Imago Holdings Pty Ltd v City of Fremantle & Ors [2021] HCATrans 94 (20 May 2021)

Last Updated: 21 May 2021

[2021] HCATrans 094

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P24 of 2020

B e t w e e n -

IMAGO HOLDINGS PTY LTD

Applicant

and

CITY OF FREMANTLE

First Respondent

MINISTER FOR LANDS

Second Respondent

COMMISSIONER OF TITLES

Third Respondent

Application for special leave to appeal

GAGELER J
EDELMAN J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 20 MAY 2021, AT 11.41 AM

Copyright in the High Court of Australia
MR A.L. TOKLEY, QC: May it please the Court, I appear with MR H.M. HEUZENROEDER for the applicant. (instructed by Cornerstone Legal)

MR M.J. McCUSKER, QC: May it please the Court, I appear with my learned friend, MR D.W. McLEOD, for the first respondent. (instructed by McLeods Barristers & Solicitors)

MR A.J. SEFTON, SC: May it please the Court, I appear together with my learned friend, MS F.B. SEAWARD, on behalf of the second respondent. (instructed by State Solicitor’s Office (WA))

GAGELER J: Thank you. I note that there is a submitting appearance for the third respondent. Mr Tokley.

MR TOKLEY: May it please the Court. We require an extension of time. I understand that is not opposed by the second and third respondents, but I do not know the attitude of the first respondent.

GAGELER J: Is that opposed, Mr McCusker?

MR McCUSKER: It is opposed in our response, your Honour, but we do not press the point.

GAGELER J: Yes, thank you. You have that extension.

MR TOKLEY: Thank you, your Honours. Your Honours know that in the court below there was a finding of the trial judge that the applicant was a prudent purchaser and relied upon the register when purchasing. The finding is – I will not take your Honours to the application book – at paragraph 90, where his Honour the trial judge said:

Imago made proper and prudent enquiries before its purchase in 1994 of the three lots. The legal advice it received at the time was that there was nothing registered on these titles that subjected the area at the front of the shopping centre to it be held by anyone other than the registered proprietor. Imago settled on its acquisition of the three lots in January 1994 as a bona fide purchaser for value without notice of the 1962 revesting interest in the Crown on that basis -

It was common ground at trial that for 57 years the first respondent had not complied with its obligations to inform the third respondent of the change of boundaries so the register could be rectified. This case ‑ and as your Honours heard from Mr Dunning in the previous case – raises issues of public importance concerning the integrity of the Torrens register book in Western Australia such that in the court below the Commissioner of Titles supported my client’s position and the argument put by them and by us was not really addressed.

GAGELER J: Well, you have a new argument, do you not?

MR TOKLEY: We have a refinement, yes. In some ways it is a new argument but it is an argument based upon the statute. I will take your Honours to the relevant parts in a moment. The importance arises from the potential for a contest between the integrity of the register book and the public interest in land dedicated to public rights of way and the legal technique to bring about a harmonious resolution of that contest. There is also affidavit evidence before your Honours that raises the prospect of other parcels of land where the same issues are likely to arise.

Your Honours, could I go to the point. In my respectful submission, in other words, the matter does raise a point of public importance sufficient for a grant of special leave to appeal. The next issue, really, is the question of the correctness of the decision of the court below.

EDELMAN J: Are we dealing with provisions that are unique to Western Australia like 286 or are there the same provisions in other States?

MR TOKLEY: I cannot answer your Honour’s question directly. What I can say, though, is that the relevant provision in section 68 of the Transfer of Land Act has its analogues in the other States and I can also say that whether or not section 286(1) is unique to Western Australia, in my respectful submission, would not matter. I say that for this reason.

The substance, as I understand it, of the Court of Appeal’s decision was that the land in question was not under the operation of the Transfer of Land Act. In my respectful submission, that is not consistent with the wording of the Transfer of Land Act, in particular, sections 63 and 64 of the Transfer of Land Act which do not use – sorry, section 63 does not use the words “under the operation of this Act”. It uses - and I will take your Honours to it in a moment – different words.

Section 64 makes it clear that when a certificate of title is issued, in effect, the land is back under the operation of the Land Act. So, our point is that in this particular case, the issuance of a fresh certificate of title to our client resulted in a fresh Crown grant to our client of the land that is encapsulated in the certificate of title.

GAGELER J: That is really your point, is it not?

MR TOKLEY: That is the point, your Honour.

GAGELER J: You may sort of say to refine it, but it is the new clearly articulated point that you say warrants the grant of special leave to appeal.

