The Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action Supermarkets Pty Ltd - [2008] WASCA 180

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THE OWNERS OF EAST FREMANTLE SHOPPING CENTRE WEST STRATA PLAN 8618 -v- ACTION SUPERMARKETS PTY LTD [2008] WASCA 180

CORAM: McLURE JA
BUSS JA
MURRAY AJA

HEARD: 3 JUNE 2008

DELIVERED : 29 AUGUST 2008

FILE NO/S: CACV 58 of 2007

BETWEEN: THE OWNERS OF EAST FREMANTLE SHOPPING CENTRE WEST STRATA PLAN 8618
Appellant
AND
ACTION SUPERMARKETS PTY LTD (ACN 43 008 882 488)
First Respondent
CHAN'S BROTHERS & COMPANY PTY LTD (ACN 009 247 438)
Second Respondent
TRUMBY PTY LTD (ABN 36 111 100 602)
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
Citation  :THE OWNERS OF EAST FREMANTLE SHOPPING CENTRE WEST STRATA PLAN 8618 -v- ACTION SUPERMARKETS PTY LTD & ORS [2007] WASC 55
File No  :CIV 1652 of 2005

Catchwords:

Real property - Instrument registered as an easement conferred right to pass and repass on foot or in motor vehicles and right to park motor vehicles on part of common property of strata titled lot - Whether instrument created an easement, lease or licence - Essential features of easement, lease and licence

Real property - Torrens title - Indefeasibility of registered interest - Whether reasonably arguable that a bona fide purchaser for value who becomes the registered proprietor of a registered interest which is void under s 20(1) of the Town Planning and Development Act 1928 (WA) nevertheless obtains an indefeasible title to that interest

Legislation:

Town Planning and Development Act 1928 (WA) s 20(1), s 21
Transfer of Land Act 1893 (WA)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant:     Mr M J McCusker QC & Mr P A Monaco
First Respondent           :     No appearance
Second Respondent       :     Mr K J Martin QC & Mr C S Gough
Third Respondent         :     No appearance

Solicitors:

Appellant:     GV Lawyers
First Respondent           :     No appearance
Second Respondent       :     Minter Ellison
Third Respondent         :     No appearance

Case(s) referred to in judgment(s):

Batchelor v Marlow [2003] 1 WLR 764
Breskvar v Wall (1971) 126 CLR 376
Burton v Arcus [2006] WASCA 71; (2006) 32 WAR 366
Clos Farming Estates Pty Ltd (Receivers and Managers Appointed) v Easton [2001] NSWSC 525; (2001) 10 BPR 18,845
Copeland v Greenhalf [1952] Ch 488
Frazer v Walker [1967] 1 AC 569
Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472
IDC Group Ltd v Clark [1992] 2 EGLR 184
Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407
Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188
London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278
London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1994] 1 WLR 31
Miller v Minister of Mines [1963] AC 484
Moncrieff v Jamieson [2007] 1 WLR 2620
Pratten v Warringah Shire Council [1969] 2 NSWR 161
Quach v Marrickville Municipal Council [Nos 1 & 2] (1990) 22 NSWLR 55
Queanbeyan Leagues Club Ltd v Poldune Pty Ltd (1996) 7 BPR 15,078
Radaich v Smith (1959) 101 CLR 209
Re Ellenborough Park [1956] Ch 131
Reilly v Booth (1890) LR 44 Ch D 12
Rosebridge Nominees Pty Ltd v Commonwealth Bank of Australia [2008] WASCA 107
Stone James & Co v Investment Holdings Pty Ltd [1987] WAR 363
The Owners of Corinne Court 290 Stirling Street Perth Strata Plan 12821 v Shean Pty Ltd [2000] WASC 181; (2000) 23 WAR 1
Weigall v Toman [2006] QSC 349; [2008] 1 Qd R 192
White v Betalli [2007] NSWCA 243
Wilcox v Richardson (1997) 43 NSWLR 4

McLURE JA: I agree with Buss JA.
BUSS JA: By action CIV 1652 of 2005, the appellant commenced proceedings in the Supreme Court against the first respondent (Action), the second respondent (Chan's Brothers), the third respondent (Trumby) and others.
The appellant filed and served a statement of claim dated 10 March 2006. In its prayer for relief, the appellant claimed, relevantly:
(a)a declaration that an agreement dated 18 August 1987 (the Agreement) between the appellant, The Owners of East Fremantle Shopping Centre East Strata Plan 8619 (The Owners of Strata Plan 8619), Kimbar Nominees Pty Ltd and Whitehall Properties Pty Ltd (together Kimbar and Whitehall) which on 2 October 1987 was registered under the Transfer of Land Act 1893 (WA) as an easement on strata plan 8618, registered no D571233, is void;
(b)an order that easement D571233 be removed as an encumbrance from strata plan 8618; and
(c)a declaration that a deed dated 1987 (the Deed of Covenant) made between the appellant, Action, Chan's Brothers and The Owners of Strata Plan 8619 is void.
On 13 October 2006, Chan's Brothers made application, relevantly, for an order striking out pars 12, 13, 14(b), 14(c), 14(d) and 24.1 of the statement of claim on the ground that they disclosed no reasonable cause of action. On 1 May 2007, Master Sanderson ordered that those paragraphs be struck out and judgment be entered for Chan's Brothers. The learned master held that Chan's Brothers' right to the easement in question was indefeasible and, as a result, the appellant's claim was hopeless.
The appellant appeals to this court against the learned master's decision.

