Boensch v Transport for NSW and Registrar General of New South Wales

Boensch v Transport for NSW and Registrar General of New South Wales - [2023] NSWLEC 82 - NSWLEC 2022 case summary — Zoe

[3]

Background

Mr Boensch is the registered proprietor of Lots 37 and 38 in DP14244, known as 255 Victoria Road, Rydalmere ('Boensch land'), being land over which he acquired an interest as a joint owner on 30 August 1991 and as its sole owner on 12 July 2010. TfNSW is the registered proprietor of land known as Subiaco Creek, which is adjacent to the Boensch land. The common boundary has been an issue of contention between Mr Boensch and TfNSW for some time.
In or around July 1996, Mr Boensch applied to the Registrar General under Pt 14A of the Real Property Act for a boundary determination. On 10 July 1996, the Registrar General determined the boundary as being the former mean high water mark, in accordance with the findings of a ground survey undertaken in 1952 by the Maritime Services Board, the former owner of Subiaco Creek ('1996 boundary determination'). The 1996 boundary determination was notified to Mr Boensch in the following terms: "Re: O 878893 - APPLICATION FOR DETERMINATION OF A TITLE BOUNDARY Further to my letter to you dated 2 February 1996 following the lodgement of an application for the determination of a title boundary under Section 135B, Real Property Act, 1900 by Harrison Friedman & Assocs you are advised as follows: - 1. The boundary has been determined in the position ascertained by ground survey in 1952. 2. the applicant has been advised of this determination. 3. If you are dissatisfied with this determination of the position of the boundary, you may (pursuant to Section 135J Real Property Act, 1900) within 28 days of the receipt of this letter, give notice to the Registrar General to request the Registrar General to refer the matter to the Land and Environment Court for determination by the Court of the position of the boundary. The fee payable on lodgement of such request is $500. If no such request is received within 28 days, the matter will then be finalised in this office. …"
In making the 1996 boundary determination, the Registrar General acknowledged that there had been conflicting evidence as to the boundary's exact location. At the time, and despite having been notified of his appeal rights, Mr Boensch did not seek referral of the 1996 boundary determination to this Court within the 28-day limitation period then provided for under s 135J(3) of the Real Property Act.
On or about 25 June 2021, TfNSW commenced proceedings against Mr Boensch in the Supreme Court of NSW seeking relief in respect of a claim for trespass to Subiaco Creek, alleging that Mr Boensch had placed a number of items (including four shipping containers, a metal shed, and miscellaneous car parts) and erected a retaining wall on land which TfNSW contends it owns ('Supreme Court proceedings'). Mr Boensch filed a cross-claim seeking extensive declaratory relief relating to the position of the common boundary, and claims that TfNSW had neglected its duty to maintain Subiaco Creek and was thereby responsible for causing damage to his land. At issue in the Supreme Court proceedings was therefore the location of the common boundary between the two parcels of land.
On 1 March 2022, Mr Boensch filed a notice of motion in the Supreme Court proceedings seeking orders including for the hearing of preliminary questions concerning the position of the common boundary between the two parcels of land. On 6 May 2022, Darke J made orders (by consent) to resolve the motion by requiring Mr Boensch to seek a determination of the common boundary from the Registrar General. The consent orders further provided that if the Registrar General refused to make a boundary determination as a result of being satisfied that there was no doubt as to the position of the common boundary, Mr Boensch's notice of motion would be dismissed.
On 2 June 2022, Robert Harrison, a registered land surveyor acting for Mr Boensch, applied to the Registrar General for a boundary determination in respect of the common boundary. On 29 July 2022, the Registrar General informed the parties of its refusal to make the determination on the basis that the boundary had been previously determined in 1996 and that no new information compelling the Registrar General to reconsider the 1996 boundary determination had been provided ('2022 outcome'). The 2022 outcome provides as follows: "Re: AS198355 - APPLICATION FOR DETERMINATION OF A TITLE BOUNDARY Pursuant to your application under Section 135B of the Real Property Act 1900 for a determination of the position of the eastern boundary of the land in Certificate of Title 38/14244, lodged on behalf of Franz Boensch by order of the Supreme Court of New South Wales, you are advised as follows: 1. In accordance with Section 135D(2) of the Real Property Act 1900 the Registrar General must refuse to make the determination as requested on the following grounds: • The boundary was previously determined by this office in 1996. See attached registered Dealing number O878893 for this determination. • No new information has been provided that would compel the Registrar General to reconsider this determination. The 1996 determination of the eastern boundary of Lot 38 in DP14244 with Subiaco Creek, as recorded in registered Dealing 0878893 (attached), still stands. 2. The following parties have been advised of this determination: • Applicant owner Franz Boensch • Ryan Fifield as representative for Transport for NSW. …"
The 2022 outcome further provides: "1. The information provided with the application together with the available records of MSB Waterways Authority, Australian Water Technologies & the RTA have been extensively perused and the boundary has been determined as being as defined by the MSB Waterways Authority in 1952. Whereas there is conflicting evidence as to what has transpired in this area, particularly since 1960, I have not been able to locate any information to refute the ground survey undertaken by the MSB Waterways Authority in 1952."
On 25 August 2022, Mr Boensch commenced the present proceedings against the Registrar General's refusal to make a boundary determination pursuant to s 135J of the Real Property Act 1900 (NSW) ('Real Property Act'). That application also sought various other orders, having varying degrees of relevance to the 2022 outcome.
In correspondence exchanged between the parties following the filing of Mr Boensch's Class 3 application, TfNSW and the Registrar General cautioned Mr Boensch about what they perceived to be defects in his application, inviting him to withdraw it, and on 23 September 2022, leave was granted to Mr Boensch to file and serve an amended Class 3 application.
