Westfield v Registrar-General of NSW

Court of Appeal (NSW)|2003-11-14|Before: Handley JA, Sheller JA, Tobias JA, Bignold J

CITATION : Westfield v Registrar-General of NSW [2003] NSWCA 343 HEARING DATE(S) : 14 November 2003 JUDGMENT DATE : 15 December 2003

JUDGMENT OF : Handley JA at 1; Sheller JA at 2; Tobias JA at 3 DECISION : Appeal dismissed with costs

CATCHWORDS : REAL PROPERTY - Determination of common boundary between two properties - ND LEGISLATION CITED : Real Property Act 1900, s 135B Land and Environment Court Act 1979, s19(c), s7(1), s135B, s135J(5), s135E, s135H, s135I, s135K(1), s135L(2), s39(2) and (3) London Passenger Transport Board v Moscrop [1942] AC 332 Workers Compensation (Dust Diseases) Board v Veksans Workers' (1993) 32 NSWLR 221 CASES CITED : National Trustees Executors and Agency Co of Australasia Ltd v Hassett [1907] VLR 404 Melwood Units Pty Limited v The Commissioner of Main Roads [1979] AC 426 at 432 Maurici v Chief Commissioner of State Revenue (2003) 77 ALJR 727 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 PARTIES : Mark Westfield and Anne-Maria Westfield Registrar-General of New South Wales FILE NUMBER(S) : CA 40087/03 COUNSEL : A: Mr Ross Dalgleish R: Mr Peter Walsh SOLICITORS : A: Mr Ross Dalgleish R: Kenneth Charles Hall, Registrar-General Legal Services

LOWER COURT Land & Environment Court JURISDICTION : LOWER COURT L&E 30008/02 FILE NUMBER(S) : LOWER COURT Bignold J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40087/03 L&E 30008/02

HANDLEY JA SHELLER JA TOBIAS JA

Monday 15 December 2003 MARK WESTFIELD and ANNE-MARIA WESTFIELD v REGISTRAR-GENERAL OF NEW SOUTH WALES Judgment 1 HANDLEY JA: I agree with Tobias JA. 2 SHELLER JA: I agree with Tobias JA 3 TOBIAS JA: Mark Westfield and Anne-Maria Westfield (the appellants) are the registered proprietors of Lot 1 in DP 115714, known as No. 35 Kangaroo Street, Manly (No. 35). The appellants' immediate neighbour to the north is Mr David Murphy, the registered proprietor of Lot 26 DP 456033, which is known as No. 37 Kangaroo Street, Manly (No. 37). 4 After the appellants had purchased No. 35 (in September 1999), a dispute arose with Mr Murphy as to the correct position of the common boundary between the respective properties. That dispute was not resolved and hence the appellants made an application on 2 November 2001 to the Registrar-General pursuant to s 135B of the Real Property Act 1900 (the Act) for a determination of the boundary. 5 On 14 January 2002, the Registrar-General made a determination of the position of the northern boundary of No. 35. On the same day he advised the appellants in writing that: "The position of the common boundary between Lot 1 in Deposited Plan 115714 and Lot 26 in Deposited Plan 456033 has been determined to be in the position as shown on the attached sketch. The determination has been based on an exhaustive search of records within this Office as well as marks placed and found in surveys on public record as no original marking could be located. It should be noted that the determination is in agreement with Deposited Plan 69952 (Primary Application 99952)."

