Tink v Registrar of Titles

[2006] WASC 60

TINK & ANOR -v- REGISTRAR OF TITLES [2006] WASC 60

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 60
Case No:	CIV:1335/2005	Heard:	1 FEBRUARY 2006
Coram:	SIMMONDS J	Delivered:	5/04/06
No of pages:	39	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	CLIFFORD ROLAND TINK ENID DAPHNE TINK REGISTRAR OF TITLES
Catchwords:	Property law Refusal to issue certificate of title Lots consolidated into one lot Whether "consolidation" and "amalgamation" are interchangeable terms Whether Registrar of Titles must issue a separate certificate for a historical lot shown on a plan Whether amalgamated lot validly created Non-contiguous lots may be amalgamated to create new lot Whether historical lot ceased to exist Whether previous definition of land replaced by new definition of land on new certificate of title
Legislation:	Interpretation Act 1984 (WA), s 10(c) Land Act 1933 (WA), s 118A(3) Local Government Act 1919 (NSW), s 327AA Town Planning and Development Act 1928 (WA), s 2(1), s 20(1), s 21(2) Transfer of Land Act 1903 (WA), s 4(1), s 49, s 71, s 71A, s 166, s 181(1)(a), s 203, s 552(1), s 552(4)
Case References:	Balada Pty Ltd v The Registrar General, unreported; CA of NSW; No CA40281/94 and ED5234/83, 15 February 1995 Boans Ltd v Kwinana Hub Shopping Centre [1982] WAR 41 Boothey v Boothey, unreported; FCt SCt of WA; Library No 970092B; 13 March 1997 Breskvar v Wall (1971) 126 CLR 376 Citizens and Graziers Life Assurance Co Ltd v Commonwealth Life (Amalgamated) Assurances (1934) 51 CLR 422 Gibbs v Snowy River Shire Council (1984) 53 LGRA 306 Gilbert (Valuation Officer) v S Hickinbottom & Sons Ltd [1956] 2 QB 40 Jordan v Van Schoubroeck [2005] WASCA 120 Kwa v City of Stirling, unreported; SCt of WA (Scott J); Library No 980321; 17 June 1998 Lee v Registrar General (1989) 68 LGRA 342 Palamore Pty Ltd v Clode, unreported; SCt of WA (Murray J); Library No 980599; 16 October 1998 Registrar-General v Lee (1990) 19 NSWLR 240 SGIC Insurance Ltd v Insurance Australia Ltd (2004) 51 ACSR 593 Sutherland Shire Council v Moir (1982) 49 LGRA 115 Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472 Re Brown (1921) 22 SR (NSW) 90 The Owners of Corinne Court 290 Stirling Street Perth Strata Plan 12821 v Shean Pty Ltd [2000] WASC 181

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : TINK & ANOR -v- REGISTRAR OF TITLES [2006] WASC 60 CORAM : SIMMONDS J HEARD : 1 FEBRUARY 2006 DELIVERED : 5 APRIL 2006 FILE NO/S : CIV 1335 of 2005 BETWEEN : CLIFFORD ROLAND TINK

ENID DAPHNE TINK
Plaintiffs

AND

REGISTRAR OF TITLES
Defendant

Catchwords:

Property law - Refusal to issue certificate of title - Lots consolidated into one lot - Whether "consolidation" and "amalgamation" are interchangeable terms - Whether Registrar of Titles must issue a separate certificate for a historical lot shown on a plan - Whether amalgamated lot validly created - Non-contiguous lots may be amalgamated to create new lot - Whether historical lot ceased to exist - Whether previous definition of land replaced by new definition of land on new certificate of title

Legislation:

Interpretation Act 1984 (WA), s 10(c)

Land Act 1933 (WA), s 118A(3)
Local Government Act 1919 (NSW), s 327AA

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Town Planning and Development Act 1928 (WA), s 2(1), s 20(1), s 21(2)
Transfer of Land Act 1903 (WA), s 4(1), s 49, s 71, s 71A, s 166, s 181(1)(a), s 203, s 552(1), s 552(4)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiffs : Mr I A Morison
Defendant : Ms L E Christian

Solicitors:

Plaintiffs : Williamson & Co
Defendant : State Solicitors Office

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

Balada Pty Ltd v The Registrar General, unreported; CA of NSW; No CA40281/94 and ED5234/83, 15 February 1995
Boans Ltd v Kwinana Hub Shopping Centre [1982] WAR 41
Boothey v Boothey, unreported; FCt SCt of WA; Library No 970092B; 13 March 1997
Breskvar v Wall (1971) 126 CLR 376
Citizens and Graziers Life Assurance Co Ltd v Commonwealth Life (Amalgamated) Assurances (1934) 51 CLR 422
Gibbs v Snowy River Shire Council (1984) 53 LGRA 306
Gilbert (Valuation Officer) v S Hickinbottom & Sons Ltd [1956] 2 QB 40
Jordan v Van Schoubroeck [2005] WASCA 120
Kwa v City of Stirling, unreported; SCt of WA (Scott J); Library No 980321; 17 June 1998
Lee v Registrar General (1989) 68 LGRA 342
Palamore Pty Ltd v Clode, unreported; SCt of WA (Murray J); Library No 980599; 16 October 1998

(Page 3)

Registrar-General v Lee (1990) 19 NSWLR 240
SGIC Insurance Ltd v Insurance Australia Ltd (2004) 51 ACSR 593
Sutherland Shire Council v Moir (1982) 49 LGRA 115

Case(s) also cited:

Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472
Re Brown (1921) 22 SR (NSW) 90
The Owners of Corinne Court 290 Stirling Street Perth Strata Plan 12821 v Shean Pty Ltd [2000] WASC 181

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SIMMONDS J:

Introduction

1 This action raises the question whether the Registrar of Titles can refuse to issue a certificate of title for a portion of the land of land in the current certificate of title, even although that portion is defined on a plan publicly available from the Department of Land Administration. The basis for the refusal relied upon by the Registrar is that in the circumstances the application can only be treated as one for the creation and registration of a new certificate of title under the Transfer of Land Act 1903 (WA), s 166, dealing with subdivision. In this case the procedure provided for in that section has not been followed.

2 The basis for the applicant's claim that the Registrar cannot refuse to issue the certificate of title lies in the land's title history, which means it is said that no subdivision under s 166 should be taken to have been applied for in this case.

3 To understand the issues, the title history, as well as the provisions of the Transfer of Land Act and related legislation said to be relevant, need to be considered in some detail.

4 Before doing so, however, I need to deal with a matter arising out of the conclusion of the hearing of this matter on 1 February 2006. That matter was an application for leave to file further written submissions for the plaintiffs.

Application for leave to file written submissions for the plaintiffs

5 This matter was originally heard on 5 August 2005. At that time, counsel for the plaintiffs made oral submissions, having previously filed an outline of written submissions. Counsel for the defendant did not have an opportunity to open her case. This was because the parties agreed that there should be an adjournment of the hearing, as a result of exchanges between counsel for the plaintiffs and myself, as well as because counsel for the plaintiffs had raised an argument not foreshadowed in his outline of written submissions, and counsel for the defendant wished to raise an issue not foreshadowed in her outline of submissions and arising out of the plaintiffs' new argument. I granted an adjournment with liberty to apply, including to amend the originating summons and to adduce additional affidavit evidence.

6 The matter came back for hearing on 1 February 2006. A minute of proposed re-amended originating summons was filed for the purpose of

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the hearing, as were new affidavits, filed by the defendant, and outlines of further submissions for both the plaintiffs and the defendant.

7 At the hearing, counsel for both parties made oral submissions and counsel for the plaintiffs made a reply. At the close of the time allowed for the hearing, I indicated my understanding to counsel for the plaintiffs that he had not had an opportunity to conclude his reply. I asked him whether it was possible to resume the hearing the following day for him to so conclude. Counsel for the plaintiffs indicated he had no more submissions and did not need that resumption.

8 On the next day, 2 February 2006, counsel for the plaintiffs had his instructing solicitor fax counsel for the defendant to indicate that counsel for the plaintiffs had informed his instructing solicitor of counsel's intention to prepare further written submissions. These were to respond to "a number of arguments in her oral submissions which are not included in her written submissions". Following a process of conferral, an application was filed for leave to file further written submissions.

9 After a hearing on 21 February 2006 in which counsel for the plaintiffs (not counsel at the previous hearings) and counsel for the defendant addressed me upon the application, I reserved my decision. This was so that I could review the written submissions for the filing of which leave was sought. Both counsel as I understood it invited me to undertake that review for that purpose.

10 My review of the written submissions indicates to me that a number cannot be characterised as submissions on "new points", seen as arguments not included in the written submissions for the defendant previously filed. Rather, the matter in question had been raised in the defendant's outlines of written submissions or one set of them, and elaborated on at the hearing. I refer to the submissions for which leave is sought numbered 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14, of the 14 numbered submissions. It seems to me, however, to be at least arguable that submissions 3 and 4 go to matters that could be called "new points" in the sense I have identified.