MR TOKLEY: Yes, your Honour.

GAGELER J: All right.

MR TOKLEY: If I could perhaps make good what I was saying about section – if your Honours please go to application book – now, your Honours, there are unfortunately a number of different pages. I am using the page numbers in the top of the book.

GAGELER J: Top right‑hand corner is preferable.

MR TOKLEY: Top right‑hand or top left‑hand, yes.

GAGELER J: What page is it?

MR TOKLEY: If your Honours could please go, first of all, to application book top left‑hand page 140 and your Honours will see section 63 which is a familiar section and has its analogues in other States, but it says in relevant part about halfway through that paragraph:

and every certificate of title issued under any of the provisions herein contained shall be received in all courts of law as evidence of the particulars therein set forth and of the entry thereof in the register book, and shall be conclusive evidence that the person named in such certificate . . . having any estate or interest in or power to appoint or dispose of the land therein described -

Section 63 does not use the words, “under the operation of this Act”. If your Honour will then please go over to the next page, page 141, and to section 64, your Honours will see section 64 where it says:

Whenever any certificate of title or any duplicate thereof either already registered or issued or hereafter to be registered or issued under any of the provisions or otherwise under the operation of this Act shall contain any statement to the effect –

the point being that section 63 does not use the words, “under the operation of this Act” ‑ ‑ ‑

EDELMAN J: But those two provisions existed before 1962.

MR TOKLEY: Correct, your Honour, yes.

EDELMAN J: So before 1962, while section 286 of the 1960 Act was in force, one would have to read those two provisions with section 286 which provided that subject to the provisions of the section:

absolute property in land . . . as a road, street, or highway –

was removed from the operation of the Transfer of Land Act.

MR TOKLEY: Yes, your Honour. So in terms of the reconciliation of the provisions, one would. But the problem then arises when there is, as I say, a fresh certificate of title which embraces the disputed land. You would then have to fall back upon sections 63, 64 and 68.

GAGELER J: So that gives section 286(1) a limited temporal operation, does it?

MR TOKLEY: Yes, your Honour, it does. It does. There is no reason why it should not have such a limited temporal operation, because once the certificate is issued, it then – to use our expression – comes back under the operation of the Act. Section 64 in that regard is particularly telling, because it talks about a certificate of title issued under any of the provisions or otherwise under the operation of the Act. In other words, once the certificate is issued, it is synonymous with the land being back under the operation of the Act.

Now, that is reinforced, in my respectful submission, by the fact that in section 68 there is a specific provision dealing with any public rights of way. So that when one looks at the combination of sections 63, 64 and 68, and one has regard to the authority that we have mentioned in our written submissions, the Freecorn Case, land that is outside of the Torrens system can come back under the operation of the Act by virtue of the issue of a certificate.

There may be other provisions that could be relied upon by those who claim the disputed land, provisions in the Transfer of Land Act, but it does not do any violence – I use that expression – to the operation of section 286(1) of the Local Government Act. In fact the existence of section 364(7), which was the section that it is common ground was not complied with, the existence of that section supports our argument, because it goes to the fact that steps were required to be taken by the local council – and your Honours can find the two relevant sections set out helpfully at application book 57 and 58. But what was to happen was that immediately the land had been revested under subsection (4), section 364:

the council shall cause written notice of the revesting to be served

on the Registrar of Titles, if the land is subject to the provisions of the Transfer of Land Act –

which is the phraseology used in section 64 that I have taken your Honours to:

or on the Registrar of Deeds if the land is not subject to the provisions of that Act;

and the Registrar of Titles or the Registrar of Deeds, as the case may be, shall record the revesting in appropriate manner.

It does not tell you where one goes to find the record of the re‑vesting in appropriate manner, but one assumes that what happens is that the certificate of title then in existence is amended, or alternatively, a fresh certificate of title for the land is then granted or given in the name of the Crown.

So, in my respectful submission, the way in which those sections all work together is the correct and more harmonious reading of the interaction between the two statutes. As your Honour Justice Gageler said, that, in a nutshell, is our argument.

GAGELER J: Now, let me just understand it. The actual issuing of the certificate of title over land which the moment before was not under the operation of the Transfer of Land Act brings the land under the operation of that Act, does it?

MR TOKLEY: Yes, your Honour, and then the remedies ‑ ‑ ‑

GAGELER J: And that is the termination point of the operation of section 286(1) temporally, is it?

EDELMAN J: Even if the issue of the certificate mistakenly includes land that was not previously under the operation of the Act?

