Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd

High Court of Australia|1971-04-08|Before: Windeyer JJ

High Court of Australia Barwick C.J. Menzies and Windeyer JJ. Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd [1971] HCA 9

ORDER Decretal order of the Supreme Court of New South Wales varied by

(1) deleting from the first declaration the words "Notwithstanding the provisions of the Memorandum of Transfer Registered No. 7922 upon the proper construction of the grant of right of way and easement contained in the said transfer"; and substituting therefore the words "Upon the proper construction of the Memorandum of Transfer dated 15th May 1872, duly registered under the provisions of the Real Property Act 1900 ".

(2) deleting from the second declaration the words "and for the purpose of such support to have the present wall maintained"; and substituting therefor "and for the purpose of such support to have the present wall remain".

(3) deleting the third declaration and substituting therefor a declaration that the plaintiff is entitled to demolish existing building erected over the area of the right of way created by the indentures of lease and release made respectively on 16th and 17th June 1840 and is entitled to build in the place of such building so demolished a building, not less than 12 feet above the ground, nor more than the height or total area of the existing building.

The facts and circumstances necessary to be known for the resolution of this appeal fully appear in the reasons for judgment prepared by my brothers Menzies and Windeyer. I have no occasion to repeat them.

In my opinion, the memorandum of transfer dated 15th May 1872 purported both to extend the easement created in 1840 to the extent described in the memorandum and also to transfer title to the space occupied then by the building over the existing easement and to confer the specified rights of demolition and of rebuilding.

I agree with my brother Windeyer and for the reasons which he expresses that in so far as the memorandum purported to transfer title to that space, it was effective to do so. It was in due form for registration and was duly tendered for registration under the Real Property Act, 1862 (the Act of 1862). Apparently it was received by the Registrar-General and timed as required. What for the moment I shall refer to neutrally as an "endorsement" was made on the then appropriate folium of the Register Book. If that endorsement was a memorial within the meaning of s. 34 of the Act of 1862 (cf. s. 35 of the Real Property Act, 1900 (the Act of 1900)), the memorandum of transfer was then registered and became part of the Register Book. See s. 35 of the Act of 1862 and cf. s. 36 (4) of the Act of 1900.

Of course if the endorsement was not such a memorial the memorandum of transfer remains unregistered and no further matter with respect to it arises in this case in so far as the memorandum does not create an easement. I agree with my brothers Menzies and Windeyer that in so far as it purported to transfer the then existing building, it did not create an easement.

Section 37 of the Act of 1862 (cf. s. 37 of the Act of 1900) provides:

Every memorial entered in the Register Book shall state the nature of the instrument to which it relates the day and hour of the production of such instrument for registration the names of the parties thereto and shall refer by number or symbol to such instrument and shall be signed by the Registrar General. Clearly the required elements relating to date and hour of production of the memorandum, the name of the parties thereto, the number given to it and the signature of the Registrar-General are present. But does the endorsement "state the nature of the instrument". It says the instrument was a transfer but does not describe all that it achieves. Indeed, the partial description of what it did achieve was clearly inadequate. If a statement of the nature of the instrument requires a statement of what it effects, the endorsement was insufficient as a memorial. On the other hand, if the nature of the instrument is that it is a memorandum of transfer and does not for its statement require a specification of what the instrument achieves, the endorsement, in my opinion, constituted a memorial and the memorandum of transfer was therefore duly registered under the Act of 1862 as part of the Register Book thereunder and was effective for all it purports to do.

The Act of 1862 as is the case with the Act of 1900 has various expressions as to the duty of the Registrar-General on receipt of instruments for registration. Section 30 in providing for a Register Book says that the Registrar-General shall record on the duplicate grant or certificate of title bound up in the Register Book "the particulars of all instruments, dealings, and other matters by this Act required to be registered or entered on the register-book ". Section 31 requires the Registrar-General "to note on the certificate of title in such manner as to preserve their priority the particulars of all unsatisfied mortgages or other encumbrances, and of any dower, lease or rent charge ". Section 40 speaks of "such encumbrances, liens, estates or interests as may be notified on the folium of the Register Book constituted by the grant or certificate of title ".

It is not without significance that registered dealings being part of the Register Book are bound up with it (s. 35 of the Act of 1862 (cf. s. 36 (4) of the Act of 1900)) and thus available for search and inspection. The Register Book is available for public search. See s. 104 of the Act of 1862 (see s. 16 of the Act of 1900).

It seems to me that it was not intended that the certificate of title alone should provide a purchaser dealing with the registered proprietor with all the information necessary to be known to comprehend the extent or state of that proprietor's title to the land. The dealings once registered became themselves part of the Register Book. It was therefore sufficient that their registration should be by statement of their nature recorded on the certificate of title. Section 42 of the Act of 1862 provided for a memorandum of transfer as the appropriate instrument for the transfer of an estate or interest in land, or for the creation or transfer of any right of way or other easement. Section 49 provided for a memorandum of lease where land is intended to be leased for a life or lives or for any term exceeding those years. Section 54 provided for a memorandum of mortgage when land is to be charged or made security and for a memorandum of encumbrance where an annuity, rent charge or sum of money is to be charged on land.

