Sahab Holdings Pty Ltd v Registrar-General

Sahab Holdings Pty Ltd v Registrar-General - [2011] NSWCA 395 - NSWCA 2011 case summary — Zoe

[9]

ESTOPPEL - Issue estoppel - where point not expressly decided in earlier decision but where point was necessary to the decision - parties cannot raise points necessary to the earlier decision if to raise them is necessarily to assert that earlier decision was erroneous - Legislation Cited: Crown Lands Consolidation Act 1913 Local Government Act 1919 Property Legislation Amendment (Easements) Bill 1995 Real Property Act 1900 Real Property Amendment (Compensation) Act 2000 Strata Schemes Management Act 1996 Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Workplace Injury Management and Workers Compensation Act 1988 Cases Cited: Ashoil Holdings Pty Ltd v Fassoulas [2005] NSWCA 80; NSW ConvR 56-125 Australian Hi-Fi Publications Pty Limited v Gehl (1979) 2 NSWLR 618 Black v Garnock [2007] HCA 31; 230 CLR 438 Blair v Curran [1939] HCA 23; 62 CLR 464 Breskvar v Wall [1971] HCA 70; 126 CLR 376 City of Canada Bay Council v F & D Bonaccorso Pty Limited & Others [2007] NSWCA 351; (2007) 71 NSWLR 424 Cook v Midpart Pty Ltd trading as McDonald's Forster [2008] NSWCA 151 CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 Dobbie v Davidson (1991) 23 NSWLR 625 Ex parte Gallagher (1908) 8 SR (NSW) 230 FNCB-Waltons Finance Limited v Crest Realty Pty Limited and Others (1977) 10 NSWLR 621 Frazer v Walker [1967] AC 569 Halloran v Minister Administering National Parks and Wildlife Act 1974 [2006] HCA 3; 229 CLR 545 IAC (Finance) Pty Limited v Courtnay [1963] HCA 64; (1963) 110 CLR 550 James v The Registrar-General (1967) 69 SR (NSW) 361 Lolakis v Konitsas [2002] NSWSC 889; 11 BPR 20499 McGuinness v The Registrar General (1998) 44 NSWLR 61 Mogo Local Aboriginal Land Council v Eurobodalla Shire Council & Others [2002] NSWCA 12; (2001) 54 NSWLR 15 Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46 Mulwala & District Services Club Ltd v Owners - Strata Plan 37724 [2000] NSWSC 1040; 50 NSWLR 458 NSW Police Force v Winter [2011] NSWCA 330 Perpetual Trustees Victoria Ltd v English [2010] NSWCA 32; (2010) 14 BPR 27,339 Pirie v Registrar General [1962] HCA 58; 109 CLR 619 Powercell Pty Limited v Cuzeno Pty Limited [2003] NSWSC 600; (2003) 11 BPR 21,385 Powercell Pty Limited v Cuzeno Pty Limited [2004] NSWCA 51; (2004) 11 BPR 21,429 Powercell Pty Ltd v Cuzeno Pty Ltd [2005] HCA Trans 94 Proprietors SP 9968 v Proprietors SP 11173 [1979] 2 NSWLR 605 Quach v Marrickville Municipal Council (No 1) (1990) 22 NSWLR 55 Quach v Marrickville Municipal Council (No 2) (1990) 22 NSWLR 65 Queensland Premier Mines Pty Ltd v French [2007] HCA 53; 235 CLR 81 Re N Jobson and the Real Property Act 1900 (1950) 51 SR (NSW) 76 Sahab Holdings Pty Limited v Registrar-General & Anor [2009] NSWSC 1143 Sahab Holdings Pty Ltd v Registrar General and Anor (No 2) [2010] NSWSC 162 Sahab Holdings Pty Ltd v Registrar-General and Anor [No 3] [2010] NSWSC 403 Scallan v Registrar-General (1988) 12 NSWLR 514 Sapina v Coles Myer Ltd [2009] NSWCA 71 St Abanoub v Registrar-General [2002] NSWSC 615 State Bank of New South Wales v Berowra Waters Holdings Pty Limited (1986) 4 NSWLR 398 State Transport Authority of New South Wales v Chemler [2007] NSWCA 249 Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 Treweeke v 36 Wolseley Road Pty Limited [1973] HCA 27; 128 CLR 274 Texts Cited: Professor Peter Butt "Land Law" 6th ed., Law Book Co, 2010 Woodman & Nettle "The Torrens System in NSW", Thompson Lawbook Co Category: Principal judgment Parties: Appellant: SAHAB HOLDINGS PTY LTD (ACN 002 728 216) First Respondent: REGISTRAR-GENERAL Second Respondent: CASTLE CONSTRUCTIONS PTY LTD (ACN 001 602 188) Representation: Appellant: G K Burton SC First Respondent: P B Walsh Second Respondent: M L D Einfeld QC/ J Horowitz Appellant: Kanjian & Co First Respondent: Land and Property Management Authority Legal Services Second Respondent: Domain Legal File Number(s): 2008/281514 Decision under appeal Citation: Sahab Holdings Pty Limited v Registrar-General & Anor [2009] NSWSC 1143; Sahab Holdings Pty Ltd v Registrar General and Anor (No 2) [2010] NSWSC 162; Sahab Holdings Pty Ltd v Registered-General and Anor [No 3] [2010] NSWSC 403 Before: Slattery J File Number(s): 5563/08

[10]

HEADNOTE [This headnote is not to be read as part of the judgment] In 1921, the property known as 134 Sailors Bay Road, Northbridge (134 Sailors Bay) was burdened by a right of way. The benefit of the right of way was appurtenant to 69 Strathallen Avenue, Northbridge (69 Strathallen). Castle Constructions Pty Ltd (Castle) acquired 134 Sailors Bay in June 2001. In September 2001 Castle lodged a request with the Registrar-General seeking the cancellation of the right of way. The Registrar-General acceded to this request, cancelling or deleting the right of way from the folios in the Register relating to the two properties. Sahab Holdings Pty Ltd (Sahab) acquired 69 Strathallen in April 2007. In September 2008 Sahab lodged a document with the Registrar-General seeking the restoration of the right of way to the folios in the Register relating to the two properties. On 2 October 2008 the Registrar-General declined Sahab's request. Sahab commenced proceedings in the Supreme Court. Sahab sought a declaration that the right of way had been wrongly extinguished and alternative orders that the Registrar-General restore the right of way to the folios in the Register of the two properties. In May 2009 Sahab filed a notice of motion seeking an order that the Registrar-General give reasons for his 2001 decision (the May motion). On 26 October 2009 Slattery J held that Sahab was entitled to succeed on the May motion: Sahab Holdings Pty Limited v Registrar-General & Anor [2009] NSWSC 1143. On 8 March 2010 Slattery J delivered judgment on the substantive issues: Sahab Holdings Pty Ltd v Registrar-General and Anor (No 2) [2010] NSWSC 162. His Honour rejected the various statutory bases upon which Sahab had relied in support of the proposition that the Registrar-General was bound to correct the Register. Having found no basis for the relief sought by Sahab, his Honour ordered that Sahab's summons be dismissed. On 5 May 2010 Slattery J delivered his judgment as to costs: Sahab Holdings Pty Ltd v Registrar-General and Anor [No 3] [2010] NSWSC 403. His Honour ordered that the Registrar-General pay Sahab's costs of the May motion; that Sahab pay the Registrar-General's costs other than on the May motion; and that there be no order as to costs between Sahab and Castle or as between the Registrar-General and Castle. Sahab now appeals against Slattery J's order dismissing its summons. Castle has filed a summons seeking leave to cross-appeal against his Honour's orders as to costs. Held ( per Campbell JA and Tobias AJA, McColl JA agreeing ) Basis for the 2001 decision

The Registrar-General neither purported nor was empowered to act in cancelling the recording of the right of way on the Register pursuant to s 49 Real Property Act 1900. This was because there had been no abandonment of the right of way either pursuant to s 49(2) or the general law. [54(d)]
Likewise, the Registrar-General neither purported nor was empowered to act in cancelling the recording of the right of way on the Register pursuant to ss 81I or 81J Real Property Act 1900. [54(a),(b),(c)]
Rather, s 32(6) provided the power pursuant to which the Registrar-General acted in cancelling the recording of the right of way on the Register. [55] Was Castle's 2001 request a "dealing"?
Castle's 2001 request seeking the cancellation of the right of way was not a " dealing " within the meaning of the Real Property Act . [66] Construction of the grant of right of way and attendant covenants
On the proper construction of the grant of the right of way and the attendant covenants, the existence of the right of way was not conditional upon the continued operation of any of the covenants. The covenants relating to the right of way continued in operation. Moreover the grant of right of way was permanent and not dependent on the ownership by the transferors or their executors, administrators and assigns other than purchasers of sale of the dominant tenement. [75], [78] Power of the Registrar-General to reinstate right of way on the Register Section 136
Section 136(1) merely enables the Registrar-General to call in and correct the certificate of title or duplicate registered dealing, but does not empower the Registrar-General to correct the Register itself. [154]
The Registrar-General did not have power to restore the right of way pursuant to s 136(1)(c). The expungement of the right of way from the Register was a " recording " [152]. However, the recording was procured by what ultimately turns out to have been a mistaken, but arguably correct, interpretation of the terms of the covenants. [161] Such a recording cannot be categorised as a recording that was " wrongfully obtained ". Moreover, the Registrar-General was not " satisfied " that the recording in the Register had been " wrongfully obtained ". [152]
The Registrar-General did not have power to restore the right of way pursuant to s 136(1)(b). The Registrar-General was not " satisfied " that the recording in the Register had been " made in error ". [194] Section 12(1)(d)
The Registrar-General did have power in 2008 to restore the right of way under s 12(1)(d). This was because at that point there was an " omission " of the right of way from the Register. The term " omission " in s 12(1)(d) should be construed the same way as the term " omission " in s 42(1)(a1). [274] The term " omission " in s 12(1)(d) therefore has the meaning of something " left out " or " not there " irrespective of the cause of, and without the attribution of cause or fault or reason for, the omission. [273]-[274] After its removal from the Register, the right of way was " not there " in that it was not recorded on the folio of the Register. [266] Accordingly the right of way had been omitted within the meaning of s 12(1)(d). [274]

[12]

Table of Contents Par Nos Summary [4] The history of the litigation [7] The history of the right of way and its attendant covenants [21] The subsequent dealings with the relevant land [30] The 2001 Request [34] The 2008 Request [45] The statutory basis for the 2001 decision [49] Was the 2001 Request a "dealing" within the meaning of the Act? [59] The proper construction of the covenants contained in the Middleton transfer [70] (a) The primary judge's findings [70] (b) Submissions with respect to the issue of construction [74] (c) The right of way and the covenants describing its use remain operative [75] The provisions of the Act relied upon by Sahab as empowering the Registrar-General to reverse the 2001 decision [79] Section 138 of the Act [95] (a) The decision of the primary judge [95] (b) The case based on section 138(1) [96] (i) The parties' submissions [96] (ii) The scope of "Recovery" in section 138(1) [97] (iii) Characterisation of Sahab's Proceedings [101] (c) The case on section 138(2) [105] (d) The case based on section 138(3) [108] (i) The parties' submissions [108] (ii) The decision in Mogo [109] (iii) Is section 138(3) available to Sahab? [129] (e) Conclusions with respect to s 138 [131] Sections 136 and 12(1)(d) of the Act [133] (a) The primary judge's decision [133] (b) A consideration of Berowra Waters and Scallan [138] (c) Sahab's reliance on ss 136 and 12(1)(d) [151] (d) Section 136(1)(c) - "wrongfully obtained" [152] (e) Sections 12(1)(d) and 136(1)(b) - "error" [165] (i) The parties' submissions [165] (ii) Authority and Commentary on Sections 12(1)(d) and 136(1)(b) [168] (iii) Consideration of Section 12(1)(d) and Section 136(1)(b) [181] (f) Section 12(1)(d) - "omission" [199] (g) Section 136(1)(a) - certificate of title issued in error [201] Section 122 of the Act [202] (a) The primary judge's decision [202] (b) The submissions of the parties [204] (c) A question of issue estoppel arises [210] (d) Application of s 122(1) [220] (e) Application of s 122(4)(b) [228] Castle's indefeasibility argument [237] Section 42(1)(a1) of the Act [251] Conclusion [275] Leave to Cross-Appeal on costs [277]

[14]

Summary 4The Registrar-General expunged a right of way from folios in the Register relating to two properties. That expungement was procured by a mistaken but arguable interpretation of the terms of covenants attendant to the right of way. The owner of the dominant tenement sought an order that the Registrar-General be compelled to restore the right of way to the folios and relevant certificates of title. 5This case is a complex one. It requires analysis of: (1) the appropriate construction of the grant of the right of way and the attendant covenants to determine whether the grant continued in operation; (2) the Registrar-General's power to cancel the recording of the right of way in the Register; (3) the Registrar-General's power to correct errors and omissions in the Register; (4) the Court's power to order the Registrar-General to amend folios of the Register to reinstate the right of way; (5) the effect of the principle of indefeasibility of title on attempts to compel the Registrar-General to restore the right of way to the folios and relevant certificates of title; and (6) the power of the Registrar-General, and the Court, to require the duplicate certificate of title to be brought in for amendment. 6A plethora of statutory provisions from the Real Property Act 1900 (the Act) were cited to us in relation to these various issues. We have concluded that the Registrar-General was empowered to correct the expungement of the right of way when he was requested to do so and, therefore, that the Court has jurisdiction to order the Registrar-General to restore the right of way to the folios and relevant certificates of title. We have further concluded that it is appropriate for the Court to make such an order. Furthermore, we consider that the situation falls within the exception to indefeasibility of title in s 42(1)(a1) and, therefore, that the principle of indefeasibility of title does not pose an obstacle to the orders we would make. Finally, there is power for the duplicate certificate of title to be called in so that the right of way can be noted on it, and that power should be exercised.

[15]

The history of the litigation 7The appellant, Sahab Holdings Pty Limited (Sahab), is the registered proprietor of Lot 1 in Deposited Plan 726736 known as 69 Strathallen Avenue, Northbridge (69 Strathallen). The second respondent, Castle Constructions Pty Limited (Castle), is the registered proprietor of Lot A in Deposited Plan 404929 and known as 134 Sailors Bay Road, Northbridge (134 Sailors Bay). The rear or eastern boundary of 69 Strathallen abuts part of the western boundary of 134 Sailors Bay. 8Castle acquired 134 Sailors Bay in June 2001 at a time when it was burdened by a right of way 10 foot wide which extended along its western boundary from Sailors Bay Road to a point on 134 Sailors Bay aligned with the prolongation of the southern boundary of 69 Strathallen (the right of way). The benefit of the right of way was appurtenant to 69 Strathallen. It was created by Memorandum of Transfer A752953 dated 26 October 1921 which was registered on 16 November 1921. 9On or about 3 September 2001 Castle lodged with the first respondent, the Registrar-General, a formal document titled " REQUEST " seeking the cancellation by the Registrar-General of the right of way (the 2001 Request). The Registrar-General acceded to this request on 22 November 2001 (the 2001 decision). He then cancelled or deleted the right of way from the folios in the Register retained by him for the purposes of the Act relating to 134 Sailors Bay (as the servient tenement) and 69 Strathallen (as the dominant tenement). 10On 5 April 2007 Sahab acquired 69 Strathallen. On or about 22 September 2008 it lodged with the Registrar-General a formal document also titled " REQUEST " (the 2008 Request) seeking the restoration of the right of way to the folios in the Register relating to 134 Sailors Bay and 69 Strathallen. By letter dated 2 October 2008 the Registrar-General declined the 2008 Request (the 2008 decision). 11On 7 November 2008 Sahab filed a summons in the Equity Division of the Supreme Court to which it initially joined the Registrar-General as the only defendant. It claimed a declaration that the right of way had been wrongly extinguished on or about 22 November 2001 when the Registrar-General acceded to the 2001 Request lodged by Castle as the registered proprietor of the servient tenement, 134 Sailors Bay. It then sought alternative orders based upon various provisions of the Act that the Registrar-General restore the right of way to the folios in the Register of the two tenements. 12By Notice of Motion filed on 23 December 2008 Castle sought to be joined as a defendant to the proceedings. That motion was successful and Castle was joined as the second defendant and an Amended Summons was duly filed on 17 February 2009. Apart from some minor amendments to the orders sought in the original Summons including reliance on s 65 of the Supreme Court Act 1970 (NSW) (the SC Act), the only order sought against Castle was that it deliver up or cause to be delivered up the Certificate of Title for the servient tenement (134 Sailors Bay) for the purpose of it being amended to accord with the orders sought by Sahab for restoration of the right of way to the relevant folios of the Register. 13The hearing of the amended summons commenced before Slattery J on 26 May 2009. At that point the Registrar-General had filed a submitting appearance and took no part in the argument. The matter thus proceeded on that and the following day when his Honour heard argument from Sahab and Castle on the substantive issues with particular reference to whether the Registrar-General had the necessary power under the Act to restore the right of way to the Register. He had the benefit of what he described in the transcript as full written and oral submissions. 14During the hearing on 27 May, his Honour gave leave to Sahab to advance its claim for principal relief by moving for the Registrar-General to give reasons for the 2001 decision. That Notice of Motion was filed on 28 May 2009 returnable on 5 June (the May motion). The Registrar-General was invited to consider whether he wished to make submissions on the substantive issues in the proceedings. He appeared on the hearing on 5 June when he was directed either to file an unconditional appearance or to file an application for leave under Uniform Civil Procedure Rules 2005 (NSW), r 6.11(2) to make submissions despite filing a submitting appearance. The Registrar-General then filed written submissions as to his powers and functions. 15The May motion sought an order pursuant to s 121(2) of the Act or s 65 of the SC Act that the Registrar-General provide in writing his reasons for the 2001 decision. The parties, including the Registrar-General, filed written submissions with respect to whether the Registrar-General had a duty to provide reasons at the request of someone like Sahab who was not the registered proprietor of 69 Strathallen when the 2001 decision was made. Both Castle and the Registrar-General contended that the latter had no such duty. 16The argument on the May motion was heard on 26 June 2009. On 26 October 2009 the primary judge delivered his judgment on that motion: Sahab Holdings Pty Limited v Registrar-General & Anor [2009] NSWSC 1143 (the first judgment). He held that Sahab was entitled to succeed on the motion. He therefore ordered the Registrar-General to provide to Sahab his reasons for the 2001 decision to delete the right of way from the folio relating to 134 Sailors Bay. At the same time his Honour made a number of consequential orders regarding the filing of submissions with respect to the principal relief sought by Sahab in its Amended Summons. Neither Castle nor the Registrar-General has challenged his Honour's principal finding made on the May motion by filing a summons for leave to appeal from the orders made on 26 October 2009 or any of them. 17The Registrar-General complied with his Honour's order to provide his reasons for the 2001 decision on 13 November 2009. Supplementary submissions were then filed by all parties to advance or resist Sahab's claims for final relief based on the Registrar-General's reasons. His Honour then proceeded to determine those claims without any further oral argument. 18On 8 March 2010 his Honour delivered judgment (the second judgment) on the substantive issues in which he rejected the various statutory bases which Sahab had advanced in support of the proposition that the Registrar-General was bound to correct the Register and reinstate the right of way to the folios of 134 Sailors Bay as the servient tenement and 69 Strathallen as the dominant tenement. Having found no basis for the relief sought by Sahab in its Amended Summons he ordered that the summons be dismissed: Sahab Holdings Pty Ltd v Registrar General and Anor (No 2) [2010] NSWSC 162 (the second judgment). References to his Honour's reasons are to this judgment unless otherwise indicated. His Honour stood over for further argument the question of the costs of the proceedings. 19Argument with respect to costs was heard on 31 March 2010 and on 5 May 2010 his Honour delivered his reasons on that issue: Sahab Holdings Pty Ltd v Registrar-General and Anor [No 3] [2010] NSWSC 403 (the third judgment). He ordered that the Registrar-General pay Sahab's costs of the May motion (which related to whether the Registrar-General was required to provide his reasons for the 2001 decision); that Sahab pay the Registrar-General's costs of the proceedings other than on the May motion; and that there be no order as to costs as between Sahab and Castle or as between the Registrar-General and Castle. 20Sahab now appeals against his Honour's order dismissing the Amended Summons. Castle has filed a Summons seeking leave to cross-appeal against the primary judge's order that there be no order as to the costs of the proceedings as between Sahab and Castle. Castle has also filed an Amended Notice of Contention in which, inter alia, it challenges the primary judge's construction of the terms of the easement created by Transfer A752953.