Mr Boensch's amended Class 3 application was filed on 21 October 2022 ('amended application). Given the relief presently sought, it is appropriate to record the amended application in full and then to note the relevant statutory provisions raised in the parties' submissions. The amended application provides as follows: "ORDERS SOUGHT Appeal to finding/determination 29 July 2022 by the Registrar General AS198355 The Registrar General had no jurisdiction to deal with the application AS198355 or application O878893. A) Set aside the Registrar General finding dated 29 July 2022 for boundary determination AS198355 under Part 14 A for lack of jurisdiction under the Coastal Management Act 2016 s28(3). B) Grant leave out of time to appeal the determination by the Registrar General for boundary determination O 878893 C) Set aside the Registrar General determination O878893 dated 10 July 1996 for boundary determination O 878893 under Part 14 A for lack of jurisdiction under the Coastal Protection Act 1979 s55N(3). D) Allow a Boundary determination under S28(2)(a)Coastal Management Act 2016 E) Determine the MHWM boundary (land/sea boundary) of title Auto Consol 7366-5 (property of the Plaintiff) and title C.T.5018/1 (property of the first defendant) based on S28(2)(a)of the Coastal Management Act 2016, being land which is unlikely to change. F) Alternatively make order under Enchroachment of Building Act 1922 that a) the approved sea wall structure can remain and b) forms part of the plaintiff's property. G) Further orders as the Courts sees fit H) Costs I) Damages Alternatively Orders: If the Court find that the Registrar General had authority to deal with a Land/Sea boundary application: 1 That the finding on 29 July 2022 by the Registrar General's office was incorrect. 2 That there was additional and new evidence provided. 3 That the Registrar General did not consider the new evidence provided. 4 That the Registrar General failed to comply with, but not limited to s135E(2) and s135E(3) of the [R]eal Property Act 1900 in that he did not invite the parties to provide and or consider a submission. 5 That the Registrar General failed to comply with, but not limited to s135G(2);(a); (b) and s135G(3) of the [R]eal Property Act 1900 in that he did not invite the parties to provide and or consider a submission. 6 Order that the evidence by the 1st defendant in both applications to the Registrar General (AS 198355 and O 878893) for Boundary dispute termination was miss-represented; misleading and consequently miss- interpreted by the empire and led to an unfair and unjust outcome. 7 That the finding/determination by the Registrar General on 29 July 2022; ref No AS198355, be set aside. Leave to Appeal to finding/determination 10 July 1996 by the Land Titles Office O878893. 8 Leave to allow hearing an appeal on the determination 16 Jan 1997 applications O 878893 in this matter. 9 That the [R]egistrar General did not consider the evidence provided on its merits. 10 That the Registrar General failed to comply with, but not limited to s135E(2) and s135E(3) of the [R]eal Property Act 1900 in that he did not invite the parties to provide and or consider a submission. 11 That the Registrar General failed to comply with, but not limited to s135E(2) and s135E(3) of the [R]eal Property Act 1900 in that he did not invite the parties to provide and or consider a submission. 12 Order that the evidence by the 1st defendant in both applications to the Registrar General (AS 198355 and O 878893) for Boundary dispute determination was miss-represented; misleading and consequently miss- interpreted by the empire and led to an unfair and unjust outcome. 13 That the finding/determination by the Registrar General on 16 Jan 1997 10 July 1996 ref No O878893, be set aside 14 Order that the 1973 ground survey by the MSB is the Mean High Water Mark in this location. 15 Order that the 1973 ground survey by the MSB is the Boundaray between the parties and is to be adopted. 16 Order that the first respondent as having taken over Title Volume 5018 Folio 1 from MSB(Sydney Water) has the same rights, obligation and responsibility to honour agreements as MSB (Sydney Waterways) have had. 17 Order that the first respondent having taken over title Volume 5018 Folio 1 from MSB (Sydney Water) is governed by h[e]ight of Mean High Water Mark and has limited jurisdiction limited to the h[e]ight governed by the Mean High Water Mark. 18 Further orders as the Courts sees fit under the 19 Costs. 20 Damages Alternative Orders: 21 Order that the Land Owners consent dated 21 Feb 1995, given by MSB-Waterways as an "out of Court" settlement for the Wall and land in question, is a valid landowner's consent the Plaintiff was entitled to rely on. 22 Order that the Land Owners consent dated 21 Feb 1995, given by MSB-Waterways was, after the structural integrity was confirmed, an unconditional land owners consent, the Plaintiff was entitled to rely on. 23 Order that the consequent Council approval dated 27 July 2001, in a separate application 96/00333/DK-A to Council, that the wall and land can remain, was an appropriate application and approval required in the circumstances. 24 Order that this Council approval dated 27 July 2001, in a separate application 96/00333/DK-A to Council, satisfies the legislative requirement for an approval of the land and wall, and the plaintiff was entitled to believe that it does and rely on. 25 Order that the wall and land, as in existence at least since 1973, extending at least, but exceeds, further 6 properties down stream from the Plaintiffs property, can remain as an existing use. 26 Order that the current wall can be replaced and repaired at any time, at the plaintiffs discretion, without any further approvals in accordance to regulation and 27 Order that the 1st Defendant is required under the relevant neighbour fencing Act/regulation is bound to pay ½ of all costs 28 Order that recent actions of "trespass of the defendants land" brought by the 1st defendant to re-agitate this matter are unreasonable, victimisation and/or harassment. 29 Order that recent actions of "trespass of the defendants land" brought by the 1st defendant against the Appellant in this matter are unreasonable, victimisation and/or harassment, because the "Land" subject to this argument extends at least 5 properties further sough and on the opposite border also affects at least 3 properties, yet the only party sued by the defendant is the appellant. 31 Costs 32 Damages 2nd Alternative orders 33 That the evidence provided by the 1st defendant to the Registrar General in both, the proceedings dated 29 July 22, ref No AS198355 and proceedings dated 16 January 1997, ref No O 878893 was misleading and or incorrect and lead to an false and or misinterpretation of the Boundary in dispute. 34 Re-admit the application AS198355 of 29 July 2022, for a disputed Boundary determination to the Registrar Generals office, to consider the new evidence provided in AS198355 to the Registrar General. 35 Costs 36 Damages"
I am mindful of the difficulty for litigants in person to plead their case with precision, and to differentiate between their primary claims, the particulars to those claims, and the consequential relief sought. As such, doing the best I can, Mr Boensch's amended application appears to disclose three overarching claims, being: 1. An appeal against the 2022 outcome; 2. Leave to appeal, and resulting appeal against the 1996 boundary determination; and 3. An alternative claim under the Encroachment of Buildings Act for the retention of a retaining wall located in or around the common boundary between Mr Boensch's and TfNSW's lands.
In addition, Mr Boensch seeks 29 separate orders which (although variously described as "alternative") appear to constitute the particulars to the three overarching claims identified above and will be considered as such in my consideration of the parties' positions.

