Castle Constructions Pty Limited v Sahab Holdings Pty Ltd and Anor [2013] HCATrans 5 (6 February 2013)

Last Updated: 1 July 2014

[2013] HCATrans 005

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S263 of 2012

B e t w e e n -

CASTLE CONSTRUCTIONS PTY LIMITED

Appellant

and

SAHAB HOLDINGS PTY LTD

First Respondent

REGISTRAR-GENERAL

Second Respondent

HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 FEBRUARY 2013, AT 10.17 AM

Copyright in the High Court of Australia

MR M.L.D. EINFELD, QC: If the Court please, I appear with my learned friend, MR J. HOROWITZ, for the appellant. (instructed by Domain Legal Pty Limited)

MR G.K. BURTON, SC: May it please the Court, I appear for the first respondent, who is also the cross-appellant. (instructed by Kanjian & Company)

MR P.B. WALSH: May it please the Court, I appear with MS L. WALSH for the second respondent, the Registrar-General. (instructed by Land and Property Information)

HAYNE J: Yes, Mr Einfeld.

MR EINFELD: If the Court please. Your Honours, the system of indefeasiblity in New South Wales and elsewhere allows for exceptions and it provides a means for the making of alterations to the register. Where the object of that system is, as we submit it is, the provision of certainty of title, the operation of provisions which may detract from that certainty ought necessarily be constrained.

Your Honours, in the 10 years or so since the removal of the easement in this case anyone inspecting the register could have dealt with the appellant, Castle Constructions, which was the owner of the servient tenement - former servient tenement - on the basis that its title was freed of the easement. At the suit of a purchaser of the dominant tenement, the first respondent, which acquired the dominant tenement with knowledge that the easement had been extinguished upon its removal from the register, the Court of Appeal has ordered that the easement now be placed back onto the register.

The court did so, your Honours, by firstly treating the Registrar-General’s deliberate expungement of the easement as an omission within the exception to indefeasibility contained in section 42 and then by utilising as a means for affording relief to Sahab the procedures provided in two sections of the Real Property Act (NSW), namely, the review mechanism in section 122 and also section 138 concerning proceedings for recovery of land.

It is our submission, your Honours, that this outcome is not productive certainly of the title where (a) Sahab received precisely what was recorded on the register at the time of its purchase in 2007 and 2008 and, on the other hand, Castle, the owner of the servient tenement, had held a certificate of title freed of the easement over the last decade or so.

Now, your Honours, the provisions of the Act to which we will turn fall to be considered in light of the many statements in this Court and elsewhere, with which your Honours would be well familiar; observations of the Court to which we do not propose to take your Honours in terms and the general observations in cases like Breskvar v Wall and Black v Garnock and the Westfield Case, which emphasise that the register has the first and last word on all relevant titles and interests, and also emphasise the conclusive and definitive nature of the certificate of title. The definitiveness of the certificate of title is also reinforced in New South Wales by section 40 of the Real Property Act. Section 40 is a section - - -

HAYNE J: The propositions you have been making at a level of generality - and I am not to be taken as criticising you for making them - are propositions about the effect of the Act?

MR EINFELD: Yes, your Honour.

HAYNE J: Is that not where we begin?

MR EINFELD: Yes, your Honour, it is where we begin.

HAYNE J: Which version of the Act or, I suspect more accurately, which versions of the Act should we look to because there are, are there not, events in 1921? When was it, the time when the easement was removed? There is the application, there are several times in play; which version or versions do we look at?

MR EINFELD: Relevantly, the question of whether omission includes a deliberate removal or expungement by the Registrar-General and the extent of the correction powers of the Registrar-General, which form the primary focus for the appeal, are those extant at the time of that removal and subsequently, your Honour. There is some tangential relevance of some of the historical versions of the Act in terms of slight differences of form that were made to section 12D, for example, but we do not see the appeal, with the utmost respect, as turning upon those historical changes.

HAYNE J: Yes, but we have got to write a judgment that refers to the right text of the right Act.

MR EINFELD: Our submission is that the relevant text of the relevant Act is the form of the Act as it stood at 2001 and 2006.

HAYNE J: Well, where do we begin in the Act, at 2001?

MR EINFELD: In the context of the submission I was just making, we accept it is the starting point, and the reason for even mentioning or addressing the broad statements of purpose of the Real Property Act is because the exception provisions or the provisions which have the potential to impact upon indefeasibility, we would say, of the appellant’s title, all fall to be construed in the context of an Act, the principal objective of which has been said to be the paramountcy of the register.

Section 40 is useful only to note the emphasis it places upon the finality or certainty of the register. It makes in the old days a manual folio but in subsection (1A), the currently computerised folios which were in operation already by 2001 when the easement was removed, evidence of the particulars recorded in it, but conclusively presumptive with respect to all of the information that is contained in the folio at the time identified in the certificate, and more relevantly in subsection (1A)(b)(iii) identifies that it is:

conclusively presumed that:

. . .

(iii) a person recorded in the certificate as the registered proprietor of an estate or interest in the land –

shall be taken to be so. In this case the production of a certificate of title – we will take your Honour - or a computerised folio which is in the appeal book, records in respect of both the dominant and servient tenements a title absent of the subject right of way.

Your Honours, the only other general proposition to which we make reference in setting the scene or setting the background, the context, the statutory context within which the correction or exception provisions fall to be determined is to submit that of particular importance is the proposition, of which we are reminded by Justice Kirby in the Queensland Premier Mines Case, that the register is a record open for public inspection which should use the phrase which has gained some currency, “reveal all about the title”. Your Honours, from those statements of principle it may be concluded that the number of matters which may defeat the title of the registered proprietor - - -

HAYNE J: But again, do we not begin from 42(1)?

MR EINFELD: Yes, your Honour, we do and we will turn to it in - - -

HAYNE J: Begin from the observation that Castle’s Estate is free from all estates and interests except those specified.

MR EINFELD: Yes, we do, your Honour.

HAYNE J: Relevantly, (a1) is the exception said to be in play.

MR EINFELD: Yes, that is so, your Honour, yes.

HAYNE J: And the significance to be given to (a1) is to be understood in light of the combination of sections 41 and 47 - section 47 dealing specifically with “Recording, variation and release of easements” and like interests and 41, “Dealings not effectual until recorded in Register”.

MR EINFELD: Yes, your Honour. They form part of the context, the statutory context in which, as we submit, the reach of the exception in 42(1) with respect to omission of easements and the power upon which the Court of Appeal said that the Registrar-General would be entitled to rely to correct the register in 12(1)(d), all ought be construed, in our submission, from a perspective that the extent to which they make inroads on general principles of finality of the register and the certificate of title will be kept to a minimum, and as this Court said in Leros and as Justice Kitto said in the Pirie Case ought be construed narrowly.

Your Honours, as your Honours know, the Court of Appeal construed omissions so as to include the Registrar-General’s intentional expungement of the easement. In doing so, the Court of Appeal applied its earlier decision in Dobbie v Davidson to the effect that the term “omitted” meant left out or simply not there – that is, regardless of the reason. We have submitted, and we do not need to expand upon it orally, that Dobbie v Davidson was not addressing – it did not involve and the court there did not address the circumstance of a deliberate or intentional removal of an easement from the register.

KIEFEL J: Are you referring to “omission” in section 42(1)(a1)?

MR EINFELD: Yes, your Honour.

KIEFEL J: It is not just the word “omission”, though, to which attention should be directed, is it? It refers to the case of omission “of an easement subsisting immediately before the land was brought under the provisions” of the Act.

MR EINFELD: That is the first part of it, your Honour. That is the circumstance with which Dobbie v Davidson was dealing.

KIEFEL J: Yes.

MR EINFELD: We are dealing with the second portion of that part of paragraph (a1), namely “or validly created at or after that time under this”
Act. In other words, this easement was created after both parcels of land had been brought under the Act so that Dobbie v Davidson, upon which our friends so heavily rely in their argument, we say has no place in the current debate because it was a case in which the court considered that an easement which, in effect, had not appeared on the registered title when land was brought under the Act could be treated as an omission but that was not the case.

KIEFEL J: But that would not avail them in any event, would it, because if it is talking about when land is first brought under the Act as soon as the easement appears on the certificate that is the end of the matter – on the registration, I should say.

MR EINFELD: Yes, your Honour. That is so.

KIEFEL J: Once the certificate of title issues that part of the subsection is over and done with.

MR EINFELD: Yes, your Honour, correct.

HAYNE J: But the case against you must be that there is the omission of an easement validly created after the land was brought under the Act, under the Real Property Act. The case against you is, and I did not think it controversial, that the easement was created under the Real Property Act by the registration of the transfer in 1921, having as it did the annexure or schedule creating the easement.

MR EINFELD: That is the case against us, your Honour, correct.

HAYNE J: The question becomes whether omission means generally simply not there or it means not there because of mistake or it means, or at least includes I suspect, rather than means, not there because wrongly removed.

MR EINFELD: That is so, your Honour. That is the question.

HAYNE J: For the opposing party to succeed, I think – Mr Burton will no doubt later correct me if I am wrong – I think it must be shown that omission includes not there because wrongly removed.

MR EINFELD: That is so, your Honour. There are some paramount reasons why that construction ought not be adopted.

KIEFEL J: Just before you go on to that could I take you back to that first part of paragraph (a1)? In the circumstance where an easement – land is first brought under the Act, if an easement had been created before then, but did not appear on the register and the certificate of title which first issues, one could conclude that it was left off. So omission would gain something from meaning - from that it would mean left off the register, left off the certificate of title - do you derive anything from that meaning given to “omission” for the purposes of the factual situation with which you are dealing, which is where an easement is created and appears on a transfer and then on the certificate of title but is later removed?

MR EINFELD: No, your Honour, we say it has no place in the argument. That was the Dobbie v Davidson argument on which our friends rely and we say the circumstance in which an easement is inadvertently left out when land is brought under the Act, for example, which may qualify as an omission - - -

KIEFEL J: Yes, I know that, but are you saying nothing can be drawn from that to the situation where there is an easement created by transfer and it does not appear on the title? That is an omission? It is also left off is what I am trying to tell you.

CRENNAN J: Mr Einfeld, when you consider the meaning of a verb like “to omit” it is a transitive form and I think what Justice Kiefel is pointing out to you common usage involves the idea that somebody has left out something. It is not a sort of intransitive thing that just happens, the leaving out as it were.

MR EINFELD: But it is not, as a matter of ordinary usage, apposite to describe a positive decision to remove something.

CRENNAN J: That is a point that is being touched on by referring to those aspects of the meaning of “left out” to which Justice Kiefel referred.

MR EINFELD: Yes.

KIEFEL J: It may be that if the meaning, consistently in the paragraph, of “omission” is left off the register when otherwise it ought to have been placed upon it, it might not encompass an action such as removal.

MR EINFELD: That is what we would submit, your Honour, certainly.

HAYNE J: Left off and was never there.

MR EINFELD: Was never there. There are a number of reasons, not just as a matter of ordinary usage, why that is so. In the case of an easement that is created when it is recorded on the register, as it is under section 46 of the New South Wales Act, it is a creature of statute. The easement itself has no existence in law until and unless it becomes registered under the Act.

HAYNE J: Hence my reference to section 41.

MR EINFELD: Yes, quite so. Ergo, we would submit, it follows that when the easement is removed it is actually extinguished, it has no existence and it would be extremely odd if the term “left out” or “left off” or “not there” was taken to mean something which just had no existence at all. Contrast the circumstances in this case where there is a valid easement, it becomes removed, it ceases to exist and therefore cannot be said to be something that exists, is there, but just not on the register with the circumstance where an easement is created under the old system, as a legal force under the old system, but is not brought on to the register when the land becomes brought under the Act - it is quite a different circumstance because it still exists.

HAYNE J: The easement with which we are dealing came into existence by a combined operation of sections 41 and 47 in 1921.

MR EINFELD: Yes, that is so, your Honour.

HAYNE J: It was a creature of statute.

MR EINFELD: That is the point.

HAYNE J: The title to the easement was given by the register, it was not registration or title it was title by registration.

MR EINFELD: Correct, your Honour.

HAYNE J: Yes.

MR EINFELD: We submit that when it was taken off the title the inexorable result was that it ceased to exist and cannot be thereafter described as something left off or left out or just not there.

GAGELER J: Does your argument about the limited scope of the word “omission” in section 42(1)(a1) gain any assistance from the reference in section 12(1)(d) to “errors and omissions”?

MR EINFELD: I am sorry, I just missed the section to which your Honour - - -

GAGELER J: Section 12(1)(d) seems to distinguish in some way between omissions and errors.

MR EINFELD: We will come to that point in due course. Sahab submits, your Honour, that even if it is not an omission within section 42, or for that matter even with 12(1)(d), because the Registrar-General was here mistaken when he formed the view that the easement should be expunged, nevertheless, it is an error for the purpose of 12(1)(d). Now, there is a considerable question to be answered as to the interplay between 12(1)(d) which is the administrative correction power, we would submit, and the overriding paramount provisions of section 42 which provide for a system of indefeasibility except in certain nominated and clearly identifiable cases.

KIEFEL J: I think Justice Gageler might have been trying to draw your attention to the distinction between “errors and omissions” in section 12 for the purposes of section 42.

MR EINFELD: Yes. Well, as I say, we will develop that – we will come to that very point shortly.

CRENNAN J: Well, in essence, you contend, do you not, that “omission” in 42(1)(a1) and “omissions” in 12(1)(d) must mean the same?

MR EINFELD: Are co-extensive, yes. That is our primary submission, your Honour. However, we do make the submission that section 12(1)(d) essentially provides a power to the Registrar-General to correct errors – indeed “omissions and errors” – which are of an administrative kind and as Frazer v Walker has said it is akin to a slip rule. It is available not as a substantive provision to entitle the Registrar-General to make substantive decisions and corrections, but is available to correct minor slips or errors of an administrative kind. That is our primary submission.

Mr Burton will submit that it is so long as Castle in this case or the registered proprietor of the servient tenement remains the proprietor of that servient tenement the correction power is limitless, that is, he could correct any error however substantive of whatever nature and however far-reaching as it affects the title and the register can be altered under what has been traditionally treated as being a power to correct administrative slips. So, your Honours, there are really two approaches to the construction of section 42, the relevant exception, and 12(1)(d).

The primary one is that because the Torrens system is a system of title by registration and because the register is paramount, exceptions or provisions which permit variation to the finality of the certificate of title ought be construed narrowly. So that both the term “omission” in section 42(1)(a1) and “errors and omissions” in 12(1)(d) ought be given a narrow rather than a broad construction. The first respondent opts for the broadest construction. We submit a narrow construction is the one consistent with the view taken in Frazer v Walker that 12(1)(d) applies to the correction of slips.

KIEFEL J: Is that your authority for your proposition, Frazer v Walker?

MR EINFELD: Frazer v Walker is authority although we have given reference in our outline to a number of cases, a number of decisions, of first instance where that has been applied - in New South Wales in the Berowra Waters Case by Justice Young, in the Quach decisions, similarly followed in New Zealand. There would not appear to be appellate authority one way or the other - - -

KIEFEL J: Do you need to opt for a narrow as distinct from a broad construction or is it necessary only to say that under the Real Property Act indefeasibility admits only of the exceptions there admitted.

MR EINFELD: Yes. Save that the construction for which Sahab contends in this Court is that omission extends across the expanse of all possible explanations for omission, and that is giving it an extremely broad construction in circumstances - - -

HAYNE J: Well, wrapped up in that proposition is an understanding of omission, particularly in its operation in 12(1), which invites attention to what exactly is the error or omission which is being corrected. Much of the debate has been conducted on the assumption, well, the error or omission is the leaving out of the easement. What that does not take account of is the fact that the removal was made in exercise of the power of cancellation now found in 32(6) and which in earlier iterations of the Act was found in 32(3) and the notion of error or omission, at least in the context of 12(1)(d) might have to, it may be said, take account of the fact that what is in truth being argued is that the cancellation was erroneous.

MR EINFELD: The error which appears to be asserted against us is that - not that the cancellation was beyond power or that it was not in due exercise of the Registrar-General to cancel entries but - - -

HAYNE J: But made on a wrong understanding of the effect of the instrument.

MR EINFELD: That is correct, wrong understanding of the instrument, and that is said to be the error with which, as our friends repeatedly point out, from which proposition we do not demur. We would submit that that is not the relevant error. The fact that the Registrar-General came to an erroneous view does not deny the fact that the Act allows the Registrar-General to have the – he has the power to make mistakes, to make errors and that the correct analysis, and perhaps it is different for omission than it is for error, but dealing with omission for the purpose of section 42, our friends would have to, and do have to, persuade the Court that the deliberate removal within power by the Registrar-General of an easement, albeit for reasons which have been subsequently held to be incorrect, falls within the concept of something being left out or left off.

