Sahab Holdings Pty Ltd v Registrar-General

Sahab Holdings Pty Ltd appealed to the New South Wales Court of Appeal against decisions of the Registrar-General to expunge a right of way from the folios of the Register relating to two properties. The expungement was based on what the Registrar-General considered to be a mistaken but arguable interpretation of the terms of certain covenants. Sahab Holdings sought to compel the Registrar-General to restore the right of way to the folios. The appeal also concerned the powers of the Registrar-General under the *Real Property Act 1900* (NSW) and the powers of the Court to review the Registrar-General's decisions and order amendments to the Register.

The Court was required to determine whether the Registrar-General had the power to cancel recordings under s 32(6) of the *Real Property Act 1900*, and whether this power extended to correcting the Register itself. Specifically, the Court had to consider if the expungement of the right of way constituted a "recording" and whether it was "wrongfully obtained" or "made in error" to the satisfaction of the Registrar-General. Furthermore, the Court had to assess whether the term "error" or "omission" in s 12(1)(d) of the Act encompassed the expungement, and whether the term "omission" should be construed in the same manner as in s 42(1)(a1). The Court also considered its own powers under s 138 of the Act to order the Registrar-General to amend folios, and under ss 121 and 122 to review the Registrar-General's decision and order amendments, including whether the lapse of time affected these powers and the scope of orders the Court could make.

The Court reasoned that the term "omission" in s 12(1)(d) of the *Real Property Act 1900* referred to something "left out" or "not there," irrespective of the cause or fault. It found that the expungement of the right of way was an "error" and an "omission" within the meaning of s 12(1)(d). The Court also considered the implications of indefeasibility of title and exceptions thereto, referencing *Dobbie v Davidson* (1991) 23 NSWLR 625. The Court concluded that it had the power to review the Registrar-General's decision under s 122 and to order the amendment of the Register to reinstate the right of way, finding that the Registrar-General's decision to expunge the right of way was an error.

The Court ordered that the Registrar-General be directed to file and serve agreed Short Minutes of the orders to be made to give effect to the reasons for judgment by 3 February 2012. In the event of disagreement, the parties were to file and serve their respective drafts of such minutes, along with written submissions. Liberty to apply was granted to any judge who heard the appeal on 24 hours' notice concerning leave for submissions exceeding 8 pages.