The sketch so attached identified the common boundary between the two properties. It depicted the existing house on No. 35 and identified the distance between the wall of the building at its eastern end (nearest to Kangaroo Street) and the boundary as 0.4 metres and that between the wall at the western end and the boundary as 0.465 metres. The effect of this determination was to place the common boundary between the two properties in a position closer to No. 35 than originally thought: the boundary at the north-eastern corner of No. 35 was moved in a southerly direction approximately 0.2 metres. The practical consequence of this determination for the appellants was that the distance between the wall of their house and the boundary was now insufficient to enable a person to pass between them. 6 The appellants challenged the determination in the Land and Environment Court pursuant to s 135J of the Act, seeking a re-determination by that Court of the position of the boundary. That appeal fell within Class 3 of that Court's jurisdiction: Land and Environment Court Act 1979, s 19(c). The appeal was heard by Bignold J, who determined on 23 November 2002 that the common boundary between No. 35 and No. 37 was that which had been determined by the Registrar-General and notified to the appellants on 15 January 2002. The appellants appeal to this Court against that decision. This appeal is confined to questions of law: see Land and Environment Court Act, s 57(1). 7 Before dealing with the substance of the appeal, I should note that the only party joined by the appellant in the proceedings before the Land and Environment Court was the Registrar-General (who was entitled to be so joined by virtue of s 135J(5) of the Act). Mr Murphy was not joined. However, in my opinion he should have been as he was a person directly interested in the outcome of the proceedings: London Passenger Transport Board v Moscrop [1942] AC 332 at 345. Section 135E required that he be given notice of the appellants' application under s 135B and s 135I required that the Registrar-General give him notice of the determination. Most importantly, once the position of the boundary as determined was noted on any plan registered or recorded in the Registrar-General's office pursuant to s 135K(1), Mr Murphy became bound by the determination by virtue of s 135L(2). In these circumstances, he should have been joined as a party to the proceedings before the Land and Environment Court and before this Court. The proceedings, therefore, were irregularly constituted. 8 A search of the relevant file in the Registry of this Court reveals that this irregularity was noted and an explanation was intended to be sought. However, the file does not reveal whether this in fact occurred or what the results of any such inquiries were. As it happened, Mr Murphy was present in court during the hearing of the appeal and indicated that he was content for his interests to be protected by the submissions of the Registrar-General. However, this of itself is unsatisfactory and should not happen in the future. If the adjoining owner does not wish to be actively involved in the proceedings, he or she can avoid any costs by filing a submitting appearance.

The relevant statutory provisions 9 The statutory provisions relevant to the disposition of this appeal are as follows: " 135B. Application may be made for boundary determination (1) Application may be made to the Registrar-General for the determination under this Part of the position of the common boundary of adjoining lands. … 135C. Boundaries to which Part applies This Part authorises the determination of the position of a boundary between adjoining parcels of land, whether or not each parcel is under the provisions of this Act. … 135F. Procedure in determining boundaries (1) In determining the position of a boundary under this Part, the Registrar-General must consult with a surveyor registered under the Surveyors Act 1929. … 135G. Determination of other boundaries (1) If as a result of considering an application under this Part in respect of a boundary of land, the Registrar-General becomes aware that there is doubt as to the position of another boundary of that or other land, the Registrar-General may determine the position of that other boundary. … 135H. Basis of determination The Registrar-General is to determine the position of a boundary on the basis of all the evidence available to the Registrar-General but, if that evidence is inconclusive, may determine it on the basis of what appears to the Registrar-General to be just and reasonable in the circumstances."

