Rita Sahade v Owners Corporation SP 62022

Supreme Court of NSW|2013-11-29|Before: Kunc J

Summary 1Governor Arthur Phillip famously described Sydney Harbour as "the finest harbour in the world, in which a thousand sail of the line may ride in the most perfect security" (Governor Phillip to Lord Sydney, 15 May 1788, Historical Records of Australia, Series 1, Vol. 1, p 18). For those fortunate enough to be able to do so, the quest to enjoy views of the harbour from their home has sometimes meant building on sites which slope steeply down to the water. This case concerns just such a site at Wolseley Road, Point Piper (the "Property"). It is the slope of the Property that has led to these proceedings. 2In 2000 the Property was subdivided into three lots upon the registration of a plan of subdivision (the "Strata Plan"). The Strata Plan contained an error in relation to Lot 3 because its author failed to take account of the slope of the Property. These proceedings concern whether and, if so, how the Strata Plan, which now forms part of the register maintained by the Registrar-General under s 31B of the Real Property Act 1900 (NSW) (the "Act"), can be corrected. 3The plaintiff is the registered proprietor of Lot 3. She was represented by Mr B.W. Walker SC and Mr M.V. Sahade of Counsel. The first defendant is the owners' corporation which owns the common property under the Strata Plan and the second to fourth defendants are the registered proprietors of Lot 1 and Lot 2. I shall refer to the first to fourth defendants as the "defendant proprietors". Dr C.J. Birch SC appeared for the defendant proprietors. The fifth defendant, for whom Mr A.G. Rogers of Counsel appeared, is the Registrar-General. 4The plaintiff pleaded her case on several bases but ultimately, and correctly, only three issues were advanced at trial for determination: (1)the proper construction of the Strata Plan; (2)whether the error should have been corrected by the Registrar-General under s 12(1)(d) of the Act so that the Registrar-General should now be ordered to do so under s 122 of the Act; and (3)whether the plaintiff had what was described as an equity for the rectification of the Strata Plan. 5The plaintiff fails on the first and third issues. However, she is entitled to orders that the Registrar-General correct the error in the Strata Plan.

The course of the proceedings 6The substantive proceedings were heard in one day, including a view of the Property. At the end of the hearing I informed the parties that I had come to the conclusions set out in the preceding paragraph. I gave the parties time to consider a form of orders to give effect to those conclusions and as to costs. I heard further argument on those matters three days after the main hearing. These reasons deal with all of the issues in the proceedings.

The Property 7Schedule A to this judgment is a copy of the relevant part of the Strata Plan to which an indication has been added to show what the parties referred to as the "access handle". Schedule B is a photograph looking east up the slope of the access handle. With the benefit of those two visual aids, I shall describe the Property. 8The Property is a narrow strip of land running east to west. Its overall orientation is a steep slope going up from the water at its western end to Wolseley Road at its eastern end. 9A visitor arriving at the Property's gates on Wolseley Road and walking through them would notice these features. At the top of the Property closest to the road is a two storey garage divided between the three lots. The visitor would walk down the driveway around the garages to a plateau of common property. This is a turning area for cars to enter the garages for each of the lots. Facing west, with the garages behind him or her, the visitor would see what appears to be a large single dwelling. This in fact contains two separate apartments on different floors, being Lots 1 and 2 in the Strata Plan. The apartments are oriented to the west to give the occupants uninterrupted views over the top of the dwelling on Lot 3 down the harbour to the Opera House and the Harbour Bridge. To the right of that building (i.e. running along the northern boundary of the Property), the visitor will find an inclinator which runs down the slope and terminates at the entrance to another self-contained dwelling, closest to the water, which forms the bulk of Lot 3. In front of that dwelling, and still part of Lot 3, is a waterfront garden area designated "GA" on the Strata Plan. 10The inclinator is built within the access handle. There is no doubt that the access handle was meant to be part of the garden area of Lot 3. On the Strata Plan the width of the access handle is specified as 2.13 metres. A set of steps runs along the southern side of the inclinator track for nearly all of the length of the access handle. As will be apparent from the photograph at Schedule B, the inclinator does not take up the full 2.13 metre width of the access handle. There is a black line drawn along the middle of the photograph which shows that the southern boundary of the access handle bisects the steps which run parallel to it. 11The fact that the access handle is wider than the inclinator track and includes part of the steps is the source of a dispute between the defendant proprietors and the plaintiff. That dispute has informed the approach which has been taken by those other proprietors in relation to the difficulties, which I next set out, that the plaintiff has had with the Registrar-General in trying to persuade the Registrar-General to correct the error in the Strata Plan.

