Tink v Registrar of Titles
[2006] WASC 60 (S)
TINK & ANOR -v- REGISTRAR OF TITLES [2006] WASC 60 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 60 (S) | |
| Case No: | CIV:1335/2005 | 1 FEBRUARY & 5 APRIL 2006 | |
| Coram: | SIMMONDS J | 5/04/06 | |
| 4/08/06 | |||
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Costs to the defendant | ||
| A | |||
| PDF Version |
| Parties: | CLIFFORD ROLAND TINK ENID DAPHNE TINK REGISTRAR OF TITLES |
Catchwords: | Costs of proceedings to have Registrar of Titles substantiate and uphold decision under Act Transfer of Land Act 1893 (WA), s 204 |
Legislation: | Land Transfer Act 1908 (NZ), s 202, s 203 Land Transfer Act 1915 (NZ), s 199, s 200 Transfer of Land Act 1893 (WA), s 203, s 204 Transfer of Land Act 1915 (VIC), s 248, s 249 |
Case References: | Ex parte Campbell (1888) 9 ALT 183 In re Benn and Grice (1886) 12 VLR 366 In re Bevan (1909) 29 NZLR 714 In the Matter of a Transfer from Balfour & Anor to the Public Trustee of England & Anor [1916] VLR 397 Malone v the Registrar of Titles [1919] VLR 370 Tink & Anor v Registrar of Titles [2006] WASC 60 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 4 AUGUST 2006 FILE NO/S : CIV 1335 of 2005 BETWEEN : CLIFFORD ROLAND TINK
- ENID DAPHNE TINK
Plaintiffs
AND
REGISTRAR OF TITLES
Defendant
Catchwords:
Costs of proceedings to have Registrar of Titles substantiate and uphold decision under Act - Transfer of Land Act 1893 (WA), s 204
Legislation:
Land Transfer Act 1908 (NZ), s 202, s 203
Land Transfer Act 1915 (NZ), s 199, s 200
Transfer of Land Act 1893 (WA), s 203, s 204
Transfer of Land Act 1915 (VIC), s 248, s 249
(Page 2)
Result:
Costs to the defendant
Category: A
Representation:
Counsel:
Plaintiffs : Mr R K Williamson
Defendant : Ms L E Christian
Solicitors:
Plaintiffs : Williamson & Co
Defendant : State Solicitors Office
Case(s) referred to in judgment(s):
Ex parte Campbell (1888) 9 ALT 183
In re Benn and Grice (1886) 12 VLR 366
In re Bevan (1909) 29 NZLR 714
In the Matter of a Transfer from Balfour & Anor to the Public Trustee of England & Anor [1916] VLR 397
Malone v the Registrar of Titles [1919] VLR 370
Tink & Anor v Registrar of Titles [2006] WASC 60
Case(s) also cited:
Nil
(Page 3)
- SIMMONDS J:
Introduction
1 These are supplementary reasons, on the matter of the appropriate costs order in this action, which was brought under s 203 of the Transfer of Land Act 1893 (WA) ("the WA Act"). These reasons deal with the application of the provisions of the WA Act as to the costs of such an action. The question appears to be one on which, notwithstanding the age of the relevant provisions, there appears to be no authority in this jurisdiction, although there is authority from elsewhere that appears to be relevant.
2 On 5 April 2006, following argument on 5 August 2005, on 31 January and on 1 February 2006, I delivered my reasons for judgment on the action under s 203 of the WA Act. That action, in the words of the provision, was for the Registrar "to substantiate and uphold" the written "grounds of his refusal" of the application of Mr and Mrs Tink, under s 71, for the issue of a certificate of title in respect of a portion of the lands shown in the certificate of title they currently have. That portion corresponded to a parcel of land which was that to which a certificate of title of the previous registered proprietor related and which had been included among a number of other parcels the subject of other certificates of title in an application for "consolidation". That application had resulted in the certificate of title under which the Tinks had taken a transfer from him, although there had been a new certificate of title issued subsequently for those lands and other lands, being adjoining closed roads, subsequently vested in the Tinks. See Tink & Anor v Registrar of Titles [2006] WASC 60. I said in my reasons that the proceedings before me raised a narrow but practically important issue in the administration of the planning law of this state. I resolved the issue on the basis that the refusal of the Registrar was justified.
