Sidoti v Hardy

Hamilton v Iredale (1903) 3 SR (NSW) 535 Hardie Rubber Co Pty Ltd v General Tire & Rubber Co (1973) 129 CLR 521; [1973] HCA 66 Hardy v Sidoti (2020) 19 BPR ¶40,535; [2020] NSWSC 1057 Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267 Michael v Onisiforou (1977) 1 BPR ¶9,356 Nanschild v Pratt [2011] NSWCA 85 Oertel v Crocker (1947) 75 CLR 261; [1947] HCA 40 Quach v Marrickville Municipal Council (No 1) (1990) 22 NSWLR 55 Refina Pty Ltd v Binnie (2010) 15 BPR ¶28,633; [2010] NSWCA 192. Sahab Holdings Pty Ltd v Registrar-General (2011) 15 BPR ¶29,627; [2011] NSWCA 395 South Maitland Railways Pty Ltd v Satellite Centres of Australia Pty Ltd (2009) 14 BPR ¶26,823; [2009] NSWSC 716 Sparks v Meers [1976] 2 NSWLR 1 Sze To Chun Keung v Kung Kwok Wai David [1997] 1 WLR 1232 Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38 Van den Bosch v Australian Provincial Assurance Association Ltd [1968] 2 NSWLR 550; (1968) 88 WN (Pt 1) (NSW) 357 Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 538; [2007] HCA 45 Texts Cited: Explanatory Memorandum, Land Titles Legislation Amendment Bill 2001 (NSW) Explanatory Note, Real Property (Conversion of Titles) Amendment Bill 1984 (NSW) HW Ballantine, "Title by Adverse Possession" (1918) 32(2) Harvard Law Review 135 K Gray & SF Gray, Elements of Land Law (5th ed, 2009, Oxford University Press) Land Registry Services, "Registrar-General's Guidelines - Deposited Plans - Conversion of Old System - Deposited Plans Redefining Old System Land - Limited Titles", https://rg-guidelines.nswlrs.com.au/deposited_plans /conversion_os/dps_redefining_os_land/limitedtitles, accessed 13 April 2021 Land Registry Services, "Registrar-General's Guidelines - Land Dealings - Dealings Involving - Notifications on the Register", https://rg-guidelines.nswlrs.com.au/land_dealings/ dealings_involving/notifications, accessed 13 April 2021 Land Registry Services, "Registrar-General's Guidelines - Land Dealings - Dealing Requirements - Qualified Title - Cautions", https://rg-guidelines.nswlrs.com.au/land_dealings/ dealing_requirements/qualified_title/cautions, accessed 13 April 2021 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), Land Titles Legislation Amendment Bill 2001 (NSW) Second Reading Speech, 19 September 2001 New South Wales Legislative Council, Parliamentary Debates (Hansard), Real Property (Conversion of Titles) Amendment Bill 1984 (NSW) Second Reading Speech, 8 May 1984 RA Woodman & P Butt, "Possessory Title and the Torrens System in New South Wales" (1980) 54 Australian Law Journal 79 RA Woodman & PJ Grimes, Baalman's The Torrens System in New South Wales (2nd ed, 1974, Law Book Co) Category: Principal judgment Parties: Joseph Geoffrey Sidoti (First Appellant) Natalie Martinoski (Second Appellant) Christopher Luke Hardy (Respondent) Representation: Counsel: J Doyle, L-A Walsh (Appellants) J van Aalst (Respondent)

Solicitors: Connor & Co Lawyers (Appellants) WWright Lawyer (Respondent) File Number(s): 2020/248350 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: [2020] NSWSC 1057 Date of Decision: 12 August 2020 Before: Kunc J File Number(s): 2019/342572

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The appellants are the registered proprietors of a parcel of land in Redfern which comprises a limited folio of the register of land titles maintained under the Real Property Act 1900 (NSW) ("RP Act"). The land's northern boundary abuts the southern boundary of another parcel of land, also a limited folio, of which the respondent is the registered proprietor. A narrow strip of land, 3.35 square metres in area, at the northern boundary of the appellants' property, and adjacent to the southern boundary of the respondent's property, is burdened by a right of way (the "Yellow Land", per the attached diagram) which was created for the purposes of enabling access for a nightsoil carter to collect waste from outhouses on the properties. In the proceedings below, the primary judge held that the respondent had acquired title to the Yellow Land by reason of adverse possession, commencing in 2002, or at the latest, in early 2005. The appellants appealed, purportedly as of right, from that decision. At all relevant times, the Yellow Land was within the surveyed and described boundaries of the appellants' property and outside those of the respondent. The appellants' property was conveyed to previous proprietors in 1958 and again in 1985 by deeds containing metes and bounds descriptions that included the Yellow Land. The respondent's property was conveyed to him in 1998 by way of deed containing a metes and bounds description which did not refer to the Yellow Land. By this time, the Yellow Land was no longer usable as a right of way, due to various fences, and the respondent used the western end of the strip to store garden tools. In August 1998, the respondent's land was brought under the RP Act. The deposited plan did not refer to nor include the Yellow Land. In 2002, the respondent undertook renovations and removed the fence along the northern boundary of the strip. Between 2003 and early 2005, further works were carried out, fully incorporating the Yellow Land into the respondent's backyard and effectively closing off access from the appellants' property. After these works had been performed, the appellants' property was brought under the RP Act in September 2005, by the creation of a qualified and limited folio. The appellants became registered proprietors in April 2018, by which time the qualified title cautions had been removed. However, the land remained limited title. The appellants commenced works to reclaim the Yellow Land, specifically as a barbecue area. The proceedings were then commenced by the respondent in October 2019. Held (per Brereton JA, Simpson AJA agreeing; Basten JA dissenting), granting leave to appeal but dismissing the appeal: [178] (Brereton JA), [211] (Simpson AJA), [43] (Basten JA).

As to the relevant limitation periods

1. Per Basten JA, Brereton JA, and Simpson AJA: Apart from the RP Act, title to land may be acquired by possession for a period of twelve years. This is because the owner's cause of action to recover land becomes statute barred after that period, and is thereupon extinguished: Limitation Act 1969 (NSW) ("Limitation Act"), ss 27(2), 28, 65(1), Sch 4. However, s 8(1)(a) provides that nothing in the Limitation Act affects the operation of RP Act, s 45C, and s 45C(1) excludes the operation of any statute of limitations, subject to s 45C(2): [10] (Basten JA), [84]-[85] (Brereton JA), [180]-[183] (Simpson AJA).

As to an application under RP Act, s 45D 2. Per Basten JA: None of the permutations within RP Act, s 45D, allowing for the acquisition of title by possession, are applicable to the present case. The claim does not relate to possession commencing after the land was brought under the RP Act, as s 45D(1) requires, nor is the claim for the whole parcel of land, as s 45D(2) contemplates. Section 45D(2) also requires that ss 45D(1)(b)-(c) be complied with, which is not the case. Furthermore, s 45D(2)(b) is premised upon the presence of an "occupational boundary", as defined by s 45D(6)(a), yet this definition is not satisfied by the back fence of the appellants' land. Additionally, the land is not a residue lot, thus preventing reliance on s 45D(2A). Finally, s 45D merely allows an application to the Registrar-General to obtain title by registration, which, by reason of s 45D(4), cannot be made in this case, as the respondents obtained their title without fraud and for valuable consideration: [25]-[30]. 3. Per Brereton JA: Section 45D(1) is not available as the Yellow Land is not a whole parcel of land, s 45D(2) is not available as the part of the whole parcel in dispute lies between the occupational boundary and the true legal boundary, and no other parts of s 45D applicable: [90]. 4. Per Simpson AJA: The avenues provided by s 45D are inapplicable, as the claim is not for the whole parcel of land, as required by ss 45D(1)-(2), nor for a residue lot, as s 45D(2A) contemplates, because although the Yellow Land was part of a service lane, it was not contained on a separate title: [196]-[199].

