Property Exchange Australia Limited v Registrar-General of New South Wales

Medium Neutral Citation: Property Exchange Australia Limited v Registrar-General of New South Wales [2026] NSWSC 344

Hearing dates: 5 March 2026

Date of orders: 10 April 2026

Decision date: 10 April 2026

Jurisdiction: Common Law

Before: Wright J

Decision: (1) The plaintiff’s summons filed on 10 October 2025 is dismissed.
(2) The plaintiff is to pay the defendants’ costs.

Catchwords: ADMINISTRATIVE LAW — jurisdictional error — where PEXA requests Registrar General’s approval to pass through new charge to consumers — where statutory instrument confers power on the Registrar General to withhold approval for such a request — where the Registrar may not unreasonably withhold approval — decision withheld pending reviewing of pricing and charges by independent review body — proper construction of expression “which may not be unreasonably withheld” — whether Registrar General misconstrued the expression and consequently unreasonably withheld approval of increase to PEXA fee — no misconstruction by Registrar General — to the extent relevant, withholding of approval not unreasonable on the proper construction of the expression
ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Irrelevant and relevant considerations — Consideration Registrar General bound to take into account — whether the Registrar General failed to consider a mandatory relevant consideration — where the National Law are intended to promote efficiency and minimise inconsistency — consideration adequately taken into account

Legislation Cited: Administrative Decisions (Judicial Review) Act 1977 (Cth)
Electronic Conveyancing National Law (ACT) Act 2020 (ACT)
Electronic Conveyancing (Adoption of National Law) Act 2012 (NSW)
Electronic Conveyancing (Adoption of National Law) Act 2013 (Tas)
Electronic Conveyancing (Adoption of National Law) Act 2013 (Vic)
Electronic Conveyancing (National Uniform Legislation) Act 2013 (NT)
Electronic Conveyancing Act 2014 (WA)
Electronic Conveyancing National Law (Queensland) Act 2013 (Qld)
Electronic Conveyancing National Law (South Australia) Act 2013 (SA)
Independent Pricing and Regulatory Tribunal Act 1992 (NSW)
NSW Operation Requirements Versions 1, 2, 3, 4, 5, 6, 6.1, 6.2, 7 and 7.1
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: Agricultural Societies Council of NSW v Christie [2016] NSWCA 331; 340 ALR 560
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335-339; [1990] HCA 33
Azriel v NSW Land & Housing Corporation [2006] NSWCA 372
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35
The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13

Texts Cited: Council of Australian Governments, Intergovernmental Agreement for an Electronic Conveyancing National Law (2011)
NSW Legislative Council, Parliamentary Debates (Hansard), 17 October 2012.
New South Wales Independent Pricing and Regulatory Tribunal, Interoperability Pricing for Electronic Lodgment Network Operators Final Report, (June 2023).
New South Wales Independent Pricing and Regulatory Tribunal, Review of the Pricing Framework for Electronic Conveyancing Services in NSW, (November 2023).
New South Wales Productivity and Equality Commission, eConveyancing market study, (June 2024).

Category: Principal judgment

Parties: Property Exchange Australia Limited (Plaintiff)
Registrar-General of New South Wales (First Defendant)
Attorney General of New South Wales (Second Defendant)

Representation: Counsel:
A Munro SC with J Wherrett (Plaintiff)
B Lim SC with C Beshara (Second Defendant)
Solicitors:
Arnold Bloch Leibler (Plaintiff)
NSW Crown Solicitor (First and Second Defendants)

File Number(s): 2025/00393478

JUDGMENT

1. By a summons filed on 10 October 2025, the plaintiff, Property Exchange Australia Limited (often referred to by the four letter acronym (FLA) PEXA), seeks judicial review of a decision of the first defendant, the Registrar-General of New South Wales (the RG). The RG filed a submitting appearance in accordance with the “Hardiman principle”. [1] In these circumstances, the Attorney General for New South Wales was joined as the second defendant in order to act as the contradictor in the proceedings.

2. As the decision sought to be impugned concerns a fee payable by PEXA in relation to the national e-conveyancing scheme implemented cooperatively by all the States and Territories of the Commonwealth, it is necessary to understand relevant aspects of the factual background and functioning of that scheme as well as the specific circumstances relating to the impugned decision of the RG.

Factual background and circumstances

COAG Agreement

3. As early as July 2008, agreement was reached at the Council of Australian Governments (often referred to using the FLA COAG) that there should be a new single national electronic system for the settlement of real property transactions in all the States and Territories. Subsequently, various steps were taken to implement such an agreement including, in 2010:

4. COAG approving the formation of a Business Regulation and Competition Working Group E-Conveyancing Sub Group to oversee the implementation of national e-conveyancing; and

5. New South Wales, Victoria and Queensland establishing a public company limited by guarantee, National E-Conveyancing Development Ltd (NECDL) to develop the single electronic system by which national electronic conveying would be effected. Western Australia became a member of NECDL in October 2010.

6. In April 2011, NECDL was converted into a public company limited by shares and a number of banks became shareholders, in addition to the State shareholders. The object of the company was described as being:

“to create and operate a System to provide an efficient, competitive system to settle property transactions, lodge instruments with Land Registries and pay associated duty and tax obligations electronically, without increasing the cost of such services to the community or excluding any current market participant from operating in the new electronic environment”.

Electronic Conveyancing National Law Agreement 2011

5. In late 2011, an intergovernmental agreement, known as the Electronic Conveyancing National Law Agreement 2011, came into effect. Eventually, each of the States and Territories became a party to this agreement. The objective of the agreement was set out in cl 4.1 as:

“To establish a framework to facilitate the implementation and ongoing management of the regulatory framework for National E-Conveyancing including to:

4.1.1. enact and manage the Electronic Conveyancing National Law; and

4.1.2. provide for the formation, composition and operation of the ARNECC.”

6. As to the national operation of electronic conveyancing, clause 5.1 of the agreement provided:

“The Parties agree to cooperate on the implementation and management of National E-Conveyancing to minimise inconsistencies between jurisdictions. The Parties acknowledge that National E-Conveyancing may be implemented at different times and at a different pace across each jurisdiction.”

7. Under cl 5.2.2, the parties to the agreement agreed to “work collaboratively to ensure that business practices are consistent where possible”.

8. Part 6 of the agreement provided for the establishment of the Australian Registrars’ National E-Conveyancing Council, often referred to by the multi-letter acronym (MLA) ARNECC. ARNECC is comprised of the Registrar of each participating jurisdiction or his or her nominee. The RG was and is a member of ARNECC. ARNECC’s principal functions include:

9. ensuring “that, as far as is practicable, business practices with respect to National E-Conveyancing are consistent when implemented in each jurisdiction”: cl 7.1.2; and

10. developing one nationally agreed set of Operating Requirements and Participation Rules for electronic lodgment network operators and any jurisdiction specific provisions: cl 7.2.

11. Parts 8, 9 and 10 of the agreement dealt with how national e-conveyancing would be facilitated by an Electronic Conveyancing National Law to be implemented by way of a cooperative legislative scheme between the States and Territories.

Electronic Conveyancing National Law

10. In 2012, the New South Wales Parliament enacted the Electronic Conveyancing (Adoption of National Law) Act 2012 (NSW) (the Adopting Act). By virtue of s 4(c) of the Adopting Act, the Electronic Conveyancing National Law (the National Law or ECNL), set out in the Appendix to the Act, applies as a law of New South Wales “as if it were an Act”. The other States and Territories have enacted legislation effectively adopting the ECNL as legislation of their respective State or Territory. [2]

11. The object of the National Law is set out in s 5 as follows:

“5 Object of this Law

(1) The object of this Law is to promote efficiency throughout Australia in property conveyancing by providing a common legal framework that—

(a) enables documents in electronic form to be lodged and processed under the land titles legislation of each participating jurisdiction, but

(b) does not derogate from the fundamental principles of the Torrens system of land title as incorporated in the land titles legislation of each participating jurisdiction, such as indefeasibility of title.

(2) In order to achieve this object, this Law, among other things, authorises the Registrar in each participating jurisdiction to operate or authorise the operation of an Electronic Lodgment Network, and provides for the making of rules relating to the operation of the Electronic Lodgment Network.”

12. The National Law regulates, inter alia, the operation of electronic lodgment networks (ELNs). In s 13 of the National Law, an ELN is defined as “an electronic system that enables the lodging of registry instruments and other documents in electronic form for the purposes of the land titles legislation”. Under s 15, the RG may approve a person as an Electronic Lodgment Network Operator (often referred to by the FLA ELNO) to provide and operate an ELN. PEXA is an approved ELNO in New South Wales and in other States and Territories.

13. Section 18 of the National Law provides that a person approved as an ELNO under s 15 must comply with the “operating requirements”. The “operating requirements” are defined in s 3(1) to mean “the requirements determined under section 22” by the RG.

14. In conferring power on the RG to determine the “operating requirements”, s 22(1) of the National Law provides generally that the operating requirements are to relate to the operation of an ELNO and the provision and operation by an ELNO of an ELN. More specifically, s 22(2) identifies “without limitation” various subject matters which may be dealt with in the operating requirements including fees and charges, under s 22(2)(c4).

15. Under s 24(2) of the National Law, when determining operating requirements the RG “must have regard to the desirability of maintaining consistency with any model provisions”. The expression “model provisions” is relevantly defined in s 24(1) as including “model operating requirements … from time to time developed and published by ARNECC”.

Operating requirements

16. Ten versions of the operating requirements have been determined for New South Wales by the RG under s 22 of the National Law since it was enacted. Version 1 of the NSW Operating Requirements was made by the RG on 6 September 2013. Subsequently, there have been Versions 2, 3, 4, 5, 6, 6.1, 6.2, 7 and 7.1.

Developments since NECDL became PEXA

17. On 3 March 2014, NECDL changed its name to Property Exchange Australia Limited, which remains the plaintiff’s name.

18. As NECDL and later as PEXA, the company developed the system for national electronic conveyancing which included most pertinently the National Electronic Conveyancing Data Standard (NECDS) and other related intellectual property. In simple terms, the NECDS refers to a bundle of intellectual property rights which provide a standardised format for the exchange of data between ELNOs and land registries so as to facilitate electronic lodgment of documents and communication.

19. In November 2018, PEXA was privatised pursuant to an “Agreement for the Sale and Purchase of Shares of Property Exchange Australia Ltd”. [3]

2019 IPART Review of the Pricing Framework for Electronic Conveyancing Services in NSW

20. In the latter part of 2018, the relevant Minister requested, under s 12A of the Independent Pricing and Regulatory Tribunal Act 1992 (NSW) (the IPART Act), that the Independent Pricing and Regulatory Tribunal of New South Wales, often referred to by the MLA, IPART, to investigate and report on an appropriate pricing regulation framework for the provision of electronic conveyancing services in New South Wales.

21. In December 2018, in accordance with s 13 of the IPART Act, IPART consulted on the draft Terms of Reference before finalising them in January 2019. The finalised form of the Terms of Reference included:

“Context

…

Currently the national regulations require the sole ELNO, Property Exchange Australia (PEXA) to determine its fees according to a publicly available, equitable and transparent pricing policy. However, the extent to which this policy properly reflects market conditions has never been tested. State and national regulators have not assessed PEXA’s approach to introducing its original fees.

… The NSW government intends to review and identify appropriate regulatory settings for the fees charged for the provision of eConveyancing services to ensure they are fair and transparent for all parties. The NSW government recognises that electronic conveyancing is a national reform and strongly supports a nationally consistent regulatory regime. Although the IPART review and report will only consider pricing in NSW, the NSW government intends to share IPART’s findings with other jurisdictions to support its overall aim of a nationally consistent pricing framework.

The task

IPART is requested to:

a) Undertake a review and consultation process on the state of the electronic conveyancing market;

b) Recommend an appropriate pricing regulatory framework, which includes:

● A maximum price or pricing methodology for the provision of services by an ELNO, which may include any pass-through mechanisms, and a methodology for making annual adjustments to price;

…

In determining an appropriate pricing framework, the Tribunal should have regard to the following matters:

i) Protection of consumers from potential pricing abuses due to the current status of electronic conveyancing as a highly concentrated market;

…

iii) The cost of providing the services concerned, including the implication of differences in costs between jurisdictions for nationally consistent pricing;

iv) the extent to which PEXA invested capital and developed intellectual property to support its ELN in its capacity as the initial ELNO;

v) The possibility of applying the NSW approach to any of the elements of the pricing regulatory framework as a model for other jurisdictions.