These descriptions in this list indicate, in my opinion, the nature of the various principal instruments which can be registered under the Act. In my opinion, the nature of the instrument to which s. 37 refers is its description as a transfer, lease, mortgage, encumbrance, etc. What it achieves in particular is not part of its nature for relevant purposes. It is not necessary, in my opinion, to make a memorial effective as the registration of a dealing that the endorsement should particularize to any extent what the instrument does. It is sufficient to state whether it is a transfer or a mortgage etc. Thus, in my opinion, the endorsement on a certificate of title of a statement, "Memorandum of Transfer No. 7922 dated 15th May 1872 produced and entered the 15th day of June 1872 at 12 o'clock noon", would be a sufficient memorial and upon its endorsement on the certificate of title, the memorandum of transfer would be duly registered and form part of the Register Book. There would be no need to state the subject matter of the transfer though the convenient practice is to state on a memorial of a memorandum of transfer etc. the fact that the whole or part of the land comprised in the certificate of title is the subject of the memorandum. But, in my opinion, the absence of such information will not render the memorial ineffective. Once the memorial is sufficient to effect registration of the instrument then the interest of the registered proprietor becomes subject to the registered instrument because of the words in the body of the grant on certificate of title describing the proprietor's interest.

However, the endorsement in this case was not confined to the words I have set out. Both in the endorsement in 1862 and in the endorsement on the present certificate of title a description of what the memorandum of transfer achieved appears. In practical terms this inadequate description cannot be of moment because even to ascertain the nature and extent of the right or rights of way which it is said to have created or extended the memorandum of transfer must be searched and examined. Potent however as such a practical consideration must be, it cannot itself resolve the question whether or not the inadequate, or if you will, misleading, description of the effect of the memorandum of transfer vitiated the memorial as a registration of the memorandum of transfer or prevented an endorsement which otherwise would qualify as such being a memorial.

Although accompanied by a statement purporting to notify its effect, the endorsement did, in my opinion, state that a memorandum of transfer had been produced and numbered. That was a statement of the nature of the instrument. The relevant purpose of the endorsement was not to describe the effect of an unregistered instrument. It was evidently intended as a step in the registration of the memorandum of transfer. Consequently, the addition of a statement of the operative effect as distinct from the nature of the instrument ought not to be regarded as of the essence of the endorsement but rather as surplusage so far as the process of registration is concerned. That statement, in my opinion, was not effective either to prevent the statement of the nature of the instrument and of the other relevant particulars being a memorial sufficient to effect the registration of the memorandum of transfer: nor would the addition of a statement of the operative effect of the instrument vitiate the endorsement as an effective memorial. Consequently, in my opinion, the memorandum of transfer was duly registered under the Act of 1862.

If, as I think, the memorandum of transfer was duly registered that registration was continued under the Act of 1900 (see s. 2 (3) of the Act of 1900). The estate or interest in the airspace occupied by the building over the right of way therefore was not an unregistered interest: on the contrary, it was a registered interest. That registered estate or interest was, in my opinion, sufficiently particularized on the present certificate of title in conformity with s. 32 (2) of the Act of 1900. The notification brought to the knowledge of the purchaser the existence in the Register Book of the memorandum of transfer and therefore of the registered interest in the land of the registered proprietor which the registered memorandum of transfer created.

In affording protection to purchasers of land under the Act against the consequences of failure to search, s. 43A (2) expressly confines the effect of that protection to a failure to search registers not kept under the Act. To my mind, it is inescapable that a person dealing with the registered proprietor in this case would be bound to search the registered dealing of which particulars were endorsed on the relevant certificate of title. Further, s. 42 says that the registered proprietor holds the described interest in land subject only, with the stated exception, to "notified" encumbrances etc. and s. 43 does not protect a purchaser from the effect of notice of registered interests. In my opinion, no purchaser from the registered proprietor in this case could properly claim to hold the land free of the registered estate or interest created by the memorandum of transfer of 1872. Whether or not the Registrar-General could now amend the particulars of the registered dealing endorsed on the certificate of title has not arisen in the present proceedings. Consequently, I express no opinion on the matter.

Consequently for the reasons given by my brother Windeyer and for these reasons, in my opinion, the appeal and cross appeal should be dismissed but the decretal order varied to conform with those reasons.

This is an appeal and cross appeal from a decretal order of the Supreme Court of New South Wales. The plaintiff sought relief as follows:

A Declaration that notwithstanding the provisions of Memorandum of Transfer registered number 7922 upon the proper construction of the grant of right of way and easement contained in the said Transfer the Plaintiff is entitled as follows:

(a) To retain for its own exclusive use the building at present erected over the right of way granted by the said transfer to a depth of approximately 28 feet from George Street, in the City of Sydney.

(b) To support of the said existing building on the northern wall of the Defendant's building adjoining those buildings and for the purpose of such support to have the present wall maintained.

(c) To build and rebuild over the right of way granted by the said transfer to a depth of approximately 28 feet west of George Street being the extent of the existing building at a height of not less than 12 feet from the ground, but otherwise without restriction as to height.

