Parramore v Duggan

183 CLR 633
70 ALJR 1
132 ALR 40

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(Judgment by: BRENNAN J)

PARRAMORE v DUGGAN

Court:

Judges: Brennan
Deane
Dawson
Toohey
McHugh JJ

Judgment date: 3 November 1995

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Judgment by:
BRENNAN J

BRENNAN J. The appellant and respondent are respectively the registered proprietors of estates in fee simple in adjoining parcels of land. The appellant's land was brought under the provisions of the Real Property Act 1862 (Tas) on 10 March 1980 ("the former Act"). The respondent's land was brought under the provisions of the Land Titles Act 1980 (Tas) ("the Act") on 11 April 1983. The appellant's land also is now subject to the Act ^[F1] . The respondent claims to be entitled to an easement over the appellant's land in accordance with a memorial entered upon her certificate of title pursuant to s 43 of the former Act. The appellant denies that claim and relies upon his certificate of title which states that the "encumbrances and interests" to which his estate is subject are "nil".

The Act and the former Act are the successive Tasmanian Acts which implemented the Torrens system of registration of estates and interests in land in Tasmania. The essential characteristic of the Torrens system is stated by Barwick CJ in Breskvar v. Wall ^[F2] :

" The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor."

A Torrens system statute necessarily contains two key provisions: one, a provision that makes a certificate (or duplicate certificate) of title conclusive proof of the title of the registered proprietor so that no other person can be heard to claim that he or she is the proprietor of the title to which the certificate relates; and, two, a provision that makes that title immune from defeasance by a paramount title. Those requirements are met by ss 39 and 40 of the Act. Section 39 reads:

" (1) A folio of the Register is evidence of the particulars recorded in the folio.

(2) Except as otherwise provided in this Act, a folio of the Register is conclusive evidence that -

(a) the person named in the folio as registered proprietor of or as taking an estate or interest in the land described in the folio is entitled to that land for that estate or interest; and

(b) that land has been duly brought under this Act."

Section 40 is the provision which makes the title of a registered proprietor of land immune from defeasance by an otherwise paramount title. Sub-sections (1) and (2) of s 40 read as follows:

" (1) For the purposes of this section 'indefeasible', in relation to the title of a registered proprietor of land, means subject only to such estates and interests as are recorded on the folio of the Register or registered dealing evidencing title to the land.

(2) Subject to subsections (3) and (4), the title of a registered proprietor of land is indefeasible."

There is a difference between the terms used to describe the subject of conclusive evidence in s 39(2)(a) and the terms used to describe the subject of indefeasibility in s 40(1) and (2). Section 39(2) relates to the entitlement of a "registered proprietor of or [a person] taking an estate or interest in the land described in the folio". Section 40 confers indefeasibility on "the title of a registered proprietor of land" subject to the "estates and interests ... recorded on the folio ... evidencing title to the land". Indefeasibility necessarily relates to the title to land which might otherwise be defeated. It is erroneous to regard indefeasibility as relating to an interest which merely confers rights in or over the land of another registered proprietor whose title is indefeasible. A registered proprietor of a dominant tenement has an indefeasible title to the land to which the easement is appurtenant but the easement is not indefeasible. Similarly, where the servient tenement is land to which a registered proprietor has title under the Act, that title is indefeasible. Unless the easement is registered on the certificate of that title, or unless the easement falls within one of the exceptions contained in s 40(3), the unencumbered title of the registered proprietor of the servient tenement is not subject to the easement: see s 40(1). In other words, the registered proprietor of land to which an easement is appurtenant has an indefeasible title to that land but not to the easement, so that the easement cannot be enforced unless the certificate of title of the registered proprietor of the servient tenement states that that title is subject to the easement or unless the easement falls within s 40(3)(e) of the Act.

In the present case, although the respondent is entitled to claim indefeasibility of title to the dominant tenement and the appellant is entitled to claim indefeasibility of title to the servient tenement, the indefeasibility conferred by s 40 avails only the registered proprietor of the servient tenement. His title is taken free of any easement that is not recorded on the folio of the register evidencing title to his land unless the respondent can bring the case within one of the exceptions contained in s 40(3).

I agree with Toohey J, for the reasons which he gives, that the appellant's indefeasible title is unaffected by the "conclusive evidence" provision in s 106 of the Act on which the respondent seeks to rely and that the respondent fails to bring the easement she seeks to enforce within the exception to indefeasibility contained in s 40(3)(e)(i) of the Act. As to the respondent's argument that the case falls within the exception contained in s 40(3)(e)(ii), I agree with what Deane J has written. I am therefore in agreement with an order which gives effect to his Honour's judgment.