Walker & Sopov v Registrar of Titles [2001] VSC 354

Walker & Sopov v Registrar of Titles [2001] VSC 354 - VSC 2001 case summary — Zoe

[31]

"Grounds of Refusal: 12. The application and the subject plan do not fall within the requirements of section 32(3) of the Subdivision Act. 13. Section 32(3), relevantly, permits only a subdivision of the lot owned into new lots. 14. Section 32(3), relevantly, does not permit the creation of new common property or a new body corporate. 15. In any event, the subject plan alters the boundaries of common property in contravention of section 32(3). 16. Further, in any event, if the subject plan was to be registered, then by virtue of section 27(2B): (a) the common property would not vest in the owners for the time being of the lots on the subject plan; (b) the Registrar could not create a folio of the Register for the common property in the name of the limited body corporate as nominee for those owners. 17. In that case: (a) the common property could only vest in the owners for the time being of all the lots on the registered plan; (b) the Registrar could only create a folio of the Register for the common property in the name of the unlimited body corporate as nominee for those owners. 18. In that way the subject plan would alter the boundaries of common property contrary to section 32(3). 19. Further, neither those owners have, nor the unlimited body corporate has, consented to the subject plan. 20. It is a basic principle that a person cannot be compelled to take an interest in land against his will and, further, it is a basic tenet of the Transfer of Land Act 1958 and the system of registration provided for that a person who acquires an interest in land or on whom an interest in land devolves should consent to it and signify that consent. 21. In any event, in exercise of his powers under section 105 of the Transfer of Land Act, the Registrar is of the opinion that the consent of those owners and the unlimited body corporate is necessary or desirable to the registration of the subject plan. 22. The Registrar would only register the subject plan if otherwise in order and if the unlimited body corporate, for itself and as nominee for those owners: (a) made the application; (b) joined in the application; or (c) consented to the application - subject to any contrary order of the court of competent jurisdiction."

[41]

"32. How can a subdivision containing a body corporate be altered? (1) If there is a unanimous resolution of the members, a body corporate may proceed under this section to do one or more of the following: (a) dispose of the fee simple in - (i) all or part of any common property; or (ii) any other land purchased or obtained by it; (b) purchase or otherwise obtain land - (i) for inclusion in or to become common property; or (ii) which is or is to become a lot; (c) alter the boundaries of any land affected by the body corporate; (d) increase or reduce the number of lots affected by the body corporate; (e) create new lots or new common property. (f) create and name a body corporate and specify the land to be land affected by that new body corporate and specify lot entitlement and lot liability in relation to that new body corporate; (g) dissolve itself if - (i) it is a body corporate without common property and it owns no land; or (ii) it disposes under this sub-section of all its common property and all the land that it owns; (h) merge with another body corporate (created on the same or another plan) if - (i) none of the land affected by the first body corporate is land affected by the other body corporate and the merger would not result in the same land being land affected by two or more unlimited bodies corporate; or (ii) one of the merging bodies corporate is an unlimited body corporate and the land affected by that body corporate includes all the land affected by all other merging limited bodies corporate; (i) create, vary or remove any easement or restriction (including an implied easement); (j) consolidate into a single lot all the land affected by the body corporate if - (i) it is an unlimited body corporate and, if any land affected by it is also affected by a limited body corporate, the members of that limited body corporate by unanimous resolution consent to the consolidation; or (ii) none of the land affected by the body corporate is land affected by another body corporate; (k) create, alter or extinguish lot entitlement or lot liability in any way necessary because of the exercise of its other powers under this sub-section; (l) amend or cancel a scheme of development under the Cluster Titles Act 1974 in any way necessary because of the exercise of its other powers under this sub-section. (m) create roads or reserves." (2) If it proceeds under sub-section (1), a body corporate must submit for certification and lodge for registration a plan showing the changes to be made to any registered plan. (2C) If the exercise by a body corporate of its powers under sub-section (1) involves land affected by another body corporate (whether on the same or another plan) and the other body corporate is not a limited body corporate all of whose members are members of the first body corporate, the first body corporate must first get from the members of the other body corporate their consent by unanimous resolution. (2F) To the extent that a plan referred to in sub-section (2) affects common property, consent to the plan is not required by any person in respect of any lot if the common property is not vested in the owners of that lot. (3) The owner or owners of a lot or lots affected by a body corporate on a registered plan may, without obtaining a resolution of the body corporate, proceed under this sub-section to consolidate, subdivide or alter the lot or lots owned, if the consolidation, subdivision or alteration does not alter the boundaries of common property and does not alter the boundaries or lot entitlement or liability of lots not being consolidated, subdivided or altered. (4) If an owner proceeds under sub-section (3), the owner must submit for certification and lodge for registration a plan showing the changes to be made to the registered plan. (5A) In relation to - (a) a plan referred to sub-section (2) that relates to some but not all of the land in the registered plan and does not relate to common property; or (b) a plan referred to in sub-section (4) - consent to the registration of the plan is not required by any person in respect of land that is not the subject of the plan. (5B) If a body corporate is created on a registered plan, the body corporate or the owner of a lot on that plan must not submit for certification or lodge for registration a plan consolidating, subdividing, or altering boundaries of any land affected by the body corporate except - (a) under this section or section 23, 32A, 36 or 37; or (b) in accordance with a court order under this Act. ... (8) Despite section 24, on the registration of a plan under sub-section (2) or (4) of this section, the Registrar may if appropriate - (a) create a folio of the Register for the existing common property and a folio of the Register for newly created common property in the name of a relevant body corporate; or (b) create in the name of the relevant body corporate a single folio of the Register for existing and newly created common property."