[4]

Real Property Act

Part 14A of the Real Property Act contains the relevant statutory provisions in relation to the determination of the common boundary of adjoining lands. Sections 135B, 135D, 135H and 135J relevantly provide: 135B Application may be made for boundary determination (1) Application may be made to the Registrar-General for the determination under this Part of the position of the common boundary of adjoining lands. (2) Such an application can be made only by or on behalf of: (a) an owner of land on either side of the boundary, or (b) the purchaser under a contract for sale of land on one side of the boundary but only if the owner of the land consents to the application or the whole of the purchase price has been paid to the owner or the owner's agent, or (c) a public or local authority or the Head of a Government Department. … 135D Requirements for application (1) An application for a boundary determination under this Part: … (b) is to be accompanied by such information and documents in support of the application as the Registrar-General may require (either generally or in the particular case), and … (2) The Registrar-General must refuse to make the determination unless satisfied, on investigation, that there is doubt as to the position of the boundary concerned. (3) The Registrar-General is to give notice to an applicant if the Registrar-General refuses to make the determination and is to give reasons for that refusal. … 135H Basis of determination The Registrar-General is to determine the position of a boundary on the basis of all the evidence available to the Registrar-General but, if that evidence is inconclusive, may determine it on the basis of what appears to the Registrar-General to be just and reasonable in the circumstances. … 135J Appeals to Land and Environment Court (1) A person who is dissatisfied with a determination under this Part may appeal to the Land and Environment Court for determination by the Court of the position of the boundary. (2) Only the following persons can appeal: (a) an owner of land adjoining the boundary, … (3) An appeal must be made not later than 28 days after notice of the Registrar-General's determination is given to the person concerned. … (4) The Court may make such orders as it thinks fit for the future conduct of the proceedings. …

[7]

Evidence

In support of its motion, TfNSW reads the affidavit of Bede Gerard Haines affirmed 4 November 2022 and exhibit BH-1 to that affidavit. Mr Haines, solicitor for TfNSW, deposes to the history of the Supreme Court proceedings, and to the Registrar General's refusal to make a boundary determination as sought by Mr Boensch in June 2022. He also provides evidence of the pleadings and including Mr Boensch's cross-claim relied upon in the Supreme Court proceedings, and correspondence between the parties conveying the respondents' concerns in relation to the relief sought in Mr Boensch's original Class 3 application filed on 25 August 2022.
In support of its motion, the Registrar General reads the affidavit of Vanessa Jeavons sworn 4 November 2022 and the annexures thereto. Ms Jeavons, a solicitor in the employ of the Department of Customer Services in the Office of the Registrar General, deposes to the ownership of the Boensch land and Subiaco Creek, and to the history of the boundary dispute. Ms Jeavons' affidavit annexes the "Determination of Title Boundary" which was notified to Mr Boensch on 29 July 2022.
Mr Boensch reads his affidavits sworn 24 August 2022 and 27 October 2022, noting that the latter includes as an annexure the affidavit of Robert Gordon Harrison sworn 26 October 2022 (the content of which is noted later in this judgment). Mr Boensch's affidavit sworn 27 October 2022, which appears to have been sworn for the Supreme Court proceedings, records the history of the various proceedings and contains commentary in relation to the application of the Coastal Management Act (in particular, s 28(3)) and its relationship with Pt 14A of the Real Property Act. At par (5), Mr Boensch states that the "Boundary", the subject of the proceedings is a "Land/Sea boundary / Mean High Water Mark (MHWM) Boundary and is subject to change which required an up to date determination of a location for these proceedings". At par (8) he states: "Court proceedings 2022/252749 in the Land and Environment Court are on foot to set aside the 2 decisions (1996 and 2022) of the Registrar General for lack of jurisdiction. The Land and Environment Court is also ask to make a boundary determination for the land/sea boundary under the Coastal Management Act 2016 s2(a). See amended application 2022/252749 to the Land and Environment Court attached …"
In addition, each of the applicants and Mr Boensch provided detailed written and oral submissions.