…”.

22. In the Executive Summary of its November 2019 Report, the Tribunal noted that in carrying out its task it was required to consider:

“the need to protect customers from excessive prices while allowing ELNO’s to recover their efficient costs and the need to promote competition in the market. Effective competition can drive both lower prices and innovation in service delivery.”

23. IPART’s findings in its November 2019 Report included that in 2019:

“Pexa’s current prices are reasonable as maximum prices for all ELNOs

We asked our consultant, AECOM, to estimate the cost that a benchmark efficient ELNO would incur in providing eConveyancing services from 2021-22 to 2023 – 24. We applied our standard building block Method to model prices that would allow a benchmark efficient ELNO to recover those costs. We found that PEXA’s existing prices were reasonable compared to all modelled scenarios.

We also investigated prices being charged by settlement agents, both for paper settlements prior to the eConveyancing mandate, and for ‘e-settlement’ services, where the agents take on some of the administrative tasks of running a PEXA workspace. We found that PEXA’s prices are no higher than the prices paid for paper settlement.

Based on our findings on the state of the market and a benchmark efficient ELNO’s costs, we consider that PEXA’s current prices are reasonable and appropriate as a maximum price for any ELNO in the short term.

Maximum prices indexed by CPI annually is appropriate while competition develops

We found no compelling evidence to suggest that maximum prices should be lower than PEXA’s current prices, and so we recommend that maximum prices for all ELNO****s be set at PEXA’s current (real) prices from 1 July 2020 and indexed annually by CPI for two years.”

24. This recommendation effectively proposed to continue the regime set out in cl 5.4.3 of Version 5 of the Operating Requirements determined by the RG under s 22 of the National Law which were effective from February 2019. It appears that this recommendation was adopted so that the terms of cl 5.4.3 in Version 6 of the Operating Requirements, effective from April 2021, were the same as in Version 5. In both versions, cl 5.4.3 was as follows:

“5.4.3 From 1 July 2019 to 30 June 2022, the ELNO may increase the ELNO Service Fees as listed in its Pricing Table, once every Financial Year on 1 July, provided that the percentage increase in the revised ELNO Service Fees does not exceed the percentage increase in the CPI for the immediately preceding March quarter when compared with the CPI for the March quarter of the previous year.”

2022 referral to IPART

25. In June 2022, the relevant Minister referred to IPART for investigation interoperability pricing for ELNOs, under s 12A of the IPART Act. This became referred to as “the first task”.

26. By letter dated 23 December 2022, the Minister amended IPART’s terms of reference to include a second task as follows:

“The second task

1. The Tribunal is further requested to investigate and make recommendations on ELNO service fees, including:

a) Whether such fees should continue to be regulated.

b) If continued regulation is recommended, whether a regulated method or level of price should apply to ELNO service fees, and if so:

i) what that method or level of price should be; and

ii) when that method or level of price should apply, following delivery of the Tribunal’s final report on the second task.

c) Future adjustment and review processes for ELNO service fees.

In investigating and making these additional recommendations, the Tribunal should consider:

a) Supporting and promoting competition in the ELNO market.

b) Promoting ongoing investment by ELNOs.

c) Efficient costs of providing eConveyancing services.

d) Equitable access to eConveyancing services for customers across Australian jurisdictions.

e) Reasonable prices for eConveyancing services for customers across Australian jurisdictions.

f) The current and evolving structure of the eConveyancing market.

g) Avoiding unnecessary regulatory or administrative burdens on ELNOs.

h) Any other matter the Tribunal considers relevant.”

27. IPART was required by the terms of reference in relation to the second task to consult with key stakeholders including ARNECC, ELNOs, ELNO subscriber representatives and the Australian Competition and Consumer Commission, among others.

28. One of the reasons stated in the letter of 23 December 2022 for amending the terms of reference to include the second task was that:

“Since IPART last recommended ELNO service fees in 2019, some of the inputs to those prices may have become out-of-date, such that it may not be appropriate to simply continue the current fees in real terms.”

29. IPART’s final report on the first task, “Interoperability Pricing for Electronic Network Operators”, was delivered in June 2023. Interoperability and the context in which it is proposed to take place were described by IPART in its Report of June 2023 dealing with the first task as follows:

“Electronic conveyancing (eConveyancing) is the digital completion of a conveyancing transaction. eConveyancing is used to make changes to the land titles register in each state (e.g. when a property is sold). It is also used to record or make changes to interests in a property such as mortgages, leases or caveats. The most common property transactions are property transfers (usually when a property is sold) and refinances (when a property owner changes mortgage provider).

Electronic Lodgment Networks (ELNs) are the digital platforms where eConveyancing transactions take place. ELN Operators (ELNOs) provide eConveyancing services to lawyers, conveyancers, and financial institutions (subscribers), who act on behalf of their customers (the people who are transacting with property). There are currently 2 approved ELNOs – PEXA and Sympli.

In most states eConveyancing is mandatory for the most common eConveyancing transactions, so most people who make changes to ownership or interests in a property must use the services of an ELNO. Currently PEXA has almost 100% market share of the eConveyancing market.

The eConveyancing market will soon be interoperable, meaning that multiple ELNOs can represent different participants (subscribers) in a property transaction. This is different from the current market, where ELNOs’ systems cannot exchange information and so every participant in a transaction must use the same ELNO. Interoperability will help to promote competition and choice for the lawyers, conveyancers and financial institutions that use eConveyancing. Without interoperability, the first ELNO – PEXA - will sustain a significant advantage over its competitors. PEXA remains the first choice for most subscribers, because so many more people are already using it.” (footnotes omitted)

30. Footnote (b) on page 1 in the IPART Report of June 2023 noted that:

“eConveyancing is mandatory for most conveyancing transactions in NSW, Victoria, Queensland, Western Australia and South Australia. eConveyancing has recently become available in ACT. NT and Tasmania do not have eConveyancing yet, instead using paper conveyancing”.

31. That report also referred to the second task and stated:

“1.6 We will review ELNO service fees

Currently each ELNO’s service fees can increase once per year by no more than the annual change in CPI. Throughout our review of interoperable transaction fees, we observed that implementing interoperability may increase overall costs for ELNOs in the short term, because they will incur costs from developing the APIs required to implement interoperability. However, other inputs to the price calculation may have changed (such as transaction volumes, cost efficiencies and innovation). Therefore, the net impact of implementing interoperability on ELNO service fees is uncertain, and it may no longer be appropriate to continue the current ELNO service fees in real terms.

IPART’s terms of reference were amended by the then Minister to require us to investigate and make recommendations about ELNO service fees, in addition to completing our review of interoperability pricing. A review of ELNO service fees will ensure ELNOs can recover their efficient costs within current operating conditions and will ensure that subscribers (and their customers) pay no more than they need to. It will also allow IPART to assess the effectiveness of competition in the eConveyancing market and the need for ongoing pricing regulation.

We will commence work on recommending ELNO service fees when one the following occurs, whichever is the soonest:

1. six months after Day 2 functionality is available to facilitate interoperable transactions

2. ARNECC notifies IPART that an ELNO has applied to ARNECC to change its Pricing Table because a change in law has given rise to a change in the ELNO’s operating costs

3. 1 July 2025, or

4. ARNECC notifies IPART it is to commence work on recommending ELNO services fees.

We have 12 months to complete the review and prepare a Final Report on ELNO service fees from the date of commencing work on it”. (footnotes omitted)

NECDS and related intellectual property transferred to NECDS Ltd

32. PEXA continued to develop, own and manage the NECDS until 2024. In about April 2024, ARNECC determined that responsibility for, and control of, the NECDS should be transferred to an independent entity controlled by the States and Territories. Relevant to this, in 2022, NECDS Ltd had been registered as a not for profit, unlisted public company limited by guarantee with the members including New South Wales, Queensland, South Australia, and Victoria. It can be noted that the RG has been a director of this company since June 2022.

NSW Productivity and Equality Commission’s eConveyancing Market Study

33. On 1 June 2024, the NSW Productivity and Equality Commission published its market study on eConveyancing. In preparing this report, the Commission consulted with numerous stakeholders including: ARNECC and each of the relevant State and Territory registrars; PEXA and Sympli; IPART; the ACCC; relevant professional bodies; and, the Australian Treasury, among other interested parties. Under the heading “Findings and recommendations”, the Commission’s report included the following, noting that the incumbent ELNO referred to is PEXA:

“Our market study finds that the eConveyancing market is not a natural monopoly and that competition would be beneficial, both to the eConveyancing market and to other related sectors.

We also show that the current market for eConveyancing is not effectively competitive, as demonstrated by high levels of market concentration and the incumbent Electronic Lodgment Network Operator (ELNO) earning high profits.

We find that there are a number of barriers to entry to the eConveyancing market, including strong network effects, the current policy framework, and the incumbent ELNO benefitting from ‘first mover’ advantage due to its technological leadership, eConveyancing mandates, and the existence of switching costs.”

34. The recommendations of the Commission included:

“[Recommendation 1] ARNECC should ask the Australian Treasury to request the ACCC to immediately conduct a comprehensive review of the current price control arrangements relating to eConveyancing services (the ‘Review of eConveyancing price control arrangements’). This review should identify the efficient economic costs of providing eConveyancing services in Australia and recommend appropriate amendments to the current price control arrangements. Specifically, consideration should be given to the merits of moving to a weighted average price cap arrangement which would require ELNOs to reduce prices over time to appropriately reflect the underlying economic costs of provision as well as ongoing cost savings from productivity improvements. … If the Review recommends changes to the current price control arrangements, ARNECC should move quickly to reflect this in the MOR [Model Operating Requirements].

…

[Recommendation 5] Ongoing price regulation of eConveyancing services should only apply to those provided by ELNOs which can be demonstrated to have substantial market power. Price regulation should be immediately removed from the services provided by ELNOs that do not have substantial market power.

…

[Recommendation 7] States and territories should expedite the transfer of ownership and responsibility for all eConveyancing technical and data standards from PEXA to NECDS Ltd, to ensure fair and equal access to the standards and objective oversight and management of the standards.”

35. As to the ability of ARNECC to act as the industry regulator for national e-conveyancing, the Commission said:

“Our market study finds that, while the current industry regulator—ARNECC—may have been wellplaced to perform this role to date, consideration needs to be given as to whether this still holds true going forward.

We show that ARNECC is under-resourced, and that several elements of its structure constrain its ability to act quickly. We also demonstrate that the financial settlement and competition components of eConveyancing are not currently adequately addressed.”

36. More specifically in relation to PEXA’s market share, the Commission found:

“… Furthermore, it appears the market for eConveyancing has become increasingly concentrated since PEXA was privatised in FY2020.

This high level of market concentration is because PEXA is the dominant ELNO in all jurisdictions in which eConveyancing operates and has a dominant share for key eConveyancing transaction types. For example, of the total addressable national conveyancing market (which excludes Tasmania and the Northern Territory as eConveyancing is not yet available) in 2023, PEXA had:

• 99 per cent market share of refinancing transactions

• 88 per cent market share of property transfer transactions

• 88 per cent overall market share.

This dominant market share has increased over time. …” (footnotes omitted)

37. As to PEXA’s prices and profitability, the Commission findings included:

“The incumbent ELNO is earning very high profits

A company’s EBITDA (earnings before interest, taxes, depreciation, and amortisation) margin is a measure of its operating profit (Chen 2023). An EBITDA margin is calculated by dividing EBITDA by revenue. Relative to several other IT and technology companies listed on the ASX, PEXA enjoys a high EBITDA margin. Furthermore, PEXA’s Australian operations—which comprise the PEXA Exchange platform—earn significantly higher EBITDA margins relative to PEXA’s other business units.