The facts 12The facts are straightforward and undisputed. 13In or about 1999 the then owner of the Property retained a surveyor, Mr Graham Wilson of GK Wilson & Associates Pty Limited, to prepare what became the Strata Plan. 14When Mr Wilson attended the Property to survey it, the inclinator and the steps along part of the inclinator track were there. 15The original owner of the Property did not give Mr Wilson any specific instructions about the precise dimensions of the access handle, although it was obvious to Mr Wilson that the access handle was intended to be part of Lot 3 and had to allow for the inclinator in both the horizontal and vertical planes. 16Mr Wilson no longer recalls why, in the horizontal plane, he nominated 2.13 metres as the width of the access handle. However, there is no basis to suggest that width was a mistake and it was the width specified in all versions of the Strata Plan before the Court. 17However, in preparing the Strata Plan Mr Wilson also decided to include the access handle as part of the designated garden area. Having regard to the interests of the proprietors of Lots 1 and 2 in maintaining their harbour views over the waterfront dwelling on Lot 3, it was necessary for Mr Wilson to specify the height (or, putting it another way, the amount of airspace) which would be included as part of Lot 3's garden area. To that end the Strata Plan bears this notation: Garden areas are limited in height to 2.4 metres above and to 15 metres below the floor level of Lot 3. 18Because of the steep slope of the Property, "the floor level of Lot 3", insofar as it related to the waterfront dwelling, was already some metres above the garden area. Mr Wilson's error, which he himself and all parties accepted as such, was that in specifying a height limit for the garden area of 2.4 metres above the floor level of Lot 3, he failed to take into account that the steep incline of the access handle took it well above 2.4 metres from the floor level of Lot 3 if measured from the dwelling. The effect of this mistake is that only a few metres up the access handle, the upper limit of that part of Lot 3 cuts into the side of the Property and becomes subterranean as the access handle continues to rise above the height limit towards Wolseley Road. 19In a letter dated 15 June 2012 to the Registrar-General, Mr Wilson summarised his mistake: It has been brought to my attention that there is an (sic) problem in how part of the garden area for Lot 3 has been defined. The area marked red and noted X on the attached plan is inclined & rises up to Wolseley Road. My height restriction for the garden area does not take this into account. The intention of the Strata by myself & the original owner was to have this area included as part of the garden area ... 20The mistake appears to have gone unnoticed for some years. It is unnecessary for me to set out the correspondence and various efforts made by the parties to address the problem once it was identified. 21For the purpose of these proceedings, matters were crystallised when the plaintiff made a formal request under the Act to the Registrar-General dated 7 June 2013: The applicant applies to the Registrar-General that he pursuant to s 12(1)(d) Real Property Act, or otherwise, correct an error or omission in the Register. 22Various supporting material was provided or incorporated by reference in an attachment to the request. 23On 17 July 2013 a solicitor for the Registrar-General responded to the plaintiff's solicitors: ... It is not evident from the facts presented that there is an error or omission in the Register. Please provide a detailed explanation of how the purported "error or omission in the Register" enlivens the provisions of Section 12(1)(d) of the Real Property Act 1900. 24On 25 July 2013 the plaintiff's lawyers responded, explaining how the error arose and including a reference to Mr Wilson's letter which I have quoted in paragraph [19] above. 25By letter dated 22 August 2013 the Registrar-General's solicitor responded to the plaintiff's solicitor's letter: I refer to the abovementioned dealing and to your letter dated 25 July 2013. We do not agree with the analysis which, it seems, will need to be the subject of submissions in the upcoming proceedings.