As to the operation of RP Act, ss 28U(2) and 45C 5. Per Brereton JA: Section 45C(2) preserves the right of an adverse possessor to acquire title to land brought under the RP Act in a qualified or limited folio by reason of possession for any length of time commencing before the folio's creation. This requires only that adverse possession has commenced by the time the qualified or limited folio is created, and not that the documentary titleholder's cause of action to recover possession has been extinguished by the expiry of the relevant limitation period at that time: [86]-[87]. Refina Pty Ltd v Binnie (2010) 15 BPR ¶28,633; [2010] NSWCA 192, considered; South Maitland Railways Pty Ltd v Satellite Centres of Australia Pty Ltd (2009) 14 BPR ¶26,823; [2009] NSWSC 716, not applied. 6. However, s 45C(2) does not mean that in cases to which s 45C(2) applies, s 45C(1) does not prevent a possessory application under s 45D. Moreover, even if the correct construction is that a s 45D application is permitted in cases to which s 45C(2) applies, presently, s 45D is not satisfied for the reasons above: [88]-[91]. 7. The RP Act does not contemplate a primary application based on adverse possession in respect of land which is included in a limited folio which is not also a qualified folio of which another person is the registered proprietor, other than in a case of wrong description of the parcel or its boundaries. The reference in s 45C(2) to limited title is restricted to pre-existing possessory claims to land included in a limited folio by wrong description of the land or its boundaries: [143]-[148]. 8. The phrase "by any wrong description of parcels or of boundaries" in ss 28U(2), 42(1)(c), and 118(4)(b) should be regarded as bearing the same meaning. In the context of a limited folio created by the Registrar-General pursuant to a conversion action, there will be a wrong description if the description of the land in the limited folio does not reflect the occupational boundaries, with the result that it includes land in which a person other than the registered proprietor has an existing possessory interest, whether that claim is crystallised or inchoate: [149]-[161]. Michael v Onisiforou (1977) 1 BPR ¶9,356; Hamilton v Iredale (1903) 3 SR (NSW) 535, applied; Sahab Holdings Pty Ltd v Registrar-General (2011) 15 BPR ¶29,627; [2011] NSWCA 395; Quach v Marrickville Municipal Council (No 1) (1990) 22 NSWLR 55, distinguished. 9. Presently, the respondent had been in possession of the Yellow Land to the exclusion of the previous owners of the appellants' property for a period commencing before the limited folio for the appellants' property was created. The occupational boundary was the southern, not northern, side of the Yellow Land, and the respondent had an inchoate possessory interest in the Yellow Land, thus the Yellow Land was incorrectly included in the limited folio for the appellants' property by wrong description of parcels or boundaries. The exception to indefeasibility in s 28U(2) is therefore engaged, as is the exception to the protection of the registered proprietor against proceedings for the possession or recovery of land in s 118(4)(b), while the respondent's ability to enforce his inchoate interest is preserved by s 45C(2): [162]-[166]. 10. Per Simpson AJA: The respondent had not acquired possessory title to the Yellow Land at the time of the creation of the limited folio, as the twelve year period necessary to enliven the relevant limitation periods had not yet passed. There was therefore no wrong description for the purposes of s 28U(2) when the limited title issued, hence that exception to indefeasibility did not apply: [200]-[202]. 11. However, s 45C(2) has the effect of preserving common law claims to possessory title in respect of adverse possession for any length of time commencing before the creation of the folio, notwithstanding s 45C(1). The primary judge's finding that the respondent's possession commenced prior to the creation of the folio was not challenged on appeal, and therefore the conclusion that s 45C(2) preserved the respondent's common law adverse possession claim was correct: [203]-[210]. 12. Per Basten JA, contra: Section 45C(2) appears to allow title to be acquired, despite s 45C(1), by possession commencing before the land was brought under the RP Act, and so the question is whether this provision presently applies. While s 45C(2) places a limit on the exclusive operation of RP Act, Pt 6A, with respect to possessory applications for qualified or limited folios, that provision does not affect the operation of any other provision of the Act. The principle of indefeasibility of title provided for by s 42 remains paramount, and exceptions to that principle should not be readily accepted in the absence of a clear intention to that effect: [34]-[37]. Deguisa v Lynn (2020) 94 ALJR 1020; [2020] HCA 39; Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 538; [2007] HCA 45, considered. 13. Section 28U(2), which provides an exception to indefeasibility where "by any wrong description of parcels or of boundaries any land is incorrectly included in a limited folio", is the potentially relevant qualification in this dispute. However, the Registrar-General made no mistake when undertaking the September 2005 conversion action. At that time, the respondent had only an inchoate claim to, and no interest in, the Yellow Land, and thus the folio correctly described the appellants' property as including the Yellow Land, subject to the right of way. There is no evidence of any "wrong description" of any kind, nor that the Yellow Land was "incorrectly included" in the limited folio. The transfer to the appellants in 2018 was therefore not subject to any exceptions to indefeasibility, and the orders made by the primary judge must be set aside: [31]-[33], [38]-[40].

As to orders in the absence of the registered mortgagee 14. Per Brereton JA, Simpson AJA agreeing: While it might be open to the National Australia Bank ("the Bank"), as the registered mortgagee of the appellants' property, to apply to set aside orders made in its absence, any such application will not inevitably succeed, nor inevitably result in a different outcome, considering that a registered mortgagee's interest is subject to the same exceptions as apply to the registered proprietor. Additionally, given the size of the Yellow Land, the impact of this judgment upon the value of the Bank's security is likely to be de minimis. In such circumstances, and in the absence of any application by the Bank, the absence of notice does not require that the appeal be allowed: [167]-[171] (Brereton JA). Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38; Hardie Rubber Co Pty Ltd v General Tire & Rubber Co (1973) 129 CLR 521; [1973] HCA 66, considered.

As to leave to appeal 15. Per Brereton JA, Simpson AJA agreeing: Leave to appeal is required unless the appeal involves a "claim, demand or question to or respecting property of the value of $100,000 or more": Supreme Court Act 1970 (NSW) ("SCA"), s 101(2)(r)(ii). The relevant value is that of the claim, not the whole property to which it relates, and there is nothing presently indicating that the Yellow Land, being only 3.35 square metres in area, exceeds $100,000 in value. However, leave should be granted as the appeal raises questions of principle with importance to the operation of the Torrens system in New South Wales: [172]-[173] (Brereton JA). Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267; Nanschild v Pratt [2011] NSWCA 85; Ballas v Theophilos (No 1) (1957) 97 CLR 186; [1957] HCA 49; Oertel v Crocker (1947) 75 CLR 261; [1947] HCA 40, applied. 16. Per Basten JA: There was no evidence before the Court as to the value of the Yellow Land, and it is not entirely clear whether SCA, s 101(2)(r), relates to the value of the whole property or only to the amount in dispute. In any event, no objection was taken to the filing of an appeal rather than an application for leave to appeal, and because the appeal raises issues of general importance as to the operation of the RP Act, leave should be granted if required: [9].

Judgment

1. BASTEN JA: The applicants are the owners of a terrace house in Redfern. Across the back of their land there is a right of way extending the length of the block between two streets. The right of way was recorded in a plan of subdivision created in 1953. On the other side of the right of way is a lot containing a house which extends along the length of the right of way. The owner of that house is the respondent, Luke Hardy.
2. Commencing in about 2002, Mr Hardy and his then partner sought to extend their back garden into the right of way. They did so by pulling down the fence along their side of the right of way, opposite the rear fence of the property later acquired by the applicants. The applicants are now the registered owners of the land which extends to the boundary of the respondent's land, including that part subject to the right of way. They have removed the back fence along the line of the right of way and rebuilt a more substantial fence against the respondent's boundary. The respondent was thereby deprived of access to the part of the right of way upon which he had undertaken some improvements by way of surfacing and paving. He claimed that the work he had undertaken resulted in him acquiring the section of the right of way on the applicants' land by adverse possession which was unchallenged for a period of 12 years. The applicants were therefore not entitled to recover possession in reliance on their registered title, because proceedings to enforce their documentary title had become statute-barred prior to them obtaining title.
3. The trial judge accepted that the respondent had obtained a title in fee simple to 3.4m2 of the right of way in accordance with general law principles. The correctness of that finding is the subject matter of the present appeal.

The applicants' title

1. The applicants' terrace house fronts onto Boronia Street, Redfern. The block runs in a north-south direction. It is one of seven houses constructed between Baptist Street in the west and Dalley Lane to the east. Along the northern border of the appellants' land (and of all the terraces in the Boronia Street block) is the respondent's home, which runs in an east-west direction, fronting onto Baptist Street in the west. Each of the Boronia Street terrace houses is shown on the 1953 survey plan as having an "outhouse" about one metre from the northern boundary, with the right of way running between the outhouses and the northern boundary. The original purpose for the reservation of the right of way, being to collect "night soil", has long since gone; however, the right of way has not been extinguished, although its use may well have been abandoned long ago. [1]
2. The applicants' land was identified as lot E in the subdivision of 1953. Their predecessors in title obtained the lot by a deed of conveyance executed in 1958. The right of way was identified on the deed as an encumbrance. The purchasers were Mr and Mrs Theodorou. Lot E was transferred to three of their children in 1985. In September 2005 the Theodorous were notified by the Registrar-General that it was intended to convert their old system title to Torrens Title. Although the title was originally issued as a qualified and limited title, 12 years later (in October 2017) the qualification was withdrawn and it became a "limited title" subject to Pt 4B of the Real Property Act 1900 (NSW).
3. On 18 April 2018 lot E was transferred by the Theodorous to the applicants, who became purchasers for value.
4. In the course of January-October 2019 the applicants, pursuant to a development consent, removed the brick outhouse and the fence on the southern side of the right of way and constructed a new paling fence on the northern side of the right of way, thus incorporating the 3.4m2 of the right of way into their back garden.
5. Some four weeks after completion of the works, the respondent commenced proceedings in the Equity Division seeking to recover the area of the right of way, claiming title by adverse possession for a period in excess of 12 years.

Issues on appeal

1. There is a question as to whether the applicants required leave to appeal. There was no evidence before the Court as to the value of the thin strip of land 4.1m long and about 0.8m wide. However, although s 101(2)(r) of the Supreme Court Act 1970 (NSW) requires leave with respect to an appeal other than an appeal involving a question respecting any property of the value of $100,000, it is not entirely clear whether that qualification relates to the value of the whole property or the amount in dispute. There is no doubt that the respondent's claim was for adverse possession of only a part of the applicants' property, which, as a whole, was valued far above the threshold. In any event, as no objection was taken to the filing of an appeal rather than an application for leave to appeal, and because the issues raised involve matters of general importance as to the operation of various provisions of the Real Property Act, warranting the grant of leave if leave be required, there should be a grant of leave to the extent necessary.
2. The claim by the respondent for a title created by adverse possession invoked a general law concept ("adverse possession") in combination with the operation of the Limitation Act 1969 (NSW), s 27(2) and s 65. Section 65 provides that ownership of land which has been the subject of adverse possession by another person for a period of at least 12 years no longer provides a basis for proceedings to recover the land and the title itself is "extinguished". However, the possibility that the purchaser of a property with registered title may be deprived of part of the land purchased by reason of an interest not recorded on the register is contrary to the fundamental rationale of a system of title by registration. [2] That being so, it is common ground that, to succeed, the respondent had to bring his case within a qualification of the general principle within the terms of the Real Property Act. That exercise required consideration of specific provisions within Pt 4B and Pt 6A of the Real Property Act, in terms identified below.
3. Before turning to those issues, it is convenient to note the basis upon which the trial judge upheld a claim of adverse possession for a period of not less than 12 years. The first step taken by the respondent, in May 2002, was to take down a paling fence dividing his back yard from the right of way. That act cannot have constituted an act of possession of the Theodorous' property. What then took place, and was completed by January 2005, involved the laying of a "weed mat" across the area of the right of way and the inclusion of some granite pavers and mondo grass on the right of way. That work, the judge found, had been undertaken prior to the Theodorous' land being brought under the Real Property Act in September 2005. If that activity had constituted "adverse possession" then the possession had commenced prior to the land coming under the Real Property Act, although over a period of less than a year.

