1. The application filed in September 2013 purported to be made under s 41 of the Subdivision Act 1988. Section 41 allows a person to seek a declaration concerning any matter that could form the subject matter of an application under that Act.
2. The initial application did, at least in part, seek a declaration as against the first respondent - to the effect that the internal title boundaries on the plan do not accord with the actual positions of constructed walls and buildings. There is some doubt whether this basic proposition is really materially in dispute, although there is a debate about what was intended as the title boundaries. There is nonetheless also some doubt whether this is a 'matter that could form the subject matter of an application' under the Subdivision Act 1988 to trigger jurisdiction under s 41.
3. More particularly, the ultimate relief then sought by the applicant as against the first respondent was the amendment of the titles. Given the effect of registration of the plan, this also raised doubt about the use of s 41 (as it goes beyond the making of a declaration) and VCAT's jurisdiction to grant the substantive remedy sought.
4. The remedy sought against the second respondent was also not in the form of a declaration to which s 41 applied, but rather orders about where the second respondents could park their car and boat, and the reinstatement of a tree and some shrubs.
5. It was presumably for these reasons that the Head of the Planning and Environment List had initially queried jurisdiction, and referred the matter to a practice day hearing on the Tribunal's own motion. It seems clear from the face of the documents filed that the application made under s 41 of the Subdivision Act 1988 was misconceived. VCAT would not have had jurisdiction under that provision to grant the substantive remedies sought by the applicant against either respondent.
6. It is however unnecessary to finally determine this issue, as the applicant appears to implicitly accept this position. The grounds of the application have been amended and the applicant no longer relies at all on s 41 of the Subdivision Act 1988. To the extent the application itself has not been amended, and still technically refers to s 41, it is appropriate that it be struck out insofar as it relies upon s 41 as a jurisdictional foundation.

1. Through an amended Points of Claim dated 8 November 2013, the applicant purported to amend its claim.
2. As against the first respondent the applicant sought in the amended claim, pursuant to ss 39 and 32AJ(b) of the Subdivision Act 1988, that VCAT order that the plan of subdivision be amended. The relief sought against the first respondent also refers (but simply in square brackets at the end of the claim, without elaboration) to ss 24(6), 32AI and 22(1B) of the Subdivision Act 1988.
3. Without providing any statutory basis for its claim as against the second respondent, the remedy sought against that second respondent in the amended Points of Claim in November 2013 was essentially the same as in the initial application.
4. I will deal with the material issues raised by the amended Points of Claim below, as the applicant has purported to further amend the basis for its claim. At the hearing on 17 January 2014, the applicant sought to file a Reply to each of the first and second respondents' Points of Defence, on the basis that both respondents assert the Tribunal lacks jurisdiction.
5. The Reply to the first respondent still refers to s 39 of the Subdivision Act 1988, but now alleges that the Tribunal also has jurisdiction under s 184 of the Australian Consumer Law and Fair Trading Act 2012 (or alternatively Part 9 of the Fair Trading Act 1999), or under s 103(1AA) of the Transfer of Land Act 1958, or under Part 11 of the Owners Corporation Act 2006.
6. The Reply to the second respondent alleges that the Tribunal has jurisdiction under ss 39 and/or 32AI and/or 32AJ of the Subdivision Act 1988, and/or Part 11 of the Owners Corporation Act 2006 and/or s 103(1AA) of the Transfer of Land Act 1958.