…

Even using PEXA’s higher costs claim, a discounted cash flow (DCF) analysis using data sourced from PEXA’s Replacement Prospectus and Annual Reports suggests that over the life of those investments it will earn an internal rate of return significantly above its commercial costs of capital. This suggests that in New South Wales and other Australian jurisdictions, PEXA is currently earning revenues above its economic cost (including a reasonable rate of return)—an outcome inconsistent with a competitive market setting.” (footnotes omitted)

38. As to the effect of then current price control arrangements, the Commission found:

“3.2.2 Price control arrangements have not benefited consumers

The price control arrangements have allowed ELNOs to set prices at levels that do not reflect their underlying costs. The arrangements also allow ELNOs to increase prices on an annual basis in line with the CPI (see section 3.3.2) with no requirement to improve efficiency or pass on the benefits of cost efficiencies to consumers. It is therefore unlikely that consumers have fully benefited from lower costs due to the shift to eConveyancing. Rather, the significant productivity benefits— estimated to be $89 million annually (Deloitte Access Economics 2018)—have likely been captured by ELNOs operating in the market to date in the form of above normal profits as well as by conveyancers in the form of time savings from not having to physically travel and attend settlements in person. That end-user consumers have not shared in the significant productivity benefits that eConveyancing has produced is unfortunate given eConveyancing services are government-mandated in some jurisdictions.

A lack of increased consumer welfare arising from a government-sponsored initiative to digitise and improve the efficiency of the conveyancing process is worthy of further consideration. Accordingly, ARNECC should ask the Australian Treasury to request the ACCC to immediately conduct a comprehensive review of the current price control arrangements relating to eConveyancing services.”

Transfer of the NECDS to NECDS Ltd

39. On 30 August 2024 and consistently with Recommendation 7 of the NSW Productivity and Equality Commission, all rights and interests in the NECDS and other related intellectual property were transferred from PEXA to NECDS Ltd. [4]

40. NECDS Ltd’s constitution states (CB765):

“3.2 Purpose

(a) The purpose of the Company is to:

(i) own the intellectual property rights in the NECDS;

(ii) set up best practice curation of the NECDS in accordance with Registrar requirements, including appropriate consultation;

(iii) grant non-exclusive licenses (on such terms as the Company may determine, including charging and collecting licence fees) to ELNOs, Applicant ELNOs and any other person or entity determined by the Company from time to time with the approval of the Registrar of each State and Territory, to use the NECDS;

(iv) employ employees and retain contractors (on such terms as the Company may determine) and/or unauthorised a directed to carry out work on the board’s behalf to assist in carrying out its functions;

(v) own and control intellectual property rights and standards other than the NECDS that are relevant to a national electronic conveyancing system … from time to time; and

(vi) do any other act or thing related to and in furtherance of the purposes of the Company set out in this clause 3.2,

(together, the Purpose).

(b) The income and property of the Company must be applied solely towards the promotion of the Purpose, other than on the winding up of the company.”

41. On 2 September 2024, NECDS Ltd published licence terms governing access to, and use of, the NECDS by ELNOs. Those terms provide for payment of an “annual fee” and a “transaction fee”. PEXA accepted those licence terms by signing a document dated 29 August 2024. Although there appears to be a discrepancy between when the terms of the licence were finalised and when PEXA accepted those terms, the parties did not contend that anything turned on this discrepancy and I have proceeded on the basis that PEXA was bound by the terms of the license from 2 September 2024, given the terms of cl 3(b) and the definition of “commencement day” in the licence terms.

42. The fees payable by a licensee under the licence terms were set out in cl 9 which relevantly included in relation to the 2025-26 financial year the following:

“9.2 Annual Fees

…

(c) The Annual Fee for the Financial Year from 1 July 2025 to 30 June 2026 is $1500 per month plus GST, payable in a yearly lump sum by 15 August 2025.

…

9.3 Transaction Fees

(a) Transaction Fees will commence from 1 July 2025 for all Transactions that are lodged on or after 1 July 2025.

(b) The Transaction Fee is a fixed fee per Transaction lodged paid quarterly.

…

(d) The Transaction Fee for the Financial Year from 1 July 2025 to 30 June 2026 will be a per Transaction lodged plus GST. This Transaction Fee will be set by us and notified to you by 31 May 2025.

…

(g) When we set a Transaction Fee, we will consider at least the following:

(i) Reasonableness of the Transaction Fee;

(ii) Fairness and efficiency as to how the Transaction Fee is calculated; and

(iii) Whether or not the Transaction Fee will be able to be passed on to customers.”

43. The term “Transaction” was defined in cl 23.1 of the license terms as “each Discharge/Release, Transfer and Mortgage Registry Instrument that is lodged and processed by a Registrar via the ELN”.

44. It can be seen from cl 9.3(d) that the amount of the transaction fee for the 2025-26 financial year had not been determined at the time the licence terms were published.

The latest Operating Requirements

45. On 31 March 2025 and under s 22 of the National Law, the RG determined the current operating requirements, described as “Operating Requirements (Version 7.1)” (the Operating Requirements). In doing so, she expressly noted that she adopted the Model Operating Requirements Version 7.1 developed and approved by ARNECC.

46. The obligation of any ELNO, including PEXA, to comply with the Operating Requirements under s 18 of the National Law, is reinforced by cl 3 of the Operating Requirements which relevantly provides:

“The ELNO … must:

…

(b) comply with these Operating Requirements and any conditions on the Approval whilst an Approval is held by the ELNO;

…”.

47. The general obligations with which an ELNO must comply are set out in cl 5.3 and include that the ELNO must:

“(e) determine any ELNO Service Fees, according to a publicly available, equitable and transparent pricing policy and publish a Pricing Table in accordance with Operating Requirement 5.4”.

48. Clause 5.4 of the Operating Requirements concerns “ELNO Service Fees” and includes the provision which in effect requires the RG’s approval to be obtained for any changes to the fees an ELNO such as PEXA may charge. It is this requirement which gives rise to the present proceedings.

49. Clause 10.3 of the Operating Requirements requires that an ELN use the NECDS to present electronic registry instruments and other electronic documents for lodgment, and for system messages exchanged with a Land Registry. The NECDS is defined in cl 2.1.2 of the Operating Requirements as “the data standard specified by the Registrar and known as the National Electronic Conveyancing Data Standard, as amended from time to time.” Consequently, PEXA as an ELNO of an ELN was required to obtain a licence from NECDS Ltd to access the NECDS.

Discussion concerning the 2025-26 transaction fee by NECDS Ltd

50. On 11 April 2025, NECDS Ltd and PEXA had discussions concerning the proposal by NECDS Ltd to charge a $1 transaction fee for every transaction on or after 1 July 2025. The discussions included whether that fee should rather be applied only to documents in respect of which a lodgment fee is collected and, therefore, not in relation to documents such as a notice of sale, notice of acquisition, form 24 part A or B, form 25, nominations or nomination withdrawals.

PEXA seeks approval to pass through the NECDS transaction fee

51. On 9 May 2025, PEXA wrote a letter responding to an earlier enquiry from ARNECC as to whether PEXA “still requested” the Registrars’ approval of costs pass-throughs under cl 5.4.4 of the Model Operating Requirements. PEXA confirmed its request for approval to “increase its fees to reflect additional costs as a result of the NECDS Ltd … transaction fee and State Revenue Office (SRO) charges”. PEXA noted that these “cost pass-throughs will be in addition to a price increase for PEXA’s ELNO Service Fees across all instruments, reflecting the permitted annual increase in CPI to March 2025 [of 2.4%]”.

52. In particular, PEXA said it proposed to recover the NECDS transaction fee through a levy, on every transaction where lodgment fees are collected. The proposed levy was $1 (excluding GST) for single-participant transactions and $0.50 (excluding GST) for multi-participant transactions, or if NECDS Ltd fixed a different amount as the fee, that amount. The letter continued:

“The proposed levy will be charged to PEXA customers as an additional fee to PEXA’s ELNO Service Fees and itemised in PEXA’s pricing schedule accordingly to provide transparency in PEXA’s pricing in the broader context of pricing reviews and market reform.”

53. PEXA noted that its proposed approach to SRO charges would result in a pricing schedule which would differ between States and Territories.

54. Finally, PEXA sought that the Registrars’ decision concerning, inter alia, “pass-through [of] both the NECDS transaction fee and the SRO charges” be made at the ARNECC meeting on 15 May 2026.

NECDS Ltd determines the transaction fee for the financial year 2025/26

55. By letter dated 23 May 2025, NECDS Ltd informed PEXA that it had determined that the transaction fee for the financial year 2025/26 under cl 9.3(d) of the licence terms would be $1 (plus GST) for each relevant transaction lodged on or after 1 July 2025. In that letter, NECDS Ltd described what it had considered in determining the fee to be charged as referred to in cl 9.3(g) of the licence terms in the following terms:

“In reaching this decision on the fee framework and Transaction Fee, NECDS [Ltd] has:

a) considered the following criteria as set out in Clause 9.3(i) [sic, should be 9.3(g)] of the Licence Agreement:

(i) Reasonableness of the Transaction Fee: A $1.00 Transaction Fee for each transaction lodged should not create an unreasonable burden for ELNOs in the context of the total ELNO transaction fees. In addition, NECDS must remain solvent at all times and a $1.00 Transaction Fee will enable NECDS to cover anticipated costs, especially while NECDS is in its start-up phase, and taking into account NECDS’s limited sources of revenue and the fact that it may undertake changes to the NECDS data standards in the future;

(ii) Fairness and efficiency as to how the Transaction Fee is calculated: applying the fee to each transaction lodged ensures the amount ELNOs pay reflects their market share and their use of NECDS’ data standards. It will also be efficient as it will be:

a. simple for ELNOs to apply and calculate the fees and to reconcile the different transaction types that arise in different jurisdictions; and

b. able to adjust to different transaction types over time; and

(iii) Whether or not the Transaction Fee will be able to be passed on to customers – A $1.00 Transaction Fee is unlikely to be a significant impost on ELNOs. ELNOs proposing to pass on the Transaction Fee to customers in addition to claiming a CPI price increase should discuss this with the Registrars of each jurisdiction.

b) noted that under Clause 9.3(e) of the Licence Agreement, the Transaction Fee is set on an annual basis, which enables NECDS to adjust the fee annually should circumstances warrant it; and

c) considered the feedback received from ELNOs during the consultation process.”

ARNECC’s response to PEXA’s request

56. On 30 May 2025, ARNECC responded by letter to PEXA’s request for approval to pass-through the NECDS Ltd transaction fee and SRO charges. In that letter, ARNECC set out its understanding of PEXA’s request and provided its response in terms which relevantly included the following:

“ARNECC Response

ARNECC has considered the PEXA Request and agrees in principle with certain aspects of the Request (subject to the below), however notes that each individual Registrar will make their own determination on the matters relevant to their jurisdiction. Each Registrar reserves their respective rights.

As a general principle, ARNECC’s view is that, in respect of the ELNO Service Fees (as defined in the OR):

1. Any increase in the ELN service Fees must be a pass through only and cannot be higher than the actual charge incurred by PEXA. In respect of the Transaction Fee, this should be no more than the proposed fee of $1.00 (exc. GST) per conveyancing transaction for both single participant and multiparticipant transactions, noting that NECDS Ltd will provide clarification as to which conveyancing transactions attract the Transaction Fee.

2. ARNECC acknowledges that the passthrough of SRO Charges will result in customers paying different amounts in different jurisdictions.

…

4. PEXA may only seek to passthrough costs to its customers in the year they were actually incurred or the year immediately following (noting your letter indicated that PEXA was seeking to recover some costs retrospectively). ARNECC does not support PEX a passing through other costs retrospectively, including any historic SRO Charges.

5. ARNECC (and Registrars) are not able to give advance approval for the recovery of costs in FY 27 and beyond.”

The RG’s response to PEXA’s request

57. On 19 June 2025, the RG wrote to PEXA referring to PEXA’s letter of 9 May 2025 to ARNECC and ARNECC’s response of 30 May 2025, which was expressly noted to have included that:

“each individual Registrar will make their own determination on the matters relevant to their jurisdiction, and that each Registrar reserves their rights in that regard”.

58. The substance of the RG’s response was set out in par 3 of that letter:

“PEXA’s request remains under review, and I anticipate arriving at a decision once all the relevant information has been obtained. I set out below an update on the status of the request, including the relevant information required to properly consider PEXA’s request.”