[16]

The history of the right of way and its attendant covenants 21Sailors Bay Road runs in an east-west direction at Northbridge. Strathallen Avenue forms the stem of a "T" intersection with Sailors Bay Road on its southern side. It extends further south away from the Sailors Bay Road shopping precinct towards the suspension bridge connecting Northbridge with Cammeray. The two parcels of land the subject of the present appeal are located near the south-eastern corner of this "T" intersection. 22In early October 1921 the lands that later became 134 Sailors Bay and 69 Strathallen were part of a larger parcel of land held in common ownership. Walter William Charles Middleton and Alice Beatrice Middleton (the Middletons) were the registered proprietors as joint tenants of a single parcel of land comprising Lots 3 and 7 of Section 3 in Deposited Plan 7122 being the whole of the land in Certificate of Title Volume 2978 Folio 91. The northern boundary of Lot 7 had a width of fifty feet and fronted Sailors Bay Road. The western boundary of Lot 3 had a width of forty-six foot eight inches with a frontage to Strathallen Avenue. 23Lots 3 and 7 were subdivided into smaller parcels of land, two of which are the subject of this appeal. They were each subdivided once but the two subdivisions occurred at different times. The Middletons subdivided Lot 3 in October 1921 to create two allotments divided along their east-west axis. Each of those subdivided lots became 67 Strathallen Avenue and 69 Strathallen Avenue respectively. The latter (now known as Lot 1 in DP 726736) had a frontage to Strathallen Avenue of nineteen feet six inches or 5.945 metes. The subdivision of Lot 7 resulted in what is now 134 Sailors Bay (being Lot A in DP 404929) having a frontage to Sailors Bay Road of thirty nine feet ten and a half inches (compared to its original width of fifty feet). 24On 26 October 1921, the Middletons transferred 69 Strathallen to Cyril Hugh Davis by Memorandum of Transfer A752953 (the Middleton transfer). The terms of that transfer gives rise to questions of construction which are the subject of Castle's Amended Notice of Contention. It is therefore appropriate to set it out in detail. 25After reciting that the Middletons were the proprietors of an estate in fee simple in the land thereafter described subject to such encumbrances, liens and interests as were notified therein, the instrument recited the transfer by the Middletons (as transferors) to Mr Davis (as transferee) of part of the land in Certificate of Title Volume 2978 Folio 91 being part of Lot 3 of Section 3 Deposited Plan 7122 as shown on the sketch plan annexed thereto and marked with the letter "A" and edged red: "Together with the right of way shown in the said sketch and therein edged blue (such right of way being limited as stated in the covenants hereinafter mentioned). And the transferee covenants with the transferors as set out in the Schedule of Covenants hereto annexed and marked 'B'" 26Under the heading "ENCUMBRANCES, &c, REFERRED TO" there appears the words " Subject to the covenants and conditions contained in Instrument of Transfer No A47502 ". These covenants are not presently relevant. 27The second page of the Middleton transfer is Sketch "A". That is the plan that is reproduced, with some additions, at [3] above. It depicts the outline of the parcel of land that became 69 Strathallen having the dimensions of one hundred and forty feet along its northern and southern boundaries and nineteen foot six inches along its eastern and western boundaries. It is edged in red. That part of the sketch edged blue is the right of way over Lot 7 being in the form of a rectangular box abutting the eastern boundary of the land transferred as well as the two allotments to its north and containing the description "Right of Way - 10 feet wide". 28The Schedule of Covenants marked "B" is on the third page of the Middleton transfer. It is handwritten and, therefore, difficult to read. However, the parties agreed on the following transcription: " The transferee for himself and his assigns for the benefit of the residue of the land comprised in the said Certificate of Title registered Volume 2978 Folio 91 but only during the ownership thereof by us (the transferors) our executors, administrators and assigns other than purchasers on sale , covenants with us (the transferors) our executors, administrators and assigns that no fence shall be erected on the land hereby transferred to divide it from the adjoining land (being the residue of the land in the said Certificate of Title) without our consent or the consent of our executors, administrators or assigns but such consent shall not be withheld if such fence is erected without expense to us our executors, administrators or assigns and in favour of any person dealing with the transferee or his assigns such consent shall be deemed to have been given in respect of every such fence for the time being erected and this restriction may be released, varied or modified by the owner or owners for the time being of such adjoining land and the transferee for himself and his assigns further covenants with us, our executors, administrators and assigns that the transferee shall not use the said right of way (shown on the sketch marked 'A' and annexed to the transfer herein) more than twice daily and that the transferee shall be liable for any damage done to drainage pipes and pits and any other damage caused by the use of the said right of way by the transferee or by any person or persons on his behalf or in delivering goods to the said land transferred herein and the transferee shall not permit any loitering on the said right of way by any person or persons having dealings with the transferee and that the transferee shall pay to the transferors one fourth of the rates levied from time to time upon the land comprised in the said right of way and lastly that the transferee shall not use the said land hereby transferred for the purpose of erecting a butcher's shop thereon nor shall the transferee carry on the business of a butcher on such land - The burden of the foregoing covenants is appurtenant to the whole of the land comprised in the herein before mentioned Certificate of Title and the land hereby transferred is subject to the burden of such covenants and the same may be released, varied or modified by the transferors." (emphasis added) 29On 19 November 1921 the Registrar-General issued a new Certificate of Title to Mr Davis being Volume 3253 Folio 73 in consequence of the registration of the Middleton transfer. The Schedule of Covenants recorded in the preceding paragraph is reproduced in handwriting in the body of that Certificate of Title. In that transcription the "a" of the word "and" which commences that part of the covenants which we have secondly emphasised in the preceding paragraph has been capitalised thus suggesting that what follows is separate from what precedes it. Although not so clear as in Certificate of Title Volume 3253 Folio 73, the same word in the original Schedule of Covenants marked "B" in the Middleton transfer, at least arguably, also capitalises the "a" of "and" at the commencement of that part of the covenants which we have emphasised. We mention this aspect of the matter as it is relevant to the issue of construction of the covenants with which we deal at [70] ff below.

[17]

The subsequent dealings with the relevant land 30By Memorandum of Transfer No A802709 dated 4 April 1922, Cyril Hugh Davis transferred the whole of the land in Certificate of Title Volume 3253 Folio 73 being 69 Strathallen to Gordon Victor Cormack. 31As we have already observed, the Middletons were the registered proprietors of Lot 7 of Section 3 in DP 7122 being the whole of the land in Certificate of Title Volume 3325 Folio 201. That lot and the immediately adjoining land being Lot 8 of Section 3 in DP 7122 were subdivided by the executors of the Middletons in 1958. This was effected by Memorandum of Transfer G929816 to which was annexed a plan which became FP404929 which was a subdivision of the land in Certificate of Title Volume 3325 Folio 201 into Lots A and B, the former being 134 Sailors Bay and the latter being 136 Sailors Bay Road. By Memorandum of Transfer H403542 dated 18 January 1960 the executors of the Middletons transferred Lot A (being 134 Sailors Bay) to Andrew Stewart Townsend and Dulcie Doreen Townsend (the Townsends). On 13 September 1960 Certificate of Title Volume 7987 Folio 98 was issued pursuant to that transfer which contained the following notification: "Right of Way affecting the piece of land 10 feet wide coloured brown in the plan hereon created by Transfer No. A752953." 32Transfer No G929816 also created a right of carriageway over the rear portion of Lot A for the benefit of Lot B which connected to the right of way the subject of the present proceedings. 33The relevant effect of the foregoing was that in 1960 the executors of the Middletons ceased to be the owners of 134 Sailors Bay as a consequence of the purchase of that land from the executors by the Townsends. It was Castle's contention that the effect of that change of ownership was that the right of way ceased to affect 134 Sailors Bay as the servient tenement. Thereafter 134 Sailors Bay changed hands on a number of occasions eventually being acquired by Castle in or about June 2001.

[18]

The 2001 Request 34On or about 3 September 2001 Castle, through its solicitor, William Samuel Dockrill, lodged with the Registrar-General a formal printed document in what was apparently a form approved by the Registrar-General and titled " REQUEST ". Supposedly pursuant to s 36(1A) of the Act, it had the reference number 7924028 allotted to it. The document noted that the "Servient Land" was the land in Folio Identifier A/404929 and the "Dominant Land" was the land in Folio Identifier 1/726736. Against the heading " REGISTERED DEALING " there was a reference to "A752953". 35Against the heading " NATURE OF REQUEST ' the following appeared: "Application to cancel recording of easement due to the happening of an agreed event. Easement to be cancelled: Covenant and Right of Way A752953" 36Opposite the heading " TEXT OF REQUEST " the following was stated: "The Applicant applies to have the recording of the covenant and right of way cancelled on the folio of the Register referred to above. The names and addresses of all parties having a registered interest in the land benefited by the covenant and right of way are set out below" There followed a reference to the registered proprietors of 69 Strathallen then being Edna Maria Howard and Leslie Charles Howard (the Howards). The Request was certified by Mr Dockrill in the following terms: "We certify this dealing correct for the purposes of the Real Property Act 1900". 37The 2001 Request was accompanied by a statutory declaration by Mr Dockrill in the following terms: "1. I am the Solicitor for Castle Constructions Pty Limited who is the applicant pursuant to a Request to cancel recording of an easement due to the happening of an agreed event where the servient tenement is the land in Folio Identifier A/404929 and the dominant tenement is the land in Folio Identifier 1/726736. 2. I note the Covenant and the Right of Way were only to apply during the ownership by the original Transferee, Cyril Hugh Davis in Transfer No. A752953, his executors, administrators and assigns other than the Purchasers on sale. 3. Pursuant to Transfer No. A802709 the said Cyril Hugh Davis transferred the servient tenement by way of sale. Copies of Transfer No. A802709 and Certificate of Title Volume 3253 Folio 73 are annexed hereto and marked 'A' and 'B' respectively." 38During the course of the hearing there was some debate as to what was intended in the Request by the words " happening of an agreed event ". It was contended by Sahab that the document was misleading in that it had never been agreed between Sahab and Castle that there was such an event. However, in our view it is clear that the reference to " an agreed event " in the Request, when read in conjunction with paragraph 2 of Mr Dockrill's statutory declaration, was a reference to the opening words of the covenant which we have first emphasised at [28] above and which had been agreed between the transferor and transferee in the Middleton transfer. In other words, Castle was contending that pursuant to the terms of the Middleton transfer, the right of way ceased to burden 134 Sailors Bay on the sale of that land by the Middletons, their executors, administrators and assigns. As this had occurred in 1960 (see [31] above) when that land was transferred to the Townsends, the right of way had then ceased to exist. 39We interpolate that the Registrar-General's current website lists the Request as Form 11R which was the form used for the 2008 Request. It is not relevantly different in content and layout to the 2001 Request. Interestingly, with respect to "Dealing requirements" on the website for "Easements" following the sub-heading "Cancellation of easement by happening of agreed event" appear the words: "an easement may be cancelled if, in the terms of the grant of easement, the duration of the easement was limited." 40Whether these guidelines by the Registrar-General were in existence in 2001 is not known although it would be a coincidence if they were not in some form given the use by Mr Dockrill of the words "happening of an agreed event". We return to the narrative. 41It was common ground that the Registrar-General notified the Howards of the application contained in the 2001 Request. According to a letter from the Registrar-General to Sahab's solicitors dated 2 October 2008 such notice was given in the following circumstances: "Once the Registrar General determined to grant the Request, notice was sent to the owners of the dominant tenement (who at the time were Edna Maria Howard and Leslie Charles Howard) of the Registrar General's intention to remove right of way A752953 from A/404929 and 1/726736. In accordance with the Departmental practise, as no caveat or Supreme Court order restraining the Registrar General from removing right of way A752953 was lodged by Edna Maria Howard or Leslie Charles Howard, the Registrar General registered the Request and accordingly removed right of way A752953 from A/404929 and 1/726736." The reference at the end of the paragraph to A/404929 is to the servient tenement (134 Sailors Bay) and to 1/726736 is to the dominant tenement (69 Strathallen). It may well be that the assertions contained in the letter of 2 October 2008 referred to in the preceding paragraph involve a degree of reconstruction on the part of the Registrar-General. 42As we have already noted, the primary judge had ordered the Registrar-General to provide Sahab with his reasons for the 2001 decision. Those reasons were provided by letter from the solicitor for the Registrar-General to Sahab's solicitors dated 13 November 2009. It stated the following: "In accordance with Order No 2 of the Orders made on 26 October 2009 I enclose a copy of Minute 4(i) of Registrar General's Minute papers for Requests 7924027 and 7924028 which records the Registrar General's reasons for registration of Request 7924028. For the sake of clarity I advise that Minute (4)(i) reads: 'No objection received to the applications. Applications granted.' For the sake of further clarity I advise that 'objection' referred to any objection to the Registrar General's notice of 8 October 2001 to the owners of the dominant tenement giving them notice of intention to cancel the recording of the easement and restrictive covenant. The notice was sent because the Registrar General agreed with the applicant of Request 7924028, that the easement and covenant had expired by virtue of its own terms." 43The difficulty with the contents of this letter is that, as will appear, s 121(1) of the Act (being the statutory foundation for his Honour's Order No 2 made on 26 October 2009), refers to an application to the Registrar-General for a " copy " of his reasons for the relevant decision and s 121(2) provides that it is the Registrar-General's duty to provide the applicant with " those reasons ". The letter of 13 November 2008 which purports to provide those reasons is not, of itself, a " copy " of the Registrar-General's reasons if that is intended to refer to the documentary material containing his reasons which existed at the time of the relevant decision. The only document produced as being in existence at that time was the Minute which, if anything, would indicate that the only reason the application was granted was because no objection had been lodged to its granting by the registered proprietors of 69 Strathallen (the Howards). 44In this context there was significant debate on the hearing of the appeal as to whether there was any evidence that the Registrar-General actually turned his mind to the terms of the covenants contained in the Middleton transfer and, in particular, whether it could be accepted as asserted by the Registrar-General in his letter of 13 November 2009, that he had in fact agreed with Castle's 2001 Request that " the easement and covenant had expired by virtue of its own terms ". We do not consider that it is necessary to ultimately resolve this issue although it is to be noted that if the right of way ceased to burden the servient tenement as a consequence of the terms of the covenant contained in the Middleton transfer, it was because of the sale of 134 Sailors Bay by the Middletons or their executors and not by Mr Davis as asserted in paragraph 3 of Mr Dockrill's statutory declaration. Mr Davis was the predecessor of the Howards as the registered proprietor of the dominant tenement, 69 Strathallen. He was the transferee in the Middleton transfer whereas the opening words of the covenant, if they contain any relevant time limit, relate to the period of ownership of the Middletons as transferors and their executors rather than that of Mr Davis as transferee. However, the fact remains that the 2001 Request was acceded to by the Registrar-General and, as Sahab itself accepted, the right of way was extinguished and expunged from the folios of the Register of both the servient and dominant tenements.

[19]

The 2008 Request 45Sahab purchased 69 Strathallen on 22 December 2006 and the contract for sale was completed on 5 April 2007. On 22 September 2008 Sahab lodged the 2008 Request with the Registrar-General in the approved form. It was allotted the reference number AE234360. The nature of that Request was stated to be: "To restore to the folios of the Register of the servient and dominant tenements the right of way referred to in the registered dealing. Section 136(1) of the Real Property Act, 1900." The registered dealing was identified as Transfer A/752953 being the Middleton transfer. 46The 2008 Request was accompanied by a statutory declaration by one of Sahab's directors which, amongst other things, pointed out the error in Mr Dockrill's statutory declaration as to the relevance of the transfer by Mr Davis of his estate in 69 Strathallen. It was also contended that the words of limitation contained in the opening words of the covenant related only to the first covenant being the fencing covenant and had no application to what was asserted to be the second covenant relating to the use of the right of way. 47The Registrar-General responded to the 2008 Request in his letter of 2 October 2008 to which reference has already been made: see [10] above. It noted that in the statutory declaration accompanying that Request " a different interpretation of the terms of Schedule 'B' to Memorandum of Transfer A/752953 " had been advanced. The interpretation so advanced was to be compared to that advanced by Mr Dockrill which was based on the cessation of the right of way upon Mr Davis transferring 69 Strathallen by way of sale. The letter then set out the paragraph which we have recorded at [41] above. The Registrar-General concluded that he was not prepared to grant the Request and restore the right of way to the folios for 69 Strathallen and 134 Sailors Bay. 48Sahab's solicitors responded by letter dated 14 October 2008 in which they threatened litigation and, in particular, asserted that Sahab was entitled to institute review proceedings in the Supreme Court pursuant to s 122 of the Act. By letter dated 20 October 2008 the Registrar-General replied noting that he had set out in his letter of 2 October 2008 the reasons for his decision not to restore the right of way to the relevant folios of the Register pursuant to s 136(1) of the Act being Sahab's asserted statutory foundation for the 2008 Request. He then relevantly continued in the following terms: "In addition to the reasons outlined in my letter dated 2 October 2008, I make the following submission: Prior to removing the Right of Way from the above-mentioned folios of the Register, I gave notice to the owners of the dominant tenement pursuant to section 12A of the Real Property Act 1900 (NSW), Sub-section 12A(3) provides that: 'Where a person given notice under subsection (1) does not within the time limited by the notice serve upon the Registrar-General or give the Registrar-General written notice of an order made by the Supreme Court restraining the Registrar-General from taking the action, no action by that person or by any person claiming through or under that person shall lie against the Registrar-General in respect of the taking of the action specified in the notice.' I did not make an error or omission in the execution or performance of my functions or duties under the Real Property Act 1900 (NSW) in relation to land by removing the Right of Way from the above-mentioned folios of the Register; Section 136(1) of the Real Property Act 1900 (NSW) does not give me the necessary power to restore the Right of Way to the above-mentioned folios of the Register in the current circumstances; When your clients purchased the land in folio identifier 1/726736 from Leslie Charles Howard and Edna Maria Howard they would have known, or ought to have reasonably known, that the Right of Way did not at that time benefit 1/726736; ... There is not an error, misdescription or omission in the Register in relation to the land in folio identifier 1/726736 as a result of my refusal to register Request AE234360. In accordance with section 121 of the Real Property Act 1900 (NSW), please be advised that this letter and my letter dated 2 October 2008 are reasons for my decision not to restore the Right of Way to the above-mentioned folios of the Register pursuant to section 136(1) of that Act."

