Registrar General v Sutherland & Ors

IN THE LAND AND MATTER No. 30226 of 1999 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 21/9/00

Registrar General Applicant v Robert William Sutherland and Juanita Faye Sutherland First Respondent

Michael Robin Bowden and Nancy Soh Kin Bowden Third Respondent JUDGMENT

By notice of motion filed on 11 July 2000 Robert William Sutherland and Juanita Faye Sutherland ("the Sutherlands") seek an order that the Registrar General pay their costs of these proceedings on an indemnity basis pursuant to the provisions of s 69(2) of the Land and Environment Court Act 1979 ("the Court Act").

The Sutherlands became the registered proprietors of land known as 64 Cowan Drive, Cottage Point ("no 64") on 17 April 1998. The second respondent, Mr Elsworth owned the adjoining property located on the western side known as no 66 Cowan Drive ("no 66"). The third respondent, Mr and Mrs Bowden owned land adjacent to no 64 on the eastern side thereof, known as no 62 Cowan Drive ("no 62").

At the date of acquisition of no 64 by the Sutherlands there were encroachments upon such land from both no 62 and no 66. On 11 August 1998 the Sutherlands commenced proceedings in this Court against Mr and Mrs Bowden seeking removal of an encroachment or alternatively compensation pursuant to the provisions of the Encroachment of Buildings Act 1922 (NSW). No proceedings were instituted against Mr Elsworth.

Following survey investigation the Sutherlands made application to Warringah Shire Council to erect a dwelling on no 64 and such approval was granted on the 11 February 1999 subject to a confirmation of the boundary being made between no 64 and no 66. On the 22 March 1999 a meeting took place at the Land Titles Office which was attended by Mr Elsworth, the Sutherlands and Mr O'Malley, the Principal Surveyor of the Land Titles Office. A subsequent meeting was held between Mr O'Malley and the Sutherlands on 12 April 1999 to discuss the boundary position. Such meetings were held as a consequence of an application being made by the Sutherlands to the Registrar General for the determination of the position of the common boundaries pursuant to s 135B of the Real Property Act 1900 ("the RP Act"). Such section entitles an owner of land to apply to the Registrar General under Pt 14A of the RP Act for a determination of the location of a disputed boundary.

Section 135H of the RP Act provides:- The Registrar-General is to determine the position of a boundary on the basis of all the evidence available to the Registrar-General but, if that evidence is inconclusive, may determine it on the basis of what appears to the Registrar-General to be just and reasonable in the circumstances.

On 14 May 1999 the Registrar General made his determination ("the determination") pursuant to s 135H of the RP Act. The determination fixed the boundary in the following terms:- 1. The determination of the common boundary of lots 4 & 5 in DP11166 is as per the bearings, distances, areas, and stated creek frontages as shown on said DP11166 for its lots 1 - 6 and moved in a northerly direction 1.49 metres from and parallel to the position of DP11166 as redefined from the mathematical position based on marks found of Portion 71 and subsequent plans and is further shown diagrammatically on the attached sketch. The sketch also shows the position of the easements required as a result of this determination and which form part of the determination.

The Sutherlands did not accept the determination and made representations to the Registrar General that easements should not be included and that the Registrar General had no power to require the creation of easements. The Registrar General was unmoved, maintaining that the inclusion of easements was an essential component of the just and reasonable determination. The Bowdens and Mr Elsworth took no objection to the Registrar General's determination and supported the inclusion of easements.

Pursuant to s 135J of the RP Act the Sutherlands, being dissatisfied with the determination requested that the Registrar General refer the matter to this Court. As a consequence these proceedings were instituted. The claim by the Sutherlands against the Bowdens for relief pursuant to the Encroachment Buildings Act 1922 (NSW) was also listed for hearing with these proceedings before Bignold J.

In the opening address Senior Counsel for the Registrar General acknowledged that the Registrar General had no power pursuant to s 135H of the RP Act to impose easements on unwilling parties but maintained that the determination would not be just or reasonable without such provision.

Following the announcement by the Registrar General that it could not compel the creation of easements, the Sutherlands, the Bowdens and Mr Elsworth entered into negotiations as a result of which an agreement was reached between all three land owning parties in relation to the position of the boundary and the payment of compensation to the Sutherlands. The exact boundaries as contained in the Registrar General's determination including easements were adopted by all parties.

The Sutherlands maintain that the Registrar General should pay indemnity costs of these proceedings. The claim is predicated upon the assertion that the proceedings were necessary only because the Registrar General maintained that the boundary could not be determined without the creation of easements. The Sutherlands held several meetings with the Registrar General and letters were written to the Registrar General seeking an acknowledgment that the boundary should be fixed without easements. It is submitted that if the Registrar General had acknowledged that no power existed to compel the granting of easements, the proceedings would have been settled at an earlier date and the costs of these proceedings would have been avoided. The Sutherlands were concerned that the creation of easements would prejudice their claim for compensation in respect of the encroachments upon no 64.

The Registrar General undertook numerous field surveys and was able to locate the original markings of the original 1871 Portion. Having undertaken investigations over many days the Registrar General determined that the existing boundaries were inconclusive as provided by s 135H of the RP Act.