11 It is undesirable that a matter be prolonged by the seeking of leave to lodge further submissions so as to continue a reply, at least unless the justice of the case calls for it, and no unreasonable prejudice is done to the other side that cannot be suitably remedied. In an adversarial system the oral hearing at which experienced counsel have the opportunity to hear,

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assess and probe one another's arguments is central to the efficient administration of justice.

12 However, in this case, the hearing had to be ended at the expiry of the allotted time, and counsel had not (at least on his further consideration of the matter) concluded his oral submissions in reply. There is no doubt that, in cases where oral addresses have not been completed before the expiry of the allotted time, the court will more readily allow leave: Boothey v Boothey, unreported; FCt SCt of WA; Library No 970092B; 13 March 1997 per Ipp J at p 4, Murray J and Malcolm CJ agreeing. I should add that in a complex case such as this one, where the issues had taken some time to crystallise, this may be all the more so, at least where no prejudice is caused of the sort I have described.

13 I am not convinced there would be any prejudice to the defendant in letting in the written submissions for which leave is sought. I do not see any of them to which objection could be sustained on the basis it went beyond a reply to make fresh submissions. While the submissions for which leave was sought are in written form, counsel could of course have chosen to read from such a document had the hearing been continued on a later day. Here, had a request been made at the hearing for the opportunity to conclude oral submissions by way of reply, I would not have refused it.

14 Thus, I have decided to let in the written submissions for the filing of which leave has been sought.

The title history

15 The account that follows is not in contest, with the exceptions noted. It is taken from the evidence in these proceedings in the form of a series of affidavits, principally from officers of the Department of Land Information and an officer of the Department of Planning and Infrastructure of the State. With my leave, one of the officers of the former department was cross-examined on certain paragraphs of his affidavits.

16 In 1902, Ravenshorpe Lots 244 – 249, 252, 255 – 264 and portion of Lot 254 were created by Ravenshorpe Town Plan 211/2. This document was sometimes referred to in these proceedings as "Plan 211/1902".

17 In 1907, Ravensthorpe Lots 690 and 691 were created by Ravensthorpe Town Plan 211/5. This document was sometimes referred to in these proceedings as "Plan 211/1905".

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18 To explain the issues in these proceedings, it is necessary I provide some detail as to the relative locations of the Ravensthorpe Lots referred to on these plans. What follows is a narrative description. I also set out in Appendix 1 to these reasons the plan for the land the subject of the current certificate of title. That plan shows the Ravensthorpe Lots, including the particular Lot, Ravensthorpe Lot 244, for which the plaintiffs have applied to have created and registered in their name a separate Certificate of Title.

19 Ravensthorpe Plans 211/2 and 211/5 show between them three groups of Ravensthorpe Lots for the purposes of these proceedings. These groups are divided from one another by roads. The first group, Lots 690 and 691, is shown divided from the second group, Lots 264, 244 – 249 and 252, by Neil Street. That second group, Lots 264, 244 – 249 and 252, is shown divided from the third group, Lots 255 – 263 and a portion of Lot 254, by Dance Street. It is necessary, in order to appreciate what is at stake in these proceedings, for me to provide more detail about the Lots in these three groups.

20 It is convenient to start with Lots from the second group. Lots 264, 244, 246 and 248 are shown running consecutively in a north-easterly direction along Jamieson Street, which is for each Lot its north-western boundary. There are what appear to be two further Lots that lie between the north-eastern boundary of Lot 248 and Dance Street, where Jamieson turns to the east.

21 From the eastern side of its intersection with Dance Street, Jamieson is shown as forming the northern boundary for the portion of Lot 254 and the land with which that portion shares its eastern boundary, Lot 255. Jamieson crosses Elston Street at the eastern boundary of Lot 255. Lots 255, 257, 259, 261 and 263 are shown running consecutively in a southerly direction along Elston Street, which is for each Lot its eastern boundary. Elston Street reaches Minehen Street at the southern boundary of Lot 263. Lots 263 and 262 are shown running consecutively in a westerly direction along Minehen Street, which is for each Lot its southern boundary, and which reaches Dance Street at the western boundary of Lot 262. There, Minehen Street turns southwest. From the eastern side of the intersection of Minehen and Dance Streets, Lots 262, 260, 258, 256 and the portion of Lot 254 are shown running consecutively in a northerly direction along Dance Street, which is for each Lot its western boundary, and which reaches Jamieson at the northern boundary of the portion of Lot 254.

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22 From the western side of the intersection of Minehen and Dance Streets, Lots 252, 249, 247 and 245 are shown running consecutively in a south-westerly direction along Minehen, which for each Lot is its south-eastern boundary, and which reaches Neil Street at the south-western boundary of Lot 245. The eastern boundary of Lot 252 is shown running north along Dance Street part of the way towards Jamieson. From the north-eastern side of the intersection of Minehen and Neil Streets, Lots 245 and 264 are shown running consecutively northwest along Neil Street, which for each Lot is its south-western boundary, and which reaches Jamieson at the north-western boundary of Lot 264.

23 From the north-western side of the intersection of Minehen and Neil Streets, Lots 691 and 690 are shown running consecutively in a south-westerly direction along Minehen Street, which is for each Lot its south-eastern boundary. Lot 691's north-eastern boundary runs northwest along Neil Street from Minehen part of the way towards Jamieson.

24 Ravensthorpe Town Plans 211/2 and 211/5, as I have partly indicated, describe more lots than those in the three groups I have referred to. However, it is only those groups that are relevant to these proceedings, for reasons which will emerge from these reasons.

25 The next relevant event in the title history is represented by a document dated 27 June 1969 and styled "Application for Consolidation", a title that assumes some significance in the case for the plaintiffs. This application was given Office of Titles identifier A204487. Application A204487 was by the then registered proprietor of the lands represented by those Ravensthorpe Lots in the three groups described, James McCulloch. Application A204487 read in material part as follows:

"I JAMES MATTHEW McCULLOCH of Ravensthorpe in the State of Western Australia Farmer HEREBY APPLY that ALL THOSE pieces of land … described in the Schedule hereto of which I am the registered … proprietor the subject of Diagram 38429 be consolidated into one Title.

THE SCHEDULE

(a) Ravensthorpe Lot 246 and being the whole of the land comprised in Certificate of Title Volume 401 Folio 34.

(b) Ravensthorpe Lot 244 and being the whole of the land comprised in Certificate of Title Volume 413 Folio 131.

(Page 9)

(c) Ravensthorpe Lots 254, 255, 256 and 257 and being the whole of the land comprised in Certificate of Title Volume 589 Folio 190 less portion resumed.

(d) Ravensthorpe Lot 252 and being the whole of the land comprised in Certificate of Title Volume 775 Folio 57.

(e) Ravensthorpe Lots 258 and 259 and being the whole of the land comprised in Certificate of Title Volume 1032 Folio 665.

(f) Ravensthorpe Lot 264 and being the whole of the land comprised in Certificate of Title Volume 1138 Folio 612.

(g) Ravensthorpe Lot 245 and being the whole of the land comprised in Certificate of Title Volume 1138 Folio 613.

(h) Ravensthorpe Lot 249 and being the whole of the land comprised in Certificate of Title Volume 1138 Folio 614.

(i) Ravensthorpe Lot 691 and being the whole of the land comprised in Certificate of Title Volume 1160 Folio 816

(j) Ravensthorpe Lot 690 and being the whole of the land comprised in Certificate of Title Volume 1160 Folio 817.

(k) Ravensthorpe Lot 263 and being the whole of the land comprised in Certificate of Title Volume 1210 Folio 970.

(l) Ravenshorpe Lot 247 and being the whole of the land comprised in Certificate of Title Volume 1245 Folio 543.

(m) Ravensthorpe Lot 260 and being the whole of the land comprised in Certificate of Title Volume 1245 Folio 544.

(n) Ravensthorpe Lot 261 and being the whole of the land comprised in Certificate of Title Volume 1245 Folio 545.

(o) Ravensthorpe Lot 262 and being the whole of the land comprised in Certificate of Title Volume 1245 Folio 546.

(p) Ravensthorpe Lot 248 and being the whole of the land comprised in Certificate of Title Volume 1308 Folio 795."

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26 I note that on the Application A204487 that is in evidence before me (affidavit of Max Van Weert, Assistant Registrar of Titles, Department of Land Information, sworn 20 May 2005, Exhibit B, Annexure "C") there are what appear to be the initials of McCulloch and his witness alongside corrections of the spelling of his middle name, and alongside the entry by hand of a diagram number ("Diagram 38429"), but not alongside the handwritten addition at (c) "less portion resumed".

