Refina Pty Ltd v Binnie

(1) Leave to appeal should be given. DECISION: (2) A proper notice of appeal must be filed within 7 days of this decision in the form of the draft notice in the White Book. (3) Appeal dismissed. (4) Appellant to pay the costs of the appeal.

CATCHWORDS: Appeal- Civil- no appeal as of right- area of land concerned worth under $10,000- leave to appeal given. Conveyancing- Conveyancing Act 1919, s 195H- whether appellant entitled to order requiring Registrar General to "correct error" by omitting strip from plan- whether the registered plan failed to implement the intentions of the parties who prepared and lodged the plan- where disputed strip not expressly referred to in council consent to subdivision but subsequently included in registered plan of subdivision. Real Property- Torrens title- possessory title- Real Property Act 1900, Part 6A- strip of land adjoining neighbouring properties- appellant previously entitled to make application for possessory title by reason of adverse possession for 50 years- whether possessory claim destroyed by registration of plan of subdivision consolidating contested strip into larger lot- whether the Limitation Act 1969, ss 27 and 65 apply to Torrens system land to extinguish the title of the registered proprietor and prevent the registered proprietor from obtaining ejectment against the adverse proprietor- whether appellant had personal equity against respondent in respect of disputed strip arising from possession. Words and Phrases- "error" or "omission".

Conveyancing Act 1919, ss 195C, 195H, 195J, 196(5) Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Limitation Act 1969, ss 8(1)(a), 27(2), 65, Schedule 4 Real Property Act 1900, ss 40, 42(1)(a), 45B-45G

Allen v Roughley [1955] HCA 62; 94 CLR 98 Baiada Pty Ltd v The Registrar General (1994) 6 BPR 13,704 City of Canada Bay Council v F & D Bonaccorso Pty Ltd (2007) 71 NSWLR 424; 156 LGERA 294 Fraser v Walker [1967] 1 AC 569 Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 Oxford Meat Co Pty Ltd v McDonald [1963] SR (NSW) 423 Marsden v McAlister (1887) 8 LR (NSW) 300 Michael v Onisiforou (1988) 1 BPR 9356 MJ Davis Industrial Pty Ltd v Fairfield City Council [1999] NSWSC 829; 107 LGERA 118; [2000] NSWCA 287; 10 BPR 18,495 (CA) Newington v Windeyer (1985) 3 NSWLR 555 CASES CITED: Perry v Clissold [1970] AC 73 Quach v Marrickville Municipal Council (No 2) (1990) 22 NSWLR 55 Rourke v Schweikert (1888) 9 LR (NSW) (Eq) 152 Spark v Meers [1971] 2 NSWLR 1 Sparke v Whale Three Minute Car Wash (1970) 92 WN 1087 Sutherland Shire Council v Moir (1981) 49 LGRA 105 The Presbyterian Church (NSW) Property Trust v Scots Church Development Ltd [2007] NSWSC 676; 64 ACSR 31 Turner v Hubner (1923) 24 SR (NSW) 3 Turner v Myerson (1917) 18 SR (NSW) 133 Van den Bosch v Australian Provincial Assurance Association Ltd (1968) 88 WN (Pt 1) (NSW) 357 Winn v Director General of National Parks and Wildlife [2001] NSWCA 17; 130 LGERA 508

Refina Pty Limited (Appellant) PARTIES: Kevin Douglas Binnie (First Respondent) The Registrar General of New South Wales (Second Respondent)

P Tomasetti SC and J Atkin (Appellant) COUNSEL: M K Meek SC and R Kako (First Respondent) Second Respondent Submitted

Gregory J Halpin (Appellant) SOLICITORS: Diamond Conway (First Respondent) Second Respondent Submitted

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT DATE OF DECISION: 3 September 2009

LOWER COURT MEDIUM NEUTRAL CITATION: Refina Pty Ltd v Binnie [2009] NSWSC 914

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2009/298519

ALLSOP P CAMPBELL JA YOUNG JA

Wednesday 11 August 2010 REFINA PTY LTD v BINNIE Headnote

The proceedings concerned a strip of land (herein "the strip") that adjoined two properties, "Henkley", owned by the appellant Refina Pty Ltd, and "Tiverton", owned by the respondent, Mr Binnie. The respondent conducted a survey which revealed that the strip was properly part of Tiverton. However, for the past 50 years it was within the fenced area of Henkley.

In 1995 the respondent made an application to the Eurobodalla Shire Council for a "subdivision" in order to consolidate six existing lots into two new lots. Neither the application, nor the subsequent Council determination granting consent referred in terms to the strip. However, the surveyor acting on the conditions of consent prepared a survey plan referring to the strip lots, which was certified by the Council in 1996 and as later amended in 2002. On 9 January 2007 the respondent registered the plan of subdivision. As consequence was that the strip was no longer a "whole parcel of land" which could be the subject of a possessory title application under s 45D of the Real Property Act 1900 (RPA).

In proceedings before Brereton J, Refina argued that it had a personal equity against Mr Binnie and better title to the strip, relying on the Limitation Act 1969, ss 27(2), 65, and RPA, s 45D. His Honour held that Refina's claim was defeated by the registration of the plan because, although the Limitation Act would have extinguished Mr Binnie's title against Refina's adverse possession, the consolidation meant that the strip was no longer a "whole parcel of land" as required by s 45D. His Honour also rejected Refina's claim to be entitled to the strip by reason of an alleged personal equity against Mr Binnie, because Mr Binnie had not procured registration in order to defeat Refina's intended application for possessory title. Further, Mr Binnie would not have been affected by an equitable interest, even if he had notice, because under s 45C an adverse possessor gains no interest against a registered proprietor except by registration pursuant to a s 45D application. The primary judge also rejected Refina's argument that the registered plan contained an error that should be corrected by the registrar general under Conveyancing Act 1919, s195H, because the plan lodged accorded with what the council and the respondent applicant intended to be approved. The omission of the strip from the terms of consent was an oversight.