By the order under appeal, declarations (a) and (b) were made and (c) was refused. The defendant in the Supreme Court appeals against the making of declarations (a) and (b); the plaintiff in the Supreme Court cross-appeals against the refusal to make declaration (c).

I will refer to the defendant appellant as "Bursill" and to the plaintiff respondent as "Berger".

The parties owned lands fronting George Street, Sydney, as set out in the following sketch plan:The dispute centres around the hatched area and is part of Bursill's land. There is a building upon this land, 12 feet from the ground and extending back 28 feet from George Street, in the occupation of Berger. It is common ground that this building is built over a right of way which extends for 110 feet along the northern boundary of Bursill's land. Berger's rights over Bursill's land were acquired in two stages. Firstly, by indentures of lease and re-lease dated respectively 16th and 17th June 1840 and registered No. 261, Book S, Thomas Torkington conveyed to William Cross a parcel of land of which the land is now Berger's land forms part. A right of way was reserved as follows:

The right of road and gateway of 9 feet wide forming part of the south boundary line of the land hereby released and extending from George Street 60 feet but over which said road and gateway the said Thomas Torkington his heirs and assigns are at liberty to build at the height of 12 feet from the ground.

The second stage occurred on 15th May 1872 when the then owner of Bursill's land granted further rights as follows to the then owner of Berger's land by means of a transfer registered No. 7922 in the following terms:

I do hereby grant and transfer to the said William Long, his heirs and assigns full and free liberty for himself his heirs and assigns and his and their workmen and for all other persons authorized by him or them with or without labourers, vehicles, horses or other animals at all reasonable times to drive ride operate and labour up down to from and upon a certain road or gateway 9 feet in width as it now exists to the extent of 60 feet and 50 feet in prolongation thereof of the northern boundary of all that piece of land situated in Sydney and comprised in Certificate of Title dated the 23rd day of January 1865, registered volume no. XI folio 167, such roadway together with the prolongation thereof extending from George Street 110 feet westerly from such street towards the western boundary of the land described in the before-mentioned Certificate of Title together with all the buildings at present erected on the said road or gateway and the right to pull down such buildings and to rebuild others at the height of not less than 12 feet from the ground over such road or gateway to the extent and no further than the existing building goes and for any of such purposes to use and to build upon the walls to the extent aforesaid now or hereafter to be erected upon the southern boundary of the said road or gateway.

It is to be observed that, by this indenture, (1) the earlier right of way, running 60 feet from the George Street frontage and created in 1840, was extended to 110 feet, and (2) the grant and transfer of the right of way was coupled with a grant and transfer of all buildings on the right of way with the right to demolish and rebuild. It is this provision which is set out in detail at the end of the memorandum of transfer No. 7922 upon which Berger now relies for the relief claimed.

Both pieces of land were, in due course, brought under the Real Property Act. The original certificate of title to Bursill's land - certificate of title vol. XI, fol. 167, issued on 23rd June 1865 - i.e. before transfer 7922 - had endorsed upon it a notification of the easement created by the documents registered No. 261, Book S. This notification was as follows:

Subject and without prejudice nevertheless to a subsisting right (belonging to the owners of the land adjacent) of a road and gateway over 9 feet in width of the north boundary of the land above described and extending from George Street 60 feet but over which said road or gateway the owner for the time being of the land above described is at liberty to build at the height of 12 feet from the ground.

After registration of transfer 7922, a further entry on 15th June 1872 was made upon certificate of title, vol. XI, fol. 167 as follows:

The current certificate of title in respect of Bursill's land bears this notification:

Rights of way created by and more fully set out in Deed Book 5 No. 261 affecting parcel (X) and Transfer No. 7922 affecting parcels (X) and (Y) in the plan hereon. The reference in this notification to Book 5 was, no doubt, intended to be a reference to Book S.

When Berger's land was brought under the Act, certificate of title 1508, fol. 179 bore this notification:

Grant of right of way as appurtenant to the land above described over the piece of land 9 feet wide coloured brown on plan hereon as created by Indenture Registered No. 261 Bk. S and Transfer No. 7922. The current certificate of title to this land is vol. 8330, fol. 31, which bears this notification: Right of way created by Indenture Registered No. 261 Book S and Transfer No. 7922 appurtenant to the land above described affecting the piece of land shown as site of right of way in the plan hereon.

As Bursill's land was acquired bona fide and for value from a registered proprietor with a certificate of title containing no express notification of the rights which Berger is now asserting with respect to the buildings on the first 28 feet of the right of way, Bursill, prima facie at least, holds its land free from those rights: Real Property Act, 1900-1967 NSW, ss. 40, 42, 43 and 135.

The learned judge of first instance, McLelland C.J. in Equity, having come to the conclusion that Berger's rights in respect to the buildings over the right of way amounted to an easement, followed the earlier decision in James v. Registrar-General [1] , and decided that s. 42 (b) of the Real Property Act applied to easements created after the servient tenement was brought under the Act. Accordingly, his Honour decided that the rights conferred by memorandum of transfer 7922 were excepted from the provisions of the Act creating indefeasibility of title. It was on this basis that he made declarations (a) and (b).