The proceedings before the primary judge 10 Mr Surveyor Mudge and Mr Surveyor Green gave expert survey evidence before the primary judge on behalf of the appellants. Mr Surveyor Wallis and Mr Surveyor Job gave evidence on behalf of the Registrar-General. The latter were experienced officers of the Registrar-General and the determination of 14 January 2002 was made by Mr Wallis based upon the investigations of Mr Job. 11 The essence of the dispute between the surveyors can be stated as follows. According to Mr Mudge, Mr Wallis had only determined the northern boundary of No. 35 (which he accepted had been correctly determined) and not the position of the common boundary between No. 35 and No. 37. This was said to be due to the fact that the northern boundary of No. 35 as determined did not correspond to the southern boundary of No. 37 and hence was not a determination of the common boundary between the two properties. It was Mr Mudge's opinion that there existed an "excess" or "no-mans land" between the two, comprising a small wedge-shaped area of approximately 5m2 which was 0.2 metres wide at the Kangaroo Street boundary alignment, reducing to zero approximately two thirds of the way along the common boundary. According to Mr Mudge, this excess was available for allocation between the properties by way of the Court determining the common boundary on the basis of what appeared to be "just and reasonable" within the meaning of s 135H of the Act. 12 Mr Mudge had reached this result by: firstly, commencing at the southern boundary of Lot 2 in DP 531005; secondly, adapting what was referred to in the evidence as the "old angle" of Kangaroo Street shown on File Plan 936406 of 0.445 metres; and finally, laying back a distance of 11.76 metres (being the title deed dimension along the eastern boundary of No. 37 to the south of that angle). According to Mr Mudge, the point reached was 0.2 metres north of the agreed position of the north-eastern corner of No. 35 (as determined by Mr Wallis) and hence there was said to be an "excess" of undistributed or unallocated land. 13 In response to evidence of Mr Job to which I shall shortly refer, Mr Mudge summarised his position as follows: "The dimension of 11.76m being the frontage of Murphy's property to the south of the bend in Kangaroo Street should be taken from the original bend as defined by the alignment plan field notes and not from the bend defined by DP531005 since there is some doubt as to survey information within DP531005. It is noted that there is disagreement of the common boundary between Lot 2 DP531005 and DP 936406. The dimension of 0.445m in DP936406 agrees with the bend in Kangaroo Street as per the alignment plan field notes and further a distance of 10.21 DP456033 together with a distance of 1.55 DP936406 determines the position of the south-east corner of DP936406. The determination of the south-west corner of DP 936406 should be determined from title dimensions of DP531005 along Sheridan Place from the north-eastern most corner of Lot 1 DP531005." 14 DP936406 referred to by Mr Mudge is the same as FP936406 to which I have referred in [12] above. The plan shows the original dimensions of No. 37 and depicts the "old angle" of Kangaroo Street as having a dimension of 1' 6½" (0.445 metres) along the eastern boundary of No. 37. 15 DP531005, which was prepared in 1968 by Mr Surveyor Stoddart, is a subdivision plan of two allotments immediately to the north of No. 37. It depicts the boundary between Lot 2 in DP531005 and Lot 26 in DP936406 (of which No. 37 forms part - it was later re-subidivided), which is immediately to the south of Lot 2. The northern boundary of DP936406 is the northern boundary of No. 37. DP531005 identifies what is referred to as the "new angle" of Kangaroo Street as having a dimension of 2' 3½" (0.7 metres). However, the evidence before the primary judge was that DP531005 was unreliable insofar as it purported to fix the southern boundary of Lot 2 in that plan and the northern boundary of Lot 26 in DP936406. The reason for this was that there were no reliable physical or other survey marks that could be taken as fixing the intersection of that boundary with the old alignment of Kangaroo Street. 16 Although Mr Mudge accepted that there were no physical reference points or survey marks on the ground which could be used for the purpose of fixing the "old angle" of Kangaroo Street, nevertheless he considered that the original angle could be determined by reference to the field notes of the 1880 alignment of Kangaroo Street which, he asserted, confirmed the position of that angle within approximately 15mm. On the other hand, Mr Job considered that on the available survey information and titling evidence there was some doubt as to the accuracy of the survey information to the north of the common boundary between No. 35 and No. 37. He fixed the common boundary between those properties, being the northern boundary of No. 35 and southern boundary of No. 37, by redefining the southern boundary of DP69952 from DP449903 and DP120177 and by adopting the eastern boundary dimension of No. 35 from the title deed to that property. 