1. I am concerned that the applicant is adopting an increasingly 'scattergun' approach to attempt to found jurisdiction in VCAT to deal with her issues. VCAT is a creature of statute and derives its jurisdiction solely from its enabling enactments. An applicant cannot simply lodge an application under one provision of an enabling enactment and then seek to invoke the jurisdiction of the Tribunal under every section of that Act or other Acts. This is particularly the case where VCAT operates through different Lists, with different enactments or provisions allocated to different specialist lists under the Victorian Civil and Administrative Tribunal Rules 2008 (VCAT Rules), and with different procedures and/or fees applying.
2. I agree with the respondents that the Tribunal's jurisdiction must be properly engaged, and identified with a degree of precision[1]. That said, if the applicant has a bona fide case against either respondent that is within the jurisdiction of VCAT, she should not be lightly shut out from prosecuting that case. The Tribunal will often assist an unrepresented applicant to properly frame a case under the correct enabling enactment and within the correct VCAT List, although I note the applicant here is legally represented.
3. Equally, the Tribunal will occasionally amend and transfer applications between VCAT Lists, utilising the power and process under rr 2.05 or 2.06 of the VCAT Rules, when it is appropriate to do so to facilitate a hearing under the correct Act and in the correct List. It will not do so automatically where the underling cause of action, enabling enactment and/or jurisdiction is unclear, as to do so may simply transfer a potentially misconceived application into an administrative and legal merry-go-round within the Tribunal, creating additional costs and uncertainty, and without dealing with its underlying flaws. In such cases, it is better that the application be struck out or dismissed.
4. In the first paragraph of the applicant's written submission at the hearing, the two underlying issues before VCAT were essentially stated to be those set out earlier in these Reasons - namely:
   • the alleged error in the plan of subdivision created by the first respondent, leading to the boundary between one of the lots and the common property not corresponding with the position of buildings and the driveway as constructed; and
   • the alleged conduct of the second respondent in purporting to take advantage of the surveyor error, and failing to comply with the model rules for an owners corporation.

Subdivision Act 1988 and Transfer of Land Act 1958

1. Given the application was initially cast under s 41 of the Subdivision Act 1988, the proceeding here was allocated under the VCAT Rules to VCAT's Planning and Environment List, and the preliminary hearing was conducted within that List. Section 39 of the Subdivision Act 1988, now relied upon in part by the applicant, is also allocated to the Planning and Environment List.
2. Section 39(1) of the Subdivision Act 1988 is cast in relatively wide terms. An owner may apply to VCAT 'for the determination of a dispute' arising under that Act or the regulations. The ambit of the section is limited in part by s 39(2), but not in a manner relevant to this proceeding. Section 39 does not indicate what orders are open to VCAT in determining a dispute.
3. To the extent the applicant seeks amendment of the plan of subdivison, such an amendment (merely as a drafting exercise), or even its re-certification by the Council, would have little consequence. The applicant confirmed at the hearing that what is really still sought from VCAT as the substantive remedy is the amendment of the Register (i.e. the register of land maintained by the Registrar of Titles under the Transfer of Land Act 1958, leading to new certificates of title showing different lot and common property boundaries. This would involve a substantive change to the registered property rights that the second respondent currently enjoys, albeit that the applicant claims this is based on an historical error before the second respondent purchased its lot (and without the second respondent's knowledge of the alleged error). The second respondent contends that the effect would be to convert large tracts of their rear courtyard into common property.
4. Even if the applicant is correct in her assertion about an error in the plan submitted for registration (about which I make no finding, given the preliminary nature of the hearing before me), I do not consider s 39(1) of the Subdivision Act 1988 provides a basis for the remedy she now seeks.
5. Having regard to the Subdivision Act 1988 read as a whole, including the purposes of the Act in s 1 and the regulation-making power in s 43, the dispute resolution power in s 39(1) is limited to disputes arising within the statutory procedures for the subdivision of land (and the related procedures for easements, common property etc.). This view is bolstered by the sorts of persons that can apply under s 39(1) - an owner, applicant, Council or referral authority.
6. I do not consider that the dispute resolution power in s 39(1) is intended to deal with a dispute arising after a plan of subdivision has been registered, and that seeks to vary the rights created on the plan. There are several reasons for this:
   • given the Subdivision Act 1988 essentially deals with the procedures leading to subdivision, a dispute after registration of the plan is not necessarily a dispute 'arising under the Act ...'. The view I have reached is consistent with the decision of DP (now Judge) Macnamara in Jacobsen v Whitehorse City Council[2] where it was indicated that the applicant must demonstrate the link between the dispute and the Subdivision Act 1988 that renders it a proper one for referral under s 39. Not all disputes that relate to a subdivision arise under that Act, and the applicant has not demonstrated a proper link here. I agree with the respondents that the 'other' sections of the Subdivision Act 1988 referred to by the applicant (e.g. ss 22(1B), 24(6), 32AI and 32AJ(b)) are either mechanical or facilitating provisions, raise conditions that the applicant does not or cannot meet, or are irrelevant to the claim, and do not provide the basis for the alleged 'dispute' here[3].
   • the use of s 39 in the manner contended would offend established property law principles about the indefeasibility of title and the certainty of the Register and, in particular, the rights created under the Transfer of Land Act 1958. If s 39 contemplated such an outcome, it would have expressly stated this;
7. The applicant contends that, 'to the extent an amendment to the Register is required, then s 103AA of the Transfer of Land Act 1958 confers the necessary jurisdiction on the Tribunal'[4]. Section 103(1AA) provides:

(1AA) In any proceeding in VCAT relating to land or any instrument or dealing in respect of land, if VCAT directs the Registrar to make any amendment to the Register or otherwise to do any act or make any recordings necessary to give effect to an order of VCAT, the Registrar must obey that direction.

