His Honour then observed that conduct on the part of the registered proprietor that would constitute unconscientious behaviour would be sufficient to give rise to a " personal equity " in the relevant sense.
101 Finally, in Grgic v Australian & New Zealand Banking Group Ltd (1994) 33 NSWLR 202, Powell JA, with whom Meagher and Handley JJA agreed, expressed (at 222-223) the following with respect to what constituted "a personal equity" sufficient to be enforceable against a registered proprietor. His Honour said:
"I am of the view that the expressions 'personal equity' and 'right in personam ' encompass only known legal causes of action or equitable causes of action, albeit that the relevant conduct which may be relied upon to establish a 'personal equity' or 'right in personam ' extends to include conduct not only of the registered proprietor but also of those whose conduct he is responsible, which conduct might antedate or postdate the registration of the dealing which it has sought to removed from the Register."
102 Under the former s42(1)(b) of the RP Act, it was apparent from the decision of this Court in Australian Hi-Fi Publications (at 627) that an easement by implication has limited enforceability under the rights in personam exception to indefeasibility of title. Such an easement was enforceable only as between the proprietors of the dominant and servient lands which were involved in the transaction which gave rise to the easement. Further, so long as the registered proprietor of the servient land at the time the easement arose remained registered as proprietor, the registered proprietor of the dominant land could seek a court order directing the servient proprietor to take all steps necessary (including executing the appropriate documents and lodging them for registration) to secure the benefit of the easement by having it registered. However, unless the easement was registered in this way, once the servient land was transferred to a new registered proprietor taking without fraud, the easement could no longer be enforced.
103 According to Woodman and Nettle, The Torrens System in New South Wales at 10245, the position under s42(1)(a1) is the same. Sections 46 and 47 of the RP Act describe formalities for creating valid easements, the assumption behind these formalities being that easements will be reduced to writing and registered, but that until that happens an easement cannot be said to be "validly created". Accordingly, by limiting omitted easements to those that are "validly created" under the RP Act or some other Act, s42(1)(a1) precludes implied easements from being enforced against a registered transferee of that land or interest. However, according to the learned authors, it does not preclude the dominant owner from enforcing the implied easement against the servient land or interest where the ownership of the servient land or interest has not changed since the circumstances that gave rise to the implication of the easement.
104 In the 5th edition of Land Law, Professor Butt expresses a similar view (at 779). Although s42(1)(a1) precludes implied easements from being enforced against a later registered proprietor of the servient land, it should not negate the dominant owner's right to enforce the implied easement against the servient land if its ownership has not changed since the circumstances that gave rise to its implication. The authority for this proposition cited in footnote 515 is the decision of the primary judge in the present case.
105 Yet the legal basis as to why a Wheeldon v Burrows easement binds in equity the registered proprietor of the retained land notwithstanding the indefeasibility of provisions of the RP Act has not always been made clear. It was not in issue in Australian Hi-Fi Publications for, as Mahoney JA noted at the commencement of his judgment (at 620), only one question was argued on the appeal in that case. That was, whether a Wheeldon v Burrows easement not noted on the relevant certificate of title can be enforced against a person who, after the creation of that easement by his predecessor in title, became the registered proprietor of the servient tenement under the RP Act.
106 I have already referred in [75] above to what, to me, is the true jurisprudential basis of a Wheeldon v Burrows easement at common law. Subject to the ultimate effect of this Court's recent decision in Williams (see [61] above), it would seem that a common owner (registered proprietor) is bound by a personal equity to recognise that he or she has burdened the land retained by him or her (the servient tenement) by transferring to another that part of the land having the benefit of an implied easement which he or she as created (the dominant tenement) while both tenements were in common ownership and which it was his or her presumed intention to transfer with that benefit attached. Having impliedly granted to the transferee of the dominant tenement the benefit of that easement, it would be unconscionable for him or her to derogate from that grant.
107 The Campbells thus submit that the implied Wheeldon v Burrows easement in favour of Lot 6 arose upon the transfer by Mrs Chiplin of that lot to the Campbells. Had Mrs Chiplin retained ownership of Lot 12, the Campbells would have been entitled to enforce that interest against her. Furthermore, it was recognised as a consequence of the decision in Australian Hi-Fi Publication that if Mrs Chiplin had retained ownership of Lot 12 and subsequently sold it to the McGraths, they would have taken the land free of the implied right of way upon the registration of the transfer. But, it was submitted, the simultaneous transfers of Lot 6 to the Campbells and Lot 12 to the McGraths gave rise both to an implied right of way in favour of Lot 6 and an implied reservation of the right of way out of Lot 12.
108 As I have already acknowledged, the foregoing proposition may well be the case with respect to land under old system title. But in my opinion, the simultaneous transfers alone could not give rise to a "personal equity" binding upon the McGraths as the registered proprietors of Lot 12 in circumstances where they have not in any way contributed to the creation of the implied easement or conducted themselves in any way which could be regarded as unconscionable. In particular, their reliance upon their strict legal rights - that is, the indefeasibility of their title to Lot 12 effected by s42(1) of the RP Act - was in no way unconscionable.