The Act 26Under the heading "Powers of Registrar-General", s 12 of the Act provides: 12(1) The Registrar-General may exercise the following powers, that is to say: ... (d) the Registrar-General may, subject to this section and upon such evidence as appears to the Registrar-General sufficient, correct errors and omissions in the Register. 27It was that power which the plaintiff asked the Registrar-General to exercise to correct the error in the Strata Plan. The Registrar-General declined to do so, providing reasons in the letter of 22 August 2013 that were both short and, with no disrespect, uninformative. 28This course of events then engages ss 121 and 122 of the Act: Registrar-General to supply reasons for certain decisions 121 (1) A person who is dissatisfied with the Registrar-General's decision: (a) to have land brought under the provisions of this Act, or to have any dealing registered or recorded, or (b) to have any certificate of title, order for foreclosure or other instrument issued in relation to land, or (c) to have exercised or performed in relation to land any function or duty which, by this Act, is required to be exercised or performed by the Registrar-General, may apply to the Registrar-General for a copy of the Registrar-General's reasons for the decision. (2) It is the Registrar-General's duty to provide the person with those reasons. Review of decisions by Supreme Court 122 (1) A person who is dissatisfied with a decision referred to in section 121 (1) may apply to the Supreme Court for a review of the decision. (2) For the purpose of conducting such a review, the Supreme Court may reconsider and determine any question of fact involved in the decision. (3) If the Registrar-General has provided reasons for the decision, the Registrar-General may not rely on any grounds that are not set out in those reasons except by leave of the Supreme Court. (4) After reviewing the Registrar-General's decision on an application under this section, the Supreme Court: (a) may uphold the decision, or (b) may order that the Registrar-General take such action in relation to the matters raised by the application as the Supreme Court considers appropriate, being action that the Registrar-General could, but for the order, have taken, and may make such further or other orders as the Supreme Court considers appropriate. (5) This section does not apply to the determination of the position of a boundary under Part 14A. 29The Registrar-General's decision to refuse the plaintiff's request was a decision of the kind referred to in s 121(1)(c) of the Act, thereby conferring a right on the dissatisfied plaintiff to apply to the Court for a review of the Registrar-General's decision under s 122 of the Act. At least in part, the proceedings comprised an application for such a review.

The construction of the Strata Plan 30The plaintiff's first prayer for relief is for: A declaration that the expression "Garden areas are limited in height to 2.4 metres above and to 15 metres below the floor level of Lot 3" in [the Strata Plan] refers to the ground floor level of Lot 3 of the building comprising the Lot 3 garages shown on the Strata Plan as having an area of 61 m2. 31As is apparent from the terms of the proposed declaration, this requires construing the reference to "the floor level of Lot 3" in the notation in the Strata Plan as referring to the floor level of the garage which is also part of Lot 3 and is located at the higher end of the Property. As Mr Walker SC candidly conceded on behalf of the plaintiff, the argument proceeded from the entirely adventitious circumstance that this discrete part of Lot 3 was located at the higher end of the Property. 32It was submitted for the defendant proprietors that such a construction was not tenable because it has the absurd consequence of vesting all of the airspace above the garden area in the proprietor of Lot 3 to a height in excess of the height of Lots 1 and 2. This would mean that the proprietors of Lots 1 and 2 would only be able to enjoy their views of the harbour by looking through the airspace of Lot 3. Such a result could never have been intended by the Strata Plan, not least when it opened up the possibility of the proprietor of Lot 3 being able to block those views by building within the envelope of the airspace expressed, on this construction, to be part of Lot 3. 33The defendant proprietors' argument is correct. Such a construction leads to an absurd result, entirely inconsistent with what would otherwise have been the obvious intention of the Strata Plan, namely to provide an inclined corridor of airspace over the access handle to contain the inclinator and the passage of people alongside the inclinator and to otherwise keep the height of the garden area airspace below Lots 1 and 2. 34That is not the end of the plaintiff's difficulties of construction. The natural and ordinary way to read the reference to "the floor level of Lot 3" is as that part of the floor level of Lot 3 which is adjacent to the garden area. However, that gives rise to the equally absurd result that insofar as the access handle is included in Lot 3, a large part of it is subterranean due to the slope of the Property. 35The notation in the Strata Plan cannot be given a sensible construction. That difficulty demonstrates beyond any doubt the mistake which all parties accept has occurred.

