PARTIES: OLYMPUS SUPERANNUATION FUND (TAS) PTY LTD as trustee for the Olympus Superannuation Fund

Real Property - Torrens title - Amendment or variation of title record - Powers of court - Recorder of Titles exercised power to correct Register to record easement on titles to dominant land - Title of registered proprietor to easement thereafter indefeasible - Recorder lacked power to reverse correction - Owner of servient land not empowered to apply to Supreme Court.

Land Titles Act 1980 (Tas), ss 139, 144.

Judgment Number: [2022] TASSC 16

OLYMPUS SUPERANNUATION FUND (TAS) PTY LTD as trustee for the

Olympus Superannuation Fund v RECORDER OF TITLES

1 George Adams died on 23 September 1904. He is remembered for establishing a lottery business that was originally named Tattersalls Sweep Consultations, and for establishing the Marble Bar in Pitt Street, Sydney. At the time of his death, his Tasmanian assets included much of the land in the block bounded by Gladstone Street, Salamanca Place, Montpelier Retreat and Kirskway Place in Hobart. On 24 November 1915 the trustees of his estate conveyed some of that land to a purchaser, the Tasmanian Rosella Preserving Company Ltd. The trustees conveyed three parcels of land to that company by one conveyance. They retained some adjoining land, and reserved a right of way to themselves over one of those parcels of land - a small area at the rear of 23 Salamanca Place, which was the site of the Rear Admiral Hornby Hotel. The conveyance did not contain a description of the land to which that right of way was intended to be appurtenant. Over a century later, that has led to this litigation.

2 The applicant in this proceeding, Olympus Superannuation Fund (Tas) Pty Ltd, is the registered proprietor of the three parcels of land that were the subject of the conveyance in 1915. Those parcels of land are now collectively known as 25 Salamanca Place. The second respondent to the application, Blue House Corner Pty Ltd, is the registered proprietor of two parcels of land known as 21 and 23 Salamanca Place. Its land is between the applicant's land and Gladstone Street, and is the site of an establishment known as "Irish Murphy's". Its land forms part of the land that the trustees retained at the time of the conveyance in 1915. It is now Torrens title land, having been brought under the Real Property Act 1862 in 1925.

3 Prior to 2019 the right of way created in 1915 was not recorded on the certificates of title of the properties now owned by Blue House Corner. During 2019 that company applied to the Recorder of Titles under s 139 of the Land Titles Act 1980 for him to record the benefit of that right of way on its two titles. The Recorder determined that there was an omission in the Register, in that the benefit of the right of way had not been recorded on the titles to the benefited lands. On 20 December 2019 the benefit of the right of way was recorded on the two titles of Blue House Corner. The applicant is unhappy with the Recorder's decision, and has instituted this proceeding in the hope of establishing that the right of way did not benefit the lands now owned by Blue House Corner, and having the Register altered accordingly. It contends that the Court has the power to make appropriate orders under s 144 of the Land Titles Act.

4 For the reasons stated below, I have concluded that this Court does not have the power to make the orders that the applicant is seeking, either under s 144 or otherwise, and that Blue House Corner now has an indefeasible title to the right of way.

5 The relevant subsections in s 144 read as follows:

"(1) Subject to subsection (6) , if the Recorder -

(a) refuses to do an act which the Recorder is required or empowered to do under this or any other Act; or

(b) gives a direction or makes an order upon the Recorder's own motion or upon an application while exercising the Recorder's powers under this or any other Act -

a person who believes that person to be aggrieved by the refusal, direction, or order may require the Recorder to state in writing the grounds for the Recorder's refusal, direction, or order notwithstanding that the Recorder has acted under a discretionary power.

(2) A person referred to in subsection (1) may proceed against the Recorder by summons in the Supreme Court requiring the Recorder to justify the Recorder's refusal, direction, or order, and the Court may make such order as it thinks fit."

6 The reference to a summons in s 144(2) should now be read as a requirement that an application proceed by way of originating application: Civil Process Act 1985, s 4(3).

7 In its originating application, the applicant applied for the following order:

(a) refuse to reverse his decision, made on or shortly before 11 December 2019, to record the benefit of an omitted easement on the titles comprised in folio of the register Volume 67868 Folios 1 & 2.

