Registrar-General of New South Wales v Cihan [2012] NSWCA 297

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Registrar-General of New South Wales v Cihan [2012] NSWCA 297 Hearing dates: 31 August 2012 Decision date: 20 September 2012 Before: Allsop P (at [1]), Barrett JA (at [2]), Tobias AJA (at [71]) Decision: 1. Grant leave to appeal. 2. Direct that a notice of appeal be filed within seven days. 3. Appeal allowed. 4. Set aside the orders made in the Equity Division on 24 November 2011. 5. Order that the questions for separate determination be answered as follows: Question 1: On the assumption that a valid easement existed over a lane ten feet wide and a passageway five feet wide burdening the plaintiff's land and benefiting the second, third and fourth defendants' land at the time the plaintiff's land was brought under the provisions of the Real Property Act 1900, does the notification in item 2 in the second schedule of folio identifier E/23162 record such an easement? Answer to Question 1: Yes. Question 2: Has the easement in favour of the second, third and fourth defendants' land been omitted from folio identifier E/23162 within the meaning of s 42(1)(a1) of the Real Property Act 1900? Answer to Question 2: No. 6. Order that Mehmet Cihan pay the Registrar-General's costs of the appeal and the application for leave to appeal. [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: REAL PROPERTY - Torrens system - easements -- easement created when both dominant and servient tenements held under Old System title - all land later converted to Torrens title and subdivided - current folio relating to servient tenement issued in 2008 - folio notes as an affecting encumbrance or interest "Easement affecting the land shown so burdened in Vol 6451 Fol 53" - that immediately preceding folio contains a short description of the easement but does not identify any dominant tenement - general description of benefited land available from an earlier folio identified in the immediately preceding folio - whether easement "recorded in" the current folio - whether easement "omitted" - WORDS AND PHRASES - "recorded in" Legislation Cited: Conveyancing Act 1919 (NSW), s 181A(1) and Schedule 8 Conveyancing and Law of Property Act 1884 (Tas), s 34A and Schedule 8 Land Titles Act 1925 (ACT), s 81 and Schedule 1 Property Legislation Amendment (Easements) Act 1995 Real Property Act 1862, s 40 Real Property Act 1900, ss 31B(2), 32(1), 32(5), 40 (1B), 42(1), 80A, 96B, 129(1) Real Property Act 1886 (SA), s 89 and Schedule 5 Real Property (Computer Register) Amendment Act 1979 Transfer of Land Act 1958 (Vic), s 72(3) and Twelfth Schedule Transfer of Land Act 1893 (WA), s 65(3) and Ninth Schedule Cases Cited: A Victor Leggo & Co Pty Ltd v Aerosols of Australia Pty Ltd (1986) NSW ConvR 55-293 Bailey v Stephens (1862) 12 CB (NS) 91; 142 ER 1077 Bursill Enterprises Pty Ltd v Berger Bros Trading Pty Ltd [1971] HCA 9; (1971) 124 CLR 73 Chambers v Taylor (1837) 2 My & Cr 376; 40 ER 683 Doe d Howell v Kennedy [1840] NSWSupC 13; (1840) NSW Sel Cas (Dowling) 979 Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96 Hill v Midland Railway Co (1882) 21 Ch D 143 Jones v Watts (1890) 43 Ch D 574 Sahab Holdings Pty Ltd v Registrar-General [2011] NSWCA 395 Texts Cited: J Baalman and T Le M Wells, The Practice of the Land Titles Office (New South Wales) (1934) Peter Butt, Land Law, 6th ed (2010) W N Harrison, "The Transformation of Torrens's System into the Torrens System" (1961-1964) 4 University of Queensland Law Journal 125 Pamela O'Connor, "Double Indemnity - Title Insurance and the Torrens System" (2003) 3 Queensland University of Technology Law and Justice Journal 141 Charles Sweet, "The Land Transfer Acts" (1908) 24 Law Quarterly Review 26 Arthur Underhill, "Can an Easement be Granted in Perpetuity Without Words of Limitation?" (1908) 24 Law Quarterly Review 199 F Ticehurst, Baalman and Wells Land Titles Office Practice (fifth edition, current looseleaf) T Cyprian Williams, "The Creation of Easements" (1908) 24 Law Quarterly Review 264 Bruce H Ziff, "A Matter of Overriding Interests: Unregistered Easements under Alberta's Land Titles System" (1991) 23 Alberta Law Review 718 Category: Principal judgment Parties: Registrar-General of New South Wales - Appellant Mehmet Cihan - Respondent Representation: H Altan - Appellant D L Warren - Respondent Land & Property Information Legal Services - Appellant MCK Lawyers - Respondent File Number(s): 2012/70604 Decision under appeal Citation: Mehmet Cihan v City of Sydney RSL Club Co-Op Ltd [2011] NSWSC 1417 Date of Decision: 2011-11-24 00:00:00 Before: Windeyer AJ File Number(s): 2009/00291737