3 When I delivered judgment, the parties disagreed on the appropriate order as to costs. Counsel for the defendant, the Registrar, contended that the appropriate order was the normal order that costs follow the event, that is, for the plaintiffs, the Tinks, to pay the defendant's costs, to be taxed if not agreed. Counsel for the plaintiffs contended that there should be no order as to costs, with the result of course that each party would bear its own costs. Neither party was, however, able to point me to authority on how I should approach the relevant provisions of the WA Act as to the order I should make.
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4 In the event, I reserved my judgment on the appropriate order as to costs, to permit the parties to file written submissions as to how I should approach the matter. I received most helpful written submissions from both parties, and I issue these supplementary reasons on the basis of them.
The legislative background
5 It is common ground between the parties that the relevant provisions in the WA Act are s 203 and s 204.
6 The first provision, s 203, is set out in full in my decision in Tink (supra), at [60]. For convenience, I set it out in full again. I have emphasised in it the particular part that is material to the order as to costs. That material part is s 203's concluding words:
"203. Proprietor may summon Commissioner or Registrar to show cause if dissatisfied
If upon the application of any owner or proprietor to have land brought under the operation of this Act or to have any dealing or transmission registered or recorded or to have any certificate of title foreclosure order or other document created, registered or issued or to have any act or duty done or performed which by this Act is required to be done or performed by the Commissioner or Registrar either of them shall refuse so to do or if such owner or proprietor shall be dissatisfied with the direction upon his application given by the Commissioner it shall be lawful for such owner or proprietor to require the Commissioner or Registrar to set forth in writing under his hand the grounds of his refusal or the grounds upon which such direction was given, and such owner or proprietor may if he think fit at his own costs summon the Commissioner or Registrar as the case may be to appear before the Supreme Court or a Judge to substantiate and uphold the grounds of his refusal or of such direction as aforesaid such summons to be issued under the hand of a Judge and to be served upon the Commissioner or Registrar 6 clear days at least before the day appointed for hearing the complaint of such owner or proprietor. Upon such hearing the Commissioner or Registrar or his counsel shall have the right of reply; and the said court or a Judge may if any question of fact be involved direct an issue to be tried to decide such fact; and thereafter the
- said court or a Judge shall make such order in the premises as the circumstances of the case may require; and the Commissioner or Registrar shall obey such order and all expenses attendant upon any such proceedings shall be borne and paid by the applicant or other person preferring such complaint unless the court or a Judge shall certify that there was no reasonable ground for such refusal or direction as aforesaid."
7 There is no contention here that, had s 203 stood alone, the appropriate order as to costs would not be the one the defendant seeks.
8 However, the second provision, s 204, which is not referred to in my decision, says (I have emphasised the words on which the parties' submissions focussed):
"204. Cost of summons and proceedings under section 203 to be in the discretion of the court
Upon any summons or proceeding under the last preceding section the court or Judge maynotwithstanding anything in the said section to the contrarymake such order as to the costs expenses of and attendant upon such summons or proceeding as the court or Judge shall deemjust; and all costs and expenses to be paid by the Registrar under such order shall be charged to the Consolidated Fund and this section appropriates the Consolidated Fund accordingly."
9 At the hearing on the delivery of my judgment, counsel for the plaintiffs put it to me that s 204 qualified the words from s 203 I emphasised, as indeed appears to be the case. Counsel went on to say that s 204 was plainly intended to allow the Court a wide discretion in the awarding of costs, and in particular it was intended not to have the Court consider the matter from the usual starting position, that costs follow the event, at least where the Registrar's decision is upheld. Rather, the Court should consider the justice of the case. That permits, and indeed in this case requires, the Court to respond to the disparity between the State and the individual long recognised in the law, as well as both the public interest in the clarification of a question raised by an issue of the sort presented in this case and the interest of the authorities administering the Act itself, as well as the special circumstance that the reasons for
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- judgment were different from those put forward by the Registrar in "the grounds of refusal" for the purposes of s 203 of the Act.