[8]

TfNSW's position

TfNSW primarily submits that the amended application should be dismissed on the basis that this Court does not have jurisdiction to hear and dispose of an appeal against either the 2022 outcome or the 1996 boundary determination.
In this regard, TfNSW firstly notes that s 19(c) of the Land and Environment Court Act 1979 (NSW) ('Court Act') only empowers this Court to hear and dispose of appeals against boundary determinations under Pt 14A of the Real Property Act, brought in accordance with the requirements provided under s 135J of the Real Property Act. In particular, TfNSW emphasises that an appeal must concern/challenge a determination made under Pt 14A, and be lodged within 28 days after notice of the determination is given.
Considering these requirements, TfNSW submits that this Court does not have jurisdiction to hear an appeal against the 2022 outcome as it does not constitute a 'determination' for the purposes of Pt 14A. In support of this submission, TfNSW endeavoured to construe the term 'determination'. By reference to s 135B(1) of the Real Property Act, which provides that an "[a]pplication may be made to the Registrar-General for the determination under this Part of the position of the common boundary of adjoining lands", TfNSW contends that a 'determination' against which an appeal may be lodged is one "fixing of the position of a boundary". In addition, TfNSW stresses that s 135D(2) requires the Registrar General to refuse to make a 'determination' unless satisfied that there is doubt as to the position of the boundary the subject of an application. On this basis, TfNSW submits that the making of a determination must be distinguished from a decision to refuse to do so. In circumstances where the 2022 outcome was expressly stated to constitute a refusal to make a determination pursuant to s 135D(2), TfNSW submits that it does not constitute a boundary determination made under Pt 14A and that this Court's jurisdiction under s 19(c) of the Court Act is therefore not enlivened.
With respect to Mr Boensch's appeal of the 1996 boundary determination, relying upon the 28-day limitation period provided for the lodgement of an appeal under s 135J(3) of the Real Property Act, TfNSW submits that an appeal lodged almost 25 years after that period has lapsed is evidently out-of-time. As such, it cannot constitute an appeal made under Pt 14A of the Real Property Act that this Court can hear pursuant to s 19(c) of the Court Act.
In addition, TfNSW submits that the Real Property Act (then and as currently in force), provides no means by which an order extending the statutory limit can be granted and emphasises that the Land and Environment Court Rules 2007 (NSW) ('Court Rules') do not allow for the extension of a statutorily mandated limitation period.
TfNSW further submits that this want of jurisdiction cannot be cured by Mr Boensch's alternate reliance upon s 19(h) of the Court Act in circumstances where he has not identified any other legislation that he wishes to rely upon to bring an appeal under this provision.
TfNSW addresses Mr Boensch's reliance on the Coastal Protection Act and the Coastal Management Act to support his allegations that the Registrar General did not have "jurisdiction" to make either the 1996 boundary determination or the 2022 outcome with two responses.
First, TfNSW submits that s 55N was inserted into the Coastal Protection Act in 2002, and that prior to this amendment there was no equivalent provision. Further, s 55N was not given retrospective application such that it could not have had the effect contended by Mr Boensch as it was not in force at the time of the 1996 boundary determination.
Second, with respect to the alleged application of the Coastal Management Act, TfNSW reads s 28 of that Act as merely restricting the manner in which the Registrar General could make a determination in relation to the position of a water boundary and submits that in circumstances where the 2022 outcome did not constitute a boundary determination, that provision had no impact on the Registrar General's power.
TfNSW further submits that the orders now sought by Mr Boensch under the Encroachment of Buildings Act constitute an abuse of this Court's process insofar as the relief could (and should) have been sought in the Supreme Court proceedings where the relevant structure and the boundary it traverses are currently in issue. In circumstances where the facts raised in the amended application are almost identical to those raised in the cross-claim and the notice of motion filed by Mr Boensch in the Supreme Court proceedings, TfNSW contends that in seeking relief in this Court, Mr Boensch is attempting to secure an advantage in the concurrent proceedings. This amounts to an abuse of court and should be struck out.
If the Court was minded to entertain an application under the Encroachment of Buildings Act, TfNSW submits that Mr Boensch's claim has, in any event, no reasonable prospect of success as it seeks the readjustment of the boundary of public land, vested in a public body for public purposes, in order to advance his own commercial interest as a private individual, and is therefore not in the public interest.

[9]

Registrar General's position

Adopting a similar position as TfNSW, the Registrar General submits that the 2022 outcome did not constitute a boundary determination made under s 135H of the Real Property Act such that Mr Boensch does not have standing to bring an appeal under s 135J of that Act and that this Court's jurisdiction to hear and dispose of the matter pursuant to s 19(c) of the Court Act is not enlivened. The Registrar General submits that Mr Boensch's lack of standing to appeal the 2022 outcome constitutes sufficient grounds for summary dismissal of this aspect of the amended application.
The Registrar General further submits that Mr Boensch's claim for an internal review of the 2022 outcome has no utility in circumstances where this avenue had been suggested to him in lieu of court proceedings, in correspondence from the Registrar General, and should therefore be struck out.
In relation to the 1996 boundary determination, and similarly to TfNSW's submissions, the Registrar General contends that Mr Boensch's appeal falls outside the limitation period provided under s 135J(3) of the Real Property Act. While Mr Boensch sought to explain his failure to seek a referral to this Court within 28 days of the determination being made, citing an agreement entered into with the Maritime Services Board (being the then owner of the land) relating to the installation of an encroaching wall, the Registrar General submits that those matters have no bearing upon the determination of the position of a boundary under Pt 14A of the Real Property Act and do not, in any event, provide a sound basis for suspending the applicable limitation period.
In circumstances where Mr Boensch failed to exercise his right to challenge the 1996 boundary determination within the time provided under the Act; subsequently failed to file an application for an extension of time under r 7.3(2) of the Court Rules to bring the appeal after the expiry of the statutory limitation period; and did not provide the Court with any compelling reasons or evidence justifying that leave should be granted to bring the appeal out of time, the Registrar General submits that the amended application should be dismissed.