On appeal, Refina argued that the primary judge erred in finding that the development application and Council consent related to and included the strip and in finding that the inclusion was not an error that could be corrected pursuant to Conveyancing Act, s 195H. Refina put that the primary judge should have ordered that the Registrar General correct the error and register the title to the strip in Refina's name. Refina contested that the relief sought had utility because a consolidation was a "subdivision" requiring consent. Refina pressed that Brereton J erred in failing to find that Refina had better title to the strip by reason of adverse possession gained by Henkley's enlivening Limitation Act 1969, s 65 which purports to extinguish title of those who might have maintained actions to recover land, as against the appellant, but for the expiring of the limitation period in s 27(2). The appellants argued that s 45C(1) did not exclude the Limitation Act in this respect.

The appeal raised three principal issues: (1) The extent to which the Limitation Act, ss 27, 65 applied to extinguish the respondent's Torrens title to the strip. (2) Whether Refina had a personal equity against the respondent. (3) Whether Refina was entitled to an order under Conveyancing Act 1919, s 195H, and whether the relief sought had utility.

(1) As to the application of s 65 Limitation Act to Torrens Land: Allsop P, Young JA (Campbell JA agreeing): Real Property Act 1900, s 45C is not subsidiary to Limitation Act 1969, ss 27, 65, by s8(1)(a). Rather, Part 6A only modified the historical exclusion of possessory title by s45C to a limited extent. By reason of s 45C(1), the Limitation Act, ss 27 and 65 do not apply to Torrens system land. Under s 45C, statutes of limitation are only taken into consideration for the purposes of Part 6A by way of hypotheses in ss 45D(1)(b) and (c), (2) and (2A)(a). Thus, s 45C prevents the acquisition of a title adverse to or in derogation of the registered proprietor's title.

Spark v Meers [1971] 2 NSWLR 1, considered and applied; Newington v Windeyer (1985) 3 NSWLR 555; Sparke v Whale Three Minute Car Wash (1970) 92 WN 1087, distinguished; Marsden v McAlister (1887) 8 LR (NSW) 300; Rourke v Schweikert (1888) 9 LR (NSW) (Eq) 152; Turner v Myerson 18 SR (NSW) 133, questioned; Allen v Roughley [1955] HCA 62; 94 CLR 98; Perry v Clissold; Michael v Onisiforou (1977) 1 BPR 9356; Van den Bosch v Australian Provincial Assurance Association Ltd (1968) 88 WN (Pt 1) (NSW) 357, referred to.

(2) As to whether Refina had a personal equity against the respondent: Allsop P (Campbell JA agreeing): Whether Refina enjoyed a right to protection of its statutory entitlement to make an application under s 45D which, if successful, would have destroyed the rights of the respondent under the RPA, depends upon whether the respondent's freedom to deal with and deploy the land in question is constrained by circumstances other than any estate or interest, such as to raise a personal equity arising from the relations between the parties. There was no basis shown to disturb the trial judge's rejection of suggestions that Mr Binnie has set about procuring registration of the plan in order to circumvent the intended application for possessory title by the appellant, of which he allegedly had knowledge.

Young JA: There was no personal equity enforceable against Mr Binnie in respect to title to the strip. Without fraud by the registered proprietor, the mere fact that, hypothetically, Limitation Act s 65 might have meant that immediately before registration of the plan and issuing of certificates of title, Refina had the best right to the land and could obtain a declaration to that effect does not constitute a personal equity.

Newington v Windeyer (1985) 3 NSWLR 555; Oxford Meat Co Pty Ltd v McDonald [1963] SR (NSW) 423; Perry v Clissold [1907] AC 73; The Presbyterian Church (NSW) Property Trust v Scots Church Development Ltd [2007] NSWSC 676; 64 ACSR 31, referred to.

(3) As to whether Refina was entitled to an order under Conveyancing Act 1919, s 195H: Allsop P, Young JA (Campbell JA agreeing): The validity of the Registrar General's action based on the plan was not to the point because, even where an element of unlawfulness affects a subdivision, or even if a plan is forged, when registered the plan gives the lawful consequence of indefeasibility to the titles that are issued.

Sutherland Shire Council v Moir (1981) 49 LGRA 105, applied; City of Canada Bay Council v F & D Bonaccorso Pty Ltd (2007) 71 NSWLR 424; 156 LGERA 294; Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537; Winn v Director General of National Parks and Wildlife [2001] NSWCA 17, referred to.

Section 195J, 196(5) and Division 3 Part 23 generally, indicate that s 195H deals with errors in the plan itself, rather than preconditions to creating a plan. Provisions in the Torrens Act indicate that s 195H is concerned with errors in failing to implement the intentions of the parties who prepared and lodged the plan in its registration. Even if the consent was defectively expressed, there was no error in the registered plan because it accorded with the intention of its maker, the intended scope of the development application, and the intended consent of the Council. This was in part demonstrated by the plan annexed to the consent application, which was necessarily incorporated into the consent and could thus be used to construe it.

MJ Davis Industrial Pty Ltd v Fairfield City Council [1999] NSWSC 829; 107 LGERA 118, applied; Winn v Director General of National Parks and Wildlife [2001] NSWCA 17; 130 LGERA 508, distinguished; Baiada Pty Ltd v The Registrar General (1994) 6 BPR 13,704; Quach v Marrickville Municipal Council (No 2) (1990) 22 NSWLR 55, referred to;

In any case, the respondent was entitled to consolidate his holdings without the council's consent because a consolidation is not a "subdivision" within the meaning of the Environmental Planning and Assessment Act 1979. The relief would thus be of little utility. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2009/298519

