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.