[10]

Mr Boensch's position

The appeal brought by Mr Boensch pursuant to s 135J of the Real Property Act is grounded in his contention that the common boundary line is the "toe of the bank", as recorded on a 1973 survey documented in "Field Book 542/46", rather than the mean high water mark identified in the 1952 survey undertaken by the former owner, Maritime Services Board, and adopted by the 1996 boundary determination and the 2022 outcome. This informs his position in relation to the motions the subject of this judgment.
Mr Boensch firstly refutes the applicants' submission that the amended application must be dismissed for want of legal standing or jurisdiction.
In this regard, and specifically in relation to his challenge of the 2022 outcome, Mr Boensch contends that the Registrar General's decision (being the refusal to make a boundary determination) in fact constituted a "determination" for the purposes of Pt 14A of the Real Property Act. In doing so, Mr Boensch seeks to draw a distinction between the decision to reinstate a determination and the making of a "new determination" and submits that both fall within the scope of Pt 14A. As such, to the extent that Mr Boensch contends that the 2022 outcome effectively reinstated the 1996 boundary determination, while it did not constitute a "new determination", it could nevertheless be characterised as a determination capable of being appealed.
Even if this is not the case, Mr Boensch contends that there ought to be an appeal avenue against wrongful decisions made under s 135D(2) of the Real Property Act, whether or not they are capable of being characterised as a 'determination'. He maintains that, in circumstances where the decision to refuse to make a determination relied upon the absence of new evidence where this had in fact been provided, an appeal is justified.
In relation to the alleged "new evidence", Mr Boensch points to the affidavit of Mr Harrison, a registered land surveyor, who deposes that several plans and survey reports provided as part of the 2022 application for boundary determination had not been considered in making the 1996 boundary determination. These documents included a survey report dated 1 June 2022; plans approved by Parramatta Council in or around 2002; copies of field book surveys dated 1973; and further new evidence flagged in his letter of 2 June 2022. By contrast with the investigation conducted ahead of the 1996 boundary determination, which concerned the position of the boundary prior to the 1952 survey, Mr Boensch submits that the evidence provided in relation to the 2022 application for boundary determination concerned changes to the boundary that have occurred since 1952.
Moreover, Mr Boensch submits that the Registrar General had received information raising doubts as to the correctness of the position of the boundary fixed by the 1996 boundary determination, and specifically points to a letter of 14 July 2022 sent by TfNSW to the Registrar General, which allegedly stated that: "the boundary between Subiaco creek and 255 Victoria Road is a former mean high water mark (FMHWM) because the bank of Subiaco Creek has been affected by artificial disturbance over time … [r]ecords held by TfNSW indicate that the bank of Subiaco Creek has been affected by artificial disturbance over time beginning in the 1960s".
Mr Boensch contends that the combination of the evidence provided in his 2022 application for boundary determination and the information in TfNSW's letter of 14 July 2022 suggests that the common boundary has undergone changes since the 1960s that are sufficient to foster doubt as to the current position of the boundary. These changes justify the making of a determination under s 135D(2) of the Real Property Act.
If the Court found that the 2022 outcome is not a determination, and that no right of appeal exists in relation to a decision to refuse to make a determination such that an appeal could not be sustained under Pt 14A of the Real Property Act, and correspondingly could not be heard by this Court under s 19(c) of the Court Act, Mr Boensch relies in the alternative on s 19(h) of the Court Act as providing standing and jurisdiction for his appeal.
While unclear how it relates to his standing to bring an appeal under s 135J of the Real Property Act in relation to the 2022 outcome, Mr Boensch further submits that the infrastructure built on the common boundary, and referred to as the "sea wall", had in any event been approved by Paramatta Council on 8 May 1998 ('Council approval') and should remain in place in the event of this Court upholding the 1996 boundary determination and the 2022 outcome.
In what appears to be submissions in relation to the prospects of success of his appeal before this Court, Mr Boensch further contends that the Registrar General did not have jurisdiction to make either the 1996 boundary determination or the 2022 outcome insofar as the boundary at issue is one "between land and sea", rather than between two adjoining parcels of land, and is therefore not one to which Pt 14A of the Real Property Act applies.
Mr Boensch contends that his position is further supported by s 28(3) of the Coastal Management Act which provides that the Registrar General has "no power under part 14A of the Real Property Act to make a determination concerning a water boundary that would increase the area of land on the landward side of the Water". Rather, he submits that this is a function that falls upon the Court under s 28(2)(a) of the Coastal Management Act, which Mr Boensch reads as enlivening the Court's jurisdiction to make a declaration concerning a water boundary in circumstances where it can be shown that any perceived trend by way of accretion is likely to be indefinitely sustained by natural means.
Mr Boensch also submits that s 55N of the Coastal Protection Act, which he maintains applied to the 1996 boundary determination, similarly entrusts the Court with jurisdiction to determine water boundaries by way of accretion that is likely to be sustained indefinitely by natural means.
On the basis of his reading of the applicable legislative scheme, Mr Boensch submits that both of the 1996 boundary determination and the 2022 outcome should be set aside.