17 Mr Wallis gave evidence to the effect that DP531005 purported to establish the northern boundary of DP936406 and possibly created a new bend in Kangaroo Street. However, he concluded that the common boundary between No. 35 and No. 37 could not be determined by reference to the northern boundary of DP936406 (being the southern boundary of Lot 2 in DP531005) as it was an unreliable starting point for any such determination. In his opinion, there was no "triangle or no-mans land" as asserted by Mr Mudge. According to Mr Wallis, if there was a surplus it did not lie between No. 35 and No. 37 but probably existed between the northern boundary of No. 37 and Lot 2 in DP531005. 18 Furthermore, Mr Wallis was firm in his view that the northern boundary of No. 35 coincided with the southern boundary of No. 37 and that if there was any problem it occurred, as I have observed, on the northern boundary of No. 37 rather than the southern boundary as asserted by Mr Mudge. He disagreed that there was a hiatus or no-mans land because of the inability to fix the corner of the "old angle" in order to be able to lay back the distance of 11.76 metres along the frontage of No. 37 to the south of the angle as shown on its title deed. 19 In Mr Wallis' opinion, that corner could not be fixed because there was no evidence on any plans or on the ground as to where the original angle was located. He accepted that there was some information which could be gleaned from the field notes of the 1888 alignment of Kangaroo Street, which gave a calculated distance to the angle, but asserted that there was no other evidence and that the notes were insufficient. As he said: "If we could go out there and find the original peg in the ground, we'd lay back 11.67 and that would be the boundary, there's no question about that". 20 Mr Wallis also expressed the view that the available evidence was conclusive to enable the determination of the common boundary between No. 35 and No. 37 and that this was because the approach adopted by himself and Mr Job had been to determine the north-east corner of No. 35 and the south-east corner of No. 37 by reference to DP2482 in which both parcels of land were located. He said: "When we get hiatuses between blocks of land it is when they are out of separate DPs, so you'll have one four figure DP here and another one on the other side of it. That's when you get a hiatus. When it all comes out of the same based DP there cannot be a hiatus between the land". 21 In answer to a question from the primary judge, he agreed that this was the case here, namely, that his determination had been based on the same deposited plan, whereas that of Mr Mudge had relied on adjoining but separate plans. Accordingly, in the circumstances and given the limited physical survey or other reference points, his methodology was, in his opinion, more reliable than that adopted by Mr Mudge. The primary judge's decision 22 The primary judge first considered the Court's function in its approach to the appeal. After noting that the proceedings fell within Class 3 of the Court's jurisdiction and that the Court's powers in relation thereto were provided in s 39(2) of the Land and Environment Court Act, his Honour said: "18. As the Applicants have properly submitted, the Court in hearing and determining the appeal does so by way of re-hearing, where fresh evidence may be given (the LEC Act s 39(3) and not by way of appeal in the strict sense against the Respondent's decision. 19. Nonetheless, I am of the clear opinion that having regard to the clear purpose of the statutory regime operating under the RP Act , Part 14A and to the particular functions conferred upon the Registrar General, having regard to his and his Office's special expertise in matters pertaining to land title, that I should, in exercising the jurisdiction " to determine the position of the boundary " accord due respect and deference to the determination made by the Registrar-General: especially in the light of the fact that in making that determination, the Respondent was well aware of, and considered, the views of Mr Surveyor Mudge (upon whose opinion the Applicants principally rely in the presence case). 20. However, the court's approach of according due deference to the Respondent's determination does not mean that the court is, in any way, abdicating or neglecting its statutory function " to determine the position of the boundary " upon the basis of the evidence adduced before it (which included that of three officers of the Registrar-General's Office) in litigation where the Respondent has actively participated in defending or justifying his determination, according to his entitlement under the RP Act , s 135J(5) ." 23 The primary judge then observed that it was the appellants' case that although no challenge was made to the Registrar-General's determination of the position of the northern boundary of No. 35, there was a challenge to the determination operating to relevantly locate the position of the common boundary between it and No. 37. His Honour then noted the appellants' submission that the attempt to establish the southern boundary of No. 37 revealed that that boundary did not correspond with the northern boundary of No. 35 and fell short of it, so that it was necessary to conclude that there was a sliver of "no mans land". Accordingly, it was submitted that the evidence was inconclusive within the meaning of s 135H of the Act, thereby enlivening the power of the Court to determine the position of the common boundary "on the basis of what appears to be just and reasonable in the circumstances of the case". 