27 It will be seen that each of the Ravenshorpe Lots in the three groups I have described was by the time of Application A204487 the subject of a separate Certificate of Title. This was with two sets of exceptions. One set of exceptions was represented by contiguous Ravensthorpe Lots 254, 255, 256 and 257, which together were "the whole of the land comprised in Certificate of Title Volume 589 Folio 190 less portion resumed" ((c) on the above list). As I have already indicated, the portion resumed was from Ravensthorpe Lot 254, but nothing more about such resumption was apparent to me from the evidence, or appears to me to be material for my purposes.

28 The other set of exceptions to each Ravensthorpe Lot having its own Certificate of Title restricted to that Lot was represented by the contiguous Ravensthorpe Lots 258 and 259, which together were "the whole of the land comprised in Certificate of Title Volume 1032 Folio 665" ((e) on the above list).

29 On a date after 7 August 1969, Application A204487 was lodged with the Registrar of Titles. This lodgement was in accordance with the procedure of the Office of Titles at the time, being made possible by the signature upon "Diagram 38429" (as referred to in the Application) of the Inspector of Plans and Surveys on 7 August 1969. Diagram 38429 (a colour copy of which is annexure "RJF2" to the affidavit of Robert John Farmer, Assistant Registrar of Titles and Manager of the Complex Dealings Section within the Registration Services Branch of the Department of Land Information, sworn 19 October 2005, Exhibit D: this copy is the basis of Appendix 1) also bears the approval, dated 1 July 1969, of the chairman of the Town Planning Board. It is common ground between the parties that such approval was not at that time necessary, as Application A204487 was not for the creation and registration of a new certificate of title by way of a subdivision under Transfer of Land Act, s 166. This is a matter returned to below.

30 A Certificate Title, Volume 263, Folio 92A, dated 22 August 1969, was subsequently issued to McCulloch as a result of

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Application A204487. What is deposed to be a copy of that Certificate of Title, subsequently cancelled as will shortly appear, is an annexure to the Van Weert affidavit, Exhibit B Annexure "E"; a coloured copy is also an annexure, to the Farmer affidavit 19 October 2005, Exhibit D Annexure "RJF3". That Certificate of Title states (in material part):

"James Matthew McCulloch …, is now the proprietor of an estate in fee simple subject to easements and encumbrances notified hereunder in the natural surface and therefrom to a depth of 40 feet of all that piece of land delineated and coloured green on the map hereon containing 99 acres and 11 perches or thereabouts, being Ravensthorpe Lots 244 to 249 (inclusive) 252, 255 to 264 (inclusive), 690, 691 and portion of Ravensthorpe Lot 254 thewhole of the said land being Lot 1 the subject of Diagram 38429." (Underlining in the original.)

31 It appears to have been accepted before me that the Application A204487 was made or should be treated as having been made under Transfer of Land Act, s 71, which as at the date of that Application, in 1969, ran as follows:

"On the application of any proprietor or of any person entitled to become a proprietor of land under separate certificates of title and on his delivering up the duplicates thereof the Registrar may issue to him a single certificate of title for the whole of such land or several certificates as to portions thereof in accordance with such application so far as the same may be done consistently with any regulations for the time being in force respecting the parcels of land that may be included in one certificate of title; and upon registering any certificate under this section the Registrar shall cancel the previous certificate and shall endorse thereupon a memorandum setting forth the occasion of such cancellation and referring to the new certificate."

32 I note that s 71 in its current form is identical with the form just quoted, except that the current form uses "create and register in the proprietor's name" instead of "issue to him".

33 It will be noted that s 71 required the cancellation of Certificates of Title listed in the schedule to Application A204487, above. Although there appears to be no evidence before me on the point, it is not suggested any of those Certificates of Title were not cancelled.

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34 However, that Certificate of Title also bears on that sketch plan notations, by way of crossings out and the word "closed", for each of Neil Street, Dance Street, Elston Street and Minehen Street. As will appear, those closures did not occur until 1981, with the exception of the part of Minehen Street which forms the south-eastern boundaries of Ravensthorpe Lots 690 and 691. It appears from Diagram 38429 that the latter closure did not occur in 1981, but earlier, in 1979.

35 As will shortly also appear, that Certificate of Title also bears an endorsement of a transfer to the plaintiffs in 1972, as well as a cancellation legend.

36 The matters just referred to would indicate that the Certificate of Title in the form described was not in the same form as when it was issued to McCulloch in 1969.

37 I now return to Diagram 38429, "Lot 1" on which is referred to in the McCulloch Certificate of title issued to him in 1969. It was not made clear to me who prepared Diagram 38429. There was considerable contest before me as to when particular (undated) markings were made on Diagram 38429, particularly the number "1" (appearing at the boundary between Ravensthorpe Lot 246 and Ravensthorpe Lot 249). What was also in contest was whether there were added later three pairs of black markings in the form identified before me as vinculums, or hooks. These appear in the Diagram 38429 shown in Appendix 1 to these reasons. One pair of hooks is broken across the road (Neil Street) dividing the first group of Ravensthorpe Lots from the second such group, and a second pair of hooks is shown broken across the road (Dance Street) dividing the second group of Ravensthorpe Lots from the third such group. These hooks, it was accepted before me, should be taken to show an intention that the items to which they are attached are to be treated as a "unit" (Jordan v Van Schoubroeck [2005] WASCA 120, per Le Miere AJA, Wheeler and Roberts-Smith JJA agreeing, at [14]).

38 The sketch plan shown on Certificate of Title Volume 263 Folio 92A in the form referred to above shows the number "1" and the black hooks in virtually the same places as on Diagram 38429.

39 I further note the evidence of Farmer that changes were made to Diagram 38429, at some time or times after the issue of the Certificate of Title in 1969. One set of changes was to reflect the linkage of the areas at the boundaries of the Ravensthorpe Lots of the closed roads (except for the portions of Minehen Street forming the south-eastern boundaries of

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Ravensthorpe Lots 690 and 691) to Ravensthorpe Lot 262 (signified by two pairs of red-hooks at the western and southern boundaries of Ravensthorpe Lot 262, into Dance and Minehen Streets, respectively). Another set of changes was represented by green boundary lines to include those closure areas (with that exception) in the land denoted Lot 1. A still further set of changes was of the boundary measurements, from the original Imperial to metric, and then to new greater measurements when road areas were included. I also note the annotation on the Diagram 38429 "Land Act 1933 application C443433: Lot 1 amended to include closed road", dated 7 October 1982. (See Farmer affidavit of 19 October 2005, Exhibit D, par 8(f); and affidavit of Robert John Farmer sworn 13 January 2006, Exhibit F, par 3.) None of these changes appears on the McCulloch Certificate of Title in the form I have referred to.

40 On all of this evidence I find that there was a number "1" that appeared on Diagram 38429, as well as hooks to indicate the uniting of the three groups of Ravensthorpe Lots, in both cases when the process initiated by the Application of A204487 was completed, as Transfer of Land Act, s 71 provided, by the issuance of a new Certificate of Title to McCulloch. That a Diagram 38429 was produced at this time is not in contest before me, and could not I believe be contested on the evidence, particularly that of the annotations on the Application to which I previously referred. There was no reason evident to me why hooks and a Lot 1 designation should have been added between that completion and some time before the inclusion of the closed roads areas, and the description of the land in the 1969 Certificate of Title tends to indicate the contrary. Whether Lot 1 was validly created is a different matter, to which I will return.

41 Returning to the title history, the next relevant event is shown as an endorsement on McCulloch's Certificate of Title and occurred on 29 August 1972. It was the registration of Transfer A561341 to the plaintiffs.

42 Subsequently, by notice published in the Government Gazette for the issue dated 24 April 1981, all of Neil Street, Dance Street, Elston Street and that portion of Minehen Street (except for the portion adjoining Ravensthorpe Lots 690 and 691 as their south-eastern boundaries), adjoining the three groups of Ravensthorpe Lots, were closed. By order in council by Land Act 1933 (WA), s 118A(3) dated 10 November 1981, as described in a Certificate of the Under Secretary for Land dated 26 November 1981, the land represented by those 1981 closures was declared to be "vested" in the plaintiffs as:

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"The owner of the adjoining land, viz. Ravensthorpe Lots 244 to 249 (inclusive), 252, 255 to 264 (inclusive), 690, 691 and portion of Ravensthorpe Lot 254 the whole of the said land being Lot 1 the subject of Diagram 38429 as registered in Certificate of Title Volume 263 Folio 92A for an estate or interest similar to that held by them in the said lots to form portion of and be incorporated in such lots."

43 It should be noted that no part of the roads closed in 1981 adjoined Lot 690, a matter I return to below.

44 On the plan shown on the certificate of this vesting (Annexure "G" to Max Van Weert's affidavit, Exhibit B) there is a single pair of hooks connecting (at what was Dance Street) the road area shaded in green to Ravensthorpe Lot 262.