1. A number of points can be made about this provision:
   • contrary to the applicant's assertion, the provision does not confer any separate or general jurisdiction on VCAT. I note in passing that no provision of the Transfer of Land Act 1958 is allocated to any VCAT List under the VCAT Rules, as that Act is not considered to confer any separate jurisdiction on VCAT. It is simply a facilitating or consequential provision, where jurisdiction is established under another enabling enactment;
   • I agree with the second respondent that the provision does not purport to undermine the general principles of the indefeasibilty of title established under s 42(1) of the Transfer of Land Act 1958; and
   • having regard to the legislative history of the provision, s 103(1AA) was originally inserted into the Act when the jurisdiction for co-ownership disputes was transferred from the courts to VCAT in 2005. The provision was expanded in 2009 in line with other specific land legislation amendments, but the explanatory memorandum implicitly confirms that it is a facilitating or consequential provision to give effect to an order arising in a matter where VCAT has jurisdiction. Examples of this may arise for co-ownership disputes under Part IV of the Property Law Act 1958 within VCAT's Real Property List, changes to common property arrangements in VCAT's (where authorised) in the Owners Corporation List, or perhaps a direction to register an Agreement under s 173 of the Planning and Environment Act 1987 in VCAT's Planning and Environment List.
2. I do not consider that the view I have taken about the limits of VCAT's jurisdiction under s 39(1) of the Subdivision Act 1988 is affected or altered by the existence of s 103(1AA) of the Transfer of Land Act 1958.
3. It follows that I consider that the applicant's proceeding, to the extent it purports to be made under s 39 or some other provision of the Subdivision Act 1988 or s 103(1AA) of the Transfer of Land Act 1958, is misconceived. I do not consider that s 39, either alone or in conjunction with s 103(1AA), provides power to order the Registrar to amend the title boundaries in the manner or for the reasons sought in this proceeding.
4. The applicant belatedly requested that, if I did not consider the jurisdiction existed under s 39 of the Subdivision Act 1988 in VCAT's Planning and Environment List to order the amendment of the Register in the manner proposed, I should arrange for the transfer of the application to another VCAT List where that jurisdiction may exist. In relation to this specific aspect of the applicant's claim, the applicant could not readily identify (nor am I aware of) any provision of any particular enabling enactment allocated to any particular VCAT List that would provide jurisdiction to make the order sought. A transfer is therefore inappropriate.
5. To the extent that Part 5 of the Subdivision Act 1988 is allocated under the VCAT Rules to VCAT's Owners Corporation List (with Part 5 including ss 32AI and 32AJ(b) to which the applicant has now referred), I agree with the respondents that ss 32AI and 32AJ(b) do not confer separate jurisdiction on VCAT and appear to be facilitating or conditional provisions. Again, a transfer of this proceeding to the Owners Corporation List on that basis (i.e. just because the applicant has broadly referred to those provisions) would in my view be inappropriate.
6. It is appropriate that the application, insofar as it purports to be made under s 39(1) of the Subdivision Act 1988 (or that Act generally) or s 103(1AA) of the Transfer of Land Act 1958 and seeks amendment of the Register, be struck out. If the applicant can find a cause of action under some enabling enactment within VCAT's jurisdiction in a list other than the Planning and Environment List (of which I am unaware), then it is preferable that a fresh application be made under that provision and in that other List that clearly identifies the grounds, the jurisdiction, and the remedy sought. The striking out of this application in VCAT's Planning and Environment List does not prevent such an outcome.

