The Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action Supermarkets Pty Ltd

The Owners of East Fremantle Shopping Centre West Strata Plan 8618 sought clarification on the nature of a registered instrument that allowed Action Supermarkets Pty Ltd to pass and re-pass on foot or in motor vehicles, and to park motor vehicles on part of the common property of the strata titled lot. The dispute hinged on whether the instrument created an easement, a lease, or a licence. The court was tasked with determining the precise legal relationship established by the instrument, as well as addressing the indefeasibility of title under Torrens title principles, particularly in relation to the voidness of the registered interest under section 20(1) of the Town Planning and Development Act 1928 (WA).

The court examined the instrument to ascertain its true nature. It concluded that the instrument established an easement, which was a right to pass and re-pass over the land for a specific purpose. The court found that the rights granted were appurtenant to the land owned by Action Supermarkets Pty Ltd, and did not constitute a lease or licence. Furthermore, the court held that a reasonably arguable case existed that a bona fide purchaser for value who acquired the registered interest, despite its voidness under the Town Planning and Development Act, would obtain an indefeasible title to that interest. This was due to the principle of indefeasibility under Torrens title.

The court dismissed the appeal, holding that the instrument indeed created an easement and that a reasonably arguable case existed for the indefeasibility of the registered interest. The final order was the dismissal of the appeal.