ALLSOP P CAMPBELL JA YOUNG JA

Wednesday 11 August 2010 REFINA PTY LTD v BINNIE Judgment 1 ALLSOP P: I have read the reasons of Young JA. I agree with the orders that his Honour proposes. The reasons of Young JA set out the facts enabling me to express my views shortly. 2 There are a number of steps in the argument of the appellant. Each is met by the correctness of the learned primary judge's reasoning. 3 The primary judge concluded (and there is no cross-appeal about this) that before January 2007 the appellant was entitled to make an application for possessory title under the Real Property Act 1900 (NSW), s 45D in relation to Lot 2 DP 125769. This was so because of the satisfaction of the elements of s 45D, being, relevantly for present purposes, that the title of the registered proprietor (who by 2007 was the respondent) would have been extinguished as against the person so in possession had the statutes of limitation applied: see s 45D(1)(b). 4 The primary judge rejected the respondent's argument that Refina, through its principal Mr Halpin, sufficiently acknowledged the respondent's title to the land so as to defeat any claim for possessory title. There was also no cross-appeal in relation to that finding. 5 Any successful application by Refina for possessory title under the Real Property Act, Part 6A was, however, made impossible by the registration on 9 January 2007 of a plan of subdivision that had been given consent by the Eurobodalla Shire Council on 16 November 1995. In accordance with the conditions of the Council's consent, in 1996, a survey plan was prepared for endorsement with the Council's certificate. This plan was not, however, registered. The plan was later amended in 2002 by removing a lot from it, upon sale of that lot. This 2002 plan was that registered in January 2007. 6 Upon registration of the 2002 plan, Lot 2 DP 125769 ceased to be a whole lot of a parcel of land and became part of a larger lot: Lot 2 in DP 1106180. Thus, s 45D(1)(a) could not be satisfied.

Did Refina have a personal equity? 7 Refina's first argument was that it had a personal equity valid against the respondent's title. This personal equity was said to be founded upon its adverse possession and the effect of the Limitation Act 1969 (NSW). 8 Reliance was placed on the judgment of McHugh JA (with which Samuels JA agreed) in Newington v Windeyer (1985) 3 NSWLR 555. At 563-564, McHugh JA said: "The respondents are not the owners of the registered title of the Grove, but that fact does not prevent them maintaining an action of trespass against the appellant. The modern law of real property continues to invoke the medieval doctrine that possession is prima facie evidence of seisin in fee and that an estate gained by wrong is nevertheless an estate in fee simple: Wheeler v Baldwin (1934) 52 CLR 609 at 632; Allen v Roughley (1955) 94 CLR 98 at 108. Seisin gives ownership good against everyone except a person who has a better, because older, title: Wheeler v Baldwin (at 632-633); Perry v Clissold [1907] AC 73 at 79. A person who is in possession of land adverse to the true owner has a legal interest in the land even though the twelve year limitation period has not expired: Perry v Clissold . As long as a person does not abandon his possession, possession for less than twelve years enables him to exclude from the land any person who does not have a better title: Allen v Roughley (at 109-110, 115, 131, 135, 143). The above cases and principles relate to Old System title. But in Spark v Whale Three Minute Car Wash (Cremorne Junction) Pty Ltd (1970) 92 WN (NSW) 1087, Slattery J held that those principles are equally applicable to land held under the provisions of the Real Property Act 1900. Counsel for the parties accepted that the common law principles concerning adverse possession apply to land under the Torrens System. In my opinion the agreement of counsel was correct. Spark v Whale Three Minute Car Wash was correctly decided. Indeed, since 1979 it has become possible for adverse possession of land for twelve years to bring about the extinguishment of the title of the registered proprietor: Real Property Act 1900, s 45 D ." 9 It is fundamental to understand that though the dispute in Sparke v Whale Three Minute Car Wash (1970) 92 WN 1087 referred to by McHugh JA concerned Real Property Act land, it was between a plaintiff who claimed through adverse possession and another party (not the registered proprietor) who had come into possession. The recognition by Slattery J in Sparke v Whale Three Minute Car Wash and by McHugh JA in Newington of the application of Allen v Roughley [1955] HCA 62; 94 CLR 98 and Perry v Clissold [1907] AC 73 to Real Property Act land must be understood in that context and as subject to the terms of the Real Property Act. Sparke v Whale Three Minute Car Wash and Newington were cases concerned with parties other than the registered proprietor. The position of the registered proprietor was protected against adverse possession (until the introduction of Part 6A in 1979) by s 45 that read (until the introduction of s 45C): "No title to land adverse to or in derogation of the title of the registered proprietor shall be acquired by any length of possession by virtue of any statute of limitations relating to real estate, nor shall the title of any such registered proprietor be extinguished by the operation of any such statute." 10 The full protection of the registered proprietor from adverse possession under the old s 45 was expressed clearly in Van den Bosch v Australian Provincial Assurance Association Ltd (1968) 88 WN (Pt 1) (NSW) 357 at 364 (per Else-Mitchell J) followed by Hope J (as his Honour then was) in Spark v Meers [1971] 2 NSWLR 1 at 13 (the related case to that heard by Slattery J, but involving the rights of the registered proprietor). The distinction between the position of the registered proprietor and others as against someone in adverse possession was clearly made by Hope J in Spark v Meers at 13: "… Thus if A was the registered proprietor of an estate in fee simple in land, and X remained in possession for twenty years, X would not obtain effective title as against A, but he would obtain a title against all the world save A and those claiming through him. If Y dispossessed him, I should have thought that X would be entitled to bring an action of ejectment against him; and indeed, A could do this whether he had been in possession for twenty years or for some lesser period. It was for this reason that the present plaintiff was successful in the ejectment action against Whale Three Minute Car Wash (Cremorne Junction) Pty Ltd. However what s. 45 does do is to prevent the extinction of the title of the registered proprietor by any adverse possession. …" 11 Hope J went on, at 14, to explain the breadth of s 45 and that the word "title" referred to the estate or interest of the registered proprietor. 12 Neither McHugh JA nor Samuels JA in Newington should be taken as saying anything about the correctness of the decision of Hope J in Spark v Meers in dealing with the position of the registered proprietor. 13 Part 6A, however, has been introduced. Section 45C (replacing s 45) is as follows: "45C Acquisition of possessory title to land under the Act

(1) Except to the extent that statutes of limitation are taken into consideration for the purposes of this Part, no title to any estate or interest in land adverse to or in derogation of the title of the registered proprietor shall be acquired by any length of possession by virtue of any statute of limitations relating to real estate, nor shall the title of any such registered proprietor be extinguished by the operation of any such statute.