The equity of rectification 36While this was the third of the plaintiff's arguments, it is convenient that I deal with it before coming to the argument on which the plaintiff succeeds. 37The plaintiff submitted that the registration of the Strata Plan worked a transfer of ownership of the Property to the owners' corporation in respect of the common property and to the first proprietors of the newly created Lots 1, 2 and 3. The Strata Plan was, therefore, an instrument capable of rectification insofar as it failed to reflect the true intention of those parties. The plaintiff submitted that the Court could readily infer the intention of all the parties at the time of the registration of the Strata Plan was to create a defined airspace which tracked the slope of the access handle high enough to permit the passage of the inclinator and people. 38The defendant proprietors submitted that there was no evidence before the Court from any of the relevant actors at the time of the registration of the Strata Plan who could give evidence of the matters which the plaintiff wished to advance. It was contended that the inference which the plaintiff wished the Court to draw was too tenuous, ill-defined and unsupported by the evidence. 39I accept the defendant proprietors' submissions. There is no evidence from any of the parties involved at the time of the registration of the Strata Plan, with the exception of Mr Wilson. There is no evidence that any of the parties (including Mr Wilson) were mistaken. Such evidence as there is suggests that the original owner of the Property left the delineation of the access handle entirely up to Mr Wilson. Furthermore, setting aside any debate about the standard of proof required for rectification (see generally NC Seddon, RA Bigwood and MP Ellinghaus, Cheshire & Fifoot Law of Contract, 10th Australian edition, 2012, LexisNexis, at 12.32-12.35), parties seeking rectification must be able to show precisely the correction that is needed to reflect the true intention of the parties as found. While the solution to the error in the Strata Plan is in general terms easily described, there are a number of possible variations and the plaintiff was unable to offer, by reference to any evidence or otherwise, the correction that is needed which the Court could be satisfied on the evidence represented the intention of the parties to the creation of the Strata Plan. 40The plaintiff's argument for an equity of rectification fails.