(b) to affirm his decision made on or shortly before 16 October 2020, to record the benefit of an omitted easement on the titles comprised in folio of the Register Volume 67868 Folios 1 & 2."

8 The folios of the Register referred to in the orders sought are those of the land of Blue House Corner. The sequence of events leading up to the making of this application was as follows:

• On 15 August 2019 the solicitors for Blue House Corner wrote to the Deputy Recorder of Titles asking him to correct the Register pursuant to s 139 by recording the benefit of the easement on their client's two titles.
• On 11 December 2019 the Recorder wrote to the solicitors for Blue House Corner advising that he intended to exercise his powers pursuant to s 139 to record the omitted easement on the two titles.
• On the same day the Recorder wrote to the applicant company. After setting out the background to his decision he wrote, "This is a courtesy letter to notify you that the Recorder has determined to exercise his powers pursuant to section 139 of the Land Titles Act 1980 (power to correct errors and omissions) to also record the benefit of the omitted easement on the title to the adjoining property comprised in folio of the Register Volume 67868 Folios 1 & 2."
• On 18 December 2019 the solicitors for the applicant company emailed a letter to the Recorder advancing arguments against the recording of the easement on the titles of Blue House Corner. They asked the Recorder to "withdraw his determination" and either "reopen his investigations and call for submissions ... prior to making a further determination" or advise the parties to the effect that Blue House Corner should apply to the Supreme Court for a determination of its claimed rights.
• On 20 December 2019 the Recorder caused the benefit of the easement to be recorded on the two titles, and then wrote to the applicant's solicitors explaining why he had decided to do that, and notifying them the easement had been so recorded.
• On 18 February 2020 the solicitors for the applicant wrote to the Recorder making further submissions and requesting him to reconsider his earlier determination and reverse the corrections made to the two titles.
• On 2 March 2020 the solicitors for the applicant wrote to the Recorder again, making additional submissions.
• On 19 May 2020 the Recorder wrote back to the applicant's solicitors. Amongst other things, he pointed out that the Land Titles Act made no provision for the review of a s 139 decision, and that they had not lodged a fresh s 139 application.
• On 6 August 2020 the applicant's solicitors wrote to one of the Recorder's officers requesting that he treat their letters of 18 December 2019, 18 February 2020 and 2 March 2020 as requiring the Recorder to state the grounds for his decision for the purposes of s 144(1) of the Land Titles Act. That was an inappropriate request. None of those three letters sought reasons for the decision to record the easement on Blue House Corner's titles. The applicant's solicitors had been asking for the decision to be reversed, not explained.
• On 16 October 2020 the Recorder wrote a six page letter to the applicant's solicitors. In that letter he agreed to treat the letters of 20 December 2019, 18 February 2020 and 2 March 2020 as a s 144(1) requirement for him to state his grounds for his decision to record the benefit of the easement on the two titles. He explained his reasons at length and then wrote, "I did not reconsider my decision and I received no other application to determine."

9 It can be seen at once that subpar (b) of the originating application was misconceived. That subparagraph referred to a decision of the Recorder "made on or shortly before 16 October 2020, to record the benefit of an omitted easement on the titles ...". The Recorder did not make a decision on or shortly before 16 October 2020. He wrote a letter explaining why he had caused the benefit of the easement to be recorded on the two titles some ten months previously.

10 The applicant relies on s 144(1) and (2) as the source of the Court's jurisdiction to order that the Recorder justify his refusal to reverse "his decision, made on or shortly before 11 December 2019, to record the benefit of an omitted easement on the titles ...". The applicant contends that reversing that decision was, for the purposes of s 144(1)(a), something "which the Recorder is ... empowered to do under this ... Act". However both respondents contend that the Recorder was not empowered to reverse the decision to record the benefit of the easement.

11 The applicant contends that the Recorder has the power to amend the Register by removing the references to the easement on the titles of Blue House Corner pursuant to s 139(1). That is the same subsection that the Recorder relied upon as empowering him to record the easement in December 2019. Section 139 reads as follows:

"(1) Subject to subsection (2) and upon such evidence as appears to the Recorder sufficient, the Recorder may correct errors or supply omissions in the Register or in any instrument or duplicate registered dealing, and may call in any certificate of title, grant, or duplicate registered dealing for that purpose.