Statutory scheme

1. The applicants relied primarily upon two provisions of the Real Property Act, which provide for the scheme of land ownership reflected in the phrase "title by registration". Section 42(1) relevantly provides: 42 Estate of registered proprietor paramount (1) Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except: … (c) as to any portion of land that may by wrong description of parcels or of boundaries be included in the folio of the Register or registered dealing evidencing the title of such registered proprietor, not being a purchaser or mortgagee thereof for value, or deriving from or through a purchaser or mortgagee thereof for value ….
2. There is no suggestion that the appellants' title was infected by fraud; nor was the exception in par (c) engaged, they being purchasers for value.
3. They also relied upon s 45 which, as reinserted in the Act in 2000, states: 45 Bona fide purchasers and mortgagees protected in relation to fraudulent and other transactions (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. (3) Subsection (2) applies whether the fraud or error consists of a misdescription of the land or its boundaries or otherwise.

Application of s 45C(2)

1. In order to consider the operation of the Act in relation to limited folios, the starting point is to note that the creation of a limited folio only arises where "the boundaries of the land are not sufficiently defined". That provides the basis for the qualification of the principle of indefeasibility in s 42(1). As explained in s 28U(2), the principle of indefeasibility is not applicable where "by any wrong description of parcels or of boundaries any land is incorrectly included in a limited folio".
2. However, it is by no means clear in what sense the respondent can assert that the land subject to the right of way was "incorrectly included" in the limited folio issued to the predecessor in title of the applicants. There can be no contention that the Registrar-General, in undertaking conversion action in September 2005, made any mistake in the preparation of the title. As appears from the letter sent to the then owners, the title was to be issued on the basis the land was lot E in a deposited plan. That showed the land extending to the boundary with the respondent's land, and subject to a right of way of variable width as shown on the title diagram. That expressly identified the area the subject of the respondent's possessory claim. There was no "wrong description" of any parcel, nor of any boundary.
3. The misdescription which may have arisen would have been one which could have been resolved by a survey defining the boundaries with precision. (The Registrar-General was apparently not satisfied with the survey on which the deposited plan was based.) There may have been imprecision in the boundaries, but that was irrelevant to the respondent's claim. His case was that in 2005 he had an "inchoate claim" for a possessory title over the land subject to the right of way. In fact, he was at that stage no more than a trespasser. He had no interest in the applicants' land.
4. When the applicants obtained a transfer of the limited title on 18 April 2018, it remained subject to misdescription of the kind referred to. Otherwise the effect of s 42(1) of the Real Property Act was to confer on them a title absolutely free from all other estates and interests not recorded on the folio in the register.
5. Although it is not entirely easy to establish an harmonious operation of the various provisions of the Real Property Act, qualifications to the principle of indefeasibility which forms the bedrock of a system of title by registration should not readily be accepted as a matter of statutory construction, in the absence of a clear intention to that effect. As counsel for the applicants correctly noted, so much was recently confirmed by the High Court in Deguisa v Lynn, [8] quoting the earlier decision of Westfield Management Ltd v Perpetual Trustee Co Ltd: [9] "Together with the information appearing on the relevant folio, the registration of dealings manifests the scheme of the Torrens system to provide third parties with information necessary to comprehend the extent or state of the registered title to the land in question." Further, it was stated in Westfield: [10] "The third party who inspects the Register cannot be expected, consistently with the scheme of the Torrens system, to look further for extrinsic material which might establish facts or circumstances existing at the time of the creation of the registered dealing and placing the third party (or any court later seized of a dispute) in the situation of the grantee."

Conclusions

1. In my view, the transfer to the applicants, for valuable consideration, of land contained in a limited folio, conveyed an estate and interest, on registration of the transfer, free of the respondent's claim for a possessory title over that part of the land subject to a right of way.
2. That requires orders setting aside the orders made by the trial judge, including that dismissing the cross-claim brought by the applicants. In their notice of appeal, the applicants sought the orders which were sought in the notice of cross-claim. One order, requiring the withdrawal of the respondent's caveat, follows from upholding the appeal. However, no submissions were addressed to the other orders: it is not clear if they are still apposite, nor the evidential basis on which they were sought. As the cross-claim remains on foot, the appropriate course is to remit it to the Equity Division, where, if thought necessary, the applicants can reagitate any aspects they wish to pursue.
3. Accordingly, the Court should make the following orders: 1. To the extent necessary, grant the applicants leave to appeal from the judgment and orders in the Equity Division. 2. Allow the appeal and - 1. set aside orders (1)-(5) and (7) entered on 21 August 2020; 2. dismiss the amended summons filed in the Equity Division on 30 July 2020. 3. order that the respondent pay the applicants' costs in the Division. 1. With respect to the undetermined amended first cross-claim, 1. order that the respondent withdraw caveat AP918431B; 2. to the extent that the cross-claimants wish to pursue the further orders sought in the cross-claim, remit the cross-claim to the Equity Division. 1. Order that the respondent pay the applicants' costs in this Court.
4. This, however, is a minority view. Dismissal of the appeal gives effect to a mechanism of the acquisition of land which, as noted above, has been described as "possession as of wrong". [11] Ballentine's description of obtaining title by adverse possession as "a primitive method of acquiring land without paying for it" [12] is not inapt in the present case. If one accepts that the acts of the respondent amounted to a taking of possession adverse to the owner (which must be doubtful), it was not a case of mistake, the identity of the holder of title was not in doubt, nor could the acts of the respondent have affected any person other than his neighbour. Whether he acquired title by this action turned not so much on the general law, devised in another age, but on a statute providing for title by registration. As explained above, I do not think that the Real Property Act permits the acquisition of title by adverse possession in this case. However, if the correct construction of the statute were uncertain, a construction which furthers the purposes of the Real Property Act should be preferred. [13] An interpretation which deprives a bona fide purchase for value of land identified in the register as vested in the vendor should not be frustrated absent clear words to that effect. No such language is found in the Real Property Act.

The facts

1. The following account is based on the facts found by the primary judge, which were largely and are now entirely uncontroversial, and the documentary evidence.
2. The Sidoti Property, and the other Boronia Street properties, were created by FP928XXX, entitled "Plan of Subdivision of Lots 4, 5, 6 and 7 Section A of Baptist's Bourke Street Subdivision"; as its title indicates, that plan was a subdivision of an earlier subdivision. It bore a certificate that the boundaries of the Sidoti Property were accurately surveyed, in accordance with the Survey Practice Regulation 1933 (NSW), on 24 April 1956, and an endorsement that it had been approved by the City of Sydney Council under Local Government Act 1919 (NSW), s 327.
3. By deed of conveyance dated 29 October 1958, the Perpetual Trustee Company (as administrator of the estate of William Aitcheson Haswell, who had died in 1925) as vendor conveyed the Sidoti Property to George and Despina Theodorou as purchasers. The deed contained a metes and bounds description of Lot E, including the Yellow Land which was expressed to be subject to the right of way. It also referred to the deed of conveyance by which Mr Haswell had acquired title in 1890, a subsequent mortgage by him, and a memorandum of its discharge in 1924.
4. Four years later, by deed of conveyance dated 21 September 1962, the Perpetual Trustee Company as vendor also conveyed the neighbouring property to the east, Lot F, to George and Despina Theodorou as purchasers. This property, which as described below remains in the ownership of the Theodorou family, is referred to as "the Remaining Theodorou Property". The strip at its rear affected by the right of way is referred to as "the Green Land", again because it was so coloured in the attached sketch plan. In 1969, the Theodorou family vacated both Lot E and Lot F and let them to tenants, and tenants remained in occupation of the Sidoti Property until it was sold, as described below, to the appellants in 2018. Tenants continue to occupy the Remaining Theodorou Property.
5. By deed of conveyance dated 18 March 1985, George and Despina Theodorou conveyed Lot E to their children Androula, Theodorou, Christopher and Jenny. This deed contained the same metes and bounds description as the deed of 1958, so that it included the Yellow Land. By another deed of conveyance of the same date, George and Despina Theodorou also conveyed Lot F to Androula, Theodorou, Christopher and Jenny.

The primary judgment

1. In the proceedings below, Mr Hardy claimed, in substance, a declaration that he was entitled to the Yellow Land by adverse possession, and orders restoring possession of it to him. On 28 February 2020, Mr Hardy lodged a caveat in respect of the Sidoti Property, claiming an "estate in possession in part of the land shown in DP1258823 and as further shown in the plan annexed to the Summons annexed hereto", by virtue of "that part of the land described above has been in adverse possession by the caveator for about 21 years". The relevant plan depicted the Yellow Land as the subject of the claim. The appellants filed a cross-claim, claiming removal of the caveat.
2. The primary judge concluded as follows: [23] 1. the Sidoti Property is land under the RP Act; 2. possessory title to land under the RP Act can generally only be acquired in accordance with the provisions of Part 6A of the Act. If Part 6A applies, Mr Hardy's case must fail; 3. part 6A does not apply, because Mr Hardy's adverse possession of the Yellow Land commenced, if not by May 2002 (with the removal of the old paling fence as the commencement of the extension and landscaping of Mr Hardy's backyard garden), then at the latest January 2005 (by which time landscaping was well advanced, including the laying of a weed mat covering the whole area including the Yellow Land and the Green Land, and the installation of granite pavers and mondo grass on the Yellow Land), and was extant as such when the Sidoti Property was brought under the Act in September 2005. By reason of ss 28U(2) and 45C(2) of the RP Act, Part 6A does not prevent Mr Hardy's acquisition of a possessory title of the Yellow Land by adverse possession at common law; 4. pursuant to Limitation Act 1969 (NSW) ("Limitation Act"), s 27(2), the relevant limitation period for an action by the Theodorou family as then documentary title holders to recover the Yellow Land had expired no later than January 2017. At that time, their title to the Yellow Land was extinguished pursuant to Limitation Act, s 65(1). It followed that the appellants did not acquire title to the Yellow Land when they purchased the Sidoti Property in April 2018; and 5. Mr Hardy had therefore acquired possessory title at common law to the Yellow Land and was entitled to orders to recognise that ownership, including that the appellants cease to trespass upon the Yellow Land, and remove structures they had erected on it and relocate the fence they have built.