(2) Subsection (1) does not prevent the acquisition of a title, adverse to or in derogation of the title of the registered proprietor thereof, to an estate or interest in land brought under the provisions of this Act by the creation of a qualified or limited folio of the Register by reason of possession of the land for any length of time commencing before the creation of the folio." 14 The appellant contended for a construction of s 45C as subsidiary to the Limitation Act, s 65. 15 Section 65 of the Limitation Act is in the following terms: "65 Property

(1) Subject to subsection (2), on the expiration of a limitation period fixed by or under this Act for a cause of action specified in column 1 of Schedule 4, the title of a person formerly having the cause of action to the property specified opposite the cause of action in column 2 of that Schedule is, as against the person against whom the cause of action formerly lay and as against the person's successors, extinguished.

(2) Where, before the expiration of a limitation period fixed by or under this Act for a cause of action specified in column 1 of that Schedule, an action is brought on the cause of action, the expiration of the limitation period does not affect the right or title of the plaintiff to property specified in column 2 of that Schedule in respect of which the action is brought:

(b) so far as the right or title is established in the action.

(3) This section does not apply where the cause of action is for conversion or detention of goods and, before the expiration of the limitation period fixed by or under this Act for the cause of action, the person having the cause of action recovers possession of the goods." 16 I reject this argument. Section 45C states that statutes of limitation are only taken into consideration for the purposes of Part 6A. Also, s 8(1)(a) of the Limitation Act provides as follows: "(1) Nothing in this Act affects the operation of: (a) section 45C of the Real Property Act 1900, …" 17 Section 45C, subject to its operation that reflects the recognition of the part played by statutes of limitation in the operation of Part 6A, has the same effect as the old s 45. 18 In Part 6A, statutes of limitation are taken into consideration in the hypotheses in ss 45D (1)(b) and (c), (2) and (2A)(a). 19 Thus, s 45C (as did s 45) prevents the acquisition of a title (being an estate or interest) adverse to or in derogation of the registered proprietor's title (estate or interest). The recognition of some inchoate estate in the adverse possessor which would restrict the full enjoyment of the registered proprietor's estate or interest (its title: Spark v Meers at 14) would be contrary to s 45C. 20 Thus, I agree with the primary judge that Refina had no interest or estate as against the respondent prior to the registration of the 2002 plan. 21 Refina had an entitlement under the Real Property Act to make an application under s 45D. That application would, if successful, have destroyed the rights of the respondent under the Real Property Act. 22 Any right of Refina to protection of that statutory entitlement from destruction by the respondent will depend upon whether the respondent's freedom to deal with and deploy the land in question is constrained by circumstances other than any estate or interest in the land of Refina: s 45C. Circumstances might exist, however, in any given case, where questions of the dealings between the registered proprietor and the putative applicant under Part 6A were of a kind to raise a personal equity: the nature of the relationship and its incidents, fraud, dishonesty, perhaps misrepresentation or a lack of good faith. This is not intended to be an exhaustive list of possible circumstances. Any such right is not an estate or interest in the land, but rather some equity arising from the relations between the parties. The basis of any such argument here was eliminated by the primary judge's finding (at [18] of his reasons) that he was unpersuaded that Mr Halpin referred to making an application for possessory title "or that Mr Binnie set about procuring registration of the 2002 plan in order to circumvent it." These were findings based, in part, on seeing the witnesses. No basis was shown to impugn them.