24 The primary judge then observed that the appellants' case depended entirely upon the acceptance of the opinions of Mr Mudge that firstly, it was possible to establish that the southern boundary of No. 37 did not correspond with the unchallenged determination of the northern boundary of No. 35 and secondly, that there existed a sliver of "no mans land" between the two properties. His Honour referred to the evidence of Mr Mudge on these issues and the responses thereto of Messrs. Job and Wallis. In particular, he referred to the evidence of Mr Wallis that he had identified discrepancies in the details of the original field notes of the 1880 alignment plan of Kangaroo Street (upon which Mr Mudge had relied) and to the fact that, according to Mr Wallis, DP 531005 raised "doubt in determining the boundary from the angle in Kangaroo Street and using the dimensions shown in DP531005". 25 The primary judge held that the detailed evidence of Messrs. Wallis and Job satisfied him that the Registrar-General's boundary determination was "sound and accurate". He rejected the competing opinions of Mr Mudge in the following terms: "30. …In particular, I do not think his reliance upon the detail shown in DP 531005 of the apparent realignment of Kangaroo Street as it affects the north-western corner of No. 37 and upon the detail shown in the field notes of the 1880 alignment plans for Kangaroo Street, is justified in his quest of establishing any relevant datum point situate to the north of No. 35 Kangaroo Street. Because of that finding, it follows that I have not been persuaded that the southern boundary of No. 37 falls short (ie it is situate to the north) of the position of the northern boundary of No. 35 as determined by the Respondent (and which is not challenged by the Applicants or by Mr Mudge). 31. Nor have I been persuaded by Mr Mudge's opinion that there exists a slither of " no-mans land " between the properties (Nos 35 and 37)." 26 Even if there did exist some "excess land" (that is, land in excess of the title dimensions of the relevant lots) in this part of Kangaroo Street, the primary judge expressed doubt as to whether the present proceedings provided an appropriate forum for the distribution of any excess land among the existing property owners. Rather, the existence of any such excess would, according to his Honour, appear to justify an appropriate survey plan by re-definition as suggested by Mr Surveyor Green in a report relied upon by the appellants. He then said this: "33. The possibility of there being a need for a re-definition survey provides a further reason corroborating the wisdom of the approach adopted by Messrs Surveyors Job and Wallis of not seeking to ultimately verifying from a datum point situate to the north of No. 35 their boundary determination, which was solely based upon an accurate and reliable datum point situate to the south of No. 35." 27 The appellants had also challenged the determination of the Registrar-General as to the location of the north-western corner of No. 35, which was accepted as coinciding with the south-western corner of No. 37. Mr Wallis had determined this point in 1989 by reference to a concrete kerb on the northern side of Augusta Road, which he opined was in a similar, if not identical, position as the original stone kerb, part of which was still in existence. He saw no reason to change it for the purpose of the present determination. 28 On the other hand, Mr Mudge had fixed the north-western corner of No. 35 and the south western corner of No. 37 by adopting as his datum point the south-eastern corner of No. 33 Kangaroo Street and then taking a bearing as shown on DP449903 to determine the south-western corner of that property. He then laid back the title dimensions of Nos. 33 and 35 to the north along the Augusta Lane boundary of those properties to determine the north-western corner of No. 35. The difference between the surveyors was that the point fixed by Mr Wallis as the north-western corner of No. 35 was approximately 0.06 metres to the south of the point fixed by Mr Mudge, which had the effect of creating an encroachment on No. 35 by the existing garage on No. 33. 29 The primary judge disposed of this issue in the following terms: "36. The Applicants made a separate allegation that the Respondent's boundary determination was incorrect so far as concerns the rear portion of the boundary (ie in the vicinity of Augusta Road and Augusta Land). This allegation was unconnected with Mr Mudge's opinion of their existing " excess land ". 37. The evidence of Messrs. Surveyors Job and Wallis satisfies me that the determination is also sound and accurate. The Applicants claim that adoption of the determination will create a minor encroachment upon their land by a newly constructed garage at the rear of No. 33 Kangaroo Street. 38. Notwithstanding the opinion of Mr Mudge I am satisfied that the Respondent's determination is accurate and reliable in all respects."