Indefeasibility of a registered proprietor's title

1. RP Act, s 42, relevantly provides (emphasis added): 42 Estate of registered proprietor paramount (1) Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except: … (c) as to any portion of land that may by wrong description of parcels or of boundaries be included in the folio of the Register or registered dealing evidencing the title of such registered proprietor, not being a purchaser or mortgagee thereof for value, or deriving from or through a purchaser or mortgagee thereof for value, …" … (3) This section prevails over any inconsistent provision of any other Act or law unless the inconsistent provision expressly provides that it is to have effect despite anything contained in this section.
2. At least at first sight, this well-known provision, which is a cornerstone of the Torrens system, would apparently mean that, absent any suggestion of fraud against them, the appellants, as registered proprietors of the Sidoti Property, hold it subject only to such other estates and interests and such entries, if any, as are recorded in that folio, and absolutely free from all other estates and interests that are not so recorded. [25] Because they were purchasers for value, even the exception in par (c) would not affect the indefeasibility of their title. The interest of Mr Hardy by way of adverse possession is not recorded in the relevant folio, and accordingly the appellants would hold the Sidoti Property "absolutely free" of it. However, that assumes that s 42 applies, without qualification, to land in a limited folio.
3. Section 45 provides (emphasis added): 45 Bona fide purchasers and mortgagees protected in relation to fraudulent and other transactions (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. (3) Subsection (2) applies whether the fraud or error consists of a misdescription of the land or its boundaries or otherwise.

Possessory title and the RP Act

1. Apart from the RP Act, title to land may be acquired by adverse possession for a period of twelve years. That is because the owner's cause of action to recover land becomes statute-barred after that period, and the owner's right is thereupon extinguished. Limitation Act, s 27(2), provides that (subject to an exception for the Crown or a person claiming through the Crown), "an action on a cause of action to recover land is not maintainable by a person … if brought after the expiration of a limitation period of twelve years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims". By s 28, "[w]here the plaintiff in an action on a cause of action to recover land or a person through whom the plaintiff claims (a) has been in possession of the land, and (b) while entitled to the land, is dispossessed or discontinues his or her possession, the cause of action accrues on the date of dispossession or discontinuance." By s 65(1) and Schedule 4, on the expiration of the applicable limitation period for a cause of action to recover land, "the title of a person formerly having the cause of action to the [relevant land] … is, as against the person against whom the cause of action formerly lay and as against the person's successors, extinguished."
2. Section 8(1)(a) provides that nothing in the Limitation Act affects the operation of s 45C of the RP Act. Section 45C resides in Part 6A ("Possessory titles to land under the Act"), which commenced operation on 1 June 1979. Prior to its insertion, former s 45 prevented title to RP Act land being acquired by possession: No title to land adverse to or in derogation of the title of the registered proprietor shall be acquired by any length of possession by virtue of any statute of limitations relating to real estate, nor shall the title of any such registered proprietor be extinguished by the operation of any such statute.
3. Part 6A now makes provision for the acquisition of title to RP Act land by adverse possession. In place of the prohibition in former s 45, Part 6A now relevantly provides (emphasis added): 45C Acquisition of possessory title to land under the Act (1) Except to the extent that statutes of limitation are taken into consideration for the purposes of this Part, no title to any estate or interest in land adverse to or in derogation of the title of the registered proprietor shall be acquired by any length of possession by virtue of any statute of limitations relating to real estate, nor shall the title of any such registered proprietor be extinguished by the operation of any such statute. (2) Subsection (1) does not prevent the acquisition of a title, adverse to or in derogation of the title of the registered proprietor thereof, to an estate or interest in land brought under the provisions of this Act by the creation of a qualified or limited folio of the Register by reason of possession of the land for any length of time commencing before the creation of the folio. 45D Application for title by possession (1) Where, at any time after the commencement of this Part, a person is in possession of land under the provisions of this Act and: (a) the land is a whole parcel of land, (b) the title of the registered proprietor of an estate or interest in the land would, at or before that time, have been extinguished as against the person so in possession had the statutes of limitation in force at that time and any earlier time applied, while in force, in respect of that land, and (c) the land is comprised in an ordinary folio of the Register or is comprised in a qualified or limited folio of the Register and the possession by virtue of which the title to that estate or interest would have been extinguished as provided in paragraph (b) commenced after the land was brought under the provisions of this Act by the creation of the qualified or limited folio of the Register, that person in possession may, subject to this section, apply to the Registrar-General to be recorded in the Register as the proprietor of that estate or interest in the land. (2) Where, at any time after the commencement of this Part: (a) a person is in possession of part only of a whole parcel of land, and (b) any boundary that limits or defines the land in the person's possession is, to the extent that it is not a boundary of the whole parcel of land, an occupational boundary that represents or replaces a boundary of the whole parcel, the person may, unless the part of the whole parcel of which the person is in possession lies between such an occupational boundary and the boundary of the whole parcel that it represents or replaces, apply to the Registrar-General to be recorded in the Register as the proprietor of the same estate or interest in that whole parcel of land as could have been the subject of an application by the person under subsection (1) if the land in the person's possession had been that whole parcel of land and subsection (1) (b) and (c) had been complied with in relation thereto. (2A) A person who: (a) is in possession of part of a residue lot that could, if it had been a whole parcel of land, have been the subject of an application by the person under subsection (1), and (b) is (or is entitled to be) the registered proprietor of an estate in fee simple in land that adjoins that lot, may apply to the Registrar-General to be recorded in the Register as the proprietor of an estate in fee simple in land consisting of a consolidated lot comprising the part of the residue lot in the person's possession and the adjoining land. (2B) In subsection (2A), residue lot means an allotment consisting of a strip of land that the Registrar-General is satisfied: (a) was intended for use as a service lane, or (b) was created to prevent access to a road, or (c) was created in a manner, or for a purpose, prescribed by the regulations. … (4) A possessory application may not be made in respect of an estate or interest in land if: (a) the registered proprietor of that or any other estate or interest in the land became so registered without fraud and for valuable consideration, and (b) the whole of the period of adverse possession that would be claimed in the application if it were lodged would not have occurred after that proprietor became so registered, unless the application is made on the basis that the estate or interest applied for will be subject to the estate or interest of that registered proprietor if the application is granted. … (6) For the purposes of subsection (2), a reference to an occupational boundary that represents or replaces a boundary of a whole parcel of land is a reference to: (a) a fence, wall or other structure intended to coincide with or represent that boundary of the whole parcel, (b) a channel, ditch, creek, river or other natural or artificial feature that is itself land and is in close proximity to that boundary of the whole parcel, or (c) a give and take fence with respect to that boundary of the whole parcel.

The legislative history

1. The legislative history which informs an understanding of s 45C(2) commences with the Real Property (Conversion of Title) Amendment Act 1967 (NSW), which introduced Part 4A (originally "Qualified Certificates of Title", now "Qualified folios of the Register"). Although concerned with qualified as distinct from limited title, it provides crucial background to and context for provisions, including s 45C(2), which were later expanded to apply to limited title in addition to qualified title.

1967 - Qualified title

1. Essentially, a qualified folio permits old system land to be brought under the RP Act, but so as not to obliterate or postpone any subsisting interests in the land. The original Part 4A included, in s 28A, the following definition of "subsisting interest": "Subsisting interest", in relation to land comprised in a qualified certificate of title, means - … (b) any estate or interest in that land, arising by prescription or under any statute of limitations, that was in existence or in the course of being acquired at the date on which the qualified folio of the Register was created.
2. That definition has since been slightly amended, but is to the same effect: Subsisting interest, in relation to land for which a qualified folio of the Register has been created, means: … (b) any estate or interest in that land, arising by prescription or under any statute of limitations, that was in existence or in the course of being acquired at the date on which the qualified folio of the Register was created.
3. Section 28J requires the recording of a caution on a qualified folio, to the effect that the land comprised in it is held subject to any subsisting interest, whether or not it is recorded in the folio: 28J Cautions (1) When creating a qualified folio of the Register for any land, the Registrar-General shall record in that folio a caution warning persons dealing with the registered proprietor that the land comprised therein is held subject to any subsisting interest, whether recorded therein or not.
4. Section 28M(1), as originally enacted, prohibited the registration of an instrument dealing with land in a qualified folio of the Register unless the instrument was made subject to subsisting interests. In practice, instruments were made subject to subsisting interests by an appropriate note in the memorandum of prior encumbrances. The chief purpose of this provision was to guard against persons taking interests in the land without realising that it was not a conventional Torrens title. In reality, however, persons acquiring, or otherwise dealing with, land in a qualified folio have no option but to take subject to "subsisting interests". For this and other reasons, former s 28M(1) and (2) (a consequential provision) were omitted in 1979.
5. In its original form, s 28M also included the following provisions for lapsing and cancellation of the caution: (3) In favour of any person who is the registered proprietor of any estate or interest in land comprised in a qualified certificate of title and who, for valuable consideration and without fraud to which he was a party, acquired that estate or interest from a person who at the time of the acquisition was the registered proprietor of that land, the caution entered on that qualified certificate of title shall, as regards his estate or interest, lapse upon his becoming registered as proprietor of that estate or interest or at the expiration of six years from the date on which the land was brought under the provisions of this Act by the issue of the qualified certificate of title, whichever is the later, and thereupon that registered proprietor shall hold that estate or interest free from any interests affecting it at the date on which the land was brought under the provisions of this Act by the issue of the qualified certificate of title, other than those referred to in subsection five of this section. (4) The registered proprietor of land comprised in a qualified certificate of title may apply to the Registrar-General for cancellation of the caution entered on that qualified certificate of title, and the Registrar-General may cancel the caution if he is satisfied that by virtue of subsection three of this section all estates and interests in that land are held free from any subsisting interests, other than those referred to in subsection six of this section and free from any estate or interest which, after the date on which the land was brought under the provisions of this Act by the issue of the qualified certificate of title, arose by prescription or under any statute of limitations.