In our submission, that is an extremely strained construction and it is because it is addressing an exception to the principles of indefeasibility it ought be given a narrower rather than a wider construction. In our submission, whilst it has been suggested to us from Justice Kiefel that perhaps it is inapposite to talk about narrow as distinct from broad constructions, we submit that for the first respondent to have succeeded in the court below, the Court of Appeal must have been correct in concluding that simply describing the affirmative removal of an easement – expungement of an easement from the register, which has the consequence of extinguishing the easement moreover, can be described as something left off or left out. In our submission, that is an invalid piece of reasoning.

CRENNAN J: Does it matter for your argument that the primary judge described the Registrar-General as having acted on some evidence of abandonment? This was in the context or setting that it was accepted, I think, at the time that the application was under section 49 - the Court of Appeal pointing out that the power was under 32(6).

MR EINFELD: Certainly. The primary judge concluded that the removal was correct because the easement had been abandoned. We have not sought in the Court of Appeal to support that reasoning and we do not now. So we do not put in issue for the purpose of the appeal the correctness of the reasons given by the solicitor in his statutory declaration when he sought to have it removed. He inaccurately nominated the tenure, with respect to which the easement was said to exist so long as that proprietor held the land, so he made an error in that respect, and we have accepted that for the purpose of the argument that does not matter, on our submission.

CRENNAN J: But in that context you do make something, do you, of the notice given to the Howards?

MR EINFELD: We do. The Court of Appeal found that the notice was a notice issued for the purposes of section 12A(3), and we will come to 12A(3) when we come to the argument about the review power. In our submission, the failure of the registered proprietor to accept the invitation of the Registrar-General to respond to the notice, in the face of being informed that the easement was about to be removed, is fatal to any later claim against the Registrar-General that it should be restored, but we will deal with that if we may when we come to the review power under section 122.

So, your Honour, our primary submission therefore is that this was not an omission within section 42 and one takes into account the extinguishment of the easement by reason of its statutory creation under section 46, the provisions of section 41 and 47, the reluctance to expand the operation of certificates of title beyond that which they record, and the register. The Court would prefer a construction of section 42, having regard to the recent pronouncements at the end of last year as to the approach to be taken in accordance with traditional cases, Project Blue Sky and the others, that the purpose of the Act would be defeated by expanding the role of the exceptions to circumstances to which they do not readily apply.

May we turn then to section 12(1)(d) in slightly more detail? It is implicit, indeed explicit, in the submissions of Sahab in this Court that the effect of section 12(1)(d) is that it is sufficiently broad to permit, as I said earlier, the correction of any omission or any error of whatever kind in whatever circumstances, at least until a new purchaser acquires the servient tenement. In our submission, firstly, that approach would not promote certainty of the register and finality of certificates of title.

To the contrary, it would effectively, one may well say, defeat the whole concept of indefeasibility where the Registrar-General is at large to correct any error or omission, in effect, as he sees fit, as he wishes, because then the certificate of title issued to any proprietor, and particularly the register, is similarly at large and hardly can be taken as above all else or the first and last word on the title. Particularly, do we submit, that it is inappropriate to treat indefeasibility as only, as it were, if your Honours would pardon the colloquial, biting or having an impact when a new purchaser comes in.

This is a case where, as we are reminded by the Queensland Premier Mines Case, the register is a public record and should reveal all about the title and from the time the register was removed in 2001 until, for example, Sahab’s application to the Registrar-General to correct the expungement of the easements made in 2008, for a period of seven years, both the owners of the dominant and servient tenements held certificates of title from which had been removed the easement.

Our submission is it would be an extraordinary outcome if even between that time and the time Castle Constructions sold its land – and it still has not and it might never – the register cannot be treated as being indefeasible and the certificates of title of each of the proprietors of the servient and dominant tenements cannot be treated as being conclusive because, as Mr Burton would have it, the Registrar-General can make any correction – presumably properly but maybe mistakenly – at any time. In our submission, that would subvert the principles of indefeasibility to a point not contemplated by the legislature, not contemplated by the express provisions and not contemplated by authority hitherto.

Your Honours, secondly, we do, as I mentioned, call in aid the, admittedly, dicta, or obiter observation of the Privy Council in Frazer v Walker that the section 12(1)(d) is directed to administrative error – or for the correction of slips. When one appreciates that Frazer v Walker has been regarded ever since, as it were, a fountainhead of judicial learning on the effect and impact of the system and it has replaced the Torrens system in its replacement of the old system of conveyancing, we submit that that approach which has been adopted now until the decision of the Court of Appeal which so far as our researches – and it would seem the researches of the other parties – have disclosed is the first time where a court has held that the deliberate expungement of an easement should be treated as having been omitted or correctable under 12(1)(d). In those circumstances, weight would be accorded to those observations, now of some antiquity.

Indeed, even the Court of Appeal in this case, oddly enough, acknowledged that section 12(1)(d) ought be read down. Their Honours said at page 329 of the appeal book, in paragraph 185.

However, it is impossible for this literal reading –

That is, correct any omissions or errors in:

s 12(1)(d) and s 136(1)(b) –

upon which Sahab, here, relies:

to coexist with the provisions of the Act that provide for indefeasibility. Enabling an indefeasible title to land to be obtained by registration is a central purpose of the Act. Reading the Act as a whole, and giving it a purposive construction, demands that the literal words . . . be read down.

Now, just stopping there, that is an acknowledgement of the impossibility, we respectfully submit, of Sahab’s present submission. But oddly, their Honours then proceed at paragraph 192 to explain their conclusion that the error could be corrected – if it be an error - under 12(1)(d) and paragraph 192, page 331, in the last sentence, four lines from the bottom:

In the present case there had been a slip by the Department, and its correction under s 12(1)(d) would not be of substantive importance because Castle did not thereby acquire an indefeasible title . . . free from the right of way –

Now, that is, we respectfully submit, an impossible piece of reasoning. One could hardly regard what happened as a slip, yet that is the only way – it is the only pathway down which their Honours were able to conclude that upon a review under section 122 the Registrar-General had the power to correct this error and should be directed to do so.

HAYNE J: A possible point of view is that the premise for this chain of argument is revealed at 329 of the appeal book, paragraph 184, the last sentence:

On a literal reading, there could be an error in the Register if it was inaccurate in any respect –

The notion of the register being “inaccurate in any respect” is an expression that would be apt if the register recorded titles. It is not an expression that is apt if the register creates titles.

MR EINFELD: May it please, your Honour. Just before I leave it, as an incidental matter, the reference, lest your Honours be puzzling as to it, in that last sentence on 331:

would not be of substantive importance because Castle did not thereby acquire an indefeasible title –

is a theme taken up by Mr Burton here. The suggestion is that because the restoration of the easement to Castle’s title would simply leave it in the position it was when it acquired the land – that is with the easement already in place – and would leave it in no different position until and unless it sold the land and a new purchaser came along, we submit, effectively puts at nought the proposition that his Honour the presiding Judge just identified and secondly, that the register reveals all.

There seems to be a perception that during the period of time after the removal of the easement, a member of the public, prospective mortgagee or a prospective lessee or prospective purchaser for that matter, was not entitled to come along and treat the register as recording that which was the fact. In our submission, that is a substantial and fundamental flaw in the plank of reasoning of the first respondent, both below and here.

HAYNE J: Well, can I just understand that a little better. I think that the reasoning about 12(1)(d) that is deployed against you – or which may have to be deployed against you – is that 12(1)(d) applies if and only if there is an error or omission in the register, that is what 12(1)(d) says. I think that the next step in the argument from your side of the record may be well, there is an error or omission in the register if, but only if, the easement was wrongly cancelled under 32(6).

I think that the arguments you have been advancing might be capable of characterisation as saying that 12(1)(d), when it speaks of errors or omissions, does not permit canvassing of the correctness of the decision to cancel under 32(6). If the Registrar-General intended to cancel and that cancellation is effected, 12(1)(d) has no work to do. If the Registrar intended to cancel an easement on Blackacre and by administrative slip an easement on Whiteacre is expunged, that is when 12(1)(d) has its work.

MR EINFELD: Yes. Subject to two riders perhaps, or perhaps with one initial observation: one, in the event of loss being suffered by reason of what happens - that is why the Torrens Assurance Fund is available and there are many cases which record the circumstance where an innocent victim of fraud or other conduct has their remedy against the fund but does not have their title restored. The other slight qualification, perhaps on what your Honour has said, is that whilst we accept entirely that that is an appropriate - what your Honour has identified as an appropriate approach, it still carries the qualification, perhaps - the first part of what your Honour said carries the qualification that if the cancellation occurred – it was wrongly expunged by reason of an administrative error rather than a deliberate decision, then perhaps 12(1)(d) would reach to it. But save for that, we entirely adopt the utmost respect what has fallen from your Honour.

Your Honours, that effectively brings us to the two provisions pursuant to which the Court of Appeal considered that the Supreme Court had the power to order the restoration of the easement to the register. They were, in their order as they appear in the Act, sections (1) to (2) which is the review provision and section 138 concerning proceedings for recovery of land. It is convenient because it was dealt this way below and is in the submissions to deal with them in reverse order.

So may we invite the Court’s attention to section 138 of the Act. Section 138 provides in proceedings for the recovery of land, or interest in land from the registered proprietor the court may make ancillary orders of the kind set out in subsection (3). Just looking at subsection (3) then:

A court may order the Registrar-General to do one or more of the following:

(a) cancel or amend a folio of the Register,

(b) cancel, amend or make a recording in a folio of the Register,

(c) create a new folio of the Register –

et cetera. Sahab makes a submission to this Court that in its submission - and we will deal with it more fully in reply - we will not take time but just that while your Honours have the section open, makes a submission that the powers of the Court under subsection (3) provide a stand-alone, as is described, basis, for ordering alteration of the register. Their description is ancillary - - -

HAYNE J: Well, in respect of an interest in land, first catch your interest. What is the interest in land which Sahab has is the first point.

MR EINFELD: That is our principal submission, as your Honour knows, but quite apart from that as to the question whether they provide stand-alone power, they are described in each of subsections (1) and (2) as ancillary orders so that there would first need to be proceedings for recovery of land in which the plaintiff is trying to recover an interest from the proprietor of land in which circumstances may be that those - or they may subject to consideration of the Court as to the merits, come into operation. But be that as it may, our substantive submissions about section 138 are as follows.

The proposition that section 138 is an available means of directing the Registrar-General to modify the register is unavailable, primarily or firstly, because of the requirements or provisions of section 118 of the Act and that requires me to direct your Honours’ attention to 118 which also applies in the case of proceedings for recovery of land – possession or recovery of land – and it is of passing interest but of no moment that 118 is introduced by the introductory words “recovery of land” and that description does not include estate or interest as appear in 138(1), but that is of no moment because section 3 in the definition provision describes “land” to include an interest or estate in land, so nothing turns on that.

HAYNE J: It includes, in particular, easement.

MR EINFELD: Yes. But, it is a critical provision because it prohibits “Proceedings for the . . . recovery of land”, which Sahab says these were, to be brought “against the registered proprietor” except in a number of nominated cases. Firstly, “proceedings brought by a mortgagee”, not this case, “by a chargee”, not this case, “by a lessor”, not this case, “a person deprived of land by fraud”, not this case, “a person deprived of, or claiming, land . . . included in a folio . . . for the other land”, et cetera, and “proceedings brought by a registered proprietor under an earlier folio”.

None of those exceptions applies to the omission of the easement in this case. It is a fundamental answer, we submit, to the Court of Appeal’s reasoning that allowed of a direction to the Registrar-General or allowed for an order that the easement now expunged since 2001, now extinguished since 2001, be restored, they say, to the register.

It is of interest, and your Honours will have readily observed that section 118 provides an array, a series, of exceptions to the bringing of proceedings against the registered proprietor for the recovery of an interest. Your Honours will immediately recognise that so does section 42, the paramount provision of the Act said to be the foundation of – along with other sections – principles of indefeasiblity.

The problem therefore arose and arises, I suppose, here that on the one hand section 42 pronounces that one of the exceptions to indefeasibility is the omission of an easement, whereas section 118 does not provide an exception for - in the case of proceedings for recovery of an easement, in the case of omissions of easements. The Court of Appeal reconciled, or sought to reconcile, purported to reconcile, the provisions in this way. They said it is necessary to reconcile the two provisions. Sections 42 and 118 are complementary and therefore section 118, it is said, must give way to section 42 so that 118 creates no bar to the bringing of the very proceedings that were brought in this case.

Now, the problem with that reasoning is it reads into section 118 an exception that just is not there, that the Parliament has – if you will excuse the expression – omitted, not omitted in the terms of just left out, but in any event in section 42 is the exception, in section 118 is not. In our submissions it is unsustainable reasoning to conclude that because the overarching provision in section 42 allows for exceptions to indefeasibility for fraud, omissions and misdescriptions, et cetera, but therefore you rewrite section 118 and read out of the list of exceptions - I should say, yes, read out of the Act a bar against recovery of omitted easements by reading in an exception which Parliament has not seen fit to include.

That conclusion, the reasoned processes at paragraph 239 - I do not need to take your Honours to it - and again at paragraph 249; so paragraphs 239 and 249 at pages 346 and 350 respectively, but, in our submission, to simply rewrite the legislation in order to accommodate the result that Sahab should obtain onto its certificate of title the recording of the easement of which its predecessor in title once had the benefit is completely to misread the provisions of the Act and to rewrite those provisions.

That is especially so when it is acknowledged, your Honours, that Sahab obtained a new certificate of title upon its purchase in 2007 and 2008 which did not record the easement which had been once recorded on the easement of its predecessor in title, which certificate of title upon the issue of the new certificate of title to the purchaser, had been extinguished. In other words any rationale that would suggest that the new purchaser who by the way purchased as it accepts, with knowledge that the easement had been expunged, or been extinguished – it says for administrative reasons - there is a letter at page 133 I think of the book that was in evidence, there is no issue about this, but your Honours should perhaps note it if you would be so kind. At 133 is a letter from the purchaser, the present first respondent, solicitors. Paragraph 2 at line 45 on page 133:

Sahab Holdings Pty Ltd did purchase 69 Strethallen Avenue with knowledge that the previous right of way had been extinguished in 2001 by an administrative act –

Whether it was accurate to describe it as an “administrative act” or not does not matter. The point for present purposes is that when it purchased the old certificate of title upon which the easement had been recorded was itself extinguished. That is because – and it is not controversial – upon the issue of a new certificate of title the old one lapses, it ceases to exist.

Now, in our submission, the reasoning of the Court of Appeal produced an extremely odd result: that Sahab is able to have put on to its title that which was not on its title when it acquired the land; secondly, when it acquired the land knowing that the easement had been extinguished; thirdly, that the easement itself had ceased to exist by an intentional act of the Registrar, as his Honour the presiding Judge recorded, made duly, albeit upon a mistaken premise, without any suggestion that the process miscarried or the Registrar-General was not within the ambit of the Registrar’s power to cancel, even for a wrong reason.

For those reasons section 118 stands as a complete bar to the recovery under at least section 138 with its corresponding terminology in the chapeau, as it now has come to be described. Before I leave 118 can I just remind your Honours of the content of section 118(2) which provides:

Despite any rule of law or equity to the contrary:

(a) the production of a manual folio –

In (a) it is referring to the “manual folio”, in (b) the computerised one –

is an absolute bar and estoppel to any such proceedings commenced before the time specified in the certificate against the person named in the certificate as a registered proprietor -

The folio certificate is in the appeal book and is an absolute bar, in our submission, so that 118 provides an absolute answer. That brings us, finally, to the review provision – section 122 – pursuant to which the Court of Appeal concluded that the Registrar could be directed to take the steps available to him under section 12(1)(d) to restore, as they describe it, the easement. If we turn to section 122, just briefly your Honours, I should commence with a reference to section 121 by which the Registrar-General may be required to supply reasons. Section 122:

A person who is dissatisfied with a decision –

and the reference to 121(1) is a person dissatisfied with a decision:

(c) to have exercised or performed in relation to land any function or duty which, by this Act, is required to be exercised or performed by the Registrar-General -

The important word is “required”. It is difficult to see where the requirement for the requirement is satisfied in this case.

KIEFEL J: Was the question of standing to bring the application, by reference to section 121, taken up in the Court of Appeal?

MR EINFELD: Yes it was, in this way. Before Justice Slattery, before the primary judge, Sahab requested that the Registrar-General be directed to provide reasons. His Honour made such a direction and when this matter was raised in the Court of Appeal, our learned friend pointed out – indeed, it was really taken up by a member of the court – that in order to direct the giving of reasons, the court would first have to be satisfied, itself, that Sahab was a person relevantly dissatisfied.

We sought to make some submissions in the Court of Appeal that that could not be so by reason of the fact that Sahab was not a party to – or was not even the proprietor at the time the relevant decision was made to remove its easement – that Sahab had come along afterwards fully knowing that the easement was not there and that there had to be some limit on the ambit of the discretion of the person dissatisfied, lest a fifth or sixth purchaser down the line of Sahab’s land, after it had been built upon or, perhaps where the right of way had existed and had been the subject of a subsequent construction because the easement did not appear on the title, could come along and seek review 20, 30, any number of years later.

