Mehmet Cihan v City of Sydney RSL Club Co- Op Ltd

Outline 1The question is whether an easement created over old system land is recorded as an interest on the current certificate of title of the servient tenement.

The facts 2The plaintiff is the registered proprietor of the land in Certificate of Title Folio Identifier E/23162 ("the Property") which land is Lot E in Deposited Plan 23162. 3By conveyance between Robert Chadwick as Vendor and John Valentine Hinton as Purchaser, dated 14 January 1882 registered Number 964 Book 237, land fronting George Street Sydney was sold to Hinton together with a right of way over part of the adjoining property retained by Chadwick. This grant of right of way was in the following words: "with full and free liberty and free licence for the said Purchaser his appointees heirs and assigns and his and their servants and workmen and for all other persons authorised by him or them with or without labourers carts and carriages horses or other animals by night and by day to drive ride operate and labour up down to and fro and upon the lane ten feet wide running along the west boundary of the said land to Liverpool Street and delineated in the said plan and coloured yellow and the passage...feet wide running at right angles to the said lane as delineated in the said plan and therein coloured yellow." Below is a copy of the plan endorsed on the conveyance, but indicating the land sold bounded red on the plan as Y and the lane and passage coloured yellow as X . 4The land conveyed is shown on the plan endorsed as bounded by George Street on the East. The land retained by Chadwick is on the West. The right of way land was adjacent to the western boundary of the land sold and gave access to Liverpool Street, Sydney. In 1891 the Property retained by Chadwick was converted to Torrens Title and Certificate of Title Volume 1022 Folio 161 was issued pursuant to Primary Application No. 8361 in the name of Robert Chadwick as registered proprietor. The Certificate of Title described the land by metes and bounds and expressed the title to be subject to the encumbrances, liens and interests "notified herein". The notifications include the following words: "Subject to full and free liberty and license for William Henry Hinton and Fredrick William Mackey their heirs and assigns and their servants and workman and for all other persons authorised by them with or without labourers, carts and carriages, horses or other animals at all times by night and by day to drive ride operate and labour up and down to and fro over the lane ten feet wide and the passage five feet wide coloured brown on plan hereon". The wording was thus almost the same as is the conveyance, except that the persons having the right were different, and may have been the executors of the will of the earlier owner. The plan referred to clearly showed the lands the subject of the right of way. 5The land in Certificate of Title Volume 1022 Folio 161 was subsequently subdivided into five parcels of land, being lots A, B, C, D and E in DP23162 and as lots were sold, new certificates of title issued for the separate lots. 6Certificate of Title Volume 6451 Folio 53 was issued for lot E in DP 23162 on 22 February 1952. This Certificate of Title bore a notification in identical terms to that in Volume 1022 Folio 161. On the third page of the Certificate of Title Volume 6451 Folio 53 was a plan on which the lane ten feet wide and the passage five feet wide were shown coloured brown. 7The current Certificate of Title for Lot E is Folio Identifier E/23162. As the title is in a computer folio the Certificate of Title certifies that the person described in the First Schedule is the registered proprietor of an Estate in fee simple (or otherwise) of the land described subject to such exceptions, encumbrances, interests and entries as appear in the Second Schedule. The plaintiff is named in the First schedule. The Second Schedule records in item 2 the following: "2 Easement affecting the land shown so burdened in Vol 6451 Fol 53". 8Under the further amended statement of claim the plaintiff being the registered proprietor of Lot E seeks a declaration that the defendants, who in sum own the land originally sold to Hinton, are not entitled to the benefit of a right of carriageway and an injunction restraining any such use. In the alternative, if there is such an entitlement, compensation is sought from the Torrens Assurance Fund controlled by the Registrar General. The land sold to Hinton has been converted to strata title. According to the pleadings, the second defendant is the owner of Lots 3 to 9 in Strata plan 2388. The third defendant is the owner of Lots 1 and 2 and the fourth defendant holds the common property. There is no first defendant. 9On 16 June 2011, I made an order under Part 28.2 of the Uniform Civil Procedure Rules (2005) that the following questions be determined separately and prior to any other issues: (1)On the assumption that a valid easement existed over a lane ten feet wide and a passageway five feet wide burdening the plaintiff's land and benefiting the second, third and fourth defendants' land at the time the plaintiff's land was brought under the provisions of the Real Property Act 1900 (NSW), does the notification in Item 2 in the Second Schedule of Folio Identifier E/23162 record such an easement? (2)Has the easement in favour of the second third and fourth defendants' land been omitted from Folio Identifier E/23162 within the meaning of S42(1)(a1) Real Property Act 1900 . I made that order because if the easement is recorded no claim for compensation will arise and the expense of obtaining evidence for that claim will be avoided. 10It is I think accepted, that if the easement is not recorded on the Register then this an omission which can be corrected under Section 13 (1)(d) of the Real Property Act 1900 [the Act], in which case a claim for compensation under Section 129 will arise. However the questions were based on the assumed fact.