Was Refina entitled to an order under the Conveyancing Act 1919 (NSW), s 195H? 23 Refina's claim was that Lots 2 and 3 DP 125769 that were included in the 1996 and 2002 plans were so included in error because, it was said, they were not included in the development consent. 24 The first reason of the primary judge for rejecting the argument of Refina was that the plan was in conformity with the consent. The application for approval described the subject land as lots 46, 47, 65, 81, 221 and 365 of the relevant DP. It had annexed to it a plan (95/235) which was necessary to understand what was being put to the Council for approval and consent. This plan was entitled "Plan of proposed subdivision of portions 46, 47, 65, 81, 221 and 365 Cemetary Road, Central Tilba." Neither of these descriptions referred to Lots 1, 2 and 3 in DP 125769 (the Closed Road lots as referred to by the primary juge). However, the plan itself can be taken to have included these lots in the subdivisions for two reasons: first, the thick line covers them, thereby including them; and secondly, in that context, the 99 hectare area of the new lot 2 could only be correct if the Closed Road lots were included. The area was 96 hectares otherwise. 25 The resolution that was recorded in the relevant minutes of the Council on 14 November 1995, was "that the development application No 235/95 for a 2 lot rural subdivision of Portions 46, 47, 65, 81, 221 ands 235 Parish of Narooma, Haxstead Road, Central Tilba as shown on Plan No 95/235 dated 19 September 1995 … be APPROVED" (emphasis added). 26 Looked at as a whole, and incorporating plan 95/235 into the consent, the consent can be understood as extending to the three Closed Road lots. The better view is that consent as a written document is to be read to include the three lots. This is how I understand the primary judge's conclusion at [53]-[54] of his reasons. 27 The use of plan 95/235 to construe the consent does not conflict with Winn v Director General of National Parks and Wildlife [2001] NSWCA 17; 130 LGERA 508 because the plan was necessarily incorporated into the consent. 28 On this basis, there could be no error for the purposes of s 195H. 29 Further, even if the consent be restrictively construed as to leave out the three lots, the plan of subdivision certified by Council was registered. That created an indefeasible title. Even if an element of unlawfulness affects a subdivision, the registration of a plan creates lawful consequences under the Real Property Act: Sutherland Shire Council v Moir (1981) 49 LGRA 105 (Kearney J) and 115 (Court of Appeal). 30 The Registrar-General had, however, a power to correct errors in the plan under s 195H. The error must be what was in the 2002 plan. While (on this hypothesis) it can be seen to diverge from the consent, narrowly construed to leave the three lots out of the scope of the consent, the plan was, as, and for the reasons, the primary judge found, clearly intended to take the form it did. There was no error in the plan in that sense. The plan accorded with the intention of its maker and it accorded with the intended scope of the development application and the consent (even if, on this hypothesis, defectively expressed) of the Council. 31 As a matter of fact, there was no error in the 2002 plan. 32 This view of the nature of the error accords with the view that "error or omission" relates to the intent of the party who prepared and lodged the plan. In this respect, I agree with and adopt the reasons of Young JA at [107]-[113]. 33 Finally, I agree with the primary judge (at [58] of his reasons) and Young JA (at [117] of his reasons) that even if the consent is read narrowly as contended for by Refina, there was no unlawfulness in consolidating the Closed Road lots with the residue lot created by the subdivision of Portions 46, 47, 65, 81, 221 and 365 into two new lots. The creation of those two lots was a subdivision. There was no subdivision, however, with the consolidation of the Closed Road lots with the residue lot 2. 34 This analysis reveals that the plan of subdivision as approved by Council (narrowly construed) with a further consolidation was registered. No unlawfulness existed. No error is shown to have occurred in the plan that was registered. The Register was amended accordingly. On this hypothesis, no basis is shown for the Registrar-General to exercise the power in s 195H. 35 For these reasons, I agree with the orders proposed by Young JA. 36 CAMPBELL JA: I agree with Allsop P. 37 YOUNG JA: This is an application for leave to appeal conjoined with a purported appeal as of right from a decision of Brereton J sitting in the Equity Division. 38 The subject matter of the proceedings is a strip of land 0.8 hectares in area at Central Tilba on the south coast of NSW. The "strip" as I will call it, has a value of about $3,200 perhaps up to $10,000. 39 The strip adjoins two properties, Henkley, owned by the appellant and Tiverton, owned by the first respondent (I will refer to Mr Binnie as "the respondent", since the second respondent, the Registrar General, submitted). 40 The undisputed evidence was that the strip was within the fenced area of Henkley for at least 50 years and was used for grazing purposes by the owners of Henkley for the time being. 41 However, when the respondent wished to subdivide his land, a survey was made and it was discovered that the strip was properly part of Tiverton. 42 It is clear that were it not for what happened subsequently, the appellant could have obtained a valid Torrens title from the Registrar General through Part 6A of the Real Property Act 1900 comprising ss 45B to 45G. 43 However, the respondent in 1996, wished to subdivide his land. It would seem that whilst there was a minimum area of land required for each block, it was possible for there to be a subdivision of a concessionary block containing 1 hectare under certain conditions. The respondent wished to take advantage of this concession, apparently with the idea that he would sell part of his land and retain the balance. In connection with those thoughts, the respondent briefed a surveyor who prepared a plan of subdivision. 44 Under the Environmental Planning and Assessment Act 1979, it is necessary to obtain the council's consent to a subdivision. The evidence shows that the respondent duly applied for subdivision of Lots 46, 47, 65, 81, 221 and 365 in DP 752155 and the council duly granted that application. 45 Mr Surveyor Healey then prepared a plan. However, the plan not only dealt with the lots which I have mentioned, but also with Lots 1, 2 and 3 in DP 125769. Those three lots were closed roads which were within Tiverton or bordering Tiverton and Henkley. Whether those roads ever existed as actual roads or not, the evidence does not say, but they were at least paper roads. The strip is Lot 2 in DP 125769. 46 Mr Surveyor Healey's plan included the strip and the other two closed roads in his plan, and the general manager of the council or his substitute signed a council certificate bearing date 26 July 1996 that the requirements of the Local Government Act 1919 other than the requirements for the registration of plans had been duly complied with. 47 The respondent did nothing about that plan until 2002. Although the question that the consent may have lapsed in 2000 was raised, we were told by counsel that point was never debated at trial, presumably because there had been some activity which had meant that the consent was still in force assuming it was a valid consent, in 2002. 48 What happened in 2002 is that the neighbour of Tiverton to the north, acquired Lot 1 in DP 125769 from the respondent. The surveyor wrote to the council and asked whether the plan could be varied by excising that lot and prepared a substitute plan (the 2002 plan). The general manager or his delegate duly signed a certificate on the 2002 plan, albeit still under the date 26 July 1996. The 2002 plan was identical to the 1996 plan save for the deletion of Lot 1 DP 125769. 49 The 2002 plan was duly registered with the Registrar General so that the strip (Lot 2 DP 125769) became part of a larger block of land, Lot 2 DP 1106180. That plan was lodged with the Registrar General in November 2006 and was registered on 9 January 2007. 50 Refina contracted to purchase Henkley in 2005, the purchase being completed on 14 April 2005. At that stage the boundaries of Henkley had been fenced and the strip was fenced into Henkley by a old fence which in 2005 appeared to have been in place for about 50 years. In about November 2005, the respondent caused new fencing to be constructed along the same line as the old fence and the two owners paid half of the cost of the new fence. 51 In February 2006 the appellant had a survey conducted and learnt that the strip was in fact part of the land of which the respondent was the registered proprietor. 52 Had the appellant applied to the Registrar General in 2006 under Part 6A of the Real Property Act, the probabilities would have been that it would have obtained a Torrens Title to the strip. 53 After 9 January 2007, an insurmountable barrier was put against the appellant because s 45D(1)(a) of the Real Property Act only permits the process laid down by Part 6A of the Real Property Act to be utilised in respect of a whole parcel of land. 54 The appellant commenced proceedings which as noted in the second further amended statement of claim, sought:

(1) A declaration that the subdivision which resulted in DP 1106180 was not in accordance with Development Consent 235/95;

(2) An order pursuant to s 195H of the Conveyancing Act 1919 that the Registrar General amend that plan by excluding Lots 2 and 3 in DP 125769;

(3) A declaration that pursuant to s 45D of the Real Property Act the appellant was entitled to become the registered proprietor of the strip;

(5) An order calling in the certificate of title under s 138(3) of the Real Property Act 1900; and