The Court of Appeal took the view that because we had not taken an appeal from the decision of the primary judge to direct the Registrar-General to give reasons – a process to which we were not really a party in the sense that the question was between Sahab and its wish for reasons and the Registrar-General and its obligation, if it had one, to give those reasons because we had not appealed that decision it was not open to us any longer to argue in the Court of Appeal that Sahab was a person dissatisfied.

We submitted below that that could not be so, not the least reason being that when the proceedings were commenced against the Registrar-General and we were subsequently joined we were not a contravener of the argument one way or the other as to whether the Registrar-General should deliver reasons, and that it was inappropriate for us to bring an appeal from that decision.

The Court of Appeal held and said in its judgment that in the circumstances we were estopped – as they described it in the principal judgment – from being entitled to argue that Sahab was not a person dissatisfied. We have submitted in our written outlines that we were not and are not so estopped and that Sahab, for the reasons I have outlined, is not a person dissatisfied. That is a long answer to your Honour’s short question but I think it was necessary to provide your Honour with a full understanding of what happened. Now, 122 then goes on to say that:

(1) A person who is dissatisfied with the Registrar-General’s decision:

relevantly, so it is said against us –

(c) to have exercised or performed in relation to land any function or duty which, by this Act, is required to be exercised or performed by the Registrar-General -

that is, correct the register - a function or duty which we say he was not required to perform, he had a discretion to perform, an entitlement to perform, but not a duty to perform –

may apply to the Supreme Court for a review of the decision.

There were submissions below about whether that was a merits review and for the purpose of these proceedings we accept that merits review was appropriate:

(2) For the purpose of conducting such a review, the Supreme Court may reconsider and determine any question of fact involved in the decision.

(3) . . . the Registrar-General may not rely on any grounds that are not set out in those reasons . . .

(4) After reviewing the Registrar-General’s decision –

this is the important part for relevant purposes –

(a) may uphold the decision, or

(b) may order that the Registrar-General take such action . . . being action that the Registrar-General could, but for the order, have taken -

and relevantly, that is section 12(1)(d). In his notice of contention, Mr Burton contends that it was also section 136, and we will deal with that in reply, but briefly section 136 addresses itself only to unavailability of titles – certificates of title and allows the Registrar-General to call them in and has no application here, be that as it may. Because, we submit, 12(1)(d) is not an available source of correction in this case to deliberate removal of the subject easement, no relief could be granted under section 122 and the Court of Appeal fell into error in so ordering.

It is perhaps that point that the discussion we had earlier about the comparative reach of omission and error in 12(1)(d) and omission for the purpose of the exception of 42 has operation or takes effect as a particular relevance. It is submitted against us that even if this was not an omission it was an error. We have already addressed that in response to the observations of the primary judge and it is submitted against us that because during the period with which we are dealing error is unlimited, so it is said therefore the omission could be corrected, or the expungement could be corrected, and we have made our submissions about that, we do not need to repeat them.

The last point we wish to make, your Honours, concerns section 12A(3) of the Act, which we submit is a complete answer to review under section 122, as we do in section 118, but 12A(3) requires some consideration. By 12A:

(1) The Registrar-General may, before taking any action that alters the Register, give notice of the proposed action to any person that the Registrar-General considers should be notified of it.

(2) Where the Registrar-General has given notice . . . the Registrar-General may refuse to take the action until after the expiration of a period specified in the notice and the Registrar-General may proceed –

to register the dealing, unless he or she is served with an order that has been called on notice of it, by which he is restrained from making such an entry. Subsection (3) then becomes critical –

(3) Where a person given notice under subsection (1) does not within the time limited . . . serve upon the Registrar-General or give the Registrar-General written notice of an order . . . no action by that person or by any person claiming through or under that person shall lie against the Registrar-General in respect of the taking of the action specified in the notice.

It is our submission that a Mr and Mrs Howard, who are the registered proprietors of the dominant tenement in 2001 and were served with a notice which the Court of Appeal has held was a 12A(3) notice, and who failed to respond to it, themselves then have no right to bring what subsection (3) calls an action against the Registrar-General “in respect of the taking of the action specified in the notice”.

HAYNE J: Do we have any record of the text of the notice that was given to the Howards? I could not identify one in the record, but - - -

MR EINFELD: May I respond by saying it is a moot point? That sounds over-cryptic or Delphic; can I explain why? It was not in evidence at first instance. It was not in evidence on appeal. Indeed, the production of it to the Court of Appeal was opposed by Sahab. However that be, Sahab – I say this from the Bar table because there will not be any dispute about it – has sought to have included in the appeal book that notice, and that course was - - -

HAYNE J: Which was not in evidence at trial or on appeal.

MR EINFELD: It was not in evidence at trial. We submitted to the Registrar that authority prevented the court having it before it, but I think the Registrar determined to include it, so that it is there, but in our submission, on authority which we submit is not in issue. This Court cannot see it so that is again a slightly longer answer to a short question. It is our submission that under 12A(3) - - -

KIEFEL J: Is section 12A(3) directed to personal protection to the Registrar-General against action taken, or is it directed to some form of estoppel?

MR EINFELD: We say the latter, our opponents say the former.

KIEFEL J: Why is it meant to operate as an estoppel rather than merely to protect the Registrar-General against action taken when it is notified and someone does not come forward?

MR EINFELD: The reasons I am just about to develop can I explain what they are? That largely turns upon the construction of the word “action”. It is submitted against us that when subsection (3) provides that no action shall lie against the Registrar-General in respect of his decision or his conduct, that is confined to action of the kind usually treated as being an action for personal injury, or an action for damages at least; an action for monetary compensation.

We submit that the terms of the Act do not require such a construction and we will explain why. Firstly, we submit that the term “action” itself is a term of wide import. We have given authority for that proposition in our written outline. Secondly, the term “action” in this very subsection as used to have different connotations and should not be taken to have the meaning solely that our friends attribute it; that is an action for damages as it were.

KIEFEL J: Or injunction.

MR EINFELD: Our friend’s submissions do not allow an injunction.

KIEFEL J: When I said it might be directed, it might be directed to for the protection of the Registrar not just in relation to damages, but in relation to the requirement to take any further action to undo what the Registrar has done.

MR EINFELD: That is exactly what section - - -

KIEFEL J: As distinct from some kind of estoppel operating personally against the person notified. It is the latter that did not seem to be caught by the - - -

MR EINFELD: I am sorry, may it please, your Honour. The proceedings below, leaving aside the 138 approach we have already addressed were proceedings directed to the Registrar-General to have him undo that which he had done so that if protection of the Registrar-General in the sense your Honour has used in your Honour’s question of me is contemplated, then it would protect the Registrar-General against the very kind of proceeding under 122 that was taken here where the registered proprietor or interested persons, interested parties have received notice and been invited to go to court to restrain the Registrar-General from taking the contemplated course, failed to object and then come along after the course is taken and ask the Supreme Court to undo that which has been done.

We submit that is a paramount and obvious reading of the provision because within section 12A is made express the opportunity for the interested party receiving notice to approach the Supreme Court for just such an injunction to restrain the Registrar-General from taking the notified action. The Registrar-General then does not receive objection or an order, proceeds to take the very course that has been notified – that is, remove the easement in this case – and then one day after he does so or two days, or two weeks or 10 years, in this case eight years, after that certificate of title upon which had been endorsed had been extinguished, a new purchaser comes along or even for that the same registered proprietor comes along – as I say any time between one day and an indefinite period – comes along and seeks to undo that which the Registrar-General has notified he was intending to do, but received no objection.

That is the very course which has been taken in this case, except not by the recent proprietor but by a later proprietor, to which we submit this provision was directed. Now, there is one other matter to factor into the equation from our perspective. The Court of Appeal concluded that the term of action was inapposite to describe what had happened because it said, action did not contemplate. “Action” in the section was not intended to mean any action brought under some other provision of the same Act. It was intended to refer to proceedings that might be brought pursuant to some other legislation or under, presumably, some general law rights.

The odd thing about that is that it does not seem to have occurred to their Honours, with respect, that the Act itself provided in section 129, for example, action or proceedings against the Registrar-General under this Act by way of a claim made on the Torrens Assurance Fund, so that the reasoning that Sahab – this prohibition on action against the Registrar-General could not have application in the case of action brought under this Act because it contemplated something other than action brought against this Act is just not available, in our respectful submission, because the Act itself does contain other provisions which contemplate just such action.

But, your Honour, it is the injunction to restrain the Registrar-General taking the step of removing the easement which is a circumstance expressly contemplated by section 12A and 12A(3) and this is a - almost par excellence, as it were, of the provision being disregarded in the circumstance where the Registrar-General did, on any view, give notice that he was proposing to remove the easement. The registered proprietors failed to respond. He proceeded to do so and then, let us assume, the registered proprietor had come along a week later would have inevitably been met with that response. We say it applies a priori to somebody who was not even there at the time – it was not even about – and had no interest whatever at the time the decision was made.

The obverse side of the coin, as it were, is this – and this will conclude our submissions. His Honour the primary judge addressed this question in terms of saying that there was no – at the time the review was sought – presently identifiable duty on the part of the Registrar-General. In other words, leaving aside whether it was a person dissatisfied or otherwise, the controversy that arose from the removal of the easement as between the registered proprietor and the owner of – sorry, as between the registered proprietors of each of the servient and dominant tenements – had in fact passed into history when the certificate of title of the dominant tenement owner had been cancelled and Sahab acquired its new interest.

Our friends sought to get around that by saying, yes, but there is an application seven years later to review that, or for the Registrar-General to correct that, and that is the lie of dispute. Our submission is that, as it were, one simply cannot do by the backdoor what cannot be done by the front door – again to slip into the colloquial - and that Sahab could be in no better position to bring proceedings in light of the notice to which no response had been given. That was the original proprietor.

KIEFEL J: I am sorry, is this dealing with the proposition that section 12A(3) cannot apply to Sahab because it is not a person claiming through under the Howard - - -

MR EINFELD: Not quite, your Honour, it was rather directed to the proposition that if one puts aside the question of whether Sahab was a relevant person to satisfy and looks at the question of what is it that is the subject of the review, the answer is it is an application effectively, even though it is done via a much later request, to have the Registrar-General correct something which had been done long ago and was not a live matter of contest, that he had no duty any longer still live in respect of an act of cancellation which had taken place many years before. That does not strictly address the through or under point. It is rather that it is not available - - -

KIEFEL J: Your outline of submissions, paragraph 7.2, seems to equate predecessors in title, assuming that to be correct, with persons claiming through those persons notified.

MR EINFELD: I was going to address that issue in reply because that is a matter that is taken against us. It is rather 7.4, your Honour, of that outline that captures the point we are presently seeking – perhaps inelegantly - presently to make.

KIEFEL J: But the section 12A point is yours, is it not?

MR EINFELD: Yes.

KIEFEL J: Do you not have to bring yourself within it? So you should deal with the point now, should you not?

MR EINFELD: May it please, your Honour. It is put against us that the expression “through or under” should be restricted to refer to persons who come on the title, as it were, for example, by way of a transmission application or perhaps a trustee in bankruptcy or someone of that kind. We submit that as the Court of Appeal concluded, “through or under” is here used in a conveyancing sense, the old system sense, whereby title was derived by a chain of conveyances and we pointed out as we do again that – and the Court of Appeal accepted that proposition. Like language appears in section 118, for example, in 118(1)(d)(ii) which refers to proceedings being by a person deprived of land, in this case by fraud:

a person deriving . . . from or through a person registered as proprietor of the land –

That is a significant provision. It would be very odd if that were intended to be confined solely to someone such as a trustee or someone obtaining – an executor obtaining title by transmission and should be given a construction which extends to successors in title.

Our submission is that as a matter of policy that must be so otherwise, in the very instance that I provided to your Honour – indeed in this case – it would be, one would really submit, an absurd outcome if notice could be given by the Registrar-General of an intention to cancel the certificate of title or perhaps remove a mortgage or a lease, in this case an easement, from the title to land and from the register, give the required notice, proceed to take that course when no notice has been provided with the consequence, as we suggested earlier, that those subsequently dealing with the land would rely upon the register as free of that interest or encumbrance, yet a later successor in title come along and completely undo what might have been 10 or 12 or a dozen or more years of dealings with the land, including the registration of further interests, mortgages, leases and the like, and that therefore because this provision is designed to reinforce or entrench principles in indefeasibility it ought be given an operation which achieves that objective. That would include protecting the Registrar-General against orders that he undo that which had been taken years before to land the title of which was not even in the interest or ownership of the person seeking that review.

HAYNE J: Does the record reveal what the state of the register was with respect to the Howards’ land? Did the register record them as having the benefit of the easement?

MR EINFELD: Before or after its removal, your Honour?

HAYNE J: Well, yes.

MR EINFELD: Before yes, and after, yes, but it showed that the right of way had been removed. Oddly, it - - -

HAYNE J: Accordingly, if notice was given under 12A(3), the notice that was given may – it may not, but may be inferred to be a notice that the easement is going to be removed from the register both in respect of the dominant and the servient tenement.

MR EINFELD: Yes, your Honour, especially because – this has been held many times, it is not in issue – it is really not just the dominant tenement that is to be considered but indeed the servient tenement is the paramount interest in the case of the easement. Just so your Honours are aware of it – nothing turns on it, but just so your Honours are aware of it – it is an oddity that in this case the Registrar-General removed the right of way from the folio but left on the folio the covenant, a restrictive covenant which was not removed. But be that as it may, the fact is the right of way was removed both times. May it please the Court.

HAYNE J: Thank you, Mr Einfield. Have the respondents agreed on the order in which they will address? Yes, and you next is it, Mr Walsh? Yes, Mr Walsh.

MR WALSH: If your Honours please, the cancellation of the easement by the Registrar-General in September of 2001 pursuant to the power conferred by section 32(6) of the Real Property Act was not an omission within the meaning of section 42(1)(a1). The relevant legislation to be considered is, in our submission, the legislation in force at the time of the removal, that is to say, when the omission that is claimed came about.

I do not think anyone has contended at any stage in the proceedings that there has been an omission in the sense of the easement remaining off title after the request by Sahab to have it reinstated, but even if it were so to be contended that would have no effect on the relevant legislation, it having not changed between 2001 and 2008.

The interplay of section 12(1)(d) and the omitted easement exception in section 42(1)(a1) is, in my submission, the central issue in this case. Section 12(1)(d) gives to the Registrar-General the power to correct omissions in the register as well as the power, as your Honour Justice Gageler pointed out, the power to correct errors, but it is the omission point that is the central point, in my submission, because it is the point that is common between section 12 and section 42.

The power to correct in section 12(1)(d) has been held – this has already been pointed out to your Honours – to be restricted to the correction of obvious clerical or administrative errors. We set out in our outline of submissions a number of cases, first instance decisions that come to that conclusion - State Bank of New South Wales v Berowra Waters, Scallan, Quach and the decision of the Privy Council in Frazer v Walker. The Court of Appeal recognised at page 329, paragraph 185 that it is “impossible” to give a literal reading of section 12(1)(d) meaning, and for that:

to coexist with the provisions of the Act that provide for indefeasibility.

If it were otherwise there would be, as it were, a discretion at large on the power of the Registrar-General to correct the register and that would be directly at odds with the central purpose of the Act and that is to provide certainty of title. However, the Court of Appeal then found at page 334, paragraph 200 that the cancellation of the easement in the present case was an “omission” in the register within the meaning of section 12(1)(d) but that was only because, as their Honours explained with reference to their Honour’s reasons at paragraph 274, appeal book 358, that the Court of Appeal had found that in the present case the easement was omitted for the purposes of section 42(1) and giving the words “omission” and “omitted” the same meaning. That was the basis on which their Honours found that there was power in section 12(1)(d) for the Registrar-General to correct the register.

If the action of the Registrar-General does come within section 42(1), then there is nothing surprising in that conclusion that there is power in section 12(1)(d), because the very vice that was mentioned in Frazer v Walker, Scallan and State Bank v Berowra goes away. There is no assault on indefeasibility because what is sought to be corrected is an interest in property that always existed, never went away and was not affected by the initial grant of indefeasible title on the issue of the first certificate of title when the primary application was approved and the land was brought under the Act.

That brings me back to my initial proposition that the central point for decision in this case is whether the Court of Appeal was correct in finding that for the purposes of section 42(1), an easement is omitted when it has been intentionally removed by the Registrar-General pursuant to power given under the Act. The Court of Appeal, following the decision of that court in Dobbie, said that “omitted” means no more than left out or not there.

But in my submission, the decision in Dobbie was of no assistance to the Court of Appeal in the facts of this case. That is because – perhaps not much turns on this – firstly, the Court of Appeal in Dobbie considered the former iteration of the easement exception which was contained up until 1995 in section 42(1)(b). There had been up until that time, that is 1995 and the decision in Dobbie, some controversy in the State of New South Wales, but seemingly nowhere else, as to whether “omitted” meant left out or not there, but also because of some fault on the part of the Registrar-General or whether left out or not there was sufficient in itself.

