Supreme Court New South Wales Medium Neutral Citation: Ashworth v Terrill [2019] NSWSC 1596 Hearing dates: On the papers. Date of orders: 18 November 2019 Decision date: 18 November 2019 Jurisdiction: Common Law Before: Adamson J Decision: See [16] Catchwords: ADMINISTRATIVE LAW – procedural fairness – notice not given by Registrar General when primary application made by neighbour to bring land under Real Property Act 1900 (NSW) – relief granted Legislation Cited: Interpretation Act 1987 (NSW), s 33 Real Property Act 1900 (NSW), ss 12, 14, 14A, 17, 42 Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), r 59.10 Cases Cited: Electrolux Home Products Pty Limited v Australian Workers' Union (2004) 221 CLR 309; [2004] HCA 40 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Category: Principal judgment Parties: Faye Ashworth (First Plaintiff) Scott Robertson (Second Plaintiff) Robert Terrill (First Defendant) Jennifer Milne (Second Defendant) James Morley (Third Defendant) Registrar General (Fourth Defendant) Representation: Solicitors: PTW Law (Plaintiffs) Wright Lawyer (First, Second and Third Defendants) NSW Department of Finance, Services and Innovation (Fourth Defendant) File Number(s): 2019/230614 Publication restriction: Nil Judgment Introduction 1. By summons filed on 25 July 2019, Faye Ashworth (the first plaintiff) and Scott Robertson (the second plaintiff) (together, the plaintiffs) seek to have a decision of the Registrar General, the fourth defendant, set aside on the grounds of denial of procedural fairness. The plaintiffs also seek consequential orders to undo the consequences of the decision. The Registrar General purported to bring land which comprised a lane between two properties, one of which belonged to the plaintiffs and the other which belonged to Robert Terrill, the first defendant, under the provisions of the Real Property Act 1900 (NSW) (the Act). The decision led to the creation of a folio of the Register for the lane of which the first defendant became registered as proprietor. 2. Jennifer Milne (the second defendant) and James Morley (the third defendant) jointly own neighbouring land in xxxxxx xxxxxx. They have filed submitting appearances, as has the Registrar General. 3. The matter, which was listed for hearing before me on 19 November 2019, was resolved by consent on 15 November 2019. The parties provided short minutes of order to my chambers with a view to the orders being made by consent. As the relief sought falls within this Court's jurisdiction under s 69 of the Supreme Court Act 1970 (NSW), it is necessary for me to satisfy myself that it is appropriate to make the orders. The plaintiff and the first defendant, who are the only active parties to the proceedings, consent to the making of the orders. In these circumstances, it is sufficient to set out a brief outline of the facts as established by the evidence which is contained in the Court Book which was provided to me for this purpose. Facts 1. On 7 November 2018 the plaintiffs became the registered proprietors of land known as xx xxxxxx xxxxxx, Darlinghurst. The first defendant is their neighbour to the east at xx xxxxxx xxxxxxx, Darlinghurst. A lane passed between the two properties. As the lane had not yet been brought under the provisions of the Act, it remained "Old System" land. 2. On 3 December 2018 the second plaintiff emailed the first defendant asserting a common interest in the lane with that of the first defendant. The first defendant did not respond to that email. On or about 5 December 2018, the first defendant, without notice to the plaintiffs, applied to the Registrar General for the lane to be brought under the provisions of the Act. The application was designated "PA [Primary Application] 83491". The first defendant represented to the Registrar General that he had never heard of a claim adverse to his own with respect to the lane and that the only point of access to the lane was from his property or from xxxxxx xxxx xxxxxx. In the plan annexed to the primary application, the first defendant omitted to depict the gate from the plaintiffs' property to the lane. 3. On 5 April 2019 the Head of Legal Registry Services sent an email to the first defendant's solicitors indicating that he intended to serve the proprietors of the land at xx xxxxxx xxxxxx but that he was prepared to review that decision. The first defendant's solicitor sent an email to his client's surveyor asking for his assistance in having the Head of Legal Services refrain from notifying the proprietors of the land at xx xxxxxx xxxxxx of the application. This email was produced pursuant to a notice to produce served by the plaintiffs in the proceedings. 4. On 29 April 2019 the Registrar General acceded to the first defendant's application and purported to exercise the power under s 17(2) of the Act to bring the lane within the provisions of the Act. No prior notice of the application had been given to the plaintiffs before the decision was made. 5. The plaintiffs did not become aware of the decision until 5 May 2019. They commenced the proceedings on 25 July 2019, which is within the time prescribed by Uniform Civil Procedure Rules 2005 (NSW), r 59.10(1) of 3 months from the date of the decision. Relevant legislative provisions 1. Part 2 of the Act confers powers on the Registrar General, including, in s 12(1)(h1), the power to give a "notice by advertisement or by personal service, whenever and to whomever the Registrar-General thinks appropriate, of the intended exercise or performance of any power, authority, duty or function conferred or imposed by this Act." 2. Part 4 of the Act makes provision for applications to be made to bring "Old System" land within the system of title by registration established by the Act. An application to bring land under the Act is