Conveyancing - Land titles under the Torrens System - Easements - Creation - By prescription.

Land Titles Act 1980 (Tas), s138J.

Judgment Number: [2007] TASSC 93

COOK v COLLECTION CORPORATION OF AUSTRALIA PTY LTD

1 The parties have consented to a point of law raised by a pleading being disposed of before the trial. The parties have also consented to the action, including the point of law, being tried by the Master.

2 The plaintiffs are the owners of land at 350 Argyle Street, Hobart. The plaintiffs claim that they have acquired a right of way over the adjoining land by long user by virtue of the Prescription Act 1934 or, alternatively, by virtue of the doctrine of lost modern grant. They seek a declaration accordingly.

3 The Land Titles Amendment (Law Reform) Act 2001 came into effect on 12 April 2001. By s22 it repealed the Prescription Act 1934. It abolished the doctrine of lost modern grant. By s16 it added a number of provisions to the Land Titles Act 1980. Included in the added provisions is Division 2 of Part 1XB. The division is as follows:

"Division 2 - Right to acquire easements

Abolition of common law rules

138I (1) This Division supersedes the rules of the common law for the acquisition of easements by prescription.

(2) The rule of law known as the doctrine of lost modern grant for the acquisition of easements is abolished.

Acquisition of easements by possession

138J A person who has used or enjoyed rights which may amount to an easement at common law for a period of 15 years, or 30 years in the case of a person under disability, may apply to the Recorder in an approved form for an order in accordance with Division 3 vesting an easement in respect of those rights in him or her."

4 Division 3 contains s138Q which is as follows:

"Power of Recorder to make recordings, &c

On the vesting of an easement under this Part, the Recorder -

(a) must make such recordings in the Register as he or she considers necessary to give effect to the easement and its effect on the dominant tenement and the servient tenement; and

(b) may call in certificates of title, grants and duplicate registered dealings for making those recordings"

5 Division 3 also sets out the requirements to be met before an order vesting an easement can be made. There is a requirement, which did not exist under the Prescription Act or at common law, and the plaintiffs make no secret of the fact that they will have difficulty satisfying it. Section 138K(4) provides that if the owner of the servient land the subject of the application objects to a vesting order being made, the Recorder cannot proceed to consider the application unless first satisfied that to refuse it would result in the applicant suffering "serious hardship".

6 The question which the parties have asked me to determine first is whether the Court has jurisdiction to determine the claim. The question arises because the action was not commenced until after the amending Act came into force. The defence includes the following:

"7 The Defendant says further that if the Plaintiff had the legal right of way pursuant to Section 3 of the Prescription Act 1934, which is denied, such right of way was taken away on or about 12 April 2001 with the repeal of the Prescription Act 1934.

8 The Defendant says further that if the Plaintiff has the right of way, which is denied, the Plaintiff ought make application to the Recorder of Titles pursuant to Division 3 Part IVA [sic] of the Land Titles Act.

9 The Defendant says, as a result of the matters referred to in paragraph 7 and 8 of the Defence, that the Plaintiff has no cause of action, and/or the Supreme Court has no jurisdiction to determine the action."

7 It is plain from the provisions repealing the Prescription Act and abolishing the doctrine of lost modern grant (being the only vehicles by which an easement by prescription could be acquired in Australia) and from s138J that an easement by long use or enjoyment can now only be acquired by successful application to the Recorder of Titles.

8 As to whether the easement claimed could have been acquired by prescription over land registered under the Land Titles Act 1980 before the 2001 amendments, counsel for the defendant, without making an express concession, appeared to accept that it could. When asked about it he said that the relevant provision is s40(3)(e)(i), which is as follows:

"The title of a registered proprietor of land is not indefeasible -

so far as regards -

an easement arising by implication or under a statute which would have given rise to a legal interest if the servient land had not been registered land;"

The opinion expressed in Bradbrook & Neave, Easements and Restrictive Covenants in Australia, 1981 ed at par1141 is that the exception contained in s40(3)(e)(i) is broad enough to cover easements created under the Prescription Act and easements created under the doctrine of lost modern grant.

9 Counsel for the defendant did not suggest that there was anything express or implicit in the

10 amending legislation to the effect that unregistered easements acquired by prescription before the coming into effect of the new legislation were lost and needed to be re-acquired by application to the Recorder if they were ever to be recorded on the Register of Title. In fact, counsel for the defendant fairly pointed out that the 2001 legislation left untouched the old provision by which the recording of an easement obtained by prescription could be achieved. That provision is s105(7) which is as follows:

"On application in writing for that purpose, the Recorder may record in the Register any easement over or appurtenant to registered land which the Recorder is satisfied has been recognized by an order of the Supreme Court."

11 In court proceedings for a declaration that an easement exists by prescription the investigation is not to see whether an easement should be granted. It is to see whether the easement does in fact exist. This was so notwithstanding that to acquire an easement under the Prescription Act court proceedings had to be taken. The reason court proceedings had to be taken under that legislation was not so the Court could confer the right, but to attach the use or enjoyment relied upon to a period of time identified by the Statute.

12 Acquisition of a right under the Prescription Act was dependent upon there having been enjoyment of the right during a period ending immediately prior to the commencement of proceedings. The Prescription Act, s4, included the following:

"Each of the respective periods of years ... shall be deemed and taken to be the period next before some proceeding wherein the claim or matter to which such period may relate shall have been or shall be brought ..."

13 Counsel for the defendant referred to Hyman v Van Den Bergh [1908] 1 Ch 167 where Cozens-Hardy MR said at 171:

"... Unless and until the claim or matter is thus brought into question, no absolute or indefeasible right can arise under the Act."

14 The plaintiffs' writ was not filed until 2 March 2007, almost six years after the repeal of the Prescription Act. The effect of this may be fatal to the success of the plaintiffs' Prescription Act claim as all of the events necessary to create the right had not occurred prior to the repeal. In particular, proceedings had not been commenced prior to the repeal. But this does not mean that the Court lacks jurisdiction to determine the claim.

15 The difficulty does not exist so far as the claim for an easement under the doctrine of lost modern grant is concerned. Under that doctrine, as distinct from a claim under the Prescription Act, the relevant period does not need to be a period ending with the commencement of an action.

16 The plaintiffs allege in their statement of claim that a period of enjoyment of 20 years had accrued before the amending legislation came into effect in 2001. The claim for a declaration that, accordingly, an easement exists is not a proceeding to have it decided whether an easement should be granted.

17 The amendments mean that easements which were formerly acquired by prescription can only be acquired now by application to the Recorder of Titles. The amendments have no impact on the Court's power to hear and determine a claim that an easement had come into existence prior to the commencement of the amending legislation. The plaintiffs claim that they already had the easement. Their claim is for the declaration of a right in existence as opposed to a claim for the acquisition of a right. There is no provision in the Land Titles Act which would enable the Recorder to determine such a claim and so of course nothing to indicate that the jurisdiction of the Court has been excluded.

18 The point of law raised by the defence challenging the jurisdiction of the Supreme Court to determine the claim is resolved in favour of the plaintiffs. The Court has jurisdiction.