Nearly all of the cases that considered the issue, considered the issue in the context of easements which were in existence before the land subjected to the easement came under the provisions of the Real Property Act. That is most typically a prescript of easement, for example, on old system land with no documentary record of its existence at all. An exception was put in the early iterations of the Real Property Act, the original South Australian Act, to make that an exception.

It was thought to be a major problem, and I have referred to some authorities in that regard and some articles in our submissions. That was the reason for the original exception. In that instance, one can understand that “not there”, for whatever reason, is sufficient because no fault could be cast upon the Registrar-General in failing to find such an easement.

True it is the Registrar-General has to investigate title when land is brought under the Act, but he does not have to go out there and walk around the place and see whether there are gates and the like. That was what the issue was in Dobbie v Davidson. Dobbie v Davidson was a consideration of an easement which had been in existence for 60 years prior to the land coming under the provisions of the Real Property Act and continued in existence and in use for another 25 years, until the controversy came before the courts.

The first half of the case was is there an easement and the second half of the case was has it been left out? The appellants appealed to the Court of Appeal saying no, you have to – on the strength of Australian Hi-Fi, which I have referred to in our submissions – find not just not there or left out, you have to find some sort of fault on the part of the Registrar-General. Both Justice Kirby and Justice Priestley give lengthy reasons explaining why that is not the case in the case of an easement in existence prior to the land coming under the Act.

No consideration was given to any wider question. Certainly no consideration was given to the second limb of the present section 42(1)(a1), that is in respect of easements validly created under the Act. That is what this case is, that is what the present case is. It deals with acts validly created under the Act. There is no contest with that.

BELL J: Was there any issue in that case about the provisions of section 118 in light of the submission - - -

MR WALSH: In Dobbie, your Honour?

BELL J: Yes.

MR WALSH: No, there was not.

BELL J: What is your submission about the relationship between that and proceedings brought on behalf of a person who contends that an easement has been omitted, it being one subsisting before the land was brought under the Act?

MR WALSH: The section 118 point is a point that the Registrar-General has not addressed in submissions and we do not endorse the submissions made by the appellant in that regard. Does your Honour want me to say any more than that?

HAYNE J: That is a question of what the Registrar-General thinks it appropriate to submit.

MR WALSH: That is not a matter on which we seek to address the Court. That returns to the question of whether in section 42(1)(a1) a deliberate cancellation is an omission. In my submission, that question should be answered in the negative, that is to say when the Registrar-General has made a conscious deliberate decision and has acted within power then, to put it colloquially, the Registrar-General has the right to be wrong. Although it sounds harsh the price for certainty of title is that provided in Part 4 of the Act, that is claims against the Torrens Assurance Fund and - - -

GAGELER J: You were saying that the Registrar-General has the right to be wrong under section 32(6), I think. That subsection uses the word “satisfied”, whether the Registrar-General is satisfied, the Registrar-General can take certain action. Now, in some statutory context, that word would import a requirement for the Registrar to be proceeding upon a correct understanding of the law and acting reasonably. Do we read those limitations into that word in section 32(6)?

MR WALSH: In my submission, one has to interpret the Real Property Act and section 32(6) in the overall context of the purpose of the Act and the overall purpose of this Act which can on occasion act harshly is to provide certainty of title. Mr Einfeld has taken your Honours earlier to the recent decisions of this Court and others which emphasise that certainty of title is the primary consideration and in that circumstance, in my submission, the Registrar-General, if he makes a decision which is in power then that decision should not be challenged once the decision is manifest in a new certificate of title which confers property rights. If that means that someone else suffers then the answer is to be found in section 129(1) of the Act which provides that:

Any person who suffers loss or damage as a result of the operation of this Act in respect of any land, where the loss or damage arises from:

(a) any act or omission of the Registrar-General in the execution of performance of his or her functions or duties under this Act in relation to the land –

going down to the end of the passage –

is entitled to payment of compensation from the Torrens Assurance Fund.

There has been controversy at first instance in New South Wales as to whether the error or omission requires some fault on the part of the Registrar-General – I am sorry, the act or omission requires some fault on the part of the Registrar-General. It has been found and generally accepted that no, it is simply an act.

I have not referred to the particular case I am thinking of now which is Challenger v Direct Money Acceptance, but I can provide your Honours with reference to it. It is the judgment of Justice Bryson where his Honour sets out – it is reported in the New South Wales Law Reports from about 10 years ago, I think, where his Honour sets out the background history and purpose of the Torrens Assurance Fund and, in effect, one can draw the conclusion that the price for certainty of title is paid for by the existence of the Torrens Assurance Fund, that is why it is there.

Perhaps also to return to a matter that your Honour Justice Gageler raised earlier with Mr Einfeld, your Honour asked is there any significance in there being the words “error or omission” in section 12(1)(d) with a view perhaps to suggesting that if a thing is an error then it is not an omission. It is also worth noting, in that regard, that section 129(1)(a) speaks of an “act or an omission”. In my submission, that subsection supports a submission that unless the words are tautologous, that omission, if it is to be construed in the same way throughout the Act, does not include an act, otherwise the word “act” in section 1 – or at least a deliberate act. I do not put it any higher than that but one has to look at the word “omission” in the context throughout the Act where it appears.

GAGELER J: So, is it really necessary to your submission that the action of the Registrar-General purportedly under section 32(6) was authorised by section 32(6) or is it sufficient, in your submission, that it be a deliberate affirmative act on the part of the Registrar-General?

MR WALSH: A deliberate affirmative act that results in the issue of a new certificate of title stating the property entitlements of those who hold the land. So, if a deliberate decision is made and that decision results in a new title being issued recording that decision then, in my submission, that is sufficient, unless it comes within the exceptions set out in section 42(1) which brings us back to the initial point – has there been an omission within the meaning of the section? In my submission, again one has to read throughout the entire Real Property Act, each section, having regard to the overbearing purpose – the fundamental purpose – that the title should be the first and last point of examination.

In this particular case – in the case of omitted easements – if it were otherwise, a most unsatisfactory result would arise. Prudent conveyancers, we are told, do inspect property to see if there might be easements which are not recorded on the title. It appears to be generally accepted practice to send a surveyor out there to see if there is any evidence of something that might be an easement by prescription that has been around for a long time. But, if one were to search the title and see that an easement had been removed, that should be enough. If more is required, that will lead to uncertainty. Purchasers will have to not only scrutinise the title, they will have to attempt – if they can – to get access to the Registrar-General’s file showing the means by which the easement – and the reasons for which the easement was cancelled – and then come to a view I wonder whether that was right or wrong?

This can go on forever because, of course, there is no temporal limit to omitted easements as Dobbie showed. One could, for example, find that there are all sorts of strange easements sitting around in the middle of the Sydney CBD and it would lead to chaos. That is an example, I suppose, I am putting rather than just saying, well, the general proposition, we should have certainty of title but one needs to think, well, how would it work in practice?

All the policy considerations, in my submission, lead strongly to the conclusion that “omission” in section 42(1)(a1) should be read restrictively, that is in accordance with earlier decisions of this Court, that is exceptions to indefeasibility should be read strictly. We referred to those in our submissions and I want to take your Honours to those.

The next point I wanted to address is the section 121, section 122 power of review point. The Registrar-General made before the trial judge the submission that Sahab was not a person dissatisfied for the purposes of section 121 and that submission did not find favour with his Honour. We set out again in our submissions the reasons why we submit that that is wrong.

In our submission, Sahab could have had no dissatisfaction with the decision of the Registrar-General to cancel the easement in 2001. It did not have any interest in the land at that time. It came along seven years later and purchased the land knowing that the easement had been cancelled. The reason for its dissatisfaction is not some decision by the Registrar-General to cancel the easement. The reason for Sahab’s dissatisfaction is a failure by the Registrar-General, or refusal by the Registrar-General, to accede to Sahab’s request to put it back on.

The words, “A person who is dissatisfied”, which appear in section 121, act as a control mechanism, a gate through which people must pass before they can seek review. Now, as we have said in our submissions those words and similar words appear in many statutes, but as this Court pointed out in Allan v Transurban City Link one has to look at the control mechanism in a statute in each case in the context of the overall purpose, if there is one, or the apparent purpose of the Act.

Again, coming back to the same point, the overall purpose of this Act is to provide a certainty of title. Its scope is meant to be eventually universal in the State of New South Wales. Torrens title is meant in due course to cover all land and now it covers about 99 per cent of land in the State of New South Wales, other than on Crown leases.

Against that background, in my submission, the control mechanism should be strictly construed and it should not allow those who subsequently buy the land many years after the decision has been made to come along and seek to challenge a decision in which they had no interest at all, otherwise, again uncertainty would continue on well into the future, indeed, in the case of omitted easements, limitlessly in time. That cannot have been, in my submission, the intention of those who drafted the Act.

The Registrar-General did not make – as the Court of Appeal rightly pointed out, the Registrar-General made no submissions in relation to section 12A at first instance or in the Court of Appeal. That was not an oversight and I do not propose to make any submissions in that regard in this Court.

One last point, your Honours, and that is the section 138 point. It occurs that perhaps for a reason not raised by anyone in submissions to date it is incorrect to categorise Sahab’s proceedings at first instance as proceedings for the recovery of any land. That is because Sahab’s case is fundamentally underpinned by the argument that there has been an omitted easement and that the omission is an exception to indefeasibility.

If that be right, then Sahab, if there were an omission, Sahab always had the easement. It was never taken from it. There was nothing for it to recover from anyone else. The easement stood outside and had a life independent of the registered title and it would be more correct to categorise Sahab’s claim as being one in the nature of – to put it poorly – declaratory relief, please declare, I had a valid easement and I still have a valid easement, not that I had one and you took it away from me, please give it back.

If that is accepted then the proceedings would not come within section 138 at all. I apologise for having no authority on that but it is just something that occurred to me on the spot. If there is nothing further, your Honour, those are our submissions.

HAYNE J: Thank you, Mr Walsh. Yes, Mr Burton.

MR BURTON: Your Honours, if I could address first some of the specific matters raised by my friends in the context that they have raised them and then go back to dealing in the order that we have sought to raise our submissions, trying to avoid any overlap. So the points, we would respectfully submit, the main points are dealt with first by way of reply and then reinforced by looking at them in our submission.

My friend, Mr Einfeld, in some of his submissions, in particular on sections 118 and 12A, are not supported by the Registrar-General, as we have heard, looks at sections in isolation and looks at the paramountcy of title by registration in isolation. We have no quibble with and, indeed, we fully endorse what fell from Justice Hayne, the presiding judge. This is a system of title by registration, you get your title by means of the statute, you lose your title by means of the statute, but one has to look at and interpret the statute as a whole and within that statute there are built-in powers of alteration of the register by an administrative official who is subject to powers of judicial review on administrative law grounds, as is any administrative official, and also by a merits based review power which is expressly given in the Act and the merits nature of that review power in sections 121 and 122 and the analysis of it by the Court of Appeal at paragraphs 222 to 224 of the reasons has not been challenged. Paragraphs 222 to 224 are at pages 341 to 343 of the appeal book.

When one looks at what we would say is the appropriate method of interpreting legislation, including the Real Property Act like any other piece of legislation, one sees that one has to look at the Act as a whole and interpret provisions to take account of other provisions and that that is what the Court of Appeal has done in relation to section 42 and section 118, particularly the exception about easements in section 42(1)(a1) and also in relation to the power of review in sections 121 and 122 in conjunction with section 12A.

The simple point which we have developed in our written submissions to illustrate this in relation to the power of review is that there would be a complete negation of the merits based review which is a jurisdiction of the court, ultimately of this Court on appeal, but of the Supreme Court in first instance and of the administrative law powers under section 65 of the Supreme Court Act if section 12A had the operation that the appellants contend for.

There is no express provision in the Act to provide for such a jurisdiction and the cases which we have mention in our written submissions say that there must be something much more express than what appears in section 12A. We suspect that is why the Registrar-General does not support the appellant’s submission and implicit - - -

HAYNE J: I understand the proposition you advance, it is that the register can be corrected for error or omission. Error or omission is subject to merits based review, is that right?

MR BURTON: Yes, that is correct.

HAYNE J: Well, the killing ground is what is error or omission and is that not what the submissions were directed to?

MR BURTON: Yes, that is correct, and can I develop that a little further because we would respectfully submit, as your Honours have seen in the notice of contention, that when one looks at the interpretation of the Act as a whole, you also have to take into account that powers of review are part of the deliberate decision to remove, or indeed to reinstate or to refuse to reinstate, and in that circumstance that lasts until there is a subsequent registered proprietor, be they mortgagee or purchaser, who has bought on the strength of the title.

Your Honours will immediately see, contrary to my friend, Mr Einfeld’s, submission that that is no challenge to, and no attack on, immediate indefeasibility. We fully endorse immediate indefeasibility; of course, it is the law, it has been the law since assets - - -

HAYNE J: But it bites only when there is a subsequent transaction. That seemed to be what you were saying.

MR BURTON: No, your Honour. We would respectfully submit that a purchaser or mortgagee that eyes with clear title, that is, the right of review has not been exercised, gets clear title and the right of review disappears. But the change to the title is inherently subject to the express statutory right of review and, of course, the right to review decisions of administrative officials, otherwise, as has occurred in this case, a valuable property right – a registered interest created under the Act by the means that your Honour the presiding judge pointed out – is removed with effectively no effective right of review. If my friend, Mr Einfeld, is correct on section 118 there would be no means of recovering an omitted easement for any reason, if the easement was omitted inadvertently, advertently, deliberately or, as in Dobbie, never put on because the land was brought under the Act.

BELL J: The registered proprietor of the dominant tenement at the time would have a right to compensation under the scheme of the Act. You do not suggest that your client who purchased on a title that showed the easement had been removed would have an entitlement to compensation, because if you go back into the history of the matter the Registrar-General may have acted on a misapprehension.

MR BURTON: The evidence is not because the matter was not explored on that basis. The evidence is not quite as simple as my friend, Mr Einfeld, put, and I can take your Honour to the evidence, I plan to do that as part of going through, but if I could just summarise at this point to meet your Honour’s question? Full knowledge that there was no easement on the title not overly concerned later knew about the circumstances, and therefore knew also about the review right and section 88K.

In other words, full knowledge in itself is in one sense irrelevant to this aspect. It is potentially relevant to compensation, but it is both a question of fact that it should not be taken quite as black and white as what my friend said, but equally, it - - -

BELL J: Just so I understand, section 88K, that is a reference to the power of the court to - - -

MR BURTON: If there is reasonable necessity, yes.

BELL J: Yes.

MR BURTON: Yes, there are other means of getting an easement back on, and that leads – I am sorry.

BELL J: I am sorry, but just coming back to the scheme of the RPA, you have a scheme that provides for compensation in the event that, as the result of an act of the Registrar-General, one has lost some valuable right, and the valuable right of which you speak was a right lost to Mr and Mrs Howard on a view at the point when the decision was taken. On that analysis, how do persons who have no interest at that point in the property – how do you make the argument that there was a loss of a right?

MR BURTON: First, that there is no time limit, for the reasons that the trial judge gave in section 121 and, indeed, there has been no formal appeal from that decision. The matter was raised in argument, as my friend said. The Court of Appeal allowed a small amount of development on that but there were no formal submissions, apart from ours, that we were a person dissatisfied, and the learned trial judge had fully canvassed the matter.

It was essential to his decision on the motion to obtain reasons for the 2001 decision that we were a person dissatisfied because that is the power to force the Registrar-General to give reasons, and he determined, for the reasons given under a very long explanation, an excursus into the historic background of section 121, that there was no time limit and, indeed, no limit on the range of persons because there had been an express change in the Act which his Honour points to from a reference to the registered proprietor to persons which, in itself, infers that it can be a person with an interest, not a particular time, and there was no time limit before or after.

BELL J: Sorry, this was to do with some changes in relation to the compensation scheme, was it not?

MR BURTON: I cannot tell your Honour precisely the context – whether all the sections related to compensation, because that has not been the focus of these proceedings - were enacted at the same time as the change to the provisions in section 121 and 122. Certainly, some of the provisions were renumbered and moved at that point. It was roughly in the same period but I am not sure if it was the same legislation. But the other answer to your Honour’s question, if I could, is that even if there was a right of compensation, the Dobbies would have had a right of compensation too, but the Act provides for co-ordinate means of relief, if our submission is accepted.

BELL J: I understand that. I think the matter that I was raising with you was on a view, having regard to the scheme of the Act, the improbability of the notion that persons in the position of your client might have a right to compensation under the scheme seemed to me somewhat discordant with the idea.

MR BURTON: Well, of course, the Court of Appeal – I hope I have not interrupted your Honour.

BELL J: No, no, not at all.