MR TOKLEY: Yes. Yes, your Honour, and in circumstances where there is a specific preservation of public rights of way, in section 68, so the land can go back to.....go back, the land is by dint of the Crown grant given to the certificate of the registered proprietor, but the public right of way is preserved because of the specific provision in section 68.

EDELMAN J: Do you accept the point – and I think both counsel accepted in the last application that there is a distinction between title – a proprietor’s title and a public right of way – public liberty?

MR TOKLEY: Yes. Yes, I do, your Honour, because it is well known that it is - the public’s right of way is a surface right, if I may use that expression. My learned junior reminds me that it supports the argument that we made, that the land can come back under the Transfer of Land Act, and the public rights of way are protected by section 68 and the reading together of all those – reading together in that way of the two statutes is, in my respectful submission, more consistent, or is preferable given the nature of the Torrens system, whereby bona fide purchasers of value without notice, we took your Honours to that initial finding, that is our client, again indefeasibility of title subject to those public rights of way.

But it is also, as your Honours know from other authorities in this Court - the creation of the Torrens system was to – the new purchasers were not required to go back through the system in order to investigate their title – it is not a derivative title – it is a fresh title by virtue of registration and a fresh grant.

Hypothetically, your Honours, one could speculate that if section 286(1) was not given the operation that I say it should have, that land might never come back under the operation unless there was a specific intention – subjective, so to speak – on the part of the Crown to re‑grant the land. But that is not the way in which the system works. It is an objective test, that is, the land has been given to me, et cetera – I have those rights.

As well as the Freecorn Case, which I have mentioned – and your Honours will know that is a very early authority. It is fairly brief in its summation but basically the Acting Chief Justice in that case – and it was agreed to by the other two judges – said that land outside of the system – the Torrens system – could be obtained by the issue of a fresh certificate. The Acting Chief Justice referred to section 63, at 68 and 202 – 202 is not relevant to our position here.

GAGELER J: It does not tell us a lot about the operation of section 286, though, does it?

MR TOKLEY: No, your Honour, it does not. Your Honour’s point about the temporal application, I suppose, is – 286 itself does not say how long it is to last for. Your Honours, against us are put various arguments in the first and second respondent’s submissions. But, as I mentioned earlier, we had the support in the Court of Appeal of the third respondent’s position. The arguments put against us do not really explain why it is – they assert, they do not explain – why it is that our argument should not succeed.

As I have mentioned, the argument is supported by the earlier Freecorn Case but also by statements in this Court in Breskvar v Wall. Your Honours will know in Breskvar v Wall, that Chief Justice Barwick said that a person with a certificate of title can obtain land unimpeded, or unhindered, by the fact that the transfer to that person was void at law. So, the fact that there may be some infirmity in the previous title does not affect at all what the new purchaser gets when he buys the land.

There is an attempt to distinguish the Freecorn Case, but the attempt really does not address the question of principle, which is when a person buys land is that land affected by, in this case, the particular legislation. In our view, and for the reasons I have already given, there is no distinction in principle between what occurred here and what occurred in the Freecorn Case. I am not sure if that is the – I have a red light. Is that ‑ ‑ ‑

GAGELER J: It looks red, but it is actually orange, so you have a couple more minutes.

MR TOKLEY: Thank you, your Honours, there is another few minutes to go.

GAGELER J: If you need it.

MR TOKLEY: Thank you, your Honour. Your Honours will know that there was a letter sent which referred to the Vickery decision and to the reference which I think your Honours’ attention was brought to in the earlier matter of Orb Holdings. It is the paragraph from Vickery that is quoted, Vickery’s Case that is quoted by Justice Sofronoff in the Queensland Court of Appeal. When one reads the Vickery decision it is clear that Justice Rich, when he was in the New South Wales court, was addressing only the New South Wales statute and not the statutes more generally. He specifically said at the end of his judgment that:

The point is one upon which the decisions in other Courts do not afford much assistance, because express statutory provision has now been made in relation to public rights in New Zealand, and in all the States except New South Wales and Queensland.

So Vickery does not assist my learned friends. Your Honours, there are some more matters that perhaps could await any reply, but your Honours have the substance of the point we make. May it please the Court.

GAGELER J: Yes, thank you. Mr McCusker and Mr Sefton, we do not need to hear from you.

We are not persuaded that the applicant’s proposed grounds of appeal are sufficiently arguable to warrant the grant of special leave to appeal. The application for special leave is dismissed.

Do you ask for costs?

MR McCUSKER: I do, may it please the Court.

GAGELER J: Yes, the application is dismissed with costs.

AT 12.01 PM THE MATTER WAS CONCLUDED