The submissions on the appeal 30 The appellant submitted that the primary judge had erred in law in the following respects:

(a) As the evidence established that the southern boundary of No. 37 could not be determined from a datum point commencing on or about the northern boundary of that property, it followed as a matter of law that the evidence available to the Registrar-General to determine the common boundary between No. 35 and No. 37 was inconclusive within the meaning of s 135H of the Act;

(b) By according " due respect and deference to the determination made by the Registrar-General" , his Honour misdirected himself as to the proper function of the Court in an appeal to which the provisions of s 39(3) of the Land and Environment Court Act applied;

(c) By taking into account the possibility of there being a need for a re-definition survey as a reason corroborating his acceptance of the approach adopted by Messrs. Wallis and Job, his Honour took into account an irrelevant consideration;

(d) By failing to taking into account the history of the prior occupation of No. 35 and its physical characteristics (including the position of the dividing fence between it and No. 37), his Honour failed to take into account a relevant consideration;

(e) In rejecting the appellants' challenge to the determination by the Registrar-General of the location of the north-western corner of No. 35, his Honour failed to provide proper or adequate reasons for that rejection.

Determination of the issues The first argument 31 The appellants submitted that upon the true construction of s 135H of the Act, if any of the evidence available to the Registrar-General was inconclusive, he was required to determine the position of the common boundary on the basis of what appeared to be just and reasonable in the circumstances. Accordingly, it was irrelevant that Mr Wallis considered that the available evidence was conclusive to the point that he was able to determine that boundary by reference to a starting or datum point to the south of No. 35; s 135H applied because Mr Wallis regarded the evidence relied on by Mr Mudge as unreliable and therefore inconclusive. 32 In my opinion, s 135H cannot be so construed. The provision requires the Registrar-General to determine the position of the relevant boundary on the basis of "all the evidence available" and it is only if "that evidence is inconclusive" that he or she is empowered to determine the position of the boundary on the basis of what appears to him or her to be just and reasonable in the circumstances. In other words, the provision is only enlivened where the totality of the available evidence is inconclusive. Accordingly, if the evidence enables the position of the relevant boundary to be determined on the civil onus it will not be inconclusive and s 130H will have no application. 33 As I have recited in [20] above, Mr Wallis expressed the view, accepted by the primary judge, that the available evidence was conclusive such as to enable him to determine the common boundary between No. 35 and No. 37. Mr Wallis' opinion was that the northern boundary of No. 35 and the southern boundary of No. 37 were coincident and thus formed the common boundary between the two properties and that if there was any "excess" or "surplus" of land as envisaged by Mr Mudge, it was not at the interface between No. 35 and No. 37 but was on or beyond the northern boundary of No. 37. 34 In my opinion, the evident purpose of s 135H is to provide for the situation where the available evidence is so doubtful that a determination cannot be made as a matter of probability. It does not require that that evidence be such as to enable the determination to be made to any higher degree of certitude such as beyond reasonable doubt. 35 In my opinion, it was open to the primary judge to accept the approach of Mr Wallis and to determine the common boundary in accordance therewith. Acceptance of Mr Wallis' approach and the evidentiary basis for it did not, therefore, involve any error of law. It follows that the appellants' first argument should be rejected.