10 The research for the plaintiffs and for the defendant for the purposes of the written submissions made following the hearing on the delivery of my judgment did not bring to light any legislative history that would cast light on the intended effect of the qualification of s 203 by s 204. The research for the defendant indicated that the Transfer of Land Act 1874 (WA) had a provision corresponding to s 203, but, at least as originally enacted, none corresponding to s 204. The latter was, however, in the Transfer of Land Act 1893 (WA) as originally enacted. The only difference between that original s 204 and the current WA Act s 204 is that the "costs and expenses to be paid by the Registrar under such order" were to be paid out the "assurance fund", rather than the current provision's "Consolidated Fund", with the current provision's specific appropriation from that Fund having no counterpart in the original 1893 provision. That does not appear to affect the issues before me.
11 I do note those terms of the provision, in the event of an order as the costs and expenses to be paid by the Registrar, that the payment of those costs and expenses must be from the "Consolidated Fund" (formerly, from the "assurance fund"). However, I do not consider those terms exhaust the orders the Court may make that may be "just", or indeed preclude making no order as to costs if that is "just".
12 The research for the plaintiffs and the defendant also do not provide me with references to any authorities from this jurisdiction on the qualification of s 203 by s 204. Nor have I been able to find any such authorities. However, as the research for the plaintiffs and the defendant has revealed, there is Victorian and New Zealand authority in point.
13 As the written submissions of counsel for the defendant indicated to me, the Transfer of Land Act 1915 (Vic) ("the 1915 Victorian Act"), s 248 and s 249 corresponded to our s 203 and s 204, respectively. The provisions of the 1915 Victorian Act are reproduced in Dallas Wiseman, H The Transfer of Land Acts 1915 – 1921 Sydney Law Book Company, 1925, at 302 - 303 and 305, respectively.
14 I note that the Transfer of Land Act 1956 (Vic) ("the 1956 Victorian Act"), the current legislation, has a single provision corresponding to the 1915 Victorian Act's s 248 and s 249, being s 116, with no provision as to costs like that in the 1915 Victorian Act's s 248 (the WA Act's s 203). The 1956 Victorian Act's provision as to costs is s 116(4), corresponding
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- to the former s 249 (the WA Act's s 204). I could find no authority on s 116(4).
15 However, the written submissions for the plaintiffs and for the defendant drew to my attention two authorities on the 1915 Victorian Act's s 248 and s 249.
16 The two authorities both concern applications under the 1915 Victorian Act's s 248 in which the Registrar was unsuccessful. So far as the reports disclose, in the earlier case the Registrar had not substantiated and upheld his grounds for refusal to register and it was held he ought to register: In the Matter of a Transfer from Balfour & Anor to the Public Trustee of England & Anor [1916] VLR 397, Cussen J, at 409. In the later case, the basis on which the matter was argued for the Registrar before the court was held not to have been made out, with no reference to the Registrar's grounds of refusal in such terms: Malone v the Registrar of Titles [1919] VLR 370, FC, Irvine CJ, at 374, Hodges and Cussen JJ agreeing.
17 In both cases the same order as to costs was made, that the Registrar pay the costs, with Malone (supra), per Irvine CJ, at 374, following the "rule laid down by Cussen J in [Balfour (supra)]". That rule was identified as that:
"Upon applications of this kind, or raised for a similar purpose, in the absence of special circumstances the victor should obtain his costs, and His Honour [Cussen J, in Balfour] added –
'The fact that in this case the Registrar was well justified in asking that the matter in question should be determined by the Court is not, I think, by itself such a special circumstance.'"