59. The letter then continued:

“IPART’s analysis is required to inform any decision on increasing fees for Subscribers

4. In reviewing a request to increase ELNO Service Fees, it is reasonable to assess all relevant issues carefully and in the appropriate level of detail. The NSW Independent Pricing and Regulatory Authority (IPART) is scheduled to commence a review of ELNO Service Fees on 1 July 2025. As you are aware, IPART will undertake a comprehensive review of ELNO Service Fees, including but not limited to whether ELNO Service Fees should continue to be regulated and for how long; the method of regulation, the price level, and future adjustment and review processes.

5. Given that the IPART review is to commence imminently, it is reasonable that the proposed pass-through of the NECDS Ltd licence fee be considered as part of, and informed by, that comprehensive review, and that this review is undertaken before any new costs are passed-on to Subscribers.

6. The IPART review provides an independent and robust mechanism to undertake the assessment of PEXA’s request. In particular:

a. The effect of PEXA’s request is that the total cost of the NECDS Ltd licence fee paid by PEXA is to be borne by Subscribers. However, this approach fails to account for the benefits that PEXA receives under the agreement for which the NECDS licence fee is paid – specifically, access to the NECDS and the management and curation of the NECDS by NECDS Ltd. In my view, it is relevant to value these benefits as part of making a decision regarding allocation of costs. I also note the context, that prior to NECDS Ltd undertaking the management and curation of the NECDS in the last 12 months, the costs of management and curation were met by ELNOs (including under the licence fee arrangements put in place in 2019).

b. I understand that, as part of its review, IPART is able specifically to consider costs borne by ELNOs, such as the amount of NECDS Ltd licence fees paid by ELNOs under the NECDS Ltd fee arrangements. IPART’s review includes future costs, as well as costs that have already been incurred; and I understand that, where appropriate, it is open to IPART to recommend an approach in relation to any costs that have already been incurred that can reasonably be passed on.

7. While I understand these concepts are already included in the IPART terms of reference, I will write to IPART noting the approach that NSW has taken in relation to NECDS Ltd licence fees and noting these concepts.

Other considerations

8. Operating Requirement 5.4.4(c) permits an ELNO to seek Registrar approval to change its Pricing Table to account for additional government fees and charges. This provision is not to be construed as a mechanism for an automatic pass through of ELNO operating costs to Subscribers through increased or additional ELNO Service Fees. Rather, it is a matter for the Registrar, acting reasonably, to approve any such increase based on the ELNO’s reasoning and evidence, and taking into account all relevant facts and circumstances.

9. As noted above, PEXA seeks to pass on to Subscribers the full cost of the NECDS Transaction Fee, while retaining the benefit of the agreement under which the fee is paid. This issue needs to be analysed in more detail.

10. In its request, PEXA notes that the additional fee will be separately itemised as a “Government Charge”. This does not appropriately characterise the fee which, if approved, would be a pass through of PEXA’s costs for services rendered to PEXA under the NECDS licence agreement, i.e. services from which PEXA derives a benefit and is a cost of doing business.

11. I am aware that other jurisdictions may decide to approve PEXA’s request and that if this occurs, it could result in inconsistent PEXA service fees between jurisdictions while PEXA’s request remains under consideration in NSW. However, while national consistency is a relevant consideration, it does not supersede my duty as Registrar to exercise my powers under the eConveyancing legal framework in NSW objectively and independently.”

PEXA’s response of 4 July 2025

60. PEXA responded to the RG’s letter of 19 June 2025, by letter dated 4 July 2025. In that letter, PEXA expressed disappointment with the RG’s approach and contended that:

“If PEXA’s request is denied, it would be an unreasonable withholding of consent having regard to, among other things, the good faith in which PEXA negotiated the assignment of the National Electronic Conveyancing Data Standards (NECDS) to NECDS Ltd and the accompanying licence agreement …”.

61. PEXA also set out in that letter its understanding of the different purposes of the NECDS licence fee of $1,500 per month and the NECDS transaction fee of $1 per transaction. In addition, PEXA explained its view that it was inappropriate to delay increasing the ELNO Service Fee to pass through the NECDS transaction fee pending the IPART pricing review. PEXA characterised that fee as “an additional recurrent charge by a government entity” for which cl 5.4.4 of the Operating Requirements provided a specific mechanism for dealing with. In addition it was said that the delay involved in a review of pricing by IPART would create

“discrimination between which consumers benefit, and which consumers pay, for government imposts. Under the approach you propose, current consumers will benefit from the regulatory regime ultimately funded by the NECDS Ltd Transaction Fee. But future consumers in NSW will pay for that benefit, because the cost will not be reflected in ELNO Service Fees until some time after the IPART review is completed and implemented.”

62. PEXA’s view was also that the IPART pricing review was an inappropriate venue for consideration of the specific NECDS transaction fee, particularly since that was already clearly covered in the existing Model Operating Requirements (MOR) arrangements.

63. PEXA then set out in some detail its understanding of the proper regulatory approach and the negotiations it had had around the transfer of the NECDS from PEXA to NECDS Ltd, and the accompanying licence agreement. PEXA’s letter then said:

“The approach to the passthrough of the NECDS Ltd Transaction Fee suggested in your letter is a departure from the good faith approach in which PEXA transferred its rights and has conducted those negotiations and transactions and the accommodations we have made to enable ARNECC members to meet their various objectives.”

64. PEXA concluded by reiterating that it considered that the NECDS transaction fee fell squarely within cl 5.4.4(c) and 5.4.4(d) of the Operating Requirements and drawing attention to the fact that under cl 5.4.4:

“a Registrar may not unreasonably withhold its approval of a request by an ELNO to recover costs imposed on an ELNO, such as those currently under consideration.” (emphasis added)

65. It was then said:

“In circumstances where:

(a) the NECDS Transaction Fee clearly falls within Rule 5.4.4(c) and 5.4.4(d) of the MOR;

(b) the other State Registrars and ARNECC have approved ELNOs passing on the NECDS Transaction Fee;

(c) the NECDS Transaction Fee is a regulatory charge intended to facilitate and raised revenue to regulate the eConveyancing industry generally;

PEXA considers that it would be unreasonable for the NSW Registrar to withhold approval.

Not only is national uniformity across the jurisdictions an important consideration, but also treatment of ELNOs.

In accordance with the NECDS Licence Agreement PEXA holds contractual obligations to commence collection of the NECDS Transaction Fees nationally, commencing 1 July 2025.

This issue cannot be unduly delayed. Accordingly, unless we hear further from you by 4pm on 11 July 2025, PEXA will assume you are taking the same position as all the other Registrars and PEXA will be collecting the fee nationally.”

The RG’s letter to IPART of 7 July 2025

66. On 7 July 2025, the RG wrote to IPART noting that its review of ELNO service fees, the second task, commenced that month and provided further information about current arrangements for ELNOs’ access under licence to the NECDS. This included that the transfer of the NECDS to NECDS Ltd had occurred and that ELNOs had accepted NECDS Ltd’s licence terms. In addition, the RG informed IPART as follows:

“NECDS Ltd has determined to charge each ELNO Transaction Fees of $1 (excl GST) for every electronic transaction lodged through the ELNO’s ELN as well as an Annual Fee of $1,500 (excl GST) per month. The Annual Fee is a baseline fee for an ELNO to access the NECDS, while Transaction Fees are volume-based, reflecting an ELNO’s use of the NECDS for lodgment purposes. The fees will fund NECDS Ltd’s operations and functions.

On 9 May 2025, PEXA wrote to ARNECC requesting approval under Operating Requirement 5.4.4 to increase its ELNO Service Fees, to effect a pass through of the NECDS Ltd Transaction Fees to Subscribers.

**IPART’**s review is an independent and robust mechanism to assist assess PEXA’s request

My view is that the IPART review will produce information and findings that will be relevant to properly consider PEXA’s request. For example, a complete pass-through approach fails to account for the benefits that PEXA receives under the agreement for which the NECDS licence fee is paid – specifically, access to the NECDS and the management and curation of the NECDS by NECDS Ltd.

I have therefore responded to PEXA that its request remains under review until after completion of the IPART review. I have indicated to PEXA that I would write to IPART, noting this approach. My understanding is that other Registrars are approving PEXA’s request.

To provide further context to IPART, in their response to my letter, PEXA has raised the following concerns:

● that my approach would bundle together the recovery of a specific additional recurrent charge that ELNOs are entitled to recover immediately with a much broader review of ELNO pricing unlikely to be implemented before 1 July 2026

● that delay creates discrimination between which consumers benefit, and which consumers pay, for government imposts

● that the IPART pricing review will inevitably focus on broader issues, particularly the long-term asset base, cost of capital, overall operating costs and opportunities for efficiencies; that IPART may take an approach similar to 2019 which considered overall pricing rather than attempting to set a specific price; and this approach may lead to a failure to fully reflect government charges such as the NECDS Ltd Transaction fee.”

The RG’s response of 11 July 2025

67. The RG responded to PEXA by letter dated 11 July 2025 clarifying that PEXA’s request remained under review, pending completion of the IPART review and reiterating her view that it was “reasonable and appropriate for [her] to be properly informed by the IPART review before approving any new costs to Subscribers”. More specifically, the RG responded as follows:

“Without purporting to respond to all the matters raised by PEXA in its letter, I note the following:

● In your letter, you ascribe to NECDS Ltd certain intentions as to how it proposes to use the “Annual Fee” and “Transaction Fees” (as each of those terms is defined in the NECDS Licence) to fund various activities. I encourage PEXA to discuss these matters directly with NECDS Ltd to clarify this, as the funding purposes you have described do not accord with my understanding of NECDS Ltd’s position.

● I note PEXA’s comments about the history of negotiations between PEXA and NECDS Ltd. However, the decision as to whether to approve new costs to Subscribers lies with the Registrars, not NECDS Ltd.

● As I noted in my 19 June letter, I understand it is open to IPART to take into account and recommend an approach in relation to any costs that have been incurred retrospectively by an ELNO, that it considers can reasonably be passed on – which I expect should address your concerns about the time it may take IPART to complete its review. I have also notified IPART of PEXA’s request to me under Operating Requirement 5.4.4 to increase its pricing table to pass through these fees; and I have offered assistance to IPART if needed.

● As part of that comprehensive process, PEXA will have an opportunity to present to IPART (as an independent party) its position, including the matters raised in your letter.

Other than annual CPI increases, PEXA is not permitted to increase its ELNO Service Fees without my approval.”

68. The RG also put PEXA on notice of potential consequences if it increased ELNO service fees without her approval, as possibly foreshadowed in the last part of PEXA’s letter of 4 July 2025.

Other States and Territories’ responses to PEXA’s request

69. From late June to August 2025, the Registrar’s or their representatives of the States and Territories other than New South Wales gave their approvals for PEXA to pass-through the NECDS transaction fee, mostly with conditions which were not of any relevance to the present case.

Solicitors’ letters

70. On 25 July 2025, PEXA’s solicitors wrote to the RG effectively setting out contentions as to why it was unreasonable for the RG to withhold approval as sought by PEXA and requesting confirmation of approval by 1 August 2025. Should the RG continue to withhold approval, PEXA’s solicitors indicated that, “our client may regrettably have to seek a determination of this issue”.

71. On 1 August 2025, solicitors then acting for the RG wrote to PEXA’s solicitors indicating that the RG had considered the matters raised on behalf of PEXA and she maintained her position that PEXA’s request remained under review, pending completion of the IPART review. The letter then set out contentions as to: how the regulatory framework established by the Operating Requirements operated in the present context; why the RG’s approach was reasonable; and, why there was no unreasonable delay.

IPART’s call for submissions in relation to the second task

72. On 19 August 2025, IPART called for submissions from all interested stakeholders on the regulation of ELNO service fees. It was said that conditions have changed since ELNO service fees were last reviewed in 2019 and IPART’s current review would investigate changes in input costs and explore what has changed in the market since its last review including the level and nature of competition. The input sought was described as follows:

“We want to hear from all interested parties on key issues and information we should consider for this review. You can make a submission on our Terms of Reference, as described above, and any other issues you consider relevant for us to consider. For example, we are interested in hearing about:

• the level and nature of competition in the ELNO market and where it is headed

• changes in the market including changes to the barriers to entry

• impacts of the current form of regulation, for example, to what extent has this protected ELNO subscribers from non-competitive prices, or allowed ELNOs to recover their efficient costs?

