Consideration
29On 3 September 2013, I determined that relief is not available under s 66G in these proceedings. I stated that I would later give reasons for my decision, those reasons now being contained in the present judgment.
30By reason of my determination against granting the plaintiff relief under s 66G, the plaintiff's second Notice of Motion was also determined on 3 September 2013. I determined that leave ought be granted to the plaintiff to amend its Statement of Claim to join the Registrar-General and gave an ex tempore reasons in that respect.
31In Commonwealth Bank of Australia v MacDonald, supra, it was observed:
"(2) Co-ownership
33 The more divisive question between the parties is whether what had happened in the instant case means that the first and second defendants hold the shares or the right to occupation as co-owners.
34 Co-owners must, by definition either be joint tenants or tenants in common. The defendants are obviously not joint tenants. The question is thus, do the defendants hold the shares as tenants-in-common?
35 At first blush they do not. With a tenancy in common, each co-owner holds some interest in the whole of the property. On the facts in the instant case, the second defendant holds a distinct 40% interest and has no interest in the first defendant's 60% and vice versa.
36 To constitute a tenancy in common, there must be an equal right to possession of every part and parcel of the subject matter of the tenancy; joint possession is not essential, unity of the right of possession being all that is required ... Unity of possession means that each co-owner is as of right as much entitled to possession of any part of the property as the others..."
32At the hearing, Mr Gor drew my attention to extracts from Woodman & Nettle's, The Torrens System in NSW. In the discussion in that case of common ownership, the learned authors observed:
"Whatever the meaning of 'joint proprietors', it does not include proprietors who own 'in severalty', as distinct from in common. For example, assume that A owns lot 1 and B owns lot 2, and they agree to consolidate their land into a new lot, lot 3. Assume also that the Registrar-General records as the owners of lot 3: "A as to the land formerly in lot 1; and B, as to the land formerly in lot 2". Here, A and B are 'several', or independent, owners; they are neither joint tenants nor tenants in common but separate owners - see Aoun Investments Pty Ltd v Chief Commissioner of State Revenue ..."
33That example is apt in the circumstances of the present case. In the extract from Baalman & Wells', Land Titles Office Practice to which Mr Gor drew my attention it is observed at 205.500:
"As a result of subdivision of land by a proprietors of separate titles, a folio of the Register may occasionally be created in the names of different proprietors of parts of one lot in a Deposited Plan. These folios are commonly referred to as 'dual ownership' or 'multiple ownership' folios of the Register.
The extent of each proprietor's interest in the land in the current folio of the Register is described by reference to the previous folio of the Register of which he or she was registered proprietor.
Eventually the entirety should pass into single ownership but unless this happens or specific delivery instructions are received, the dual ownership certificate of title is filed in the Delivery Section until such time as transfers are lodged passing the entirety into single ownership."
34In the present case the evidence includes a title search of the relevant certificate of title. In relation to each of the first, second and third defendants, the title in the First Schedule records, against the name of each, the ownership in terms "... of the part formerly in ..." there then appearing the relevant folio numbers.
35It is clear, in my opinion, that each of the defendants are several owners of particular parts of the property as so described. This is not a case in which they hold title as either joint tenants or tenants in common.
36In those circumstances, it is clear that relief is not available under s 66G of the Conveyancing Act as the property is not held in co-ownership.
37It was upon that basis that the relief sought under the Notice of Motion filed on 25 May 2012 was refused at the conclusion of the hearing on 3 September 2013.