Leader v Beames[1998] QCA 368

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 4089 of 1998

Brisbane

[Leader v. Beames]

BETWEEN:

LOREN R LEADER, REGISTRAR OF TITLES

(Respondent) Appellant

AND:

DOUGLAS McLEOD BEAMES

(Applicant) Respondent

McMurdo P.

Thomas J.A.

Shepherdson J.

Judgment delivered 13 November 1998

Judgment of the Court

APPEAL DISMISSED WITH COSTS TO BE TAXED

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 4089 of 1998

Brisbane

[Leader v. Beames]

BETWEEN:

LOREN R LEADER, REGISTRAR OF TITLES

(Respondent) Appellant

AND:

DOUGLAS McLEOD BEAMES

(Applicant) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 13 November 1998

1. The above-named appellant has appealed against orders made by a learned judge of the Trial Division of this Court whereby his Honour set aside the appellant’s decision that a plan of subdivision No. 905522 lodged by or on behalf of the respondent was incapable of registration and that the appellant pay sixty per cent of the taxed costs of the above-named respondent.

2. The learned trial judge made these orders at the conclusion of the hearing of the above-named respondent’s application under the Judicial Review Act 1991 to review the appellant’s decision.

3. The respondent is the registered proprietor of freehold land described as lot 29 on RP 12574 situated at 61 Gillan Street, Norman Park.  Lot 29 is one of sixty lots appearing in Plan Catalogue (as it was then described) No. 12574 prepared by Surveyor C.E. James in 1915 and registered in that year.  Plan Catalogue No. 12574 was subsequently amended to show sixty-two lots but that amendment is not relevant to the present matter.

4. Lot 29 has been alienated Crown land since 28 January 1854 when 9 acres, the land of which lot 29 forms part, became the subject of a grant of land purchased by the State of New South Wales to the Honourable Louis Hope.

5. As the learned trial judge said:-

“Lot 29 has 3 boundaries.  One is a surveyed line which marks the boundary between the lot and Gillan Street, another is a surveyed line which marks the boundary between lot 29 and lot 28.  The remaining boundary is Norman Creek.  The plaintiff asserts title to all of the land between these 3 boundaries.  He contends that the Norman Creek boundary is the mean high water mark line of the creek.  The survey plan [905522] purports to show the mean high water mark of the creek.  That line extends outwards from about 6 metres to 11 metres beyond the line shown as the bank of Norman Creek in RP 12574 (‘the 1915 plan’).”

The respondent caused lot 29 on RP 12574 to be resurveyed and surveyor George L.H. Enever prepared plan of survey 905522.

6. There is no dispute that this plan 905522 was a plan of subdivision as defined in s. 49 of the Land Title Act 1994 being a plan of survey providing redefinition of a lot on a resurvey (see s. 49(d)).  Mr Enever lodged the plan with the Department of Natural Resources and by a short letter dated 20 March 1997 under the hand of Senior Surveyor, Peter Swan, the Department notified Mr Enever that the plan “is incapable of registration.  An area of unallocated State land has incorrectly been included in lot 29.”

7. By a further letter dated 15 April 1997 addressed to the respondent the present appellant elected not to register plan 905522 for various reasons set out in that letter, which amount essentially to an extrapolation of the Department’s letter of 20 March 1997.

8. The question for this Court is whether the present appellant was entitled to refuse registration of plan of survey 905522 because he had doubts whether the land the subject of the plan was entirely freehold or was in part Crown land.

9. It is apparent from the material before the learned trial judge and from his Honour’s reasons for judgment that:-

1. the boundary of lot 29 abutting Norman Creek was not determinable by any metes and bounds description but is the mean high water mark;

2. the parties did not dispute that in determining the mean high water mark common law principles apply;

3. the resurvey by plan 905522 increased substantially the area of land contained in lot 29, this increase being the area between the line of a creek bank shown in the 1915 survey and the mean high water mark shown in plan 905522.