45 I note in this regard the evidence of Farmer (Exhibit D, par 11) that Office of Titles practice was in cases of this sort, here referring to the linkage of the road areas to Ravensthorpe Lot 262, to provide the road area land "with an underlying tenure" so as to subject the land to the "depth limits, mineral reservations, restrictions alienation, other reservations and conditions" in the "former original Crown Grant particulars". I return to this evidence below.

46 On 7 October 1982, the plaintiffs lodged Application C443433 for the issue of a new certificate of title. In the box on the Application captioned "Description of Land" there is a description referring to the Ravensthorpe Lots as well as to Lot 1 on Diagram 38429 "being the whole of the land comprised in Certificate of Title Volume 263 Folio 92A". In the box captioned "Reason for the Application" the following appears: "To include the fee of the road closed by notice published in the Government Gazette of April 24, 1981 and referred to in the Certificate of the Under Secretary for Lands dated November 26, 1981".

47 Also on 7 October 1982 a new Certificate of Title Volume 1631 Folio 001 was issued, and Diagram 38429 was amended to include the 1981 closed roads (Van Weert affidavit, Exhibit B, par 11: what is there deposed to be a true copy of Certificate of Title Volume 1631 Folio 001 forms part of Annexure "I" to this affidavit; a coloured copy forms part of the annexure to the affidavit of Farmer of 19 October 2005, Exhibit D, Annexure "RJF4"). The Certificate of Title in the form before me bears notations, including the legend "Superseded – Copy for Sketch Only", indicating it was not in the form the plaintiffs originally received. This

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form of the Certificate of Title was before me called the "Paper" form, for reasons which will shortly appear.

48 It appears Application C443433 was made under Transfer of Land Act, s 71, which was then still in the form set out above. Thus, I note that the Certificate of Title Volume 263 Folio 92A bears the notation "Totally Cancelled" above a reference to Application C443433, and the notation "To Volume 1631A Folio 1 includes closed road".

49 I note that the plan on the Certificate of Title Volume 1631 Folio 001 to which I have referred does not show boundaries to Lot 262 at what were Minehen and Dance Streets, but otherwise retains the boundaries of the closed roads. This would be consistent with the inclusion of the closed roads in Lot 262 that I have previously referred to.

50 I also note that it appears that at some point subsequent to the creation and registration of Certificate of Title Volume 1631 Folio 001 in the form I have described a new form of Certificate of Title bearing the same Volume and Folio numbers was created and registered. This form is referred to as the "Digital Record of Certificate of Title Volume 1631 Folio 001" in the evidence before me. That evidence is the affidavit of Farmer of 19 October 2005, Exhibit D, pars 11 and 13. In the latter paragraph Farmer deposes that a "certified copy of the Digital Record of Certificate of Title Volume 1631 Folio 001 and a certified coloured copy of Paper Certificate of Title Volume 1631 Folio 001" form Annexure "RJF4" to that affidavit.

51 The "Digital Record of Certificate of Title" differs from the "Paper" form in a number of ways. Those principally relevant for my purposes are the heading "Record of Certificate of Title" rather than "Certificate of Title"; the "Land Description", which is given simply as "Lot 1 on Diagram 38429", that is, without reference to the Ravensthorpe Lots numbers; and the legend on the "Digital" Record, "Subject to Dealing or Other Action", rather than the legend on the "Paper" form indicating the document had been "Superseded".

52 It was put to me by counsel for the plaintiffs that the status of the Record of Certificate of Title was not in evidence before me. In particular, it was not in evidence that the Record replaced the Certificate of Title in paper form first issued in 1981. It is not necessary for me to explore this issue, however. That is because the Record makes reference, after the headings "End of Certificate of Title" and "Statements", to "Sketch of Land 1631-1" and "Previous Title 263-92A". These references

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I am prepared to accept as references to the Sketch Plan on the Paper Certificate of Title, and to the predecessor Certificate of Title Volume 263 Folio 92A. I am therefore prepared to conclude that, even if there is a Digital Record of Certificate of Title with the abbreviated land description referred to, which replaced the Paper form, the description of the land in the former can be read with the title history so referred to.

53 I note that there is evidence (in the affidavit of Farmer of 19 October 2005, Exhibit D, par 11) as follows:

"In the 'paper' land titling system applicable when Certificate of Title Volume 263 Folio 92A was issued, it was Office of Titles practice to retain references to the former original Crown Grant particulars, including extent of boundaries."

54 I return to this quotation again later in these reasons. For now, however, I do not consider that this evidence, when read with the Digital Record of Certificate of Title I have referred to, does more than confirm that the history no longer appears on the title itself.

55 On all of this evidence I do not consider that the creation and registration of the Digital Record of Certificate of Title should be understood to have been intended to effect any change to the status of the lands not previously made by the title history I have recounted.

Current proceedings

56 These proceedings arose out of a "Application for New Title" by the plaintiffs dated 24 August 2004. It was given the Department of Land Information identifier J18530. By this Application the plaintiffs applied for the creation and registration of a new Certificate of Title. The Application gave, in the box captioned "reason" for the application, the entry, "for the issue of a separate title for Ravensthorpe Lot 244". This application was made under Transfer of Land Act, s 71A, which reads:

"71A.Proprietor may apply for separate certificate

(1) The Registrar, upon application being made in writing by a proprietor of land the subject of a certificate of title, may create and register in the proprietor's name a separate certificate of title for part of the land, and shall endorse upon the certificate of title, from the subject of which part is taken, a memorandum partially cancelling the certificate.

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(2) The Registrar shall retain the duplicate (if any) of the partially cancelled certificate of title and, when required by the proprietor, shall create and register in the proprietor's name a certificate of title for the land remaining the subject of the partially cancelled certificate of title."

57 The defendant by a requisition notice dated 20 September 2004 set out what is accepted to be the first response to Application J18530. The requisition notice read in material part as follows:

"The survey is required to define the former Ravensthorpe Lot 244. The Registrar cannot issue a title for this land and this Application needs to be withdrawn from registration".

58 A letter dated 22 October 2004 from Christopher Andrews, Legal Officer, Legal Services Branch of the Department of Land Information to the solicitor for the plaintiffs elaborated on the matter just quoted. The letter refers to an opinion from counsel for the plaintiffs, who was counsel for them before me, except on 21 February 2006, and in material part reads as follows:

"Finally, in paragraph 12, Mr Morison 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. 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."

59 On 23 March 2005 the plaintiffs commenced the present proceedings under Transfer of Land Act, s 203. That provision reads as follows:

"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

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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."

60 In the present proceedings by their re-amended originating summons the plaintiffs seek the following orders:

"1. An order that the defendant substantiate the grounds of the defendant's refusal to issue a separate title for lot 244 being one of the lots:

(a) mentioned in certificate of title volume 1613 Folio 001 ('the Lots'); and

(b) created by Ravensthorpe Town Plan 211/1902 and Ravensthorpe Town Plan 211/1905.

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2. An order directing the defendant to issue a title for lot 244.

3. An order declaring that Diagram 38429 did not purport to amalgamate the Lots.

4. Alternatively an order declaring that Diagram 38429 is void and of no effect.

5. An order declaring that the Lots are not amalgamated.

6. Costs."

61 I understood the defendant not to have objected to leave to amend being granted for the originating summons in this form, and I gave such leave.

Preliminary matters

62 Before reaching, in the next section, of these reasons, the remaining issues in this case as framed by the parties' submissions, I should note that I have already dealt with the submission put by counsel for the plaintiffs that, as a matter of fact, there was no purported creation by the Registrar of Lot 1 on Diagram 38429 on Application A204487 in 1969. I should also note that there was a closely related submission he put to me, that there was no evidence of any intention by the applicant, McCulloch, to have the Registrar create such a unit. Given my finding that the Registrar did create that unit as he did, and given that there was no evidence of any objection to this by McCulloch, I would find there was evidence from which I should find on the balance of probabilities there was such an intention.

63 Counsel for the plaintiffs pressed on me, however, that I should infer there was no such intention, from the styling of Application A204487 a "consolidation application" as well as a request for the Registrar to "consolidate" titles. The words "consolidation" and "consolidate" were distinguished from "amalgamation" and "amalgamate". None of those words appears to be used in the Transfer of Land Act. However, the use of "consolidation" rather than "amalgamation" indicated, it was submitted, an intention not to have, as an amalgamation, it was said would have had, the Ravensthorpe Lots come together in a unit like Lot 1. I was referred to the dictionary definition of "amalgamate", and its use in the Town Planning and Development Act 1928 (WA), and in company law cases. I turn to those sources. I should indicate, however, that in my view none of

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them, when considered with the dictionary definitions relevant to "consolidation", carries the point.

64 Dictionary definitions of "amalgamation" do indeed suggest a combination of items to make a single unified whole.

65 The Oxford English Dictionary 1933 defines "amalgamation" as "2. The action of combining distinct elements, races, associations into one uniform whole … 4. A homogenous union of what were previously distinct elements, societies, etc.". The Macquarie Essential Dictionary 1999 defines "amalgamate" as "3. To combine, unite, or coalesce".