1976 - Limited Title

1. The next significant development was the introduction, in 1976, of the notion of limited title. [31] Essentially, a limited folio permits old system land to be brought under the RP Act notwithstanding that the location of its boundaries has not been confirmed. The 1976 provisions, as originally enacted, were never implemented, for reasons which will be explained later. [32] The circumstances in which they authorised the issue of a limited title were broadly similar to those under the present legislation. [33] However, rather than requiring endorsement of a notification on the folio (as the current regime does), s 28T then required (emphasis added): (4) When issuing a certificate of title under subsection (1), (2) or (3) the Registrar-General shall record on the relevant folio of the Register a caveat that - (a) specifies the conditions, being conditions relating to definition of boundaries, subject to compliance with which he will withdraw the caveat; (b) specifies any occupational boundary of the land that has been adopted under section 28U; and (c) forbids the registration of any transfer for valuable consideration of the land comprised in the certificate of title unless - (i) the conditions referred to in paragraph (a) are complied with; or (ii) the transfer is accompanied by an appropriate exemption certificate.
2. Section 28U provided for the adoption, for the purpose of issuing a limited certificate of title, of an occupational boundary as the boundary between the land comprised in that certificate of title and adjacent land: (1) This section has effect notwithstanding - (a) section 9 (2) of the Dividing Fences Act, 1951; or (b) anything in the Local Government Act, 1919, or any other Act, with respect to the subdivision of land. (2) Subject to subsections (3), (4) and (5), on and after the second anniversary of the date of assent to the Real Property (Amendment) Act, 1976, the Registrar-General may, for the purpose of issuing a limited certificate of title, adopt an occupational boundary as the boundary between the land comprised in that certificate of title and any conterminous land that is - (a) under common law title; or (b) comprised in a limited certificate of title in respect of which the limitation caveat specifies that boundary as an occupational boundary. (3) Where, under subsection (2), the Registrar-General, for the purpose of issuing a limited certificate of title, intends to adopt an occupational boundary as the boundary between the land to be comprised in that certificate of title and conterminous land under common law title, he shall cause notice of that intention to be given - (a) to the person to whom he intends to issue the limited certificate of title; and (b) to the person to whom, if no further survey definition were necessary adequately to define the boundaries of the conterminous land, he could issue a qualified certificate of title for that land under Part IVA. (4) A notice referred to in subsection (3) shall - (a) specify a period (being not less than one month after the date of the notice) before the expiration of which the limited certificate of title will not be issued; and (b) require the person to whom it is given to show cause to the Registrar-General within the period so specified why the certificate of title should not be issued. (5) Unless within the period specified in a notice given under subsection (3) cause is so shown to his satisfaction, the Registrar-General may proceed with the issue of the limited certificate of title. (6) Where an occupational boundary of land has been adopted under subsection (2) and that boundary is defined by a fence the position of which has been determined by an order under section 9(1) of the Dividing Fences Act, 1951, that order ceases upon the recording of the limitation caveat affecting the land, to have any further force or effect in so far as it relates also to the payment of compensation. (7) Where, under subsection (2), the Registrar-General adopts an occupational boundary of any land and, by reason only of the adoption of that boundary there is included in the limited certificate of title any land that, immediately before the issue of the certificate of title - (a) was under common law title and was owned by a person other than the registered proprietor named in the limited certificate of title; and (b) would not have been included in the limited certificate of title had that boundary been defined by survey, the land so included shall be deemed to have been duly and effectually assured to the owner for the time being of the balance of the land comprised in the limited certificate of title.

1979 - Possessory title

1. Then came the introduction, by Real Property (Possessory Titles) Amendment Act 1979 (NSW), of Part 6A ("Possessory Titles to Land under the Act"). The work formerly done by s 45 (as set out above) was given to s 45C which, as originally enacted, was as follows: Except to the extent that statutes of limitation are taken into consideration for the purposes of this Part, no title to any estate or interest in land adverse to or in derogation of the title of the registered proprietor shall be acquired by any length of possession by virtue of any statute of limitations relating to real estate, nor shall the title of any such registered proprietor be extinguished by the operation of any such statute.
2. While there was then no express sub-s (2), the reference in s 28P(2)(f) to s 45 was amended so as to refer to s 45C, and the words "in respect of which possession commenced before the land was brought under the provisions of this Act" were inserted, so that s 28P(2)(f) now deemed the following new subsection to be inserted at the end of s 45C: (2) This section does not apply to land comprised in a qualified certificate of title in respect of which possession commenced before the land was brought under the provisions of this Act.
3. This made clear that, as had been explained in Baalman, the exception was not confined to cases in which the possessory title had matured when the land was brought under the Act, but extended to cases where there was an inchoate claim in the sense that adverse possession had commenced as at that date.
4. In its original form, s 45D(1) was as follows: (1) Where, at any time after the commencement of this Part, a person is in possession of land under the provisions of this Act and - (a) the land is a whole parcel of land; (b) the title of the registered proprietor of an estate or interest in the land would, at or before that time, have been extinguished as against the person so in possession had the statutes of limitation in force at that time and any earlier time applied, while in force, in respect of that land; and (c) the land is comprised in a Crown grant or an ordinary certificate of title or is comprised in a qualified certificate of title and the possession by virtue of which the title to that estate or interest would have been extinguished as provided in paragraph (b) commenced after the land was brought under the provisions of this Act by the issue of the qualified certificate of title, that person in possession may, subject to this section, apply to the Registrar-General to be recorded in the Register as the proprietor of that estate or interest in the land.

1984 - Limited title revisited

1. The references to limited title were introduced into s 45D(1)(c), and s 45C, in 1984, when extensive amendments were made to the earlier limited title legislation in order to facilitate its use, by Real Property (Conversion of Title) Amendment Act 1984 (NSW) ("1984 Amendment Act"). The second reading speech, by the Hon BJ Unsworth MLC, explained why the earlier version of the limited legislation had not been implemented: [34] "The major obstacle to the implementation of the limited title legislation was the requirement that, in most cases, the owner was required to furnish a plan of survey or other survey information necessary to remove the limitation from the folio. As well, the requirements that the Registrar-General specify the limitation conditions, investigate applications for occupation boundaries and consider applications for exemption certificates would have imposed a heavy administrative burden. The present legislation is intended to provide a more functional limited title system and remove the burdens which would have been imposed on landowners and the State."
2. The Minister proceeded to explain the 1984 amendments (emphasis added): [35] "Section 28T(4) is amended to provide that a limitation recording shall be entered in the folio of the register and any plan deposited in the Registrar-General's office. Section 28V provides the means for removing the limitation recording from the folio of the register. This will be done upon the registration of a de-limitation plan which must be a plan of survey, and, if necessary, evidence that no part of the land is held in occupation adverse to the registered proprietor. Unless the land is subdivided or consolidated with other land in an ordinary or qualified folio, the title may remain limited indefinitely at the option of the owner. Provision is made in section 28Y that a person claiming an estate or interest in land comprised in a limited folio may lodge a caveat forbidding the registration of a de-limitation plan. The effect of the lodgement of such a caveat is, by virtue of sections 28ZA and 28ZB, to prevent the cancellation of the limitation recording for up to three months to allow the caveator to take steps to protect the interest claimed and resolve the question of title by court action. … Schedule 3 of the bill contains amendments of a consequential nature and amendments by way of statute law revision only."

Review

1. As it seems to me, the position can be summarised as follows: 1. under ss 14 and 14A, a primary application based on adverse possession can be made in respect of qualified title land. Such an application can be made in respect of limited title land only if and so long as it is also qualified title land; 2. under s 28P(1)(d), qualified title is subject to subsisting interests, which include both crystallised and inchoate adverse possessory claims existing at the date of conversion to qualified title. Under ss 28T(8)(d) and 28U(2), limited title (when it is not also qualified title) is subject only to any estate or interest that has been included in the limited folio by "wrong description of parcels or of boundaries"; 3. under s 118(4), the bar on proceedings for the possession or recovery of land against the registered proprietor does not apply, in the case of qualified title, to proceedings based on a subsisting interest, which includes crystallised and inchoate adverse possessory claims existing at the date of conversion to qualified title. In the case of limited title, the bar does not apply to proceedings brought by a person deprived of, or claiming, land that has been included in a limited folio by reason of the misdescription of the land in the limited folio or its boundaries; and 4. by s 45D(1)(c), a possessory application under Part 6A cannot be made in respect of land in a qualified or limited folio, if it depends to any extent on possession commencing before the qualified or limited folio was created. However, in those circumstances, under s 45C(2), acquisition of title by adverse possession to both qualified title and limited title land is not precluded by s 45C(1).
2. Prima facie, the 1984 amendments placed land in a limited folio in an analogous position to land in a qualified folio in respect of vulnerability to possessory claims which predated the creation of the relevant folio. That this was the intention is supported by the circumstance that s 45D permits possessory applications under Part 6A in respect of ordinary title, qualified title, and limited title land, but in respect of both limited title and qualified title land only if the possession relied on commenced after the creation of the limited or qualified folio. If s 45C(2) did not preserve a pre-existing general law possessory claim to limited title land, that would mean that while there was a way to make a possessory claim, by one means or another, in every other situation - as to ordinary title land, by possessory application under s 45D, whether in respect of a period of possession commencing before or after the land was brought under the Act; as to qualified title land, by possessory application under s 45D if the possession commenced after the land was brought under the Act, and by primary application under s 14 if the possession commenced before the land was brought under the Act; and as to limited title land, by possessory application under s 45D if the possession commenced after the land was brought under the Act - yet in the unique case of limited title where the possession commenced before the land was brought under the Act, there would be no provision. The reason why s 45D provides that possessory applications cannot be made in respect of qualified title and limited title land where the possession relied on commenced before the relevant title issued, whereas such applications are not precluded in the case of ordinary title land, is that in respect of qualified and limited title, the effect of the Limitation Act is not excluded in those circumstances, because of s 45C(2).

