Tobias AJA at 2
Decision:	(1) Direct the parties by 3 February 2012 to file and serve agreed Short Minutes of the orders to be made to give effect to these reasons for judgment. (2) In the event that such agreement is not possible, direct the parties to file and serve by 3 February 2012 their respective drafts of such short minutes, together with written submissions in support of their respective drafts, and providing reasons why the draft of the opposite party is inappropriate, each such written submission not to exceed 8 pages without the leave of the court. (3) Grant liberty to apply to any judge who heard the present appeal on 24 hours notice concerning such leave. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	REAL PROPERTY - Easements - Registrar-General expunged right of way from folios in the Register relating to two properties - expungement was procured by mistaken but arguable interpretation of terms of covenants - whether Registrar-General can be compelled to restore right of way to folios in the Register of the two properties - REAL PROPERTY - Powers of Registrar-General - s 32(6) Real Property Act 1900 - power to cancel recordings - REAL PROPERTY - Powers of Registrar-General - s 136 - power to call in and correct certificate of title or duplicate registered dealing - whether implied power to correct the Register itself - whether expungement of right of way from Register was "recording" - whether expungement was "wrongfully obtained" - whether expungement was "made in error" - whether Registrar-General was "satisfied" that expungement was "wrongfully obtained" or "made in error" - REAL PROPERTY - Powers of Registrar-General - s 12(1)(d) - power to correct errors and omissions in the Register - whether expungement of right of way from Register was "error" - whether expungement was "omission" - whether term "omission" in s 12(1)(d) to be construed in the same way as "omission" in s 42(1)(a1) - term "omission" in s 12(1)(d) has the meaning of something "left out" or "not there" irrespective of the cause of, and without the attribution of cause or fault or reason for, the omission - REAL PROPERTY - Powers of Court - s 138 - power of Court to order the Registrar-General to amend folios of the Register to reinstate the right of way - whether proceedings were proceedings for "recovery" of interest in land - whether certificate of title had not been or not likely to be produced - whether s 138(3) provides separate and independent source of authority for the Court to order the Registrar-General to correct the Register if the proceedings did not fall within s 138(1) or (2) - REAL PROPERTY - Powers of Court - ss 121, 122 - power of Court to review Registrar-General's decision and order the Registrar-General to amend folios of the Register to reinstate the right of way - s 121 - standing - whether Registrar-General's decision to expunge right of way was decision to have "dealing registered or recorded" - whether decision was decision to have certificate of title issued - whether decision was decision to have exercised or performed function or duty required to be performed by Registrar-General - REAL PROPERTY - Powers of Court - ss 121, 122 - power of Court to review Registrar-General's decision and order the Registrar-General to amend folios of the Register to reinstate the right of way - s 122 - whether s 122(1) confers jurisdiction to conduct merits-based review of the decision of Registrar-General - whether lapse of time removes Court's power to review - orders that the Court can make limited to orders that the Registrar-General "could, but for the order, have taken" - whether correction of removal of right of way was an order that the Registrar-General "could, but for the order, have taken" - where power conferred on the Registrar-General in terms that make it exercisable "upon such evidence as appears to the Registrar-General sufficient" - when Court is exercising a power of review under s 122, whether the corresponding precondition is that there be evidence that appears to the Court sufficient - whether coda to s 122(4) provides broader power than that contained in s 122(4)(b) - REAL PROPERTY - Indefeasibility of title - exceptions - "omission" of easement - effect of Dobbie v Davidson (1991) 23 NSWLR 625 - term "omission" in s 12(1)(d) has the meaning of something "left out" or "not there" irrespective of the cause of, and without the attribution of cause or fault or reason for, the omission - REAL PROPERTY - Easements - construction of grant of right of way and of attendant covenants - ESTOPPEL - Issue estoppel - where point not expressly decided in earlier decision but where point was necessary to the decision - parties cannot raise points necessary to the earlier decision if to raise them is necessarily to assert that earlier decision was erroneous -