MR BURTON: The Court of Appeal has said that a person in my client’s position, as a result of the definition of “action” that they gave, restricted to actions against the Registrar-General as real defendant or nominal defendant, would not have a right of compensation. And, therefore, the only review rights we have, leaving aside section 88K, are the review rights under the Act and that, in fact, fits with the absence of a time limit. Bearing in mind also that section 122 gives broad discretionary powers to the court. There has been no suggestion of prejudice in this case. The registered interest – we have lost the registered interest. My friends are still the registered proprietor. It was their application that initiated the situation we are in and they remain on the record.

CRENNAN J: Is your starting point that Sahab always had the easement, notwithstanding what was shown on the certificate of title, and that therefore underpins the dissatisfaction from the point of view of standing under section 121? Is that your starting point?

MR BURTON: Yes, your Honour. And, indeed, the Court of Appeal - - -

HAYNE J: How did it always have the easement when the easement was created by a combination of 41 and 47 by the act of registration?

MR BURTON: Because 41 and 47 and the acts taken under them, particularly the act of removal, are subject to a right of review without a time limit and that is an express statutory power.

HAYNE J: But is title by registration subject at any time and always to correction for errors or omissions? We come back to, is this an error or omission?

MR BURTON: Yes, and we also come to the matter that this is a clear title until then for a third party so that if the right of review is not exercised before the property is onsold or mortgaged we are in the position that that right of review is lost because of section 45. I have expanded on that in the further written submissions and the existing written submissions. In other words, this is a very narrow situation, your Honour. Indeed, that is probably why it has not arisen before because there are – neither party, no party could find, including the Registrar-General, relevant authority on the deliberate decision to remove in this situation prior to - - -

KIEFEL J: I am sorry, and I do not mean to survey this prospect as it relates to the circumstances of this case, but as an alternative to compensation you say there is no recovery of an omitted easement, but in some cases there may be the prospect that under the terms of the covenants in the easement itself it is possible to require the registered proprietor to take action to have the easement placed back upon the register, is it not?

MR BURTON: If there were equitable rights, yes, rights in personam, and that is recognised in authority, of course.

HAYNE J: And there is no such case sought to be made here?

MR BURTON: We have not made that case here, no. That is correct.

HAYNE J: So you have no equitable right against Castle. Your only claim is error or omission.

MR BURTON: Yes, your Honour. That brings us to the meaning of error, or omission, as your Honour rightly says. When one looks at the policy and the principle one sees, we would respectfully submit, an identity of search and risk which informs the policy behind a restricted meaning or a broad meaning to omission which, we say, is the ordinary meaning. We have given your Honours the dictionary definitions. In entrenched Torrens systems in New Zealand with a case we have given your Honours the reference to in footnote 12 in our principal submissions, Sutton v O’Kane, and in Dobbie itself, there is a detailed exploration of the provision and there is a return by the Court to saying this for all the reasons we analysed - text, history, policy is a colourless term, you give it its ordinary meaning.

All the authorities, and we do not quibble with them, of course, that say one reads exceptions to the statute in a restricted fashion or in a strict fashion, cannot read down, that is read restrictively what is the plain meaning of the term, we would respectfully submit. Your Honours will possibly have read already but we would respectfully invite your Honours to read the lengthy historical analysis by Justice Kirby, and particularly by Justice Priestley, to whom Justice Kirby defers in this matter, and Justice Handley agrees, of course, on the text and the history and we would respectfully submit the outcome of that, including the evidence before various royal commissions, at the time words the same as these words were put into the original Torrens legislation. Words behind the English royal commissions which informed the debate at the time suggest that there was no restrictions simply to pre-Act easements, and that may have been the context where it arose more but the way that the debate reads is there is no restriction to it.

CRENNAN J: One can accept that, but it is a very different issue to deal with an easement which has been intentionally removed.

MR BURTON: We would respectfully submit not, your Honour, in this sense, that if one takes a search and sees, as in this search, the reference to a request and then the removal of the easement that, in fact, is a greater highlight than the situation that was dealt with in Dobbie where there is a prescriptive easement with nothing on the register. The special protection already could operate years down the track in favour of a pre-Act easement.

The example my friend, Mr Walsh, gave – within the classic meaning of this term, an inadvertent omission, a deliberate taking off when reissuing a new CT, which happened in James and the easement was put back on - James v Registrar-General - and in Dobbie itself a prescriptive easement prior to the Act. In each of those a person searching the title would have had no clue because of the inadvertence and because of the pre-Act physicality and the absence of documents; they would be with a third party if there were any documents.

CRENNAN J: But here you have a removal. You seem to be suggesting that the removal is not a removal, which gets back to your point that the starting point is Sahab always had the easement??

MR BURTON: We would respectfully submit Sahab did until, of course, as was said in Breskvar v Wall, there is a third party purchaser or mortgagee, and at that point the right disappears and section 45 indicates that. The words in section 45 refer to fraud, void or voidable, or errors. That is what a subsequent innocent purchaser is protected against, but not a person who remains upon the register as Castle does here, and who initiated the application, and who thereby benefits, of course, from the situation that has been created.

This is an administrative act by the Registrar-General. It is not simply the act of a third party. It might be prompted by a third party, as it was in Berowra Waters - I am jumping ahead of myself a little bit here - but the cases that restrict section 12 and would have a view that is restrictive of other provisions to alter the register usually deal with the acts of third parties, a discharge of mortgage which on its face seems regular. Here there were inherent obvious errors on the third party document. The statutory declaration referred to the wrong tenement. It was hopeless on its face, nevertheless it was accepted.

In addition, the Registrar-General acted within his department and processes, and that is a classic administrative error which would come within the meaning of the term in Berowra Waters and would come within the meaning that is recognised in the 1995 amendments to this provision which said it was to endorse Dobbie and it was to deal with administrative errors.

BELL J: It is giving a rather generous meaning to administrative error, is it not? The Registrar-General acted on an application. There were features of the application which might be accepted to be misleading and so he acted upon an erroneous understanding of the position, but one would hardly think of that as an administrative error.

MR BURTON: We would respectfully submit to the contrary, your Honour, in this sense; bearing in mind the context that there are merits based review rights as well as administrative law review rights this is a classic administrative error and it is given a merits based review here, not just an administrative law review. Therefore, in a sense, the focus is higher, we would respectfully submit, here; it is a stronger case for including a deliberate decision.

Coming back to a matter – I realise I am jumping around on the specific matters to reply – to Justice Gageler, your Honour, we would respectfully submit, will find, when one looks at the authorities, particularly in note 17 in our written submissions, Pirie, James, Jobson, right back to the very first one there, the 1867 decision, and up to Justice Barrett in St Abanoub, there is a focus on the duty of the Registrar-General to maintain the integrity and accuracy of the register, it is said to be a general duty. Nowhere in the Act does one find an express statement of that, it is in the cases, but it is drawn from the specific powers of the Registrar-General, and most of them are expressed as powers.

The word used is “may” or sometimes “may, if satisfied”, and there appears to be no distinction, we would respectfully submit, in these authorities between the use of the word “satisfaction” and the use of the word “may”. Both are dealing with a power, both say there should be a principled exercise of that power. In other words, it is a classic administrative review situation on which a merits based review has been overlaid by sections 121 and 122.

GAGELER J: May I just ask you to make clear what decision you say is being reviewed on the merits? There was the 2001 decision for which you sought reasons, and reasons were ordered by the Supreme Court, but it seems to be the 2008 decision only that is the section 12(1)(d) decision in respect of which you were successful in the Court of Appeal. Now, I have looked at your notice of contention, I cannot see that you say that that approach of the Court of Appeal should now be supported on the basis of a review of the 2001 decision.

MR BURTON: Our notice of contention and, indeed, our challenge below was to both decisions - the original removal and we sought review of that and we have not been given reasons so that is hence the motion. The 2008 decision, we have been given reasons. There was no need for a motion on that aspect and we did challenge both. I think in the original summons we seek declarations and orders to restore and it is in relation to both the removal and an order for reinstatement because the 2008 decision is a refusal to reinstate. Certainly in our submissions we said that we were a person dissatisfied with respect to both decisions in the court below.

GAGELER J: In respect of the 2001 decision, assuming you to be a person dissatisfied, do you need to show that you fall within the category of omission? That is the language of section 12(1)(d).

MR BURTON: We would respectfully submit that our narrow case gets us there which is there has been no change of registered proprietor. We are still in the period when the decision is subject to the statutory rights of review and therefore there is no need to look to section 42 and come within the gateway. Now, on that the Court of Appeal disagreed with us. The Court of Appeal said there is an error. We do not need to look at omission because there is an error and there is a gateway for that error through section 42 because there is a special protection for easements.

But that is a broader approach which, of course, we embrace but in this narrow set of facts we respectfully submit the Court need not go so far because the same registered proprietor is still the owner of the servient tenement.

HAYNE J: The fact that there is a change in ownership with the dominant tenement is swept aside as irrelevant, is it?

MR BURTON: Well, we would respectfully submit it is not irrelevant, your Honour, because the Act actually makes it relevant in section 121. The language of review is not time limited, and if your Honours uphold the Court of Appeal on section 12A, then we have no other right. We cannot claim compensation. If the facts were more fully explored on the state of knowledge, the negotiation of the price – they are the facts that I was referring to Justice Bell earlier – and that would have to be done in a section 129 compensation case.

HAYNE J: I must say to you, Mr Burton, that those matters seem to be very powerful matters trenching on the central tenet of the Act about indefeasibility.

MR BURTON: Well, can I give your Honour an example using the example my friend, Mr Einfeld, gave the Court of Appeal, which is what happens if the property is developed and in 100 years’ time - I think I have mentioned in my own written submissions here - in 100 years’ time the same registered proprietor is still there and the then registered proprietor, the dominant tenement says, “I have a right of way through your development”. There has been no change in the servient tenement’s registered proprietor. The only right of review extant is under section 122. There would be clear prejudice and section 122 is a discretionary remedy and we would respectfully submit that is the protection.

Now, if the servient tenement is sold then we are in the situation where there is a protection for easements and there is no discretion, but that is the case and that is the risk whatever the reason for the omission, whether it is advertent, whether it was there before the land was brought under the Act, or whether it is a deliberate act of removal. The reason for the status of the register is irrelevant to the outcome and, as I have already submitted to your Honours, at the risk of repetition in fact a deliberate decision to removal may be more visible than one of those other two possibilities. So there is an inherent risk because of the special protection given to easements. That is mandated by the statute, we would respectfully submit.

Coming back to your Honour’s argument about the central feature of the Act, the central feature of the Act, as many cases have said – Justice Priestley says it indeed in Dobbie; it is said in James, in Pirie, by Justice Kitto I think – is the paramountcy of the register with the express exceptions in it - section 42 with the express exceptions. That is the short answer the Court of Appeal gave in fact to section 118 because that paramountcy would not operate when you read the Act together as a whole - neither would section 138 - without giving some means of redress on one of those express exceptions which is omitted easements.

Now, in the situation of Dobbie, Dobbie would have had no rights if my friend’s submission on section 118 is correct because it would have been a proceeding to recover an interest in land. Indeed, as an old system interest, there would be absolutely no question such as your Honour Justice Crennan raised - they had interest, they were seeking to recover it. The meaning of “recovery” we respectfully submit for is the one that the Court of Appeal gives which is that it is an interest that is always there, in paragraphs 97 to 103, and of course the Court of Appeal was with us on that submission.

BELL J: To the extent that you speak of a valuable property right that has been lost, I understand that with respect to – I will put it this way. You assert that you have lost something having purchased knowing that the easement had been removed because you approached the matter on the basis, “I will have a right of review when I acquire the property” - - -

MR BURTON: I am afraid if your Honour has understood my submission that way I have put it too high, I am sorry. I should take your Honour to the evidence so that your Honour knows what the evidence was. Can I do that because it may help with your Honour’s question? I think your Honour is coming to the question of, did it affect our purchase.

BELL J: Yes.

MR BURTON: We would respectfully submit that matter was not fully explored, but, to the extent it was, the answer is, no. Page 15 of the appeal book, and this is the transcript of Mr Kanjian’s cross-examination. At line 10:

Q. You were aware that the use of the right of way over my clients land had been blocked by the erection of the fence?

A. Yes.

Q. And you are also aware that at the time you purchased it the previous right of way had been extinguished?

A. Yes, Mr –

It should be Howard, that was a transcript correction there – the previous owner –

had told me that the - -

Q. No, I just asked what you know, not what Mr [Howard] told you?

A. Yes.

Q. Of course that had some bearing on the purchase price that you paid for the property?

A. I can’t comment on that. I don’t know.

Q. It didn’t enter your mind in the consideration of the purchase price?

A. No, no, we negotiated for a long period and the price was a key feature of the negotiations but I don’t know what went through Mr –

again, Howard’s –

mind about the impact of the loss of right of way would have on his property.

Q. But it went through your mind, didn’t it?

A. Look, I knew the right of way had been lost but I was not overly concerned about it.

Then it goes on to ask about the nature of the shop to show that it is landlocked effectively.

BELL J: Mr Burton, I do not know that really the detail of the evidence does perhaps address the matter I am raising with you. It is more that you frame the matter as though purchasing the property as you did knowing that the easement had been removed from the title, in terms of what it was that the title showed, you treat that as though there has been some loss to you whereas one would think fairly obviously there was a loss to the proprietor – to the Howards – because it plainly had the capacity to affect the value of the property. Whether or not it did in the negotiations that in the event happened is neither here nor there. Against the system of title that we have I have some difficulties understanding that part of your argument that keeps contending this is a matter of concern because a valuable property right has been lost.

MR BURTON: A valuable property right has been lost because it is part of the interest in land that should be part of that property. It is not a question of loss. It is a question under the act of dissatisfaction. Loss comes into section 129 and, indeed, one might say that, as your Honour has said, the loss was suffered by – we do not know what happened but if there was a notice given to the Howards then the section 12A notice not being responded to but they obviously felt they did not suffer a loss, but that is not the question. The question is, is the person dissatisfied and are you within that meaning which is not time limited.

So, with respect, we would say valuable property right because there are powers in the Act if you are dissatisfied with a position - and my client has a landlocked upper floor - to seek review because there has been no trading on the basis of the clear title by the servient tenement.

HAYNE J: I see the time, Mr Burton. How are you travelling for time?

MR BURTON: I think I may be probably about another hour, your Honour.

HAYNE J: Yes. I am not asking you with a view to having you compress what you say, but simply for information.

MR BURTON: Thank you. Yes. I will review over lunch and see if I can - - -

HAYNE J: Yes. Thank you, Mr Burton. 2.15.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

HAYNE J: Yes, Mr Burton.

MR BURTON: Thank you, your Honour. If I could return to one matter before lunch that I was too enthusiastic with my transcript corrections. It is a minor point, but page 15, when I was dealing with Justice Bell’s question, the only references to Howard are the ones that actually have been changed. I think I read “Howard” in a couple of the others as well. So where the word is handwritten that is the correct correction, and the others where I read “Howard”, such as in line 15 and line 17 were correct as they were. I apologise for that.

If I could also give your Honours the reference, just to complete that picture of evidence now I am talking about it, the other documents are at appeal book pages 29, 37, 39, where the questions raised after completion of title by Sahab, and at 133 which you have already been taken to by Mr Einfeld. If I could also, without taking your Honours to the passages in the time available, add to notes 17 and 35 in the written submissions, which deal with the matter I just raised before lunch the general duty to oversee the register’s accuracy, the following cases which should be part of that and are on our list of authorities.

The first is Professor Butt’s text “Land Law”, the current edition, 6th edition, 2010 at paragraph 20_108. Then at item 24 in our list of authorities, City of Canada Bay Council v F & B Bonaccorso [2007] NSWCA 351; (2007) 71 NSWLR 424 - I will return to that case when I am dealing with section 138 - the relevant passage on duty is at paragraphs 91 to 92; the case which is listed at item 15 in our list of authorities, FNCB-Waltons Finance Limited v Crest Realty Pty Limited (1977) 10 NSWLR 621 at 629D; also a reference to the material at paragraphs 37 to 38 of our written submission which deals with the duty to be satisfied which leads me into the next matter which was a matter that Justice Gageler raised about what was the decision.

To supplement the answer which I gave before lunch, if I could take your Honours to the notice of contention in the appeal book - it commences at page 402. The relevant grounds are on pages 403 to 408, and the focus on the 2008 decision, in my respectful submission, is found in ground 2, the focus on the 2001 decision in grounds 4, 5 and 6, and there is a focus on both decisions in grounds 3, 7, 8, 9 and 10. In other words, the contentions in those grounds relate to the respective decisions as I have identified them.

Our submission, as your Honours would be aware from the written submissions, is – and contrary to my friend, the appellant’s submissions, is that there are two separate decisions. So, of course, the section 12A notice was only given in relation to the 2001 decision and that each is a relevant reviewable decision. Of course there is a looking back to the 2001 decision from the 2000 when one is dealing with whether the Registrar-General carried out his duty in relation to the 2008 decision.