[11]

Consideration

The respondents seek relief pursuant to r 13.4 of the UCPR which confers power on the Court to summarily dismiss proceedings on the following grounds: 13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).
In addition, TfNSW relies on r 14.28 of the UCPR, which provides as follows: 14.28 Circumstances in which court may strike out pleadings (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading - (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).
Prudent to not improperly deprive a party of the opportunity to plead its case in an ordinary way, the Court exercises its discretion to deal with matters summarily or to strike out a claim sparingly. The principles governing the circumstances where it may be appropriate to take either course of action have been considered to be interchangeable and are briefly summarised as follows.
The power to dismiss claims or strike out pleadings at an interlocutory stage of the proceedings is only appropriately exercised where it is plain and obvious that there is no issue to be tried such that it would be inappropriate to allow the proceedings to continue: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 129-130 (Barwick CJ); Shaw v State of New South Wales [2012] NSWCA 102 at [32] (Barrett JA, Beazley, McColl, Macfarlan JJA and McClellan CJ agreeing). By bringing an application for summary dismissal, the respondents undertake the burden of establishing that there is no triable issue: Wickstead v Browne (1992) 30 NSWLR 1 at 11.
The mere fact that an applicant's prospects of success might appear slim is not sufficient to strike out a pleading: Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg) (1997) 188 CLR 241 at 271; [1997] HCA 8. Further, in assessing the merits of a claim, the case of the party resisting the application for summary dismissal must be taken at its highest: Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 at [200].
Caution should be exercised in dismissing summarily a case which ultimately turns on the determination of factual questions as it may be difficult to predict the manner in which evidence would unfold at a final hearing: Webster v Lampard (1993) 177 CLR 598 at 603; [1993] HCA 57. By contrast, where an application turns on questions of law and the deficiencies in the pleadings cannot be cured by amendment, strike out orders may be more readily available: Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553 at [75].
In applying these principles, I remain mindful that rr 13.4 and 14.28 of the UCPR must be interpreted and applied in the light of the overarching purpose set out in s 56(1) of the Civil Procedure Act 2005 (NSW) to facilitate the just, quick and cheap resolution of the real issues in the proceedings: Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [29] (Spigelman CJ; Basten and Campbell JJA agreeing).
I also remain conscious of Mr Boensch's status as a litigant in person in these proceedings when assessing whether the amended application discloses any prospects of success. As such, without advocating in favour of Mr Boensch, I nevertheless bear in mind the comments made by Kirby P in Edwards v Allmen Engineering Pty Ltd [1995] NSWCA 138 at 2, that "concealed in the lay rhetoric and inefficient presentation may be a just case".

[14]

What is a "determination under this Part" within the meaning of s 135J(1) of the Real Property Act?

Unhelpfully, 'determination' is not defined in the Real Property Act. Absent any definition or indication in the Act, it is appropriate, in my view, to read the word according to its natural and ordinary meaning and in light of the statutory context in which it appears: 4Nature Incorporated v Centennial Springvale Pty Ltd (2017) NSWLR 361; [2017] NSWCA 191 at [51] (Basten JA); Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 at 646-648 (Dixon J); [1947] HCA 17.
Section 135J is located within Pt 14A of the Real Property Act which regulates the lodgement of applications for boundary determinations and the making thereof. A 'determination' generally characterises the act of coming to a decision after some observation or investigation, or the settlement of a dispute: Macquarie Dictionary, 6th ed (2013). Consequently, a 'determination' under Pt 14A is likely to refer to a decision resolving an application made under that part. Consideration of the scope and subject matter of the type of applications that can be lodged under the Pt 14A is therefore necessary to ascertain the meaning of 'determination' for the purpose of s 135J(1).
The provisions of Pt 14A most relevant for the purposes of adjudicating this matter are recited at [18] above. Section 135B of the Real Property Act provides that an application for boundary determination under Pt 14A must relate to "the position of the common boundary of adjoining lands." Any such application must further comply with the requirements listed in s 135D, including subs (2) which provides that "[t]he Registrar-General must refuse to make the determination unless satisfied, on investigation, that there is doubt as to the position of the boundary concerned."
It is clear, upon plain reading of both provisions that, first, the term 'determination' in this context relates to a decision reached by the Registrar General as to the position of a boundary; and second, that for an application to be the subject of a determination, it must concern a boundary the position of which is considered by the Registrar General to be inconclusive (in the sense that there is doubt as to the "position of the boundary").
In other words, the trigger for the making of a 'determination' under Pt 14A is a finding by the Registrar General that the position of a boundary the subject of an application under s 135B of the Real Property Act is in doubt. Correspondingly, a distinction is to be drawn between a decision positively defining the position of a boundary, which constitutes a 'determination', and a decision refusing to do so, which cannot be characterised as such.
Further, addressing the command in s 33 of the Interpretation Act 1987 (NSW) to favour a construction that would "promote the purpose or object" of the underlying provisions, I note that Pt 14A was introduced in the Real Property Act by the Real Property (Boundary Determinations) Amendment Act 1989 (NSW). The amendment vested in the Registrar General the power to determine "the position of a lost or confused land title boundary" in order to circumvent formal judicial resolution of boundary disputes: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 15 November 1989, at 12516-12518. I consider that reading the term 'determination' in the way proposed by the respondents gives effect to this statutory purpose by limiting the range of matters that may be referred to this Court by way of appeal.
In these circumstances, I find that the Registrar General's decision to refuse the making of a determination does not constitute a "determination under this Part" capable of enlivening rights of appeal under s 135J(1) of the Real Property Act.
Be that as it may, Mr Boensch's suggested distinction between a determination and a "new determination" (at [42] above) invites further consideration of whether a refusal to make a determination under s 135D(2) of the Real Property Act can be considered to be a positive reinstatement of a previous determination, and therefore to constitute a 'determination' for the purpose of Pt 14A. I do not consider this submission to be correct.
In light of the above analysis and findings, the defining quality of a 'determination', by contrast with a decision to refuse to make a determination, is the resolution of a state of uncertainty. A scenario where the Registrar General makes a determination that confirms a previous determination is conceivable. However, such a decision would constitute a determination by reason of its resolution of an uncertainty that tainted the first determination, not merely because it is a new decision, as was suggested by Mr Boensch.
Therefore, while the 2022 outcome effectively reinstates the 1996 boundary determination, it cannot properly be characterised as a 'determination' under Pt 14A insofar as it does not operate to resolve any doubt identified by the Registrar General as to the position of the common boundary.
Despite the above, Mr Boensch submits that there ought to be an "appeal option" for decisions amounting to a refusal to make a determination. While this view is not without merit, an application for internal administrative review of decisions made by the Registrar General is in fact available under s 121(1) of the Real Property Act, which provides as follows: 121 Administrative review of decisions of Registrar-General (1) A person aggrieved by a decision of the Registrar-General made in the exercise of a titling and registry function may apply to the Registrar-General for the decision to be reviewed by the Registrar-General under this section. …
The availability of review under this provision was in fact brought to Mr Boensch's attention by the Registrar General in correspondence dated 2 September 2022.
Finally, I do not make any findings as to the proper avenue to be taken to seek judicial review of the result of an internal review of a decision to refuse to make a determination in circumstances where the parties have not raised that issue in these proceedings.
In light of the above matters, I find the construction advanced by the applicants to the motion to be preferable and understand the term "determination" as referred to in s 135J(1) as a decision positively defining the position of an inconclusive boundary. On this basis, I find that Mr Boensch does not have standing to appeal the 2022 outcome under s 135J and that his claim to that effect must be struck out.