19 In the earlier commentary, that in Wiseman (supra), on s 249, at 305, it is said, citing Balfour and Malone, as well as In re Benn and Grice (1886) 12 VLR 366, at 369; 8 ALT 8, and Ex parte Campbell (1888) 9 ALT 183:
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- "The effect of this section is that the costs of a summons under sec. 248 ante will be in the same position as the costs of proceedings between ordinary litigants, so that if the Registrar fails to substantiate his reasons for refusal, he will as a general rule be ordered to pay the costs …"
20 I note that Benn and Grice (supra) and Campbell (supra) were also cases, like Balfour and Malone, where the Registrar failed to substantiate and uphold his decision, and where the court ordered he pay costs, to be taken out of the assurance fund, although without a statement of the basis for doing so. Both of those earlier decisions in that respect were on what appears to have been an earlier version of the 1915 Victorian Act's s 249, in Victoria Act No 872, s 72.
21 In the later commentary, that in Kerr, D The Principles of Australian Land Titles (Torrens) System Law Book Company Sydney, 1927 at 89, it is said, referring not only to the 1915 Victorian Act's s 249, but also to both the corresponding provision in the then New Zealand legislation (returned to below) and then s 204 of the WA Act, and citing to Balfour and Malone:
"The successful party should get costs except in special circumstances; the fact that a novel or important question of law is included is not in itself a special circumstance."
22 However, the submissions for the plaintiffs put to me that, if the legislature had meant by the WA Act's s 204 to have the court adopt the usual approach that costs follow the event unless there are "exceptional circumstances" or the like, that would have been spelt out. I disagree. The Victorian authorities indicate the approach they used is one that appropriately gives content to language like that in the WA Act's s 204. I do not consider the absence of further specification to be telling.
23 However, counsel for the plaintiffs made a further point. It was that the approach to costs subsumed by "just" in s 204, in cases where the Registrar was successful, needed to allow for the disparity in position between the Registrar and the applicant, as well as the benefit to the Registrar and the public interest in having a superior court answer in detail the question of administration of the Act presented by the application. The public interest was particularly implicated where the Court's reasons for upholding the Registrar's decision differed from those of the Registrar, the position which was said to obtain in this case.
(Page 9)
24 The only authority, on a costs order where a person in the position of the Registrar in this case was successful, to which I was referred (by the submissions for the defendant) was In re Bevan (1909) 29 NZLR 714, Chapman J, especially at 721. That decision was on an application by what appears to have been a Department of the Government of New Zealand, the Advances to Settlers Department, for a District Land Registrar "to uphold his refusal to register a mortgage of certain land" (per Chapman J, at 714).
25 The decision does not refer to the source of the Court's jurisdiction. However, it appears from the language of the decision just quoted, and the language of the Court's decision as to costs below, that the jurisdiction in question arose under the Land Transfer Act1908 (NZ) ("the 1908 NZ Act"), s 202 and s 203. Those provisions correspond word for word with Land Transfer Act 1915 (NZ) ("the 1915 NZ Act"), s 199 and s 200, respectively, which were referred to in Kerr (supra), and the latter of which (like the 1908 NZ Act s 203) read as follows:
"200 Such person may, if he thinks fit, summon the Registrar to appear before the Supreme Court to substantiate and uphold the grounds of such refusal, direction or decision as aforesaid, such summons to be issued under the hand of a Judge of the said Court, and served upon the Registrar six clear days at least before the day appointed for the hearing."
26 The only provision as to the costs of such proceedings before the Supreme Court was the 1908 NZ Act s 205, corresponding word for word with the 1915 NZ Act s 202, which read as follows:
"202 All expenses attendant upon any such proceedings shall be borne and paid by the person initiating the proceedings, unless the Court of Judge orders that the same be paid out of the Assurance Fund, which such Court or Judge is hereby empowered to do."
27 It will be noted that the position as to costs under the New Zealand provisions differs from the position under the corresponding s 248 and s 249 in the 1915 Victorian Act and s 203 and s 204 in the WA Act. The difference lies in the lack of any discretion to have costs arrangements other than one or other of the two sets of such arrangements referred to in the costs provision of the 1908 NZ Act and of the 1915 NZ Act.