• subscribers’ experiences of transaction services used and service fees paid

• costs of and cost drivers for different transaction types.”

73. IPART anticipated that its final report on task two would be submitted by 30 June 2026.

PEXA’s summons seeking judicial review

74. On 10 October 2025, PEXA filed a summons in this Court seeking judicial review of “the decision of the Registrar-General on 11 July 2025 not to approve the request from PEXA for a change to its ‘Pricing Table’ under Operating Requirement 5.4.4 in order to pass through the NECDS fee to subscribers”.

PEXA submission to IPART and the extent of PEXA’s operations

75. On 16 November 2025, PEXA provided its revised submission to IPART in relation to the second task. This submission included information as to PEXA’s market share and the volume of transactions in the Australian e-conveyancing market.

76. Accepting this information as reliable, I found that the market share of the only other ELNO in operation in Australia, Sympli, was less than 1% in the 2024-25 financial year. Thus, PEXA’s market share was over 99% of e-conveyancing transactions in Australia. In New South Wales, the only State where Sympli currently offers services, it performed 1.1% of e-conveyancing transactions in 2024-25, and thus for New South Wales, PEXA’s market share was 98.9%.

77. In the 2024-25 financial year, the actual number of e-conveyancing transactions in Australia was 3,945,675 composed of:

| Transaction service | Number | | Transfer | 2,534,632 | | Refinance | 883,666 | | Other | 527,377 | | Total | 3,945,675 |

78. This was consistent with PEXA’s affidavit evidence that it presently bills more than 10,000 transactions per day.

79. PEXA’s affidavit evidence, which was unchallenged and is to be accepted, was also that New South Wales accounts for approximately 30% of relevant transactions Australia wide which attract a lodgment fee. Since PEXA’s market share is 98.9% in New South Wales, it follows that PEXA provided in the order of 1.2 million e-conveyancing transaction services in the 2024-25 financial year in this State.

80. Assuming no significant annual increase in the 2025-26 financial year compared to the 2024-25 financial year in the number of PEXA’s transactions in New South Wales and if each of those transaction services attracted the $1 NECDS Ltd transaction fee, PEXA would be required to pay approximately $1.2 million in respect of New South Wales transactions in the 2025-26 financial year. [5] By way of contrast, the NECDS Ltd annual fee which PEXA and Sympli would both be required to pay for the financial year 2025-26 is $1,500 per month or $18,000 per annum.

IPART extension of time

81. On 22 January 2026, IPART wrote to the RG seeking an extension of time in which to deliver its final report on the second task, from 30 June to 30 September 2026.

82. On 28 January 2026, the RG wrote to IPART approving the extension of time.

Differential pricing between jurisdictions

83. PEXA has published its fees and charges as of 18 May 2026, for New South Wales and other States and Territories. These published fees and charges indicate that differential pricing for jurisdictions has been introduced to the extent that for certain e-conveyancing transaction services with the same description, the fee charged to subscribers in relation to New South Wales transactions is $1.10 (or $1 excluding GST) less than the fee to subscribers in other States and Territories.

PEXA’s summons

84. In its summons filed on 10 October 2025, PEXA sought relief against the RG as set out in the following prayers for relief:

“1 A declaration that the decision of the Registrar-General to withhold her approval of the request from Property Exchange Australia Limited (PEXA) to change its “Pricing Table” in order to pass through the transaction fee charged by NECDS Ltd (NECDS fee) to subscribers was “unreasonable” within the meaning of Operating Requirement 5.4.4, as made under s 22 of the Electronic Conveyancing National Law, as adopted in New South Wales: Electronic Conveyancing (Adoption of National Law) Act 2012 (NSW).

2 A writ of certiorari to quash the decision of the Registrar-General to withhold her approval of the request from PEXA to change its “Pricing Table” in order to pass through the NECDS fee to subscribers.

3 A writ of mandamus to compel the Registrar-General to remake the decision on the request from PEXA to change its “Pricing Table” in order to pass through the NECDS fee to subscribers according to law.

4 In the alternative to Orders 1-3, a writ of mandamus to compel the Registrar- General to make a decision on the request from PEXA to change its “Pricing Table” in order to pass through the NECDS fee to subscribers within 14 days.”

85. The decision to be reviewed was described in par 2 of the Details of Decision in the summons as:

“The decision to be reviewed was the decision of the Registrar-General on 11 July 2025 not to approve the request from PEXA for a change to its “Pricing Table” under Operating Requirement 5.4.4 in order to pass through the NECDS fee to subscribers.”

86. The grounds of review set out in the summons are:

“1. The Registrar-General misconstrued the meaning of the phrase ‘unreasonably withheld’ in Operating Requirement 5.4.4, and/or made a decision that was legally unreasonable, because:

(a) The Registrar-General failed to give adequate weight to a relevant factor of great importance, being that:

(i) the Electronic Conveyancing National Law and the Operating Requirements made under that Law are intended to promote efficiency throughout Australia in property conveyancing by providing a common legal framework;

(ii) each of the States and Territories other than New South Wales has approved PEXA’s request; and

(iii) the Australian Registrars’ National Electronic Conveyancing Council agreed to PEXA’s request in principle;

(b) The Registrar-General gave excessive weight to a relevant factor of no great importance, being the fact that the NSW Independent Pricing and Regulatory Authority (IPART) is conducting a review;

(c) The non-approval of PEXA’s request at any time before June 2026 means that PEXA cannot pass through the NECDS fee in the meantime, and there is no guarantee that PEXA would be able to recover the fee retrospectively in the event that the request were to be approved;

(d) the NECDS fee is an ‘additional fee, charge or Cost’ that is imposed on PEXA by a ‘government agency’, and/or that is imposed on PEXA ‘in order to operate an ‘Electronic Lodgment Network’, within the meaning of Operating Requirement 5.4.4(c) and (d); and

(e) PEXA requested only to ‘pass through’ the NECDS fee, such that the increase would not exceed the actual cost incurred by PEXA in respect of the fee.

2 The Registrar-General failed to consider a mandatory relevant consideration, being that the Electronic Conveyancing National Law and the Operating Requirements made under that Law are intended to promote efficiency throughout Australia in property conveyancing by providing a common legal framework.

3 In the alternative to Grounds 1-2, the delay by the Registrar-General in deciding whether to approve PEXA’s request to change its ‘Pricing Table’ in order to pass through the NECDS fee to subscribers until after the conclusion of the IPART review in June 2026 constitutes unreasonable delay in making the decision.”

The Attorney General’s response to summons

87. In the Attorney General’s response to the summons filed on 28 November 2025, it was contended in effect that no decision withholding approval had in fact been made by the RG, on the basis that PEXA’s request “remains under review” pending completion of the IPART review and the RG obtaining further information. On that basis, it was effectively contended that there was no relevant decision which could be the subject of the declaration in prayer 1 or which could be set aside by way of an order in the nature of certiorari as sought in prayer 2. In addition, the Attorney General took issue with pertinent matters raised in ground 1 (a) to (e) and grounds 2 and 3 as the basis for PEXA’s entitlement to relief as claimed.

88. It is convenient to deal with each of grounds 1, 2 and 3 in order but before doing so it is necessary to consider the issue of whether there was any relevant decision of the RG amenable to an order in the nature of certiorari.

Is there a relevant decision?

89. The Attorney General contended that a decision whether or not to approve PEXA’s request to pass through the transaction fee had not yet been made because the RG deferred making such a decision pending her obtaining information from the IPART review of e-conveyancing pricing. Thus, it was said there was no decision that met the description in par 2 of the Details of Decision in the summons, namely the decision “not to approve the request from PEXA for a change to its ‘Pricing Table’ under Operating Requirement 5.4.4 in order to pass through the NECDS fee to subscribers”.

90. In this regard, it can be noted that prayers for relief 1 and 2 in the summons identify the impugned decision as the RG’s “decision … to withhold … approval of the [PEXA] request … to pass through the [NECDS fee] to subscribers” which is somewhat different from the description of the impugned decision in par 2 of the Details of Decision.

91. In my view, the wording of par 2 of the Details of Decision should not be treated as a matter of strict pleading which would preclude PEXA from identifying the relevant decision of the RG as a decision to withhold approval of PEXA’s request to permit it to pass through the NECDS transaction fee. It is clear that the decision of the RG sought to be impugned is the decision communicated by the RG’s letters of 19 June 2025 and 11 July 2025 that “PEXA’s request [for approval] remains under review and [the RG] anticipate[d] arriving at a decision [whether or not to approve] once all the relevant information has been obtained”. From this description of what occurred, it follows that the RG made a decision not to approve or disapprove the request at that time and to keep the request for approval under review for the period necessary to obtain all the relevant information. During the period after the request was received and considered and while a decision has been made not to grant an approval pending the obtaining of all relevant information, there has been in effect a withholding of approval. That withholding was the result of the decision to keep the request for approval under review. In that sense, the RG’s decision communicated by her letters of 19 June 2025 and 11 July 2025 amounted to a decision to withhold approval until at least all relevant information was obtained. Furthermore, since the request for approval only related to fees to be charged in the 2025-26 financial year and “all the relevant information” referred to by the RG was anticipated to come from the IPART review which was not due to be the subject of a report before the end of June 2026 (which has subsequently been extended to September 2026), the effect of the decision to keep the request for approval to pass through fees under review was to withhold approval for the whole of the period in respect of which approval was sought.

92. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335-339; [1990] HCA 33 (Bond), Mason CJ considered which decisions were amenable to review under the (Cth). Although concerned the meaning of “decision” in that particular statute, the reasoning relating to what types of decisions might properly be the subject of judicial review remains instructive. Mason CJ explained ( at 337) that a reviewable decision in the context of judicial review of administrative actions “will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration”. These characteristics provide appropriate criteria for identifying judicially reviewable decisions in the context of proceedings such as the present.

Ground 1 – Unreasonableness

97. The first ground of review sought to impugn the RG’s decision to withhold approval of PEXA’s request by keeping it under review pending completion of the IPART review on two alternate bases relating to the reasonableness of the decision said to amount to jurisdictional error:

98. The RG proceeded on an incorrect understanding of the law as a result of misconstruing the phrase “unreasonably withheld” in cl 5.4.4 of the Operating Requirements; or

99. Alternatively, the RG’s decision was “legally unreasonable”.

100. There were then set out in the summons, subgrounds (a) to (e) with subground (a) having three subsubgrounds (i) to (iii). PEXA’s written submissions took a somewhat different approach referring to seven reasons why, on the proper construction of cl 5.4.4 of the Operating Requirements and in the particular circumstances of this case, the RG has unreasonably withheld her approval. I shall identify where the subgrounds and the seven reasons overlap.

Submissions

PEXA’s submissions

99. PEXA relied on the stipulation in cl 5.4.4 of the Operating Requirements that the approval for a change to its pricing table “may not be unreasonably withheld” by the RG. It was submitted that having regard to the text of the clause and its context, including the National Law, the phrase “unreasonably withheld” should be construed in such a way that the grounds of refusal should relate to, and be consistent with, the purpose of the regime within which the request was made. Furthermore, it was said that construction of the phrase “unreasonably withheld” should not start from an assumption that automatically incorporates the high threshold required to establish the ground of judicial review known as “legal unreasonableness”.

100. It was then contended that there were seven reasons or factors which indicated that the RG had misconstrued the phrase, in effect, because her decision to withhold consent for a period demonstrated unreasonableness.

101. First, PEXA submitted that the NECDS Ltd transaction fee was precisely the kind of fee which cl 5.4.4 contemplated would be approved, relying on subcll (c) and (d) and the reasons for the inclusion in particular of subcl (d) in cl 5.4.4. PEXA also referred to its understanding of discussions with various participants concerning these clauses. This first reason was also subground (d).

102. Secondly, it was said that ARNECC’s Guidance Notes for an earlier version of the Model Operating Requirements stated that the purpose of cl 5.4 was “to ensure that any fees [an ELNO charges] to a Subscriber for access to and use of the ELN are reasonable and [the ELNO is] not exploiting any lack of market competition for the services [it provides]” and passing through the NECDS Ltd transaction fee did not amount to exploitation of a lack of market competition.