Misdescription

1. The phrase which appears in s 28U(2), "by any wrong description of parcels or of boundaries", reflects the phrase "by wrong description of parcels or of boundaries" in s 42(1)(c), to which it is addressed by way of exception, and it should therefore be understood to have the same meaning as in s 42(1)(c). Moreover, given the relationship between these provisions, the phrase in s 118(4)(b), "by reason of the misdescription of other land or its boundaries" should be regarded as bearing the same meaning.
2. In Hamilton v Iredale ("Hamilton"), [43] the defendant had obtained a certificate of title to the subject land in 1868. There was no other evidence of his title. The plaintiffs, on the other hand, showed a complete documentary title from the time of the Crown grant in 1799, had admittedly been in possession since 1878, and had erected houses on the land. They had received notice of the defendant's certificate of title in 1901, and immediately commenced proceedings for rectification of the certificate of title, arguing that in the circumstances the defendant's certificate of title was no bar to their claim. At first instance, the plaintiffs succeeded. AH Simpson CJ in Eq said: [44] "What evidence the examiners of title or the Registrar-General may have obtained on their own account as to the title of the defendant Iredale, I do not of course know, but, so far as the evidence before me is concerned, I am satisfied that the defendant Iredale showed no title to the triangular piece of land included in his application, and that the certificate in respect of that piece was issued to him in error. The second and more difficult question remains whether the plaintiffs' title is barred by the issue of the certificate. No doubt, it sounds startling to ask the Court to cancel or alter a certificate issued thirty-five years ago, but the startlingness is diminished when it is borne in mind that the defendant Iredale admits that he has never been in possession of the land claimed by the plaintiffs, or exercised any act of ownership over it, or set up any claim to it till November, 1901 (see paragraph 48 of the statement of claim which is admitted). While the plaintiffs or their predecessors in title have been in undisturbed possession for between twenty and thirty years, and have erected houses and other improvements on the property. However, if an Act of Parliament gives to the defendant land which, in my opinion, never belonged to him, he is of course entitled to keep it, so far as this Court is concerned … The description taken by itself is vague, but taken with the accompanying plan it is sufficiently clear. I am also of opinion that the land described in the application is the land described in the certificate, that is the triangular piece depicted on the certificate containing three roods twenty-three perches. It was strongly pressed on me by Mr. Street that this was not a case of wrong description of parcels or of boundaries: that the examiners of titles may have made an error in thinking the applicant had proved his title when he had not, but that he had sufficiently described the land he applied for, and the certificate was issued for the land so described: that, in short, there can only be said to be misdescription of parcels or boundaries where the certificate includes land not within the description in the application. If the matter were res integra I should have thought there was great force in this argument, but it appears to me to have been urged and disregarded in Marsden v. McAlister (8 N.S.W. R. 300). In that case by an error of a surveyor the land described in the certificate was put fourteen chains too far to the south, so that it took in land belonging to the defendants, but it appears from Dr. Donovan's argument, and his answers to questions put by the Chief Justice; that the description in the application was by metes and bounds and included the land in dispute. He pressed on the Full Court the same arguments that Mr. Street has urged before me, but the Court held that the defendants were not barred from setting up their title. The Chief Justice says, "Where there is a misdescription, although the certificate may be granted, nevertheless the certificate has not taken the legal estate; and, therefore, where land is erroneously included in a certificate of title, the legal estate still remains in the original owner of the land, who is entitled to bring an action of ejectment, founded upon such legal estate, to recover such land from the person who so holds it erroneously under the certificate of title. Under these circumstances, it appears to me that the 33rd and 40th sections of the Act must be read together. It follows, therefore, that the original proprietor having the legal estate can recover from the holder of the certificate so long as the land remains in his possession; but if it be parted with to a bona fide transferee, then the land cannot be recovered, the remedy then being under the 117th section to recover damages against the person upon whose application such land was brought under the provisions of the Act." In Rourke v. Schweikert (9 N.S.W. R. Eq. 152), the defendant obtained a certificate of title for land described as bounded on the north-east by the Field of Mars Common. It was afterwards discovered that the common did not extend so far to the south-west, and that there was a strip of land between the defendant's north-east boundary and the common. The defendant then applied for this strip, and an amended certificate was issued to the defendant including it. It is obvious that the defendant applied for a particular piece of land and got it. Owen, CJ in Eq., held that the plaintiff was entitled to have the certificate declared void so far as it included the strip. He says, p. 157, "In the recent case of Marsden v. McAlister (8 N.S.W. R. 300) following a long line of cases in this Court from Mate v. Nugent (7 S.C.R. 302), the Full Court decided that the 33rd section must be read with the 40th and 115th, and that the two latter sections must be taken to be exceptions to the 33rd; and they held that land wrongly included in the parcels of a certificate did not deprive the rightful owner of his legal interest in such lands. It is clear, therefore, that the certificate is not conclusive evidence that the land described in the certificate is justly included in it. In the reported cases the Court has determined that the parcels were not rightly included in the certificate by evidence of a better title to the land in some other person." The Full Court agreed with this view of the law, but held that there was no sufficient reason for the plaintiff coming into equity as he had a good defence at law to the defendants' action of ejectment. Lastly, in Hay v. Solling (16 N.S.W. L.R. 60), the facts were as follows: Mrs. French had a certificate of title which did not include the land in dispute. She applied to have the old certificate cancelled and a new one issued including the land in dispute. This was done, and the land was transferred to the defendant. The main question was whether he was a bona fide transferee, so that he could rely on s. 115, sub-s. (5), and other sections in favour of transferees. It seems obvious that Mrs. French applied for the land in dispute and had it included in her certificate, but the argument that this was not a case of "misdescription" of parcels or boundaries was apparently regarded as untenable and not urged. This seems to show that if the land belonging to B is erroneously included in A's certificate, the certificate may be amended by the Court as stated by the Chief Justice in Rourke v. Schweikert (9 N.S.W. Eq. 152, 164)."

Was the Yellow Land included in the Sidoti Property by "wrong description"?

1. If - as the primary judge found, which is unchallenged on appeal - Mr Hardy had been in possession of the Yellow Land, to the exclusion of the owners of Lot E, for in excess of twelve years commencing before the limited folio was created for the Sidoti property in late 2005, then, when the limited folio was created: 1. regardless of the metes and bounds description, according to which the boundary was the northern edge of the Yellow Land, the occupational boundary was provided by the old corrugated iron fence on the southern side of the Yellow Land; and 2. Mr Hardy had an inchoate possessory interest in the Yellow Land.
2. In those circumstances, the Yellow Land was incorrectly included in the limited folio for the Sidoti property, by "wrong description of parcels or of boundaries".
3. For the appellants, it was submitted that the northern boundary of the Sidoti Property as recorded in the registered plan was not and could not have been a relevant misdescription because, even if Mr Hardy had acquired a possessory interest in the Yellow Land, there was no "wrong description of boundaries", as the true boundary was still the boundary between that land and the Hardy property; it aligned with the straight east-west southern boundary of the Hardy property and with the northern boundary of each of the adjoining terrace houses along Boronia Street, being Lots A, B, C, D, F, and G; and it delineated the northern side of the right of way, which ran east to west through the rear of the properties along Boronia Street, being Lots A, B, C, D, F, and G, on the titles of each which the right of way remains recorded. However, these submissions overlook that the occupational boundary was the southern edge of the Yellow Land, in which Mr Hardy already had an inchoate possessory interest. The description of the Sidoti Property in the limited folio was wrong insofar as it included the Yellow Land: in the formula used in Hamilton, the Sidoti Property was so described as to wrongly include the Yellow Land. Although it was submitted, for the appellants, that there could have been no "wrong description" as the limited folio was created long before any possessory title could possibly have vested in Mr Hardy, this overlooks that at the time of creation of the limited folio, the adverse possession had commenced, giving rise to an inchoate interest, the enforceability of which was preserved by s 45C(2). The Yellow Land, subject as it was to Mr Hardy's inchoate possessory claim, was included "by wrong description of parcels or of boundaries" in the limited folio for the Sidoti property.

Notice to mortgagee

1. The appellants submitted that the summons should have been dismissed because the National Australia Bank ("the Bank"), as registered mortgagee of the Sidoti Property, was a necessary party to any proceedings in which orders might be made affecting its interest in its mortgage over any part of the Sidoti Property, including the Yellow Land.
2. This issue was not raised below, until after judgment when orders were made. When it was raised, the primary judge reserved "for further consideration" the rights of existing encumbrancees. That has not been pursued.
3. It may well be open to the Bank, if so advised, to apply to set aside the orders made in its absence. [54] However, that does not mean that the application would inevitably succeed, nor if it did that the ultimate result would be any different. It would be relevant that, although a registered mortgagee obtains the benefits of indefeasibility (as is specifically provided for by s 42(2)), in the case of land in a limited folio its interest is subject to the same exceptions as those of the registered proprietor, including in particular to an adverse interest in land which has been incorrectly included in the folio by wrong description of parcels or of boundaries. On that basis, the intervention of the mortgagee would not appear likely to result in a different outcome.
4. It would also be relevant that, given the size of the Yellow Land (3.35 square metres) relative to the Sidoti Property as a whole (86.3 square metres), its location at the very rear of the property, and the absence of substantial improvements on it, its impact on the value of the mortgagee's security would appear to be de minimis.
5. In those circumstances, where no application has been made by the Bank, and where there has been a reservation of further consideration but no application has been made in pursuance of it, absence of notice to the Bank does not require that the appeal be allowed.