The first question is whether the rights created by memorandum of transfer 7922 did, in relation to the buildings, create rights that are properly to be described as an easement to which s. 42 (b) of the Act could apply.

The document in question takes the form of a memorandum of transfer and was registered as such. The operative words are "I do hereby grant and transfer" what follows, and it appears to me that the original right of way to the extent of 60 feet was confirmed and was prolonged for 50 feet to constitute a right of way of 110 feet. Coupled with this was a transfer of the buildings on the first 28 feet of the right of way together with the right to pull down those buildings, to re-build within the defined limits, and, in such re-building, to use and build upon the existing walls on the boundary of Bursill's land.

In so far as the document extended the right of way, an entry was, as has already appeared, made upon the certificate of title, but, in so far as rights to or in respect of the buildings were granted or transferred, there was no entry made upon the certificate of title beyond the reference to the memorandum of transfer itself described as the grant of the extension of a right of way. A memorial to be in accordance with s. 37 must state the nature of the instrument. Here it was stated that the instrument, although described as a transfer, created an easement and nothing more. There was, therefore, no memorial of a transfer.

It seems to me that, to the extent to which memorandum of transfer 7922 created an easement, s. 42 (b) was not necessary for its protection because such easement was notified, and, in so far as the document went further and granted property rights to or in respect of the buildings, s. 42 (b) could not apply because any omission on the folio of the Register Book constituted by the certificate of title was not the omission of any right of way or other easement.

It remains for consideration, however, whether the transfer of the building effected by transfer 7922 was itself notified upon the folium of the Register Book for the purposes of s. 42 simply by reason of the notification of the rights of way created by the two instruments mentioned, including transfer 7922 by which the transfer was also made. If so, the estate of the registered proprietor is subject to the interest claimed by Berger; otherwise it is not. The question, of course, is not whether a careful purchaser might be expected to inspect the instruments referred to and by so doing discover that, should it have been intended to notify the transfer of the interest in the land as well as the creation of the right of way, the notification actually made was incomplete. The question is rather whether the transfer of the property interest was itself notified by the reference to an instrument which, it was quite accurately said, created a right of way. It seems to me that the only interests notified were the rights of way and that that description cannot be regarded as covering the transfer of the interest in land constituted by the transfer of the building. I do not think that it would be conducive to the purpose of the Act to establish indefeasibility of titles to regard what is clearly the accurate notification of the creation of rights of way as going further and notifying an unmentioned transfer of land by reason of the reference to the instrument by which the rights of way were said to have been created but which also effected the transfer. In my opinion the transfer of land was not notified upon the folium of the Register Book constituted by Bursill's certificate of title and by reason of s. 42 the registered proprietor holds the land free from the estate now claimed by Berger by virtue of transfer 7922.

My conclusions require the allowing of the appeal without consideration of the question whether or not, if there had been the omission of any right of way or other easement, s. 42 (b) would have applied to a right of way or other easement created after the land had been brought under the Real Property Act. They also dispose of the cross appeal. It cannot succeed.

Accordingly, I am of the opinion that the appeal should be allowed and the cross appeal dismissed.

This case arises from conflicting claims of the owners of adjoining lands fronting the western side of George Street in the City of Sydney. The appellant, Bursill Enterprises Pty. Ltd. (which I shall call Bursill), is the registered proprietor under the Real Property Act, 1900-1967 of an estate in fee simple of its land. On the northern side of Bursill's land lies the land of which the respondent, Berger Bros. Trading Co. Pty. Ltd. (which I shall call Berger), is the registered proprietor for an estate in fee simple. Bursill's land is subject to a right of way, Berger's land being the dominant tenement. The right is exercisable over a strip of land running westerly from George Street, 9 feet wide and 110 feet in length, bounded on its northern side by the boundary between Bursill's land and Berger's land. Across this strip and to a distance of 28 feet from George Street there is a building. The lowest part of it is 12 feet above ground level, so that the right of passage to and fro along the way is not impeded. This building is physically a part of a building on Berger's land, although it is supported on the southern side by the wall of a building on Bursill's land. The building that stands on Berger's land was, we were told, once an hotel. The rooms which are built above the way are, it was said, physically a part of those premises. Berger claims to be entitled to continue in occupation of this building by virtue of an instrument of transfer dated 15th May 1872. Bursill claims the building as registered proprietor of the land on which it stands. This dispute gives rise to some troublesome questions of title under the Torrens system. To understand these it is necessary to trace the origins of the competing titles.

In 1839 the lands which are now Bursill's and Berger's were all part of a grant by the Crown to one Thomas Torkington. In 1840 Torkington, by lease and release, conveyed a parcel of his land, of which what is now Berger's land was a part, to one William Cross. This conveyance granted to Cross, in addition to the land conveyed, a right of way over the existing access thereto, which was on the adjoining land that Torkington retained. This easement was described in the registered deed of lease and release (No. 261 of Book S.) as follows:

The right of road and gateway of 9 feet wide forming part of the south boundary line of the land hereby released and extending from George Street 60 feet but over which said road and gateway the said Thomas Torkington his heirs & assigns are at liberty to build at the height of 12 feet from the ground.