103. Thirdly, PEXA submitted that the bases on which approval can reasonably be “withheld” must be determined in the context of the National Law and the object of the national e-conveyancing scheme which was said to be to promote efficiency in e-conveyancing, to minimise inconsistencies between jurisdictions and to ensure that business practices are consistent where possible. The RG’s withholding of approval, when registrars in the other States and Territories have given approval, albeit with conditions which have no relevance for present purposes, leads to significant inconsistency in the national scheme and will be unreasonable unless there is a good reason for the inconsistency. In these circumstances, it was then submitted that awaiting the outcome of the IPART review without a cogent explanation of why that is required meant that the withholding of approval is “plainly unreasonable”.

104. Fourthly, it was submitted that ARNECC approved PEXA’s request in principle and, while it was noted that each registrar was required to make his or her own decision, it was not contemplated that such a determination would be divorced from consideration of the desirability of a nationally consistent approach.

The Attorney General’s submissions

109. In response, the Attorney General submitted that any withholding of approval by the RG was not unreasonable within the meaning of cl 5.4.4.

110. More specifically it was contended that cl 5.4.4(c) and (d) merely identify types of fees that an ELNO may seek to pass through and did not indicate anything as to the reasonableness of a decision whether or not to withhold approval in respect of them. It was also said that PEXA’s discussions with other participants could not bind the RG.

111. It was submitted that cl 5.4.4 did not specify circumstances which would render a decision to withhold reasonable or unreasonable and thus approval might reasonably be withheld on any ground considered appropriate, “except perhaps if the ground were impliedly outside the ‘terms, scope and purpose of the statute conferring the power’”. It was said in effect that concern as to the overall level of PEXA’s fees and the costs of administering the NECDS no longer borne by PEXA were not outside the scope of the Operating Requirement or the National Law, especially having regard to the terms of s 22 of the National Law. It was also submitted that the RG would not exceed the bounds of reasonableness by seeking input from the independent pricing regulator on that matter.

112. The Attorney General also submitted that national consistency and the objects of the National Law do not assist PEXA’s argument. A common legal framework was said not to imply or mandate a common pricing framework and the independence of the registrar of each jurisdiction was emphasised. In addition, it was contended that the desirability of national consistency related to the content of the operating requirements determined under s 22 of the National Law rather than decisions made by individual registrars under those requirements. Vesting of the rule making power in individual registrars was said to mean that jurisdictional variation was accommodated by the scheme.

113. As to the role and opinions of ARNECC and the 2011 intergovernmental agreement, it was submitted that these did not determine whether the RG’s particular decision in the present case was unreasonable. In addition, the Attorney General contended that withholding approval would not create “significant inconsistency”. It was noted that pricing already varied between States and Territories because of different charges by State Revenue Offices. It was noted that, as a practical matter, PEXA had already accommodated differential pricing in that PEXA’s pricing tables differed between New South Wales and elsewhere from 18 May 2026 by the amount of the NECDS Ltd transaction fee.

114. The Attorney General also submitted that “unreasonably withheld” in cl 5.4.4 of the Operating Requirements should not be construed by reference to the use of that expression in private contractual contexts. This was said to arise because the RG is a statutory officeholder exercising a statutory mandate to administer operating requirements made under the National Law and factors that may constrain the reasonableness of a private party’s decision could not be assumed similarly to constrain such a public official’s exercise of statutory responsibilities. Rather, it was said that these words should be construed as importing “the undemanding public law standard of legal reasonableness” and the use of the words “unreasonably withheld” in cl 5.4.4 did not displace the presumption that this was the appropriate standard.

Consideration

117. The proper construction of the phrase “which may not be unreasonably withheld” in cl 5.4.4 of the Operating Requirements is governed, in the first place, by specific provisions in Sch 1 to the National Law.

118. By virtue of s 4 and cl 37 of Sch 1 of the National Law, the principles of interpretation elaborated in Sch 1 apply not only to the Law but also to statutory instruments made under the law. Section 4 of the Law simply states that “Schedule 1 applies in relation to this Law”. Schedule 1 is headed “Miscellaneous provisions relating to interpretation” and includes cl 37, which states:

“(1) This Schedule applies to a statutory instrument, and to things that may be done or are required to be done under a statutory instrument, in the same way as it applies to this Law, and things that may be done or are required to be done under this Law, except so far as the context or subject matter otherwise indicates or requires.

(2) The fact that a provision of this Schedule refers to this Law and not also to a statutory instrument does not, by itself, indicate that the provision is intended to apply only to this Law.”

119. In cl 12(1) of Sch 1 to the National Law, “statutory instrument” is defined for the purposes of the Law as meaning:

“… an instrument made or in force under or for the purposes of this Law, and includes an instrument made or in force under any such instrument.”

And “instrument” is defined as including a statutory instrument.

120. In light of those definitions, the operating requirements made under s 22 of the National Law, including the New South Wales Operating Requirements Version 7.1, are “statutory instruments” for the purposes of the Law.

121. Accordingly, the principles of interpretation set out in Sch 1 to the National Law apply when construing cl 5.4.4 of the Operating Requirements.

122. Schedule 1 to the National Law most pertinently includes, in addition to cll 4, 12 and 37 which have already been referred to, the following:

“7 Interpretation best achieving Law’s purpose

(1) In the interpretation of a provision of this Law, the interpretation that will best achieve the purpose or object of this Law is to be preferred to any other interpretation.

(2) Subclause (1) applies whether or not the purpose is expressly stated in this Law.

8 Use of extrinsic material in interpretation

(1) In this clause—

extrinsic material means relevant material not forming part of this Law, including, for example—

(a) material that is set out in the document containing the text of this Law as printed by the Government Printer, and

(b) a relevant report of a Royal Commission, Law Reform Commission, commission or committee of inquiry, or a similar body, that was laid before the Parliament of this jurisdiction before the provision concerned was enacted, and

(c) a relevant report of a committee of the Parliament of this jurisdiction that was made to the Parliament before the provision was enacted, and

(d) a treaty or other international agreement that is mentioned in this Law, and

(e) an explanatory note or memorandum relating to the Bill that contained the provision, or any relevant document, that was laid before, or given to the members of, the Parliament of this jurisdiction by the member bringing in the Bill before the provision was enacted, and

(f) the speech made to the Parliament of this jurisdiction by the member in moving a motion that the Bill be read a second time, and

(g) material in the Votes and Proceedings of the Parliament of this jurisdiction or in any official record of debates in the Parliament of this jurisdiction, and

(h) a document that is declared by this Law to be a relevant document for the purposes of this clause.

ordinary meaning means the ordinary meaning conveyed by a provision having regard to its context in this Law and to the purpose of this Law.

(2) Subject to subclause (3), in the interpretation of a provision of this Law, consideration may be given to extrinsic material capable of assisting in the interpretation—

(a) if the provision is ambiguous or obscure, to provide an interpretation of it, or

(b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable, to provide an interpretation that avoids such a result, or

(c) in any other case, to confirm the interpretation conveyed by the ordinary meaning of the provision.

(3) In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be had to—

(a) the desirability of a provision being interpreted as having its ordinary meaning, and

(b) the undesirability of prolonging proceedings without compensating advantage, and

(c) other relevant matters.

…

14 Meaning of “may” and “must” etc

(1) In this Law, the word may, or a similar word or expression, used in relation to a power indicates that the power may be exercised or not exercised, at discretion.

…

(3) This clause has effect despite any rule of construction to the contrary.

15 Words and expressions used in statutory instruments

(1) Words and expressions used in a statutory instrument have the same meanings as they have, from time to time, in this Law, or relevant provisions of this Law, under or for the purposes of which the instrument is made or in force.

(2) This clause has effect in relation to an instrument except so far as the contrary intention appears in the instrument.

…

22 Performance of statutory functions

(1) If this Law confers a function or power on a person or body, the function may be performed, or the power may be exercised, from time to time as occasion requires.

…”.

123. In addition, in light of the fact that the Operating Requirements are made under statute by a public official holding a statutory office, the general principles relating to statutory construction should, in my view, be taken to apply to the Operating Requirements either directly or, at least, by analogy, and to the extent that they are not inconsistent with Sch 1 to the National Law.

124. These general principles of statutory construction were recently summarised by the High Court in Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35, in which Gageler CJ, Gordon, Jagot and Beech-Jones JJ relevantly said at [4] to [6]:

“4. Statutory construction is the process of attributing meaning to statutory text. The construction of a statutory provision begins and ends with the statutory text understood in context and in light of the statutory purpose – being what the provision is designed to achieve in fact – insofar as that purpose is discernible from the statutory text and context. …

5. That being the nature of the task to which the process is directed, the “modern approach” to statutory construction … ‘(a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means ... , one may discern the statute was intended to remedy’. …

6. … Understanding context, including so much of the context as might be revealed by extrinsic material, ‘has utility if, and in so far as, it assists in fixing the meaning of the statutory text’. Focus on the statutory text is not to the exclusion of extrinsic material that has the potential to assist in fixing its meaning.”

(footnotes omitted)

125. More specifically, in the present case the phrase required to be construed includes the word “unreasonably” which expressly imports a requirement that a standard of reasonableness be applied. Generally, where a statutory power is conferred there is a common law presumption of statutory interpretation that the power is subject to the condition that it can only be exercised within the bounds of “legal reasonableness”. In other words, a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action will be invalid: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 (SZVFW) at [53] (Gageler CJ) and see also [51] and Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 (Quin) at 36 (Brennan J); [1990] HCA 21.

126. Gageler CJ went on to say in SZVFW at [53] that:

“The presumption prevails to condition the exercise of the power on the repository complying with the standard of legal reasonableness absent statutory indication that the repository must meet some higher standard (an example of which is where the repository is restricted to exercising the power only on reasonable grounds) …”.

127. These provisions and principles are to be applied when construing the expression “unreasonably withheld” in cl 5.4.4 of the Operating Requirements which relevantly provides:

“… the ELNO may, at any time, request the Registrar’s approval, which may not be unreasonably withheld, for proposed changes to its Pricing Table …”.

128. Turning first to the text of the expression, “which may not be unreasonably withheld”, the use of the word “may” indicates that a power has been conferred on the RG to grant or withhold approval which may be exercised or not exercised, at discretion, as provided in cl 14 of Sch 1 to the National Law. Clause 22 of Sch 1 establishes that the function of approving or withholding approval may be exercised, from time to time as occasion requires. Although it can be said that the Operating Requirements do not bind the RG, they do confer that power on her but any exercise of the power will only be valid if exercised in accordance with the Operating Requirements. Accordingly, cl 5.4.4 should be construed as permitting the RG to withhold approval for a period but reserving the power to make a further decision whether or not to approve at a later time.

129. Furthermore, the text of cl 5.4.4 establishes that the exercise of this discretion to approve or withhold approval is conditioned on any withholding being not unreasonable or, expressed positively, reasonable. This requirement of reasonableness is capable of being construed as either:

130. requiring that any withholding be not unreasonable, or reasonable, on the ordinary meaning of those terms, in all the circumstances of the case; or

131. referring to the notion of legal unreasonableness, as explained for example in SZVFW and Quin.

132. The context for the words “may not be unreasonably withheld” is provided by cl 5.4 of the Operating Requirements which deals with the pricing of ELNO’s services to customers, known as subscribers, and includes provisions which in effect strictly regulate the prices which ELNOs may charge their customers and requires an ELNO to obtain the RG’s approval for any changes to the fees an ELNO may charge beyond a certain level. That clause relevantly includes:

“5.4 ELNO Service Fees

5.4.1 An ELNO may charge ELNO Service Fees in accordance with its pricing policy.

5.4.2 If the ELNO charges ELNO Service Fees, the ELNO must:

(a) for each Financial Year, prepare and publish on its website its Pricing Table; and

(b) not charge a fee greater than the amount specified in the published Pricing Table

5.4.3 From 1 July 2019 to 30 June 2026, an ELNO may increase the ELNO Service Fees as listed in its Pricing Table, once every Financial Year on 1 July, provided that the percentage increase in the revised ELNO Service Fees does not exceed the percentage increase in the CPI for the immediately preceding March quarter when compared with the CPI for the March quarter of the previous year.

