Sahab Holdings Pty Ltd v Registrar-General (No 3) [2012] NSWCA 72

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sahab Holdings Pty Ltd v Registrar-General (No 3) [2012] NSWCA 72 Hearing dates: On the papers Decision date: 05 April 2012 Before: McColl JA, Campbell JA, Tobias AJA Decision: (1) Appeal allowed. (2) Set aside Orders 2 and 4 made by Slattery J on 5 May 2010 and so much of Order 3 as provided that there be no orders as to the costs as between the appellant and the second respondent. (3) Declare that the right of way created by transfer A752953 ("right of way") over part of the freehold property comprised in certificate of title folio identifier A/404929 known as 134 Sailors Bay Road, Northbridge ("servient tenement") in favour of the freehold property comprised in certificate of title folio identifier 1/726736 known as 69 Strathallen Avenue, Northbridge ("dominant tenement") were erroneously omitted from the folios of the Register for both servient and dominant tenements on or about 22 November 2001 when the first respondent acceded to request 7924023 lodged by the second respondent. (4) Order that the first respondent restore to the folios of the Register for both servient and dominant tenements the recording of the right of way. (5) Order that the second respondent deliver or take all steps within its power to cause to be delivered up to the first respondent the certificate of title for the servient tenement for the purpose of being amended by the first respondent to bring it into conformity with the folio of the Register for the servient tenement as amended pursuant to Order 4. (6) Order that the first respondent issue to the appellant and to the second respondent new certificates of title for the dominant and servient tenements, respectively, consequent on compliance by the first respondent with Orders 4 and 5. (7) Order that the second respondent pay the appellant's costs of the proceedings at first instance other than with respect to the motion of 29 May 2009. (8) Order that the first respondent pay his own costs of the proceedings at first instance. (9) Order that the respondents pay the appellant's costs of the appeal. (10) Order that the second respondent's summons for leave to cross appeal be dismissed with no order as to costs. (11) The second respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) with respect to the costs of the appeal, if otherwise entitled. [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.] Catchwords: ORDERS - nature of orders and declarations where party entitled to rely on various provisions of Real Property Act 1900 - Amendment to Register by Registrar-General - Delivery up of certificate of title for amendment to accord with Register.