Leave to appeal

1. An appeal to this Court from a final judgment requires leave unless, relevantly, the appeal involves (directly or indirectly) a claim, demand or question to or respecting property of the value of $100,000 or more. [55] In this context, the relevant value is that of the claim, rather than of the property to which it relates. [56] There is nothing to indicate that the claim to title of the 3.35 square metres that comprises the Yellow Land is worth $100,000 or more. Leave to appeal is required.
2. However, the issues raised are questions of principle, and not without importance to the operation of the Torrens system in this State. In circumstances where they have been fully argued, I would not refuse leave to appeal.

Conclusion

1. My conclusions may be summarised as follows: 1. the title of the registered proprietor of a limited folio is subject to an adverse interest in land which has been incorrectly included in the folio by wrong description of parcels or of boundaries (s 28U(2)); 2. in the context of a limited folio, a portion of land will have been incorrectly included in the folio by wrong description of parcels or of boundaries if, at the time when the folio was created, that portion was subject to a crystallised or inchoate possessory interest of a person other than the registered proprietor of the limited folio; and 3. in such circumstances, the person with the possessory interest is not precluded from enforcing it, dehors Part 6A (s 45C(2)).
2. Applied to this case, the limited folio for the Sidoti Property incorrectly included the Yellow Land, in which Mr Hardy had an inchoate possessory interest, by wrongly describing the Sidoti Property as including the Yellow Land. In those circumstances, the Sidoti title was subject to the adverse interest of Mr Hardy, who was entitled to enforce it, as he has, in these proceedings.
3. In circumstances where no application has been made by the mortgagee Bank to set aside the orders, where it is far from clear that such an application must succeed, or if it did that it would ultimately result in a different outcome, and where there has been a reservation of further consideration but no application has been made in pursuance of it, absence of notice of the proceedings to the mortgagee does not require that the appeal be allowed.
4. Leave to appeal should be granted, but the appeal should be dismissed with costs.
5. I propose orders that: 1. Leave to appeal be granted; and 2. The appeal be dismissed, with costs.
6. SIMPSON AJA: This appeal and cross appeal involve consideration of provisions of the Limitation Act 1969 (NSW) and the Real Property Act 1900 (NSW). Since these provisions have been reproduced, and the relevant facts stated, in the judgments of Basten JA and Brereton JA I will confine my references to the minimum necessary to permit an understanding of my reasons for the conclusions I have reached.

Limitation Act 1969 (NSW)

1. Section 27(2) creates a limitation period of 12 years for actions to recover land: it provides that an action to recover land is not maintainable after the expiration of 12 years from the date on which the cause of action arose. By s 65(2) and Schedule 4, on the expiration of that limitation period, the title to the land of a person who would formerly have had a cause of action to recover land is extinguished as against the person against whom the cause of action formerly lay.
2. However, while those provisions permit the acquisition of title to land under common law, or Old System title, and, from the expiration of the 12 year limitation period, effect the extinguishment of the title of the owner of such land, they do not have the same effect in relation to land under the provisions of the Real Property Act: Van den Bosch v Australian Provincial Assurance Association Ltd [1968] 2 NSWR 550; (1968) 88 WN (Pt 1) (NSW) 357, at 363-365; Spark v Meers [1971] 2 NSWLR 1, at p 13.
3. That was the effect of s 45 of the Real Property Act as it then stood, the terms of which are set out at p 3 of Spark, and which, subject to a qualification to which I will come, are essentially re-enacted in s 45C(1). Section 45C(1) provides: 45C Acquisition of possessory title to land under the Act (1) Except to the extent that statutes of limitation are taken into consideration for the purposes of this Part, no title to any estate or interest in land adverse to or in derogation of the title of the registered proprietor shall be acquired by any length of possession by virtue of any statute of limitations relating to real estate, nor shall the title of any such registered proprietor be extinguished by the operation of any such statute.
4. However, s 45C(2) provides: (2) Subsection (1) does not prevent the acquisition of a title, adverse to or in derogation of the title of the registered proprietor thereof, to an estate or interest in land brought under the provisions of this Act by the creation of a qualified or limited folio of the Register by reason of possession of the land for any length of time commencing before the creation of the folio.

The Real Property Act 1900 (NSW) (hereafter "the Act")

1. Part 4 of the Act provides for applications to bring Old System land under its provisions. The essential feature (at least for present purposes) of land under the Act is that, on the inclusion of land in the Register, the registered owner has the advantage of the indefeasibility of title conferred by s 42 and s 45. The relevant provisions of s 42 and the whole of s 45 in its current form are set out at [15] and [17] of the judgment of Basten JA (see also [76] and [78] of the judgment of Brereton JA). The qualification to which I referred above is that statutes of limitation may be taken into consideration for the purposes of Pt 6A.
2. Part 4A (ss 28A-28R) provides for the creation of qualified folios of the Register. By s 28E the Registrar-General may initiate the process and, by subs (2) thereof, may create a qualified folio. The qualification (as expressed in s 28J(1) appears to be that the title is held subject to any subsisting interests, whether or not recorded in the Register. Part 4B (ss 28S-28ZD) provides for the creation of "limited folios" where the boundaries of the land in a registered deed are not sufficiently defined to enable the creation of a qualified folio. By subs (4) of s 28T, when creating a limited folio of the Register, the Registrar-General is required to make in the folio a recording to the effect that the description of the land comprised therein has not been investigated by the Registrar-General. Subsection 8 of s 28T relevantly provides as follows: 8 Except as otherwise provided by any other provision of this Part: (a) land comprised in a limited folio of the Register is subject to the provisions of this Act, … (d) a limited folio of the Register shall be evidence as to title in all respects as if it were an ordinary folio of the Register, except that: (i) the certification of title is not conclusive as regards the definition of the boundaries of the land comprised therein …
3. Section 28U provides as follows: 28U Defeasibility of limited title (1) Section 12 (3) (b) does not apply to or in respect of a correction made by the Registrar-General of any wrong description of parcels or of boundaries in relation to land included in a limited folio of the Register. (2) Where by any wrong description of parcels or of boundaries any land is incorrectly included in a limited folio of the Register, section 42 (1) does not operate to defeat any estate or interest in that land adverse to or in derogation of the title of the registered proprietor and not recorded in the folio, whether or not the registered proprietor is a purchaser or mortgagee of that land for value or derives title from such a purchaser or mortgagee. (Section 12(1)(d) permits the Registrar-General to correct errors and omissions in the Register; by s 12(3)(b), any such correction is deemed to have no force or effect where the correction would prejudice or affect a right already accrued from a recording in the Register).

Part 6A

1. Part 6A (ss 45B-45G), inserted in 1979 (by the Real Property (Possession Titles) Amendment Act 1979, Sch 1, cl 9), provides for the acquisition, in limited circumstances, of possessory title to land under the provisions of the Act. The key provision is s 45D. As s 45D has been set out in its entirety in the other judgments, it is sufficient to summarise its relevant provisions, as I understand them: (1) pursuant to subs (1) an application may be made to the Registrar-General by a person in possession of property to be registered as the proprietor of the property where: 1. the land is comprised in an ordinary, qualified, or limited folio of the Register; 2. the title of the registered proprietor would, had statutes of limitation been applicable, have been extinguished as against the person in possession; 3. the possession by virtue of which title would have been extinguished commenced after the creation of the folio by which the land was brought under the provisions of the Act; and, importantly, 4. the land in respect of which the claim is made is a whole parcel of land. (2) Subsection (2) applies where the possession is of part only of a whole parcel of land: the subsection nevertheless permits an application for possessory title of the whole parcel. There is no provision in s 45D or elsewhere in the Act for a claim for possessory title of part of a whole parcel of land. (3) Subsection (2A) provides for application for possessory title by adjoining owners of "residue lots" which are defined (in subs (2B)) as lots intended to be used as service lanes, lots created to prevent access to roads, and otherwise as prescribed by regulation. (4) By subs (4) a possessory application may not be made if: 1. the registered proprietor became registered without fraud and for valuable consideration; and 2. the whole of the period of adverse possession would not have occurred after the proprietor became registered unless the application is made on the basis that the estate or interest applied for will, if the application is granted, be subject to the estate or interest of the registered proprietor.