The passages that I have given you that we have set out at paragraphs 37 to 38 of our written submission deal with the duty to be properly satisfied, which is a matter I briefly raised – the principled exercise of discretion – before lunch. In other words, has the Registrar-General properly considered the matter – both at the level of administrative law and, also, on a merits review – in either refusing to act or not acting or in acting. There is a duty to be satisfied or a duty to exercise the power properly and it is the same duty.

KIEFEL J: It is not here in issue, or contended, that the Registrar-General did not properly consider the matter. That is not the area of satisfaction that you are concerned with, is it?

MR BURTON: It is actually. It is one of the matters that we raise, your Honour, in our notice of contention, that in ground 4 I think it is – ground 3, I am sorry, that we contend that the Registrar-General on both administrative law grounds and, of course, on a merits review did not come to the right decision.

KIEFEL J: That is not the same thing as properly considering the matter.

MR BURTON: I am sorry, I misunderstood.

KIEFEL J: Consideration is the process leading to the conclusion.

MR BURTON: Sorry. Part of what we submit is that there was no proper consideration of the matter.

HAYNE J: Well, you got to the wrong answer is your proposition, is it not? Is it any larger than that?

MR BURTON: No. It actually goes further than that and I was going to develop this shortly. I can develop this now if you wish. In fact, it might be convenient to do so. As presented to the - - -

HAYNE J: Let me just understand, Mr Burton.

MR BURTON: Yes.

HAYNE J: You have to, for success in your argument, assert, do you not, that the Registrar got to the wrong answer?

MR BURTON: Yes.

HAYNE J: What does it add to inquire whether the Registrar-General’s processes before arriving at that answer were good, bad or indifferent?

MR BURTON: If your Honours accepted our submission that a merits review is available under section 122 then it adds nothing. If your Honours are not with us on the effect and operation of section 122 in relation to the exercise of a power, either because of not coming within section 121 or because 121 does not apply, your Honours came to the view that it does not cover the exercise of discretion to give a merits review, which is against our submission, then we would need to fall back on what the Court of Appeal deals with in paragraph 163 where the Court of Appeal said - and 192, that there was proper consideration and that only an administrative law review ground was available and we would need to look at the process and we respectfully submit that the process was flawed for the reasons which I can briefly develop now. They are taken primarily from what is in - - -

HAYNE J: I am sorry to delay you, but I am lost. Let it be assumed that there is no merits review. I understand you to contend to the contrary. So what does that matter? If the Registrar is wrong in the answer that was given, you say, or I understood you to say, that suffices. There is, therefore, an omission.

MR BURTON: In relation to section 42?

HAYNE J: Yes.

MR BURTON: But the first part of our argument is, on the notice of contention, that we do not need the gateway of section 42 because there has been no change of registered proprietor on the servient tenement and so therefore we fall within section 12 and we have to show there is an error and we either do that by saying there is a reviewable decision on the merits which is wrong or if it is an exercise of discretion that is subject only to administrative law review then – and that is what the Court of Appeal said for some of these provisions, primarily the ones dealing with satisfaction – then we are required to show that there was a defect in the process on administrative law grounds, so that is what I am directing these short submissions to which are encapsulated in paragraph 6 and note 4 of the written submission.

KIEFEL J: The Court of Appeal’s judgment, at least the first paragraph to which you drew our attention, paragraph 163, deals with, I think, the Registrar’s duties under section 136.

MR BURTON: Yes, which is part of our notice of contention - the duty to be satisfied - and the Court of Appeal was against us on that.

KIEFEL J: Satisfied that the recording has been wrongly obtained?

MR BURTON: Yes.

KIEFEL J: Their Honours in the Court of Appeal were there dealing with a suggestion of unreasonableness and saying no unreasonableness?

MR BURTON: Yes, that is correct.

KIEFEL J: So, I am sorry, what are we dealing with now?

MR BURTON: So we are dealing with the basis for saying - - -

KIEFEL J: You are arguing to the contrary of that proposition, are you?

MR BURTON: The basis for saying that wherever we are required to show administrative law grounds for either the 2001 or the 2008 decision, there are sufficient grounds to say this was a decision flawed on administrative law review.

CRENNAN J: You are saying, are you, that if you do not get access to review under section 122 there is still, of course, section 65 of the Supreme Court Act?

MR BURTON: Correct, yes, that is correct, Justice Crennan, thank you yes. Indeed, I think that is what section 163 was directed to. So as briefly as I can it appears to be common ground now that there was an error in the meaning of the term, the ordinary meaning of the term. That comes out of paragraphs 181 to 183 of the Court of Appeal and 221 and those are at appeal book 327 to 328 and 341.

Turning to the process 2001, as presented to the Registrar-General, was given a request. That document is 7924028W on 3 September 2001 at appeal book pages 78 to 84. For these reasons what the Registrar-General was presented with and then did not investigate was hopelessly wrong, as we have submitted, first because there was no agreed event specified and identified in the request.

Secondly, the statutory declaration that accompanied the request inferred an agreed event from the sale of the dominant tenement, that is, 69 Strathallen Avenue, which, on the face of the document that created the easement, was clearly wrong. The Registrar-General did not investigate that. That referred to a transfer that occurred by Davis in 1922. The transfer is at appeal book 80, and of course, the instrument creating the easement is at appeal book 70 to 73, and the agreed transcript of the easement is in the Court of Appeal’s judgment, paragraph 28 at appeal book 267.

There is then a reference to a transfer of the servient tenement as the transfer documents at appeal book 85 as being owned by Davis. So it is inconsistent internally, but Davis of course never owned the servient tenement. He owned the dominant tenement. He bought that from the Middletons. The relevant certificate of title is at appeal book 87 to 89, which is the dominant tenement. That is the one that shows Davis as the owner.

It is not clear from the evidence, and this is in ground 3 and in our final ground of the notice of contention, what the Registrar-General did next from what both the trial judge and, I think, the Court of Appeal endorsed as his “spare” reasons. The trial judge in his second reasons for judgment said that at paragraph 76 and the Court of Appeal quoted that paragraph at appeal book 197 at line 33.

There seem to have been three possibilities subject to a fourth which is the subject of the application that I need briefly to make: first, there was no real consideration at all because the spare reasons in the minute really do not tell you anything; second, that the Registrar-General accepted a hopelessly incorrect reading on its face, which would be Wednesbury unreasonableness, as would be the first; third, that the Registrar-General accepted a simple absence of objection when there is no real evidence that a notice under section 12A or under any provision was properly served in the evidence. That appears from the documents he produced in response to the notice of motion orders on 106. In our respectful submission, that indicates that he could not have properly exercised the power consistent with his duty to administer the Act and be satisfied so as to remove the easement.

HAYNE J: Are you inviting us to proceed on the basis that, what, there is no finding a 12A notice was given, or I thought the trial judge had found there would be such a notice?

MR BURTON: The Court of Appeal found that a 12A notice was given.

HAYNE J: You say we should upset that?

MR BURTON: That there is no real evidence to support that is my submission, yes. The basis for it is not in a contemporaneous document. It is simply an assertion in one of the Registrar-General’s letters that section 12A notice was given. There is no 12A notice in the evidence.

HAYNE J: I understand there is no 12A notice in evidence but why should we conclude that none was given in face of the findings of the Court of Appeal?

MR BURTON: From the matters that I have indicated to your Honour at the moment because in the absence of being able to produce a 12A notice when ordered to do so, and none was produced and the document that asserts that one was given is not a contemporaneous document. It is not part of the reasons which is what the Registrar-General is obliged to refer to under section 121(2). In addition, there is reference - and this is part of my application - but it also stands on its own as evidence that there was no section 12A notice - there is evidence in conversations that the power used for section 49 - and if I can give your Honours and take your Honours to those transcript references very briefly now. They are at appeal book page 25; the first is at line 1. This is part of Mr Kanjian’s affidavit sworn in the proceedings. This is part of a conversation with Mr Bartier at paragraph 31:

I was involved in the decision in 2001 to extinguish the right of way.

So, he seems to have personal knowledge. If we then go down to line 20, Mr Kanjian asks:

“When you respond to my letter –

which was saying why you say the decision is wrong:

can you please provide me with reasons for extinguishing the right of way –

That was the first request. Eventually, we had the notice of motion:

I note that I am entitled to receive reasons under s 121 –

Then going further down in the conversation, it is the last entry with “GB” against it:

“Also, as I recall, the right of way was cancelled under s 49 of the Real Property Act.”

KK “Thanks. I will look at this section as well. I would just like to know why the right of way was extinguished.”

Then if we could go down to line 58 where Mr Kanjian is summarising a letter which appears at – I am sorry, it commences at page 37 of the appeal book:

I questioned whether s49 of the Real Property Act, 1900 applied because the right of way had neither been abandoned nor had title to the servient and dominant tenements been consolidated.

That is the summary at the bottom of page 25. We then go over to page 26 at lines 34 to 42, Mr Kanjian not having heard in response to his letter rings back and Mr Bartier says it has been transferred to the legal division. He tried to speak to Mr Channel and he was unavailable and so Mr Kanjian sent another letter.

HAYNE J: You seem to be going via a number of ports here, Mr Burton. If the journey is necessary let us take it, but is it really necessary?

MR BURTON: Well, I am simply pointing to where section 49 is referred to.

HAYNE J: Yes.

MR BURTON: The relevant page number for the letter of 18 December is at page 39. So the short point is that there is evidence that it was not a section 12A notice, that the person with personal knowledge of extinguishing the right of way said at - - -

BELL J: Respecting a decision made some years earlier that he thought it might have been under another power.

MR BURTON: Cancelled, under another power.

BELL J: The Court of Appeal found that the 12A notice had been served and the invitation is for us to find otherwise.

MR BURTON: Yes, and to support that we would respectfully submit that evidence stands on its own but we also make the application to have the Court take account of the document at pages 245 and 246 of the appeal book which your Honours will see – and this is set out in detail in our chronology – was delivered to – unprompted – it simply appears to have come from the request based on the – and the notice of motion but a year later, your Honours will recall in November 2009 the Registrar-General produced and then at the time when submissions had been filed in the appeal, including the Registrar-General’s submissions, on the same day the Registrar-General sent this notice with the cover sheet at 245 and the letter at 246.

GAGELER J: Mr Burton, your application is an application for this Court to receive fresh evidence, is it?

MR BURTON: We would respectfully submit, and I understand the authorities, that this is a Court of Appeal. We would respectfully submit that this is not fresh evidence because it simply identifies or clarifies those references to the section 49 notice that I have taken your Honours to but I understand the document itself is not in evidence at the moment, so if it was restricted to the document it clearly is fresh evidence but in standing with the existing evidence it simply identifies or clarifies what those references to section 49 are.

HAYNE J: This was not before the Court of Appeal?

MR BURTON: This document was not before the Court of Appeal.

HAYNE J: It was introduced into the appeal book though it is not part of the record below.

MR BURTON: That is correct. I think Mr Einfeld mentioned that there was a debate before the Registrar about this - - -

HAYNE J: I understand that.

MR BURTON: - - - and the Registrar referred it to the Court.

KIEFEL J: That appears from the index. There is a qualification to its reference in the index.

MR BURTON: Yes, that is right. So it is a matter for this Court, I think the Registrar took the view. We would anticipate that your Honours will deal with it as part of the overall reasons unless your Honours wish to deal with it now.

HAYNE J: The application to rely on the additional evidence is refused, Mr Burton.

MR BURTON: If it please the Court. So my submission stands with the existing references to section 49.

HAYNE J: Yes.

MR BURTON: Thank you, your Honour. Now, if I could then go back to complete the list of specific matters before I take your Honours through the remaining matters that I wish to focus on in oral submissions? We have said in our further written submissions that the decision that was not followed by the Court of Appeal in Dobbie, being the Australian Hi-Fi Publications v Gehl decision, in fact, focused on a deliberate decision not to register. That decision was not followed because the meaning was extended but that, of course, we respectfully submit, means that the Court of Appeal encompassed the meaning in Gehl and said it was too narrow.

We also respectfully point to the fact that the Court of Appeal stressed in its reasons in Dobbie that it was not just left out in some active sense, it was the question involved in the ordinary meaning of “omission” was not there and the two words are seen as coincident in this context. Again, that appears to be consistent with a matter I touched on before lunch.

HAYNE J: An interesting form of dictionary preparation to give two meanings that are entirely coincident, but there we are, yes.

MR BURTON: Yes. However, the Court appears to have been attracted by that, and it is consistent, your Honour, with the fact that sections 12 and 42, unlike other provisions where omission is used, deal with the status of the register rather than the reasons as I touched on before lunch. By contrast, section 129 – again this was touched on by Justice Bell before lunch, I think, and my friend, Mr Walsh, touched on it – deals with an activity. It is the act of omission. It may not be one of fault necessarily, but it is an activity, and the Challenger reference that my friend was looking for at that point, Challenger Managed Investments v Direct Money Corporation [2003] NSWSC 1072; (2003) 59 NSWLR 452, is in note 5 of our written submissions.

We have in our written submissions cited that Franzon, the High Court’s reasons in Franzon, and the interpretative presumption or practice of treating words with the same meaning, if they are the same word, unless the purpose is different applies to sections 12 and 42 in this context but obviously not to 129. As I said before at lunch I think briefly, but just wanted to reinforce, in answer to Justice Crennan’s question, if the easement ceases to exist when it is removed from the register without the power of review, the logical corollary of that is that you could never exercise the power of review. You would effectively neuter a means of reinstatement. It is the same point as I made in relation to section 118.

So, therefore, as I said before lunch one, we respectfully submit, should read sections 41 and 47 with the inbuilt express statutory power of review in addition to the administrative review provisions. Again, as I touched on before lunch but wish to elaborate, this is not a limitless power. There are no floodgates being opened here. The facts of this are very narrow, as I said. It is when the servient tenement or the person who has benefited from the position is still the registered proprietor, in this case it is the servient tenement. There are other limits on the review power that are inherent in it or in the case law.

First, it must be administrative, as Frazer v Walker, indicates and the Frazer reference must be taken as Professor Woodman indicates in the article that I have given your Honours in the further written submissions as speaking about a provision that is less broad than section 12 in its current form. The New Zealand equivalent section 80 is not as powerful as section 12 in its wording. Professor Woodman analyses that. But in the Berowra Waters Case in dealing with the question of the effect of section 12, at pages 402 G and 404 D Justice Needham spoke of administrative error, and if I could just take your Honours to that reference very briefly?

We make the point that his Honour has left open the submission that we are making, it was not closed off as it appears to have been treated in the way Justice Young interpreted Justice Needham’s words in Quach and in Scallan. At 402 G – this is in 4 NSWLR 398:

Those conclusions debar the Court from making the orders sought by the plaintiff unless the plaintiff can enforce against the second defendant a “personal equity” –

again something which is not expressly an exception in section 118, a point I forgot to make earlier –

or unless the Registrar-General has power to correct the “error” –

so Justice Needham is clearly contemplating that there is an occasion for the use of this power to correct an error affecting more than just slips, we would respectfully submit, because his Honour goes on -

and the Court, in view of his refusal to do so without an order of the Court, can make a declaration setting out the facts from which he could draw the conclusion that he should exercise his power of correction.

Going over to 404 D, his Honour endorses Jobson’s Case and says it:

seems a clear case in which the power of correction is called for.

That is where a transfer was registered in clear – violation is probably too strong a word, but in the clear face of a caveat, and the Registrar was ordered to reinstate the caveat and remove the transfer -

The error had occurred in the office of the Registrar-General, and he was held entitled to correct the entries. It was a “slip”.

So his Honour saw a “slip” as encompassing what I have earlier called before lunch administrative or departmental errors, the term used in the 1995 explanatory memorandum that is set out for section 42 in the judgment of the Court of Appeal. Going on below in D:

In James v Registrar-General (1967) 69 SR (NSW) 361, the mistake was again that of the department, who issued a certificate of title omitting to record on it details of an easement binding the land.

We do not know if that was advertent or inadvertent. So Berowra is not authority, in my respectful submission, for some closed approach. Rather, it seeks to put limits which we have submitted for being that this must be a process to which the department contributes ending up with a status of an error on the register. That seems to be coincident with Frazer, coincident with the width of the provision, subject to the exercise of principle of discretion and endorsed by Professor Woodman in his article that I have taken your Honours to in the further written submission on the centenary.

I set out passages from that, which were the purple passages, but the entire article is a very thorough analysis of the power of correction which the learned professor, a noted authority on the Act, clearly recognises is not to be ignored, which is effectively what your Honours are being asked to do by my friends; ignored or reduced to almost a neuter, if not a neuter.