The relevant facts alleged in the statement of claim

The relevant facts alleged in the statement of claim are these:
(a)The appellant is, and was at all material times, a strata company incorporated pursuant to and created by s 13 of the Strata Titles Act 1966 (WA). It continued as a strata company under and subject to the Strata Titles Act 1985 (WA), by virtue of the transitional provisions in sch 3 to that Act.

(b)On 8 December 1980, strata plan 8618 was registered by the Registrar of Titles against the piece of land known as portion of Swan locations 71 and 9981 and being lot 14 on diagram 58263 within certificate of title vol 1574 folio 284 (Lot 14).
(c)At all material times, strata plan 8618 comprised 'lots' and 'common property', as defined in the 1985 Strata Titles Act, and the relevant lots and common property were together known as 'Shopping Centre West'.
(d)The Owners of Strata Plan 8619 is, and was at all material times, a strata company under the 1985 Strata Titles Act.
(e)Clause 2.1 of the Agreement (that is, easement D571233) provides, relevantly, as follows:
[The appellant] grant[s] to [Kimbar and Whitehall, the then registered proprietors of lot 101 on diagram 71382 and being the land within certificate of title vol 1800 folio 161 (Lot 101)] in common with [the appellant] and the registered proprietors for the time being of [Lot 14] and their tenants and servants and all persons authorised by them the right for [Kimbar and Whitehall] and their successors in Title and registered proprietors for the time being of [Lot 101] and their tenants and servants and all persons authorised by them from time to time and at all times hereafter to pass and repass on foot or in motor vehicles for the purpose of access to and egress from [Lot 101] over that portion of [Lot 14] as is coloured pink and green on the plan attached as Annexure 'B' and the adjoining roads and for the further purpose of the parking of motor vehicles upon that part of [Lot 14] coloured green on the said plan provided that the right to park vehicles shall be transitory in nature.
(f)The areas coloured pink and the areas coloured green on the plan attached as annexure 'B' to the Agreement are part of the common property comprised in strata plan 8618.
(g)On its proper construction, the Agreement is a grant of a lease, alternatively a licence, for a term in excess of 10 years.
(h)No prior approval of the Agreement was given by the Town Planning Board (as it then was) and, as a result, the Agreement breached s 20(1)(a) of the Town Planning and Development Act 1928 (WA) (repealed), and is void.
(i)Further, no prior approval of the Agreement was given by either the Town Planning Board or the relevant local government authority, and the Agreement therefore breached s 19(10) of the 1985 Strata Titles Act, and is not valid or effective.
(j)By the Deed of Covenant, the appellant covenanted and agreed that, for a period of 20 years from 2 December 1986, it would permit Action and all persons lawfully authorised by it to pass and re‑pass whilst on foot over and along any part of the 'Centre Parking Area' (being that part of strata plans 8618 and 8619 as delineated in red on the plan annexed to the Deed of Covenant) for the purposes of access to and egress from parking spaces therein, and to use and enjoy the Centre Parking Area for the purpose of parking vehicles.
(k)On its proper construction, the Deed of Covenant is a lease, alternatively a licence, for a term in excess of 10 years.
(l)No prior approval of the Deed of Covenant was given by either the Town Planning Board or the relevant local government authority, and therefore it breached s 20(1)(a) of the Town Planning and Development Act, and is void, further, it breached s 19(10) of the 1985 Strata Titles Act, and is not valid or effective.
(m)By a lease dated 20 September 1987 (the Lease), Kimbar and Whitehall granted to Action a lease of Lot 101 for a term of 20 years commencing on 2 December 1986, together with two options for renewal of five years each. Action, as lessee of Lot 101, has thereafter occupied Lot 101 and exercised the rights of access, egress and parking on Lot 14 purportedly granted by the appellant under the Agreement and the Deed of Covenant, for the benefit of its invitees, who park their vehicles on parts of Lot 14.
(n)On 24 June 1988, Kimbar and Whitehall transferred Lot 101 to Chan's Brothers.
(o)On 6 January 2005, Action assigned the Lease to Trumby, which seeks to exercise, for the benefit of its invitees, the rights of access and egress and parking purportedly granted by the Agreement and the Deed of Covenant.
(p)Action, by its solicitors, has produced to the appellant an assignment of the Deed of Covenant, for the purpose of assigning the benefit of the Deed of Covenant to Trumby, and contends that the appellant is obliged to execute such assignment.

The references in the statement of claim to the Town Planning Board are erroneous. The statement of claim should refer to the State Planning Commission (the Commission). The Commission was established by s 4(1) of the State Planning Commission Act 1985 (WA). It superseded the Town Planning Board and assumed its functions. See, in particular, the amendments made to the Town Planning and Development Act by the Acts Amendment (State Planning Commission) Act 1985 (WA). The relevant provisions of the State Planning Commission Act and the Acts Amendment (State Planning Commission) Act came into operation on 6 December 1985.
It was common ground between the parties that the Agreement and the Deed of Covenant were entered into without the prior approval of the Commission.
Also, it was common ground between the parties that the Deed of Covenant (which, as I have mentioned, was for a term of 20 years from 2 December 1986) had come to an end and, accordingly, could be disregarded for the purposes of this appeal.