Section 12(1)(d) of the Act 41The plaintiff submitted that upon its registration, the Strata Plan became part of the "Register" referred to in s 12(1)(d) of the Act (set out in paragraph [26] above). I agree that must be correct. 42Next, it was argued that the Strata Plan (as part of that register) contained an error which the Registrar-General was empowered to correct under s 12(1)(d). The Registrar-General's decision not to correct what was an obvious error was a decision that should not be upheld. Rather, it was submitted that the Court should exercise its jurisdiction under s 122(4)(b) (set out in paragraph [28] above) to order the Registrar-General to correct the error in the register by correcting the Strata Plan. 43The burden of opposing the plaintiff's argument was assumed by the Registrar-General, whose submissions were adopted by the defendant proprietors. Just as the plaintiff's argument concerning s 12 may, without disrespect, be characterised as simple and straightforward, so too was the Registrar-General's answer. That answer was that earlier decisions of the Court on the application of s 12(1)(d) supported the proposition that, properly construed, the "errors and omissions" referred to in that section were confined to departmental errors and omissions. While the Registrar-General accepted that the Strata Plan clearly contained a mistake, it was submitted that insofar as it had become part of the register the Registrar-General was not responsible for the error and, therefore, had no power to correct the error in this case. 44I accept the plaintiff's answer in response that the construction of "errors and omissions" advanced by the Registrar-General cannot stand in the light of the decision of the Court of Appeal in Sahab Holdings Pty Ltd v Registrar-General [2011] NSWCA 395 ("Sahab"). I approach the construction of s 12(1)(d) in accordance with the following passage from Sahab (per Campbell JA and Tobias AJA; McColl JA agreeing): 183. However, we doubt that it can be decisive of the outcome of the present case whether expungement of the right of way falls within the description of "departmental errors and omissions" (see above at [136]). While that expression has been used in some of the relevant cases, it is not a term that finds any place in the statute. It has been used to explain why some factual situations count as an " error or omission" within the meaning of s 12(1)(d) while others do not, but those explanations need to be understood in the context of the particular factual situations with which the cases in question were concerned. 184. Section 12(1)(d) and s 136(1)(b) are expressed in language that taken in isolation and literally, would confer extremely wide powers of correction of the Register, and of calling in for cancellation or correction of certificates of title and duplicate dealings. On a literal reading, there could be an error in the Register if it was inaccurate in any respect, regardless of why it was inaccurate, regardless of how long ago the source of the error arose, and regardless of who might be affected by correction of the error. 185. However, it is impossible for this literal reading of s 12(1)(d) and s 136(1)(b) to coexist with the provisions of the Act that provide for indefeasibility. Enabling an indefeasible title to land to be obtained by registration is a central purpose of the Act. Reading the Act as a whole, and giving it a purposive construction, demands that the literal words of s 12(1)(d) and s 136(1)(b) be read down. The case law has attempted to identify the sorts of errors that can be corrected, consistently with indefeasibility, by describing them collectively as " departmental errors and omissions" . However, application of that phrase is not a substitute for applying the wording of the statute, construed as a whole and purposively, to the particular fact situation that arises for decision in a particular case. ... 193. Even though there is a clear complementarity of purpose between s 12(1)(d) and s 136(1)(b), and "error" in both must be limited so as not to impinge on indefeasibility, there is an important textual difference between them. Section 12(1)(d) is concerned with the state of the Register, namely that there is an error or omission in it. Section 136(1)(b) is concerned with the process by which the Register has come to be in its present state, namely that a recording in it has been made in error. "Error" in s 12(1)(d) is a noun, while in s 136(1)(b) "in error" is an adverbial phrase. 45Instructed by the approach of the Court of Appeal in Sahab, s 12(1)(d) operates as follows: (1)The Registrar-General's exercise of the power under s 12(1)(d) is subject to the balance of s 12. For example, s 12(3) governs the exercise of the power under s 12(1)(d) in ways not relevant to these proceedings. (2)The Registrar-General is to act "upon such evidence as appears to the Registrar-General sufficient". The proper content of that phrase was not a matter before me. However, without attempting to be exhaustive, it is to be expected that the evidence would include an explanation for how the error or omission occurred and, depending on the case, evidence as to how it could be corrected. (3)The "errors and omissions" are not confined to errors and omissions attributable to the Registrar-General. If the Registrar-General is satisfied, as a matter of fact, that there is an error or omission in the Register, that error or omission does not lose its character as being capable of correction under s 12(1)(d) depending upon the identity of the person responsible for the error or omission. (4)Upon its proper construction, the scope of the power of correction is to be ascertained by reference to whether the correction of the error would impinge upon a right to which indefeasibility attached (see Sahab at [190]). (5)While not the subject of argument in these proceedings, I add for completeness my view that "may" does not denote a discretion in the Registrar-General as that term is sometimes understood. Given the centrality of the register in the scheme of the Act (which reaches its high point in the indefeasibility provisions under s 42 of the Act), it would be an odd construction of s 12(1)(d) that would permit the Registrar-General, having come to the view that there was in fact an error or omission in the register, not to act to correct it (cf. Pirie v Registrar-General (1963) 109 CLR 619 at 623 (per Kitto J) and 644 (per Windeyer J) and, by parity of reasoning, Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [32]-[33]). 46Applying s 12(1)(d) in this way, there is clearly an error in the register in this case. The fact that the error may be attributed to Mr Wilson does not mean that it is any less an error for the purposes of s 12(1)(d). Furthermore, the power of correction is engaged because correction of the error will not impinge upon a right to which indefeasibility attaches. Looking down, as it were, from above the Property, there is no doubt that the land (including an ascertainable corridor of airspace above it) 2.13 metres wide constituting the access handle was intended to be part of Lot 3 and not of any other lot or the common property. To correct the error by correcting the register to describe a corridor of airspace above the sloping access handle will not deprive either the owners' corporation or any other lot owner of an interest in land to which they are currently or, but for the error, were obviously intended to be indefeasibly entitled. 47On the question of indefeasibility, the plaintiff also referred to s 42(1)(c) of the Act: (1) Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except: ... (c) as to any portion of land that may by wrong description of parcels or of boundaries be included in the folio of the Register or registered dealing evidencing the title of such registered proprietor, not being a purchaser or mortgagee thereof for value, or deriving from or through a purchaser or mortgagee thereof for value, and ... 48Insofar as the owners' corporation or any other lot owner were to claim a registered interest in that part of the access handle (including airspace) which currently falls outside it because of the error, indefeasibility would not attach to that part by reason of s 42(1)(c). However, this conclusion is academic because the very nature of the error means that the erroneously excluded section has not been expressly included as part of the common property or any other lot in the register.