66 The word "amalgamate" was apparently first included in the Town Planning and Development Act by the addition of "amalgamate" to s 20(1) by Act No 34 of 1972, s 3. Section 20(1) is the familiar prohibition on certain dealings with land unless the land is dealt with "as a lot or lots", as well as the prohibition that a person must not "subdivide any lot", in either case without the approval of the Western Australian Planning Commission. The added prohibition, following the prohibition on subdivision, is that a person must not "amalgamate any lot with any lot whether within the same district or otherwise", without the approval referred to. This addition was explained in the Second Reading Speech in the Legislative Council for the amending Bill as follows (the Hon J Dolan, Hansard 27 April 1972, p 1012):

"People seeking to subdivide lots are required to obtain the approval of the Town Planning Board [the WAPC's predecessor], but the amalgamation of lots does not require such approval. This facility to amalgamate lots without reference to the appropriate authorities for consent has created problems in the past. For example, a proposal to amalgamate two lots either side of a district boundary between two local authorities may result in subsequent administrative difficulties for the councils concerned. Similarly when a servicing authority has a service laid adjoining a boundary, the amalgamation of the lots may eliminate the boundary and deprive the servicing authority of the opportunity to request an easement or of rerouting the service. The amendment proposes that contemplated amalgamations of lots shall be subject to the approval of the Town Planning Board."

67 Further, there is a definition in the Town Planning and Development Act, in s 2(1), "'subdivision' includes amalgamation". There is no material
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before me which would indicate why this provision was inserted in the Act.

68 I return below to the correctness or otherwise of the implicit assumption underlying the Second Reading Speech quoted that "amalgamation" was possible at the time. I also return below to the definition of "lot" in s 2(1) of the Town Planning and Development Act.

69 However, both from the dictionary definitions and the usage in the Town Planning and Development Act I would take it that "amalgamation" and "amalgamate" would properly describe the combining of parcels of land into a new parcel.

70 This much also emerges from the authority on "amalgamation" in a company law context, Citizens and Graziers Life Assurance Co Ltd v Commonwealth Life (Amalgamated) Assurances (1934) 51 CLR 422 per Dixon J at 455 – 458. However, his Honour there indicates the word has a sense that does not require the loss of the separate identity of the combined units. This is noted in SGIC Insurance Ltd v Insurance Australia Ltd (2004) 51 ACSR 593, FCA Jacobsen J, at [9]:

"As Dixon J observed in Citizens and Graziers, a transaction may nevertheless be an amalgamation although the corporate existence of the consolidating companies is continued for some special and definite purpose. That is the case here so far as SGIC General Insurance Ltd is concerned because it will remain in existence to give effect to undertakings in accordance with the claims management agreement to which it is a party."

71 That quotation also indicates that, at least in some contexts, "amalgamation" and "consolidation" might be employed interchangeably. This is confirmed by the dictionary definition of "consolidation".

72 Thus, the Oxford English Dictionary (supra) defines "consolidation" as: "3. Combination into a compact mass, single body, or coherent whole; combination, unification". The Macquarie Essential Dictionary (supra) defines "consolidate" as: "2. To bring together compactly in one mass or connected whole; unite, combine: to consolidate into companies".

73 I draw from all of this material that it cannot be inferred from the use of "Consolidation" or "consolidate" in Application A204487 by McCulloch that the applicant did not intend to have the parcels of land the

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subjects of the certificates of title listed in the schedule to the Application combined into a single unit.

74 Below, I consider a further argument, from the doctrine of indefeasibility associated with the Transfer of Land Act, that, even if McCulloch did not so intend, that of itself has no effect on the creation of Lot 1.

The remaining issues in this case

75 There are two such issues framed by the parties' submissions to me.

76 The first issue is whether Lot 1 in Diagram 38429 was validly created in 1969, or in 1981. Counsel for the plaintiffs put it to me that there was no power to create such a unit on Application A204487 in 1969, because the three groups of Ravensthorpe Lots the subject of that application were not contiguous. In any event, the submission was that there was no power to create such a unit out of parcels of land forming the subjects of separate certificates of title, except it would appear by a subdivision of land under Transfer of Land Act, s 166. No "subdivision" could be seen to be involved in the process of bringing such parcels under one certificate of title. On either argument, as there was no Lot 1, there could be no question of subdivision of any such Lot that could be seen to be raised by the plaintiffs' Application J18530 in 2004.

77 The second issue arises if it is accepted Lot 1 in Diagram 38429, as it is considered by the Registrar to exist today, was validly created. This issue is whether, notwithstanding such creation, Ravensthorpe Lot 244 continued to exist so that the Registrar could not refuse to issue and register a certificate of title for it as he had done in this case. That is, there was already in place a subdivision of Lot 1 by virtue of Ravensthorpe Town Plan 211/2, and the issue of and registration of a certificate of title for one of its lots, Ravensthorpe Lot 244, could not involve a subdivision for the purpose of Transfer of Land Act, s 166.

78 I deal with those issues in that order.

Was Lot 1 validly created?

79 I deal first with the argument that Lot 1 could not have been validly created in 1969 out of non-contiguous parcels of land. There is, and was in 1969, a specific power in Transfer of Land Act, s 49 to create and register one certificate of title for several parcels of land that are not contiguous. In 1969, at the time of Application A204487 by James McCulloch, s 49 read as follows:

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"49. One certificate may be created for lands not contiguous

One certificate of title may be issued for several parcels of land though the same are not contiguous if in the opinion of the Registrar their relative positions can be sufficiently and conveniently shown upon the plan on the certificate; and in any case in which it is inconvenient to draw the plan in the margin of a certificate it may be drawn upon the back thereof."

80 That provision differs from the current s 49 only in the replacement of the word "issued" by the words "created and registered" and of all of the words from "upon the plan on the certificate" to and including "the back thereof" with the words "in a relevant graphic". The word "graphic" is defined in s 4(1) of the Transfer of Land Act as follows:

"'Graphic' includes –

(a) a sketch plan in the possession of the Registrar;

(b) plan or diagram lodged or deposited under this Act;

(c) a plan of survey of Crown land,

in such medium for the storage and retrieval of information or combination of such media as the Registrar approves."

81 The term "relevant graphic" is defined is s 4(1) as follows:

"'Relevant Graphic' in relation to a certificate of title, means a graphic endorsed on, annexed to, referred to in or otherwise linked or connected to, the certificate of title."

82 The changes by replacement of the reference to the "plan on the certificate" were made by Act No 6 of 2003, apparently as part of the changes made to the Transfer of Land Act to "provide for the legal and operational or registration requirements necessary for the proposed new digital title system" (Transfer of Land Amendment Bill 2001, explanatory memorandum, p 1).

83 Section 49 in its form at the time of the original enactment of the Transfer of Land Act in 1893, was referred to by the Colonial Secretary (the Hon S H Parker) in his Second Reading Speech in the Legislative

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Council on the Transfer of Land Bill (Hansard 21 December 1892, p 470) as follows:

"One of the provisions of the present Act is that a certificate can only contain one block, or a number of blocks which are contiguous to one another. From his experience the Commissioner thinks that this may be extended so as to include all blocks, whether contiguous or not, which, in the opinion of the Registrar, can be conveniently and sufficiently shown on the plan. This will certainly be an advantage to the public, because these certificates cost money, and the more blocks, therefore, that can be put into one certificate the better."

84 Counsel for the plaintiffs put it to me that this last quoted passage indicated an intention to have the provision deal only with documentary title, not the underlying non-contiguous parcels of land. Such parcels could not be united into a Lot 1. I would note some support from this view might be derived from the changes to s 49 in 2003, referred to above, which in my view clearly indicate non-contiguous lands may be shown together in a plan or diagram, apart from any sketch on the certificate of title, where the former s 49 did not so clearly indicate.

85 In connection with this argument, counsel for the plaintiffs referred me to Gilbert (Valuation Officer) v S Hickinbottom & Sons Ltd [1956] 2 QB 40 (CA). This he said was authority that non-contiguous parcels of land could not, as a matter of normal usage, be treated as one unit. Thus s 49 should not be read to allow for this treatment.

86 However, I do not read Gilbert as such an authority. Indeed, I regard the case as indicating the possibility of such unitary treatment where language like that in s 49, past or present, is used.

87 In Gilbert, the court dismissed an appeal by way of case stated from a decision of the Lands Tribunal that two properties owned by a ratepayer on opposite sides of the street should be treated as one "hereditament" for rating purposes. One property was used as a bakery, the other as a repair and maintenance depot for the bakery's vehicles and its machinery. The case stated was whether the Lands Tribunal misdirected itself in treating the functional connection between the two properties as a relevant and decisive consideration. The Court held that the Lands Tribunal had not so misdirected itself. The matter, where there was no definition of "hereditament" in the relevant legislation, was one simply of fact. While lack of contiguity might properly incline the Tribunal away from, and

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contiguity incline it in favour of, a finding of a single hereditament, functional connection in the former case, and its lack in the latter, might properly be weighed so as to arrive at a different conclusion: per Denning LJ, at 48 – 50; Morris LJ, at 52 – 53; and Parker LJ, at 54 – 55.