Endorsement on the schedule of encumbrances on strata plan 8618

The schedule of encumbrances on strata plan 8618 contains an endorsement, as follows:

Transfer D571233

A right of carriageway over the portion of the within common property coloured pink and green on Annexure 'B' in the said Transfer together also with the right to park motor vehicles on the said portion coloured green on the said Annexure 'B' as set out in the said Transfer is granted to the proprietor or proprietors for the time being of Lot 101 on Diagram 71382.

Reg 2.10.87

The reference to 'Transfer D571233' is to the registered number D571233 allocated by the Registrar of Titles upon the registration of the Agreement as an easement on strata plan 8618.

The estate and land referred to in certificate of title volume 1800 folio 162 relating to Lot 101

The estate and land referred to in certificate of title volume 1800 folio 162 relating to Lot 101 includes:
a right of carriageway over the portions of each of the common properties on Strata Plans 8618 and 8619 coloured blue and brown on the said map hereon together also with the right to park motor vehicles on the said portion coloured blue on the said map all as set out in Transfers D571233 and D571232.
The references in certificate of title volume 1800 folio 162 to the portion of strata plan 8618 coloured blue and brown on the map correspond with the portion of the common property of strata plan 8618 coloured pink and green respectively on annexure 'B' in Transfer D571233 and annexure 'B' to the Agreement.
I note the references in certificate of title volume 1800 folio 162 to portion of strata plan 8619 and Transfer D571232. By Transfer D571232, the Owners of Strata Plan 8619 granted to Kimbar and Whitehall (and their successors in title and registered proprietors for the time being of Lot 101 and their tenants and servants and all persons authorised by them from time to time and at all times thereafter) rights which are, relevantly, identical to the rights conferred on Kimbar and Whitehall (and their successors in title, etcetera) by cl 2.1 of the Agreement (that is, easement D571233).

The relevant provisions of the Town Planning and Development Act

At the material time (that is, when the Agreement was entered into), the relevant provisions of the Town Planning and Development Act were these:
(a)Section 20(1)(a) provided:
Subject to section 68 of the Environmental Protection Act 1986, to this section and to section 20B, a person shall not, without the approval of the Commission, lay out, grant or convey a street, road or way, or either lease or grant a licence to use or occupy land for any term exceeding 10 years including any option to extend or renew the term or period, or lease and grant a licence to use or occupy land for terms in the aggregate exceeding 10 years, including any option to renew or extend the terms or periods, or sell land or grant any option of purchase of land, unless the land is dealt with by way of such lease, licence, sale or option of purchase as a lot or lots, or subdivide any lot, or amalgamate any lot with any other lot whether within the same district or otherwise; and the Commission may give its approval under this paragraph subject to conditions which shall be carried out before the approval becomes effective.
(b)Section 20(1)(e) provided that in s 20(1)(a) 'licence to use or occupy' does not include 'an easement'.
(c)Section 21 provided:
(1)A transfer, conveyance, lease or mortgage of any land shall not be received or registered in the Department within the meaning of the Transfer of Land Act 1893 or Registry of Deeds unless -
(a)it has been first approved in writing by the Commission; or
(b)the land comprises the whole of one or more lots, or the land comprises part of a lot included in a plan of subdivision that has been approved by the Commission; or
(c)in the case of a lease, it does not contain or purport to contain an option to purchase land other than the whole of one or more lots and -
(i)the term is not more than 10 years (including any option to renew or extend the term);
(ii)paragraph (a) of subsection (1) of section 20 does not apply to the lease by virtue of paragraph (d) of that subsection; or
(iii)the lease is a lease which may be entered into without the approval of the Commission by virtue of section 20(1a).
(2)The Registrar of Titles shall not receive any application from the registered proprietor of any land to issue in the name of such registered proprietor a certificate of title for a portion of land, not being the whole of one or more lots unless such application has been approved by the Commission.
The term 'lot' was defined in s 2(1) of the Town Planning and Development Act. It is unnecessary to reproduce the definition. For present purposes, it is sufficient to note that at all material times the areas coloured pink and the areas coloured green on the plan attached as annexure 'B' to the Agreement were not a 'lot' as defined.