The Torrens system was introduced into New South Wales in 1862. The short title of the Act is the "Real Property Act". It was called in the Supreme Court, and in the argument in this Court, the Real Property (Title and Transfer) Act, apparently because that is the heading under which it appears in Alexander Oliver's collection of the statutes of New South Wales (1879). In 1865 one Robert Guy became registered by certificate of title, vol. XI fol. 167, dated 23rd January 1865, as the proprietor of what is now Bursill's land. Guy held this land subject to the right of way to which Torkington had made it subservient, his certificate of title stating that he "is now the proprietor of an estate in fee simple subject to such encumbrances liens and interests as are notified hereon"; and there was a notification as follows:

Subject and without prejudice nevertheless to a subsisting right (belonging to the owners and of the land adjacent) of a road and gateway over 9 feet in width of the north boundary of the land above described and extending from George Street 60 feet but over which said road or gateway the owner for the time being of the land above described is at liberty to build at the height of 12 feet from the ground.

Thus in 1865 the owner of land which included what is now Berger's the dominant tenement, had a right of way as described over part of the land which is now Bursill's, the servient tenement; but the landowner of the servient tenement was at liberty to build across the way at a height of 12 feet from the ground. At some time before 1872 some such buildings were in fact built. These did not obstruct passage, being 12 feet above the ground.

On 4th April 1872 a parcel of land, of which what is now Berger's land was part, was acquired by William Long, wine merchant, by purchase from the then owner. It was conveyed to him by registered deed dated 30th May 1872 (No. 424 in Book 130). Long, having purchased this land on which the Crown Inn stood, apparently wished to have a right of way over a longer passage and also to have as an addition to his premises the building that had been erected above the way on Guy's land. He made an agreement with Guy which was embodied in a memorandum of transfer, dated 15th May 1872, in due form under the Real Property Act and duly registered as number 7922. This instrument is critical in this case. I therefore set it out in full and exactly as it appears in the Register Book.

I, Robert Guy of the city of Sydney in the Colony of New South Wales Corn Factor being registered as the proprietor of an Estate in fee simple in the land hereinafter described, subject, however, to such encumbrances, liens, and interests, as are notified by memorandum underwritten or endorsed hereon, in consideration of Four hundred and fifty pounds (£450.0.0) paid to me by William Long of the City of Sydney Wine Merchant the receipt whereof I hereby acknowledge, do hereby grant and transfer to the said William Long his heirs and assigns full and free liberty for himself his heirs and assigns and his and their workmen and for all other persons authorized by him or them with or without laborers vehicles horses or other animals at all reasonable times to drive ride operate and labor up down to from and upon a certain road or gateway 9 feet in width as it now exists to the extent of 60 feet and 50 feet in prolongation thereof of the northern boundary of all that piece of land situated in Sydney and comprised in Certificate of Title dated the 23rd day of January 1865 registered volume no. XI folio 167 such roadway together with the prolongation thereof extending from George Street 110 feet westerly from such Street towards the western boundary of the land described in the before mentioned Certificate of Title together with all the Buildings at present erected on the road or gateway and the right to pull down such buildings and to rebuild others at the height of not less than 12 feet from the ground over such road or gateway to the extent and no further than the existing building goes and for any of such purposes to use and to build upon the walls to the extent aforesaid now or hereafter to be erected upon the southern boundary of the said road or gateway.

On 15th June 1872 a notification of this memorandum of transfer was entered upon the then certificate of title (vol. XI fol. 167) of the land that is now Bursill's. This notification read:

Subject also to an extension of the right of way above noted granted to William Long of Sydney, Wine Merchant, his heirs and assigns by Memorandum of Transfer No. 7922 dated 15th May 1872, produced and entered 15th day of June 1872 at 12 o'clock noon. Later, as the result of various dealings, certificate of title vol. XI fol. 167 was cancelled. When Bursill purchased the land the relevant certificate of title was vol. 7296 fol. 40, dated 28th May 1957. It contained a "notification" in the same terms as that I have set out above. A new certificate of title, vol. 11025 fol. 159, that now current, was issued on 10th April 1969. This certificate records that Bursill Enterprises Pty. Ltd. is the registered proprietor of an estate in fee simple "subject nevertheless to such exceptions encumbrances and interests as are shown in the Second Schedule". One notification in the Second Schedule reads: Rights of way created by and more fully set out in Deed Book 5 No. 261 affecting parcel (X) and Transfer No. 7922 affecting parcels (X) and (Y) in the plan hereon. [The reference to "Deed Book 5" is a clerical error for Deed Book S.] Parcel (X) referred to is the original strip 60 feet long and 9 feet wide that was subject to the right of way granted by Torkington in 1840. Parcel (Y) is the additional fifty feet on prolongation thereof over which Guy granted a right of way in 1872.