88 In my view, the language of s 49, both in its form in 1969, and in its current form, makes it possible for the Registrar to treat non-contiguous lands as a unit for the purpose of a single certificate of title at least if in his view the representational standard in each case is met.

89 Gilbert (supra) and the company law authorities on "amalgamations", Citizens and Graziers Life Assurance Co Ltd (supra) and SGIC Insurance Ltd (supra), in my view support this conclusion. That conclusion in my view carries with it the ability to define that unit by reference to a Plan already created, or by reference to a new Diagram created for the purpose. It seems to me that Gilbert and the company law authorities on amalgamation also support the latter view. They do this by indicating that a definition of a single unit may be employed where that best serves the purpose of the statutory power, or definitions of several units treated as one may be employed, where that best serves those purposes. Here, those purposes are of a power enlivened by the application of the registered proprietor, whose application should in my view be seen to define the purpose for the exercise of the power.

90 However, it would also be necessary for the Registrar to have regard to any regulations made under Transfer of Land Act, s 181(1)(a) with respect to "the parcels of land that may be included in one certificate of title". That provision was in the Transfer of Land Act in 1969 at the time of Application A204487 by McCulloch in virtually the same form as it is to be found in s 181 today. That additional consideration is referred to in s 71 of the Act, quoted above, concerning an application by a registered proprietor to bring land and several certificates of title into one certificate of title. It seems to me that such regulations would also control in the s 49 context. My attention was not called to any such regulations, and I was not able to find any of relevance here.

91 I note in passing that Gilbert was distinguished in Kwa v City of Stirling, unreported; SCt of WA (Scott J); Library No 980321; 17 June 1998 where there was an appeal against the decision of the Land Valuation Tribunal upholding the basis of assessment of the land referred to as Lot 51 on Diagram 62755. That land was the subject of what was described in the judgment as an application by the appellant "to amalgamate" Lots 181, 182 and 183 the subject of three certificates of

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title. A new certificate of title was never issued as the mortgagee of the lands refused to permit the delivery up of their certificates of title. The appeal was dismissed on the basis the lands could under Div 3 of Pt XXV of the Local Government Act 1960-1982 (WA) be compendiously identified as a single unit for rating purposes, in the terms "Lot 51 on Diagram 62755 in Wheatcroft Street, Scarborough".

92 Gilbert was distinguished, so far as I can determine, on the basis it was not concerned with how the subject land was properly to be identified.

93 I do not see Kwa as bearing on the issue presently under consideration. I would also note that there is no indication in Kwa whether or not Lots 181, 182 and 183 were contiguous. Nor was there a challenge in Kwa to the possibility for their amalgamation into a new Lot. In this case, of course, there is just such a challenge.

94 For the purposes of that challenge, counsel for the plaintiffs pointed also to the limited purpose for the treatment of non-contiguous parcels in s 49 of the Transfer of Land Act. He emphasised the use of the plural "parcels of land" in the provision, and the lack of any statutory definition of "parcel". On this submission, it was one thing to have non-contiguous parcels of land included in one certificate of title. It was another to have a parcel of land such as "Lot 1" on Diagram 38429 made up of non-contiguous components. Indeed, there was no statutory authority in the Transfer of Land Act for the Registrar to make up a parcel of land, even from contiguous components, to which reference could be made in the present context, which did not involve a subdivision for the purposes of s 166.

95 It was acknowledged that in the case of a subdivision under s 166 new parcels of land could be created. However, a bringing together of parcels of land the subjects of separate certificates of title could not be described as a subdivision in the ordinary meaning of the term, which is not defined in the Transfer of Land Act: see Palamore Pty Ltd v Clode, unreported; SCt of WA (Murray J); Library No 980599; 16 October 1998, per Murray J at 12 (on the ordinary meaning of "subdivide" in s 20 of the Town Planning and Development Act):

"The word 'subdivide' is an ordinary English word which, in my view, in s 20(1)(a) [of the Town Planning and Development Act] bears its ordinary meaning. For the purpose of that section a lot is subdivided when the practical effect of what is done is to

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create out of the existing lot two or more smaller defined portions of land.

I do not think it is necessary that there be an act to transfer of any such smaller portion into separate ownership, although clearly the sale or other alienation of a defined portion of an existing lot will effectively subdivide it. What is necessary, it seems to me, is that, apart from the effect on the transaction of the contravention of s 20(1), there should be some legally effective or binding transaction or process which divides an existing lot into smaller units of land."

96 I note again, of course, that the Town Planning and Development Act, in s 2(1), provides "'subdivision' includes amalgamation". There is no corresponding provision in the Transfer of Land Act. The only other provision to which reference can be made for such statutory authority in the Transfer of Land Act to combine parcels into another parcel, s 71, has previously been set out. However, counsel for the plaintiff submitted, that provision, like s 49, is concerned only with the creation and registration of a certificate of title. Those provisions are thus concerned only with the documentary title to lands, not with the character of the land as separate parcels for which separate certificates of title might be sought.

97 Counsel for the plaintiffs referred me to Gibbs v Snowy River Shire Council (1984) 53 LGRA 306, Land and Environmental Court of New South Wales, Perrignon J at 313. In that case, a certificate of title under the Real Property Act 1900 (NSW) had been issued to a transferee of land. This certificate of title included separate land portions the subject of three certificates of title previously. On the issue of the new certificate of title those three were cancelled. Subsequently, a transmission and transfer from the transferee's successor in title were registered and two new certificates of title issued, one for the three separate land portions, and one for the residue of the land. The issue in the case relevant for my purposes was whether the issuance of two certificates of title represented a "subdivision" of land for the purposes of Local Government Act 1919 (NSW), s 327 which was similar to Town Planning and Development Act, s 20(1).

98 It was held that the issuance in question did not represent a "subdivision" for the purposes of the former Act. On my understanding of the judgment, principal reliance was placed in it on the provisions of the Act excluding from the definition of "subdivision" for its purposes "any

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division of land by following the boundaries of lots or portions in a Crown plan" (s 4 "subdivision").

99 There is no corresponding provision to that exclusion in the Transfer of Land Act. Nor was there any question in Gibbs, as I understand the case, of a plan or diagram having been registered or recorded in the office of the Registrar-General that covered the lands in question, other than the Crown plan in that case. The present issue before me is whether at the time of the making of Application 204487 in 1969, Transfer of Land Act, s 71 read with s 49 authorised 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.

100 It is my view that s 71 read with s 49 carried that authority. On Gilbert, s 49 in 1969 was sufficient to overcome any objection based on lack of authority under s 71 to issue and register a certificate of title in such a case. I am of the view that s 71 should be interpreted to have permitted (and indeed continues in its current form to permit) a definition of the land the subject of the certificate of title so authorised to be in accordance with a new plan or diagram prepared for the purposes of the application under s 71. In my view just such a definition is involved in this case.

101 Such an interpretation of s 71 seems to me to follow from the possibility s 71 allowed and indeed allows for, to (emphasis added):

"… issue to him [now 'create and register in the proprietor's name'] a single certificate of title for the whole of such land or several certificates as to portions thereof in accordance with such application so far as the same may be done consistently with any regulations for the time being in force respecting the parcels of land that may be included in one certificate of title."

102 The fact that the plural "parcels" is used does not prevent such a conclusion: see Interpretation Act 1984 (WA), s 10(c) (words in the singular include the plural, and words in the plural include the singular); and, in a context similar to this one, Balada Pty Ltd v The Registrar General, unreported; CA of NSW; No CA40281/94 and ED5234/83, 15 February 1995, per Clarke JA, Scheller JA agreeing, at [7], an authority to which I return below.

103 At least where the application under s 71 provides for a new definition, as approved by the Registrar, and regulations under s 181(1)(a) do not otherwise provide, the Registrar would have to use the new

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definition. I have already indicated my reason for concluding why the application in this case did provide for such a definition. An application might, however, simply rely on the definitions used in the existing certificates of title. In such a case, at least unless there were regulations under s 181(1)(a) otherwise, the Registrar would have to use those definitions. There are examples of what appear to be such certificates of title referred to in Application A204487 (see Certificate of Title, Volume 589 Folio 190 "less portion resumed", and Certificate of Title Volume 1032 Folio 665, both referred to above).

104 It is true that s 71 does not expressly provide for a new definition as I have indicated. I was referred to the provisions in the Real Property Act 1886 (SA), s 233LJ, which does so provide, in s 233LJ(1):

"Where a person is the registered proprietor of two or more contiguous allotments, he or she may apply to the Registrar-General for amalgamation of those allotments into a single allotment."