109 On the contrary, the position in the present case is, if anything, analogous to the forgery cases where the registered proprietor of the relevant interest in respect of which equitable relief is sought, has done nothing to contribute either to the forgery or to the registration of the forged instrument. There must, in my opinion, have been some conduct on the part of the McGraths or those for whom they were responsible which would make it unconscionable for them to retain the benefit of the servient land free from the burden of the claimed right of way. In my view, there was no such conduct. Thus the mere simultaneous transfer of the two lots by Mrs Chiplin to the Campbells and McGraths respectively, and to the knowledge of each, was, in my opinion, insufficient to give rise to an equity binding upon the McGraths. This is so notwithstanding that Mr McGrath was generally aware that the driveway over Lot 12 had been used in the past to gain access to the rear of Lot 6, due to his familiarity with the locality.
110 I would add this. The Aldridge v Wright extension to a Wheeldon v Burrows easement is, as I have already noted, dependant upon the presumed intention of all three parties that the easement is to benefit the dominant tenement and to burden the servient tenement. This presumed intention is the basis for an implied term in the grant by the common vendor to the transferee/purchaser of each tenement. It arises by operation of law.
111 But mere knowledge on the part of the transferee of the putative servient tenement that both tenements are to be transferred by the common vendor simultaneously does not involve any relevant conduct on the part of that transferee. He or she has not created the easement and he or she is not a party to the transfer to the purchaser of the putative dominant tenement.
112 Although aware that such a transfer is to occur, the purchaser of the putative servient tenement is not only unaware of the terms of the contract between the common vendor and the purchaser of the putative dominant tenement but also has no control over those terms or, for that matter, when the transfer is to take place. There was no suggestion in the present case that the simultaneous transfers were due to any request or conduct on the part of the McGraths. As far as one can tell, it came about solely for the benefit and at the insistence of Mrs Chiplin. In these circumstances there was no conduct on the part of the McGraths to which any equity could attach to bind them personally.
113 One further aspect of the personal equity issue should be mentioned. The relief granted by the primary judge to the Campbells was analogous to rectification of the Register. The equitable basis of the remedy of rectification of a contract is that in its executed form the contract does not represent or embody the actual common intention of the parties: Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336 at 350; Codelfa at 346; see [74] above.
114 The requirement of an actual, as distinct from a presumed, common intention in the context of the equitable remedy of rectification, it seems to me, may be applied by analogy to the present case. In other words, no relevant equity arises to bind the McGraths unless it is established that it was the actual common intention of all three parties that Lot 6 should have the benefit of, and that Lot 12 should be subject to the burden of, a right of way over the driveway. In my view, even if that was the intention of Mrs Chiplin and the Campbells, it was not that of the McGraths.
115 Finally, I come to the recent decision of this Court in Williams v State Transit Authority of New South Wales. It is true, as the primary judge observed, that this case involved an easement by prescription. Mason P, with whom Sheller JA and myself agreed, noted (at 297 [111]) that text writers (including Professor Butt) had expressed the view that prescriptive easements based upon the doctrine of lost modern grant did not trump the registered proprietor's indefeasible title by means of the statutory exception in s42(1)(a1) of the RP Act. At 300 [129] the President observed that it was
"to pile fiction upon fiction to extend the doctrine of lost modern grant into the Torrens system, because (assuming no relevant exception to s 42 or its equivalents) that system contemplates title at law as arising only upon registration."
116 Special leave to appeal to the High Court from this Court's decision in Williams was refused on 29 April 2005. In the 5th Edition of Land Law at 779, Professor Butt refers to Williams as requiring reconsideration of the in personam enforcement of (unregistered) implied easements. The learned author observed that this Court in Williams refused to recognise the in personam enforcement of prescriptive easements. He continued:
"Since prescriptive easements and implied easements share a common feature arising by operation of law and without any registrable dealing, refusal to recognise the in personam enforceability of prescriptive easements must logically cast doubt on the in personam enforceability of implied easements."
117 In footnote 518 to the above passage, Professor Butt noted that the primary judge in the present case declined to apply this logic. However, the learned author observed that
"Given the relevant similarities between prescriptive and implied easements, it is difficult why it [the logic] should not apply."
118 In my opinion, there is much force in Professor Butt's observations about the effect of Williams upon implied easements of the Wheeldon v Burrows type. As he observes, and as I have endeavoured to demonstrate, such an implied easement arises out of the common intention of the relevant parties, which is presumed by operation of law. Prescriptive easements arise in a similar way. If prescriptive easements are trumped by the indefeasibility provisions of the RP Act, logic requires that those provisions should apply to implied easements in the same way.
119 However, it is unnecessary for me to express a concluded view on this issue. Turning to the Aldridge v Wright exception to the second rule articulated by Thesiger LJ in Wheeldon v Burrows, which presumes an implied reservation by the grantor over the servient tenement where there is a simultaneous transfer of both the putative dominant and servient tenements by the grantor to two separate ownerships, I do not consider that it is sufficient to give rise to a "personal equity" which bound the McGraths and which the Campbells were entitled to enforce against them. This is so notwithstanding the knowledge of the McGraths of the past use of the driveway over Lot 12 to gain access to the businesses conducted in the building upon Lot 6 and of their knowledge of the simultaneous transfer of Lot 6 to the Campbells.
120 Accordingly, for the aforementioned reasons, in my view the primary judge erred in his finding that the present case came within the in personam exception to statutory indefeasibility so that the RP Act did not prevent the enforcement by the Campbells against the McGraths of an implied right of way over the driveway on Lot 12.