Can I also hand up to your Honours the only thing I think we wish to hand up in addition to the existing references? It is a reference to the Woodman & Nettle service on The Torrens System in NSW. If I can ask your Honours to take this into account in its entirety, I am not going to read it, but if I could just focus for the moment on the second last paragraph:

Secondly, consider the position where A has not acquired the whole interest evidenced by an erroneous registered title, but only a subsidiary interest, such as a mortgage or lease. Here it would seem not merely the prerogative, but the duty, of the Registrar-General to make a correction or to record a Registrar-General’s caveat, to prevent the undisposed balance of the incorrect registered title also passing to an innocent purchaser, for that would only compound the damage caused by the original error and correspondingly detract from the reputation of Torrens titles.

In other words, the duty to maintain the accuracy and integrity of the register by using in a principled manner the power of alteration within the system is seen as an incident of the system, and the protection is that if you do search on clear title and you then take clear title, if you actually purchase on the strength of the title, we are dealing with the period prior to that happening, which is the current narrow situation.

In other words, to use the language of some of the cases, particularly Queensland Premier Mines v French, the Registrar does reveal all to a third party who takes on the strength of the register at that time, if the review process has not been complete, but that is not our situation here because Castle is still the registered proprietor. If the appellant was correct, these provisions, as I have said, would have no work to do.

If I could then go to a reference in section 121 that my friends took your Honours to, on the basis that they are even allowed to agitate this question – which we submit against and I will return to briefly in a moment – 121(1)(a) and (b), the Court of Appeal said, was sufficient, and left open (c) because 121(1)(a) and (b) were sufficient for us to be within the provision. If one got to (c), my friends have focused on the word “required” and have, we would respectfully say, put an unnecessary gloss on that word. “Required”, they would submit, as we understand it, to say “compelled”, whereas “required”, we would respectfully submit, in the context of the Act appears to be “has the designated statutory power”, which is to be exercised in a principled manner. That is the relevant requirement, not that the Registrar-General is mandated to do it.

Now, turning briefly to the estoppel point, this was fully explored in our written submissions at paragraph 27 and we would respectfully submit the Court of Appeal correctly applied principle. The matter was fully explored on the motion as for final relief, that is, the orders were complied with; the documents were produced; that was the end of the matter. Some were a year later but they were produced. The Court of Appeal set out the procedural position as it was presented at paragraphs 212 to 213 of its reasons which were found at 338 to 339, if I could just take your Honours briefly to that.

At 338 to 339 of the appeal book where Castle adopted, there was, I think, my friend submitted that – who was not actually involved in the trial - submitted that Castle had no real role in this motion. Castle did, as the Court of Appeal records, adopt the Registrar-General’s submissions and did not advance separate written submissions but did adopt them. So, Castle was part of the process of opposing the application.

The primary judge contemplated that this would need to be decided when the matter came for relief in the principal proceedings but it was not reagitated, is the bottom line, at trial. There were no written submissions, apart from ours, where we submitted that we came within 121(1)(a) to (c) and 122 at the final hearing. There was no response. This is at 339, line 18. There was no response to this assertion in the written submissions of Castle or the Registrar-General and there was nothing as a result in his Honour’s reasons in that judgment about it. It was raised in passing in argument. There is still no appeal ground in the Court of Appeal record about this matter, either from the Registrar-General who now seeks to raise it, or from Castle.

If I could now turn to my friends’ submissions on section 12A, which also encompass matters that we raised on the notice of contention. Our material is set out in full at paragraphs 23 to 26 of our written submission and we would respectfully submit that the Court of Appeal fully dealt with the paramountcy of sections 121 to 122 in the correct manner and that is explored in the paragraphs of the Court of Appeal reasons that it dealt with in our written submissions. I have already given your Honours the authority that something much more express in section 12A would be required to oust the jurisdiction of the Court.

At the Court of Appeal’s second set of reasons, the supplementary reasons which are found at page 371 of the appeal book at paragraph 14, the Court of Appeal returned to the topic and then dealt with it through to paragraph 22 in some historical detail just as his Honour at trial had dealt with the standing point through to paragraph 22 on page 374. That was with the benefit of second reading speeches that had been provided and there was nothing in the second reading speeches that contradicted the opinion of Woodman & Nettle that the Court of Appeal set out at paragraph 14 on the meaning of “action” and on the paramountcy of sections 121 to 122 over section 12A.

If your Honours on the references in the testimony to section 49 consider that sufficient as to at least raise doubt whether there was a 12A notice of any kind, then section 49 is not a 12A notice – the notice under section 49. The terms and the requirements are distinct. The recipients are distinct and section 12A would simply not be applicable to this case.

In any event, there was no section 12A notice for the separate 2008 decision and we have submitted in the written submissions that it is a separate decision. Indeed, that is coincident with the absence of reference to a time limit in section 121. Finally, on section 12A dealing with the question of through or under, my friend Mr Einfeld’s submission is somewhat inconsistent, as we would respectfully submit, with the tenor of his other submissions and with the authorities, in the case of the Court of Appeal, on the system of title by registration.

There is a distinct difference in the language in section 12A(3). The term used is “through or under” and “through or under” has a different meaning, we submitted and do submit, from “from or through”. The Court of Appeal effectively said, in the paragraphs 23 and following in the second set of reasons, that “from or through” is conveyancing language which was really what the statute meant when it said “through or under”.

We would respectfully submit that “through or under” recognises the absence of a time limit in section 121 so that a subsequent registered proprietor can bring an application for review in the narrow circumstances that I have identified and, therefore, uses the language that is appropriate as Breskvar v Wall does to a system of title by registration. Each title is a fresh title. It is not through or under the previous title. It is not derivative. The only title that is derivative is the title of someone who stands in the shoes of, such as a trustee in bankruptcy or an executrix or administrator under a transmission application.

Attached to the second respondent’s chronology, we have extracted two forms for the transmission application – the public forms – and the trustee and bankruptcies transmission application to illustrate the point that we are making in our submission. So, we would respectfully submit that Sahab is not claiming under “through or under” in any event even if section 12A otherwise applied and even if it trumped – even if there was a notice and even if it trumped section 121 and 122 and even if the two decisions were seen as one, effectively.

HAYNE J: What would 12A engage in respect of the events of 2008?

MR BURTON: Well, our submission is that it does not.

HAYNE J: And cannot?

MR BURTON: And cannot, yes, your Honour, that is right. Thank you. I think we seem to be – at least the Registrar-General has made no submissions on that issue like he has not on 118. Now, the final of the specific points I may have mentioned before lunch and if I did I apologise. We support and say that it is with respect correct the analysis in relation to section 118 of the word “recovery” in the Court of Appeal reasons in 97 to 103 and the analysis of the procedural history of this matter that is set out in those reasons. That is at appeal book page 298 to 300. In other words, the recovery of the interest is a meaning, not only of something which one once had has been taken away, but a meaning to which one has an entitlement which we would respectfully submit fits the situation where the removal of the right is subject inherently to the statutory power of review and I will not repeat myself on that.

Now, in discussion with my friends, at least my friend Mr Einfeld before, I understand that I have some time to scamper through the ordered set of notes before his reply. So I will be probably going for about another 20 minutes and that allows my friend, Mr Walsh, 15 minutes if he needs it for reply. I have already taken your Honours to the facts that we say make this a reviewable decision on both grounds. I touched on before lunch the way that Dobbie’s reasoning was not restricted. In the time I do not propose to take your Honours through the analysis in the appendix to Dobbie and in Justice Priestley’s very learned reasons. Not all the page references were given in our written submissions to that analysis. If I could simply read those on to the record that may be of assistance to supplement the ones that are in - - -

HAYNE J: What are we supplementing in the written submissions?

MR BURTON: In note 9 in the written submissions, note 9 in paragraph 12. It contains many of them but not the entirety. This has an historical and textual focus, whereas the ones in note 9 at the moment really encapsulate the conclusion. Justice Kirby at 630 letter C, which is there, referred to the “primary dictionary definition” as “colourless”. The general legislative purpose was to protect easements at 630E, which is also there. He referred to the primary colourless meaning in other jurisdictions at 630G to 631B, to preserving the value of omitted rights at 630C to D.

At 632E he did not distinguish between advertent and inadvertent error in a section where the exception focused on the status, as did the operative provisions in the paramount section anyway. It focuses on the status of the register. Justice Priestley at 645D said “Section 42 was a central section” on paramount title. 645G the interest was the same, even if it was not notified.

At 649B to C his Honour pointed to how there had been a substantial uniformity not only between jurisdictions, but within the time line because basically the New South Wales, the Victorian and at least up until about 1900 and I think to a large degree still the same and the New South Welsh provisions all derived from Torrens’ original drafting, which was then revised by lawyers in the 1858 version of the Act. It was first passed in 1857. It was then revised in the standard wording, omitted or mis-described easements, as occurred in the South Australian, Victorian and New South Welsh legislation substantively since then.

His Honour then referred at 651E, having done that textural analysis, and 652A to D, to what was taken as obvious by the commissioners who investigated a system of title by registration that you could not destroy easements. Some of the language here relates of course to physical inspection and the old system easements. It is not exclusive to those. It deals with other reasons that would not be exclusive to those such as documents being in the possession of third parties and the importance of the easements that are omitted, the valuable property right.

Then their Honours point to how Gehl could be distinguished and eventually overrule the reasoning in Gehl at references that we have already given your Honours as not conceptually viable in relation to easements and the language again is general, in our respectful submission. There is no pre-Act distinction at what Justice Priestley says at 646D, 647D or at 656C.

KIEFEL J: Can I interrupt you at this point to ask is it in Dobbie’s Case that in relation to the meaning of omission the expression “left out” was equated with not there?

MR BURTON: Yes.

KIEFEL J: Where does that appear? Do not worry if you - - -

MR BURTON: It is in the page references in note 9. I just need to find the specific one.

KIEFEL J: Do not worry if it is not immediately to hand. I can find it.

MR BURTON: If I can I will come back, if that is convenient, thank you. I have already taken your Honours to the distinction in Berowra Waters that Justice Needham made in the outcome of that case between an error made by a third party outside of the Registrar-General’s office and left open errors within the Registrar-General’s office.

KIEFEL J: The reference to “left out” or “not there” appears at page 630 between lines B and C.

MR BURTON: Thank you.

KIEFEL J: But they cannot really be equated, can they? “Not there” is the conclusion after something had been left out. “Left out” is the action or more correctly the lack of action that results in something not being there so you cannot really say “not there” is an omission, it is the result of the omission.

MR BURTON: Yes, that is correct, your Honour, although I think in the dictionary definitions that we have given a reference to in note 12, the sense of “not there” is part of the ordinary meaning. Certainly, “to leave out” is, and the act of omitting, but it also refers to the state of being omitted, which is not there. We are dealing with a section that deals with state, or status, as opposed to activity, although it is the outcome of an activity. I accept your Honour’s point.

HAYNE J: You would no doubt accept also Judge Learned Hand’s dictum about making a fortress out of the dictionary, and the perils thereof.

MR BURTON: Of course, but the Court of Appeal simply did not rely on a dictionary. They said this was the ordinary meaning. It is the meaning from the text. Justice Priestley analysed the structure of the Act and the provisions, and then went through the history as well, and went through the case law, which was consistent with – although it is not our facts, but it was consistent with that dictionary definition. So it appears to be a buttressed conclusion rather than a fortress of cards, or words.

The other thing that is important from that is that “not left out” is something which encompasses, we would respectfully submit, what has been done here. It encompasses an act of removal. It is not simply when someone has forgotten to put it in. It is not simply inadvertent, it is advertent as well. You leave something out.

If I could then – I have already made the point about there is no subsequent intervening interest here. In the further written submissions, we have given your Honours the Woodman article. I have now given you the Woodman and Nettle extract. The most important case there which illustrates the point is Leros, and again, we have set that out in the further written submissions and given your Honours a page reference to it.

The other case that illustrates the matter quite neatly in about the same period, slightly earlier, is Parramore v Duggan. That is at [1995] HCA 21; 183 CLR 633. It is item 10 on our list of authorities, if I can just take your Honours to that.

HAYNE J: What is the proposition we are going to get out of Parramore v Duggan?

MR BURTON: That there is a duty to correct - - -

HAYNE J: Mr Burton, the transcript writers are going to have their problems anyway. Your voice is very soft. If you are off stage left, it is beyond them.

MR BURTON: Yes, I am sorry, your Honour.

HAYNE J: So what are we getting out of Parramore v Duggan?

MR BURTON: The proposition we are getting out of Parramore v Duggan is that when the Registrar-General is joined, it is appropriate to exercise the correcting power, and Justice McHugh says that is the appropriate thing. In that case, I will not take your Honours to it.

In our further written submissions, we have set out why there is no offence to immediate indefeasibility via the propositions I have been putting to your Honours. In effect, there are two claims here. There is the claim for review and the clear decision that is being reviewed, or decisions, which should not be affected by section 118 in any event. But as against Castle, as the Court of Appeal found, this is a clear case of possession or recovery, and therefore the rights are of review being inbuilt into, as I have explained and submitted previously, are not barred by section 118.

That is an additional reason to the one that the Court of Appeal gave, which is that you really have to read the Act as a whole. Section 138 and section 42 in regard to easements would be neutered or rendered otiose. There would be no means of recovery if section 118 was given my friend’s meaning.

HAYNE J: If Sahab were to sell its land, would the purchaser re-litigate all this against Castle? It seems to me it is an inevitable consequence of your argument that the answer is yes.

MR BURTON: If the matter was re-litigated there would be other means of preventing that matter being litigated such as the doctrine of privy, one would have thought, and the estoppel - cause of action estoppel. I do not have the authority here, but a similar situation happened in the Court of Appeal in the early 2000s involving two parties named Page and McKenzie - - -

HAYNE J: But the successor, you say, would be a privy and barred by a res judicata and your client is unaffected by the conduct of the - - -

MR BURTON: No, because the section 12 notice is a distinct matter, that is a matter of law.

HAYNE J: Yes, I understand the position to which your submissions take us.

MR BURTON: In Page v McKensey, a partner who had not been a party to the original action was seen as privy. Indeed, a former partner, so someone who was - - -

HAYNE J: I can cope readily with that.

MR BURTON: If I could mention that Justice Wallace is very strong on section 42 as the paramount provision, the then President of the Court of Appeal in James at pages 368 to 369, which is an additional reference, we would submit, at appellate authority against my friend’s submission on 118. If I could turn briefly to section 138, the Court of Appeal found at paragraphs 108 and following, commencing at page 301 of the appeal book and concluding at paragraph 130 on page 310 - although they expressed a preference for saying that section 138(3) was not a stand-alone power, that could be left undecided having set out our submissions to that effect because we qualified under section 138(1), the recovery on possession.

We respectfully repeat the submissions based on Mogo that have been summarised in the Court of Appeal reasons and they are effectively that if one is determining rights or interests one does not need to have a particular provision of the Act under which those rights or interests are determined so as to attract the power under section 138(3). In Mogo there was no particular section, in our respectful submission, of the Real Property Act which was invoked.

Justice Giles, supported by the other members of the Court of Appeal at paragraphs 28 and 29 of the reasons, said that section 138(3) was available as the form of relief to recognise that there was a need to correct the register and following a declaration that the council was still entitled to the land. We have sought the same relief here, a declaration and an order to reinstate the register and I have set that out in more detail in our written submissions. The references that we would respectfully submit support us – at least tangentially – that in the Bonaccorso decision at paragraphs 94 to 97 where the Court of Appeal - - -

HAYNE J: Let me just understand the proposition that this is supporting. The proposition is, is it, that if Sahab can show, apart from the existence of a personal equity and apart from a right sourced in the Act, that it what - has the right to the easement?

MR BURTON: That it is entitled to a declaration that this easement was wrongly extinguished.

HAYNE J: Yes.

MR BURTON: Just as the council in Mogo was entitled to a declaration that it was the holder in fee simple that the land was not Crown land. Of course, the Court of Appeal said they did not need to go so far and left the matter open. They expressed a preference against that view. We respectfully repeat the submission and say that Mogo is in support. The Bonaccorso decision at paragraphs 94 to 97 indicates and gives the reference to the authority, as we have in our written submissions, where section 138 has been used in novel ways – if one can put it in those terms – expanded ways by first instance judges in New South Wales and South Australia, not all of which are dependent, we would respectfully submit, on the finding of a particular statutory entitlement under the Act.

Finally, if I could deal with section 136. Again, this is set out in paragraphs 30 to 34 of our written submissions. But, if I could just take your Honours to the two crucial matters on which the Court of Appeal disagreed with us, leaving aside the question of satisfaction which we have already dealt with. The first was that there was a wrongful obtaining. In Scallan (1988) 12 NSWLR 514, Justice Young held, correctly, with respect, that section 136 could not apply to that case because the certificate of title already showed the mortgage that the Registrar-General was seeking to reinstate. Our situation is not that situation. Our situation is that the certificate of title does need to be corrected. At 520D, his Honour, having discussed Justice Needham’s decision in Berowra Waters, said:

s 136, . . . seems restricted to cases where documents are sought by the Registrar-General from persons who should not be in possession of them.”