105 There is also no express provision in s 71 of the Transfer of Land Act corresponding to s 233LJ(2)(d) of the South Australian statute, which is as follows:

"(2) An application under this section –

…


(d) must, if the Registrar-General so requires, be accompanied by a plan of the allotment to be formed by the amalgamation; …"

106 By contrast there is express provision for a plan or diagram to be lodged showing new definitions of land for the purposes of the new certificates of title allowed for in Transfer of Land Act, s 166, on a subdivision.

107 However, I do not consider this material as telling against the view I have described. Unlike the process in s 233LJ of the South Australian Act, or s 166, a new definition does not have to be used in an application under s 71 of the Transfer of Land Act, at least unless the regulations concerning parcels of land otherwise require.

108 I should note that I do not rely for the view I have described, as to the use of a new definition, on what appears to have been the assumption,

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at the time of the amendment of the Town Planning and Development Act in 1972 to require Town Planning Board approval to amalgamate lots, that such an amalgamation without such approval was then possible. I have previously quoted from the Second Reading Speech in the Legislative Council, which appears to reflect such an assumption, although I also note, as counsel for the plaintiffs drew to my attention, that the examples given in the Speech were of amalgamation of adjoining lots.

109 Any assumption at that time about a power to amalgamate, whether of adjoining or non-contiguous lots, as meaning a power to use a new definition, would not, however, be able to overcome what would otherwise be the proper construction of the Transfer of Land Act, given that its provisions were not being amended at that time. I have, of course already indicated why in my view the proper construction of the provisions of the Transfer of Land Act does indeed allow for a power of amalgamation in the sense of a power to use a new definition combining non-contiguous lots.

110 I also derive no assistance from an annotation on Ravensthorpe Town Plan 211/2 previously referred to, to which counsel for the plaintiffs drew my attention, as offering some support for the argument that there was no power to amalgamate into one defined parcel of land non-contiguous parcels of land. That annotation refers to an area of: "4.996HA included in Lots 244 – 249, 252 – 254, 255 – 264, 690 – 691 under s 118a(3) [sic s 118A(3)] as amended". This appears to be the area of the roads closed in 1981. That annotation is understandable as there is no Lot 1 apparent on the Ravensthorpe Town Plan 211/2. I note, however, that the closed roads could not be included in Lot 690, considered as land separate from the others, as the roads closed in 1981 did not adjoin Lot 690. The reference to that Lot, both here and in the certificate of vesting to which I have previously referred, is most readily understood, in my view, as a recognition of the uniting of it with the other Ravensthorpe Lots. The original Lot 1 on Diagram 38429 did, of course, purport to unite Ravensthorpe Lot 690 with the other Lots, so as to form Lot 1. It is not clear to me, then, that the annotation in fact provides the support for his argument that counsel for the plaintiffs claimed it did.

111 It follows that in my view Lot 1 on Diagram 38429 was validly created in 1969 for the purposes of the issuance of the Certificate of Title Volume 263 Folio 92A. I do not then need to consider whether, if that Lot was not then created, it was nonetheless validly created in 1981 when the lands, which had made the constituent parts of "Lot 1" non-contiguous, were sought to be brought into one title with those parts.

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112 In view of my conclusion, I also do not need to deal with the submission, put to me by counsel for the defendant, that the use of the definition "Lot 1 on Diagram 38429" in the current certificate of title, Volume 163 Folio 1 was conclusive of the issue before me. This argument rested on the indefeasibility principle, in Transfer of Land Act, s 52(1) and (4), and the leading authority for this purpose, Breskvar v Wall (1971) 126 CLR 376 per Barwick CJ at 383. There is support for its application in a context like the present one, in Gibbs (supra), at 313, indicating that the principle was an alternative ground for the decision in that case, and referring to, among other authorities, Sutherland Shire Council v Moir (1982) 49 LGRA 115 (NSWCA). Although neither Gibbs nor Sutherland Shire Council involved proceedings between the Land Title Registrar and the registered proprietor, but rather the effect of the certificate of title on local councils to which development applications had been made, I do not consider that affects the present point. However, I do not need to reach a final conclusion on that matter.

113 I have also noted an authority cited to me by counsel for the plaintiffs, apparently in support of an argument that, even if Lot 1 was validly created, its division by roads meant it could always be decomposed. The authority was Registrar-General v Lee (1990) 19 NSWLR 240 (CA). That was an appeal from a decision of the Supreme Court in the Administrative Law Division granting a declaration that the plaintiffs were entitled to have the plan of a division of land of which they were registered proprietors registered by the Registrar-General as a deposited plan. The registered proprietors had a certificate of title for land, being portion 93 in the parish of Ourimbah less two areas of land resumed for public roads. These two roads divided the land into three parts. The resumptions had occurred after the plaintiffs' predecessor in title had received the original certificate of title for portion 63.

114 Counsel for the plaintiffs particularly referred me to the judgment of Mahoney JA, in the majority with Kirby P, holding that the plan the plaintiffs sought to have registered would not constitute a subdivision of land which, the necessary consents being absent, would have been unlawful under one or other or both of the Local Government Act 1919 (NSW) and the Environmental Planning Assessment Act 1979 (NSW). This was because, in his Honour's view, the land was already divided into three lots as the plan sought to be registered indicated, with the dividing land vested in the Crown. I have some difficulty applying these views (at 19 NSWLR at 247 and 249) to this case, as they would at most support a plan for division of the land being Lot 1 on Diagram 38429 in 1969 into three lots. Lot 244 was part of the second group, as I have indicated.

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Further, the roads ceased to exist in separate ownership in 1981, as I have indicated.

115 In any event, Kirby P, the other member of the court in the majority, rested his judgment on the specific terms of the exclusion from the definition of "subdivision" in s 4 of the Local Government Act 1919 (NSW) for "(b) any severance of land by the opening of a public road". There is no counterpart to that provision in the Transfer of Land Act.

Did Ravensthorpe Lot 244 continue to exist?

116 Counsel for the plaintiffs put to me that the conclusion that Lot 1 on Diagram 38429 was validly created should not be seen to determine the answer to this question. If there continued to be a Ravensthorpe Lot 244, a certificate of title could be issued for it under Transfer of Land Act, s 71A. Section 71A should be seen as a provision that permits the undoing of any union or other combination of lands that results in a new certificate of title or new certificates of titles under s 71.

117 The submission focuses attention on the interpretation of s 71 as well as s 71A, and of what was done under the former provision in this case. The argument as I understand it is that, whether or not the provision in s 71 authorised the creation of one or more new definitions of land, it should not be interpreted to allow for the discontinuance of any previous definition for the purposes of the issuance of any new certificate of title. In any event, a previous definition should not be seen to be discontinued for those purposes if it continued to be used in the current certificate of title, or at least was included in a plan or diagram as described in the definition of a "lot" in Town Planning and Development Act, s 2(1). I deal with those points separately.

118 As to whether there was authority to discontinue previous definitions to be found in s 71, I did not understand the argument to mean that no discontinuance authority could be found elsewhere in the Transfer of Land Act. In my view such authority is clearly provided for in relation to a subdivision by s 163. Section 163(1) provides that after a scheme of subdivision has been verified as the provision describes the plan "shall as from the date of such verification govern the title subsequently created and registered under this Act in respect of the blocks they subdivided or any portion thereof".

119 However, there is no general provision in the Transfer of Land Act which provides for a current plan or diagram which would to the extent of its provision supersede any previous plan or diagram.

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120 I note there appears to have been just such a provision in s 327AA in the Local Government Act 1919 (NSW), which is referred to in this connection in the decision of Smart LJ in Lee v Registrar General (1989) 68 LGRA 342, affirmed in Registrar General v Lee (supra), at 351. That provision is considered in a context not unlike the one in the case before me in Balada PtyLtd (supra).

121 In Balada Pty Ltd the registered proprietor of land had requested the Registrar General to issue separate certificates of title for each of 42 lots. Those lots had resulted from later subdivisions of three original lots as shown on a plan of subdivision registered in 1883. The later subdivisions had been in 1894 (the division of one lot into two) and in 1886 (the division of the other two lots into 40 lots). In 1972 a plan, called a "redefinition", was registered in the Land Titles Office that showed the whole of the land constituted by the original three lots as Lot 1, and there were no other lots shown on the plan. A new certificate of title was issued and the former certificates of title were cancelled or partly cancelled.

122 The Court of Appeal held that the Registrar General could properly refuse to issue the certificates of title requested until there was compliance with the requirement for approval of a subdivision by a local council. That appears to be the requirement considered in Gibbs (supra).

123 The basis for the decision of the Court of Appeal in Balada Pty Ltd was that the 1972 plan had the effect of superseding the two plans which had resulted in the 42 lots. That was because of the proper construction of s 327AA(4) prohibiting dealings with land shown on a "current plan" except by reference to "a lot or portion" shown on that plan.

