Castle Constructions Pty Limited v Sahab Holdings Pty Ltd [2013] HCA 11

HIGH COURT OF AUSTRALIA

HAYNE, CRENNAN, KIEFEL, BELL AND GAGELER JJ

CASTLE CONSTRUCTIONS PTY LIMITED APPELLANT

AND

SAHAB HOLDINGS PTY LTD & ANOR RESPONDENTS

Castle Constructions Pty Limited v Sahab Holdings Pty Ltd [2013] HCA 11 10 April 2013 S263/2012

ORDER

1. Appeal allowed.

2. Application for special leave to cross-appeal refused.

3. The first respondent pay the appellant and the second respondent the costs of the appeal and of the application for special leave to cross-appeal.

4. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 5 April 2012 and, in their place, order that the appeal to that Court be dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation

M L D Einfield QC with J Horowitz for the appellant (instructed by Domain Legal Pty Limited)

G K Burton SC for the first respondent (instructed by Kanjian & Company)

P B Walsh with L Walsh for the second respondent (instructed by Land and Property Information)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Castle Constructions Pty Limited v Sahab Holdings Pty Ltd

Real property – Torrens system land – Easements – Registered proprietor of servient tenement requested Registrar-General remove easement from Register – Easement removed from Register without objection from registered proprietors of dominant tenement – Subsequent purchaser of dominant tenement requested that Registrar-General restore easement to Register – Registrar-General refused – Whether deliberate removal of easement from Register "omission" within meaning of s 42(1)(a1) of Real Property Act 1900 (NSW) ("Act") – Whether subsequent purchaser of dominant tenement barred from action against Registrar-General under s 12A(3) of Act for removal of easement – Whether subsequent purchaser "person who is dissatisfied" with Registrar-General's decision under s 122 of Act.