known as a primary application and may be brought by a person claiming to have a legal or equitable fee simple in the land or a person having an estate in possession: s 14(2)(a) and (b) of the Act. Section 14A makes provision for consolidation with adjoining land. 3. Section 17 of the Act relevantly provides: "17 Creation of folio for land that is the subject of a primary application (1) Where the Registrar-General intends to create a folio of the Register for land that is the subject of a primary application and, pursuant to section 12 (1) (h1) …, notice is given of that intention, that notice must specify a period (being not less than one month after the date of the notice) before the expiration of which that folio will not be created. (2) Subject to subsection (3), the Registrar-General may bring land, the subject of a primary application, under the provisions of this Act by creating for the land a folio of the Register in which: (a) the primary applicant, (b) where the primary applicant has directed that a person other than the primary applicant be recorded as the registered proprietor of the land—that person, or (c) where, in the opinion of the Registrar-General, a person not referred to in paragraph (a) or (b) is entitled to the land—that person, is recorded as the registered proprietor of the land. (3) The Registrar-General shall not create a folio of the Register under subsection (2) for land if: (a) the Registrar-General has given notice of intention to create the folio and the period specified in the notice pursuant to subsection (1) has not expired, or (b) there is in force under section 74B a caveat prohibiting the bringing of the land, or any part of the land, under the provisions of this Act. …" 1. The decision by the Registrar General to create a folio for the lane and register the first defendant as its proprietor plainly affected the plaintiffs' interests since they have a competing interest in the lane. Once the first defendant was registered as proprietor of the lane his title became paramount: s 42 of the Act. 2. Where a party's legal rights under an enactment could be adversely affected by a decision, there is an obligation on the decision-maker to accord procedural fairness: Kioa v West (1985) 159 CLR 550 at 584-585 (Mason J); [1985] HCA 81. In the present case, procedural fairness required the Registrar General to give notice to the plaintiffs of the first defendant's primary application so that they could have an opportunity to be heard on why it ought be refused. Express words of great clarity would be required to abrogate the common law right to procedural fairness: Electrolux Home Products Pty Limited v Australian Workers' Union (2004) 221 CLR 309; [2004] HCA 40 at [20]-[21] (Gleeson CJ). 3. There are no such express words in the Act. The wording of s 17 is consistent with the obligation to accord procedural fairness. The word "may" in s 12 does not convert the power to give a notice into a choice whether to give notice to an affected person and is manifestly insufficient to derogate from the plaintiffs' right to be given an opportunity to be heard before a decision under s 17 to bring land under the Act is made which adversely affects their interests. The Explanatory Memorandum for the Bill which became the Real Property Amendment Act 1996 (NSW) indicated that s 12(1)(h1) was added to provide for further ways of giving notice to affected persons. Thus the provision is facultative rather than restrictive and ought be construed in a way which is designed to advance its purpose: s 33 of the Interpretation Act 1987 (NSW). 4. I am satisfied that the decision of the Registrar General made on 29 April 2019 ought be set aside because of the denial of procedural fairness. It is necessary not only to set aside the decision but also to make consequential orders, as sought by the parties, to undo the effect of the decision so that the first defendant's application can be determined in accordance with law. Orders 1. The short minutes of order provided by the parties set out orders which are appropriate and which resolve the matter. For these reasons I make the following orders, at the joint request of the plaintiffs and the first defendant: 1 An order in the nature of certiorari quashing the decision (Decision) purportedly made by the fourth defendant (Registrar-General) on or about 29 April 2019 to bring land the subject of PA83491 (Land) under the provisions of the Real Property Act 1900 (NSW) (the Act) by creating for the Land a folio of the Register in which the first defendant is recorded as the registered proprietor of the Land. 2 Order that the Registrar-General is required to do the following: a. cancel the folio of the Register numbered 80/1249669; b. amend the folio of the Register numbered A/106430 by omitting the fifth numbered item in the second schedule thereof (right of footway in relation to the Land); and c. create a new folio of the Register that records that the first defendant is the proprietor for the time being of the land described in cancelled folio numbered B/106430, such folio to contain particulars to the same effect of those particulars recorded in relation to cancelled folio numbered B/106430 immediately before that folio was cancelled. 3 A declaration that the Decision was unlawfully made in that, in making the Decision, the Registrar-General failed to observe the requirements of procedural fairness. 4 Order that the parties have liberty to apply for such orders (if any) as they may be advised in relation to the implementation of these orders including orders consequential to these orders. 5 Order the first defendant to pay the plaintiffs' costs of these proceedings. 6 Order that the hearing listed for 20 November 2019 be vacated. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 November 2019