I turn to the land that is now Berger's. It was acquired by Berger in 1968. It had been brought under the Real Property Act, 1900 in 1904 when certificate of title vol. 1508 fol. 179 was issued in respect of it. The land was described by metes and bounds and attached to the certificate of title was a copy of a survey plan that was made in 1902. It shews, immediately south of the land so described, a "Right of Way 9′ wide", and at its eastern end "Covered passage". Another survey plan put in evidence in the Supreme Court is dated 1941. It shews the area in question as "Right of way built over extends upwards two storeys". It seems that the two-storeyed building that is now standing above the passage way is that which was there in 1941. There is no material before us to shew when it was erected. It seems unlikely that it is what in Guy's transfer to Long in 1872 was called "all the Buildings at present erected". This lack of a detailed history of the building might seem immaterial: but Berger claims to be entitled to pull down the present two storeys and rebuild on the same site without any restriction of height. Thus a question arises of whether, by the terms of the instrument of 1872, Long, or his successors in title, were empowered to rebuild from time to time or once only. If once only, that has probably been done already, at some time since 1872.

The current certificate of title of Berger's land is vol. 8330 fol. 31, issued on 17th January 1962. It bears the following "notification":

Right of way created by Indenture Registered No. 261 Book S and Transfer No. 7922 appurtenant to the land above described affecting the piece of land shown as site of right of way in the plan hereon. I have set this out to complete the history. In itself, it does not, I think, directly avail either party. The question for us is what rights, if any, Bursill has in respect of the building over the passage. That depends primarily on Bursill's certificate of title, not on a right appurtenant to Berger's land appearing in Berger's certificate of title.

The right of way that Guy granted and transferred to Long, his heirs and assigns was not merely a personal liberty. It was an easement which Long got as then owner of land that is now Berger's, and which became appurtenant to that land. I think that the interest in the building the subject of transfer also became an appurtenance to Long's land, and that it would descend, or could be disposed of, with that land. Strictly speaking, it is not necessary to decide on this appeal whether or not that is so; for the essential question is whether Bursill is entitled to the present building over the passage. It is possible to say that it is not so entitled without deciding that Berger is. However, the case has been posed as a contest between Bursill and Berger as to which of them is now the owner of the building.

That contest arises because both certificates of title, Bursill's and Berger's, refer explicitly to transfer No. 7922 as only creating a right of way. There is no express reference to it as a transfer of the building. Bursill therefore claims that, having purchased its land from a prior registered proprietor for value, it has an indefeasible title, subject only to a right of way. It relies upon ss. 40, 42, 43 and 135 of the Real Property Act, 1900. In answer to this, Berger says that all that Guy conveyed to Berger's predecessor in title by transfer No. 7922 were easements; and that s. 42 (b) excepts from the indefeasibility that a certificate of title creates the omission or misdescription of an easement. To that Bursill replies that s. 42 (b) relates only to easements in existence at the time of the primary application to bring land under the Act. Then Berger, to rebut this, points to the recent decision of the Supreme Court of New South Wales in James v. Registrar-General [1] . In the Supreme Court this case was made to turn upon the questions of law thus raised.

The learned Chief Judge in Equity held that the rights conferred by transfer No. 7922 in respect of buildings over the way were indeed easements: that they had been erroneously omitted from the certificate of title: and that, by virtue of s. 42 (b), the benefit of them was preserved for Berger. His Honour therefore declared: (a) that Berger is entitled to retain for its own exclusive use the building at present erected over the way; and (b) that Berger is entitled to support this building on the northern wall of Bursill's building and, for the purpose of such support, to have the present wall maintained. His Honour, however, refused to make a declaration, which Berger sought, that it, Berger, could rebuild above the passage - without restriction as to the height of any building it erected, except that it must not be below 12 feet from the ground.

The starting point for a consideration of his Honour's decisions, which are the subject of the appeal and cross appeal before us, must be by an examination of the terms of the instrument of 1872, transfer No. 7922. The primary question is what was its effect in law when it was executed, not how it is described in later instruments. To start with, it is important to notice that it was a memorandum of transfer in due form according to the Real Property Act of 1862, 26 Vict. No. 9. Section 42 of that Act was in the same terms as s. 46 of the present Act. A memorandum of transfer was then, as now, the means by which a registered proprietor could transfer an estate or interest in his land or create any right of way or other easement by which he intended to burden his land. The memorandum of transfer of 1872, No. 7922, did two things: one in relation to an easement of way; the other in relation to buildings above the way.

As to the first aspect, the right of way: as a then existing easement, this was recognized, elaborated and extended in favour of William Long, his heirs and assigns. It was defined as a right of way for him, his and their workmen and persons authorized by him or them. It was declared to be exercisable at all reasonable times over the existing roadway and a prolongation thereof westward for 50 feet. This prolongation of the way was thereafter called an "extension of the right of way". And by that term the transfer of 15th May 1872 came to be compendiously described. That description is apt for it in one aspect, because by it the right of way was extended, in the sense that further land was made servient to the same right: and the description would, no doubt, be meaningful too for those who are accustomed to the colloquial misuse of the term, right of way, as meaning the land, the passage or way over which a right of way exists.