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28 In Bevan (supra), the applicant Department was apparently lending or proposing to lend on mortgage security over Maori lands. The District Registrar had refused to register the mortgage. A number of statutes regulated transactions in respect of Maori land. It appears, from the reported submissions as to costs of counsel for the unsuccessful Department, that the Native Land Court had "uniformly refused to take responsibility for mortgages, and thus obliged [the Department] to come to this Court" (at 721).
29 The District Registrar's "principal grounds" (per Chapman J, at 714 - 715) for refusal to register the mortgage to the Department were three, each relating to the construction of one of the regulating statutes. One of the grounds was not upheld, but the other two were upheld.
30 The Court's order as to costs was as follows (per Chapman J, at 721):
"I think that, as the circumstances are exceptional, and as the argument on behalf of the applicant Department has proved beneficial to the Registrar in getting this question cleared up so far as it is cleared up, I ought to allow the costs of both as between solicitor and client out of the Assurance Fund."
31 That is not a disposition sought in this case, of course.
32 I do not consider Bevan is strong support for an order in this case of the same sort (as by ordering the costs of the plaintiffs to be paid by the Registrar), or for the disposition sought by the plaintiffs (no order as to costs, which it seems to me was not possible under the 1908 NZ Act or the 1915 NZ Act).
33 The applicant in Bevan was, like the District Registrar, an arm of government, and (as is indicated by Chapman J, at 720) the grounds the District Registrar relied upon went to matters of public law concerning Maori lands. In those circumstances, it would not seem to me to have been inappropriate to have the costs of both parties come out of a government fund. I assume those were the circumstances considered by Chapman J to have been "exceptional", although nowhere does he clearly so indicate. No other basis than those circumstances, for treating the case as an "exceptional" one, is evident to me.
34 I note also that Chapman J appears to have considered, as did the courts in Balfour and Malone, that it was not sufficient the application raised an issue whose resolution was a matter of significance to the Registrar.
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35 Nor do I consider it to be telling that in the present case my reasons for upholding the Registrar's decision were not in the same terms as the "grounds of his refusal" of the Registrar.
36 For the purposes of s 203, I consider the Registrar "set forth in writing under his hand the grounds of his refusal" in a letter dated 22 October 2004 from a Legal Officer in the Legal Services Branch of the Department of Land Information which in material part is reproduced in Tink at [58]. That part of the letter is as follows:
"Finally, in paragraph 12, Mr Morison [counsel for the plaintiffs] repeats his statement that Ravensthorpe Town Plan 211/1902 is the current approved plan of subdivision for Lot 244 because Diagram 38429 wrongly included former roads land [being land vested in the Tinks after they became registered proprietors of the land in question: see Tink at [42]]. Mr Morison's statement is incorrect. The lots formerly shown on your clients' title, although capable of being individually dealt with when plan 211/1902 was the current plan of subdivision, are no longer capable of being subject to individual applications for new title. The original lot shown on plan 211/1902 was subsumed in lot 1 on diagram 38429 and comprised in Certificate of Title Volume 263 Folio 92A as a result of Application A204487, registered on 22 August 1969."
37 The Application A204487 there referred to was an application by the previous registered proprietor of the plaintiffs' land that certain lands the subject of separate certificates of title and shown in "plan 211/1902" (one of two previous plans relating to lands the subject of the Application) be "consolidated" into one certificate of title for the lands of which the plaintiffs are now the registered proprietors under the current certificate of title (Tink at [25]). That Application provided for a new "lot 1 on diagram 38429". The Application was made under the WA s 71 (Tink at [31]), which I indicated in my judgment should be read with s 49, which permits the issue of a certificate of title for non-contiguous parcels of land (Tink at [79]).