The second argument 36 This argument is based on the observations of the primary judge which I have set out in [22] above. The appellant did not suggest that his Honour had failed to give proper consideration to all the evidence or that he had failed to properly weigh that evidence and to approach it with an open mind. Nonetheless, it was submitted that as the Court was required by s 39(3) of the Land and Environment Court Act to determine the appeal by way of re-hearing, it was not open to his Honour to indicate that "due respect and deference" should be given to the determination of the Registrar-General notwithstanding his officers' acknowledged expertise in matters pertaining to land title. 37 In my opinion, there is no substance in this submission. Courts of specialised jurisdiction are entitled to give "due respect and deference" to the opinions of the expert officers of an authority from whose decision an appeal lies. So much is established by the following passage from the judgment of Handley JA (with whom Sheller JA agreed) in Workers Compensation (Dust Diseases) Board v Veksans (1993) 32 NSWLR 221 at 240-241: "Although the Compensation Court on an appeal under the Act is bound to form and express its own judgment on the facts and law this does not mean that the decision of the authority is to be ignored. At a time when the High Court still entertained appeals in its original jurisdiction from decisions of the Registrar of Trade Marks and Commissioner of Patents that Court gave " due weight " to the opinion of the Registrar or Commissioner " as that of a skilled and experienced person " (see Eclipse Sleep Products Inc v Registrar of Trade Marks (1957) 99 CLR 300 at 308) especially in cases where there was a conflict of testimony as to technical facts or scientific questions: see F Hoffman-La Roche & Co AG v Commissioner of Patents (1971) 123 CLR 529 at 543. In my opinion the same principles should guide the Compensation Court in the exercise of its original jurisdiction in appeals from the authority." 38 In my opinion, these principles apply to the Land and Environment Court. It follows that [19] of the judgment of the primary judge, especially when read in the context of [20] does not disclose any error of law.

The third argument 39 The third argument is based upon the matters which I have set out in [26] above. It was submitted that the primary judge's reference to the possibility of there being a need for a re-definition survey as providing an additional reason for his adoption of the approach advanced by Messrs. Wallis and Job had the consequence of his Honour taking into account an irrelevant consideration or otherwise misdirecting himself in law. In my opinion, this argument fails. 40 The primary judge's reference to the possible need for a re-definition survey as providing an additional or further reason justifying the wisdom of his acceptance of the approach to the determination of the relevant boundary adopted by Messrs. Wallis and Job did not, in my opinion, involve him in taking into account an irrelevant consideration. His Honour was simply saying that the possible requirement for such a re-definition survey (due to the uncertainty related to the absence of a fixed and verifiable datum point to the north of the boundary between No. 35 and No. 37) corroborated or further justified the wisdom of fixing that boundary by reference to a verifiable datum point to the south of No. 35. There is nothing exceptional in his Honour's reasoning process and it does not disclose any error of law.

The fourth argument 41 The foundation for this argument was that "long and unchallenged occupation" was capable of providing an appropriate indication of the land to which a grant relates. Accordingly, the principles of surveying required the Registrar-General and the Land and Environment Court on appeal to take account of the history of the occupation of that part of No. 35 determined by Mr Mudge to be an area of surplus land to the north of the determined northern boundary of that property. Reliance was placed upon a passage from the judgment of Sir Leo Cussen in National Trustees Executors and Agency Co of Australasia Ltd v Hassett [1907] VLR 404 at 412. However, in the passage cited his Honour determined that there could be no better indication of the land to which a grant relates than long and unchallenged occupation but only in the absence of survey marks. In the present case, verifiable survey marks were available, albeit to the south of No. 35. 42 Reliance was further placed upon the following passage from Hallmann's Legal Aspects of Boundary Surveying as Applying in New South Wales (2nd Ed, 1994) [13.3.], which states as follows: "The courts have established precedents granting priorities of weight if any two or more of the following boundary features present conflicting evidence in the hearing of the dispute. These are in order of priority: 1. natural boundaries 2. monumented lines, 3. old occupations, long undisputed, 4. abuttals, 5. statements of length, bearing or direction." 43 There is some support for the proposition that an error of law is committed where a decision maker for no rational reason rejects as wholly irrelevant evidence which prima facie affords some proof of the matter to be determined. However, the evidence in the present case does not support a finding that the long occupation of the relevant part of No. 35 was ignored for no rational reason: cf Melwood Units Pty Limited v The Commissioner of Main Roads [1979] AC 426 at 432; Maurici v Chief Commissioner of State Revenue (2003) 77 ALJR 727 at 729. Mr Wallis rejected the relevant dividing fence relied on by the appellant as establishing long undisputed occupation of the area in question upon the basis that at the time of his investigation, the original fence had long since disappeared. Mr Job agreed in his evidence that he had considered the question of occupation and in particular the retaining wall between the two properties, which he accepted was "quite old". However, his view was that there was other evidence of a more reliable kind which was determinative of the correct position of the relevant boundary. 44 Mr Mudge, on the other hand, relied heavily on his acceptance that a fence had been located at the top of the retaining wall for some 90 years, but it is clear that he utilised the physical occupation of this part of No. 35 as supporting his view that, pursuant to s 135H, the unallocated "surplus" should be allocated, as a matter of what was just and reasonable in the circumstances, to the appellants. Thus he first determined that there was a wedge-shaped "surplus" immediately to the north of the northern boundary of No. 35 (as determined by the Registrar-General and with which he agreed). On the basis of what he regarded as a long and undisputed perception of the position of the boundary with reference to different ground heights along the boundary line, the existing retaining wall, the position of the fencing up until December 2001 and the use by the occupants of No. 35 of that wedge-shaped portion, it was his opinion that the portion should be allocated to the appellants, since: "When all things are considered their property is in greater need" 45 However, there was nothing irrational in the acceptance by the primary judge of the approach of Messrs. Wallis and Job and the rejection of that of Mr Mudge and his "surplus". His Honour's reasoning process did no more than resolve a question of fact. Accordingly, the fourth argument should be rejected.