In its second aspect, what the transfer did was to grant to the transferee the building over the passage way. That was not a grant of something necessarily incidental to or involved in the creation of the further easement of way. It was a quite separate matter, a disposition by the transferor of a specified part of his hereditament, to the intent that the transferee should become its owner and be entitled thereafter to exclusive possession of it. It is true that there is no express habendum. But I do not think that this is fatal, or that the "grant and transfer" of the right of way "Together with all the buildings at present erected and the right to pull down such buildings and to rebuild others " was intended as anything other than a complete conveyance of the building then erected. The transferee entered into possession; and his successors in title of the land that is now Berger's have continued in possession as if the building formed part of their land.

As I read the instrument of transfer, what Guy purported to convey to Long was a building occupying a horizontal stratum of part of the land of which he, Guy, was the registered proprietor. It seems that before the Conveyancing (Strata Titles) Act, 1961 NSW, it was not possible in New South Wales to have a separate certificate of title under the Torrens system for a stratum of land above the surface of the earth. The provisions of the Real Property Act relating to subdivisions were, it seems, not thought to be applicable to such a case. But certificates of title for an estate in fee simple are always expressed to be subject to such encumbrances, liens, and interests as are notified thereon. The existence of a stratum interest could be effectively notified; for it is well established that such an interest is known to the law. At common law a freeholder is the owner not only of the surface of his land, but also of everything above it up to the sky and of everything below it to the centre of the earth. Therefore, at common law, he could dispose of a part of his holding by horizontal subdivision, just as by vertical subdivision. There were objections to this in mediaeval times: see Challis's Real Property, 3rd ed. (1911), p. 54. But by Coke's time these had disappeared. He said: "A man may have an inheritance in an upper chamber though the lower buildings and soil be in another, and seeing it is an inheritance corporeal it shall pass by livery": Co. Litt. 48 b: and see the cases referred to by Roper J. in the New South Wales Land and Valuation Court in Resumed Properties Department v. Sydney Municipal Council [1] . It does not follow from this that the word "land" is in every statutory context to be read as covering interests above the surface of the earth. Jacobs J. held in Re Lehrer and the Real Property Act, 1900-1956 that it was not so when subdivisions had to be considered for the purpose of the Local Government Act, 1919 NSW. However that may be, the very wide denotations given to the word "land" by s. 3 of the Real Property Act leave me in no doubt that when Guy, as registered proprietor for an estate in fee simple, granted and transferred the buildings that were then erected to Long, he conveyed a part of his land, something very different from an easement. The transfer of a building without any reservation of a right by the transferor amounts, I consider, to a conveyance of the exclusive ownership of the building. That is inconsistent with the concept of easement. That conclusion is reinforced when the transfer is coupled with an express right to pull down the building granted and build another in its place.

I am therefore unable to agree with the decision of the learned Chief Judge in Equity that the grant of the building was the creation of an easement. I therefore reject the proposition that Berger can invoke s. 42 (b) and rely upon an easement in its favour omitted from Bursill's certificate of title. What Berger claims is not an easement. That makes it unnecessary for me to express any opinion on the conflict between the view of s. 42 (b) that Nicholas J. expressed in Jobson v. Nankervis [1] , which is supported by decisions in New Zealand, and the opinion of the majority in James's Case, [2] : see also Wilkinson v. Spooner [3] .

(1943) 44 S.R. (N.S.W.) 277. 2. (1967) 69 S.R. (N.S.W.) 361. 3. [1957] Tas. S.R. 121.

The common law rule that there can be a separate freehold estate in an upper storey of a building has some difficulties in practical application. These arise mainly because of questions about the right to support. But here that is expressly provided for by the words giving a right "to use and to build upon the walls upon the southern boundary of the said road or gateway". That is a recognition of a right in the grantee of the building to have it supported by walls on the grantor's land: see Bond v. Nottingham Corporation [4] . I take it to be merely an expression of the implication of law expressed in the maxim "quando aliquis aliquid concedit concedere videtur et id sine quo res uti non potest": Pomfret v. Ricroft [5] : see Richards v. Rose [6] ; cf. Billiet v. Commercial Bank of Australasia Ltd. [7] .

[1940] Ch. 429, at pp. 438, 439. 2. (1669) 1 Wm. Saund. 321, at p. 323 [ 85 E.R. 454, at p. 460]. 3. (1853) 9 Ex. 218 [156 E.R. 93]. 4. [1906] S.A.S.R. 193.

The critical question, as I see the matter, is then whether the interest in respect of buildings that Guy conveyed to Long can be said to have been "notified on the folium of the register-book constituted by the certificate of title" within the meaning of s. 42 of the Act. If it was, then Bursill holds its land subject to it; and that involves no inroad upon an indefeasible title.

The argument that the interest in the buildings is not notified on the certificate of title proceeded on the assumption that Bursill, when purchasing the land, could safely neglect to search transfer No. 7922, which was expressly referred to on the certificate of title. It is contended that this reference to the memorandum of transfer did not amount to constructive notice of its full operation, because it was described as creating an "Extension of the Right of Way". Doubtless this description would have been better if it had read "extension of right of way and rights in buildings above the way". But it seems to me that what is "notified" to a prospective purchaser by his vendor's certificate of title is everything that would have come to this knowledge if he had made such searches as ought reasonably to have been made by him as a result of what there appears. I here use the words of s. 164 of the Conveyancing Act, 1919 NSW. We are not concerned in this case with s. 43, which gives a protection against unregistered instruments, for transfer No. 7922 was registered, and is noted on the certificate of title.