The learned master's reasons

The learned master said it was inappropriate on a strike‑out application 'to attempt to interpret the [Agreement]' [5]. He added that the state of affairs most favourable to the appellant must be assumed for the purposes of dealing with the application:
That means I am to assume that the [Agreement] did create a lease or licence over part of the [appellant's] land and that the [Agreement] was therefore void. The remaining question, then, is whether on those assumed facts it is open to the Court to order the removal of the easement [6].
According to the learned master, this very question was considered by Hasluck J in The Owners of Corinne Court 290 Stirling Street Perth Strata Plan 12821 v Shean Pty Ltd [2000] WASC 181; (2000) 23 WAR 1.
The learned master said the facts of Corinne Court were not relevant to the application before him. He set out two passages from the judgment of Hasluck J:
His Honour summarised one of the questions he faced in the following terms (par 31):
It [the plaintiff] placed considerable reliance upon the various provisions of the Transfer of Land Act concerning indefeasibility of title as a basis for saying that it was not now open to the plaintiff to challenge the validity of the easement or otherwise to rely upon the facts and matters encompassed by the registration issue as a basis for extinguishing the easement or to obtain a ruling that the right of way could no longer be enjoyed by the owner of the dominant tenement.
His Honour then examined in some detail the indefeasibility provisions of the Transfer of Land Act 1893 (WA). He then went on (par 75):
The certificates of title are conclusive evidence that the estates or interests are as depicted on those titles. … The evidence clearly shows that [the respondent company] was a bona fide purchaser for valuable consideration that purchased the land upon the basis of what was disclosed upon the register. This being so, s 134 of the Transfer of Land Act clearly establishes that the title of the respondent company, including its entitlement to the benefit of the easement in question, cannot now be impugned. Accordingly, as to this aspect of the matter - the registration issue - I find in favour of the first defendant with the result that there is no basis for extinguishing the easement upon the grounds contended for by counsel for the plaintiff.
The learned master then summarised and disposed of two submissions made on behalf of the appellant with respect to the decision in Corinne Court:
First, it was said that the reasoning relied upon by the second defendant did not constitute the ratio of the case. With respect, that seems to me to be wrong. His Honour was confronted with a very clear issue - if the process leading to the registration of an easement was improper, was it open to the Court to order the easement be removed? His Honour determined that question. It may be that the ultimate outcome of the case was determined on other grounds, but there can be no doubt that his Honour determined the issue.
Second, it was submitted that the decision ought not be followed. Again, with respect, I would not presume to differ from his Honour's conclusion. His Honour has examined all the authorities carefully and counsel was unable to demonstrate any flaw in the reasoning. In my view, it is entirely applicable to this case [9] ‑ [10].
Finally, the learned master noted this submission by counsel for the appellant:
the Town Planning and Development Act and the Strata Titles Act, both being enacted subsequently to the Transfer of Land Act could qualify or override the operation of the principles of indefeasibility found in the Transfer of Land Act [11].
The learned master said he was not satisfied that is the case [12]. In his view, 'the position is as it was in the Corinne Court case' [12]. Chan's Brothers right to the easement was indefeasible and the appellant's claim could not succeed.

Grounds of appeal

The appellant's grounds of appeal read:
1.The learned Master erred in law, in holding that although it was arguable that the Agreement and the Deed of Covenant were (by reason of the provisions of S.20(1)(a) of the Town Planning and Development Act (TPD Act) and/or S.19(10) of the Strata Titles Act void and unenforceable none of the [appellant's] claims for relief could succeed, by reason of the 'indefeasibility provisions' of the Transfer of Land Act 1893, and that judgment should be entered for the Respondents.
2.The learned Master erred in law in holding that he was bound to reach that conclusion, by the decision of Hasluck J in The Owners of Corinne Court 290 Stirling Street Perth Strata Plan 12821 v Shean [2000] WASC 181. That decision did not consider the purpose and effect of Section 20(1)(a) of the TPD Act.
3.The learned Master erred in law in holding that the decision of the Court of Appeal (WA) in Burton & Ors v Arcus [2006] WASCA 81 was distinguishable from the present case 'because of the specific nature of the Corporations Act principles'. He should have held that, in enacting in 21(1) of the Town Planning and Development Act, a provision that a lease which does not comply with the requirements of that Act 'shall not be received or registered …', Parliament has expressed a clear and specific intention which would be defeated if such a lease, once registered, cannot be impugned.
As I have mentioned, the Deed of Covenant has come to an end, and it is therefore unnecessary to consider those parts of the grounds of appeal which refer to the Deed of Covenant or the relevant provisions of the 1985 Strata Titles Act.