38 My conclusion were that WA Act s 71, read with s 49, carried with it sufficient authority to permit the Registrar "to adopt a plan so that a new parcel of land made up of non-contiguous elements was recognised for the purposes of the issuance of a certificate of title for such a parcel" (Tink at [99] read with [100]); the Application A204487 provided for such a new plan (Tink at [40], [62] and [73]); and the definition of Lot 1 on the new
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- plan so provided for should be seen to have replaced the previous definitions on each of the two previous plans, one of which is referred to in the quotation above (Tink at [126], [128], [133], [138] and [139]).
39 I also noted that those conclusions left room for the possibility that an application under s 71 might in a suitable case call for the use of existing definitions of parcels of land only, without the use of a new definition to unite those parcels (Tink at [103] and [139]).
40 The initial written submissions for the defendant, in relation to the first day on which the s 203 application before me was heard, 5 August 2005, had put to me that neither s 71, nor s 49, has "anything to do with the amalgamation" of parcels of land into a lot. Rather, they related to the issue of a certificate of title, to which the doctrine of indefeasibility applied, which made it impossible to issue a certificate of title for portions of the land in that certificate in the circumstances of the case. Supplementary written submissions for the defendant, in relation to the subsequent days of hearing of the application, 31 March and 1 February 2006, confirmed the argument was that such result was "regardless of what was the original intention of [the applicant by Application A204487]".
41 In my reasons I did not consider it necessary to reach a conclusion on the indefeasibility argument, in light of my conclusions as I have described them earlier (Tink at [112]).
42 I should add, however, that, in oral argument on 1 February 2006 (TS 181 - 184), counsel for the defendant had indicated her argument included that s 71, read with s 49, allowed for an application to create a certificate of title without the use of a new single definition of the land to which the new certificate would relate. She submitted that in this case, however, there had been no such application. As I have explained, that was also my conclusion.
43 The written submissions for the plaintiffs for the purposes of this costs decision put to me that, had the position for the defendant just described been clearly articulated, presumably in the Registrar's original written "grounds of his refusal", the plaintiffs might not have pursued the matter. This, coupled with the possibility that the position just described was not one the Registrar himself had allowed for in the practice of dealing with applications under s 71, made it "just" for the purposes of s 204 he should "pay his own costs of learning the law (or at least a large portion of those costs)".
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44 It seems to me, however, that the Registrar's original written "grounds of his refusal" as I quoted them above allowed both for the indefeasibility argument and for the conclusions in my decision, conclusions which were closely related to the oral argument of counsel for the defendant, to which I have referred. There was no evidence before me that indicated the Registrar had a practice of refusing applications under s 71 that did not provide for a new lot definition. Finally, as to whether the plaintiffs might not have pursued the matter had the grounds been stated as my decision did, I note that before me at the hearing of the application under s 203 counsel for the plaintiffs had placed considerable emphasis on the character of Application A204487 as one for "consolidation" rather than amalgamation, which in his submission pointed to the retention of the previous lot definitions. This indicates to me that it is not clear that the plaintiffs would not have pursued the matter even if the Registrar's grounds of refusal had been so stated.
45 I am therefore unable to conclude that the nature of the relationship, either between my reasons for decision and the Registrar's original written "reasons of his refusal", or between those reasons and the arguments for the Registrar made (in the words of s 203) "to substantiate and uphold the grounds of his refusal", is such that I should draw the conclusion that it would be "just" to make no order as to costs.
46 It seems to me that s 203 allows for the possibility, realised in this case, that, to "substantiate and uphold" the "grounds of refusal" referred to in the provision, a more elaborate position than that contained in those grounds as originally stated in writing might be argued out.
47 Whether an argued out position inconsistent with those grounds is allowed for under s 203, and, if it is allowed for, whether, either alone, or in conjunction with other factors, would make "just" a particular sort of costs order, or no costs order, does not seem to me to be an issue I need to resolve in these reasons.
Conclusion
48 Accordingly, I would make the costs order that the defendant seeks. That order is that the plaintiffs pay the defendant's costs, to be taxed if not agreed.
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