[20]

The statutory basis for the 2001 decision 49At [74] of his reasons the primary judge stated that, as Castle had submitted, the Registrar-General was exercising his powers under s 49 of the Act when he acceded to the 2001 Request and made the 2001 decision cancelling the recording of the right of way from the folios of the dominant and servient tenements. 50In 2001, s 49 was relevantly in the following terms: (1) The Registrar-General may cancel a recording relating to an easement in the Register if the easement has been abandoned. (1A) The Registrar-General may, under this section, cancel a recording relating to an easement in relation to: (a) all of the land benefited or burdened by the easement, or (b) any one or more of the lots, or part of a lot, burdened by the easement, or (c) any one or one or more of the lots benefited by the easement. (2) An easement may be treated as abandoned if the Registrar-General is satisfied it has not been used for at least 20 years before the application for the cancellation of the recording is made to the Registrar-General, whether that period commenced before, on or after, the date of assent to the Property Legislation Amendment (Easements) Act 1995 . ... (4) Before cancelling any such recording, the Registrar-General must consider any submission made, by a person having a registered estate or interest in land benefited by the easement, within the period fixed by the Registrar-General in a notice of intention to cancel the recording served personally or by post on the person. The period must be not less than one month from the date of the notice. ... (5) The Registrar-General may cancel a recording in the Register relating to an easement: (a) if satisfied that the recording relates to land for which the easement has no practical application because separate parcels of land that were respectively burdened and benefited by the easement have been consolidated into a single parcel, or ...." 51It is noteworthy that the reasons for the 2001 decision provided by the Registrar-General pursuant to his Honour's order made on 26 October 2009 did not assert that he acted pursuant to s 49 when he made the 2001 decision. Nevertheless the primary judge (at [74]) considered that he did, given the material Castle had put before the Registrar-General in the 2001 Request and in the way he dealt with that material. With respect we beg to differ. 52At [76] his Honour observed: "Incorrect and misleading though it was, Mr Dockrill's statutory declaration was designed to show that the right-of-way had been abandoned by reason of the sale long ago of Mr Davis's interests in 69 Strathallan Avenue. The spare reasons for the 2001 decision that the Registrar General has produced tend to confirm that s 49 Real Property Act was the power that was used. Quite apart from the material advanced by Mr Dockrill, the Registrar General considered that there was 'No objection received to the applications.' and he granted the application. The lack of any objection to the Registrar General's notice under s 49(4) of the prospective cancellation of the right-of-way, sent on 8 October 2001 to Mr and Mrs Howard, furnishes some evidence of abandonment on which he could act. The evidence now before the Court of course presents a rather different picture, although why Mr Mrs Howard [sic] had not responded to that notice remains unexplained in the evidence." 53As appears from [77] of his Honour's reasons, he concluded that the Registrar-General must have accepted Castle's construction of the terms of the Middleton transfer and its implied assertion that as the right of way was legally inoperative then it must have been abandoned. Further, to the extent that the 2001 Request sought cancellation not only of the right of way but also of the covenants in the Schedule of Covenants to the Middleton transfer, the Registrar-General was entitled to use ss 81I and 81J (erroneously referred to as ss 80I and 80J of the Act in the judgment) to achieve a result equivalent to the application of s 49. 54A number of comments may be made with respect to those findings: (a) The 2001 Request did seek the cancellation of the recording in the Register of both the right of way and " the covenant ". As it was acceded to, it would appear that the Registrar-General cancelled not only the right of way but also the covenants purportedly pursuant to s 81I of the Act as s 81J only applies where no application to extinguish a restrictive covenant has been made. (b) However, s 81I had no application to what has been referred to as the fencing covenant as, first, the 2001 Request did not qualify as an application to which s 81A(1) applied and, secondly, because it was not a " fencing covenant " as that expression was defined in s 81. On the other hand so much of the Schedule of Covenants as related to the right of way by restricting its use to not more than twice daily and, possibly, which prohibited loitering on the right of way, would fall within the definition of " restrictive covenant " in s 81 but would not qualify to be extinguished under s 81I as they would not fulfil the requirements of s 81I(2). This is because they are not (as s 81I(2)(a) requires) a building materials covenant, a fencing covenant or a value of structures covenant; nor are they (as s 81I(2)(b) requires) of a type likely to lose all practical value after 12 years of operation. (c) On the other hand those covenants as well as that which prohibited use of 69 Strathallen as a butcher's shop could be extinguished by the Registrar-General under s 81J(1)(a) upon the assumption first, that no application had been received by him to extinguish them (which was not Castle's case) and, secondly, Castle's construction of the covenants was accepted by the Registrar-General (which it apparently was) to the effect that the opening words of the covenants limited their operation until the Middletons or their executors transferred the residue land comprised in Certificate of Title Volume 7987 Folio 98 by way of sale (which occurred in 1960). (d) There can be little doubt that whatever the statutory foundation for the Registrar-General cancelling or extinguishing the right of way from the folios of the Register relating to 69 Strathallen and 134 Sailors Bay, he neither purported nor was empowered to act pursuant to s 49 as clearly there had been no abandonment of the right of way either pursuant to s 49(2) or the general law: Treweeke v 36 Wolseley Road Pty Limited [1973] HCA 27; 128 CLR 274; Proprietors SP 9968 v Proprietors SP 11173 [1979] 2 NSWLR 605 at 616-617; Lolakis v Konitsas [2002] NSWSC 889; 11 BPR 20499 at [58]-[65]; Ashoil Holdings Pty Ltd v Fassoulas [2005] NSWCA 80; NSW ConvR 56-125 where, with the agreement of Handley JA and MW Campbell AJA, Tobias JA considered the principles governing abandonment at [29]-[36]; see generally, Woodman & Nettle " The Torrens System in NSW ", Thompson Lawbook Co at [49.60]. (e) Notwithstanding the primary judge's view to the contrary at [77] of his reasons, we can detect nothing in the materials provided by Castle in its 2001 Request or in the manner in which the Registrar-General acted on that material, including his reasons as provided in compliance with the order made by his Honour on 26 October 2009, that would enable the inference to be drawn that in making the 2001 decision he was exercising his powers under s 49(1) of the Act, or, for that matter, under s 81I or even s 81J. (f) Neither before the primary judge or this Court did the Registrar-General suggest that the 2001 decision was so based. 55However, if it be necessary to identify the power pursuant to which the Registrar-General acted in cancelling the recording of the right of way on the folios of the Register relating to the dominant and servient tenements, it is to be found in s 32(6) of the Act which was in the following terms: "The Registrar-General shall have, and shall be deemed always to have had, power to cancel in such manner as the Registrar-General considers proper any recording in the Register that the Registrar-General is satisfied does not affect the land to which the recording purports to relate." 56Upon the basis that the Registrar-General accepted Castle's contention that the right of way had ceased to exist upon the sale of 134 Sailors Bay in 1960, it no longer affected that land, as a consequence whereof he had the power to cancel the recording of the right of way in the Register pursuant to s 32(6). 57Before taking any such action, he was required by s 12A(1) to give notice of the proposed action to any person that he considered should be notified of it. Pursuant to that obligation he notified the Howards. Section 12A(3) then provided: "Where a person given notice under subsection (1) does not within the time limited by the notice serve upon the Registrar-General or give the Registrar-General written notice of an order made by the Supreme Court restraining the Registrar-General from taking action, no action by that person or by any person claiming through or under that person shall lie against the Registrar-General in respect of the taking of the action specified in the notice." 58In any event, the confirmation by the Registrar-General that he was not prepared to accede to the 2008 Request lodged by Castle to restore the right of way to the Register resulted in the institution of the present proceedings by way of summons on 7 November 2008. Irrespective of the statutory foundation for the 2001 decision, the question at issue was whether, if it be established that the right of way and its restrictive covenants are still operative, the Registrar-General or the Court has the power to correct the Register so as to reverse that decision.

[21]

Was the 2001 Request a "dealing" within the meaning of the Act? 59During the course of argument on the appeal the question arose as to the characterisation of the 2001 Request. Clearly it was in a form which the Registrar-General had approved. But was it a " dealing " as defined? It is to be noted that the 2001 and 2008 Requests each contained a certification that " this dealing " was correct for the purposes of the Act. However, the Registrar-General could not make the Request a " dealing " unless the document fell within the relevant definition of that term. 60On the other hand there is little doubt that he accepted that it was a "dealing" as he allotted it a distinctive reference (7924028W) purportedly pursuant to s 36(1A) of the Act. That provision empowers the Registrar-General to allot a number to a document he accepts only if it is a "dealing, memorandum or caveat" . The 2001 Request is clearly not a caveat. Though "memorandum" is a word used in various different contexts in the Act, s 36(1) confines its meaning, for the purposes of s 36, to the meaning it has in s 80A(1), namely, a document, in effect, setting out standard form covenants. The 2001 Request did not meet that description. 61Upon being allotted its distinctive reference, the 2001 Request became lodged within the meaning of the Act: see s 36(1B). According to an historical search of the Registrar-General's records, he recorded the Request on 22 November 2001. 62In s 3(1)(a) of the Act the word " Dealing " is relevantly defined as "[a]ny instrument ... which is registrable or capable of being made registrable under the provisions of this Act, or in respect of which any recording in the Register is by this or any other Act ... permitted to be made." 63In the same section " Instrument " is defined as "[a]ny grant, certificate of title, conveyance, assurance, deed, map, plan, will, probate, or exemplification of will, or any other document in writing relating to the disposition, devolution or acquisition of land or evidencing title thereto." 64It follows from the foregoing that to be a " dealing " within the meaning of the Act there must be an " instrument " as defined. The fact that the Registrar-General had apparently approved the form of a Request does not mean that it fell within the definition of " instrument " unless, relevantly, it was a document relating to the disposition of land (or an interest in land), or evidencing title thereto. 65The 2001 Request sought the cancellation or expungement of the recording of the right of way from the folios of 69 Strathallen (as the dominant tenement) and 134 Sailors Bay (as the servient tenement). The right of way was, clearly, an interest in land. However, we do not accept that an application to cancel or expunge the recording of the right of way from the folios of the Register of those two parcels of land involved " the disposition " of the right of way given the context in which the word is used in the phrase " disposition, devolution or acquisition of land ". While the 2001 Request proceeded on the assumption that the title to the two relevant parcels of land included the benefit and burden, respectively, of the easement, that is not sufficient to make the 2001 Request a document "evidencing title" to the land. 66We therefore do not accept that of itself the 2001 Request was a " dealing " within the meaning of the Act. 67In Mulwala & District Services Club Ltd v Owners - Strata Plan 37724 [2000] NSWSC 1040; 50 NSWLR 458 Young J held that a document lodged with the Registrar-General to register a strata title by-law was an " instrument " and, therefore, a " dealing ". The basis of his Honour's decision was that the by-law in question would affect the proprietor's rights to use the common property, and a substantial interference with that right could be a matter going to the " title " to the common property. Section 48 of the Strata Schemes Management Act 1996 had the effect that an amendment to by-laws passed pursuant to s 47 of that Act had no force or effect until a notification in an approved form of the by-law affecting the amendment had been lodged with the Registrar-General, and registered. However, even before registration, the by-law effecting the amendment had the capacity to affect title, because changes in rights to use the common property would arise from it as soon as the comparatively mechanical steps of lodgement and registration had occurred. By comparison, in the present case there was no precedent action or event that was a "disposition, devolution or acquisition of land" or which had the capacity to affect title at the time the 2001 Request was lodged . Lodgement and registration of the 2001 Request was insufficient, by itself, to make any change to the title to the relevant land. 68It was also contended by Castle that as the act of cancellation of the right of way was inextricably connected to the 2001 Request, then the combination of the two constituted a " dealing ". We do not accept this submission. An " instrument " is a document, not a document plus what is done with it. 69However, notwithstanding that in our view it was incorrect to do so, the matter proceeded before the primary judge and generally on the appeal upon the basis that the 2001 Request did constitute a " dealing ". As the matter was conducted by the parties on that basis, including by the Registrar-General, we shall proceed as though the 2001 Request was a "dealing" . We note, however, that whether or not the 2001 Request was a " dealing " within the meaning of the Act had no bearing upon the Registrar-General's power to cancel the recording of the right of way in the Register pursuant to s 32(6) upon the basis that he was satisfied that it no longer affected the land to which the recording related, namely, 134 Sailors Bay, as the servient tenement. Nor does the route by which we ultimately reach our conclusions concerning the orders to be made in this case depend upon whether the 2001 Request is a "dealing" .

[23]

(a) The primary judge's findings 70The primary judge dealt with the construction of the grant of the right of way and the covenants contained in the Schedule of Covenants at [29]-[36] of his reasons. His Honour considered that the existence of the right of way was not conditional upon the continued operation of any of those covenants and that the covenants relating to the right of way continued in operation. In this respect his Honour (and the parties) accepted that there were three covenants contained in Schedule "B" to the Middleton transfer. They were as follows: (a) The first covenant was the fencing covenant which concluded with the words "and this restriction may be released, varied or modified by the owner or owners for the time being of such adjoining land." (b) The second related to the right of way and commenced with the words "and the transferee for himself and his assigns further covenants with us, our executors administrators or assigns that" followed by four restrictions: first, the right of way was not to be used more than twice daily; secondly, the transferee was to be liable for any damage done to any drainage pipes and pits and any other damage caused by the use of the right of way by the transferee or by persons delivering goods to the dominant tenement; thirdly, the transferee was not to permit any loitering on the right of way and, fourthly, the transferee was to pay to the transferors one-fourth of the rates levied from time to time upon the land comprising the right of way. (c) The third covenant (which was a restrictive covenant) prohibited the transferee using the land transferred (69 Strathallen) as a butcher shop. 71Following the third covenant was a provision which we regard as significant: "The burden of the foregoing covenants is appurtenant to the whole of the land comprised in the herein before mentioned Certificate of Title and the land hereby transferred is subject to the burden of such covenants and the same may be released, varied or modified by the transferors." 72It may well be that in the immediately preceding citation the first reference to " burden " should be a reference to " benefit ". In other words, the restrictions relating to the second and third covenants were for the benefit of the transferor who retained the land in Certificate of Title Volume 2978 Folio 91 other than so much thereof as was transferred to Mr Davis and which became 69 Strathallen. That might follow (though imperfectly), from "the before mentioned Certificate of Title" being a certificate that related to both the land that the Middletons transferred to Mr Davis, and the land that the Middletons retained. 73The primary judge's reasons for finding that the right of way remained in existence as did the covenants restricting its use, may be summarised as follows: (a) The words in the body of the Middleton transfer "... together with the right of way shown in the said sketch and therein edged blue (such right of way being limited as stated in the covenants hereafter mentioned)" bespeak a permanent grant of a right of way: the words "being limited as stated in the covenants" contain restrictions on the scope of the right of way to be enjoyed rather than on its existence; (b) So far as the terms of the Schedule of Covenants was concerned, the opening words that introduced a temporal limitation on the obligations of the transferee contemplated the ending only of the covenants themselves and not the right of way as such. In their ordinary meaning those words, if read distributively across all three covenants, merely qualified the application of the covenanted limitations to the right of way and not to the right of way itself. It was difficult to make the words of any of the covenants work to rescind the grant contained in the body of the Middleton transfer; (c) Merely because the grant of the right of way was expressed in the Middleton transfer to be " limited as stated in the covenants hereafter mentioned " did not mean that every limitation found in the operation of the covenants must be a limitation on the grant of the right of way itself; (d) In accordance with authority and in the absence of a contrary intention, the grant of an easement should be construed against the grantor. His Honour considered the meaning of the words of the right of way in the covenant in the Middleton transfer were clear; (e) The opening words of the Schedule of Covenants should be read as applying only to the first covenant being the fencing covenant. It was difficult to see how they could be read to apply to the second covenant (being the right of way) given that it had its own introductory words, namely, "and the transferee for himself and his assigns further covenants with us, our executors, administrators and assigns that ..." (f) Further, the contents of the fencing covenant refer to the need for the transferee's consent to the erection of certain fences which would become unworkable after the disposal of the Middleton's land by sale. The same cannot be said of the other two covenants which could operate equally well for the benefit of the Middletons or any subsequent purchaser from them; (g) Finally, the structure of the Schedule of Covenants strongly suggested three independent covenants; the opening words of the second covenant created a stand alone description of the transferee's obligations with respect to his enjoyment of the right of way without the need to import the opening words of the fencing covenant.

[25]

(c) The right of way and the covenants describing its use remain operative 75In our view, both these contentions should be rejected. We consider that his Honour was correct in confining the opening words of the Schedule of Covenants to the fencing covenant alone. That it is a stand alone covenant is supported by reference to its concluding words, namely, "and this restriction may be released, varied or modified by the owner or owners for the time being of such adjoining land." The " adjoining land " was that retained and owned by the Middletons, being the residue of the land in Certificate of Title Volume 2978 Folio 91. 76It seems to us that the fencing covenant commences with the opening words of the Schedule and concludes with the words which we have just recorded. The right of way itself is the subject of the grant in the body of the Middleton transfer albeit that it is to be limited as stated in the covenants, this being reference to the four limitations or restrictions to which we have referred at [70(b)] above. This construction is further supported by the opening words of the second covenant, namely, "and the transferee for himself and his assigns further covenants with us, our executors, administrators and assigns that ..." which would not have been necessary had the opening words of the Schedule of Covenants applied to all the covenants which followed them. 77Furthermore, the last sentence of the Schedule of Covenants which we have recorded at [71] above is applicable only to the second and third covenants as the first covenant (the fencing covenant) has its own independent words of release, variation and modification. Finally, there is the point concerning capitalisation that we made at [29] above. 78Accordingly, in our opinion not only was the grant of the right of way permanent and not dependent upon the ownership by the Middletons or their executors, administrators and assigns other than purchasers of sale of the servient tenement, but the four restrictions set out in the Schedule of Covenants relating to the right of way are also not dependant upon the retention by the Middletons of that tenement. It follows, therefore, that the primary judge was correct to find that the right of way did not cease to affect 134 Sailors Bay as the servient tenement when the executors of the Middletons transferred that property in 1960 and that it continued to burden that land for the benefit of 69 Strathallen subject to the four restrictions on its use and enjoyment contained in the second covenant.