Relief under s 122 and the width of the access handle 49As I observed in paragraph [27] above, the Registrar-General's decision was not particularly informative. Clearly enough, he declined the plaintiff's application for the error in the register to be corrected. Having regard to the matters put to the Registrar-General in the plaintiff's solicitor's letter of 25 July 2013 (referred to in paragraph [24] above), I infer that the reason for the Registrar-General's decision was that he did not accept that there was an error in the register of a kind which enlivened the Registrar-General's power under s 12(1)(d) of the Act. 50Having reviewed that decision on the plaintiff's application brought before this Court, it will be apparent from what I have said in paragraphs [18], [19], [35] and [46] above that there is an error in the register in the description of the height of the garden area insofar as it relates to the access handle. Furthermore, for the reasons which I have given in paragraphs [46]-[47] above, that error is one which falls within the power of correction under s 12(1)(d) because to correct the error will not encroach upon the principle of indefeasibility. 51The Court therefore declines to uphold the Registrar-General's decision under s 122(4)(a). The Court will exercise its power under s 122(4)(b) to "order that the Registrar-General take such action in relation to the matters raised by the application as the Supreme Court considers appropriate, being action that the Registrar-General could, but for the order, have taken". 52Against the possibility that the Court would reach this point in its decision making, the plaintiff and the defendant proprietors have each produced amendments to the Strata Plan which correct the description of the height of the garden area so as to create a corridor of airspace over the access handle sufficient to include the passage of the inclinator and not much higher. That is what should occur. The height of the garden area proper should otherwise be maintained in the way described in the Strata Plan so that the proprietors of Lots 1 and 2 look over, rather than through, Lot 3. 53However, at this point the defendant proprietors raise the issue of the width of the access handle. The solution which they urge upon the Court, while allowing sufficient airspace for the passage of the inclinator, proposes reducing the width of the access handle to the width of the inclinator. This has the effect of eliminating the current bisection of the steps which run alongside the access handle. 54The defendant proprietors submitted that the Court had the power to make this additional change to overcome a situation which apparently had no rational basis and was the cause of some inconvenience. They said the current situation was neither prudent nor rational. In relation to the question of inconvenience, I understood this might be a complaint that if anyone wanted to use the steps, it was difficult, if not impossible, to do so without trespassing upon the access handle. However, no one suggested that the plaintiff had sought to prevent anyone using the steps for this reason and, in my view, she could not sensibly do so. In any event, the Court considers any trespass that might occur from such use of the steps would be de minimis. 55The defendant proprietors submitted that the Court had a power to narrow the access handle incidental to the power which the Court was exercising under s 122(4)(b). They submitted that their proposal in relation to the width of the access handle was both convenient and logical. Against this, the plaintiff submitted that to the extent there was any incidental power, it could not be exercised in relation to something (in this case the width of the access handle under the Strata Plan) which had not been demonstrated itself to be an error or omission in the register. The plaintiff submitted that, on the evidence such as it was, there was no suggestion that the width of 2.13 metres had ever been intended to be something else and that there was nothing to suggest it was a mistake. 56I accept the plaintiff's submission for the fundamental reason which she asserts. That reason is reflected in the proper construction of s 122(4)(b), to which I now turn. 57The Court's power under s 122(4)(b) is constrained by the language of that section in at least two important ways. First, that power is to order the Registrar-General to take such action "in relation to the matters raised by the application". Second, the action which the Court orders the Registrar-General to take must be "action that the Registrar-General could, but for the order, have taken". 58Dealing with the first of these, it is necessary to construe the words "in relation to". These are words of wide import requiring a connection, not necessarily causal, between the specified matters. The requisite degree of connection is a matter to be determined in the factual and legislative context of the particular case. Although in dissent in the outcome, McHugh J's observation in O'Grady v Northern Queensland Co Limited (1989-1990) 169 CLR 356 at 376 is often cited: The prepositional phrase "in relation to" is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between the two subject matters. 59In Travelex Limited v Commissioner of Taxation of the Commonwealth of Australia [2010] HCA 33; (2010) 241 CLR 510, the High Court was again concerned with the expression "in relation to". French CJ and Hayne J observed (at [25], citations omitted): It may readily be accepted that "in relation to" is a phrase that can be used in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ. It may also be accepted that "the subject matter of the inquiry, the legislative history, and the facts of the case" are all matters that will bear upon the judgment of what relationship must be shown in order to conclude that there is a supply "in relation to" rights. 