It seems to me that, at any time from 1872 till today, a prudent conveyancer acting for a purchaser of the land that is now Bursill's would have ascertained what it was that transfer 7922 referred to on the vendor's certificate of title in law effected. True he might have been surprised to discover all that his search revealed. But surely no prudent person, seeing the reference to a right of way, would neglect to ascertain what exactly was the nature of the right of way, the land subject to it, the persons who could avail themselves of it, for what purposes in what manner and at what times. The need to make such a search seems the more obvious if, by an inspection or survey of the land, the intending purchaser had become aware that there was a building over part of the land which was in the occupation of his neighbour. And it seems unlikely that a purchaser of this land in a built-up area of the City of Sydney would not be aware of the existence of the passage way and of the building above it. Whether he was so or not the reference on the certificate of title to transfer 7922 was I think constructive notice of what it provided, that is that the land was subject not only to a right of way but also to an interest of the adjoining landowner in the building above the way. I think that the registered proprietor of the land that is now Bursill's held his title subject to that interest. Therefore I consider that the owner of the land that is now Berger's has, and has had, in law a right to the exclusive use and occupation of this building. This Berger's predecessors in title have enjoyed for nearly a century. But no question of a right from adverse possession arises. The owners of Berger's land have held the building as of right by documentary title.

At this point I should mention an argument based upon s. 35 of the Real Property Act, which corresponds to s. 34 of the Act of 1862. This was that there was not a sufficient "memorial" of the instrument of transfer which that section requires. The question was really relevant only on the basis that the right in respect of the building was an easement: and that, as I have said, seems to me an erroneous view. Moreover the proposition seemed to confuse the duties of the Registrar-General, who may have to decide whether an instrument tendered is a sufficient memorial of a transaction, with the consequences of his registering the instrument and noting on the certificate of title in the Register Book that he has done so. As Latham C.J. said in Brunker v. Perpetual Trustee Co. Ltd. [1] , "a transfer is a document which, upon registration, transfers an interest in land". It is not to the point to say that transfer No. 7922 did not transfer an interest in land when it was registered. Its efficacy to do so, according to its terms, was not affected by a later insufficient description of its contents.

In an affidavit filed on behalf of Berger in the Supreme Court it is said that Berger claims that Bursill is not entitled to build over any part of the way not at present built upon. Berger apparently bases this contention on a supposed prescriptive right to prevent interference with light and ventilation to its building. This question does not arise in the present proceedings. I say no more of it than that I find nothing in any of the documents before us that would deprive Bursill of the right to build above the way, so far as the City Council building regulations allow, leaving the way itself unobstructed to a height of 12 feet.

In my opinion Bursill is not at liberty to demolish the wall on its land which supports Berger's building above the passage way. I think therefore that the second declaration that Berger sought was properly made, except that the declaration that it is entitled "to have the present wall maintained" is misleading. If it means that Bursill has an obligation to maintain its wall in good repair as a support, I am not able to agree: see Bond v. Nottingham Corporation [2] . But if it means simply that it may not remove this support then I would agree. I consider that in the declaration the word "maintain" should be altered to "remain in position" or some such phrase.

I come now to the cross appeal by which the respondent Berger claims to be entitled to a declaration, as sought in its statement of claim, that it is entitled

To build and rebuild over the right of way granted by the said transfer to a depth of approximately 28 feet west of George Street being the extent of the existing building at a height of not less than 12 feet from the ground, but otherwise without restriction as to height. This cannot, I think, be sustained. It is said that the right that Guy gave to Long, to pull down buildings and rebuild others, is to be read as enabling this to be done, from time to time, by anyone who is owner for the time being of any building erected over the way. It is enough to say that any right to rebuild that Berger has is limited to erecting a building of the same dimensions as that which the original building had. It must be "to the extent and no further than the existing building goes", the "existing building" being that there in 1872 which Guy transferred to Long. There is no warrant at all for the proposition that the grant of a building of two storeys enables the grantee to erect further storeys. The right of support of a two-storeyed building by the wall on Bursill's land does not mean that that wall must support a multistoreyed building.

It follows from what I have said that, although I take a very different path from that which the learned Chief Judge in Equity took, and that I am unable to accept his reasons, I would uphold in substance the declarations that he made.

I would therefore dismiss the appeal, but make some alterations in the form of the decretal order.

I would also dismiss the cross appeal; but in relation to it I consider that the decretal order as recorded is ambiguous, and not in an appropriate form to be registered in the register of causes, writs and orders established by the Conveyancing Act. His Honour had declined to make the declaration that the plaintiff sought: but the decretal order, by stating that the plaintiff was not entitled to do what it claimed to be entitled to do, could be misleading. I think it should be modified; for a refusal to make a declaration in involved terms does not necessarily authorize a declaration to the contrary in the same terms, or so it seems to me.

As in the view I take, neither party has wholly succeeded or wholly failed in the arguments it advanced, I think that no order should be made as to the costs of the appeal.

At a glance

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Before

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Judgment (85 paragraphs)

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