10. Establishing the high water mark was a contentious issue at the hearing before the learned trial judge, the appellant contending that lot 29's Norman Creek boundary described in plan 905522 was so positioned that while it arguably included some land properly subject to the principle of accretions, it included land the result of filling or reclamation and therefore not subject to the principle of accretions and consequently unalienated or Crown land.  We pause to say that the field notes of Mr James who prepared the 1915 plan apparently do not show whether he purported to identify on the plan as the boundary of Norman Creek a line representing the mean high water mark, the creek bank or some other feature.  It appears that it was then a common practice for surveyors to measure the high bank instead of the correct boundary (mean high water mark).

11. On the appellant’s contentions, both in his decisions which were reviewed and in his hearing before this Court, the result was that plan 905522 included a portion of Crown land or as was said in the letter of 20 March 1997 “unallocated Crown land”.

12. The appellant contends that plan 905522 does not therefore comply with the requirements of the Land Title Act and that the learned trial judge erred in law in finding that the appellant was wrong in refusing to register the plan.

13. We turn now to the relevant sections in the Land Title Act.  The preamble to the Act reads:-

“An Act to consolidate and reform the law about the registration of freehold land and interests in freehold land and for other related purposes.”

14. Section 3 sets out “object of Act” and relevantly reads:-

“3.The object of this Act is to consolidate and reform the law about the registration of freehold land and interest in freehold land and, in particular–

1. to define the rights of persons with an interest in registered freehold land;  and

. . .

3. to define the functions and powers of the Registrar of Titles;  and

. . .”

The preamble and s. 3 show the Land Title Act is concerned with registration of freehold land and interests therein.  By s. 9 the Registrar of Titles may delegate his powers under the Land Title Act or another Act to an officer or employee of the Department.  Section 18A deals with “pre-examination of plans” and permits the Registrar of Titles to examine a plan of survey and related instruments deposited before the plan -

“(a)is sealed by a local government; or

2. is lodged for registration.”

15. Section  156  (requisitions)  applies  to  a  plan  and  related  instruments  deposited  under sub-s. 18A(1).

16. By s. 27 the Registrar of Titles must keep a register of freehold land and by s. 28 must record in the freehold land register the particulars therein set out.

17. Section 30 is an important section and it reads:-

“Registrar must register instruments

30(1)If a person lodges an instrument and complies with the requirements of this Act for its registration the Registrar must register the instrument.

(2)However, sub-section (1) does not prevent the person from withdrawing the instrument.”

“Instrument” is defined in Schedule 2 to the Land Title Act and the definition includes (inter alia):-

“(f)a map or plan of survey that may be lodged.”

Thus the relevant plan 905522 is an instrument.

18. Section 50 sets out “Requirements for registration of plan of subdivision” and in our view the phrase “the requirements of this Act for its registration” appearing in s. 30(1) means, in the case of a plan of survey, the matters set out in s. 50.

19. It is unnecessary to set out the whole of s. 50 - suffice it to say that it lists ten subheadings containing the requirements.  On the material before the learned trial judge, the plan of subdivison appears on its face to meet those requirements where applicable and “appears on its face to be capable of registration”.

20. This phrase appears in s. 153 which relevantly reads:-

“When instrument capable of registration

153. The Registrar may register an instrument only if–

1. it complies with this Act; and

2. it appears on its face to be capable of registration.”

We again mention s. 156 under which the Registrar of Titles may give a requisition and refuse to deal with an instrument lodged until the person who lodged or deposited that instrument has complied with the requisition.

21. In a careful judgment the learned trial judge reviewed all the evidence before him and addressed the contentions advanced by each side.  The evidence included a substantial report by Mr Enever on the water boundary of lot 29.  His report annexed (inter alia) a report by Surveyors, Keilar Fox and McGhie Pty Ltd dated 1 July 1996 and described as - “Report on Investigation of the Norman Creek Boundary of Lots 28 and 29 on Crown Plan 896475”.  It also annexed a “Report on Geo-Technical Investigation on Creek Bank Deposition, Gillan Street, Norman Park” by Douglas Partners.