1. I have earlier mentioned several other Acts to which the applicant has now referred as a purported basis for jurisdiction.
2. Both of the respondents dealt with these in their respective written submissions, and I generally accept their submissions that none provide jurisdiction to deal with the applicant's underlying claim against either respondent, save in one possible minor respect relating to the parking of vehicles which may have been capable of being dealt with as an owners corporation matter. I was informed that the second respondent has agreed to modify its use of the driveway, so that no continuing claim appears to arise on this issue.
3. Indeed, having regard to the applicant's amended Points of Claim filed in November 2013, the only material allegations pleaded against the second respondent relate to the respondent's ownership of its lot, and its desire to demolish a wall. I agree with the second respondent that neither allegation identifies a cause of action, and the applicant is in reality seeking to impose liability on the second respondent (through an attempt to amend its title boundaries) due to the alleged error of the first respondent in the preparation of survey plans some years earlier. I agree with the second respondent that any attempt to make the second respondent accountable for the prior actions of the first respondent is untenable, as least insofar as the proceeding has been pleaded to date.
4. In any event, I do not need to finally decide whether there is a possible cause of action open to the applicant against either respondent under s 184 of the Australian Consumer Law and Fair Trading Act 2012 (or alternatively Part 9 of the Fair Trading Act 1999), or under Part 11 of the Owners Corporation Act 2006. None of these provisions are allocated to VCAT's Planning and Environment List within which the current application has been made, and the attempt to rely upon them in the current proceeding is misconceived.
5. Again, the applicant belatedly requested that, if I could not deal with these matters, I should arrange for the transfer of the application to VCAT's Owners Corporation List to which these enactments are partly allocated. I note in passing that those enactments are also partly allocated under the VCAT Rules to other VCAT Lists, such as the Civil Claims List and the Real Property List depending on the particular provisions relied upon and the nature of the claim and remedy sought. Again, a transfer of this proceeding to another List on this basis (i.e. just because the applicant has broadly referred to those provisions) would in my view be inappropriate.
6. Although there is some material suggesting an allegation of a breach of the model rules for an owners corporation, the current application has already gone through three iterations (in the original application, the amended Points of Claim, and the Reply) with disclosing clear grounds or a proper jurisdictional basis even for that aspect of the claim. I therefore consider it would be inappropriate to merely transfer the current application to another VCAT List. The application in its current form would remain confusing and misconceived, further amendments would be required, and the procedural and jurisdictional issues would simply be re-raised at further cost and delay to all parties.
7. As I have indicated earlier, if the applicant can find a clear cause of action under some enabling enactment within VCAT's jurisdiction in a list other than the Planning and Environment List that deals with her underlying issues, then it is preferable that a fresh application be made under that provision and in that other List that clearly identifies the grounds, the jurisdiction, and the remedy sought. Again, the striking out of this misconceived application in VCAT's Planning and Environment List does not prevent such an outcome. The only potential prejudice to the applicant is that she may in such instance be required to lodge another (but different) application form and pay another filing fee. That requirement may have arisen in any event, and I note that different filing fees now apply to different types of applications in different VCAT Lists under the Victorian Civil and Administrative Tribunal (Fees) Regulations 2013 .

1. Given the strength of the respondents' arguments before me in demonstrating the misconceived nature of the current application, it may have been appropriate to dismiss the application. I have however decided to strike it out with a right of reinstatement. Both options are available under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 in dealing with a misconceived application, and both bring the current proceeding to an end. However, the option I have chosen allows for the possibility (albeit remote) that the application to VCAT's Planning and Environment List might be re-opened. It is at least conceivable (albeit unlikely) that some future application by the applicant to VCAT in another List (such as the Owners Corporation List) may ultimately or indirectly disclose a bona fide dispute between the parties arising under the Subdivision Act 1988 that warrants a reopening and further consideration of the dispute resolution power under s 39 or the declaration power under s 41. Whilst that is not apparent on the material thusfar filed, I have at least left open that possibility.
2. I therefore strike out the proceeding pursuant to s 75 of the Victorian Civil and Administrative Tribunal Act 1998 on the basis that it is misconceived.
3. Both respondents foreshadowed seeking costs against the applicant arising from its misconceived application. Whilst I do not necessarily encourage a costs application, I have reserved costs pending any formal application. Any costs application, if made, will be dealt with in the usual manner - either on the papers or (if any party requires) through a further costs hearing.

[1] For example, see the first respondent's written submissions at paragraphs 5 - 10 inclusive, and the cases cited therein.

[2] [2000] VCAT 400

[3] First respondents written submissions at paragraphs 13-15 and second respondent's written submissions at (unnumbered) pages 4-6.

[4] Applicant's written submissions at paragraph 6.