(2) When the Recorder makes an alteration pursuant to subsection (1) -

(a) the Recorder shall, except as may be otherwise prescribed, authenticate the alteration and record the date of the alteration, and preserve a record of the matter which has been altered;

(b) the alteration does not prejudice or affect a right accrued from a recording made in the Register pursuant to a dealing lodged before the alteration; and

(c) subject to paragraph (b), the Register, instrument, or duplicate registered dealing shall, as so altered, have the same validity and effect as it would have had if the error or omission had not occurred."

12 Counsel for Blue House Corner relied on Purton v Jackson [2012] TASFC 2, 21 Tas R 310 and argued to the effect that it would be contrary to the scheme of the Land Titles Act for the Recorder to have the power to reverse a decision to correct the Register pursuant to s 139(1).

13 Counsel for the applicant argued to the effect that there is no such restriction, and that the Recorder has a continuing duty to keep the Register clear of notifications not authorised by law. He relied on Pirie v Registrar-General [1962] HCA 58; (1962) 109 CLR 619. In particular he relied on comments made by Kitto J, with whom Owen J agreed, at 622 and Windeyer J at 644. That case concerned s 121 of the Real Property Act 1900 (NSW), which contained provisions very similar to our s 144(1) and (2). The Registrar-General had refused to cancel a notification of a restrictive covenant. It is significant that no issue as to indefeasibility of title arose in that case.

14 Subject to any indication in the relevant legislation to the contrary, the prima facie position in Tasmania is that a statutory authority or decision-maker has the power to vary or reverse a statutory decision: Purton v Jackson (above) at [21]. That is a consequence of s 20(a) of the Acts Interpretation Act 1931, which provides as follows:

"20 Exercise of powers and performance of duties

Where an Act confers a power or imposes a duty, the power may be exercised and the duty shall be performed -

(a) from time to time as occasion may require ...".

15 Indefeasibility of title is a central and essential feature of the Torrens system of land titles. The Torrens system, of which the Land Titles Act is a form, is "not a system of registration of title but a system of title by registration": Breskvar v Wall (1971) 126 CLR 376 at 385; Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd [2013] HCA 11, 247 CLR 149 at [20]. Indefeasibility of title is provided for in s 40(1) and (2) of the Land Titles Act. Those subsections read as follows:

"(1) For the purposes of this section indefeasible, in relation to the title of a registered proprietor of land, means subject only to such estates and interests as are recorded on the folio of the Register or registered dealing evidencing title to the land.

(2) Subject to subsections (3) and (4), the title of a registered proprietor of land is indefeasible."

16 By virtue of s 139(2)(c) of the Land Titles Act, the Register, as altered by the recorder in December 2019, has "the same validity and effect as it would have had if the error or Omission had not occurred".

17 Various exceptions to indefeasibility are listed in s 40(3) and (4). None of those exceptions is applicable in this case.

18 It follows that when the easement was recorded on the titles of Blue House Corner in December 2019, that company acquired an indefeasible title to that easement pursuant to s 40(2). An easement constitutes "land" for the purpose of that subsection. In s 3(1) of the Act, "land" is defined to include easements. For the purposes of s 40(2), Blue House Corner became the registered proprietor of the right of way on 20 December 2019, and its title as such is indefeasible.

19 I note that in Nightingale v Recorder of Titles [2018] TASSC 56, Brett J said at [53] that he accepted "that there is implied in s 139 a limitation that the power of correction should not be utilised in a manner which undermines or threatens the principle of indefeasibility". That view is consistent with the purposes and objects of the Land Titles Act: Acts Interpretation Act, s 8A.

20 Because the title of Blue House Corner to the right of way became indefeasible upon registration, the Recorder did not have the power to reverse the recording of the benefit of the easement on the titles of that company. It follows that the applicant was not a person or entity to whom s 144(1)(a) applied, and was not entitled to institute a proceeding pursuant to s 144(2).

21 For these reasons, the originating application is dismissed.