22. It is unnecessary to refer further to this evidence other than to note that Mr Enever concluded that lot 29 as shown on Plan 905522 has been in its present state and position since the earliest reliable information available i.e. the 1946 aerial photos (p. 37 of the record) and that the 1915 survey by Surveyor C.E. James did not define the position of the Norman Creek boundary of lot 29 either then or now.    Mr Enever concluded that he had been unable to find any record showing that the Norman Creek boundary had ever been correctly surveyed as mean high water mark; that, although the report of Keilar Fox and McGhie noted “It was found that the site had, at some previous date, been filled below the location of the previously determined Norman Creek boundary” and that because there was no evidence that the water boundary was ever correctly surveyed, that lack combined with other variables meant there was no clear evidence of filling or reclamation work below a mean high water mark.

23. The learned trial judge made a number of findings in respect of four of the grounds on which judicial review was sought.  Those findings favoured the appellant.  One of these was that the Registrar was entitled to conclude on the evidence before him that the extent to which the additional area could be attributed to common law accretions or reclamation or filling works and/or to the difference caused by a possible adoption of the high bank of the creek as the land boundary in the 1915 survey was difficult to gauge.

24. His Honour then addressed the remaining grounds relied on by the respondent and these, as he said, came down to the question whether the Registrar of Titles was obliged to register instruments which have complied with all the “requirements” of the Act for the registration of such instrument.  His Honour reviewed authorities.  One of these, the decision of the Full Court of the Supreme Court of Victoria - Re British Bank of Australia Ltd (1899) 21 A.L.T. 148, strongly supports his Honour’s decision to set aside the appellant’s decision.

25. We quote from his Honour’s reasons:-

“In that case a registered plan of subdivision had some areas marked on it as ‘parks’.  The Registrar of Titles declined to register transfers of part of the land described on the plan as parks without the consent of those persons who had bought allotments marked on the plan.  Particular reliance was placed on the following passage in the judgment of the court:-

‘The Registrar apparently has drawn the inference that because that section [section 172] requires plans of sub-division to be deposited with the Registrar, it is to be read as though the legislature thereby enacted that all statements on these plans are to be taken to indicate intentions to appropriate portions of the land for the benefit of purchasers.  But we think that is not the meaning of the section.  I think that the plan of sub-division is to be deposited with the Registrar merely for the purpose of facilitating reference. 

That that was the intention of the legislature is to be gathered from the following sections, 174 and 175, which relate to other matters which however are kindred to those mentioned in section 172.  The whole set of sections is intended by the legislature to be facilities for the description in certificates of titles of the land comprised in them.  We think therefore there is no alteration of the equities which prevailed by law concerning sales of land or the rights arising from, or principles governing plans exhibited at the time of such sales . . .

We therefore think that the Registrar was wrong in his view of the Act, and also wrong in not leaving the matter to the parties to fight it out themselves.”

In our respectful view the last sentence in that passage aptly illustrates the course to be followed in the present case and the correctness of his Honour’s decision.

26. In his reasons for judgment the learned trial judge, correctly in our view, accepted that the Registrar would not be obliged to register an instrument which was not in respect of freehold land saying, “Such an instrument would not comply with the requirements of the Act for registration because such requirements are based on the premise that land the subject of a dealing is freehold”.  His Honour went on, and we set out the passage because Mr J.S. Douglas Q.C., who has appeared for the appellant did not, on the hearing, challenge the accuracy of it:-

“In this case, the instrument sought to be registered is in respect of freehold land. It is a plan of re-survey of freehold land contained in a Certificate of Title and which is the subject of an existing registered plan of survey. The Registrar has reason to suspect that the true boundary of the freehold land may not be the mean high water mark of Norman Creek as the applicant for registration and his surveyor contend. If the Registrar's suspicions are well founded the survey plan will encompass an area of Crown land. Is the Registrar entitled to refuse registration in such circumstances? Registration of the survey plan will not have the consequence that land not under the Act will become land contained in a Certificate of Title. Nor will registration of a plan of subdivision, subsequently found to be inaccurate, give rise to claims against the Registrar. Section 189(1) of the Act expressly provides that a person is not entitled to compensation ‘because of an error in the location of a lot's boundaries ...’.