The fifth argument 46 The appellants submit that the passages from the primary judge's decision extracted in [29] above, by which he disposed of the challenge to the Registrar-General's determination of the north-western corner of No. 35 (which by common agreement, coincided with the south-western corner of No. 37), did not contain reasons sufficient to avoid the miscarriage of justice referred to by this Court in Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. 47 We were informed during the course of the hearing that the primary judge had a lengthy view of the site in the company of the four surveyors, Messrs. Wallis, Job, Mudge and Green, during which each discussed and illustrated their methodologies. In the presence of the judge, they discussed between themselves their reasons for adoption of their respective approaches. We were further informed that these discussions and illustrations included the methodology of each of Messrs. Wallis and Mudge in determining the point where the common boundary between No. 35 and No. 37 intersected with the western boundary of each property. 48 Although the findings of the primary judge in [37] and [38] of his judgment are spare, to say the least, I do not consider that, when taken in the context of the whole judgment, they should be regarded as so inadequate as to contravene the principles conveniently summarised by Meagher JA in Beale at 443. 49 However, it did appear during the course of argument that consistency may have required that the determination of the point at which the common boundary between No. 35 and No. 37 intersected with the western boundary of those properties be made by reference to the south-east corner of No. 33, which was also the datum point used by Mr Wallis to determine the north-east corner of No. 35. Whereas Mr Mudge utilised that datum point as his starting point to determine the intersecting point on the western boundary of the property, Mr Wallis relied on his 1989 determination arrived at by adopting the prolongation of the concrete kerb in Augusta Road. However, to the point where it intersected with the western boundary of No. 33, according to Mr Mudge, this kerb was unreliable as a starting or datum point to determine the western end of the common boundary. 50 However, Mr Wallis' evidence was not challenged on this issue as he was not cross-examined to suggest that he had been inconsistent by adopting the south-east corner of No. 33 as his datum point for the purpose of determining the north-east corner of No. 35 and then rejecting that same datum point for the purpose of determining its north-west corner. If he had been cross-examined on this potential inconsistency, then he may have had a rational reason for adopting the approach which resulted in his 1989 determination. In these circumstances, it cannot be said that the primary judge erred in law in accepting the evidence of Messrs Job and Wallis on this issue and rejecting that of Mr Mudge.

Conclusion 51 In my opinion, each of the challenges raised by the appellants to the primary judge's findings should be rejected. I therefore propose that the appeal should be dismissed with costs.

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