The merits of the grounds of appeal

In my opinion, the learned master was in error in deciding that the facts of Corinne Court were irrelevant.
The salient facts of Corinne Court were these. On 3 July 1985, by a deed of easement, the owners of a parcel of land known as lot 18 granted a right of carriageway over part of lot 18 to the owners of an adjoining lot, lot 19, for the benefit of the grantee and its successors in title and their respective servants, agents, invitees and licensees. Also, on 3 July 1985, the deed of easement was registered at the Land Titles Office as an encumbrance against lot 18. As a result of a subsequent redevelopment of lot 19, there was an increase in the user of the right of way granted by the deed of easement. The plaintiff, who was the current owner of lot 18, applied under s 129C of the Transfer of Land Act for an order that the right of way be wholly extinguished. Hasluck J found, relevantly, that there were procedural irregularities preceding the grant and registration of the easement. His Honour held, however, that the first defendant's title as the registered proprietor of lot 19 included its entitlement to the benefit of the easement and that its title could not be impugned by the procedural irregularities in question. See Breskvar v Wall (1971) 126 CLR 376; Frazer v Walker [1967] 1 AC 569. His Honour said:
Even if it were to be established to the satisfaction of the court that the resolutions of the corporate body preceding execution of the deed were defective, notwithstanding the conclusive certificate of regularity, or that the corporate body was not properly constituted at the time the deed was executed, the fact remains that the relevant transfer was registered at the Land Titles Office. In due course, a certificate of title was brought into existence concerning Lot 19 which shows that Lot 19, as the dominant tenement, is entitled to a right of way affecting Lot 18 as the servient tenement. Likewise, the certificate of title for Lot 18 portrays the right of way as an encumbrance. These facts and matters bring into play the principles of indefeasibility I mentioned earlier.
The certificates of title are conclusive evidence that the estates or interests are as depicted on those titles. If Lot 19 had remained under the ownership of Mr Norton and his sister, or their family company Premier Nominees Pty Ltd, then it might be possible to pursue the matters presently complained of by the owners of Corinne Court, having regard to the reasoning in Frazer v Walker (supra). In the event, however, it is an undisputed fact, this being apparent from the relevant certificate of title, that Lot 19, with Lot 20, was sold to the respondent company in mid-1996. There is no evidence suggesting that the respondent company was associated with any of the matters complained of. The evidence clearly shows that it was a bona fide purchaser for valuable consideration that purchased the land upon the basis of what was disclosed upon the register. This being so, s 134 of the Transfer of Land Act clearly establishes that the title of the respondent company, including its entitlement to the benefit of the easement in question, cannot now be impugned. Accordingly, as to this aspect of the matter - the registration issue - I find in favour of the first defendant with the result that there is no basis for extinguishing the easement upon the grounds contended for by counsel for the plaintiff [74] ‑ [75].
The legislative purpose of s 20 of the Town Planning and Development Act was to regulate planning; in particular, long‑term planning. Section 20(1)(a) prevented, in effect, unauthorised subdivision by, relevantly, the creation of a lease or a licence in part of a 'lot' (as defined in s 2(1) of the Act) for a term in excess of 10 years or, where s 20(1)(d)(ii) applied, for a term in excess of 21 years, without the prior approval of the Commission. See Rosebridge Nominees Pty Ltd v Commonwealth Bank of Australia [2008] WASCA 107 [20] (Steytler P, Buss JA agreeing); Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188, 196 ‑ 197 (Hale J).
A transaction falling within s 20(1)(a) of the Town Planning and Development Act, if entered into without the approval of the Town Planning Board (or, as the case may be, the Commission), was illegal, void and unenforceable. See Stone James & Co v Investment Holdings Pty Ltd [1987] WAR 363, 366 (Burt CJ, Olney J agreeing), 379 ‑ 381 (Brinsden J).
The concept of indefeasibility of title, in the context of Torrens system land, refers to a title which cannot, in general, be defeated or annulled. There are, of course, exceptions. Generally see ss 52, 63, 67, 68, 76, 134, 188(ii), 199, 202, 222 and 231 of the Transfer of Land Act. In Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407, Mason CJ, Dawson and McHugh JJ said:
It is an incident of the indefeasibility of the title of the registered proprietor not only that he or she holds free from prior unregistered interests, except those specified in s.68, but also that he or she has the capacity to transfer a title to the interest of which he or she is proprietor to a successor, free from such unregistered interests (419).
Parliament may, by a clearly expressed intention in a subsequent enactment, qualify or override rights and powers which a registered proprietor would otherwise have under the Transfer of Land Act. Compare Miller v Minister of Mines [1963] AC 484, 494; Pratten v Warringah Shire Council [1969] 2 NSWR 161, 164 - 167; Quach v Marrickville Municipal Council [Nos 1 & 2] (1990) 22 NSWLR 55, 63 ‑ 64; Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472 [98] ‑ [99]; Burton v Arcus [2006] WASCA 71; (2006) 32 WAR 366 [135] ‑ [141] (Buss JA, Steytler P and McLure JA agreeing).
In my opinion, Corinne Court is relevantly distinguishable from the present case.
In Corinne Court, the alleged irregularities concerned whether the resolutions of the corporate body preceding execution of the deed of easement were defective as a result of non‑compliance with internal procedures and whether the corporate body had been properly constituted when the deed was executed. The relevant irregularities did not concern non‑compliance with a statutory provision which, for reasons of public policy, rendered transactions undertaken in breach of its requirements illegal, void and unenforceable.
By contrast, in the present case, there are two competing public policy considerations. First, there are the provisions of the Transfer of Land Act which, subject to exceptions, confer indefeasibility of title on a registered proprietor of Torrens system land. Secondly, there are the provisions of s 20(1)(a) of the Town Planning and Development Act which, subject to exceptions, render a lease or a licence of part of a 'lot' entered into for any term exceeding 10 years without the consent of the Commission, illegal, void and unenforceable. If the Agreement created a lease or a licence which was illegal, void and unenforceable under s 20(1)(a) as a result of the Commission's approval not having been obtained, the question arises as to whether a subsequent registered proprietor of Lot 101 (being the land benefited by the alleged lease or licence) is entitled to assert as against the registered proprietor for the time being of Lot 14 (being the land burdened by the alleged lease or licence) that the Agreement and the alleged lease or licence are valid and enforceable by it in reliance on the indefeasibility provisions of the Transfer of Land Act. This question does not appear to have been decided by a court in this State. The parties did not cite any authority in point.
In my opinion, the appellant has, at least, a reasonably arguable case that if the Agreement created a lease or a licence then the Agreement and the alleged lease or licence are illegal, void and unenforceable, and the subsequent registration of Chan's Brothers as the registered proprietor of Lot 101, in combination with the indefeasibility provisions of the Transfer of Land Act, did not immunise Chan's Brothers from the consequences of the breach of s 20(1)(a) of the Town Planning and Development Act or entitle Chan's Brothers to assert against the registered proprietor for the time being of Lot 14 that the Agreement and the alleged lease or licence are valid and enforceable by it.
The learned master should not have summarily dismissed the appellant's claim on the basis he did or for the reasons he gave.
The appellant has made out its grounds of appeal.