[16]

Right of appeal in relation to the 1996 boundary determination

It is not disputed that the 28-day limitation period prescribed by s 135J(3) of the Real Property Act (as it then stood) to appeal the 1996 boundary determination lapsed well before the filing by Mr Boensch of his amended application on 21 October 2022.
Section 135J of the Real Property Act, as it then stood, fixed the time for an appeal as follows: 135J Referral to Land and Environment Court (1) A person who is dissatisfied with a determination under this Part of the position of a boundary of land may, by notice given to the Registrar-General, request the Registrar-General to refer the matter to the Land and Environment Court for determination by the Court of the position of the boundary. … (3) The Registrar-General is to comply with such a request but only if: (a) it is made within 28 days after notice of the Registrar-General's determination is given to the person concerned, and (b) the person pays to the Registrar-General the prescribed referral fee. …
Considering the delay of over 25 years, Mr Boensch now seeks leave from this Court to bring an appeal under s 135J of the Real Property Act outside the 28-day limitation period. In doing so, he places reliance on an agreement with the Maritime Services Board (the then owner of the land) relating to the retention of an encroaching wall which he submits would have made any appeal "a waste of Court time" and accounts for his decision to not seek referral of the 1996 boundary determination within the statutory limitation period. In addition, Mr Boensch submits that the Registrar General's recent characterisation in the 2022 outcome of the evidence submitted along with the 1996 application for boundary determination (as to what has transpired since 1960) as "conflicting" (as recorded at [12] above), "ought to be an acceptable reason for leave to appeal".
Mr Boensch made further submissions in relation to the various grounds of appeal sought to be raised against the 1996 boundary determination, including that the boundary in dispute can be qualified as a "water boundary" such that the Registrar General did not have jurisdiction to make the determination under Pt 14A of the Real Property Act by reason of the joint operation of s 28(2)(a) of the Coastal Management Act and s 55N of the Coastal Protection Act.
Both TfNSW and the Registrar General oppose leave and submit that an out of court agreement reached between neighbours does not provide a sound basis for suspending the applicable limitation period.
Without presently expressing an opinion as to the merits of the prospective grounds of appeal alluded to by Mr Boensch, and having considered the applicable statutory framework, I consider that I do not have discretion to vary the 28-day limitation period.
First, the Real Property Act does not grant this Court power to extend the time period for an appeal prescribed under s 135J(3). Further, while the Court holds power under r 7.1 of the Court Rules to fix a limitation period for an appeal (or referral), and corresponding discretion under r 7.3 to grant an extension for any such limitation period it has so fixed, it may only exercise it where no statutory limitation period is otherwise specified. Thus, in circumstances where the Real Property Act expressly (as it then stood) fixed the time period within which to seek referral of a boundary determination to this Court, the Court's power under r 7.1 of the Court Rules is not enlivened.
While r 50.3(1)(a) and (c) of the UCPR also specifies a period within which an appeal may be lodged and allows the Court to extend that time, this provision cannot override any other express statutory provision setting the time period for an appeal. Therefore, the power to extend time under r 50.3(1)(c) is not available to extend the period prescribed by s 135J(3) of the Real Property Act.
It is also well settled that a right of appeal is a creature of statute, and that the Court does not have power to vary a statutory time limit for commencing an appeal, save where the power to do so has been conferred by the legislature in express terms: State of Western Australia v Wardley Australia Ltd (1991) 30 FCR 245 at [266]. This position was confirmed in Simmons v Marrickville Council; Kababy Pty Limited v Marrickville Council [2012] NSWLEC 133; (2012) 190 LGERA 93 at [11]-[12], where the Court considered an application for an extension of the limitation period prescribed by s 97(1) of the Environment Planning and Assessment Act 1979 (NSW) and held that r 7.1 of the Court Rules and r 50.3(1)(c) of the UCPR had no application where a statute specified the time for appeal, as provided for in r 7.2 of the Court Rules. I consider this reasoning to be apposite to an appeal made under the Real Property Act.
I therefore conclude that the Court does not have power to extend the statutory time period for the commencement of an appeal under s 135J of the Real Property Act. Had Mr Boensch wished to preserve his appeal rights under s 135J(1), he should have complied with the 28-day limitation period for requesting referral of the matter to this Court provided for under (then) s 135J(3)(a) of which the evidence and submissions confirm he was aware.
On this basis, I find that Mr Boensch's appeal against that the 1996 boundary determination discloses no reasonable cause of action and must be dismissed. Accordingly, I do not purport to consider the merits of Mr Boensch's appeal against the 1996 boundary determination and I further dismiss the "orders" sought in pars (8)-(20) of the amended application which relate to the manner in which the Registrar General reached the 1996 boundary determination (and which essentially constitute the particulars of Mr Boensch's appeal of that decision).