5.4.4 Notwithstanding Operating Requirement 5.4.3, the ELNO may, at any time, request the Registrar’s approval, which may not be unreasonably withheld, for proposed changes to its Pricing Table, including, but not limited to, in the event:

…

(c) that additional fees, charges or Costs are imposed on the ELNO by the Registrar, Land Registry or government agencies; or

(d) that additional fees, charges or Costs are imposed on the ELNO in order to operate an ELN.

…”.

131. The Explanatory Notes to the Model Operating Requirement Version 7.1 published by ARNECC, which have been adopted under s 22 of the National Law as the current NSW Operating Requirements consistently with s 24(2), explained that “the intention of … cl 5.4.3 is to restrict ELNO Service Fee increases until there is effective competition in the market.” Even though this Explanatory Note does not fall within any of the extrinsic material as defined in cl 8(1) of Sch 1 of the National Law, this note provides factual context which aids in understanding the purpose of relevant provisions of the Operating Requirements. The explanation given is also consistent with the fact that in New South Wales PEXA has approximately 98.9% market share in the market for e-conveyancing services provided by ELNOs. In the circumstances, cl 5.4.2 requires an ELNO such as PEXA, each financial year, to prepare and publish its Pricing Table for New South Wales.

132. Clause 5.4.3 involves a form of price control whereby an ELNO may not charge prices to customers for specified years if the prices are increased compared to the previous year by more than the increase in the consumer price index over the same period. This form of price control was adopted in earlier versions of cl 5.4.3, some of which have been quoted above at [24]. By the present cl 5.4.3, that form of price control has been effectively extended for another year by the current Operating Requirements.

133. The words “which may not be unreasonably withheld” are found in the chapeau to cl 5.4.4 of the Operating Requirements in the context of an ELNO seeking the RG’s approval of proposed changes to the ELNO’s Pricing Table required to be prepared and published each financial year under cl 5.4.2.

134. A new par (d) was added to cl 5.4.4 in the current Version 7.1 of the Operating Requirements. This addition was explained in the ARNECC Explanatory Notes as follows:

“This new requirement is intended to cover incidental fees such as any licence fees charged to an ELNO.”

135. It was not in dispute that the NECDS Ltd transaction fee fell within cl 5.4.4(d). Thus, it can be seen that cl 5.4.4 of the Operating Requirements was intended to allow an ELNO to seek the RG’s approval to change its Pricing Table in circumstances where the NECDS Ltd annual and transaction fees were imposed on an ELNO in order to operate an ELN.

136. All of this provides the specific context in which cl 5.4.4 establishes that the RG’s approval of a request by an ELNO to change its fees as a result of a fee, such as the NECDS Ltd transaction fee, being imposed on the ELNO “may not be unreasonably withheld”.

137. The purpose of cl 5.4 including the regulation of ELNO service fees charged to customers because of the absence of effective competition in the market for ELNO services tends, in my view, in favour of construing “not unreasonably” as invoking a higher standard than would be required if “unreasonably” referred only to legal unreasonableness, in the sense explained above. The text and context of the expression “may not be unreasonably withheld” together with the general purpose of cl 5.4 and the specific inclusion of cl 5.4.4(d) suggest that any withholding of approval by the RG must be not unreasonable having regard to the relevant factual circumstances, the purpose of cl 5.4 and the broader scope and purpose of the Operating Requirements, as well as the object, scope and purpose of the National Law, under which the Operating Requirements were made.

138. Further context is provided by s 27 of the National Law. Subsection (1) of s 27 establishes that, notwithstanding the obligation on an ELNO to comply with the operating requirements, including in the present case cl 5.4, by virtue of s 18 of the National Law and cl 3 of the Operating Requirements, the RG may “waive compliance with all or any provisions of the operating requirements … if the Registrar is satisfied that granting the waiver is reasonable in all the circumstances”. Section 27(2) lists examples of types of waivers which illustrate the extensive width of this power as follows:

“(2) A waiver under this section may—

(a) be total or partial, and

(b) apply generally to all persons, or be limited in its application to particular persons or particular classes of persons, and

(c) apply generally or be limited in its application by reference to specified exceptions or factors, and

(d) apply indefinitely or for a specified period, and

(e) be unconditional or subject to conditions or restrictions.”

139. Section 27(1) imposes a standard of “reasonableness” in respect of any decision to grant a waiver under the section. Having regard to the types of waiver in s 27(2) and the nature of the obligations that may be waived, it appears that the intention was to impose a standard of “reasonableness” in that provision which is higher than the standard of being not legally unreasonable, as explained above. Given that both s 27(1) and cl 5.4.4 involve decisions not to require strict compliance with aspects of the Operating Requirements, it would be appropriate, in my view, to construe the reasonableness standard invoked by the wording of both s 27(1) of the National Law and cl 5.4.4 of the Operating Requirements in the same way.

140. This construction of “not unreasonably” in cl 5.4.4 as involving a higher standard of reasonableness than is involved in legal unreasonableness is also supported by a consideration of the object of the National Law as required by cl 7 of Sch 1 to the National Law read together with cl 37. Those clauses in effect mean that an interpretation of a provision of the Operating Requirements, including cl 5.4.4, which best achieves the object of the Law is to be preferred to any other interpretation.

141. As noted above, the object of the National Law as set out in s 5(1) is “to promote efficiency throughout Australia in property conveyancing by providing a common legal framework” that meets certain criteria. There are two elements to this object: promoting efficiency; and, a common legal frame work for achieving that efficiency.

142. Thus, a construction of the Operating Requirements that assist to achieve the object of promoting “efficiency” is to be preferred to any other construction. The use of “efficiency” in s 5(1), given the factual circumstances in which national e-conveyancing has been developed, set out in some detail above, suggests that the National Law is intended to promote not only technical efficiency in relation to electronic filing of conveyancing documents but also cost efficiency for consumers of e-conveyancing services as well as the efficient deployment of resources in the wider national economy as a result of competitive pricing for such services. As is permitted by cl 8(1) of Sch 1 to the National Law, this approach is confirmed by the Second Reading Speech for the Electronic Conveyancing (Adoption of National Law) Bill 2012 which included the following statements indicative of the purpose of the legislation in relation to efficiency: [6]

“The possible improvements to efficiency in conveyancing with a national law are significant to the national economy. …

…

This bill is a major step to fulfilling Council of Australian Governments’ commitment to create a national electronic conveyancing system and is a win-win for everybody involved. There are cost savings and efficiency gains for all participants in a conveyancing system that is expected to be more secure than the paper system it will progressively replace. …”.

143. A construction of “not unreasonably withheld” in cl 5.4.4 that involves a standard of reasonableness higher than legal reasonableness is more appropriate in order to give effect to the efficiency object of the National Law. Such a construction would focus attention on the reasonableness of the withholding in light of relevant circumstances relating, inter alia, to the promotion of efficiency in the provision of e-conveyancing services in respect of technical, cost and pricing efficiency in relevant market conditions and not just require consideration of the lower standard namely whether no reasonable repository of the power could have taken the impugned decision.

144. Furthermore, consideration of the object of providing a “common legal framework” specified in s 5(1) of the National Law does not lead to a different conclusion. A “common legal framework” refers to the fact that the national e-conveyancing system is to be implemented through a co-operative scheme whereby the States and Territories each adopt the Appendix to New South Wales’ Electronic Conveyancing (Adoption of National Law) Act 2012 as the common applicable legislation in each jurisdiction. This common legal framework is required by s 5(1) of the National Law to be such as to enable electronic lodgment of documents in each participating jurisdiction and not to derogate from the fundamental principles of the Torrens system. The requirement for a common legal framework does not suggest that the reasonableness of a withholding of approval under cl 5.4.4 should be judged by reference to the lower standard of legal unreasonableness rather than what is reasonable in all the relevant circumstances and having regard to the scope and purpose of the Operating Requirements and the object, scope and purpose of the National Law.

145. Finally, there did not appear to be any other considerations which weighed substantially in favour of construing “not unreasonably” in cl 5.4.4 as involving only the lower standard of legal unreasonableness. Indeed, the present case is, in my view, an example of the situation referred to by Gageler CJ at [53] in SZVFW where the relevant provision indicates that the repository of the power must meet a higher standard than the standard of legal unreasonableness.

146. Considering all those matters, the words “which may not be unreasonably withheld” in cl 5.4.4 are to be construed as referring to a standard of reasonableness judged in all the relevant circumstances having regard to the grounds of refusal and the extent to which they are rationally related to, and consistent with, the scope and purpose of the Operating Requirements, particularly cl 5.4, and the object, scope and purpose of the National Law.

147. In light of that conclusion, the way in which PEXA put its case requires me now to consider whether the RG’s decision to withhold approval of PEXA’s request to pass through the NECDS Ltd transaction fee to customers displayed such unreasonableness that it amounted to the approval being “unreasonably withheld” on the proper construction of those words in cl 5.4.4. At times, the submissions in this regard verged on seeking merits review rather than judicial review. Nonetheless, for the sake of completeness I have considered all the submissions.

“cooperate on the implementation and management of National E-Conveyancing to minimise inconsistencies between jurisdictions. …”;

2. in cl 5.2.2, an agreement to:

“work collaboratively to ensure that business practices are consistent where possible”.

3. In cl 7.1.3, an agreement that ARNECC’s functions were to include ensuring:

“that, as far as is practicable, business practices with respect to National E-Conveyancing are consistent when implemented in each jurisdiction”.

158. In addition, as noted above, the object of the National Law is stated in s 5(1) as being “to promote efficiency throughout Australia in property conveyancing by providing a common legal framework” that enables the lodgment and processing of relevant documents in electronic form without derogation from the fundamental principles of the Torrens system.

159. While the 2011 Agreement between the States and Territories clearly stated an objective of achieving consistency in “business practices” under the national e-conveyancing system, in each case quoted above the objective is qualified by words such as “where possible” or “as far as practicable”. Further it is not self-evident that the phrase “business practices” was intended to refer to pricing. Even if that were the case, the continued existence of inconsistency was in effect accepted when the parties agreed to cooperate on implementation and management of the system “to minimise” rather than to eliminate inconsistencies between jurisdictions. It is inherent in this that where inconsistencies are justified in the circumstances, they were intended to be permitted in the national e-conveyancing scheme. Accordingly, it cannot be accepted that any inconsistency in pricing between jurisdictions must involve unreasonableness in the decisions whereby the inconsistency was created.

160. Furthermore, the object of the National Law being “to promote efficiency throughout Australia in property conveyancing by providing a common legal framework …” does not establish that pricing for e-conveyancing services must or should be the same across all jurisdictions. As observed above there are two elements to this object: promoting efficiency; and, a common legal framework for achieving that.

161. As to the first element, promoting efficiency in the provision of e-conveyancing services, “efficiency” includes technical, cost and pricing efficiency. If different market conditions between jurisdictions would dictate or support different efficient pricing outcomes in various jurisdictions, then this element of the objective would generally require that prices in the different jurisdictions be different.

162. As to the “common legal framework”, that expression refers essentially to the framework provided by the National Law adopted as the common legislation for the scheme by each of the States and Territories. The “common legal framework” is also reflected in the operating requirements determined under s 22 for each jurisdiction, since when determining operating requirements, each registrar “must have regard to the desirability of maintaining consistency with any model provisions”, by virtue of s 24(2) of the National Law. The “common legal framework” does not refer to uniform or consistent pricing between jurisdictions.

163. Furthermore, each registrar is responsible under s 22(2)(c4) of the National Law for determining operating requirements for that registrar’s jurisdiction including in relation to setting of fees and charges. Conferring that power on each individual registrar is inconsistent with it being an imperative or overriding purpose of the national e-conveyancing scheme that pricing be uniform or consistent across all jurisdictions. Rather it indicates that inconsistent pricing may occur between jurisdictions where that outcome is justified in all the circumstances.

then

4. if PEXA were allowed to pass the transaction fee through to its customers, those customers would be required to pay that additional amount without any reduction in the fees under cl 5.4.3 to reflect the costs of curating and maintenance no longer incurred by PEXA.