The notice of contention

Chan's Brothers filed a notice of contention seeking to uphold the learned master's decision on other grounds.
The grounds of the notice of contention read:
Ground 1
Insofar as the Learned Master approached the matter (see paragraph 5 of the Learned Master's reasons) on the basis that the issues amounted to an 'attempt to interpret the agreement' the Learned Master erred [in] law and in fact in that:
(a)no question of interpretation was involved; and
(b)the true exercise required of the Learned Master was one of legal characterisation as to the effect of either the Town Planning and Development Act 1928 (as repealed) or the Strata Titles Act 1985,
upon the two instruments put before him, being:
(i)an Agreement dated 18 August 1987 (as defined in the statement of claim); and
(ii)the undated Deed of Covenant.

Ground 2
The Learned Master erred in law in that he should have found that section 20(1)(a) of the Town Planning and Development Act 1928 (as repealed) had no application in that:
(i)plainly neither relevant instrument under consideration was a lease, in the clear absence of an entitlement to exclusive possession;
(ii)to the extent that either relevant instrument contained a grant of a licence, section 20(1)(e) of the Town Planning and Development Act 1928 (as repealed) expressly excluded the grant of an easement from being characterised as a 'licence to use or occupy'; and
(iii)further, and in any event, as a matter of law, a registered easement cannot be assessed to be either a lease or a licence.

Ground 3
The Learned Master erred in law in that he should have concluded that section 19(10) of the Strata Titles Act 1985 in law, had no application because:
(i)plainly neither relevant instrument under consideration was a lease, in the absence of an entitlement to exclusive possession;
(ii)to the extent that either relevant instrument contained a grant of a licence for the purposes of section 19(1) of the Strata Titles Act 1985, section 20 of the Strata Titles Act 1985 clearly conferred appropriate power on the relevant strata company to grant a valid easement;
(iii)further, and in any event, as a matter of law, a registered and [sic] easement cannot be assessed to be either a lease or a licence.

As I have already explained, it is unnecessary to deal with the Deed of Covenant or the relevant provisions of the 1985 Strata Titles Act.
The critical issue raised by the grounds of the notice of contention is whether it is reasonably arguable that cl 2.1 of the Agreement created a lease or a licence, as distinct from an easement, for the purposes of s 20(1)(a) of the Town Planning and Development Act.
The appellant submitted, in its written submissions concerning the notice of contention, that cl 2.1 must be construed according to its language and having regard to the surrounding circumstances when the Agreement was entered into. As a general proposition, this submission is correct.
The appellant did not, however, in its written submissions or in oral argument before this court, refer to any surrounding circumstances which might arguably affect a determination as to whether cl 2.1 created a lease or a licence, as distinct from an easement. Counsel for the appellant, in his oral submissions, contended that the crucial point in relation to the notice of contention was whether it was reasonably arguable that cl 2.1 created a licence, in addition to or instead of an easement, for the purposes of s 20.
In my opinion, there is no ambiguity in cl 2.1 which bears upon the critical issue, namely, whether the clause arguably creates a lease or a licence. The rights created in respect of the relevant identified portions of Lot 14 are embodied wholly within cl 2.1. It is open, in the circumstances, for this court to determine, on a summary basis, whether the appellant has a reasonably arguable case.

Does the appellant have a reasonably arguable case that cl 2.1 of the Agreement created a lease or a licence, as distinct from an easement, for the purposes of s 20(1)(a) of the Town Planning and Development Act?

