ALIRAJA -v- SUSAN DUKES, COMMISSIONER OF TITLES [2025] WASCA 103 (4 July 2025)

1. Ms Aliraja applied for judicial review of the Commissioner's decision in this court. As a preliminary matter, there is no dispute that this is a proper matter for judicial review. Judicial review is available because Ms Aliraja is entitled to have her claim assessed by the Commissioner in accordance with law. That is so notwithstanding that it might be said that Ms Aliraja's most appropriate remedy once her claim was refused was to commence an action in the court against the Commissioner to pursue her claim. However, Ms Aliraja's contention is that the Commissioner did not determine her claim on a proper construction of s 196. That point was made in a similar circumstance, albeit in a different statutory context by Malcom CJ (with whom the other members of the court agreed) in Re Real Estate and Business Agents Supervisory Board; Ex parte Cohen.[28]
2. The learned primary judge dismissed the application.[29]
3. After setting out the competing arguments of the parties, the learned primary judge concluded that the proper construction of s 196(1) of the TLA is that the State is not liable for compensation for any loss, damage or deprivation where a breach of trust is a cause, being a not insignificant cause, of that loss, damage or deprivation. The breach of trust does not have to be the sole cause of that loss, damage or deprivation.[30] Her Honour concluded that this construction of s 196(1) of the TLA is supported by:
   1. The natural and ordinary meaning of the words of the section.
   2. The context within which the section appears in the TLA as a whole.
   3. The object and purpose of the TLA as determined from its legislative history.
4. The learned primary judge noted that the Commissioner had not identified which particular event had occasioned the loss and whether it was the initial transfer, the granting of the mortgage, or an overall fraudulent scheme. Her Honour found that it was not necessary for the Commissioner to have done so. That was because the granting of the mortgage was at least one not insignificant cause of Ms Aliraja's loss. And although the grant of the mortgage may well have been fraudulent, Mr Seedat had granted the mortgage as a trustee under the Trust Agreement and his conduct was thereby a breach of trust. Even accepting that the transfer of the Property was fraudulent, Mr Seedat granted the mortgage as a trustee and was thereby in breach of trust. Since a breach of trust was a not insignificant cause of Ms Aliraja's loss, it followed that Ms Aliraja's loss was occasioned by a breach of trust within the meaning of s 196 of the TLA.[31] The Commissioner was therefore correct to dismiss the claim no matter what had occurred in terms of the particulars of the fraud.
5. In the course of her Honour's reasons, the learned primary judge gave careful consideration to two decisions; Parker v Registrar General [1977] 1 NSWLR 22 (Parker) and Lincu v Registrar-General [2019] NSWSC 568 (Lincu). Those decisions appear to have reached different conclusions regarding the scope of the exemption in the NSW statutory equivalent of s 196 of the TLA. The learned primary judge expressly preferred and relied upon the decision in Lincu, which her Honour found more persuasive in determining the proper construction of s 196.[32] Those decisions will be considered below in the context of the grounds of appeal.

1. As Kunc J observed,[55] Baalman's commentary reveals similar policy concerns as those propounded in favour of the trust exemption in the original 1861 commission report in South Australia. The inclusion of the trust exemption reflected the policy that the regime did not provide a further protection for breaches of trust, and that trusts were already afforded limited but sufficient protections.
2. Kunc J explained that the amendments to the RPA (NSW) arose out of a report of the Law Reform Commission of NSW published in 1996. The report was critical of the 'ungainly drafting' of the statutory provisions that are mirrored in the TLA, describing them as a 'tangled skein' and 'in need of drastic revision'.[56] The amendments in NSW were introduced as a result of the report and were contained in the Real Property Amendment (Compensation) Act 2000 (NSW).
3. Kunc J described the amendments as having 'completely rewritten' the relevant statutory provisions with the adoption of a 'new structure'.[57] In Challenger Managed Investments Ltd v Direct Money Corporation Pty Ltd [2003] NSWSC 1072; (2003) 59 NSWLR 452 (Challenger), Bryson J described the amendments as having been 'completely recast',[58] and amounting to a 'wide ranging reform' and 'a new beginning'.[59]
4. I agree with those characterisations. For that reason, I respectfully consider, contrary to the approach taken by the primary judge, that it is not possible to construe s 196 by reference to the construction of the statutory provision considered in Lincu.
5. The observations in Lincu are nevertheless helpful in understanding the history and objects of the provisions, as they trace the development of the legislation, in the form in which it remains in the TLA. More recently, the reformed NSW provisions were considered by the Court of Appeal in Ausbao (286 Sussex Street) Pty Ltd v Registrar General NSW [2023] NSWCA 18 (Ausbao), which adopted the approach in Challenger and other first-instance decisions. Although dealing with the reformed legislation and different issues, those cases include important observations regarding the Torrens system of title by registration, its inherent pitfalls, and the necessity for legislative remedies to address those consequences.

(2003) 59 NSWLR 452

(1999) 21 WAR 158

(2014) 250 CLR 664

(2012) 248 CLR 378

(1998) 194 CLR 355

(2017) 262 CLR 593

(1991) 171 CLR 506

(2013) 250 CLR 375

(2000) 101 FCR 11

(2004) 139 FCR 147