Parramore v Duggan
183 CLR 63370 ALJR 1
132 ALR 40
(Judgment by: McHUGH J)
PARRAMORE v DUGGAN
Court:
Judges:
Brennan
Deane
Dawson
Toohey
McHugh JJ
Judgment date: 3 November 1995
Judgment by:
McHUGH J
McHUGH J. I agree that this appeal should be allowed for the reasons given by Toohey J.
In addition to the arguments of the respondent that his Honour rejects, the respondent sought to rely in this Court upon two alternative arguments that were not put to the Supreme Court of Tasmania. One argument was that the respondent had an equitable easement over the appellant's land; the other was that the indefeasibility of the appellant's title was subject to the right of the Recorder to correct errors or rectify omissions in the Register. Although counsel for the appellant did not object to the respondent pursuing these arguments, I think it is inappropriate, indeed not feasible, for this Court to entertain them.
An equitable easement
The respondent contended that she was entitled to an equitable easement over the appellant's land and that it was an exception to the indefeasibility of the appellant's title under s 40(3)(e)(ii) of the Land Titles Act 1980 (Tas). First, she submitted that, when the appellant's land was converted to Torrens title, it was subject to an easement which is still enforceable in Equity against those who were bound by it before the conversion. Second, she submitted that the easement was not recorded because of mistakes on the part of the appellant or the Recorder or both and that it would be unconscionable for the appellant now to deny the existence of the easement. As an alternative to this second argument, the respondent contended that, if the appellant retained the benefit of the easement knowing of the mistake or omission in the Register, he would be unjustly enriched within the meaning of David Securities Pty Ltd v. Commonwealth Bank of Australia [F31] .
However, the appeal has come to this Court through the procedure of a Special Case and the Case was not framed so as to raise the issue whether the respondent had an equitable easement. Consequently, this Court does not have the benefit of the Supreme Court's findings on relevant matters of law or fact, nor does it have the evidentiary material before it that would allow the Court, if it was so minded, to make relevant factual findings.
A correctable error
The respondent also contended that the indefeasibility of the appellant's title is subject to the right of the Recorder to call in the appellant's title and record the easement to which the appellant's land was subject before its conversion to Torrens title. Section 139 of the Act provides that the Recorder may, upon such evidence as appears to him sufficient, correct errors or supply omissions in the Register and may "call in" a certificate of title for that purpose. Section 163 of that Act empowers the Recorder to "call in" the certificate of title "for the purpose of registration or of being, cancelled, corrected or otherwise dealt with" in a number of specified circumstances. One circumstance is that:
"(e) it is necessary for him to have the certificate of title ... for the purpose of registering a dealing, or of cancelling, correcting, or otherwise dealing with the certificate".
No doubt it is arguable that an error that is correctable by the Recorder is an exception to indefeasibility and that it may be proper, depending upon all the circumstances of a particular case, to call in a certificate and correct an error even when it means subjecting the title, evidenced by the certificate, to a hitherto unrecorded interest on the folio. But even if the major premise of the argument is correct, the minor premise depends upon the particular facts and circumstances of the case, and they are not found or recorded in the Special Case. More than that, the Recorder is not a party to this appeal. To seek to determine the rights of these parties in proceedings to which the Recorder is not a party would be highly inappropriate and probably an exercise in futility.
Order
The appeal should be allowed. The question in the Special Case should be answered "No". The action should be remitted to the Supreme Court of Tasmania to deal with the outstanding issues between the parties concerning the claim to a right of way based upon long user or lost deed and to determine any application by the respondent to raise issues of equitable easement or correctable error.
s 173(2).
(1971) 126 CLR 376 at 385-386.
Much of the information in the judgments below must have been distilled from documents accompanying the Special Case, which do not form part of the appeal book in this Court.
The Act came into operation on 1 October 1981 by reason of a proclamation made pursuant to s 2(2).
Gale on Easements, 7th ed at 6, quoted in Municipal District of Concord v Coles (1905) 3 CLR 96 at 110. See now 15th ed. (1986) at 6-7.
[1981] Tas R 334.
(1934) 51 CLR 217 at 239.
Dixon J was referring to s 51 as well as s 67.
(1934) 51 CLR 217 at 239.
See, for example, Webster v Strong [1926] VLR 509. See also Duffy and Eagleson, Transfer of Land Act 1890, (1895) at 192-194, 196-197; Wiseman, The Law Relating to the Transfer of Land, 2nd ed (1931) at 85-90, 94-95.
Marshall v Watson (1972) 124 CLR 640 at 649. See also Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 at 12; Mills v Meeking (1990) 169 CLR 214 at 223-224; Thompson v Goold & Co [1910] AC 409 at 420.
(1981) 147 CLR 297 . See also Saraswati v The Queen (1991) 172 CLR 1 at 21-22.
(1981) 147 CLR 297 at 305 per Gibbs CJ.
(1981) 147 CLR 297 at 311 per Stephen J.
(1981) 147 CLR 297 at 321 per Mason and Wilson JJ.
Easements and Restrictive Covenants in Australia, (1981), par 1138.
Tasmania, Legislative Assembly, Parliamentary Debates (Hansard), 26 March 1980 at 598.
(1919) 15 Tas LR 60. In Smith v Ritchie Crisp J held that the interest of a lessee, ineffective at law as a lease for 5 years because it was not registered under the Real Property Act 1862 (Tas), was nevertheless protected as against the registered proprietor, being an interest as equitable lessee which fell within the words "the interest of any tenant" in s 40 of that Act.
See In the Matter of the Application of J Schmid (1881) 15 SALR 48.
s 43.
In Wilkinson v Spooner [1957] Tas SR 121 it was held that an easement may be acquired under the Prescription Act 1934 (Tas) in land registered under the former Act.
Statutory Rules 1981, No 228.
s 17(3)(a).
An easement is an interest that could have been created by an instrument registrable under the Act: s 105
s 152(8). See Saade v Registrar-General (NSW) (1993) 179 CLR 58 ; 118 ALR 219
The meaning of "omission" in s 42 of the Real Property Act 1900 (NSW) was considered at length in Dobbie v Davidson (1991) 23 NSWLR 625
(1987) 162 CLR 514 at 518; 70 ALR 225 at 227-8
Wheeldon v Burrows (1879) 12 Ch D 31 at 49
See, for instance, ss 75a, Pt XIa, 84j
See s 28(2) of the Act
(1992) 175 CLR 353 at 389; 109 ALR 57
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