(6) to (10) Ancillary orders and costs. 55 It is to be observed that there was no attempt to obtain a declaration that the appellant had a title to the strip other than what is implicit in order (3) which involves the Part 6A procedure. 56 Brereton J, in an admirably concise judgment, found for the defendant, the present respondent. 57 One of the issues before the primary judge was whether the respondent, knowing that the appellant intended to make an application under Part 6A and with intent to frustrate that application, deliberately lodged his plan of subdivision with the Registrar General. There was a disputed conversation about this matter in November 2006. At [18] the primary judge said that he did not consider that anything turned on the dispute in respect of the November 2006 conversation or as to the respondent's motive. He said: "Even if Mr Binnie was on notice of Refina's intention to apply for possessory title and procured registration of the plan in order to defeat it, he was entitled to do so; Refina had acquired no legal or equitable interest as against him, and he deprived Refina of no such interest by pre-empting any possessory application. However, I am on balance unpersuaded that Mr Halpin [the controller of Refina] referred to making an application for possessory title, or that Mr Binnie set about procuring registration of the 2002 plan in order to circumvent it." 58 His Honour then reviewed the evidence and said that it was clear that Henkley was in possession of the strip for 50 years, though Tiverton had paid the rates on it. However [26] the judge said: "It is manifest that, prior to registration of the plan of resubdivision, Refina was entitled to make an application for possessory title under s 45D …"