5. In such a factual situation, the assertion that PEXA’s proposal to pass through the transaction fee was “reasonable” because the pass through does not exceed the actual cost of the transaction fee would be unjustified.

6. Thirdly, if as the Productivity and Equality Commission found in 2024, PEXA was able to make “above normal profits” under the current price control arrangements and these arrangements had allowed PEXA to set price levels that did “not reflect their underlying costs” and included “no requirement to improve efficiency or pass on the benefits of cost efficiencies to consumers”, it was reasonable for, if not incumbent on, the RG, as the NSW ELNO services price regulator, to inform herself as to whether it was appropriate for PEXA to be permitted to pass through to customers the NECDS Ltd transaction fee at cost. The RG’s decision to withhold approval in order to have claims such as that made by PEXA properly investigated and reviewed by IPART was not only justified, in the circumstances, but also prudent regulatory conduct. In these circumstances, it was not unjustified or unreasonable for the RG to give weight to the consideration that IPART was conducting a review that would investigate these very matters.

7. For all these reasons, I also reject subground (b) that the RG “gave excessive weight to a relevant factor of no great importance, being the fact that [IPART] is conducting a review”.

8. PEXA’s sixth reason why the RG’s decision to withhold approval pending obtaining the required information from the IPART review was submitted to be unreasonable was that it involved delay while IPART concluded its review and provided its report and during this period PEXA could not pass through the transaction fee in New South Wales whereas it could elsewhere. In addition, it was said to be unclear whether a pass-through could be recovered retrospectively, if it were subsequently approved. This is also the subject of subground (c).

9. It was not the case that the RG did not consider the issue of delay and the potential impact upon PEXA. In substance, the RG considered that if IPART concluded that a cost, such as the NECDS Ltd transaction fee, that had already been incurred by ELNO’s such as PEXA could reasonably be passed on to customers, IPART would be able to recommend, where appropriate, an approach to retrospective recovery of those costs.

10. I accept that the issues of delay and potential lost revenue from the pass through of the licence fee might give rise to prejudice to PEXA, but only if PEXA’s request were subsequently and retrospectively approved. Thus, there is no certainty that any such prejudice would actually be suffered. In any event, in the RG’s responses to PEXA she referred to how potential prejudice of this nature could be addressed. One way identified was IPART making recommendations, if appropriate, as to the nature and extent of retrospective recovery. Those recommendations would have the benefit of being based on all the information derived by IPART from its investigation of pricing by PEXA and others and the state of the e-conveyancing market. In my view, the considerations raised by PEXA in relation to delay and potential prejudice did not provide any substantial support for the conclusion that the RG misconstrued the words “unreasonably withheld” and thus withheld her approval unreasonably in all the circumstances, especially since the RG considered and addressed how potential prejudice arising from delay while awaiting the IPART report might be alleviated, if it ever arose.

“The task is … one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being [legally] unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power.”

182. In the present case, the RG’s decision to withhold approval had a more than sufficient rational foundation or evident and intelligible justification, as explained in her letters to PEXA. In the circumstances, it was in no way plainly unjust, arbitrary, capricious or lacking in common sense, especially having regard to the object, scope and purpose of the National Law and the Operating Requirements.

183. Furthermore, even accepting for the purpose of argument that seeking consistency in pricing outcomes where possible was a mandatory consideration, it was not of such great importance that failure to achieve that outcome would render the RG’s decision legally unreasonable. The stated objective of the 2011 Agreement between the States and Territories being to achieve consistency in “business practices” under the national e-conveyancing system was qualified by words such as “where possible” or “as far as practicable”. Accordingly, it was envisaged that the objective of consistency would yield to other relevant considerations in appropriate cases.

184. This approach was confirmed by s 22(2)(c4) of the National Law which made each registrar responsible for determining operating requirements for that registrar’s jurisdiction including in relation to setting of fees and charges. As already observed, conferring such a power on each individual registrar is inconsistent with it being an imperative or overriding purpose of the national e-conveyancing scheme that pricing be uniform or consistent across all jurisdictions. If national pricing consistency was a requirement of the scheme, pricing would have been set nationally and not on a jurisdiction by jurisdiction basis. In all the circumstances, the structure adopted in the National Law for determining ELNO service fees and charges indicates that inconsistent pricing between jurisdictions is permitted and intended to occur where that outcome is justified in all the circumstances.

185. Furthermore, for the reasons already given above, it does not follow from inconsistency in pricing because of different decisions made by different registrars that the decision of one rather than another registrar was unreasonable in any relevant sense.

186. In these circumstances, the fact that the RG’s withholding of approval for PEXA’s request to pass through the NECDS Ltd transaction fee, even though other registrars had approved that pass through, did not amount to a decision that was legally unreasonable even though it produced pricing inconsistency.

187. For these reasons and all the reasons given above in relation to the construction of cl 5.4.4 that I prefer, the RG’s decision was manifestly not legally unreasonable and thus did not support the conclusion that she misconstrued the expression “unreasonably withheld”, on the alternative construction of that expression.

188. Accordingly, I reject PEXA’s alternate basis put forward under the first ground of review.

Ground 2

190. PEXA’s second ground of review proceeded on the premise that the RG failed to consider a mandatory relevant consideration, namely “that the Electronic Conveyancing National Law and the Operating Requirements made under that Law are intended to promote efficiency throughout Australia in property conveyancing by providing a common legal framework” and to minimise inconsistency.

Submissions

191. PEXA’s submissions in relation to its second ground were founded on the principles stated by Mason J in Peko and Basten JA in Azriel v NSW L**and & Housing Corporation [2006] NSWCA 372 at [49]. It was submitted that, as a matter of statutory construction, the RG was bound to consider that the National Law and Operating Requirements are intended to promote efficiency throughout Australia in property conveyancing by providing a common legal framework in which inconsistencies are minimised and business practices are consistent to the extent possible. It was said that the RG’s reference in her 19 June 2025 letter to “national consistency” being a relevant consideration amounted to mere “formalistic reference” rather than the required level of consideration.

192. It was then said on PEXA’s behalf that it may be expected that, had the RG considered the relevant matter, she would have made the same decision that all of the other States and Territories had already made to achieve consistency and, in those circumstances, the Registrar failed to consider a mandatory relevant consideration. Thus, it was contended in substance that the RG fell into jurisdictional error.

193. The Attorney General submitted in effect that this second ground of review was based on an asserted desirability of uniform pricing but this was not a mandatory relevant consideration, since it was expressly inconsistent with the independent discretion of each Registrar under the National Law. It was said that PEXA wrongly conflated the National Law’s pursuit of a “common legal framework” with a common pricing framework.

194. Further and in any event, it was submitted that the RG had considered nationally consistent pricing but did not give it decisive weight. It was in effect submitted that this consideration was not required to be given decisive weight and that this ground should be rejected.

Consideration

195. The locus classicus for the statement of the principles relied on by PEXA is Mason J’s judgment in Peko. There, his Honour said relevantly for present purposes: [7]

“(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision …

(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. … where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.

(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision … .

(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned … . It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power … . I say “generally” because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is “manifestly unreasonable”. … So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.”

196. In the present case, the RG’s discretion whether to approve or withhold approval of a request under cl 5.4.4 is unconfined by the terms of the Operating Requirements or any legislation, except to the extent that any withholding must not be unreasonable. In particular, the Operating Requirements do not expressly state what factors the RG must take into account when making such a decision.

197. For the purposes of consideration of this ground it may be accepted, as PEXA contended, that the RG was bound to take into account when exercising her power under cl 5.4.4 to withhold approval, as a matter of statutory construction, that:

“the National Law and the Operating Requirements are intended to promote efficiency throughout Australia in property conveyancing by providing a common legal framework in which inconsistencies are minimised and business practices are consistent to the extent possible”.

198. Notwithstanding the broad terms in which this factor is expressed, the only aspects of “efficiency”, “common legal framework” and “business practices” that PEXA relied upon was consistency in decision making in relation to pricing ELNO’s service fees.

199. As observed above, however, the RG did take into account national consistency in decision making as to service fees as stated in her letter of 19 June 2025, which has been quoted above at [59].

200. The principles stated in Peko make clear that it is generally for the decision-maker, and not the Court on a judicial review application, to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. The powers conferred on the RG under the National Law in relation to setting ELNO service fees and charges and the factual circumstances that might be relevant to any decision in that regard entitled, and probably required, the RG to obtain the necessary information in order to carry out her price regulatory functions on a properly informed basis. Thus, it was within the RG’s proper discretion to give priority to obtaining necessary and relevant information by means of the IPART review over achieving nationally consistent pricing outcomes in the short term.

201. For the sake of completeness, it can be noted here that the question of whether there has been a failure to give adequate weight to a relevant factor of great importance so that the decision was legally unreasonable, has already been considered under ground 1. There it was in effect concluded that the consideration relied on by PEXA was not of such great importance that the RG’s decision to withhold approval was legally unreasonable because it led to nationally inconsistent pricing.

202. For all of these reasons, the second ground of review should be rejected.

Ground 3

203. PEXA’s ground 3 was put as an alternative to grounds 1 and 2, and only on the basis that there had been no relevant decision of the RG. As explained above, there was, in my view, a relevant decision by the RG to withhold approval and PEXA’s challenges to that decision have been considered under grounds 1 and 2. As a result, ground 3 does not arise.

Orders

204. None of the grounds of review relied on by PEXA has been successful. Thus, it is appropriate to dismiss the summons. In these circumstances, the Attorney General sought costs. There are no factors of which I am aware that would justify making an award of costs otherwise than in accordance with r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW).

205. Accordingly, the orders of the Court are:

206. The plaintiff’s summons filed on 10 October 2025 is dismissed.

207. The plaintiff is to pay the defendants’ costs.

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Endnotes

A principle derived from The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 in which the High Court criticised a decision maker for taking the "unusual course of contesting the prosecutors' case for relief", observing at 35-36: “If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted.”

Electronic Conveyancing (Adoption of National Law) Act 2013 (Vic); Electronic Conveyancing National Law (Queensland) Act 2013 (Qld); Electronic Conveyancing (Adoption of National Law) Act 2013 (Tas); Electronic Conveyancing National Law (South Australia) Act 2013 (SA); Electronic Conveyancing (National Uniform Legislation) Act 2013 (NT); Electronic Conveyancing Act 2014 (WA); and Electronic Conveyancing National Law (ACT) Act 2020 (ACT).

The uncontested evidence of Mr Meeve in his affidavit of 10 October 2025 par 19 was that “[o]n 1 July 2021, PEXA’s shares were listed on the ASX”. Property Exchange Australia Ltd was defined in par 1 of that affidavit as “PEXA”. The ASIC current and historical extract indicated, however, that Property Exchange Australia Ltd is an unlisted public company. It appears that a relevant company from the PEXA group is listed on the ASX rather than PEXA as defined in Mr Meeve’s affidavit. Nothing appears to turn on this point.

During submissions, I raised the issue of the terms on which this transfer of intellectual property had occurred. Senior counsel for PEXA sought to tender documentation relating to this question. Senior counsel for the Attorney General, objected on the basis that the documentation had not previously been disclosed in these proceedings and he was not in a position to deal with it at that time. I rejected the tender. Not only was the Attorney General not in a position to respond to the documentation during submissions, it also did not appear that the issue of the terms on which the intellectual property was transferred from PEXA Limited to NECDS Ltd was an issue that arose in these proceedings, given the way in which each party put its case, and thus lacked relevance in the present case. Accordingly, I have not considered or taken into account this issue that I raised when reaching any of my conclusions in this matter.

It can be noted that PEXA in its Submission to IPART dated 16 November 2025 included at p 65 the information that “National Electronic Conveyancing Data Standards (NECDS) Fee, which is a fee per chargeable lodgment to cover licence fees of the NECDS data standard between ELNOs and Land Registries. [Redacted] and $1 (excl. GST) per all other lodgements. It is expected to cost PEXA $2.8 million in FY26.” It is not clear how the expected cost of $2.8 million which appears to be for all of Australia was calculated.

NSW Legislative Council, Parliamentary Debates (Hansard), 17 October 2012 at 15751, 15753.

Peko at 39-42.