[26]

The provisions of the Act relied upon by Sahab as empowering the Registrar-General to reverse the 2001 decision 79We will deal individually with each of the various statutory provisions relied upon by Sahab as empowering the Registrar-General or the Court to reverse the 2001 decision. However, before doing so it is convenient to set out those provisions in the context of those parts of the Act in which they appear. 80We have already set out at [62]-[63] above the definitions in s 3(1)(a) of " Dealing " and " Instrument " . We should also refer to s 3(1)(d) which provides that a reference to recording includes a reference to amending, cancelling or deleting. 81Part 2 of the Act was entitled " General Powers of Registrar-General ". Section 12 sets out those powers relevantly as follows: (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. ... (3) Where the Registrar-General, in the exercise of the powers conferred upon the Registrar-General by subsection (1)(d), makes a correction in the Register: ... (b) to the extent that, but for this paragraph, the correction would prejudice or affect a right accrued from a recording made in the Register before the correction, the correction shall be deemed to have no force or effect. (c) subject to paragraph (b), the Register shall, as so corrected, have the same validity and effect as it would have had if the error or omission had not occurred ..." 82We interpolate that, correctly, it was not suggested that the 2001 decision involved an exercise by the Registrar-General of his power under s 12(1)(d). At the time he made that decision the right of way was recorded in the Register so that there was no relevant omission. Even if it had "expired" as Castle had contended, its continued recording in the Register was not a relevant error. 83However, Sahab submitted that the Registrar-General could have exercised his power under s 12(1)(d) in 2008 to correct the Register as a consequence of his 2001 decision. It contended that at that point there was an omission of the right of way from the Register or, alternatively, that there had been an error in its cancellation given the true construction of the grant of the right of way in the Middleton transfer. Castle countered this submission by relying on s 12(3)(b), asserting that it had an indefeasible title to the servient tenement freed from the right of way in favour of the dominant tenement and that that was a right that had accrued on the making of the 2001 decision (being a recording (as defined) made in the Register) of which Castle could not be deprived by a further correction to the Register pursuant to s 12(1)(d). We shall refer further to those submissions at [237]-[274] below. 84Sections 31B and 32 relate to the Register and relevantly provide: " 31B The Register (1) The Registrar-General shall cause a Register to be maintained for the purposes of this Act. (2) The Register shall be comprised of: (a) folios, (b) dealings registered therein under this or any other Act, (c) the record required to be kept pursuant to section 32(7). ... 32 Folios of the Register (1) The Registrar-General creates a folio of the Register for land by making a record of: (a) a description of the land and of the estate or interest therein for which it is created, (b) a description of the proprietor for the time being of the estate or interest and particulars of the date of birth of any proprietor the Registrar-General knows to be a minor, and (c) such particulars, as the Registrar-General thinks fit, of: (i) other estates or interests, if any, affecting the land, and (ii) other information, if any, that relates to the land or any estate or interest therein and is included in that record pursuant to this or any other Act (including an Act of the Parliament of the Commonwealth) or an instrument made under any such Act, and by allocating a distinctive reference to the record so made. ... (6) The Registrar-General shall have, and shall be deemed always to have had, power to cancel in such manner as the Registrar-General considers proper any recording in the Register that the Registrar-General is satisfied does not affect the land to which the recording purports to relate. (7) The Registrar-General shall maintain a record of all dealings recorded in, or action taken in respect of, a computer folio and such other information, if any, relating to the folio as the Registrar-General thinks fit." 85As we have held at [55] above, the Registrar-General's 2001 decision to remove the right of way was empowered by s 32(6). This point will become of significance at [207]-[209] below. As will be seen, it is necessary to identify the source of power to make the decision to remove the right of way in order to determine whether the Court's power to review the Registrar-General's decision under s 122 is enlivened. 86Section 36 is entitled " Lodgment and registration of documents ". Relevantly it provides: "(1A) When the Registrar-General accepts a dealing, memorandum or caveat presented for lodgment, the Registrar-General shall allot thereto a distinctive reference. (1B) A dealing, memorandum or caveat is lodged, within the meaning of this Act, only when the Registrar-General has, under subsection (1A), allotted thereto a distinctive reference. ... (6A) A dealing is registered when the Registrar-General has made such recording in the Register with respect to the dealing as the Registrar-General thinks fit. 87Section 41 is entitled " Dealings not effectual until recorded in Register " and is in the following terms: "(1) No dealing, until registered in the manner provided by this Act, shall be effectual to pass any estate or interest in any land under the provisions of this Act, or to render such land liable as security for the payment of money, but upon the registration of any dealing in the manner provided by this Act, the estate or interest specified in such dealing shall pass, or as the case may be the land shall become liable as security in manner and subject to the covenants, conditions, and contingencies set forth and specified in such dealing, or by this Act declared to be implied in instruments of a like nature." 88Section 42 of the Act, entitled " Estate of registered proprietor paramount ", is one of the provisions of the Act that together confer indefeasibility of title. It is subject to a number of exceptions of which only one is presently relevant. The section and relevant exception are in the following terms: "(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; (a) ... (a1) in the case of the omission or misdescription of an easement subsisting immediately before the land was brought under the provisions of this Act or validly created at or after that time under this or any other Act or a Commonwealth Act." 89Section 42 needs to be read in conjunction with s 45 entitled " Bona fide purchasers and mortgagees protected in relation to fraudulent and other transactions " which provides as follows: "(1) Except to the extent to which this Act otherwise expressly provides, nothing in this Act is to be construed so as to deprive any purchaser or mortgagee bona fide for valuable consideration of any estate or interest in land under the provisions of this Act in respect of which the person is the registered proprietor. (2) Despite any other provision of this Act, proceedings for the recovery of damages, or for the possession or recovery of land, do not lie against a purchaser or mortgagee bona fide for valuable consideration of land under the provisions of this Act merely because the vendor or mortgagor of the land: (a) may have been registered as proprietor through fraud or error, or by means of a void or voidable instrument, or (b) may have procured the registration of the relevant transfer or mortgage to the purchaser or mortgagee through fraud or error, or by means of a void or voidable instrument, or (c) may have derived his or her right to registration as proprietor from or through a person who has been registered as proprietor through fraud or error, or by means of a void or voidable instrument." 90Part 13 of the Act is entitled " Civil rights and remedies ". Division 1 of that Part is titled " Proceedings for the possession or recovery of land ". Section 118 falls within Division 1 and is entitled " Registered proprietor protected except in certain cases " and relevantly provides as follows: "(1) Proceedings for the possession or recovery of land do not lie against the registered proprietor of the land, except as follows ... " There then follow a number of exceptions none of which is presently relevant. Castle contended that Sahab's proceedings were for the recovery of an estate or interest in land being the right of way; that those proceedings were against Castle as the registered proprietor of 134 Sailors Bay and were therefore prohibited by the opening words of s 118(1). We shall return to this issue below. 91Division 3 of Part 13 is entitled " Review of Registrar-General's actions ". Sections 121 and 122 relevantly provide as follows: " 121 Registrar-General to supply reasons for certain decisions (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. 122 Review of decisions by Supreme Court (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 ... " 92We have already referred to the first judgment in which the primary judge determined that the Registrar-General had a duty pursuant to s 121(1) to provide his reasons for the 2001 decision and that his refusal to do so could be reviewed by the Court pursuant to s 122. In the second judgment he dealt with the contention of Sahab that it was entitled to have the Court review both the 2001 decision and the 2008 decision pursuant to s 122. We shall again refer further to these submissions below. 93Part 15 of the Act is entitled " Cancellation and correction of instruments ". Sahab placed reliance on ss 136 and 138 which are relevantly in the following terms: " 136 Wrongful retention of certain instruments (1) Where the Registrar-General is satisfied that: ... (b) a recording has been made in error in the Register, (c) a certificate of title or recording in the Register has been fraudulently or wrongfully obtained, or ... ... the Registrar-General may by notice in writing to the person to whom the certificate of title ... has been issued, or by whom it has been so obtained or is retained, or by whom any certificate of title or duplicate registered dealing showing any such recording is held, require such person to deliver up the certificate of title or duplicate registered dealing, as the case may be, for the purpose of it being cancelled or corrected, as the case may require. (2) If such person: (a) cannot be found for the giving of such notice of requirement, or (b) having been given such notice does not comply with the requirement: the Registrar-General may, if the Registrar-General thinks fit, commence proceedings against such person in the Supreme Court for an order that such person deliver up the certificate of title or duplicate registered dealing, as the case may be, for the purpose of it being cancelled or corrected, as the case may require. ... 138 Court may direct cancellation of folios and other actions related to folios (1) A court may, in proceedings for the recovery of any land, estate or interest from the person registered as proprietor of the land, make ancillary orders of the kind set out in subsection (3), if the court is of the opinion that the circumstances of the case require any such order to be made. (2) A court may, in proceedings for the possession or production of a certificate of title or in proceedings in which the court makes a determination as to an estate or interest in land, make ancillary orders of the kind set out in subsection (3), if the court is of the opinion that the certificate of title has not been, or is not likely to be, produced by a person for the purposes of the registration of a dealing affecting the land concerned. (3) A court may order the Registrar-General to do one or more of the following: (a) cancel or amend a folio of the Register, (b) cancel, amend or make a recording in a folio of the Register, ... (d) issue a new certificate of title. ... (4) The Registrar-General must give effect to any such order. (5) A court that makes an order under this section may order that a person deliver a certificate of title or other instrument to the Registrar-General for the purpose of giving effect to any such order ... " 94We turn now in more detail to the provisions of the Act upon which Sahab relied, either to provide the Registrar-General with the power to reinstate the right of way to the Register or to empower the Court to compel him to do so given his refusal to do so as conveyed by the 2008 decision.

[29]

(ii) The scope of "Recovery" in section 138(1) 97In Mogo Local Aboriginal Land Council v Eurobodalla Shire Council & Others [2002] NSWCA 12; (2001) 54 NSWLR 15, the shire council was the registered proprietor of the relevant land. It ceased to be so when, in circumstances we further consider below, the Registrar-General amended the Register to, in effect, delete its name as registered proprietor. Having been the registered proprietor of the land and the Registrar-General then having taken action to deprive it of that status, it instituted proceedings to recover that status. Necessarily the proceedings were not to recover land from the registered proprietor of the land as there was then no-one answering that description. The present case is factually different as Sahab is seeking to establish its title to an interest in land (the right of way) as against the person registered as proprietor of the land (Castle). 98We accept that often the word "recover" is used as meaning regaining something which one once had, but which has been taken away. Mogo was such a case. The present is not, because Sahab was never the registered proprietor of land to which the right of way was appurtenant. 99However, the word " recovery " also has a meaning of obtaining something to which one has an entitlement. One can speak of an executor recovering property misappropriated from the testator, even though the executor never had the property. The word is used in a number of provisions of the Act in the sense of an entitlement: eg, s 120(1) talks of "the recovery of damages" . Section 118(1) is a good example of its use in the sense for which Castle contends. The chapeau of that provision refers to proceedings for " possession or recovery " of land. The proceedings referred to in sub-paragraphs (a), (b) and (c) relate to proceedings for possession rather than recovery. Those in sub-paragraph (d) relate to proceedings for the recovery of land of which the applicant has been deprived in the sense that the applicant seeks to regain something he or she once had. But it would also apply to proceedings brought by an executor or trustee in bankruptcy if a fraud on the registered proprietor had deprived the testator or the bankrupt of the land. Those referred to in sub-paragraph (e) relate to the recovery of land of which a person has been deprived and to the claiming of land in the sense of entitlement. Yet both involve proceedings for the " recovery " of land as the chapeau to s 118(1) demonstrates. 100We see no reason in principle why the word " recovery " in s 138(1) should not encompass a claim to be entitled to an estate or interest in land as well as the regaining of an estate or interest which was once had but of which the moving party has been deprived. We would therefore accept the submission of Sahab that it is a proper use of the word " recovery " to claim an interest in land to which one was at all times entitled albeit without one's knowledge of that fact and where it has been taken by a process which turns out to be defective and ineffective. As a matter of construction the word should not, in our view, be confined in the manner for which Castle contends. Accordingly, the fact that Sahab did not have the benefit of the right of way when it purchased 69 Strathallen in 2007 does not mean that it may not now claim to recover it. Sahab's proceedings may still be "for the recovery of any land, estate or interest from the person registered as proprietor of the land" within the meaning of s 138(1). We would therefore reject Castle's submissions about the scope of "recovery" .

[33]

(ii) The decision in Mogo 109In Mogo the fee simple of certain land was vested in the shire council and dedicated as a public reserve. In 1981 after notices under the Crown Lands Consolidation Act 1913 (the Crown Lands Act ) were gazetted declaring the land could be dealt with as Crown Land under that Act reserved for public purposes, the Registrar-General made an entry on the relevant certificate of title noting that the land had become Crown Land. At the same time he ruled through the name of the shire council as registered proprietor and wrote in the schedule provided for entry of the registered proprietor that the whole of the land had become Crown Land within the meaning of the Crown Lands Act . After those entries were made, the certificate of title was stamped "cancelled". The shire council instituted proceedings by way of summons in the Equity Division of the Supreme Court claiming relief in relation to the ownership of the land. 110Giles JA, with the agreement of Hodgson JA and Rolfe AJA, held that the land had not become Crown Land notwithstanding the relevant declaration. Accordingly the entry that the land had become Crown Land within the meaning of the Crown Lands Act was incorrect. At [49] his Honour observed that the cancellation of the certificate of title was because the Registrar-General must have considered that, there being no registered proprietor of the land, the certificate of title had in some manner been nullified. 111As the relevant land was without a registered proprietor the shire council submitted that the Registrar-General should record it as the registered proprietor as the land was private land and not Crown Land. The appellant land council, who sought to maintain, in effect, the notification on the Register that the land was Crown Land, submitted that there was no power for the Registrar-General now to reverse the cancellation of the certificate of title and record the shire council as the registered proprietor. 112At [51] Giles JA noted the submission of the Registrar-General that the entries and cancellation were based on a belief that the effect of the declaration made under the Crown Lands Act was that the relevant land became Crown Land within the meaning of that Act. His Honour accepted there could be no other explanation for the Registrar-General's actions. At [52] he said: "If my opinion as to the effect of s 25A of the Crown Lands Consolidation Act be correct, the Registrar General's belief was erroneous. It would be remarkable if there was no power to rectify the steps erroneously taken by the Registrar General, apparently of his own motion. In my view there is power for the Registrar General now to record the shire council in a folio of the Register as registered proprietor of lot 8. If for no other reason, that is because by s 138(3) of the Real Property Act a court may order the Registrar General, amongst other things, to create a new folio of the Register and to make a recording in a folio of the Register, and that carries with it power to give effect to the order. There is no reason why such an order should not have been made." 113Sahab relied upon the above passage as authority for the proposition that s 138(3) was a free-standing and independent power of the Supreme Court to order the Registrar-General to rectify the Register to reflect the correct status of the relevant land. As we have observed, Castle submitted that the decision was distinguishable on the basis that it was one where the certificate of title had been cancelled and a notation had been made on the Register that the land had become Crown Land which was without statutory force and thus provided no conclusive evidence of title for the purpose of s 40 of the Act. That section provided at the relevant time that " any person recorded in the folio as the registered proprietor of an estate or interest in the land comprised in the folio is the registered proprietor of that estate or interest... " The entry in respect of the land in Mogo that it had become Crown Land was not a recording of a person as the registered proprietor and, therefore, had no statutory force. 114It was submitted by Castle that, although not referred to by Giles JA, his Honour was exercising the Court's power under s 138(1) when he made an order under s 138(3). This seems to be the view of Professor Peter Butt in his seminal work " Land Law " 6 th ed., Law Book Co, 2010 at [20 115] where the learned author states: "However, a power to correct - of sorts - is given to the court by s 138(1) of the Real Property Act 1900 . Section 138(1) empowers a court, in proceedings for the recovery of any land or interest from the registered proprietor, to make ancillary orders of the kind set out in s 138(3). Under s 138(3), the court can order the Registrar-General to cancel or amend a folio of the Register; to cancel, amend or make a recording in the folio of the Register; to create a new folio of the Register; or to issue a new certificate of title. This power is exercised from time to time. Thus, where the Registrar-General erroneously cancelled a folio of the Register on the mistaken assumption that the land had vested in the Crown, the court ordered the Registrar-General to record the former owner as registered proprietor." The learned author cites Mogo as the authority to which reference is made in the last sentence of the above extract. 115There would seem to be little doubt that the shire council's action in Mogo was to recover the relevant land. Its contention was that the land was not vested in the Crown but in it so that it should be restored as its registered proprietor. The difficulty is that the proceedings were not for the recovery of the land " from the person registered as proprietor of the land " for there was no such person due to the Registrar-General's actions. 116The defendant parties in Mogo were the Registrar-General, the State of New South Wales (that is, the Crown), and the appellant land council. Neither the Crown nor the land council was or could be the registered proprietor of the land. As the Registrar-General believed the land was Crown Land and thus vested in the Crown, there was no registered proprietor which is why he cancelled the relevant certificate of title. As Giles JA observed at [50] of his reasons, the relevant land was without a registered proprietor: hence the application by the shire council for an order that the Registrar-General record it as the registered proprietor. 117Sahab submitted that it followed that the shire council's proceedings did not fall within s 138(1). The apparent basis for Giles JA's view that an order could and should be made under s 138(3) was that the Registrar-General by his own motion had erroneously cancelled the certificate of title and that it would be " remarkable if there was no power to rectify the steps " so erroneously taken. His Honour considered that the Registrar-General had power to now record the shire council as the registered proprietor of the land and to create a new folio of the Register for that purpose. His engagement of the remedies provided by s 138(3) was not expressly dependant on the shire council's proceedings conforming to s 138(1) or (2). 118Sahab submitted that it is thus apparent from Giles JA's reasons that once it was established that the entry that the land had become Crown Land was not a record of a person as a registered proprietor and, therefore, had no statutory force, that provided a sufficient basis for the Court to reject the submissions of the appellant land council that there was no power for the Registrar-General to reverse the cancellation of the certificate of title and record the shire council as registered proprietor. 119A difficulty with these submissions is that it would not appear that the appellant land council, who was opposing the relief claimed by the shire council, sought to argue that s 138(3) was not a stand-alone power or that the proceedings did not fall within s 138(1). His Honour did not state whether it was s 138(1) and 138(3) in combination, s 138(2) and s 138(3) in combination, or 138(3) on its own, that led to his conclusion at [52] that the Registrar-General had the power to record the shire council in a folio of the Register as registered proprietor of the relevant land. He identified s 138(3) as a provision that conferred that power, but did not rule out the possibility that there might also be another source of the power. No doubt his Honour's failure to identify specifically why s 138(3) could be used was due to the fact that no point was taken to the effect that there was an insufficient trigger for the use of s 138(3). 120Nevertheless, even accepting that the proceedings in Mogo did not fall within s 138(1), it appears clear that they fell within s 138(2). The certificate of title in Mogo had been cancelled by the Registrar-General. One can safely assume that, if asked expressly to decide it, the court would have been "of the opinion that the certificate of title has not been, or is not likely to be, produced" . The relevant certificate of title on which registration of the dealing would be recorded was not likely to be produced because it did not exist. The result in Mogo is then explicable on the basis that the court assumed that the precondition in s 138(2) was satisfied. 121Sahab submitted that s 138(3) was available as a form of ancillary relief in proceedings which otherwise declared the interests of a party in land to which the Act applied, even if the proceedings did not otherwise fall within s 138(1) or (2). Thus in Mogo the proceedings related to the validity of the declaration purportedly made under s 25A of the Crown Lands Act and which allegedly vested the relevant land in the Crown, thereby divesting the shire council's estate in fee simple in that land. It was found that the shire council was entitled to declarations that the land was and always had been vested in it for an estate in fee simple. Having so declared, an order could be made under s 138(3) to give effect to that declaration. 122One might argue that the form of the relief and its statutory underpinning formed an essential part of Giles JA's reasoning. On this view, it could be argued that Mogo is authority for the proposition that although the making of an order under s 138(3) can only be ancillary to the determination and declaration of the rights of a party to land under the Act, it is not necessary that that determination be made in proceedings which otherwise conform to those referred to in s 138(1) or (2). But it is not a stand-alone power. 123However, even if Mogo had presupposed that s 138(3) could be engaged in circumstances where s 138(1) and (2) were not, it is not authority for that proposition. As was noted in Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46 at [39]: "Reasons for judgment are not authority for a matter that has been assumed, rather than actually decided, in the course of those reasons for judgment: Baker v The Queen [1975] AC 774 at 788 ; Archer v Howell (1992) 7 WAR 33 at 46; Savouts v Minister for Immigration and Multicultural Affairs [2000] FCA 1059 at [32]-[33]; R (Kadhim) v Brent London Borough Council Housing Benefit Review Board [2001] QB 955 at [20]-[25], [33]-[39], 962-963, 965-966; Markisic v Commonwealth of Australia [2007] NSWCA 92; 69 NSWLR 737 at [56]." See also CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 at [13] per Gleeson CJ, Gummow and Heydon JJ. 124Neither Professor Butt nor Woodman & Nettle seek to directly justify Mogo on the basis that the court may only employ s 138(3) in proceedings which conform to those referred to in s 138(1) or (2). Thus at [138.20] Woodman & Nettle commence their commentary on s 138 thus: "Sections 136 and 137 provide a process which the Registrar-General can initiate to correct errors that have come to his or her attention or where an instrument has been fraudulently or wrongfully obtained or retained. Section 138 is concerned with matters which have come before the court by other means, and in which relief of the kind provided in subs (3) is an outcome of the suit. It is intended as a form of incidental relief - inherent in the word 'ancillary' used in the provision - rather than a cause of action in itself. That is, it applies where the court has already determined the parties' rights and it is necessary to give effect to that determination by 'tidying up' the Register ( Canada Bay Council v F & D Bonaccorso Pty Ltd (2007) 156 LGERA 294; 71 NSWLR 424; [2007] NSWCA 351 at [94])." 125A possible reading of this passage is that Woodman & Nettle are opining that s 138(3) is available as a form of ancillary relief in proceedings which otherwise declare the interests of a party in land to which the Act applies. 126In this respect there is no difference of opinion between Woodman & Nettle on the one hand and Professor Butt on the other. Each can be read as regarding s 138(3) as only providing a power to make " ancillary " orders in aid of the determination of the rights of a party to an estate or interest in the relevant land. However, neither expressly states that the power conferred by s 138(3) extends to proceedings which do not otherwise conform to those referred to in s 138(1) or (2). Thus at [20, 115.1] Professor Butt states that: "... the function of the section is to help implement orders [and I would add, declarations] made under some ground of substantive relief - to 'tidy up' the Register where the court has already determined rights." 127For this last mentioned proposition the learned author cites City of Canada Bay Council v F & D Bonaccorso Pty Limited & Others [2007] NSWCA 351; (2007) 71 NSWLR 424. In that case this Court (constituted by Mason P, Tobias JA and Young CJ in Eq), in a joint judgment, made the following relevant, obiter observations with respect to s 138: " [93] It was submitted that s 138 of the Real Property Act, which in proceedings for the recovery of any estate or interest in any land, relevantly empowers a court to make an ancillary order that the Registrar-General amend or cancel a folio of the Register, warranted a court of competent jurisdiction to order that the Register be rectified where, as in the present case, the third respondent had become registered pursuant to an invalid transfer. It is difficult to see how this can be so. Section 138 is a section of last resort: Hypec Electronics Pty Ltd (In Liq) v Registrar General [2005] NSWSC 1056 ; Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd [2006] NSWSC 341 at [36]. One of the reasons for this is that it is against the public interest to have the duplication of cancelled folios of the Register circulating in the community. [94] The traditional way in which s 138 is approached is that it is does not empower a court to make a primary order under the section to rectify the Register. What it does is to allow a court, where litigation is before it to recover land, to deal with the Register by way of an ancillary order to give effect to the grant of primary relief. In very early cases such as Re White (1887) 21 SALR 6, it was held that an order could only be made under s 138 where the court had already determined rights and it was necessary to give effect to that order by tidying up the Register. This approach fits in well with the use of the word " ancillary " in s 138(1). ... [96] It is true that in recent years courts have been more ready to make a direct order for rectification; see for example Andrew Garrett Wine Resorts v National Australia Bank Ltd (No 6) [2005] SASC 292; (2005) 92 SASR 419. Further, in cases of management schemes where areas of forests have been subdivided into a large number of tenancies in common, the section has been applied rather creatively; see for example Crocombe v Pine Forests of Australia Pty Ltd [2005] NSWSC 151; (2005) 219 ALR 692; Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd supra. [97] However, with respect, we consider that the primary judge in this case extended s 138 further than was justified. It is essentially an ancillary remedy to the granting of other substantive relief and we cannot agree, with respect, with his Honour's comment (at [85]) that the principle that the terms of a grant of power to a court should be read with full amplitude applies in the case of s 138. In any event, his Honour's use (at [84]) of s 138 was dependant upon his finding that as s 45(1) of the Local Government Act overrode the indefeasibility provisions of the Real Property Act , the proceedings by the first respondent were for the recovery of land within the meaning of s 138(1). There are a number of difficulties with this proposition, particularly as the first respondent was not claiming to itself recover the relevant land but to have it re-vested, as it were, in the appellant who opposed any such claim. However, given our conclusion on the indefeasibility issue, the point is academic but it is one to which attention should be drawn." 128It may be noted that Mogo was not referred to by this Court in Canada Bay . There is no clear statement by the Court in that case that s 138(3) may only be engaged if the relevant proceedings fall within those described in s 138(1) or (2).

[36]

(a) The primary judge's decision 133Sahab submitted that the Registrar-General was empowered to restore the right of way to the folio of the Register for 134 Sailors Bay under the power conferred by s 136(1) on the basis that the " recording " of the cancellation or expunging of the right of way from that folio had been made " in error " (s 136(1)(b)) or had been " wrongfully obtained " (s 136(1)(c)). 134The primary judge considered that there were a number of difficulties with this argument. At [84] he held that the authorities had expressed real limitations on the scope of s 136(1), citing the decision of Needham J in State Bank of New South Wales v Berowra Waters Holdings Pty Limited (1986) 4 NSWLR 398 at 404. In particular he referred to the finding of his Honour that the power to correct or cancel a recording made in error could not be more extensive than the power given by s 12(1)(d) to correct errors and omissions in the Register and that s 136 appeared to be restricted to cases where documents were sought by the Registrar-General from persons who should not be in possession of them. The primary judge also referred to the decision in Scallan v Registrar-General (1988) 12 NSWLR 514 at 520 where Young J (as he then was) said that s 136(1) could not be called into play in circumstances when the Registrar-General did not wish to avail himself of it. 135At [85] his Honour considered the 2001 decision of the Registrar-General could not be regarded as making " an error in the Register "; nor was that decision " wrongfully obtained ". In so finding he relied upon the observations of Needham J in Berowra Waters at 403 F-G. In the present case the fact that Mr Dockrill had placed an incorrect construction on behalf of Castle on the terms of the Middleton transfer did not mean that the result was an " error " in the Register; nor did it mean that a recording in the Register had been " wrongfully obtained ". 136In Berowra Waters Needham J was inclined to treat s 12(1)(d) as being restricted to departmental errors and omissions. The primary judge appears to have taken the view that the present case does not fall within that description. At [89] he referred to the observation of Hodgson CJ in Eq (as his Honour then was) in McGuinness v The Registrar General (1998) 44 NSWLR 61 at 69 C where he refused to interpret s 12(1)(d) as providing a broad power to correct errors recorded in the Register as to the correct beneficial ownership of property. The primary judge proceeded to quote Hodgson CJ in Eq in McGuiness where he said : "It seems to me that that approach would be inconsistent with the intention of the Act that the Register be conclusive." 137In our view, it is important to somewhat qualify this last-quoted statement. The intention of the Act is that the Register be conclusive, to the extent that the Act says it is. In fact, the Act expressly provides for exceptions to indefeasibility in s 42(1). The existence of these exceptions demonstrates that it is the intention of the Act that, to the extent of those exceptions, the Register is not to be conclusive.

[37]

(b) A consideration of Berowra Waters and Scallan 138In Berowra Waters the Registrar-General registered a discharge of mortgage in the approved form: see s 65. It stated that all moneys had been received in final satisfaction and discharge of the relevant mortgage and contained a certificate of correctness for the purpose of the Act. In fact the debt secured by the mortgage had not been repaid and the instrument of discharge had been mistakenly executed. 139The plaintiff mortgagee applied to the Registrar-General to cancel the registration of the discharge upon the ground that the recording of the purported discharge in the Register had been made in error. Reliance was placed on s 136(1)(b) as giving the Registrar-General the power to correct the Register, no third party rights having arisen. The mortgagor registered proprietor submitted that the Registrar-General had no power to take any action in relation to the registration of the discharge of its mortgage and that the Court had no power to order him to do so. 140At 402 Needham J held (as s 65(2) provided) that registration of the dealing (the form of discharge) destroyed the charge previously binding the land even assuming that the form of discharge was " invalid " or " ineffective " as the mortgagee contended. It followed that the mortgagor/registered proprietor held the land free of the mortgage unless the mortgagee could establish that it came within one of the exceptions to indefeasibility in s 42(1) or s 124 (now s 118). Although the proceedings were for the recovery of land, the Court had no power to order the Registrar-General to cancel the recording (of the discharge) because such proceedings were expressly barred by s 124 (s 118). 141Notwithstanding these conclusions Needham J made the following observations (at 403) with respect to the powers of the Registrar-General contained in ss 12(1)(d) and 136(1)(b) of the Act: "It is necessary, therefore, to consider the powers of the Registrar-General. These are contained in s 12(1)(d) and s 136(1)(b). The New Zealand equivalent of s 12(1)(d) was said by the Privy Council ( Frazer v Walker (at 581)) to be 'little more than a "slip" section and not of substantive importance'. In 1970, the section was amended by the addition to it of s 12(3), by paragraph (b) of which it is provided that when the Registrar-General exercises his power to correct errors and omissions in the Register, the correction shall not prejudice or affect a 'right accrued from a recording made in the Register before the correction'. It was suggested that the addition of s 12(3) made it clear that the Registrar-General was to have the power to make substantive corrections to the Register. However, it seems to me that one cannot conclude from the amendment that s 12(1)(d) was being expanded to such a degree that the Registrar-General 'upon such evidence as appears to him sufficient' was being empowered to breach the ramparts of indefeasibility in a manner prohibited to the Court by the Act. Section 12(3)(b) is, in my opinion, equivocal on the matter. My inclination is to treat s 12(1)(d) as being restricted to departmental errors and omissions, but I do not have to reach a final conclusion on the matter of its correct ambit, because it seems to me plain that the Act, as construed by the Privy Council and the High Court, would not permit the Registrar-General, in the exercise of powers of 'correction', to create a situation forbidden by the Act itself. By cancelling the notifications and restoring the mortgage he would be doing what is prohibited to the parties and the Court by s 124 [now s 118]." The " ramparts of indefeasibility " to which his Honour was referring were effected by the registration by the Registrar-General of the discharge of the relevant mortgage in accordance with s 65. 142Needham J then proceeded to consider whether there was in fact a relevant " error " in the Register. He said: "I am, in any event, not satisfied that the notification of the dealing created an error in the Register. The document lodged for registration was in proper form. It was incorrect in stating that the plaintiff had received 'all moneys in full satisfaction and discharge of the ... mortgage', but if the notification in the Register of a document in proper form (which in this case had the specific statutory effect given to it by s 65), registration of which is permitted by the Act, creates an error in the Register merely because it makes an incorrect statement, the Registrar-General would be empowered to correct such things as caveats making incorrect claims as to interest, mortgages containing incorrect recitals, and even, one would assume, forged transfers. I do not think that s 12(1)(d) goes so far." 143His Honour then held that the plaintiff mortgagee could not rely on s 136(1) as giving the Registrar-General the power to do the things which it sought for two reasons. First, the Registrar-General had made no error in recording the instrument of discharge which was a proper one to record. The second is relevant to the present case. His Honour said (at 404): "Secondly, s 136, despite the terms of s 136(1)(b), seems restricted to cases where documents are sought by the Registrar-General from persons who should not be in possession of them. Assuming one of the events set out in pars (a) to (d), the remedy is the giving of notice by the Registrar-General to the persons concerned to deliver up a certificate of title or duplicate registered dealing for the purpose of it being cancelled or corrected. As the Privy Council said, in Frazer v Walker (at 585), the New Zealand equivalent of s 136 gives 'significant and extensive' powers to the Registrar, but it does not seem to me that the power of correction or cancellation of a recording made in error could be more extensive than the power given by s 12(1)(d)." 144Sahab relied in particular upon the decision of Young J in Scallan . Unlike Needham J in Berowra Waters who had concentrated his observations upon s 136(1)(b), Scallan was concerned with the provisions of s 136(1)(c). In that case, the Registrar-General cancelled the registration of a mortgage granted eleven years previously after a request was lodged with him supported by various statutory declarations. One relevant declaration stated that probate of the will of the mortgagee had not been obtained. The Registrar-General's practice was to cancel the registration of a mortgage upon proof that the money secured had been repaid and the mortgagee had disappeared. However, it was established that probate had been obtained and a reseal had been granted by the Probate Division of the Supreme Court. Accordingly the mortgage was then reinstated by the Registrar-General. When notified, the mortgagee's executrix did not object to the land being vested in the registered proprietor free of the mortgage. The defendant then, in support solely of an application concerning costs, submitted that the Registrar-General had had no power to reinstate the mortgage. The plaintiffs, on the other hand, submitted that as the Registrar-General was " entitled " to remove the mortgage from the Register, he had accordingly made no " error " and thus was not entitled to " correct " what he had done in removing the mortgage from the title. The Registrar-General submitted that he had been misled into expunging the mortgage by the untrue statutory declaration that there was no legal personal representative of the mortgagee. He had accordingly expunged the mortgage in error which he was entitled to correct, there not having been any interest acquired in the meantime which would prevent him from doing so. 145Young J referred to the provisions of s 32(6), observing (at 518) that that provision left it to the Registrar-General to be satisfied of the matter in question. If the Registrar-General considered himself so satisfied then it did not matter for the purpose of exercising his power whether he had made some error in fact or law in becoming satisfied. In the instant case, his Honour held, the Registrar-General could have been satisfied that the mortgage had ceased to affect the land and, indeed, that was a correct view. Accordingly, when the Registrar-General removed the mortgage he was acting within the power given to him by s 32(6) of the Act and made no error in doing so. Apart from the case of fraud, the effect of expunging the registration of the mortgage would be to confer on the plaintiffs an indefeasible title freed from the mortgage. Berowra Waters was cited in support of this proposition. There being no error, there was nothing for the Registrar-General to correct under s 12(1)(d). 146His Honour then went on to consider whether s 136 had any application, and, in particular, s 136(1)(c). He noted that in Berowra Waters Needham J (at 404) had said: "(a) that s 136 appears restricted to cases where documents are sought by the Registrar-General from persons who should not be in possession of them; and (b) that that section did not give more extensive powers to the Registrar-General to correct or cancel than those conferred by s 12(1)(d)." 147Young J then referred to some New Zealand cases which had not been cited to Needham J but which, we note, related to the question of whether a recording in the Register had been " wrongfully obtained " (s 136(1)(c)) rather than the question as to whether the recording had been made " in error in the Register " (s 136(1)(b)). It was with the latter that Needham J was concerned. Young J then considered what was meant by the expression " wrongfully obtained " in s 136(1)(c). He noted the views of Professor Hinde in a New Zealand publication where the learned author had said that: "registrations would be wrongfully obtained if the person who applied for it was guilty of some intentional wrongful act (or negligent act) in the procuration of the registration". 148His Honour then continued in the following terms (omitting citations) at 519: "It would seem on the New Zealand authorities that registration is wrongfully obtained within the meaning of s 136 if it is obtained by an intentional act which is not rightful but which may fall short of 'fraud' within its meaning in the Real Property Act ... Falsely certifying to the Registrar-General that someone has witnessed a signature when one has not is an act which can bring about a wrongful registration... Nowadays, it may well be that such conduct will be held to be fraud at least in the situation where the registered proprietor is bound by the acts of his agent who was the witness who falsely certified... In the instant case the expunging of the mortgage was made as a result of an untrue statutory declaration which was furnished to the Registrar-General. The evidence does not enable me to say that this statutory declaration was proffered fraudulently. It may well have been that the person making it overlooked the fact that there had been a re-seal of probate many years ago and that the solicitor acting on the re-seal had no connection with the solicitors who drew the statutory declaration. Nonetheless the statutory declaration was untrue and the correspondence between the Registrar-General and the solicitors indicate that had it not been for this statutory declaration the Registrar-General would not have made the entry expunging the mortgage. Accordingly, in my view, there has been a case of registration wrongfully obtained within the meaning of s 136(1)(c) of the Act. There is a difference between a recording in the register which has been wrongfully obtained and one that is made in error." 149The next matter addressed by Young J related to the consequences of registration having been wrongfully obtained in the event that the Registrar-General decided that he should do something about it. After referring to the statement of Needham J in Berowra Waters (at 404) that "...s 136...seems restricted to cases where documents are sought by the Registrar-General from persons who should not be in possession of them", his Honour continued in the following terms (at 520): "I do not consider that this statement would necessarily preclude relief in a case where a mortgage had been expunged. A person should not be in possession of a document if a wrongful registration has occurred unless, of course, that registration has conferred on them an indefeasible title. It is also implicit in s 136 that not only can the Registrar get in the duplicate certificate of title, but, having got it in, he can make the same correction to it as he has made on the folio of the register. Further in the situation where the Registrar has been induced to register an instrument by a false certificate or statement, it is clear that the Registrar-General can be given an order to obtain the certificate so that he can restore the former state of the title: see, eg, District Land Registrar v Thompson [1922] NZLR 627. The problem in applying s 136 to the instant case is that the duplicate certificate at no stage was ever brought into the registry. It still shows the registration of the mortgage. The Registrar-General has no reason at all to call in the duplicate certificate of title and indeed does not want to do so because he considers that the duplicate and indeed the present state of the folio on the register contains what it should contain. As s 136 is predicated on the Registrar-General being satisfied that something has happened and that he should take action, it does not seem to me that the section can be called into play in circumstances where the Registrar-General does not wish to avail himself of it. Accordingly one is thrown back on s 12(1)(d) and s 32 namely the power to correct errors. As there was no error in expunging the mortgage, these powers cannot be employed. Thus the plaintiffs are entitled to the order vesting the property in them free of the mortgage." 150We note that an aspect of the decision in Scallan is that the power under s 136(1)(c) can be used to remove an entry that has conferred an indefeasible title. We were not requested to comment on the correctness of that aspect of Scallan , and we do not do so. We confine ourselves to the argument put, which accepted Scallan at face value.

[39]

(d) Section 136(1)(c) - "wrongfully obtained" 152Sahab submitted that the expunging or cancellation of the right of way by the 2001 decision was a "recording" in the Register that had been " wrongfully obtained " within the meaning of s 136(1)(c). It was contended that Young J in Scallan accepted that that provision was an express stand alone source of corrective power provided the Registrar-General was relevantly " satisfied ". It follows from s 3(1)(d) of the Act ([80] above) that an expungement from the Register is a "recording" . A significant difficulty in accepting that s 136(1)(c) is applicable in the present case is that the Registrar-General was clearly not " satisfied " that the 2001 decision had been " wrongfully obtained ". 153It may well be that had the Registrar-General been satisfied that the expunging of the right of way had been "wrongfully obtained" , he could have issued a notice in writing to Castle to produce the certificate of title relating to 134 Sailors Bay for the purpose of correcting it by reinstating the right of way. As we have observed, apparently the Registrar-General was not so satisfied. 154Further, even if the Registrar-General had the power to require Castle to produce the certificate of title under s 136(1) for the purpose of it being corrected, it is not necessarily the case that the Registrar-General had the power under that section to correct the Register. We acknowledge that if he had the power to require Castle to produce the certificate of title under s 136(1) for the purpose of it being corrected, it is arguable that he also had an implied power to make a corresponding correction to the relevant folios in the Register. However, we think the preferable view is that s 136(1) merely enables the Registrar-General to call in and correct the certificate of title or duplicate registered dealing, but that other powers such as s 12(1)(d), or a court order, must be relied on if the Registrar-General is to correct the Register itself. In Scallan at 520D, Young J said that it was implicit in s 136 that not only can the Registrar get in the duplicate certificate of title, but, having got it in, he can make the same correction to it as he had made to the folio of the Register. However, the converse does not follow. We consider the extent of the power under s 136 further at [167]-[172] below. 155The question therefore arises as to whether the Court has the power to review the Registrar-General's decision that he was not satisfied. Sahab submitted that in Scallan , Young J (at 520E) had held that the Registrar-General could be compelled by the Court to exercise the power under s 136(1) to restore the Register to its correct state. However, the statement in the passage from Young J's reasons relied upon does not support the proposition for which it is cited. 156In any event, the Supreme Court's power to make an order in the nature of mandamus requiring the Registrar-General to restore the former state of the title on the duplicate certificate of title, depends on whether the Registrar-General has failed to perform his duty. The Registrar-General's duty under s 136(1)(c) is in turn dependent upon the Registrar-General's satisfaction that a recording in the Register has been " wrongfully obtained ". In Scallan the Registrar-General was so satisfied: in the present case he was not. Young J expressly recognised that s 136 is predicated on the Registrar-General being satisfied that something has happened and that he should take action. However, his Honour made clear that where the Registrar-General did not wish to avail himself of the power in question, he could not be forced to do so; a fortiori when he did not form the necessary state of satisfaction. 157Sahab nevertheless submitted that the Court had power pursuant to s 65 of the SC Act to review the Registrar-General's lack of satisfaction that the expunging of the right of way from the relevant folio of the Register by the Register-General had been " wrongfully obtained ". It submitted that, as in Scallan , Mr Dockrill's statutory declaration on which the Registrar-General acted was untrue in that first, there was no " agreed event " which caused the right of way to, in effect, expire and, secondly, the transfer by Mr Davis of the dominant tenement (69 Strathallen) was irrelevant as the opening covenant was founded on a transfer by way of sale by the Middletons or their executors. 158It was thus contended that the lodging of the 2001 Request by Mr Dockrill accompanied by his untrue statutory declaration was an intentional act which was not " rightful ": Scallan at 519. 159Woodman & Nettle at [117.20] and [136.40] comment on the concept of " wrongfully obtained ". They opine that the expression would probably include the procuring of registration by a false certificate of correctness under s 117. Another example proffered by the learned authors is where a dealing, after execution, is substantially altered or added to by a person who has no authority to do so. 160In this context it is to be noted that in his letter of 13 November 2009 in response to the order of the primary judge of 26 October 2009 that he provide his reasons for the 2001 decision, the solicitor for the Registrar-General recorded that the latter had agreed with Mr Dockrill that the easement and covenant had expired by virtue of its own terms. Although ultimately the primary judge found, in our view correctly, that the easement had not expired, nevertheless it was a construction which was open to the Registrar-General to adopt. 161In a somewhat stretched sense it could be said that the asserted construction of the covenant by Mr Dockrill was " untrue " and thus on all fours with the statutory declaration held to have been " wrongfully obtained " in Scallan : see [148] above. However, notwithstanding the force of Young J's remarks in Scallan , we are not convinced that the procuring in the present case of the relevant recording by what ultimately turns out to be a mistaken, but arguably correct, interpretation of the terms of the subject covenants, can justifiably be categorised as " wrongful " in the relevant sense. 162Although we accept that the procuration need not be fraudulent or even tortious, it must be " wrongful ". As Young J points out in Scallan at 519, the New Zealand courts have construed " wrongful " as " not rightful ". However, in our respectful opinion, that may not be sufficient. Rather, the expression "wrongfully obtained " involves some element of fault or turpitude such as the making of a statement that has no reasonable foundation which the maker of the statement either knew or ought to have known. We do not consider that Mr Dockrill's statements in paragraph 1 of his statutory declaration in support of the 2001 Request as well as his statement of the nature of the Request can be so described. 163In any event, the section is only engaged if the Registrar-General is satisfied that the recording has been "wrongly obtained" . We accept that the Registrar-General's failure to be so satisfied can be reviewed, pursuant to s 65 of the SC Act or otherwise, in accordance with judicial review principles. For example, the Registrar-General's failure to be so satisfied can be reviewed where that failure is Wednesbury unreasonable. For the reasons referred to at [161] above, no such unreasonableness has been demonstrated. It was not contended that any ground other than Wednesbury unreasonableness would justify judicial review of the 2001 decision. 164We would therefore reject Sahab's submissions based on s 136(1)(c).