I do not consider that this statement would necessarily preclude relief in a case where a mortgage had been expunged. A person should not be in possession of a document if a wrongful registration has occurred unless, of course, that registration has conferred on them an indefeasible title.

Again, we are not at that point. His Honour recognises the effect of section 45 if there is a transfer or purchase.

It is also implicit in s 136 that not only can the Registrar get in the duplicate certificate of title, but, having got it in, he can make the same correction to it as he has made on the folio of the register.

We respectfully submit that his Honour correctly recognised there that if one qualifies for the operation of section 136 there is an implicit power under section 136, independent of section 12, or any other provision, to make the correction to the register that is being the subject of the correction to the certificate of title called in, so that the two are harmonised.

The Court of Appeal disagreed with that and said the converse, which is why the submission we have put in was not correct. We respectfully submit that Scallan is authority for that proposition. Justice Young goes on:

Further in the situation where the Registrar has been induced to register an instrument by a false certificate or statement, it is clear that the Registrar-General can be given an order to obtain the certificate so that he can restore the former state of the title -

The case cited - District Land Registrar v Thompson - we would respectfully submit is analogous to the situation we are dealing with and supports the view of the implicit power. Of course, the Court of Appeal used section 136 in its more restricted form having found an error under section 12(1)(d) and a gateway under section 42 which they said was required contrary to our submissions on the notice of contention. They then used section 136 to make an order to call in the certificate of title. Our submission goes beyond that to say it is a stand-alone power which is implicit if section 136 qualifies.

The final matter on 136, we respectfully submit that there is an error and so 136(1)(a) and (b) are attracted. Section 136(1)(b) and (c), I apologise, (c) says that the certificate of title has been wrongfully obtained. Justice Young deals with this matter in Scallan at pages 518 to 520 and we would respectfully - - -

HAYNE J: There is middle ground between fraud and something else.

MR BURTON: Yes, where it is not wrong, it is not fraud but it is not right conduct and it must be intentional. Scallan was dealing with an incorrect statutory declaration. In Scallan there was a statutory declaration that there had never been probate taken out which turned out to be wrong, the executor turned up and consented to the orders after the judge directed a search be made. But this was a situation, we respectfully submit, which is analogous to ours because we have an incorrect statutory declaration.

On its face, it is an intentional act making it. We have not made the submission that it was fraudulent or that it was in any way conduct such as intentionally false but it was intentional and it was false in the sense that it was an incorrect - contained incorrect statements. That is sufficient, we would say, by analogy with what happened in Scallan where his Honour said - - -

CRENNAN J: The Court of Appeal described it as arguably correct but incorrect as a matter of law.

MR BURTON: Yes, we would respectfully submit that the Court of Appeal went too far with that because the Court of Appeal was dealing with the argument as it eventually emerged, not on the face of the statutory declaration. The face of the statutory declaration as I took your Honour through earlier was hopeless. It had the wrong tenement and the wrong expiry date. It dealt with the expiry of the dominant tenement rather than life from the servient tenement. That was clear on the face of the document. We would respectfully submit that there is the analogy there because the statement was not said to be fraudulent in Scallan, it was simply wrong but it was an intentional act and his Honour said that was wrong.

CRENNAN J: It was described by his Honour as untrue.

MR BURTON: Yes, but this statement is also untrue in that sense.

BELL J: Untrue partly because of errors of the character to which you have drawn our description in the same sense as “untrue” is used in Scallan.

MR BURTON: But it is factually untrue.

BELL J: Yes.

MR BURTON: Not just untrue as a matter of interpretation because it was factually untrue that it was the servient tenement and that would mislead – if that had been given to the Howards – it was not, as far as we are aware. We do not know. It would, on its face, seem to be a completely untrue factual statement.

BELL J: Yes.

MR BURTON: There are other matters in our written submissions which I did not wish to elaborate beyond what appears in the written submissions on section 122(4)(b) as a stand-alone power, what is said there. There are just two further matters. When I was giving your Honours the reference to add to note 17, I said for the FNCB v Crest Case - I should have said 629 to 630 and I should have pointed out to your Honours that there is a reference at the top of page 103 in the Woodman article when I was dealing with the question of enlargement of interest that one cannot – where the learned professor says one effectively cannot confer a benefit on oneself by enlarging the interest which we would respectfully submit has certain echoes in this case. Unless there is anything I can assist your Honours with?

HAYNE J: Thank you, Mr Burton. Just before I call on you, Mr Einfeld, do you assert any right to be heard again, Mr Walsh?

MR WALSH: Not the right.

HAYNE J: Well, that was a short conversation, Mr Walsh.

MR WALSH: No, given the status of my client in these proceedings not the right, but as the proceedings have been conducted - - -

HAYNE J: If we are going to have any of this recorded, Mr Walsh, you have to go to the lectern otherwise the transcript writers will deal with me.

MR WALSH: Yes, your Honour. I would not submit I have a right to reply but as the case has progressed your Honour will recall when directions were made at the special leave application it was thought appropriate that the Registrar-General adopt the position in the batting order with the appellant and put submissions in with the appellant and reply at that time. That was a matter of convenience, not right. If it is of assistance to the Court then I would be happy to reply, but I do not assert I have a right to.

HAYNE J: It is a question, Mr Walsh, of whether you have some things to tell us that are useful. What are the subjects you would wish to cover in reply that would not be covered by Mr Einfeld’s submissions?

MR WALSH: I cannot imagine that Mr Einfeld will leave anything out at all. There may be matters that I might wish to express differently but I am sure he will cover all of the subject matter.

HAYNE J: Very well. Yes, Mr Einfeld.

MR EINFELD: May it please your Honours. It was firstly submitted by Mr Burton that the Court ought consider the subject sections, the ones that have been under primary examination, in the context of the Act, a proposition with which needless to say we do not disagree, but focus was initially put upon the wide scope of the merits review available under section 122.

May we just point out to your Honours two matters about that: firstly, that section 122 of the Act does not provide relief of a kind commonly found in merits review provisions. It is narrower in the sense that in 122(4), which prescribes the nature of relief that might be given, paragraph (b) does not as often happens in review legislation provide for a right for the court to make such orders as it thinks fit or something of the kind. Rather, the relief is circumscribed by confining the court to orders that the Registrar-General take such action as he may, assuming he considers appropriate, otherwise be able to take. So it is slightly narrower than has been portrayed.

Secondly, it was submitted that the paramountcy of the register and title in some fashion is preserved or promoted even - it was suggested - by the fact that the Supreme Court has a discretion which one could expect would be reasonably exercised.

In our submission, it is a novel proposition, indeed, an odd proposition, with respect, that the certainty of the register should depend upon the exercise of the discretion of the Court. In our submission, the circumscription of the relief in section 122 does not suggest that that is an appropriate outcome.

Your Honours, our learned friend has submitted as an underlying theme, as I think it was described by Justice Bell, or one of your Honours, that Sahab has always had the right to the easement and what were said to be rights of review. For reasons given in-chief, we do not repeat, the easement was statutorily extinguished upon its expungement from the register and it is not possible, in our submission, to make good the proposition that Sahab has always had rights of review or other rights appurtenant to that which ceased to exist in 2001.

Reliance has been placed upon section 45 of the Act in support of the proposition apparently that Sahab has a right of review which would not be available against a new purchaser of Castle’s land, the servient tenement, in other words, that rights will evaporate upon the transfer of property or upon the registration of an incoming proprietor.

It is difficult to see consistently with that proposition how it is that Sahab might be able to maintain conversely at the same time that a new purchaser such as it has, notwithstanding the provisions of section 45, been able to exercise rights of review, for example, in respect of decisions made in relation to the title of the previous registered proprietor of the land, especially because such title was extinguished upon the issue of the new certificate of title.

Your Honours, another theme which has underlain Mr Burton’s submissions is a suggestion that the concepts or precepts of paramountcy have, as it were, inbuilt into them or are, in any event, subject to the exceptions and the rights of review provided for by the Act. So much may be excepted but that is not to deny, in our submission, that when one comes to construe the provisions of the Act providing for the exceptions, or the rights of review, or rights of correction – all of which will impinge to some degree or other upon the certainty of the title – that those provisions providing such opportunity ought be afforded a narrow rather than a broad construction.

In passing, shortly before the adjournment – and this is a very minor matter but we wish to correct the factual assertion – it was suggested that the upper storey of the subject land of Sahab – that is the former dominant tenement – had become landlocked. Nothing turns on the appeal on that, but it is not factually correct. At page 32 of the appeal book is evidence before the primary judge, and obviously before the Court of Appeal and this Court, that the upper floor of the premises, formerly accessible by the easement, are readily accessible from the front of the subject premises – that is from the street-front.

As it happens, the lease and I do not think there is any contest about this, the lease of the lower floor which, as a practical matter may have prevented access through those premises to the upper floor, has long since expired but that is by the way. Reliance was made upon James as a case of deliberate removal. It, in fact, was not. James was not a case of deliberate removal. James was a case of an “accidental clerical error” as the Court of Appeal so described it in paragraph 190 at page 331 and so it was.

It was submitted to your Honours that – perhaps better expressed, rhetorically asked that if we were correct on the question of 118 preventing proceedings for recovery of land, how was relief available in Dobbie v Davidson and how was the easement retrieved? There is a short and important answer to that proposition.

The land, as we had earlier pointed out in Dobbie v Davidson had not been brought under the Act at the time the easement was on the title. Under the general law, it still existed, it always existed because it had not been created under the Act and not, therefore, been extinguished under the Act so that although this is not the subject of express consideration, the fact is the easement existed, was enforceable at the suit of the party in whose - the owner of the dominant tenement whose easement or the availability of whose easement dropped off the title. It was not the case of anything being recovered. It still existed. It was a matter of simply having – it entered onto the register when it had not previously been.

BELL J: What is your submission respecting the position of a person affected under 42(1)(a1) in relation to an easement falling into, as it were, the second category after that time, that is, after the enactment of the RPA, under it or any other Act or Commonwealth Act?

MR EINFELD: In terms of the right to recover the easement, your Honour?

BELL J: In terms of your 118 point.

MR EINFELD: Yes.

BELL J: Are they without remedy?

MR EINFELD: If the omission has resulted from a slip, there is no difficulty. If, on the other hand, it was a deliberate – perhaps that is not quite right. No remedy is available for recovery of an easement which has been omitted, and the remedy is against the fund in the same way as a person deprived of their interest is by fraud or of the like.

The short answer to your Honour’s question is there is no recovery because of the provisions of section 118. That may be an anomalous result because of the failure of the non-co-extensiveness of the exceptions in 118 with those in 42. Anomalous it may be, but unless, as we said in-chief, one is to write into the provisions of 118 an exception which is not there, that is the inevitable result.

HAYNE J: Section 42(1)(a1) would be engaged in a case where after land was brought under the Act an easement was created by a transfer.

MR EINFELD: Yes.

HAYNE J: The transfer of registered proprietor was registered but for whatever administrative reason the easement created in that dealing did not find its way to notation on the register and on the certificates that issue. There would then be an omission of an easement created under the Act in the fashion contemplated by 47.

MR EINFELD: Correct. That is so.

KIEFEL J: Was that the position in the James Case?

MR EINFELD: In James the easement was recorded on the certificate of title when a new certificate of title was issued but dropped off inadvertently - - -

KIEFEL J: When there was a transfer.

MR EINFELD: When there was a transfer. There is no suggestion in James that the omission of the easement as it dropped off from one title to the next was deliberately omitted as a result.

KIEFEL J: It was an administrative error and the Registrar directed that the certificate of title be brought in so that it could be corrected, or the transfer.

MR EINFELD: Yes, the transfer be brought in. That actually points up one of the matters I was about to come to and that is the distinction between a provision such as 136 and a provision such as 12(1)(d), whereas under 12(1)(d) the Registrar-General has in an appropriate case the power to correct omissions and errors if omissions and errors there be.

Section 136 only applies not for the purpose of correcting the register at all, whatever be the debate about wrongfully obtaining which we do not need to enter into, but 136 only applies on its terms where there has been a certificate of title where the Registrar-General firstly is satisfied there has been an issue in error or a mis-description and a recording has been erroneously made in which case the Registrar-General may by notice in writing call in the certificate of title in order to make it accord with the register.

It assumes that the register is otherwise corrected and permits the Registrar-General to call in a certificate of title in order to bring it into accord with the register. It is not a substantive provision as has been so held. It is not a substantive provision which permits unconstrained correction of the register, itself. Your Honours, may I pass, then to the - - -

HAYNE J: The remedial provisions, as a general proposition, are provisions directed to ensuring the conformity of the register with the intended result of the dealings. So that if there is a dealing which creates an easement and the easement is not registered, it can be put on. If there is a transfer where the land is – or there is a certificate issued with the wrong boundaries recorded – it can be fixed up. But you begin with the substantive provisions of the Act not, I think, with the remedial provisions.

MR EINFELD: We would submit, that the remedial provisions your Honour described are there to serve the primary or paramount provisions, serve the achievement of the objectives identified by reference to the substantive provisions.

Your Honours were taken to Justice Needham’s decision in Berowra, but may we direct your Honour’s attention to the passage which followed that to which your Honours were taken because at page 403 of State Bank of New South Wales v Berowra Waters Holdings Pty Limited (1986) 4 NSWLR 398, but you were taken to the passages at 402 substantively. But at 403 is his Honour’s consideration of the reach of 12(1)(d). At C on page 403 at about point 3 on the page:

It is necessary, therefore, to consider the powers of the Registrar-General.

HAYNE J: We can all read it, Mr Einfeld.

MR EINFELD: I am sorry.

HAYNE J: What is it you want us to get out of it?

MR EINFELD: His Honour’s treatment of 12(1)(d) was that he adopts the reasoning in Frazer v Walker and it was no more than a slip provision, and proceeded further to his description that at about point 6 on the page his Honour preferred the view that:

12(1)(d) as being restricted to departmental errors and omissions –

No support is to be found in Berowra for the suggestion that 12(1)(d) would extend to substantive corrections of the register. Your Honours, reference was also made to the decision in Re Jobson and likewise with Re Jobson it involved the registration of a new proprietor because a mistake had been made in the registry by the notation of a caveat which had actually lapsed when, in fact, it had not. On the face of it Re Jobson is unhelpful to our submissions, but our response to Re Jobson is that in the same way that this Court in Breskvar v Wall held that the decision in Caldwell v Rural Bank on similar facts had been wrongly decided, so we submit was Re Jobson. Justice Roper for one in Re Jobson [1950] NSWStRp 42; (1950) 51 SR (NSW) 76 expressly suggested that 12(1)(d) was a means of correcting an error of the kind there in question.

If it be thought that that is authority for the proposition that a deliberate error may be rectified under 12(1)(d), in our submission, in a case in Caldwell which is referred to in the submissions of both the first respondent and ourselves, where Justice Roper sitting alone had held that an invalid resumption was enough to deprive the minister, the relevant minister of an entitlement to be registered as he had been, and that that was correctable under 12(1)(d), this Court held in Breskvar ought not be followed and was not good law and consonant with that, we would submit, the same may be said of Re Jobson.

The third last matter we wish to address are our friend’s submissions with respect to the section 12A notice as it related to the 2008 request by Sahab for the return of the easement. Your Honour the presiding judge, with respect, correctly observed that the section had no place to play in that procedure, but of it we would respectfully invoke the observations of the primary judge recorded in the appeal book at page 205, paragraph 97, in which his Honour expressed the view about the 2008 request that it could not stand upon any better ground than did the 2001 decision and ought be properly regarded as merely an attempt to reopen the 2001 decision. So that the rights of Sahab simply by making a request after it had acquired a fresh title to the land could be in no better position than could the Howards.

Penultimately, your Honours, it was said that the decision of the Registrar-General was sufficiently unreasonable to warrant Wednesbury unreasonableness type relief, to which we merely respond that the fact that the statutory declaration misstated – misdescribed the relevant title to which the length or continuance of existence of the easement might be related stands as no evidence that the Registrar-General did, having received the request, duly investigate the title and the easement and come to a view for himself, rightly or wrongly, that it was appropriate that the easement be removed.

As earlier discussed in-chief, the fact that the process available under 32(6) was apparently followed in the absence of any evidence that relevant matters were not considered or irrelevant matters were in our submission provides no evidence for a submission of Wednesbury-type unreasonableness.

The last matter we would mention before you resume was something I meant to mention when I first rose and that was that for the hopeful assistance of the Court we have provided this morning the requisite number of copies of materials which contain a volume of extracts of interstate and territory comparative provisions to those which have been the subject of primary discussion today. We do not wish to go to it, just to inform your Honours that it exists, lest it be of use hereafter. If the Court please.

HAYNE J: Thank you, Mr Einfeld.

MR BURTON: I am sorry, your Honour. Could I just indicate that attached to our chronology was a similar bundle of comparative material?

HAYNE J: Thank you. The Court will consider its decision in this matter and will adjourn until 10.15 am tomorrow morning.

AT 3.56 PM THE MATTER WAS ADJOURNED