Legislation Cited:	Crown Lands Consolidation Act 1913 Local Government Act 1919 Property Legislation Amendment (Easements) Bill 1995 Real Property Act 1900 Real Property Amendment (Compensation) Act 2000 Strata Schemes Management Act 1996 Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Workplace Injury Management and Workers Compensation Act 1988
Cases Cited:	Ashoil Holdings Pty Ltd v Fassoulas [2005] NSWCA 80; NSW ConvR 56-125 Australian Hi-Fi Publications Pty Limited v Gehl (1979) 2 NSWLR 618 Black v Garnock [2007] HCA 31; 230 CLR 438 Blair v Curran [1939] HCA 23; 62 CLR 464 Breskvar v Wall [1971] HCA 70; 126 CLR 376 City of Canada Bay Council v F & D Bonaccorso Pty Limited & Others [2007] NSWCA 351; (2007) 71 NSWLR 424 Cook v Midpart Pty Ltd trading as McDonald's Forster [2008] NSWCA 151 CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 Dobbie v Davidson (1991) 23 NSWLR 625 Ex parte Gallagher (1908) 8 SR (NSW) 230 FNCB-Waltons Finance Limited v Crest Realty Pty Limited and Others (1977) 10 NSWLR 621 Frazer v Walker [1967] AC 569 Halloran v Minister Administering National Parks and Wildlife Act 1974 [2006] HCA 3; 229 CLR 545 IAC (Finance) Pty Limited v Courtnay [1963] HCA 64; (1963) 110 CLR 550 James v The Registrar-General (1967) 69 SR (NSW) 361 Lolakis v Konitsas [2002] NSWSC 889; 11 BPR 20499 McGuinness v The Registrar General (1998) 44 NSWLR 61 Mogo Local Aboriginal Land Council v Eurobodalla Shire Council & Others [2002] NSWCA 12; (2001) 54 NSWLR 15 Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46 Mulwala & District Services Club Ltd v Owners - Strata Plan 37724 [2000] NSWSC 1040; 50 NSWLR 458 NSW Police Force v Winter [2011] NSWCA 330 Perpetual Trustees Victoria Ltd v English [2010] NSWCA 32; (2010) 14 BPR 27,339 Pirie v Registrar General [1962] HCA 58; 109 CLR 619 Powercell Pty Limited v Cuzeno Pty Limited [2003] NSWSC 600; (2003) 11 BPR 21,385 Powercell Pty Limited v Cuzeno Pty Limited [2004] NSWCA 51; (2004) 11 BPR 21,429 Powercell Pty Ltd v Cuzeno Pty Ltd [2005] HCA Trans 94 Proprietors SP 9968 v Proprietors SP 11173 [1979] 2 NSWLR 605 Quach v Marrickville Municipal Council (No 1) (1990) 22 NSWLR 55 Quach v Marrickville Municipal Council (No 2) (1990) 22 NSWLR 65 Queensland Premier Mines Pty Ltd v French [2007] HCA 53; 235 CLR 81 Re N Jobson and the Real Property Act 1900 (1950) 51 SR (NSW) 76 Sahab Holdings Pty Limited v Registrar-General & Anor [2009] NSWSC 1143 Sahab Holdings Pty Ltd v Registrar General and Anor (No 2) [2010] NSWSC 162 Sahab Holdings Pty Ltd v Registrar-General and Anor [No 3] [2010] NSWSC 403 Scallan v Registrar-General (1988) 12 NSWLR 514 Sapina v Coles Myer Ltd [2009] NSWCA 71 St Abanoub v Registrar-General [2002] NSWSC 615 State Bank of New South Wales v Berowra Waters Holdings Pty Limited (1986) 4 NSWLR 398 State Transport Authority of New South Wales v Chemler [2007] NSWCA 249 Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 Treweeke v 36 Wolseley Road Pty Limited [1973] HCA 27; 128 CLR 274
Texts Cited:	Professor Peter Butt "Land Law" 6th ed., Law Book Co, 2010 Woodman & Nettle "The Torrens System in NSW", Thompson Lawbook Co
Category:	Principal judgment
Parties:	Appellant: SAHAB HOLDINGS PTY LTD (ACN 002 728 216) First Respondent: REGISTRAR-GENERAL Second Respondent: CASTLE CONSTRUCTIONS PTY LTD (ACN 001 602 188)
Representation
- Counsel:	Appellant: G K Burton SC First Respondent: P B Walsh Second Respondent: M L D Einfeld QC/ J Horowitz
- Solicitors:	Appellant: Kanjian & Co First Respondent: Land and Property Management Authority Legal Services Second Respondent: Domain Legal
File number(s):	2008/281514
Decision Under Appeal
- Court / Tribunal:
- Before:	Slattery J
- Date of Decision:
- Citation:	Sahab Holdings Pty Limited v Registrar-General & Anor [2009] NSWSC 1143; Sahab Holdings Pty Ltd v Registrar General and Anor (No 2) [2010] NSWSC 162; Sahab Holdings Pty Ltd v Registered-General and Anor [No 3] [2010] NSWSC 403
- Court File Number(s)	5563/08
Publication Restriction: