Sahab Holdings Pty Ltd v Registrar-General

5There is relatively little difference between Sahab and Castle with respect to the appropriate form of orders granting Sahab the relief to which we consider it entitled. No objection is taken by Castle to the making of an appropriate declaration as per par 3 of Sahab's short minutes subject to certain variations which Sahab opposes. 6Castle's objections and the resolution of them are as follows: (a) Castle submits that the appeal should only be allowed "in part". The basis for this contention is that Sahab was unsuccessful on the issue relating to the proper construction of the covenants contained in the Middleton transfer: see [75] - [78] of the primary judgment. Although not referred to in Castle's submissions, Sahab was also unsuccessful in respect of its reliance on s 136(1)(b) taken in isolation and in its reliance on s 136(1)(c) of the Real Property Act 1900 (the Act): see primary judgment at [275]. Nevertheless, in our opinion, Sahab has been successful overall and we see no reason why it is necessary to qualify the allowance of the appeal. Appeals are against the orders of the court below, not against its reasons. The failure of some of the arguments that Sahab advanced for overturning the orders of the court below does not detract from the fact that Sahab has succeeded in overturning those orders. We would therefore reject Castle's proposed amendment to par 1 of Sahab's draft short minutes. (b) Paragraph 3 of Sahab's short minutes declares that the right-of-way was erroneously omitted from the relevant folios of the Register for both the servient and dominant tenements. Castle wishes to add after the words "right-of-way" where first appearing in that declaration, the words "and the covenant set out in the Schedule of Covenants appurtenant thereto". However, as Sahab submits, the Registrar-General, when acceding to the 2001 Request, only expunged the right-of-way from the relevant titles and not the covenants. This is confirmed by the fact that the Second Schedule to the certificate of title folio identifier 1/726736, being Sahab's land, refers expressly to the covenant in dealing A 752953. Those covenants burden Sahab's land and are for the benefit of Castle. It is only necessary to refer to those covenants on the certificate of title of the land burdened by them and this is in fact what has occurred. Accordingly, we would not accede to the variation to the opening words of the declaration referred to in the short minutes which Castle seeks to impose. (c) Sahab's draft short minutes refer to the relevant sections of the Act which support the orders to be made. We do not think it is necessary to refer to the relevant provisions of the Act pursuant to which the orders are to be made. In this respect we therefore accept Castle's variation to those orders.

7As indicated the costs orders contained in Sahab's draft short minutes generally reflect those which in the primary judgment we tentatively considered should be made. Castle submits that as between it and Sahab there should be no order as to costs both with respect to the proceedings at first instance as well as with respect to the appeal. Castle notes that it had been submitted both to the primary judge and on the appeal that it was a complete answer to all of the statutory provisions relied upon by Sahab as empowering the Registrar-General and/or the Court to correct the Register and reinstate the right-of-way, that Castle had obtained an indefeasible title to the servient tenement free from the right-of-way when the Registrar-General expunged it from the Register. It contended that that submission only failed as a result of the Court finding that s 42(1)(a1) of the Act provided an exception to indefeasibility in respect of an easement that had been removed from the Register in the circumstances of the present case. As that issue was raised for the first time by the Court during the course of oral argument on the appeal and not otherwise relied upon by Sahab before the primary judge or until the Court raised it, it would not be just if Castle were ordered to pay Sahab's costs at first instance and on the appeal when, ultimately, the Court's reliance upon s 42(1(a1) was determinative of the appeal. 8It is true that the s 42(1)(a1) issue was raised for the first time during the course of the hearing of the appeal and then by the Court. However, both parties embraced it and provided written submissions with respect to its resolution. But Sahab was unsuccessful before the primary judge because his Honour considered that none of the statutory provisions upon which Sahab relied for relief was applicable. Sahab challenged those findings and did so successfully. 9Furthermore, irrespective of the s 42(1)(a1) point, it was still necessary for Sahab to establish on the appeal that it was entitled to rely on one or more of the statutory provisions in question in order to found the relief that it sought. Accordingly, the applicability of those statutory provisions arose for decision on the appeal irrespective of the indefeasibility issue which Castle had raised and which was, at least in part, met by the Court's decision on the s 42(1)(a1) point. 10Accordingly, in our opinion, the orders for costs sought by Sahab both at first instance and on the appeal should be made. 11The other remaining costs issue relates to Castle's summons for leave to cross-appeal from the primary judge's decision on the question of costs and which was dealt with by the Court in the primary judgment at [280]. We there indicated our opinion that that summons should be dismissed with no order as to costs. Sahab contends that Castle should pay the costs of that summons. We do not agree. The summons was defensive and, as we pointed out at [280] of the primary judgment, became academic as a consequence of the findings that we made on the substantive issues. There should be no order for costs with respect to the dismissal of that summons. 12There are three final matters. The first is that Sahab's draft short minutes contains an order with respect to the dismissal of the notice of motion the subject of our judgment in Sahab Holdings Pty Ltd v Registrar-General (No 2) [2012] NSWCA 42. At [43] of our judgment in that matter we made an order for that notice of motion to be dismissed with costs. It is unnecessary to repeat that order as it was made and entered on 20 March 2012. 13Second, Castle seeks an order that it have a certificate under the Suitors' Fund Act 1951 with respect to the costs of the appeal if so entitled. No objection is made to the making of such an order and we will therefore make it. 14Thirdly, Order 8 of Sahab's short minutes is unnecessary as that order was made by the primary judge (Order 1) and as will appear from the orders set out below, it is not proposed to set it aside. 15Accordingly, the orders of the Court are as follows: (1) Appeal allowed. (2) Set aside Orders 2 and 4 made by Slattery J on 5 May 2010 and so much of Order 3 as provided that there be no orders as to the costs as between the appellant and the second respondent. (3) Declare that the right of way created by transfer A752953 ("right of way") over part of the freehold property comprised in certificate of title folio identifier A/404929 known as 134 Sailors Bay Road, Northbridge ("servient tenement") in favour of the freehold property comprised in certificate of title folio identifier 1/726736 known as 69 Strathallen Avenue, Northbridge ("dominant tenement") were erroneously omitted from the folios of the Register for both servient and dominant tenements on or about 22 November 2001 when the first respondent acceded to request 7924023 lodged by the second respondent. (4) Order that the first respondent restore to the folios of the Register for both servient and dominant tenements the recording of the right of way. (5) Order that the second respondent deliver or take all steps within its power to cause to be delivered up to the first respondent the certificate of title for the servient tenement for the purpose of being amended by the first respondent to bring it into conformity with the folio of the Register for the servient tenement as amended pursuant to Order 4. (6) Order that the first respondent issue to the appellant and to the second respondent new certificates of title for the dominant and servient tenements, respectively, consequent on compliance by the first respondent with Orders 4 and 5. (7) Order that the second respondent pay the appellant's costs of the proceedings at first instance other than with respect to the motion of 29 May 2009. (8) Order that the first respondent pay his own costs of the proceedings at first instance. (9) Order that the respondents pay the appellant's costs of the appeal. (10) Order that the second respondent's summons for leave to cross appeal be dismissed with no order as to costs. (11) The second respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) with respect to the costs of the appeal, if otherwise entitled.

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