The Registrar General attempted to determine a solution which was 'just and reasonable' pursuant to s 135H of the RP Act. If the boundary was determined solely by mathematical calculation it would pass through existing dwellings and create further difficulties. The parties were unwilling to compromise and accordingly Mr O'Malley formulated the determination. The determination by itself did not impose easements but without their incorporation the determination would have been neither just nor reasonable. It was for this reason that the Registrar General refused to accede to the Sutherlands' demand that the determination be made without easements.

All parties involved in the boundary disputes came together for the first time at the hearing of the proceedings and a resolution was promptly reached. Such resolution was only made possible by the work of the Registrar General in determining the boundaries. As a result of the resolution the Sutherlands received a substantial award for compensation and an order that the Bowdens pay their costs of these proceedings in return for the Sutherlands consenting to the grant of the easements. Further, it was agreed that compensation would also paid by Mr Elsworth to the Sutherlands for the minor encroachment by no 66 onto the land of no 64.

The acknowledgment on the first day of the hearing that the Registrar General did not possess any power to compel the creation of easements does not detract from the determination. In these circumstances the conduct of the Registrar General was proper and does not warrant any order for indemnity costs.

Whilst the Registrar General had no power to require the grant of easements as part of the determination pursuant to s 135H of the RP Act the determination takes effect pursuant to s 135L of the RP Act unless challenged in this Court. The Registrar General considered that the location of the boundary as fixed by the determination would not be just and reasonable without easements. The Registrar General was therefore unable to make the determination unless easements were included pursuant to the mandate provided to him by s 135H of the RP Act. The determination did not create easements.

There is no evidence to suggest that the adoption of the determination would lead to the extinguishment of the Sutherlands' entitlement to compensation pursuant to the Encroachment of Buildings Act 1922 (NSW). Furthermore the Sutherlands did not treat the determination as having the effect of creating easements. By letter dated 10 December 1999 the Sutherlands' solicitors wrote to the Registrar General stating that the determination was interpreted by the them as being a recommendation only that easements be granted.

The Registrar General was not acting unreasonably in refusing to accede to the Sutherlands' demand that the boundary should be determined without easements. In the Registrar General's opinion, which the Court accepts, the determination was just and reasonable and was the only practical solution to resolve the inconclusive boundaries. In making his determination the Registrar General was fulfilling his statutory duty.

In making his acknowledgment at the commencement of the hearing before Bignold J that he had no power to compel the creation of easements the Registrar General was not resiling from his determination. Unless set aside or varied as a result of the hearing, the determination would take effect pursuant to s 135L of the RP Act. Since the RP Act makes provision for the adoption of a determination the issue raised by the Sutherlands concerning the power of the Registrar General was of little relevance. Accordingly the insistence by the Sutherlands that the Registrar General make the acknowledgment that he had no power to compel the creation of easements was misconceived.

In Registrar General v Malcolm William Rigby and Leanette June Rigby & Anor (NSWLEC no 30339 of 1994, unreported) Bannon J in delivering his judgment said:- Where a public official is given the duty of making bona fide decisions and then comes to Court not because he wishes to be a litigant, but to assist the Court, I think the Court's discretion should be exercised on the whole, in a fashion which does not subject him to costs, unless it is shown that he is acting through lack of bona fides, lack of diligence, or some other cogent reason which would render the Court's discretion to miscarry if it did not order him to pay the costs.

Section 69 of the Court Act invests this Court with a very wide discretion as to costs and empowers it specifically to award indemnity costs in appropriate circumstances. The Sutherlands argue that the conduct of the Registrar General in refusing to acknowledge that he had no power to require easements until the commencement of the hearing before Bignold J was a circumstance which warrants the Court in making an indemnity costs order.

The Sutherlands rely upon numerous authorities in support of their application. Some authorities relate to unmeritorious defences being abandoned at the conclusion of a hearing, for example Ray Group Pty Ltd v Byron Shire Council (1998) 98 LGERA 378. However such authorities pertain to different circumstances. The Registrar General has not lacked bona fides nor diligence in the performance of his duties. The fact that he maintained that easements were to form part of his determination does not render his conduct unreasonable. The Registrar General's acknowledgment that he did not possess the power to create easements did not detract from his statutory obligation to determine a just and reasonable boundary. Unless there is unmeritorious conduct there is no basis to award indemnity costs: see Port Stephens Council v Randell [2000] NSWLEC 169 at [7]. I am also satisfied that the parties resolved their disputes due to the assistance of the Registrar General. It is apparent that these proceedings became the vehicle by which all issues between the parties were resolved including the adoption of the Registrar General's determination.

Since the Registrar General was brought to Court pursuant to a statutory duty, it might be expected that he would be entitled an award of costs in his favour, as considered by Bannon J in The Registrar General v Tuckfield (1981) 6 BPR 13,831. In the present circumstances no such order is sought and the Court determines that no order for the costs of the proceedings should be made.

1. The notice of motion of the first respondents be dismissed.
2. The exhibits be returned.

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