60In the same case Crennan and Bell JJ said (at [82], citations omitted): Determining the question essentially involves the construction of item 4(a) ["a supply that is made in relation to rights"]. As observed by this Court, the surest guide to legislative intention is the language which has actually been employed in the text of the legislation. A decision on the meaning of the language employed must begin by examining the context, considered in its widest sense, which will include the general purpose and policy of the provision. 61The action which the Court is empowered to require the Registrar-General to take must be "action in relation to the matters raised by the application". "The application" can only be the application of a person who is dissatisfied with the Registrar-General's decision referred to in s 122(1) of the Act. In this case, the matters raised by the plaintiff's application are confined (as is apparent from the terms of prayers 4 and 5 of the Second Further Amended Statement of Claim which invoke s 122 of the Act) to rectifying the Strata Plan in relation to the height of the garden area insofar as it extends to the access handle. There is nothing in the plaintiff's application to this Court under s 122 of the Act concerning the width of the access handle. The action sought by the defendant proprietors of changing the width of the access handle does not, in the context of a review provision such as s 122, bear a sufficient relationship, whether direct or indirect, with the matters raised by the plaintiff's application. 62As the plaintiff submitted, there was nothing in the nature of a cross-claim before the Court from the defendant proprietors. Nor could there have been. Putting it in that way demonstrates the fundamentally different nature of relief about the width of the access handle as opposed to the question of the height of the airspace above it which was the subject matter of the plaintiff's application. In other words, even reading the words "in relation to" in the most generous way, I am not satisfied that action to reduce the width of the access handle meets the description of being "in relation to the matters raised by the application". Therefore, such an action is not authorised even if the Court's power under s 122(4)(b) is otherwise engaged. 63Consideration of the second limitation in s 122(4)(b) produces the same result. This focuses on the action that the Registrar-General could have taken. There are two reasons why altering the width of the access handle is not action that the Registrar-General could have taken in dealing with the plaintiff's application. 64First, the width of the access handle was no part of the plaintiff's application, which was confined to the question of the airspace above the access handle. 65Second, having regard to the proper construction of the power to correct in s 12(1)(d) explicated in Sahab (see paragraphs [45] - [46] above), in the present case the power to correct does not extend to altering the width of the access handle. This is because to do so would be to impinge upon a right to which indefeasibility attached, namely that on the face of the Strata Plan the registered proprietor of Lot 3 is to have an indefeasible entitlement to an access handle 2.3 metres wide in the horizontal plane. The defendant proprietors' proposal to reduce that width is therefore outside the power to correct under s 12(1)(d) properly construed. 66A final source of the incidental power referred to by the defendant proprietors might be the final words of s 122(4)(b) that the Court "may make such further or other orders as the Supreme Court considers appropriate". That is the source of an incidental power to make further or other orders but, on its proper construction, must be read down as being confined to orders necessary for the working out or giving effect to the primary order which the Court directs to the Registrar-General under s 122(4)(b). The stream of the incidental order cannot rise higher than its source, being the order under s 122(4)(b). In the present case it cannot be the source of a freestanding power in the Court to make orders in relation to the register on the basis that a party is able to persuade the Court that it might be sensible or convenient to make some other alteration to the Strata Plan. 67If the conclusion I have just expressed is wrong and the final words of s 122(4) give the Court a power of sufficient amplitude to make an order of the kind the defendant proprietors seek in relation to the width of the access handle, then in the circumstances of this case such an order is not appropriate for three reasons, whether under s 122(4)(b) or those final words. 68First, there is no basis for the Court to conclude that the width of the access handle was itself a mistake. 69Second, for the reasons given in paragraph [65] above, it is beyond the Registrar-General's power of correction under s 12(1)(b). Even if it were, it is undesirable as both a matter of policy and practice for applications under s 122 to become occasions when grievances other than those which are the subject of the application that was before the Registrar-General and now under review are sought to be resolved. Insofar as any such grievance is capable of a remedy, it should be the subject of a separate application to the Registrar-General or separate proceedings invoking whatever is the appropriate jurisdiction of the Court. 70Third, as has been observed in paragraph [54] above, the bisection of the steps by the access handle is not causing and should not cause any practical difficulty. 71The plaintiff is therefore entitled to an order directed to the Registrar-General to correct the Strata Plan to make it clear that the garden area, insofar as it extends to the access handle, includes airspace above the sloping ground of the access handle sufficient to permit passage of the inclinator or a person walking alongside the inclinator down the access handle. I consider the specifics of the correction in the next section of these reasons. The defendant proprietors' submission that, in making any correction, the width of the access handle should be reduced is rejected.