The relevant facts

1. As the relevant facts are comprehensively stated in the judgments of Basten JA and Brereton JA and in the judgment of Kunc J at first instance (Hardy v Sidoti [2020] NSWSC 1057), I can be brief. The following assumes familiarity with the judgments of Basten JA and Brereton JA.
2. The salient facts, which are not, for the purposes of the appeal, in dispute, are: (i) in January 1998 the respondent (Mr Hardy) and his then partner purchased the property that runs from west to east between Baptist St and Dalley Lane in Redfern ("the Hardy property"). The property was then held under Old System, or common law, title; (ii) adjoining the Hardy property, at right angles, is a series of seven properties (Lots A-G) that face Boronia Street and run south to north. These properties were also, until 2005, held under Old System title; (iii) on the southern side of the Hardy property (but not part of that property), running the length of the property between Baptist Street and Dalley Lane, is a narrow strip of land that was, in past times, used as a laneway for the purpose of "night soil" collection; (iv) the laneway mentioned in (iii) above forms part of each of Lots A-G of the Boronia Street properties; that is, each of Lots A-G includes that part of the laneway that falls within the eastern and western boundaries of the individual Lot. In each case, that part of the Lot that constitutes the laneway is subject to a right of way for the purpose mentioned above; (v) at the time of the Hardy purchase, and until 2018, Lot E of the Boronia Street properties was owned by members of the Theodorou family. There were two fences (although dilapidated) on Lot E: one on the northern boundary, that marked Lot E from the Hardy property; and one that marked the southern boundary of the right of way and was well within Lot E; (vi) from 2002 Mr Hardy so acted as to assert proprietorial rights over that part of Lot E that constitutes part of the right of way. He demolished the fence on the southern boundary of the Hardy property and used the space so accessed for storage of garden tools; by 2005 he had undertaken landscaping works on what had been the laneway; (vii) in September 2005, consistently with government policy to bring existing Old System parcels of land under the Torrens System, the Registrar General, on his own initiative, commenced a process of converting the Boronia Street titles (including that of Lot E) to Torrens title under the provisions of the Act (s 28E). Initially, a qualified folio (s 28E(2)) was created; on 27 September 2005 the qualification was removed and a limited folio created (s 28T); the folio included the land subject to the right of way that was in accordance with the deposited plan that identified the boundaries of Lot E; it also included the recording, required by s 28T(4), that the boundaries of the land had not been investigated by the Registrar-General; (viii) on 18 April 2018 the appellants purchased Lot E from the Theodorou family and their title was registered in accordance with the Act. The registered title includes that part of the land that constitutes the laneway and is subject to the right of way; the registration is subject to the limitation specified in s 28T(8)(d)(i) - that is, it is not conclusive as regards the definition of the boundaries of the land; (ix) the appellants began renovations of Lot E and, in so doing, removed the fence on the southern boundary of the right of way and relocated it to the northern boundary, that is the boundary with the Hardy property. They thus effectively reclaimed that part of Lot E that Mr Hardy had occupied at least since 2005 and possibly since 2002.

Part 6A

1. It was not in issue on the appeal that, once the limited folio was issued, the land comprising Lot E became subject to the Act (s 28T(8)(a)) and the appellant had the benefit of the indefeasibility provisions (s 42, s 45), subject to any relevant exceptions in the Act. The relevant exceptions are to be found in s 28U and Pt 6A.
2. Part 6A provides the avenues (limited to two) by which land under the provisions of the Act may be the subject of claims for title by adverse possession. Those avenues are provided in s 45D (and outlined above).
3. None of these was applicable to Mr Hardy's claim. Subsections (1) and (2) of s 45D require the claim to be for the whole parcel of land (although, for a subs (2) application, it is not necessary that the adverse possession be of the whole parcel). Mr Hardy's claim was never for the whole parcel of land, and, accordingly, s 45D(1) and (2) provide no avenue by which he could claim possessory title. Subsection (2A) provides for title of "residue lots" which are the subject of separate folios. Although in this case, the laneway was created as a "service lane", it was part of each of Lots A-G of the Boronia Street properties, and was not contained on a separate title. Subsection (2A) provided no avenue for Mr Hardy to claim possessory title.
4. Mr Hardy was not entitled to claim possessory title under Pt 6A.

Section 28U(2)

1. As indicated above, the appellants acquired the benefit of indefeasibility subject to any relevant exceptions contained in the Act. The primary judge found that subs 28U(2) provided an exception. It is worth repeating subs 28U(2), which provides: "Where by any wrong description of parcels or of boundaries any land is incorrectly included in a limited folio of the Register, s 42(1) does not operate to defeat any estate or interest in that land adverse to or in derogation of the title of the registered proprietor and not recorded in the folio, whether or not the registered proprietor is a purchaser or mortgagee of that land for value or derives title from such a purchaser or mortgagee."
2. The primary judge found that that exception applied because the Yellow Land had incorrectly been included in the limited folio when it was created in September 2005 (at [128 (4)]). His explanation for that conclusion is puzzling. The limited folio was created in 2005. The primary judge said that, at the date of creation of the limited folio, Mr Hardy had possessory title of the Yellow Land. In the previous paragraph, however, he had said that, by September 2005, Mr Hardy had been in possession of the Yellow Land (for the purposes of s 45C, to which I will come) since at least January 2005, and as early as May 2002. That is well short of the 12 years necessary to enliven the relevant provisions of the Limitation Act.
3. In those circumstances, Mr Hardy could not have had possessory title to the Yellow Land at the time the limited folio was created in September 2005. There was no wrong description of any parcel or boundary at that time. Section 28U(2) did not operate to counter the effect of s 42(1).

Section 45C(2)

1. Again, it is worth repeating the relevant provision: 45C Acquisition of possessory title to land under the Act (2) Subsection (1) does not prevent the acquisition of a title, adverse to or in derogation of the title of the registered proprietor thereof, to an estate or interest in land brought under the provisions of this Act by the creation of a qualified or limited folio of the Register by reason of possession of the land for any length of time commencing before the creation of the folio.
2. The primary judge found that s 45C(2) applied in such a way as to preserve Mr Hardy's common law claim to possessory title. That was because Mr Hardy had (on the primary judge's factual finding) been in possession since at least January 2005 (that is "for any length of time commencing before the creation of the [limited] folio of the Register"), as a result of which subs (1) did not prevent Mr Hardy's acquisition of possessory title. In my opinion, having regard to the primary judge's factual findings which are not subject to challenge, that conclusion is inescapably correct.
3. Grounds 2 and 3 of the amended Notice of Appeal are relevantly in the following terms: "2. The Judgment below held erroneously at [11(3)] and [128(3)] that by reason of ss 28U(2) and 45C(2) of the RP Act the respondent's claim to possessory title to the 'Yellow Land' is not subject to the 'prohibition' in s 45C(1) of the RP Act, when it ought to have held: a. the respondent's claim is subject to the restrictions imposed on the operation of any statute of limitations (that might otherwise create title to any estate or interest in land adverse to or in derogation of the title of the registered proprietor or extinguish the title of any such registered proprietor); b. s 45C(2) does not negate such limitations; c. s 45C(2) instead operates to ensure that an adverse possession application that can otherwise [be] made under Part 6 of the RP Act (to the extent that statutes of limitation are taken into consideration for the purposes of that Part) can rely on a period of possession of the relevant land which commenced before the creation of a limited folio for that land - notwithstanding any restrictions imposed by s 45C(1) that might be read to the contrary); and d. s 45C(2) does not operate to facilitate the acquisition of a title, adverse to or in derogation of the appellant's registered title in the land created by registration of the transfer to the appellant, and the listing of the appellant as registered proprietor of the Sidoti Property including the Yellow Land. 3. The Judgment below held erroneously at [11(5)] and [128(3)] that the respondent 'is able to acquire possessory title to the Yellow Land at common law rather than pursuant to s 45D of the Act', when it should have held that: a. the effect of s 45C is that except as provided for by Part 6A of the RP Act no title to any estate or interest in the Yellow Land adverse to or in derogation of the title of the appellants as registered proprietors of that land can be acquired by any length of possession by virtue of any statute of limitations relating to real estate, nor shall the title of any such registered proprietor be extinguished by the operation of any such statute (subject only to the limited qualification arising from s 45C(2) described in Ground 22 (sic) (b) above); b. at all material times since the creation of the limited folio for the Sidoti Property, Part 6A has provided the exclusive scheme by which possessory title could be established over the Yellow Land, and s 27 of the Limitation Act could not albeit [sic] that possession of that land for any length of time commencing before the creation of that limited folio was available to be relied upon in any application made under s 45D subject to the restrictions imposed by that section; … ."

Endnotes

1. See Conveyancing Act 1919 (NSW), s 89.
2. Deguisa v Lynn (2020) 94 ALJR 1020; [2020] HCA 39 at [3], [88] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ): see further below.
3. Buckingham County Council v Moran [1990] 1 Ch 623 at 644D (Nourse LJ), a phrase adopted by the Privy Council in its last judgment on appeal from Hong Kong, delivered by Lord Hoffmann, Sze To Chun Keung v Kung Kwok Wai David [1997] 1 WLR 1232 at 1235 (PC); K Gray & SF Gray, Elements of Land Law (5th ed, 2009, Oxford University Press) at [9.1.5] ("Gray & Gray").
4. HW Ballantine, "Title by Adverse Possession" (1918) 32 Harvard Law Review 135 at 135 ("Ballantine"); Gray & Gray at [9.1.6].
5. Compare Clement v Jones (1909) 8 CLR 133, 139-140 (Griffith CJ); [1909] HCA 11.
6. RA Woodman & P Butt, "Possessory Title and the Torrens System in New South Wales" (1980) 54 Australian Law Journal 79 at 85.
7. Land Titles Legislation Amendment Act 2001 (NSW), Sch 2[1].
8. Deguisa at [66].
9. (2007) 233 CLR 528; [2007] HCA 45 at [5].
10. Westfield at [39]; Deguisa at [69].
11. Above at [13].
12. Ballantine at 135; Gray & Gray at [9.1.6].
13. Interpretation Act 1987 (NSW), s 33.
14. Hardy v Sidoti (2020) 19 BPR ¶40,535; [2020] NSWSC 1057 ("Primary judgment").
15. It was unclear whether there was also a fence separating the Yellow Land from the Green Land; as the primary judge observed (Primary judgment at [23]), this seems unlikely, given that both were in the common documentary ownership of the Theodorou family for many years, but nothing turns on it.
16. Land Registry Services, "Registrar-General's Guidelines - Land Dealings - Dealings Involving - Notifications on the Register", https://rg-guidelines.nswlrs.com.au/land_dealings/dealings_involving/notifications, accessed 13 April 2021 ("Registrar-General's Guidelines - Dealing involving Notifications on the Register").
17. Land Registry Services, "Registrar-General's Guidelines - Deposited Plans - Conversion of Old System - Deposited Plans Redefining Old System Land - Limited Titles", , accessed 13 April 2021 ("Registrar-General's Guidelines - Limited Titles").