[41]

(ii) Authority and Commentary on Sections 12(1)(d) and 136(1)(b) 168Professor Butt, ibid, notes (at [20 108]) that in practice the Registrar-General exercised the power under s 12(1)(d) only to correct obvious clerical and administrative errors and that this accorded with a long-settled judicial view on the limits of the power. It was not the Registrar-General's role, under the guise of correcting the Register, to adjudicate conflicting claims to land or an interest therein: cf Berowra Waters at 403; Quach v Marrickville Municipal Council (No 1) (1990) 22 NSWLR 55 at 60; 169Professor Butt nevertheless accepts that subject to such considerations, the Registrar-General not only had a power but also a duty to correct errors in the Register since a system that depended so completely on the Register could not function properly unless it was accurate, a proposition emphasised repeatedly by Sahab in its submissions. But acceptance of that proposition does not confer upon the Registrar-General a power or a duty to correct errors of any kind. Rather, it is to deal with situations such as where, in an example referred to by Professor Butt, a dealing has been erroneously registered in the face of a caveat which should have prevented its registration, in which event the Registrar-General may, and should, correct the Register by cancelling the registration: FNCB-Waltons Finance Limited v Crest Realty Pty Limited and Others (1977) 10 NSWLR 621 at 626-628. 170At [20 109] Professor Butt considers that s 12(1)(d) was complemented by s 136(1)(b). The purpose of the latter was to allow the certificate of title to be brought into line with the corrected Register. It would be surprising, the learned author observes, if the powers under s 136(1) were any wider than the power conferred by s 12(1)(d), a proposition supported by Berowra . Similarly, Woodman & Nettle (at [136.20]) consider that the two provisions should be read together so that where error is discovered in the Register, the Registrar-General should exercise the power under s 12(1)(d) to amend the error, and then exercise the power under s 136(1) to call in the certificate of title or duplicate registered dealing to make a corresponding correction on it. The learned authors recognise that there was no express compulsion on the Registrar-General to do either but that the strong implication from the Act is that he should do both as such was the emphasis on the folio of the Register as the sole criterion of indefeasibility. 171However all three authors express the view that whatever the extent of the power, it is clearly restricted to a power to call in and correct the certificate of title or duplicate registered dealing. 172Though it does not arise in this case, we would not want to foreclose the possibility that if the Registrar-General had decided to make an alteration to the Register, s 136 could not be used to call in a certificate of title or dealing to make it conform to the state that the Register-General had decided the Register should be in. On that view, the purpose of s 136 is to enable the certificate of title or dealing to be called in so that, ultimately, it conforms with the Register, regardless of the temporal order in which the Register and the certificate of title or other dealing are corrected. Subject to that possibility, there is no power to invoke s 136(1) where the relevant entry on the certificate of title in fact reflects the comparable entry in the folio of the Register: Scallan at 520. 173In Quach v Marrickville Municipal Council (No 2) (1990) 22 NSWLR 65 at 71 Young J noted that in Quach (No 1) he had said that the word " error " in the then s 135 should mean much the same as it does in s 12(1)(d), namely, some type of administrative error in the Registry. It was submitted in Quach (No 2) that that was too narrow a view of the word and it should apply to situations other than administrative or departmental errors. His Honour declined " to move far away " from the position he took in Quach (No 1) observing (at 71): "Throughout the history of the Torrens statute, the word 'error' has been closely associated with an error made in the registration process rather than something mistakenly happening further along the line." 174At 71F his Honour confirmed that the word " error " in the then s 135 had the more restricted meaning which it had in other sections of the Act such as s 12(1)(d). 175Quach is not directly applicable in the present case. The 1990 version of s 135 with which Quach was concerned (which Young J set out at 60) is not an analogue of the present s 136(1)(b). Importantly, the then s 135 was a section that identified circumstances in which a registered proprietor could not have his title questioned. Such circumstances included that his vendor or mortgagor was registered as proprietor, or procured the registration of the transfer to the registered proprietor, through error, or may have derived [presumably, his title] from or through a person registered as proprietor through error, "and this whether such .. error shall consist in wrong description of the boundaries or of the parcels of any land or otherwise howsoever" . 176As well, the factual situation with which Quach was concerned was not closely analogous to the present. In Quach , a 1908 plan identified a strip of land 4 feet wide as a drainage reserve. The Council had acquired the fee simple in the strip of land through the operation of a provision of the Local Government Act 1919 that came into operation in 1920. The certificate of title concerning the land had never shown the Council as having any rights concerning the drainage reserve. The plaintiffs acquired the land in 1956, and were issued a fresh certificate of title concerning it. They occupied the whole of the land in their certificate of title, including the site of the drainage reserve, and paid rates on it, continually thereafter. 177The question at issue concerned whether the Council was entitled to become registered proprietor of the drainage reserve, and to an order that the plaintiffs deliver up their certificate of title to the Registrar-General to enable registration of the Council 's title. Young J held that the Council had lost its title by prescription. The question of the scope of " error" in s 135 arose because the section contemplated that error might arise through " wrong description of the boundaries or of the parcels of any land" . Young J recognised, at 71B , that "When one thinks of error in terms of wrong description of boundaries, one is moving out of the field where there is merely something lacking from the register book which would be expected to be in it." 178His Honour's reason why, in the case before him, there was no "error" was because: "... there was no error made in the registry office with respect to the noting of the estate of the Council because it never applied to be registered. There was an error in including in the certificate of title issued to the plaintiffs the 4 foot strip of land without realising that it had vested in the Council because of the 1908 drainage reservation. Again, this is not an error whereby the registration process was at fault; it was merely a matter of the Registrar-General registering documents which prima facie were in order." 179By comparison, as we shall demonstrate, the expungement of the right of way in the present case is not "merely a matter of the Registrar-General registering documents which prima facie were in order". 180At [20 113] Professor Butt observes that an " error " assumes some disconformity between the recording in the Register and the instrument on which it is based. In particular, he advances the proposition that there is no power to correct an entry in the Register which the Registrar-General has accurately made on the basis of information provided to him or her but which later proves to be false since in such a case there is no clerical or administrative error: Professor Butt cites Quach (No 2) at 71 in support of this proposition.

[42]

(iii) Consideration of Section 12(1)(d) and Section 136(1)(b) 181If Sahab were correct in saying that both s 12(1)(d) and s 136(1)(b) depended on whether the Registrar-General's Department had made an error in the ordinary sense of that word, we would conclude that there was an error made in the Department in removing the notation of the right of way from the relevant folios of the Register. Its removal would be an error in that sense, because it meant that the title excluded a right of way that up to the moment of registration, still applied to the land. This particular error, to which the Department made an operative causal contribution, can be contrasted with the situation in Berowra Waters where the Department made no mistake at all, but merely registered, in the usual course, an apparently valid document it was given without needing to make any decision about the document beyond the fact that it appeared to be in registrable form. Further, the document that was registered in Berowra Waters was one that, when registered, would itself be an effective act in the law. 182By contrast, here the 2001 Request was in its own terms of no effect when registered. That emphasises the causal efficacy of the Registrar-General's decision to remove the notifications. While it is true in the present case that the Registrar-General was led into the error he made, there was still an error, in the ordinary sense of the word, within the Department in acting on the 2001 Request. Subject to the provisions of the Act with respect to indefeasibility, there does not seem to be any good reason of policy or statutory construction why accidental errors arising in the Department, like leaving out an easement by mistake, can be corrected under section 12(1)(d) but not decisions where an officer of the Department makes a deliberate decision that turns out to be wrong, or adopts an inadequate procedure (like removing an easement for no better reason than that the then present registered proprietor did not object, without the Registrar-General applying his own mind to the question). 183However, 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. 184Section 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. 185However, 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. 186Re N Jobson and the Real Property Act 1900 (1950) 51 SR (NSW) 76 is a case that Needham J referred to in Berowra Waters at 404 as being: "a clear case in which the power of correction is called for. The error had occurred in the office of the Registrar-General, and he was held entitled to correct the entries. It was a 'slip'". 187The situation in Jobson was that the Registrar-General had removed the notification of a caveat from a certificate of title, when the caveat had not in fact lapsed. Roper CJ in Eq said at 77: "It is clear that the entry of the notification that the applicant's caveat had lapsed was erroneous because the notification was untrue, the caveat not having lapsed at that time." Removal of the caveat was clearly an error, in the ordinary sense of that word. Reinstatement of the caveat was permissible, consistently with indefeasibility, because whether or not there is a caveat registered on the title to a particular parcel of land has no impact on who has an indefeasible title, concerning what estates or interests, in that parcel of land. 188Likewise in James v The Registrar-General (1967) 69 SR (NSW) 361 an easement had been created upon the transfer of some land. The Registrar-General noted it on the certificate of title of both the dominant and the servient tenement. However, when a new certificate of title later issued for the servient tenement it contained no notation of the easement. Mrs James thereafter purchased the servient tenement, without notification of the existence of the easement. When her mortgagee produced the certificate of title to obtain registration of its mortgage, the Registrar-General entered a notification of the easement on the certificate of title. Mrs James initiated proceedings under the then s 121, calling on the Registrar-General to show cause why an order should not be made directing him to cancel the notification. The Full Court held that the Registrar-General had been justified in adding the easement to her certificate of title. That situation, where Mrs James was a bona fide purchaser without notice, is a fortiori the present case. There is a dictum of Wallace P at 367 where he said: "I consider that the correction of the omission of a duly created easement would normally be within the competence of the Registrar-General". 189At 369 the learned President also observed: "The methods of extinguishing (or modifying) an easement are well known, and I know of no reason why a duly created easement should be extinguished merely because a notification thereof on the certificate of the servient tenement is not made or is omitted as against either the original owner of the dominant tenement or a purchaser for value from such owner." 190The omission of the easement in James was, in the ordinary sense of the word, an error - it seems to have been an accidental clerical error. An important part of the reasoning of the judges in the majority (Wallace P and Jacobs JA) was that a relevant factor in why the then s 12(d) could be used to correct that error was that the then s 42(b) excepted from the indefeasibility of a registered proprietor the case of an omission of any right of way or other easement created in or existing upon any land. Again, the scope of the power of correction was ascertained by reference to whether the correction of the error would impinge upon a right to which indefeasibility attached. 191In Berowra Waters , even though no officer of the Department had made any error, it could still be said that there was an " error in the Register" in the ordinary sense of that expression, because the Register failed to show a mortgage that had been granted over the land in question and in truth had not been discharged. However, precisely because correction of that " error" would impinge upon a right to which indefeasibility attached, Needham J did not accept that there was an " error in the Register" within the meaning of s 12(1)(d). 192We observe that, subject to another question of construction that we mention at [198] below, regarding the removal of the right of way in the present case as an "error" within section 12(1)(d) would be consistent not only with the explanation we have just given, but also with the advice of the Privy Council in Frazer v Walker [1967] AC 569. In that case a somewhat similar New Zealand provision was regarded by their Lordships (at 581) as "little more than a 'slip' section and not of substantive importance" . In the present case there had been a slip by the Department, and its correction under s 12(1)(d) would not be of substantive importance because Castle did not thereby acquire an indefeasible title to 134 Sailors Bay free from the right of way as explained below at [251]-[274]. 193Even 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. 194However, it is not necessary at this stage of these already over-lengthy reasons to decide whether, if the Registrar-General were minded to do so, he could use s 136(1)(b) even for the limited purpose of calling in the duplicate certificate of title in the present case. That is because s 136(1) can only be used by the Registrar-General if the Registrar-General is satisfied that, relevantly, the recording has been "made in error " in the Register. As we have already noted, the 2008 decision was clearly one in respect of which the Registrar-General was not satisfied that a recording in the Register had been made in error. 195In this context it was submitted by Sahab that there was no evidence to suggest that when he made the 2001 decision the Registrar-General actually considered the terms of the right of way and independently considered whether it had or had not expired. That this was so was supported by the fact that Mr Dockrill had erred in asserting that it was the sale of 69 Strathallen by Mr Davis that brought the right of way to an end rather than a sale by the Middletons or their executors. What evidence there was simply indicated that the 2001 Request was granted merely because the Howards did not object. We take it that this submission was made on the implicit basis that a recording had been "made in error" if it was made as a result of the Registrar-General following an incorrect process. 196We have already referred (at [42] above) to the Registrar-General's solicitor's letter of 13 November 2009 enclosing a copy of the minute which, so it was asserted, recorded the Registrar-General's reasons for acceding to Castle's request to expunge the right of way from the Register. The reason given was that no objection was received to the application, it being added that the notice was sent because the Register-General agreed with Mr Dockrill's construction of the terms of the right of way. We see no reason why it should be inferred that the Registrar-General failed in his duty to properly consider the 2001 Request on its merits. We are not persuaded that there is any power of judicial review available to the Court under s 65 SC Act that would enable the Court to require the Registrar-General to use his power under s 136(1) to correct an error which the Registrar-General, by his 2008 decision, was clearly satisfied had not occurred. 197We would therefore reject Sahab's submissions based on s 136(1)(b). 198It is not necessary for us to decide whether the concept of "error" in s 12(1)(d) could be engaged even if Sahab's submissions on s 136(1)(b) were rejected. This is because we are of the view, as appears below, that Sahab is successful on the "omission" limb of s 12(1)(d). It might be the case that the scope of " error in the Register" in s 12(1)(d) is itself limited, given the context in which it appears, to errors that do not consist of mere omissions, but it is unnecessary to decide whether that is so. It is likewise unnecessary to decide the related question of whether, on a proper construction of s 12(1)(d), making an expungement from the Register by reason of an erroneous decision in the Department has the effect that the absence of the expunged entry is an "error in the Register" .

[45]

(a) The primary judge's decision 202At [91] ff of his reasons the primary judge noted that Sahab relied upon s 122(4)(b) as providing power for the Court to review the 2001 decision and order that the Registrar-General reinstate the right of way to the relevant folios of the Register. We have set out the relevant provisions of ss 121 and 122 at [91] above. They were the subject of the first judgment. Section 122(4)(b) empowers the Court to order that the Registrar-General take such action in relation to the matters raised by the application (for review) that it considers appropriate "being action that the Registrar-General could, but for the order, have taken" . 203The primary judge rejected Sahab's reliance upon s 122(4)(b) for the following reasons (at [92]-[95]): (a) the result of the 2001 decision was to give indefeasible title to a fee simple in 134 Sailors Bay without the burden of the right of way granted by the Middleton transfer. Section 122 cannot be used to alter the Register in a way that would conflict with the paramount status of the Register envisaged by s 42 of the Act; (b) the authorities with respect to s 122 establish that it cannot be invoked to compel the Registrar-General to exercise his discretion but is only available where he refuses to perform a duty; (c) s 122 is concerned only with performance of presently identifiable duties whereas the 2001 decision related to functions and powers exercised " long ago "; (d) there was no statutory requirement that compelled the Registrar-General to act in relation to the 2001 decision. Although reference was made to a passage in the judgment of Windeyer J in Pirie v Registrar General [1962] HCA 58; 109 CLR 619 at 644 that "... the Registrar-General whose duty it is to put no unauthorized entries in the register book is under a corresponding duty to remove any that ought not to be there", whatever can be said of the 2001 decision, the entry in the Register that resulted from it was not " unauthorised "; (e) an order can be made under s 122(4)(b) addressed to the Registrar-General only in respect of " action that the Registrar-General could but for the order have taken ". In the present case, neither s 12(1)(d) nor s 136(1) authorised the taking of such action.

[46]

(b) The submissions of the parties 204On appeal, Sahab submitted that the concluding words of s 122(4), namely, "and may make such further or other orders as the Supreme Court considers appropriate" , also empowered the Court to make an order that it might otherwise not have been able to make pursuant to s 122(4)(b). On this basis, Sahab submitted that s 122(4) was a stand-alone source of power for the Court to review the 2001 decision and order that the Registrar-General reinstate the right of way to the relevant folios of the Register. All that was required was a decision by the Registrar-General with which the relevant applicant was dissatisfied. That issue had been determined by the primary judge in the first judgment from which there was no appeal. 205Sahab further asserted, and Castle and the Registrar-General denied, that the 2008 decision fell within one or all of sub-paragraphs (a), (b) and (c) of s 121(1), this being a necessary condition precedent to the engaging of s 122(1). It is convenient to repeat those provisions: "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..." 206We incline to the view that the 2001 decision was a decision within the meaning of, collectively, s 121(1)(a) and (b). At the least, it involved a decision to issue certificates of title containing no mention of the right of way and so falls within s 121(1)(b). 207It is possible that the decision was not one which fell within the meaning of s 121(1)(c). This may be so notwithstanding that, as we have held above at [55], the Registrar-General's 2001 decision to remove the right of way was empowered by s 32(6). However, that provision creates a power but does not, in express terms, "require" its exercise in any particular case. Accordingly, the decision may not fall within s 121(1)(c). Barrett J tentatively expressed support for this view in St Abanoub v Registrar-General [2002] NSWSC 615 at [37]-[38]. The alternative view is that the correct construction of the phrase "any function or duty which... is required to be exercised or performed by the Registrar-General" refers to functions or duties which can only be performed by the Registrar-General. This construction is supported by the consideration that the Act imposes relatively few mandatory functions or duties upon the Registrar-General. 208However, we are not required to resolve this issue because even if the decision did not fall within s 121(1)(c), it would be sufficient if it fell within s 121(1)(a) or (b). 209Furthermore, it is unnecessary for us to express a concluded opinion on these issues. This is because, as is now explained, Castle and the Registrar-General are estopped from denying that the 2001 decision did not fall within one or more of s 121(1)(a), (b) or (c).

[47]

(c) A question of issue estoppel arises 210During the course of argument on the appeal the question arose to whether it was open to Castle and/or the Registrar-General to argue that s 121(1) was not engaged for the purposes of s 122(1). This was because Sahab had applied to the Registrar-General pursuant to s 121(1) for a copy of the Registrar-General's reasons for the 2001 decision. That application had been denied and so by the May notice, Sahab applied to the Court for an order "pursuant to s 121(2) of the Act or s 65 of the SC Act or otherwise pursuant to any other power available to the Court" that the Registrar-General provide his reasons for the 2001 decision. It was this motion that was the subject of the first judgment. It is clear from the terms of that judgment that it was accepted that Sahab was seeking to engage the Court's power under s 122(1) to review the Registrar-General's decision to refuse to provide his reasons for the 2001 decision. 211Although the Court's power under s 122(1) is only engaged in respect of a decision referred to in s 121(1) being a decision referred to in sub-paragraph (a) or (b) or (c), it does not appear that that issue assumed a role in the proceedings on the May motion. Thus at [34] of the first judgment, the primary judge said: "The issues raised by Sahab's motion are first whether Sahab is 'a person who is dissatisfied with the Registrar-General's decision'. Secondary issues are whether by the 2001 decision the Registrar-General either decided within paragraph s 121(1)(a) 'to have any dealing registered or recorded' or within paragraph s 121(1)(c) decided to exercise or perform in relation to land 'any function or duty which, by this Act, is required to be exercised or performed by the Registrar-General'. The Registrar-General did not contest these secondary issues in written or oral submissions for the purposes of the motion. Aspects of these secondary questions will need to be decided when the Court comes to consider the grant of principal relief in the proceedings. The first issue requires construction of s 121 of the Act." [emphasis added] 212The question of construction of s 121 which was then litigated was confined to whether Sahab was a person " dissatisfied " with the Registrar-General's decision within the meaning of the chapeau to s 121(1). No submissions were apparently advanced to the Court either by the Registrar-General or by Castle (who adopted the Registrar-General's submissions and did not advance separate written submissions on the motion) as to whether the 2001 decision fell within sub-paragraphs (a), (b) or (c) of s 121(1). 213Although it would appear that the primary judge contemplated that whether the 2001 decision fell within sub-paragraphs (a) or (c) of s 121(1) would need to be decided when the Court came to consider the grant of relief in the principal proceedings, this does not seem to have occurred. Subject to one matter, it was not suggested in argument that there were any written submissions provided to his Honour relating to this issue and we were not referred to any part of the transcript of the oral argument at first instance which raised the issue. The only reference in the parties' written submissions on the appeal to this issue was the bare assertion at paragraph 56 of Sahab's submissions in chief that "the action sought in these proceedings and by the [2008 Request] comes within RPA sections 121(1)(a)-(c) and 122". There was no response to this assertion in the written submissions of Castle or the Registrar-General. 214Finally, there is nothing in his Honour's reasons in the second judgment at [91]-[95] dealing with Sahab's reliance upon s 122(4) that purports to deal with these so-called secondary issues. 215In the foregoing circumstances, and noting that neither the Registrar-General nor Castle appealed against the orders made by his Honour on 26 October 2009 that the Registrar-General provide Sahab with his reasons for the 2001 decision, the question arises as to whether Castle (and the Registrar-General) are now estopped from denying that at least the 2001 decision fell within s 121(1). In this respect the orders made by his Honour on 26 October 2009 created an estoppel with respect not only to the precise issue which was decided (namely, whether Sahab was a person "dissatisfied" within the meaning of the chapeau to s 121(1)) but also with respect to all the elements which were necessary to found the Court's power to make the order it did pursuant to s 122: Powercell Pty Limited v Cuzeno Pty Limited [2003] NSWSC 600; (2003) 11 BPR 21,385 at [40]-[58] per Campbell J (as his Honour then was). His Honour's decision was upheld on appeal without the line of authority which established the proposition to which we have referred being challenged: Powercell Pty Limited v Cuzeno Pty Limited [2004] NSWCA 51; (2004) 11 BPR 21,429. An application for special leave to appeal was refused: Powercell Pty Ltd v Cuzeno Pty Ltd [2005] HCA Trans 94. 216Thus in Powercell Campbell J discussed in detail the principles applicable to issue estoppel as well as the leading authorities on that subject. Relevantly for present purposes, at [46] his Honour referred to the case law which assisted an understanding of the statement of Dixon J in Blair v Curran [1939] HCA 23; 62 CLR 464 at 531-3 that a judicial determination includes: "those matters which the prior judgment ... necessarily established as the legal foundation or justification of its conclusion". 217At [57] and [58] his Honour concluded: "[57] It will be seen from these cases that an issue estoppel can arise even in relation to a point which was not actually decided in the earlier decision. When Dixon J in Blair v Curran (1939) 62 CLR at 532 said: '... the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork on the decision itself, though not then directly the point in issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous', the second sentence just quoted was intended to supplement and expand the first sentence quoted - there can be an issue estoppel concerning matters which ' necessarily ... assert that the former decision was erroneous ,' even if those matters were not actually decided in the first decision. [58] It will also be seen from these cases that a proper way of ascertaining what is 'the legal foundation or justification' for a court's decision upholding the claim of a plaintiff in the earlier proceeding, is to identify those elements which must be proved, as a matter of law, before a claim of that type succeeds. If a court has decided that the claim succeeds, then it can be inferred that it decided that each of those elements is present." 218In our view it must be the case that in order for the primary judge to have validly made an order pursuant to s 122(1) that the Registrar-General perform his duty to provide Sahab with his reasons for the 2001 decision, it was necessary that that decision be one which fell within one or more of sub-paragraphs (a), (b) or (c) of s 121(1). That was one element which it was necessary for Sahab to establish, as a matter of law, before it could successfully engage s 122(1) as it did. In our opinion it follows that, having decided that Sahab was entitled to the orders sought in the May motion, it can and should be inferred that the Court decided that that element was present even if it was neither the subject of argument nor express decision. 219Accordingly, in our view Castle and the Registrar-General are estopped from denying that the 2001 decision did not fall within one or more of sub-paragraphs (a), (b) or (c) of s 121(1). We would add, perhaps unnecessarily, that we are fortified in this view given that the issue was, apparently, not argued before the primary judge and formed no part of his decision in the second judgment.

[48]

(d) Application of s 122(1) 220As Castle and the Registrar-General are estopped from denying that the 2001 decision did not fall within one or more of s 121(1)(a), (b) or (c), the precondition for operation of s 122(1) is satisfied. 221The remaining issues are whether the power of review in s 122 is wide enough to permit the review of the Registrar-General's decision and whether the orders which can be made under s 122(4) following a review are wide enough to permit the correction of the omission from the Register to be ordered. Subject to the issue of indefeasibility referred to below, it is common ground that that decision was wrong in the sense that the right of way was subsisting at the time of the 2001 decision as well as at the present time. 222Section 122(1) confers jurisdiction on the Supreme Court to conduct a "review of the decision" . This jurisdiction to conduct a "review" was first conferred on the Court by the Real Property Amendment (Compensation) Act 2000. In its ordinary sense, " review" of a decision involves examining it. When it is a court that is conducting a " review" of a decision, the " review" relates to the correctness of the decision. There is an established usage of the term " judicial review" for the process a superior court engages in as an inheritor of the prerogative powers of the Court of Kings Bench, and the purpose and limit of that type of " judicial review" is to keep the decisions of administrators and inferior tribunals within the bounds legally open to them. However, it would be redundant for s 122 to confer on the Supreme Court a power to conduct such a review, as the Court has had it since 1823. Further, the remedies that s 122(4) states are available to the Court make clear that in conducting a review under s 122 the Supreme Court is to be in a position to make the decision that, upon review, the Court decides the Registrar-General could and should have made. 223While the scope of a "review" under one statutory regime is not necessarily the same as under another, in other contexts a power to conduct a "review" of a decision has been held to confer wider powers than are conferred when there is an appeal to the Court of Appeal from a decision. For example, see Cook v Midpart Pty Ltd trading as McDonald's Forster [2008] NSWCA 151 at [10]; Sapina v Coles Myer Ltd [2009] NSWCA 71, NSW Police Force v Winter [2011] NSWCA 330 at [19]-[24] concerning the power of a Presidential member of the Workers Compensation Commission under s 352 Workplace Injury Management and Workers Compensation Act 1988 to conduct an appeal "by way of review" of the decision of an Arbitrator in the Commission; Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [6]-[8], [52] concerning the power of the Court of Appeal under UCPR 49.19 to review the decision of a Registrar (though noting that special considerations are involved concerning the review of a decision relating to a discretionary matter of practice and procedure). The power of review conferred under s 352 Workplace Injury Management and Workers Compensation Act has been held to require the person conducting the review to " decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit " : State Transport Authority of New South Wales v Chemler [2007] NSWCA 249 at [30] per Spigelman CJ, Basten JA and Bryson AJA agreeing. In that statement of principle, the expression " true and correct view" should be understood as synonymous with "preferable or correct decision" : Sapina v Coles Myer Ltd [2009] NSWCA 71 at [56]. 224We see nothing in the language, context or purpose of s 122 to lead to a different view concerning s 122. Accordingly, we are of the opinion that s 122(1) confers on the Supreme Court the power to conduct a merits-based review of the decision of the Registrar-General. The correct view in the present case is that the right of way was subsisting at the time of the 2001 decision which was wrong when it apparently assumed that it was not. 225The trial judge held at [93] of his reasons that s 122 cannot be invoked to compel the Registrar-General to exercise a discretion but is available where the Registrar-General refuses to perform a duty, citing Ex parte Gallagher (1908) 8 SR (NSW) 230 in support of this proposition. That case concerned an application for a writ of mandamus. The applicant sought to compel the Registrar-General to summon one Miller to deliver up a Crown grant for the purpose of being cancelled. The applicant had selected the land in question in 1877, and fulfilled conditions attached to the selection until 1888, when he left the State. By 1907, when he returned to the State, letters of administration of the applicant's estate had been granted on the basis that he was presumed to be dead, the land had developed into a freehold, and a Crown grant had issued to Miller as a bona fide purchaser for value. The power that the applicant sought to have the court compel the Registrar-General exercise was a power under s 136. That power was conferred in the following terms: "if it appears to the satisfaction of the Registrar-General ... he may summon the person ..." . Sir Frederick Darley CJ held that the court could not interfere with the Registrar-General's discretion, and even if it could , this was not a case in which the court should interfere. The circumstances in which mandamus is available against a public officeholder are not determinative of the scope of the power that the Supreme Court has when exercising a statutory power to review, such as that created by s 122. 226Another reason that the trial judge provided at [93] for declining to review the 2001 decision under s 122 was that: "In relation to the 2001 decision, the Registrar General's functions and powers have been exercised long ago and s 122 is concerned with the performance of present identifiable duties." 227There is nothing in the terms of s 122 that makes it unavailable concerning "functions and powers [that] have been exercised long ago" . There may be some circumstances, particularly (though not necessarily only) when rights of third parties have intervened, when lapse of time makes it inappropriate in the circumstances of the particular case for the court to provide a remedy. However, lapse of time alone does not remove the court's power to review.

[49]

(e) Application of s 122(4)(b) 228However, even if the Court conducts a "review" of the Registrar-General's 2001 decision under s 122, the relevant order which the Court could make is limited by s 122(4)(b). 229After reviewing the Registrar-General's decision, it was only open to the Court to make an order requiring the Registrar-General to reinstate the right of way on the relevant folios of the Register if the Registrar-General "could, but for the order, have taken" that action (s 122(4)(b)). The possible sources of the Registrar-General's power to reinstate the right of way were ss 12(1)(d) and 136. 230As we concluded at [154] and for the reasons that we have already articulated, the Registrar-General had no power pursuant to s 136 to correct the Register. 231However, as we foreshadowed at [200] and will explain further at [274], s 12(1)(d) empowered the Registrar-General to correct the removal of the right of way when requested to do so in 2008. Therefore, the correction was an action that the Registrar-General "could, but for the order" have taken. Accordingly, the precondition for the Court to make an order under s 122(4)(b) was satisfied. Thus the Court could review the 2001 decision pursuant to s 122(1) and make an order that the Registrar-General correct the omission pursuant to s 122(4)(b). 232We recognise that the power under s 12(1)(d) is conferred in terms that make it exercisable "upon such evidence as appears to the Registrar-General sufficient " . However, when the Court is exercising a power of review under s 122, the corresponding precondition is that there be evidence that appears to the Court sufficient. The power of the Court to review would be stultified if, on such a review, the Court's powers were constrained by whether the evidence appeared sufficient to the Registrar-General, rather than to the Court. 233Sahab further contended that it could obtain such an order pursuant to the coda to s 122(4), being the power to "make such further or other orders as the Supreme Court considers appropriate." Castle submitted that those words did not permit the Court to make an order which it could not make pursuant to s 122(4)(b) because the condition precedent to making that order under that sub-paragraph was not satisfied. Our provisional view is that the coda to s 122(4) does not provide a broader power than that contained in s 122(4)(b). However, since we have decided that the Court did have power under s 122(4)(b), it is not necessary to finally decide the issue. 234It follows from the foregoing that in our view s 122 does avail Sahab and the primary judge was in error in declining to order correction of the Register. 235One of the orders that Sahab claimed in its Amended Summons was an order that Castle deliver up or cause to be delivered up the certificate of title for the servient tenement for the purpose of it being amended. We have already concluded that, when the Registrar-General was deciding the matter for himself, he had no power pursuant to s 136 to require the certificate of title to be delivered up because he was not satisfied that a recording had been made in error in the Register. However, when the Court is conducting a review under s 122, if it is satisfied that a recording has been made in error in the Register, the Court can order that the certificate of title or any relevant duplicate registered dealing be delivered up for correction. 236When s 3(1)(d) of the Act provides that a reference to recording includes a reference to cancelling or deleting, the reasons that we have already given demonstrate that we are satisfied that, when the right of way was expunged from the two relevant certificates of title, a recording was made in error in the Register. Thus, the Court has power, pursuant to s 122 combined with s 136(1)(b), to order that the certificate of title to be delivered up for correction. Such an order should be made.

[50]

Castle's indefeasibility argument 237We have referred at [133] above to Castle and the Registrar-General's reliance on s 118 and, generally, on its claim that upon the expunging from the relevant folios of the Register of the right of way, Castle thereupon obtained an indefeasible title to 134 Sailors Bay freed from its burden and that this was a complete answer to all of Sahab's claims. 238It is convenient to again record the chapeau of s 118(1), the exceptions to it not being relevant: "Proceedings for the possession or recovery of land do not lie against the registered proprietor of the land, except as follows:" 239As noted by Woodman & Nettle, ibid at [118.20], s 118 complements ss 42 and 45 of the Act by protecting a registered proprietor against proceedings for possession or recovery of land. According to those learned authors, the section repeats, in a negative way, the positive enactment of s 42 and is a corollary to it. Nevertheless, the section must be considered in the context of the rest of the Act including s 138. Furthermore it is applicable only if Castle obtained an indefeasible title freed from the right of way on the 2001 decision taking effect. In this respect Castle submitted that it did obtain such a title. 240As Professor Butt points out (ibid at [20 12]), the fundamental premise of the Torrens system of title is the conclusiveness of the Register. It is both conclusive and exhaustive. Someone dealing with the registered proprietor in good faith and for value obtains an absolute and indefeasible title notwithstanding that that title may be defective. 241After referring to the well known statement of Barwick CJ in Breskvar v Wall [1971] HCA 70; 126 CLR 376 at 384 that the Torrens system is a system of " title by registration " as distinct from a system of " registration of title ", Professor Butt continues: "Title under the Torrens system derives from Registrar-General's act in registering an instrument - the act of a statutory official acting under statutory authority - not from the parties' act in executing the instrument. ... Registration is the source of title - it confers on the person registered as proprietor a title that did not previously exist: Peldan v Anderson (2006) 227 CLR 217 at [20]." 242For a recent statement of the principle in this Court, see Perpetual Trustees Victoria Ltd v English [2010] NSWCA 32; (2010) 14 BPR 27,339 at [7] per Sackville AJA, with whom Allsop P and Campbell JA agreed. As to recent statements of the paramountcy of the Register in the High Court, see: Halloran v Minister Administering National Parks and Wildlife Act 1974 [2006] HCA 3; 229 CLR 545 at [35]; Black v Garnock [2007] HCA 31; 230 CLR 438 at [75]; Queensland Premier Mines Pty Ltd v French [2007] HCA 53; 235 CLR 81 at [15]. 243Professor Butt then describes the nature of indefeasibility in the following passage at [20 15]: "The conclusiveness of the Register confers on the registered proprietor of an interest in Torrens title land an 'indefeasible title' to that interest. By an 'indefeasible title' to an interest is meant a title that cannot be set aside on the ground of a defect existing in the title before the interest was registered." 244One difficulty facing Castle's reliance on the concept of indefeasibility is that the right of way burdened its title when its interest in 134 Sailors Bay was first registered in 2001. There was no relevant defect in its title that was cured by Castle becoming registered proprietor of 131 Sailors Bay. It was only after it became registered that it made the 2001 Request to the Registrar-General to delete the right of way from its title. This was done in that the Registrar-General removed, cancelled or expunged (it matters not) the recording of the right of way from the relevant folios of the Register. But this was due to the act (Request) of Castle as registered proprietor of the relevant land. The correction of the Register now to reinstate Castle's title to what it was at the time its interest in 134 Sailors Bay was registered (burdened as it was by the right of way) does not involve the setting aside of Castle's title at the time it became indefeasible: rather it confirms the state of its title at that time. 245We note that the cancellation or expunging from the folio of 134 Sailors Bay of the right of way did not involve an act of registration by the Registrar-General of an instrument which gave Castle a greater interest in that land than that to which it was entitled when it became registered as proprietor thereof. The present case can thus be contrasted with Berowra Waters where indefeasibility was effected by the registration, as s 65 of the Act contemplated, of a discharge of mortgage in the approved form. Contrary to the submission of the Registrar-General, Sahab is not seeking to invoke s 138(1) to " cancel [a] registration which is indefeasible ". 246In expressing the foregoing opinion we recognise that the 2001 Request was itself registered in that, upon the dubious assumption that it was a " dealing " (as defined), it was registered when the Registrar-General made a recording of it in the Register which he appears to have done: see s 36(6A). 247But recording or registering the 2001 Request did not of itself cancel the recording in the Register of the right of way. The terms of the Request ([34]-[36] above) show that it is not a document that purports to carry out an act concerning the land, in the way that a transfer, mortgage or lease does. Rather, as its title suggests, it requests the Registrar-General to carry out an act concerning the land. Registration of the Request does not "pass any estate or interest in the land or render [it] liable as security for the payment of money" as contemplated by s 41. Castle conceded as much when it submitted that the recording of the 2001 Request and the cancellation of the right of way needed to be considered together in that they were inextricably connected, a proposition which we do not accept: see [ 66 ] above. The sequence of events makes it tolerably clear that the Registrar-General recorded the 2001 Request, then sought the views of the Howards and, not receiving any objection from them, determined to cancel the right of way by expunging it from the relevant folios of the Register. It follows in our view that that act of the Registrar-General did not involve the registration of a dealing. 248However, that does not of itself have the consequence that the expungement of the right of way did not result in Castle obtaining an indefeasible title to its land free of the right of way. While registration of a dealing is the most common way by which an indefeasible title is obtained, the critical thing for indefeasibility under s 42, is what appears on the folio of the Register that relates to a particular parcel of land, and the exceptions to indefeasibility that s 42 itself creates. It is possible to derive an indefeasible title through a new folio of the Register being issued without any dealing being involved (eg under s 13A, s 17 or s 46C of the Act). And it would be assuming what is in dispute in the present case to say that an exercise of the power to amend the Register under s 32(6) c annot result in an indefeasible title being created. 249As we explain below, in our opinion s 42(1)(a1) of the Act has the effect that Castle cannot rely on a submission that it has an indefeasible title to 134 Sailors Bay freed from the burden of the right of way as an answer to Sahab's claims. If this be so, then its reliance on s 118(1) is misconceived. 250We should add for completeness that, subject to the effect of s 42(1)(a1) on the present case, the position would have been different had Castle transferred or mortgaged 134 Sailors Bay after the 2001 decision and at a time when the Register no longer recorded the right of way. Upon registration of the transfer or mortgage the transferee or mortgagee, as the case may be, would take title freed from the right of way: s 42(1). A transferee (but not a mortgagee who does not take an interest under a dealing executed by a registered proprietor: IAC (Finance) Pty Limited v Courtnay [1963] HCA 64; (1963) 110 CLR 550) would also have the protection of s 43A in the interval between completion of a purchase (or other transaction) and registration of the relevant dealing (usually a transfer) if during that interval it received notice of the right of way as an unregistered instrument.