Giving effect to these reasons 72The parties have agreed that to give effect to these reasons the Strata Plan should be amended in accordance with a plan prepared by Mr Stephen Emery, a surveyor retained by the plaintiff. However, they do not agree on how Mr Emery should describe the vertical dimension of the garden area in relation to the access handle. 73Consistently with the view I have come to as to what Mr Wilson intended, that description should have the following results: (1)The height should be sufficient to ensure that at all points along the length of the access handle there is a "ceiling" of at least 10cm of airspace within Lot 3 above the top of the inclinator, but that height is to be no higher than is necessary to achieve that result having regard to the requirements of the next sub-paragraph. (2)The "ceiling" of Lot 3 along the access handle should slope in a straight line between two identified points and should not mirror any undulations in the surface of the access handle. (3)The depth of Lot 3 in relation to the access handle should be the lowest point of Lot 3 as is otherwise provided in the Strata Plan. 74I will give directions for the parties' expert surveyors to produce a description in accordance with the preceding paragraph.

Costs 75Neither the plaintiff nor the defendant proprietors seek their costs against the Registrar-General. The Registrar-General makes no application for his costs. 76The dispute as to costs is that the plaintiff seeks her costs from the defendant proprietors. They submit that there should be no order as to costs as between them and the plaintiff. 77Costs are within the discretion of the Court. The discretion is very wide but must be exercised judicially. Costs generally follow the event. 78In this case the event is that the plaintiff has succeeded in her application for review of the Registrar-General's decision not to correct the error in the Strata Plan. However, there are a number of other features in the case that complicate the exercise of the costs discretion. These include: (1)the agreement of all of the other parties not to seek costs against the Registrar-General; (2)the plaintiff abandoned a number of pleaded causes of action at the hearing; (3)the plaintiff only succeeded on one of the three bases for relief that were advanced at the hearing; (4)the plaintiff would have had to come to the Court irrespective of the attitude of the defendant proprietors to seek a review of the Registrar-General's decision; and (5)the defendant proprietors adopted the Registrar-General's ultimately unsuccessful arguments and failed in their attempt to have the Court reduce the width of the access handle. 79Taking all of these matters into account, as well as the shape and nature of the proceedings generally, the best analysis is that the plaintiff and the defendant proprietors, as well as the Registrar-General, all had to deal with the consequences of an error for which none of them was responsible. To correct that error ultimately necessitated these proceedings. So understood, the appropriate order in the light of the other costs matters agreed between the parties, is that there be no order as to costs as between the plaintiff and the defendant proprietors to the intent that each of them is responsible for his, her or its own costs. 80Finally, and correctly, the defendant proprietors did not object to an order that the plaintiff's strata levies should not be applied to pay the first defendant's costs. The Court has power to make such an order under s 229 of the Strata Schemes Management Act 1996 (NSW). However, while the Court will make no other order as to costs in these proceedings, s 229 only relates to money payable by an owners' corporation under an order made in the proceedings. The Court will therefore order the owners' corporation to pay its own costs of the proceedings in order to engage s 229.

Orders 81The Court's orders are: (1)The parties (other than the Registrar-General) are to procure their expert surveyors to provide to them on or before 13 December 2013 a notation which the surveyors agree gives effect to these reasons (in particular paragraph [73]) (the "Agreed Notation")) in substitution for the notation B in the plan being Annexure "G" to the affidavit of Stephen Robert Emery sworn 25 March 2013 (the "Emery Plan"). (2)The plaintiff, within seven (7) days of receiving the Agreed Notation, is to file with the Registrar-General a Form 11R Request, which; (a)annexes a copy of the Emery Plan, but substituting notation B therein with the Agreed Notation; (b)annexes a copy of these orders; and (c)requests the Registrar-General to correct Strata Plan 62022 by substituting for Sheet No 3 of the Strata Plan the document referred to in sub-paragraph 2(a) herein. (3)Pursuant to s 122(4) of the Real Property Act 1900 (NSW), the Registrar-General is to correct Strata Plan 62022 in accordance with the Form 11R Request referred to in Order 2, within seven (7) days from the date the Request is filed. (4)Order, pursuant to s 229 of the Strata Schemes Management Act 1996 (NSW) that the first defendant pay its own costs of and incidental to these proceedings with such costs to be paid from contributions levied on all lots exclusive of Lot 3. (5)Grant liberty to any party to restore these proceedings in relation to the working out of these orders on two days' notice by email to the Associate to Kunc J. (6)Fix these proceedings for further hearing at 9.30am on 19 December 2013 (if required) to resolve any dispute between the expert surveyors as to the form of the Agreed Notation, on which occasion the parties are directed to have the expert surveyors available at Court. (7)Direct that any subpoenaed material and the exhibits be returned forthwith, the latter to be retained by the relevant party in accordance with Practice Note SC Gen 18. (8)Direct that these orders be taken out forthwith. Schedule A Schedule B DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 December 2013

Strata Schemes Management Act 1996(NSW)

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Judgment (12 paragraphs)

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Cases Cited (6)