In my opinion, it is of no significance, for present purposes, that the Registrar of Titles registered the Agreement under the Transfer of Land Act as an easement on strata plan 8618. Whether the appellant has a reasonably arguable case that cl 2.1 created a lease or a licence, as distinct from an easement, is to be determined on a proper construction of cl 2.1 in the context of the Agreement as a whole.
The terms 'lease' and 'licence' in ss 20 and 21, and the term 'easement' in s 20(1)(e), were not defined in the Town Planning and Development Act.
Section 20(1)(e), which provided that in s 20(1)(a) 'licence to use or occupy' does not include 'an easement', was introduced by s 5 of the Town Planning and Development Amendment Act 1983 (WA). The Minister for Planning, in his second reading speech, said, in relation to the introduction of s 20(1)(e):
The change to section 20 is only to make it clear that the approval of the Town Planning Board is not required for the granting of an easement. The board has always held that its approval is not required under the Act for an easement to be granted by one owner to another, but it is apparent that the wording is not sufficiently specific.
(See Western Australia, Parliamentary Debates, Legislative Assembly, 11 October 1983, 2816.)
Clause 2.1 of the Agreement grants, relevantly, to Kimbar and Whitehall (and their successors in title and registered proprietors for the time being of Lot 101 and their tenants and servants and all persons authorised by them from time to time and at all times) non‑exclusive rights to pass and re‑pass on foot or in motor vehicles for the purpose of:
(a)access to and egress from Lot 101 over an identified portion of Lot 14 and the adjoining roads; and
(b)the parking of motor vehicles upon an identified portion of Lot 14, provided that the right to park vehicles is transitory in nature.
In my opinion, the term 'lease' in s 20(1)(a) bears its ordinary meaning.
It is well‑established in Australia that a grant of exclusive possession is essential to the creation of a lease as distinct from a licence. See Radaich v Smith (1959) 101 CLR 209, 222 (Windeyer J, Dixon CJ agreeing).
It is beyond argument that cl 2.1 of the Agreement does not confer on Kimbar and Whitehall exclusive possession of the relevant identified portions of Lot 14. The rights conferred on Kimbar and Whitehall are non‑exclusive. I am therefore of the opinion that the appellant does not have a reasonably arguable case that cl 2.1 created a lease.
In my opinion, the term 'licence' in s 20(1)(a) and the term 'easement' in s 20(1)(e) bear their ordinary meanings.
The essential features of an easement are these. First, there must be a dominant tenement and a servient tenement. Secondly, the easement must 'accommodate' (that is, confer a benefit on) the dominant tenement. Thirdly, the dominant tenement and the servient tenement must not be held and occupied by the same person. Fourthly, the right must be capable of forming the subject matter of a grant. See Re Ellenborough Park [1956] Ch 131, 163; London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1994] 1 WLR 31, 36.
A licence is to be distinguished from an easement in that, relevantly, an easement requires a dominant tenement, but a licence does not, and an easement cannot confer a general right to occupy land. See Megarry & Wade, The Law of Real Property, (7^th ed) [27‑033].
It is a question of construction whether a particular grant creates an easement or a licence. See IDC Group Ltd v Clark [1992] 2 EGLR 184, 185 ‑ 186 (Nourse LJ, Stocker and Beldam LJJ).
The ordinary meaning conveyed by the text of s 20 is that Parliament intended that if a particular grant constituted an easement, then s 20(1)(a) did not apply and the approval of the Commission was not required even though the easement was granted with respect to part of a 'lot' and for a term exceeding 10 years. The ordinary meaning conveyed by the text is confirmed by the Minister's second reading speech. See [45] above and ss 3(1) and 19 of the Interpretation Act 1984 (WA).
In my opinion, to the extent that cl 2.1 of the Agreement creates a right of carriageway over the relevant identified portion of Lot 14, it is beyond argument that the grant was of an easement. Each of the essential features of an easement is satisfied. In particular:
(a)There is a dominant tenement (Lot 101) and a servient tenement (Lot 14).
(b)The right of way accommodates (that is, confers a benefit on) Lot 101.
(c)The dominant tenement (Lot 101) and the servient tenement (Lot 14) are not, and were not at any material time, held and occupied by the same person.
(d)The right of way is capable of forming the subject matter of a grant.
Nothing in the language of cl 2.1 precludes the grant of the right of way from being construed and taking effect as an easement.
I turn now to consider whether cl 2.1 of the Agreement, to the extent it creates a right to park motor vehicles on the relevant identified portion of Lot 14, created an easement.
It appears to be accepted in Australia and England that there is no reason in principle why a right to park a motor vehicle somewhere on a defined portion of land should not be capable of being an easement, provided that the essential features of an easement are satisfied including, in particular, the right to park vehicles is not so extensive as to confer on the grantee exclusive and unrestricted use of the defined portion of land in question.