124 That construction was the one that emerged when that provision was read with the definition in s 327AA(1) of "current plan" in (a), itself read with the definition of "plan of subdivision" in (b) of that latter definition. I reproduce those definitions below:

"327AA(1) In this section –

'current plan', in relation to any land, means –

(a) a plan of subdivision registered or recorded in the office of the Registrar-General (whether before or after the commencement of the Local Government (Amendment) Act, 1970) but does not include so much of that plan as relates to land included in a plan of subdivision registered or recorded in that office after the plan of subdivision

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first-mentioned in this paragraph was so registered or recorded;

…

'plan of subdivision' means –

…

(b) a plan registered or recorded in the office of the Registrar General showing land that is a lot or portion in a lawful division of land, whenever made, not being land that is a lot in a plan of subdivision (as defined in paragraph (a), (c), (d), (e), (f) or (g) of this definition) so registered or recorded."

125 Clarke JA, with whom Sheller JA agreed, held at [7] that the 1972 plan came within (b), as a "plan of subdivision" under s 327AA could show one lot, and it was enough it showed lots from a previous lawful subdivision of that one lot. Cole JA held, at [9] that the 1972 plan came within (b) as lot 1 on the 1972 plan showed boundaries that lawfully divided it from adjacent land.

126 However, I do not consider that a provision like s 163 of the Transfer of Land Act, or s 327AA(1) "current plan" read with "plan of subdivision" of the Local Government Act 1919 (NSW), is the only basis upon which an authority to discontinue previous definitions for the purpose of issuance of a new certificate of title may rest. I have already concluded that a definition like Lot 1 in a new plan can be used for the purposes of the issuance under s 71 of a single certificate of title in place of two or more certificates of title. It seems to me that, if such a new certificate of title is created and registered, instead of one simply using definitions on previous plans, it would be appropriate to see the new definition replacing the previous ones, on the face of it.

127 However, it was put to me that, when account was taken of the context of s 71, in the former s 71A, it becomes clear no such interpretation should be preferred. It was put to me that if s 71A did not permit the undoing of the previous redefinition of lands under s 71 in the form of a Lot 1 as in this case, it would not add anything to what was provided for under other provisions of the Act, such as s 166.

128 I disagree. If a certificate of title was created and registered using only definitions in a previous plan or diagram, it seems to me s 71A alone

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permits the Registrar to issue certificates of title for one or more of the previous subject lands: no subdivision within s 166 is involved. However, if a certificate of title was created and registered using a definition like Lot 1 in this case, then s 71A needs to be read with s 166.

129 However, even if a new definition of land such as Lot 1 on Diagram 38429 should be seen to permit the replacement of previous definitions to the extent of that new definition, it was argued that no such replacement should be seen to have been intended or have resulted in a case like this one. Here, there had been references to the Ravensthorpe Lots on the 1969 and 1981 certificates of title, as I have indicated. In any event, those lots continued to be shown as defined portions of land on a plan or diagram for the purposes of the definition of a "lot" in Town Planning and Development Act, s 2(1).

130 In considering this argument, I begin with the uncontradicted evidence of Farmer that the references to the Ravensthorpe Lots in the certificates of title referred to were included in accordance with the then practice of the Office of Titles to which I have previously referred. That practice was (Farmer affidavit of 19 October 2005, Exhibit D, par 11) to:

"Retain references to the former original Crown Grant particulars, including extended boundaries, because each Crown Grant issued by the Crown to alienate the land may contain different depth limits, mineral reservations, restrictions on alienation, other reservations and conditions".

131 Therefore, the history (former Crown tenure) of Lot 1 on Diagram 38429 was incorporated in Certificate of Title Volume 263 Folio 92A by including references to the former Ravensthorpe Lots in both the description of the land in the certificate of title and the sketch of Lot 1 shown on Certificate of Title Volume 263 Folio 92A. The sketch of Lot 1 also refers to the abutting public roads which were later closed.

132 I accept the argument of the counsel for the plaintiffs that this practice is not relevant to the interpretation of Transfer of Land Act, s 71: see the approach to the use of delegated legislation for the purpose of interpreting the Act under which it was made, referred to in Pearce DC and Geddes RS Statutory Interpretation in Australia 5th ed, Sydney Butterworths 2001 at [3.37].

133 However, in the face of the evidence I have referred to, I do not consider I can readily infer an intention to retain the previous definitions. Any such intention would indeed be inconsistent with s 6.2.4 of the Land

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Titles Registration Practice Manual Edition 7.1 (January 2004) quoted in the letter dated 22 October 2004 from Christopher Andrews referred to above, as follows:

"Once a Crown allotment has been superseded by the lodgement and registration of a new plan, it is not possible to revert back to the former Crown allotment".

134 However, it appears to have been argued that an intention to allow for the use of previous definitions in a case such as this one must be inferred from the continued public availability of Ravensthorpe Town Plan 211/2 on which Ravensthorpe Lot 244 is shown.

135 For this purpose I was referred to the definition of "lot" in Town Planning and Development Act, s 2(1), which reads in full as follows:

"'lot' means a defined portion of land –

depicted on a plan or diagram publicly exhibited in the public office of the Department of Land Administration, or deposited in the Department within the meaning of the Transfer of Land Act 1893 or Registry of Deeds and for which a separate Crown grant, certificate of Crown land title, qualified certificate of Crown land title, or certificate of title has been or can be issued; or depicted on a subdivisional plan or diagram, whether so exhibited or deposited or not, but which is, whether before or after the coming into operation of the Town Planning and Development Act Amendment Act 1956, approved by the Commission and includes the whole of the land the subject –

(a) of a Crown grant issued under the Land Act 1933;or

(aa) of a certificate of Crown land title, or qualified certificate of Crown land title, created and registered under the Transfer of Land Act 1893; or

(b) of a certificate of title registered under the Transfer of Land Act 1893; or

(c) of a survey into a location or lot under section 27(2) of the Land Administration Act 1997; or

(d) of a part-lot shown on a plan of subdivision or diagram deposited in the Department of Land Administration,

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Department within the meaning of the Transfer of Land Act 1893, or Registry of Deeds; or

(e) of a conveyance registered under the Registration of Deeds Act 1856;"

136 This definition is of course relevant, as I have indicated, to the prohibition on dealing with, subdividing or amalgamating land except as a "lot" without the approval of the WAPC, a prohibition contained in Town Planning and Development Act, s 20(1). However, in this context I was particularly directed to s 21(2), which reads:

"The Registrar of Titles shall not receive any application from the registered proprietor of any land to create and register 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."

137 This it was said confirms that an application to create and register in the name of the registered proprietor a certificate of title for a portion of the land that is the whole of one or more lots does not require the approval of the WAPC. I agree, at least provided that no "amalgamation" is involved where more than one lot is to be included in the certificate of title: see the prohibition of amalgamations in s 20 above.

138 However, it seems to me that a "lot" under s 2(1) of the Town Planning and Development Act is not (relevantly for the purposes of this case) simply a defined portion of land on a publicly available plan, such as Ravensthorpe Town Plan 211/2. The defined portion must be one (in this case) for which "a certificate of title has been or can be issued". The first part of that phrase refers in my view to the current certificate of title, rather than simply any certificate of title created in the past: see the use of "has been issued" (emphasis added). The second part refers to what is possible under the Transfer of Land Act in respect of that defined portion. I have already indicated that, in my view, it is not possible under the Transfer of Land Act, s 71A alone, on what happened, on the Application A204487 by McCulloch in 1969 that included the creation and use of Lot 1 on Diagram 38429, to create and register a certificate of title for the constituent subject lands.

139 To repeat, on my interpretation of s 71 the creation and registration of a new certificate of tile under s 71 does not necessarily involve the replacement of a previous definition of land. However, it is the case that, whether or not there is such a replacement, the land comprised in the new

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certificate of title is itself a "lot": s 2 "lot"(b), and Boans Ltd v Kwinana Hub Shopping Centre [1982] WAR 41 (Smith J). However, if there is no such replacement, then the continuing definitions can be used as the bases for new certificates of title under s 71A of the Transfer of Land Act without involving any subdivision under s 166, conformably with Town Planning and Development Act, s 21(2): I derive support for this conclusion from Boans, Smith J at 51.

140 It follows in my view that the definition of "lot" in Town Planning and Development Act, s 2(1) does not affect the present point.

Conclusion

141 It follows that I consider the defendant's refusal to issue a separate title for [Ravensthorpe] Lot 244 has been substantiated and the plaintiffs are not entitled to the orders 2 to 6 in the further amended originating summons. I will hear from the parties as to the terms of orders to give effect to these reasons.

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APPENDIX 1

Extract from Diagram 38429 as shown as an annexure to affidavit of Robert Farmer sworn 19 October 2005, Exhibit D, Annexure "RJF2".