unless there was a particular circumstance which his Honour held did not occur. 59 His Honour said at [31] that it was uncontroversial that Refina's claim to possessory title was defeated by the registration of the 2002 plan. He said, however, at [33]: "However, Refina contends that Mr Binnie's title is not indefeasible, by reason that Mr Binnie is bound by a personal equity pursuant to which Refina may nonetheless pursue a claim to be entitled to the strip, and/or that the plan contained an error amenable to 'correction' under Conveyancing Act s 195H. … the appropriate 'correction' being removal of … the disputed strip from the plan." 60 His Honour then turned his mind to the question of a personal equity. It is important to realise that the words "a personal equity" in the law of Torrens title indefeasibility has a special meaning. I analysed the authorities on this point in The Presbyterian Church (NSW) Property Trust v Scots Church Development Ltd [2007] NSWSC 676; 64 ACSR 31 at 44 [130]. Personal equity means a cause of action at law or in equity possessed by a plaintiff rather than some equitable right. 61 The alleged legal or equitable cause of action was, I believe, put differently to this Court to the way in which it was put before the primary judge, though it was in the same ball park. 62 On this appeal, Mr P Tomasetti SC and Mr J Atkin appeared for the appellant, and Mr M K Meek SC and Ms R Kako, appeared for the respondent. 63 Mr Tomasetti read to us passages from cases of high authority including Perry v Clissold [1907] AC 73 and Newington v Windeyer (1985) 3 NSWLR 555 which endorsed principles that are known to any student of real property law. Essentially, because title to land in Australian and English law is based on seisin, a person who is seised in possession of land has some sort of title. However, that title may be relatively good or relatively bad. As most legal proceedings are between two parties, a person who has been in lawful possession and seisin of land who is disseised, may obtain ejectment against the disseisor even though the plaintiff is not the person with the best right to seisin. In more modern days in connection with tenancy law, these principles have been applied in such cases as Oxford Meat Co Pty Ltd v McDonald [1963] SR (NSW) 423. 64 Under the Limitation Act 1969, if a person has been in adverse possession of land for 12 years or more, then the documentary owner is not able to recover land from that person because of s 27(2) of the Limitation Act 1969, and indeed, under s 65 of that Act when read with Schedule 4, the title of the documentary owner is extinguished. The argument goes that certainly by 2005, the title of Mr Binnie to the strip was extinguished by virtue of the Limitation Act and accordingly, the plaintiff's title which was good as against all the world save the documentary owner, becomes good against all the world because the documentary owner's title has been extinguished. 65 The argument is, to say the least, a startling one, because if it were correct it would have major impact on the security of titles in NSW. However, every so often startling submissions on examination do show that they have substance. 66 However, whilst dealing with the Limitation Act I must note that s 8(1)(a) of that Act provides that nothing in the Act is to affect the operation of s 45C of the Real Property Act 1900. 67 Mr Tomasetti submits that Part 6A is not the sole method of acquiring a title to Torrens system land by adverse possession. That submission is, within limits, correct. 68 There have been situations, particularly down the Riverina and in the Penrith area, where a developer has sold land on terms contract 50 years ago, and no-one has ever got round to taking a transfer, successive purchasers relying on informal change of title held by local solicitors or in some cases suitcases of documents. Eventually these cases are cured by evidence that the current occupier has paid in full for the land of the person having the title, and a vesting order is made by the Equity Division. 69 Furthermore, a person can have the Registrar General accept his or her title to land based on adverse possession. It is possible to do this even though there is a pre-existing certificate of title covering the land. In practice, it will not often happen that such a primary application will be successful because the Registrar General in processing the primary application will need to consider the title and to advertise, but it is theoretically possible. However, under s 42(1)(a) of the Real Property Act the certificate of title that is issued will not be indefeasible against the prior certificate of title for the same land. 70 It would also be possible to apply to the Equity Court for a declaration that the plaintiff had a better title to the land than the defendant had. This would be difficult in the light of various provisions in the Real Property Act such as s 40 where production of the certificate of title is conclusive evidence of title. However, if the appellant's principal submission that s 65 has extinguished the title is correct, then perhaps it would succeed. 71 The third way of approaching the matter may be to take up what Harvey J said in Turner v Myerson (1917) 18 SR (NSW) 133 at 136 and again in Turner v Hubner (1923) 24 SR (NSW) 3, that one challenges the boundaries in the certificate of title issued to the documentary owner on the basis that long continued occupation and an ancient fence shows that there is an error in the boundaries of the survey of the registered proprietor's land. 72 However, it may be that in the late 19th century a wider view was taken of the Registrar General's powers to amend than was later taken. Thus, cases like Marsden v McAlister (1887) 8 LR (NSW) 300 and perhaps Turner v Myerson should not be extended in their possible application to weaken the strength of indefeasibility of title under the Torrens system: see Michael v Onisiforou (1977) 1 BPR 9356, 9364. 73 In the instant case, there was neither an application to the primary judge to declare that the plaintiff had a better title to the defendant, nor under the Turner v Myerson principle. The latter, though mentioned during argument, was not adopted by counsel for the appellant. Prayer 3 in the statement of claim merely sought a declaration that the appellant should get a title under Part 6A, not at common law or in equity. 74 Put simply, the proposition is that s 65 of the Limitation Act applies to Torrens system land and extinguishes the title of the registered proprietor and s 27 prevents the registered proprietor from getting ejectment against the adverse possessor. This latter is now rather academic seeing that the adverse possessor is no longer in possession of the land so ejectment is just not necessary. 75 There is a fascinating question as to just what is an action for the recovery of land a question which I considered in Quach v Marrickville Municipal Council (No 2) (1990) 22 NSWLR 55. However this does not arise in the present case. 76 Section 45C(1) of the Real Property Act provides as follows: "Except to the extent that statutes of limitation are taken into consideration for the purposes of this Part, no title to any estate or interest in land adverse to or in derogation of the title of the registered proprietor shall be acquired by any length of possession by virtue of any statute of limitations relating to real estate, nor shall the title of any such registered proprietor be extinguished by the operation of any such statute." 77 I must say that, uninstructed, I would have thought that that section very clearly states ss 27 and 65 of the Limitation Act do not apply to Torrens system land though when the Registrar General is carrying out his administrative functions under Part 6A, he looks to see what notionally would have happened were the land not under the Torrens system. 78 In my view the history of s 45C reinforces that. Up until the enactment of Part 6A in 1979, the Torrens statute forbad the acquisition of title by adverse possession with Torrens system land. The reform was to allow adverse possession to be the condition precedent to the Registrar General's administrative action in cancelling a certificate of title and issuing a new certificate of title for the same parcel of land. 79 It is true that s 8(1)(a) of the Limitation Act does not, in so many words say, that s 45C is the only way in which a person can get adverse possession in Torrens system, but that clearly was the position when the Act was enacted in 1969 and if there were any doubt about the matter and one looked at the Second Reading Speech of the Minister as set out in Butt, Land Law 6th Edition (Law Book Company, 2010) [20-44] footnote 207: "An adverse occupier, no matter how long he has been in possession is, until the register is altered in his favour pursuant to an application, in no better position as against the registered proprietor than a mere trespasser." 80 That statement might not be equated with a ruling on a question of law that is valid for all purposes, but it does show that in 1979 in a later Act than the Limitation Act 1970, the legislature took the position that s 45C was the sole method by which a person could obtain an adverse title to Torrens system land. 81 Before the enactment of Part 6A of the Real Property Act, the former s 45 made it clear that no title could be obtained to Torrens land by adverse possession. 82 The object of Part 6A was to modify this absolute provision only to a certain extent. 83 As was put by Campbell JA to Mr Tomasetti during the oral argument, and with respect, was never satisfactorily answered, the effect of s 45C is that under s 45D(1)(b) one looks to see whether, hypothetically, the title of the proprietor would have been extinguished by the statutes of limitation had those statutes applied to the land (ie had the land been Old System land). If that enquiry returns a positive result then one of the factors which may induce the Registrar-General to issue a title has been satisfied. 84 To my mind the provisions of the Limitation Act with respect to extinguishment of title to land have no greater effect on Torrens land than as stated in the previous paragraph. 85 Accordingly, there is no merit in Mr Tomasetti's proposition. 86 I now turn to the submission that Refina has some personal equity against Mr Binnie. 