[51]

Section 42(1)(a1) of the Act 251The engaging of s 42(1)(a1) arose during the course of oral argument on the appeal. It was not relied upon by Sahab before the primary judge. After it was raised in argument, Sahab embraced it. No objection was taken to it doing so either by Castle or the Registrar-General. The parties were granted leave to provide supplementary written submissions on this issue which they did. 252The indefeasibility of title established by s 42(1) of the Act is subject to the following exception: "(a1) in the case of the omission...of an easement subsisting immediately before the land was brought under the provisions of this Act or validly created at or after that time under this or any other Act..." 253It is not in contest that the right of way, being an easement, was validly created after 134 Sailors Bay was brought under the provisions of the Act. The question which arises for consideration is whether there has been an " omission " of the easement from the folio of the Register relating to 134 Sailors Bay. If there has been such an omission, then s 12(1)(d) empowered the Registrar-General to correct that omission. His failure to do so was capable of attracting the jurisdiction of the Court to order that the Register be corrected as no question of indefeasibility would arise as there have been no dealings with 134 Sailors Bay since the 2001 decision with the consequence that s 45 has not been engaged. 254The construction of the word " omission " in s 42(1)(a1) was the subject of detailed discussion in this Court in Dobbie v Davidson (1991) 23 NSWLR 625. At that time the relevant provision was s 42(b) which provided an exception: "in the case of the omission or misdescription of any right-of-way or other easement created in or existing upon any land." It was not suggested that there was any relevant difference between the two provisions so far as the proper construction of the word " omission " in each of them is concerned. 255The Court in Dobbie was constituted by Kirby P, Priestley and Handley JJA. Both Kirby P and Priestley JA gave detailed separate judgments. Handley JA agreed with Priestley JA subject to some comments not presently relevant. Each of their Honours concluded that the word " omission " in s 42(b) of the Act meant " left out " or " something not there ". 256In so holding their Honours rejected the construction of the word " omission " adopted by Mahoney JA, with whom Reynolds and Samuels JJA agreed, in Australian Hi-Fi Publications Pty Limited v Gehl (1979) 2 NSWLR 618 to the effect that " omission " in the context of s 42(b) meant not just that the right of way was missing from the Register but that it was " not there " because something which ought to have been done under the Act by the Registrar-General or by someone else, had not been done. 257In Dobbie v Davidson , Mr and Mrs Dobbie owned a property called "Lumley Park" which had been brought under the provisions of the Act in 1964, the Dobbies becoming registered as its proprietors in 1998. Mr and Mrs Davidson owned the property known as "Ellerslie". A substantial part of the boundary of that property formed a common boundary with part of "Lumley Park". In order to gain access to "Ellerslie" from the nearest public highway, Mr and Mrs Davidson had continuously used for almost 60 years a dirt road which led from the highway through "Lumley Park" to their property and which was their only means of access. They claimed a prescriptive right of way over the dirt road. 258The trial judge, Waddell CJ in Eq, held that immediately prior to "Lumley Park" being brought under the Act, the disputed right of way existed by prescription. However, notwithstanding that the right of way existed at that time, it was not recorded on the folio of the Register relating to "Lumley Park". This was not because of any breach of any obligation by the Registrar-General; it was simply because he was not made aware of it. The question therefore arose as to whether that was an " omission " within the meaning of s 42(b). His Honour held that it was and an appeal from his decision to this Court was dismissed. 259In this Court, Kirby P set out a number of reasons why, in his opinion, " omission " in s 42(b) meant " left out " or " not there ". He first referred to the primary dictionary definition of " omit " as " to leave out ". This was a use of the idea of " omission " in a colourless sense, imputing neither fault nor praise for the omission but merely describing what the word normally involves. His Honour considered that the word should be given its primary meaning of " left out " irrespective of the cause or reason which resulted in it being left out. The trend of the authorities, the President said, "appears simply to regard the effect of the statutory registered title as not operating to destroy or extinguish pre-existing easements and rights-of-way. Repeatedly, the view taken of 'omission' in the context paid no regard to notions of fault on the part of the Registrar-General or anyone else." 260In rejecting the construction urged by Mr and Mrs Dobbie relying upon Gehl, the President considered that it would be unduly disruptive of the orderly and expeditious consideration of primary applications to bring land under the Act if the Registrar-General were obliged, in every case, to address attention to the possibility that undisclosed rights of way or other easements might exist in favour of adjoining land. He continued (at 632): "A preferable approach to the construction of the Registrar-General's obligations is to regard the applicant who wishes to bring land under the Act as having the burden of making out title, so that the Registrar-General's obligation is to examine the title so adduced. An applicant who then omits (whether intentionally or unintentionally) the disclosure of a right-of-way or other easement should be taken to do so at peril to that applicant's title (and the title of successors) is subject to the right-of-way or other easement which is not extinguished by the mere issue of the certificate of title omitting it...Above all, [such an approach] would preserve valuable established rights which have simply been 'omitted' in the sense of 'left out'." 261The President therefore rejected any construction of " omission " which required some fault or failure on the part of the Registrar-General or, for that matter, anyone else. 262Priestley JA in his reasons rejected an intermediate meaning, namely, " not there merely because a person did not do something that person was entitled to do " (to use the words of Mahoney JA in Gehl at 622). At 646 his Honour stated that s 42(b) did not, to his mind, give any indication that the omission or misdescription must come about because of any particular class of event, or, to put the same point another way, that either word was to be read in some qualified way. 263After analysing the judgment of Mahoney JA in Gehl, his Honour noted (at 658) that Mr and Mrs Dobbie asserted that Gehl established that the meaning of " omission " in s 42(b) was confined to something missing because something which ought to have been done under the Act, or by the Registrar-General, had not been done. However, Gehl did not require a determination of the issue raised in the present case, which was whether a prescriptive right of way over land at the time it was being brought under the Act was extinguished because it was not noted on the certificate of title then issued. In any event, his Honour considered (at 659) that Mahoney JA left open as " arguable " the possibility that " omission " might extend to a case where something was not there merely because someone had not done something which that person was entitled to do. Accordingly, Priestley JA concluded that " omission " in s 42(b) meant " something not there ". If the right of way was not on the relevant certificate of title, then there was an " omission " and nothing more was required. 264Thus as observed by Professor Butt, ibid at [20 84], this Court in Dobbie rejected the proposition for which Gehl was said to be authority, namely, that " omitted " in the former s 42(1)(b) did not mean simply " not there " so that unless fault or neglect could be sheeted home to the Registrar-General, the unrecorded easement remained unenforceable. On the contrary, the correct position as established by Dobbie was that it was sufficient to show that the easement was " left out " in the colourless sense of being " not there ", it being unnecessary to link its absence to the Registrar-General's fault or neglect. 265Castle nevertheless submitted that the facts of Dobbie v Davidson were quite different to those of the present case. In that case the easement or right of way had never been recorded on the relevant folio whereas in the present case it had been but was later expunged therefrom. In other words, a positive act on the part of the Registrar-General to remove the right of way from the Register did not involve an " omission " within the meaning of s 42(1)(a1). The Registrar-General also submitted that a considered decision by him to actively and positively expunge the recording of the right of way from the Register could not be an " omission " within the meaning of s 42(1)(a1). An " omission " involved something passive and excluded a positive act. 266As was observed during the course of argument, the " omission " of an easement, in the context of s 42(1)(a1), is not an act but a status. True it is that the removal of the recording of the right of way on the folio of 134 Sailors Bay involved an act on the part of the Registrar-General. But after its removal the right of way was no longer " there " in the sense that it was an estate or interest recorded in a folio of the Register. Irrespective of how it came about, at the time of the 2008 decision the right of way was " not there " in that it was not recorded on the folio of the Register which would otherwise have attracted the indefeasibility provisions of s 42(1). 267The point was made good in the course of argument by a member of the Court. As s 42(1) is directed to the state of the Register and as the conclusiveness of the Register is the fundamental premise upon which the Torrens system of title by registration is founded, if one looks at the Register and the easement is not there but should be, it follows that it has been omitted. The reason for its omission or why it is " not there " is irrelevant. 268In our opinion, the fact that the Registrar-General, at the request of Castle, removed the right of way from the folio of the Register relating to 134 Sailors Bay so that that act constituted the cause or reason for the right of way no longer being " there " upon the title to that land, does not affect whether s 42(1)(a1) applies. An example of how it is unnecessary to search for the reason for the omission of an easement is that it has been held that there is no reason for confining the word " omission " in the subsection to an easement which is not only " left out " or " not there " but also has never been there until the relevant land was brought under the provisions of the Act. In his reasons in Dobbie (at 633) Kirby P rejected a construction of " omission " as being one which resulted through some fault or failure on the part of the Registrar-General or, for that matter, anyone else. So also did Priestley JA at 660. In the present case it could be said that the right of way has been omitted (in the sense of removed from the relevant folio) due to the fault of the Registrar-General in acceding the 2001 Request based, on one view, on a mistaken interpretation of the terms of the right of way. If this be correct, as in our opinion it is, then the factual difference between the present case and Dobbie v Davidson is not one that can justify a gloss on the meaning of " omission " that this Court did not consider appropriate in Dobbie. 269Before leaving this issue we should mention that both Castle and the Registrar-General drew the Court's attention to the Explanatory Note to the Property Legislation Amendment (Easements) Bill 1995 which proposed the insertion of s 42(1)(a1) into the Act. The Note includes the following statement: "In the case of an easement that is omitted it does not make any difference if the easement has never been recorded in the folio or, although previously recorded, it is omitted from the folio because of an administrative error". The Note went on to assert that the amendment was consistent with the decision in Dobbie v Davidson . 270It was therefore submitted that s 42(1)(a1) had no application to the present case as it was only intended to apply to the two situations considered by this Court in Dobbie v Davidson , namely: (i) where an easement has never been recorded in the folio, and (ii) where an easement previously recorded has been omitted due to administrative error. Neither situation applied to the present case where the Registrar-General had made a deliberate decision to remove the easement from the relevant folio. 271The Registrar-General also drew attention to the fact that the same Bill introduced into the Act the present s 49 by which he may cancel the recording of an easement in a folio of the Register if satisfied that it has been abandoned. The Explanatory Note envisages that the satisfaction of the Registrar-General as to 20 years or more of non-use of an easement is to be the sole criteria of abandonment. However, in this respect there is a clear tension between the Explanatory Note and the text of s 49. Section 49(2) provides as follows: "An easement may be treated as abandoned if the Registrar-General is satisfied it has not been used for at least 20 years..." Had that been the sole criteria of abandonment then the introductory words of s 49(2) would have read as follows: "An easement is abandoned only if the Registrar-General is satisfied..." Section 49(2) empowers, but does not require, the Registrar-General to treat lack of use for 20 years as an abandonment even if otherwise abandonment has not been established in accordance with general principles. The text of the section obviously takes precedence over the Explanatory Note. 272The same comment applies to that part of the Explanatory Note that might otherwise suggest that an easement is only omitted within the meaning of s 42(1)(a1) if it has never been recorded in the folio or, although previously recorded, has been omitted from the folio because of an administrative error. The second situation is not consistent with Dobbie v Davidson which made it clear that whether an easement has been omitted due to an administrative error or for any other reason is irrelevant: it was " not there " and that is sufficient. 273Accordingly, in our view it is impermissible to use the Explanatory Note to construe the word " omission " in s 42(1)(a1) in a manner different to the construction of that word adopted by this Court in Dobbie v Davidson . The Court made it clear in that case that the word had the meaning of " left out " or " not there " irrespective of the cause of, and without attribution of cause or fault or reason for, the omission. We would therefore reject the submissions of Castle and the Registrar-General on this issue. 274For the foregoing reasons, in our opinion the right of way has been omitted within the meaning of s 42(1)(a1). As it was not suggested that the word " omission " in that provision should be construed any differently to the word " omission " in s 12(1)(d), and in general the one word should be given the same meaning whenever it occurs in a statute unless the context requires otherwise, it follows that the Registrar-General was empowered to correct that omission in 2008 when requested to do so. In this respect it needs to be recalled that the Registrar-General considered he had no power to correct the Register but in our view that was a stance that was incorrect. Having the power to correct the Register, it is clear that he should have done so and it is now open to ensure that the Register is corrected by ordering that the Registrar-General amend the folios of the Register relating to the dominant and servient tenements by recording therein the right of way. Further, he should be ordered to issue new certificates of title to each of Sahab and Castle giving effect to those amendments. Neither Castle nor the Registrar-General contested the proposition that if the right of way had been omitted within the meaning of s 42(1)(a1), there was no impediment to the Court making the orders to which we have referred: cf St Abanoub Properties at [39].

[53]

Leave to Cross-Appeal on costs 277In the third judgment the primary judge dealt with issues with respect to the formulation of orders and final relief and costs. As to the latter his Honour's orders were as follows: (a) the Registrar-General to pay Sahab's costs of the motion of 29 May 2009; (b) Sahab to pay the Registrar-General's costs of the proceedings other than on the motion of 29 May 2009; (c) no order as to costs as between Sahab and Castle; (d) no order as to costs as between Castle and the Registrar-General. 278There is no challenge to orders (a), (b) and (d). However Castle seeks leave to cross-appeal against order (c) on the basis that his Honour's discretion miscarried in refusing to order that Sahab pay Castle's costs of the proceedings given that Castle was, except with respect to the issue of the construction of the terms of the right of way and covenants, successful in resisting Sahab's attempt to, as his Honour put it, find " an available path through the legislation to warrant a grant of relief ". 279The primary judge encapsulated his reasons for declining to order that Sahab pay Castle's costs of the proceedings (other than Castle's costs on the May motion) at [48] of his reasons in the third judgment as follows: "In similar vein, Mr Burton says that Sahab was not responsible for creating the position in which it found itself. This factor alone would not incline me to vary the principle that costs follow the event. However, another factor is significant in this case. I have found that Castle advanced an incorrect and misleading statutory declaration to the Registrar-General which led to the 2001 decision. Whilst I am mindful the costs jurisdiction is compensatory and not punitive it is difficult to escape the conclusion in this case when one analyses the careful correspondence pursued by Sahab against the Registrar-General before commencing proceedings, that Castle's conduct ultimately occasioned Sahab to take some step such as this to free itself from the problem of it being landlocked which it then faced. The circumstances are in my view analogous to those which confronted Young J in Scallan's Case at 520-521. Castle's incorrect and misleading statutory declaration is sufficient misconduct in relation to the transaction the subject of the proceedings to warrant departure from the usual principles. I do not think that a costs order against Castle is warranted. I will make no other order as to costs between Sahab and Castle." 280The submissions of the parties with respect to Castle's Summons for Leave to Appeal against his Honour's refusal to grant it costs against Sahab in the proceedings only requires consideration in the event that otherwise Sahab's appeal to this Court is dismissed. As we are of the opinion that the appeal should be allowed as Sahab has succeeded not only on the issue of construction but also with respect to its entitlement to call in aid s 138 and s 22 for the purpose of the reinstatement of the right of way, it follows that the foundation which underlay the primary judge's findings with respect to costs as between Sahab and Castle is undermined. In these circumstances the primary judge's order that there be no order as to costs as between Sahab and Castle in the proceedings must be set aside to reflect Sahab's success on its appeal. It also follows that Castle's Summons for Leave to Appeal becomes academic and should, in our opinion, be dismissed with no order as to costs. 281However that still leaves the question of an appropriate order for costs with respect to the proceedings at first instance (other than the costs with respect to the May motion). No submissions were put to the Court to suggest that if Sahab's appeal succeeded it should not be entitled to its costs at first instance. However, in its Notice of Appeal it sought an order for costs of the proceedings against both Castle and the Registrar-General. 282So far as the question as to whether any order should be made against the Registrar-General is concerned, we note that at [45] of the third judgment his Honour observed that the Registrar-General's involvement in the substantive issues in the proceedings (other than on the May motion) was minimal and that the burden of establishing that Sahab had no statutory remedies to rectify the Register following the 2001 decision fell to Castle. As Sahab had failed before his Honour, he ordered that as between Sahab and the Registrar-General the former should pay the latter's costs on an ordinary basis in respect of all parts of the proceedings other than the costs of the May motion. 283Given that Sahab has now succeeded on its appeal, it does not seem to us that it is appropriate that order (b) referred to in [277] above should stand. We therefore express the tentative view that the Registrar-General should pay its own costs of the proceedings other than on the May motion with respect to which he was ordered to pay Sahab's costs, an order that is not challenged. 284As between Sahab and Castle, we see no reason why costs should not follow the event as a consequence whereof Castle should be ordered to pay Sahab's costs of the proceedings at first instance other than on the May motion. 285With respect to the costs of the appeal, the Registrar-General took an active role in resisting that appeal as did Castle. In view of Sahab's success on the appeal, we see no reason why Castle and the Registrar-General should not pay Sahab's costs of the appeal. 286We would therefore tentatively propose the following costs orders: (a) set aside Order 2 made by Slattery J on 5 May 2010 and so much of Order 3 as provided that there be no orders as to costs as between the appellant and the second respondent; (b) the second respondent to pay the appellant's costs of the proceedings at first instance other than on the motion of 29 May 2009; (c) the respondents to pay the appellant's costs of the appeal. 287In the event that the parties wish to make any further submissions with respect to the tentative costs orders that we have proposed then we would direct that written submissions in that respect be filed on or before 3 February 2012. If the parties are content with the costs orders we have proposed, they should be incorporated into the Short Minutes. Furthermore, within that same period the parties are to bring in Short Minutes of Order to give effect to what we have said at [236] [274] and [280] above. 288The specific orders we propose are: (1) Direct the parties by 3 February 2012 to file and serve agreed Short Minutes of the orders to be made to give effect to these reasons for judgment. (2) In the event that such agreement is not possible, direct the parties to file and serve by 3 February 2012 their respective drafts of such short minutes, together with written submissions in support of their respective drafts, and providing reasons why the draft of the opposite party is inappropriate, each such written submission not to exceed 8 pages without the leave of the court. (3) Grant liberty to apply to any judge who heard the present appeal on 24 hours notice concerning such leave.

At a glance

Court

Decision date

Before

Source

Judgment (54 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (51)