58The matters just canvassed indicate that, according to the endorsement on folio identifier E/23162, construed with the aid of s 40(1B), lot E is affected or encumbered by something that the Registrar-General has assessed to be an easement, that the description that s 40(1B) causes to be incorporated uses forms of words traditionally employed in the creation of easements as distinct from mere licences and that the physical layout shown by the plan that s 40(1B) causes to be incorporated is such as to imply quite clearly that the right in respect of the affected part of lot E serves a purpose of accommodating or benefiting land adjoining lot E at the ends of the lane and the passage distant from Liverpool Street.
59This, to my mind, is sufficient to warrant a conclusion that the easement created in 1882 is "recorded in" folio identifier E/23162.
60I acknowledge, of course, that the recording, thus understood, does not include any explicit description of the benefited land. As the primary judge correctly observed, the identification of a dominant tenement is an essential element of the valid creation of an easement. But the question now under consideration is not as to the valid creation of the easement. It is accepted that there was valid creation in 1882, with the parcel then conveyed to Hinton (and now subdivided into the several lots of which the landowner defendants are the registered proprietors) as the dominant tenement. The question of present relevance goes to the description of the easement.
61The apparent deficiency in the explicit description is, in my opinion, not fatal to the conclusion that the easement is "recorded", particularly when it is recognised that the missing information is readily obtainable by means that the available material provide.
62Both parties referred in submissions to Bursill Enterprises Pty Ltd v Berger Bros Trading Pty Ltd [1971] HCA 9; (1971) 124 CLR 73, a case examined by the primary judge. The question there was whether an interest in a stratum of land occupied by an adjoining building was "notified upon the folium of the Register Book" relating to the land concerned. There was in fact a notation that referred to a right of way created by a particularly identified instrument. There was no reference to the additional interest relating to the stratum that had been created by the same instrument. The High Court held, by majority, that the affecting interest in the stratum was notified on the relevant folio. Barwick CJ said (at 77):
"It seems to me that it was not intended that the certificate of title alone should provide a purchaser dealing with the registered proprietor with all the information necessary to be known to comprehend the extent or state of that proprietor's title to the land. The dealings once registered became themselves part of the Register Book. It was therefore sufficient that their registration should be by statement of their nature recorded on the certificate of title."
63Windeyer J said (at 93):
"It seems to me that, at any time from 1872 till today, a prudent conveyancer acting for a purchaser of the land that is now Bursill's would have ascertained what it was that transfer 7922 referred to on the vendor's certificate of title in law effected. True he might have been surprised to discover all that his search revealed. But surely no prudent person, seeing the reference to a right of way, would neglect to ascertain what exactly was the nature of the right of way, the land subject to it, the persons who could avail themselves of it, for what purposes in what manner and at what times."
64The concept here is that "notification" (or, as it is today, "recording") is sufficiently made if particulars explicitly stated are such as to engender in the mind of a reasonable reader generally familiar with property and land titles a need for further inquiry by resort to readily available records. In the present case, the four indicators to which I have referred would show very clearly to such a reader the existence of an easement affecting the parts of lot E consisting of the lane and the passage; and there would also be a very strong suspicion that the benefited land (not explicitly identified) was that at the ends of the lane and the passage distant from Liverpool Street.
65The reader in question, being expressly directed to volume 6451 folio 53 (the content of which was deemed by s 40(1B) to be included in folio identifier E/23162), would there find, in addition to the four indicators already mentioned (and the lack of explicit identification of the dominant tenement), the following:
"Last Certificate Vol 1022 Fol 161".
66That, combined with the fact that the relevant endorsement on volume 6451 folio 53 was obviously placed there upon first creation of that folio in 1952, would indicate volume 1022 folio 161 as a source of additional information about the content of the endorsement. And, of course, resort to volume 1022 folio 161 would bring to light the reference to a dominant tenement described as "the land adjoining the south eastern side of the land above described", that adjoining land being (or having once been) owned by William Henry Hinton and Frederick William Mackey.
67The primary judge took the view (at [22]) that there was nothing in volume 6451 folio 53 which would enable a purchaser to ascertain the land, if any, to which the easement was attached. Having regard to the fact that the relevant notation was obviously carried over from the previous folio and that that folio was expressly identified in volume 6451 folio 53, it seems to me that, as was submitted on behalf of the Registrar-General, the means of remedying the apparent deficiency were available from the current folio, construed in the light of s 40(1B).
68It is relevant to note that, even apart from s 40(1B), the Act itself shows that resort may be had to material outside the register in construing the content of the register. Thus, for example, s 80A allows incorporation by reference in a dealing of the content of a document that is "filed" but does not form part of the register except for the limited purposes of s 96B: see s 80A(3). Also, it is the practice of the Land Titles Office not to object to incorporation by reference in instruments lodged for registration of unregistered documents such as covenants to observe the conditions in a common law mortgage: F Ticehurst, Baalman and Wells Land Titles Office Practice (fifth edition, current looseleaf) at [240.400].
69The principle that "the register is everything", to the extent that it may perhaps be a rough summation of the broad effect of the statutory provisions, is not offended by the conclusion that the 1882 easement is, for the reasons I have stated, "recorded in" folio identifier E/23162.