[17]

Claim brought under the Encroachment of Buildings Act

TfNSW also seeks that the claim brought by Mr Boensch under the Encroachment of Buildings Act be dismissed pursuant to r 13.4(c) of the UCPR as being frivolous or vexatious and amounting to an abuse of process.
As a preliminary matter, TfNSW submits, and I accept, that the orders for relief sought by Mr Boensch under the Encroachment of Buildings Act fall outside of the scope of the leave which I granted to Mr Boensch on 23 September 2022 to file and serve "any amended Class 3 appeal application". Despite falling within the ambit of Class 3 of the Court's jurisdiction by operation of s 19(c) of the Court Act, proceedings under the Encroachment of Buildings Act cannot be characterised as proceedings by way of appeal. Thus, I consider Mr Boensch's additional prayer for relief in this regard to have been filed without leave. In light of the findings that follow, this aspect is, however, not determinative of the relief sought in the motions.
TfNSW submits that leave should not be granted retrospectively as the orders sought by Mr Boensch under the Encroachment of Buildings Act constitute an abuse of the Court's process by reason of the existence of concurrent proceedings in the Supreme Court where relief under the Encroachment of Buildings Act could be granted.
Circumstances that may constitute an "abuse of the process of the court" under either rr 13.4 or 14.28 of the UCPR defy exhaustive categorisation. In Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council (2006) 226 CLR 256; [2006] HCA 27 at [14], the High Court (Gleeson CJ, Gummow, Hayne and Crennan JJ) recorded earlier judicial commentary that proceedings would be abusive in the relevant sense if instituted for an improper purpose and "seriously and unfairly burdensome, prejudicial or damaging". The pursuit of proceedings that have no prospect of success has generally been held to give rise to abuse of process.
In addition, and relevant to the submissions made by the Registrar General, the pursuit of concurrent proceedings for substantially the same causes of action in circumstances where there is a complete remedy available in the court in which the proceedings were first commenced may constitute an abuse of the Court's process. Be that as it may, I do not consider this Court's discretion to strike out a matter to be constrained by a correlated obligation to do so merely because there are also proceedings on foot in the Supreme Court. Rather, it is necessary to assess on a case by case basis whether the concurrent proceedings constitute an abuse of process and should be struck out, having regard to the stage of the respective proceedings, the likely practical effect of an order and to balance the advantages and disadvantages to each party: Sterling Pharmaceuticals Pty Limited v The Boots Company (Australia) Pty Limited (1992) 34 FCR 287; [1992] FCA 72 at 290-291 (Lockhart J).
The Supreme Court proceedings concern trespass to land, with TfNSW contending that Mr Boensch has placed items, including a retaining wall, on land owned by TfNSW. The contested issue underlying those proceedings is the location of the boundary between Mr Boensch and TfNSW's properties, on or around which the retaining wall is situated, and therefore ownership of that parcel of land. Mr Boensch subsequently filed an extensive cross-claim raising various matters allegedly reflective of the position of the boundary at the toe of the bank (by reference to the mean high water mark), including the root systems of trees located near the common boundary, occurrence of flood events around the common boundary, and the presence of a stormwater drain outlet at the south eastern point of TfNSW's land. The cross-claim was provided to this Court as an annexure to Mr Haines' affidavit of 4 November 2022, and I do not consider it further than as demonstrating that Mr Boensch has not yet raised any specific encroachment claim in the Supreme Court proceedings.
In a notice of motion filed 1 March 2022 in the Supreme Court proceedings, Mr Boensch further sought determination of preliminary questions concerning the position of the common boundary and the status of an approval relating to his use of the trespassing structure. The notice of motion was disposed of by consent orders made by Darke J directing Mr Boensch to file an application for boundary determination with the Registrar General. It is as an appeal to such a boundary determination application, that the proceedings in this Court are relevant to TfNSW's original trespass claim. The proceedings brought in this Court are therefore narrower in compass. The orders sought by Mr Boensch under the Encroachment of Buildings Act must be considered in this context.
Mr Boensch expressly seeks in his amended application a declaration under the Encroachment of Buildings Act that the retaining wall forms part of his land and, on this basis, that he be allowed to retain it. When considered in the context of the concurrent Supreme Court proceedings, it is plain that this claim is but another pathway to establish that he has ownership over the land on which TfNSW claims he trespassed.
In my opinion, the encroachment claim is relevant to the trespass proceedings before the Supreme Court, and only incidental to the appeal to boundary determinations before this Court. That much is apparent from s 9 of the Encroachment of Buildings Act, which provides that an application for boundary determination may be entertained by the Court when considering whether a building encroaches upon land.
Without expressing my opinion as to the merit of the encroachment claim, I agree with the Registrar General's submission that, if both sets of proceedings are allowed to continue, the result of any finding in favour of Mr Boensch in this Court would benefit his position in the Supreme Court proceedings insofar as it would strengthen his case that he has ownership over the land which TfNSW claims it owns and on the basis of which it brings the trespass claim.
Aside from being made without leave, the encroachment claim can therefore be properly characterised as constituting an abuse of process within the meaning contemplated by r 13.4 of the UCPR. This finding does not bear upon Mr Boensch's ability to file (or amend) a cross-claim in the Supreme Court proceedings raising any encroachment claims he may have. It would however be oppressive to the respondents to allow Mr Boensch to take advantage of the orders granted by Darke J to apply for a boundary determination by seeking orders beyond that scope in this Court.

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