[71]

"27. How is a body corporate created? (1) A plan may provide for the creation of one or more bodies corporate consisting of the owners of specified lots. (2) A plan which contains common property must provide for the creation of one or more bodies corporate. (2A) A plan may provide for the creation of one or more limited bodies corporate. (2B) A lot must not be affected by more than one body corporate unless one of the bodies corporate affecting the lot is an unlimited body corporate and all the others affecting the lot are limited bodies corporate, and in that event - (a) section 28(d) and (e) do not apply to any common property affected by any limited body corporate affecting the lot; and (b) only the members of a limited body corporate affecting the lot are entitled to use any common property affected by that limited body corporate; and (c) section 31(6) applies to the winding up of a limited body corporate affecting the lot as if it did not refer to the cancellation of the plan; and (d) section 31(7) applies to the winding up of a limited body corporate affecting the lot as if it provided `(7) The limited body corporate is dissolved when the Registrar amends the plan'. (2C) A plan providing for the creation of a body corporate or merger of bodies corporate may be accompanied by proposed rules for the body corporate and, on the registration of the plan, they must be taken to be rules made by the body corporate and may be revoked or amended accordingly. (3) The plan must specify details of lot entitlement and liability and contain the prescribed information. (4) The prescribed information which a plan must contain under sub-section (3) is not limited to information about the body corporate or lot entitlement or liability. (5) The Registrar must as prescribed record information and must amend that information in the prescribed circumstances." 28. What is the effect of registration of a plan containing common property? In addition to section 24, when a plan providing for the creation of one or more bodies corporate or containing common property is registered - (a) each body corporate for which the plan provides is incorporated; and (b) the owners of the specified lots become the first members of the body corporate; and (c) the owners for the time being of the lots are the members of the body corporate while they are owners; and (d) any common property vests in those owners as tenants in common in shares proportional to their lot entitlement; and (e) the Registrar must create folios of the Register for any common property in the name of the body corporate as nominee for those owners but must not produce a certificate of title for those folios, and may require submission of and cancel any existing certificate of title for common property."

[161]

"22. When can the Registrar register a plan? (1) The Registrar may register a plan if - (a) it appears to the Registrar that the plan has been certified by the Council and the certification remains valid; and (b) the applicant provides a statement of compliance or an acquiring authority, Minister government department, public authority or Council submits a statement that the plan is exempt from Part 3; and (c) in the case of a master plan, each of the persons listed in sub-section (1A) whose encumbrance mentioned in that sub-section relates to the land in the first stage (but not the residual land) consents in writing to the registration of the plan; and (d) in the case of a plan for the second or a subsequent stage in a staged subdivision using the procedure under section 37, each of the persons listed in sub-section (1A) whose encumbrance mentioned in that sub-section relates to that stage (but not the residual land) consents in writing to the registration of the plan; and (da) in the case of a plan that is not a plan for a staged subdivision using the procedure under section 37, each of the persons listed in sub-section (1A) whose encumbrance mentioned in that sub-section relates to the land on the plan consents in writing to the registration of the plan; and (e) the land is under the Transfer of Land Act 1958 and (except for a plan referred to in section 35) is not subject to a mortgage under the general law that is shown on the folio of the Register for the land; and (f) except for a plan referred to in section 23, 24A, 32, 32A, 35, 36 or 37 or that is in accordance with a court order under this Act, none of the land in the plan is land affected by an existing body corporate." (1A) For the purposes of sub-section (1)(c), (d) and (da) the following are listed persons - (a) a registered mortgagee, registered lessee or registered sub-lessee; (b) the registered annuitant; (c) a caveator whose caveat is recorded in the Register; (d) an annuitant whose charge, or a person whose mortgage, caveat, lease or sub-lease was lodged before the lodging of the plan. (1AA) If a plan provides that land becomes common property, then for the purposes of sub-section (1)(c), (d) and (da) consent to the registration of the plan is not required from any person with an interest in the common property but not in the land."

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