In Queanbeyan Leagues Club Ltd v Poldune Pty Ltd (1996) 7 BPR 15,078, McLelland CJ in Eq held that the right to use land for the purpose of parking motor vehicles is a permissible easement. In that case it was submitted, on behalf of the defendant, that the rights purportedly conferred by the deed in question were too broad or extensive to constitute an easement. The submission relied on certain observations in Copeland v Greenhalf [1952] Ch 488. McLelland CJ rejected the submission:
Even if everything said in Copeland could be considered to be good law, which is doubtful (see Wright v Macadam [1949] 2 KB 744) it is clear in my opinion that that case is distinguishable on the facts (see also Hedley v Roberts [1977] VR 282 and Evanel Pty Ltd v Nelson (1995) 39 NSWLR 209; 7 BPR 14,388). In my view a right to use land for the purpose of parking cars cannot be excluded by any principle of the kind expressed in Copeland from the category of permissible easements, which it has been said 'must alter and expand with the changes that take place in the circumstances of mankind' (see Commonwealth v Registrar of Titles (1918) 24 CLR 348 at 353, quoting Dyce v Hay (1852) 1 Macq HL 305 at 312) (15,080).
His Honour also rejected a submission that a right of parking motor vehicles on other land is a novel right which the law will not recognise as an easement.
Similarly, in Wilcox v Richardson (1997) 43 NSWLR 4, Handley JA held that parking and storage areas may be the subject of easements (15). His Honour noted:
A right of storage for coal or trade goods may be an easement (Attorney‑General of Southern Nigeria v Holt [1915] AC 599 at 617; Wright v Macadam [1949] 2 KB 744 at 752), which may carry with it, by implication, the necessary means of access (Wright v Macadam (at 753)), and so may a right of parking (London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278; [1993] 1 All ER 307) which is only a form of storage. The fact that the use of the relevant space by the dominant owner amounts in practice to exclusive possession is no objection because the servient owners' other rights are not affected (15).
In Reilly v Booth (1890) LR 44 Ch D 12, Lopes LJ held:
There is no easement known to law which gives exclusive and unrestricted use of a piece of land (26).
This principle of proportionality, which has been described as the 'ouster' principle, has been considered in numerous cases where a person or entity has claimed the right to store goods or park motor vehicles on another's land.
In Clos Farming Estates Pty Ltd (Receivers and Managers Appointed) v Easton [2001] NSWSC 525; (2001) 10 BPR 18,845, the plaintiff was the owner of a lot in a subdivision. It claimed the benefit of an 'easement for vineyard' over the defendant's land as the servient tenement. The terms of the alleged easement entitled the plaintiff to plant and cultivate grape vines on the servient land, to harvest the grapes, to sell or otherwise dispose of them and to retain any profits from the enterprise. Bryson J held that the interest granted did not, in law, constitute an easement. The defendant, as the owner of the servient tenement, retained no more than nominal ownership of the land; in particular, the production of profits and use of the servient land was something over which the defendant, as the servient owner, was deprived of all control. His Honour made these observations in relation to rights to park motor vehicles:
Rights to park motor vehicles have been upheld in London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278 and held invalid in Copeland v Greenhalf [1952] Ch 488. Parking vehicles and storing goods are probably older activities than creating easements. In my view these cases were well explained by Judge Paul Baker QC in the Chancery Division in London & Blenheim Estates. (Judge Baker's views were not disapproved when his decision was affirmed on other grounds [1994] 1 WLR 31). Judge Baker dealt with the right to use a car park at 1284‑1288 and in doing so reviewed case law on storage of goods and car parking. Of Copeland v Greenhalf his Honour said at 1286: 'The matter must be one of degree. A small coal shed in a large property is one thing. The exclusive use of a large part of the alleged servient tenement is another.' At 1288 his Honour said:
That leaves the main point under this head, whether the right to park cars can exist at all as an easement ... The essential question is one of degree. If the right granted in relation to the area over which it is to be exercisable is such that it would leave the servient owner without any reasonable use of his land, whether for parking or anything else, it could not be an easement though it might be some larger or different grant. The rights sought in the present case do not appear to approach anywhere near that degree of invasion of the servient land. If that is so ... I would regard the right claimed as a valid easement.
The validity of easements for storing goods or parking vehicles depends on the nature and circumstances of the servient tenement, the operation in detail of the purported easements and their effect on the servient tenement [39].
In Weigall v Toman [2006] QSC 349; [2008] 1 Qd R 192, Wilson J reviewed several authorities in relation to the creation or purported creation of an easement for parking motor vehicles. His Honour said in relation to proportionality:
Cases dealing with easements for storage purposes (including parking motor vehicles) illustrate the relevance of proportionality - in the sense of the relative importance or significance of that part of the servient tenement over which an exclusive right is given to the servient tenement as a whole [14].
Also see White v Betalli [2007] NSWCA 243 [39] (Santow JA), [184] ‑ [188] (McColl JA).
In London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278, Judge Baker QC said that whether or not a right to store goods or park motor vehicles constitutes an easement involves a question of degree. His Lordship said:
If the right granted in relation to the area over which it is to be exercisable is such that it would leave the servient owner without any reasonable use of his land, whether for parking or anything else, it could not be an easement though it might be some larger or different grant (1288).
His Lordship's decision was upheld by the Court of Appeal, but on different grounds. See London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1994] 1 WLR 31.
More recently, in Moncrieff v Jamieson [2007] 1 WLR 2620, Lord Scott of Foscote doubted the correctness of the approach adopted by Judge Baker QC in London & Blenheim Estates and applied by the Court of Appeal in Batchelor v Marlow [2003] 1 WLR 764. According to Lord Scott, it is the land over which the easement is enjoyed, and not the totality of the servient owner's land, which must be considered when the 'ouster' principle is invoked [58] ‑ [60].
In my opinion, to the extent that cl 2.1 of the Agreement creates a right to park motor vehicles on the relevant identified portion of Lot 14, cl 2.1 granted an easement. The relevant provisions of cl 2.1 satisfy the essential requirements for an easement. See [51], [55] above. In particular, in the present case, the 'ouster' principle does not apply. The right to park vehicles is valid at law as an easement.

The relevant provisions of cl 2.1 satisfy the test enunciated by Judge Baker QC in London & Blenheim Estates and also the test articulated by Lord Scott of Foscote in Moncrieff. Clause 2.1 does not confer on Kimbar and Whitehall (or their successors in title, etcetera) exclusive and unrestricted use of the defined portion of Lot 14 or Lot 14 as a whole. In particular, cl 2.1 confers non‑exclusive rights and, in addition, those non‑exclusive rights to park vehicles only authorise parking which is 'transitory in nature'. That is, the parking must be brief or for a short period having regard, no doubt, to the nature of the business conducted on Lot 101, namely, a shopping centre. Further, subject to the reasonable exercise of the right to park motor vehicles, the appellant has retained possession and control of the defined portion of Lot 14, and Lot 14 as a whole.
The appellant does not have a reasonably arguable case that cl 2.1 did not create a valid easement, within s 20(1)(e), or a reasonably arguable case that cl 2.1 created a licence within cl 20(1)(a).
Chan's Brothers has made out the critical issue raised by the grounds of its notice of contention.

Result

The learned master was correct (but not for the reasons given by him) in deciding that pars 12, 13, 14(b), 14(c), 14(d) and 24.1 of the statement of claim should be struck out and judgment be entered for Chan's Brothers.
The appeal should be dismissed.
MURRAY AJA: I have had the advantage of reading in draft the reasons for decision of Buss JA. I agree with them in their entirety, both with respect to the grounds of appeal and the grounds of the notice of contention.
In the result, I agree that the appeal should be dismissed.