87 Mr Tomasetti acknowledged that, under the authorities, his client needs to specify a cause of action at law or in equity in personam relating to the land. When challenged to state such a cause of action he said that because of s 65 of the Limitation Act, immediately before the registration of the plan and the consequential issuing of certificates of title, Refina had the best right to the land and could obtain a declaration to that effect. 88 Assuming that this is so, I do not see how it qualifies as a personal equity within the authorities. In a forged instrument case, the mere fact that, had the land been under Old System Title, the forged transfer had no effect so that the plaintiff would have retained title to the land, short of fraud by the now registered proprietor does not constitute a personal equity. The scheme of the Act is that the deprivation by registration may give a claim against the Assurance Fund (or its successor) alone. 89 Assuming, contrary to authority, that one has to have a cause of action before obtaining a declaration of title, that declaration would have a greater resemblance to an action in rem than an action to vindicate an in personam right against Mr Binnie. 90 The primary judge was correct in ruling that there was no personal equity enforceable against Mr Binnie in respect to title to the strip. 91 The other major argument was to deal with whether an error had been made within the meaning of s 195H of the Conveyancing Act 1919. That section gives the Registrar General power on application of any person with an interest in any land to amend a plan which has been registered for the purpose of correcting any error in or supplying any omission from the plan. 92 The appellant seeks to have the Registrar General amend the plan by deleting the incorporation of Lots 2 and 3 (though only Lot 2 concerns the present litigation) in DP 125769. 93 An initial objection would be that the amendment of the plan would mean that the Registrar General would also have to cancel the current certificate of title and issue two or three new certificates of title and that has never been sought. 94 A great deal of time was spent on the appeal in arguing about the validity of the Registrar General's action based on the plan. 95 This Court considered that sort of problem in Sutherland Shire Council v Moir (1981) 49 LGRA 105 and ruled that even a forged plan when registered gives indefeasibility to the titles that are issued. That case was not referred to during argument, but does seem to me to indicate that it is not of great significance to delve into what happened at council level. One can understand why this is so because it is part of the Torrens scheme that people should be able to act on the faith of the register and not be worried that perhaps 20 years ago some council made some administrative errors in granting a development consent for a subdivision. 96 Counsel did not argue with Sutherland v Moir in mind. Because of that a note was sent by my Associate asking for submissions if anyone desired to make them. 97 Both sets of counsel responded to this note. 98 As would be expected, respondent's counsel embraced the Moir case as supporting his position. 99 Mr Tomasetti put that Moir had been superseded by later authority and that, in any event, it was distinguishable from the present case for a number of reasons, the principal reasons being: (a) that Mr Binnie was still the registered proprietor of the strip; and (b) in contrast to Moir, there were personal equities affecting Mr Binnie. 100 The principal "later authority" relied on is the decision of this court in City of Canada Bay Council v F & D Bonaccorso Pty Ltd (2007) 71 NSWLR 424; 156 LGERA 294. The Moir case was not cited to the court nor was it referred to in the Court's judgment. 101 I do not see how the Canada Bay case assists the appellant's argument. So far as is relevant to the present case, whilst Canada Bay recognizes the exceptions to indefeasibility as a result of personal equities or situations where statutory rights clearly trump indefeasibility, the case is authority for the proposition that a single once and for all breach of a statutory provision declaring an instrument by which a registered proprietor gained title was void, does not affect indefeasibility of the title granted as a result of registration of such instrument. 102 Likewise, I cannot see any assistance to be gained in the present case from the other additional case referred to in the appellant's additional submissions, the decision of this court in Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537. 103 If I am wrong in my application of Sutherland v Moir then the question is whether s 195H of the Conveyancing Act gives the appellant any comfort. 104 The section only gives limited authority to the Registrar General and that is to amend the plan for the purpose of correcting any error in or supplying any omission from the plan. 105 The section has to be seen in its context. The whole of Division 3 of Part 23 of the Conveyancing Act 1919 deals with plans and the form of plans. It does not deal with the pre-conditions to a plan. Indeed, it minimises the significance of pre-conditions because although s 195C(1)(e) requires in the case of a plan of subdivision it be authorised by a subdivision certificate endorsed in accordance with the Regulations, s 195A allows the Registrar General to dispense with this. Furthermore, s 196(5)(a) provides that the Registrar General is entitled to assume that a subdivision certificate that purports to have been endorsed on any plan, was duly issued and endorsed. 106 Section 195J of the Conveyancing Act, prevents any registered plan being called into question in any litigation. However, the respondent agrees that this provision was never relied on below and it would be inappropriate to rely on it now. 107 Although this attitude is very fair, I still need to construe the ambit of s 195H of the Conveyancing Act and I am entitled in doing so to observe that when read in context with ss 195J and 196(5), s 195H does not mean that the Registrar General must correct an error which is later seen to have taken place in the processing of the plan through the local council. 108 Accordingly, when one looks to see the meaning of error or omission from the plan, one would tend to look for something that is wrong with the plan itself rather than something that is wrong with one of the pre-conditions in creating the plan. 109 In Baiada Pty Ltd v The Registrar General (1994) 6 BPR 13,704 at 13,708, the words "error or omission" simply meant "not there" or "left out" not necessarily because of any breach of an obligation by the Registrar General. However, Cohen J said that obviously it was not intended that a plan should be amended where something is left out which should never have been included. The only other decision on the section, MJ Davis Industrial Pty Ltd v Fairfield City Council [1999] NSWSC 829; 107 LGERA 118, Bell J and [2000] NSWCA 287; 10 BPR 18,495 (CA) held that the section did not apply where a plan as lodged carried out the intention of those who prepared it which actually was in accordance with what the law specified. 110 It is thus of little assistance in the present case. 111 I briefly mentioned the problem in Quach v Marrickville Municipal Council (No 2) (1990) 22 NSWLR 55 at 71, where I noted that throughout the history of the Torrens statute the word "error" is closely associated with an error made in the registration process rather than something mistakenly happening further along the line. 112 It seems to me that sections in the Torrens Act in pari materia suggest that what one is looking for in an error or omission under s 195H is some failure to implement the intention of the party who prepared and lodged the plan in its registration. I realise that s 195H is not in the Torrens Act, but is in the Conveyancing Act, but it is clear that its principal thrust is towards plans registered under the Torrens Act and the conception of error and omission pick up key terms in the Torrens Act. 113 In the instant case the plan as lodged did fulfil the intentions of the parties. 114 Intention also flows through into decisions under s 42(1)(c) of the Real Property Act with respect to misdescription of boundaries. It may be that because of this, cases such as Rourke v Schweikert (1888) 9 LR (NSW) (Eq) 152 and even Turner v Myerson supra might not be decided the same way today: see Michael v Onisiforou (1977) 1 BPR 9356. 115 Accordingly, even if one found some way around the decision of this Court in Sutherland v Moir or s 196(5) of the Conveyancing Act, one could still not say that there was an invalidity or error or omission in the plan. 116 Because I have not found it appropriate to advise the Registrar General that the power under s 195H be exercised, it is unnecessary to consider whether that power is subject to a limitation that the Registrar's powers must be limited to the period before some bona fide purchaser or mortgagee acquires the titles (see Fraser v Walker [1967] 1 AC 569 (PC)) or what happens if certificates of title have been issued following registration of a plan and then the plan is amended under s 195H. 117 I may have tackled the present point on a slightly different tack to which Brereton J approached it. I would agree with Brereton J's finding that the respondent was entitled to consolidate his holdings without council's consent because, contrary to the submissions of Mr Tomasetti, a consolidation is not a subdivision within the meaning of the Environmental Planning and Assessment Act 1979. The submission otherwise ignores the semantic significance of the words "divide" or "division". 118 Accordingly, the decision of Brereton J was in my opinion correct. 119 The appellant lodged an appeal purportedly as of right, and also sought leave to appeal. The basis of the appeal as of right was that the strip was part of a larger piece of land which was worth some millions. However, in my view this is quite irrelevant. The actual strip being fought over is worth under $10,000. There is no appeal as of right. 120 Because I was fully in agreement with the decision given by Brereton J, I hesitate before giving leave to appeal. However, on consideration, there were some points raised which needed closer consideration than would normally happen on an application for leave to appeal. 121 Accordingly, in my view, leave to appeal should be given. A proper notice of appeal must be filed within 7 days of this decision in the form of the draft notice in the White Book. The appeal should be dismissed and the appellant should pay the costs of the appeal.

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