If it is subsequently determined that the creek boundary shown on the survey plan is incorrect, the Crown, merely by virtue of registration of the survey plan, will not be prevented from asserting its title.”

27. A little later his Honour concluded:-

“It is not a function of the Registrar, however, to resolve possible points of contention between persons interested in the same parcel of land.  Different considerations may well arise where the instrument sought to be registered is illegal or otherwise tainted by illegality or where its registration might deprive a person of lawful rights of interest in land or assist in implementing an unlawful act or transaction.  This is not such a case.  Registration of the plan of survey will not change the lawful boundaries of the land contained in the Certificate of Title in respect of the land. And it is not the function of the Registrar to provide a form of quality assurance in respect of the work of registered surveyors preparing plans of subdivision. However it must be a matter of concern that a public register contains an inaccurate plan or inaccurate plans on which members of the public might rely. . . .

Section 30(1) provides, in mandatory terms, that a person who has lodged an instrument and who has complied with the requirements of the Act for its registration is entitled to have the Registrar register the instrument. That section provides strong support for the applicant's contentions.”

28. We have highlighted one sentence in the above extracts from the reasons because some time after the hearing concluded the court received further written submissions from the appellant and these concerned the highlighted sentence.  We shall later come to these submissions.  His Honour then dealt with s. 156 and a submission that the letter of 20 March 1997 could be viewed as a requisition requiring the respondent to correct the plan of survey on the basis of inaccuracy, the inaccuracy being that the additional area had not come about through accretion.

29. On the “charitable” construction that the letter might arguably be such a requisition, the learned trial judge took the view the appellant had erred in law in reaching that conclusion, those errors being:-

1. that he incorrectly concluded or assumed that the 1915 survey fixed the Norman Creek boundary of the land by reference to a mean high water mark;

2. placed undue emphasis on the extent of the accretions and failed to give due weight to the possible causes of the accretions;

3. began his inquiry or assessment from the premise that the 1915 survey showed the correct Norman Creek boundary of the land.

These factors suggest that the letter was not in any event a requisition.  It was simply a refusal to register based on inappropriate grounds.

30. We turn now to the further written submissions from the appellant received after the hearing.  The court asked the respondent to respond in writing to these further submissions and he has done so.

31. The appellant withdrew his earlier concession and now contends that the learned trial judge erred when he said “Registration of the survey plan will not have the consequence that land not under the Act will become land contained in a Certificate of Title”.

The appellant’s counsel now submit:-

a.The plan of survey is an instrument (s. 30 Land Title Act).

b.The appellant Registrar must record in the freehold land register the particulars necessary to identify every lot brought under the Land Title Act and all instruments registered in the freehold land register (s. 28 Land Title Act ).

c.The appellant Registrar is empowered to record in the freehold land register anything that the Registrar is permitted to record by the Land Title Act or any other Act and anything that he considers should be recorded to ensure that the register is an accurate, comprehensive and useable record of freehold land in the State (s. 29 Land Title Act).

d.A certificate containing the indefeasible title for a lot (the “Certificate of Title”) issued pursuant to s. 42 of the Land Title Act must be certified by the Registrar as an accurate statement of the current particulars in the freehold land register about the lot (s. 43 Land Title Act).

e.that in consequence the plan of survey becomes an essential ingredient of the description of the land contained in a Certificate of Title; and

f.that if the plan of survey 905522 is registered “automatically” it will have the effect of altering the lot description in the freehold land register and consequently the description of the land contained in the Certificate of Title;

g.Finally, it is said that a bona fide purchaser for value of lot 29 as resurveyed by plan 905522 will obtain an indefeasible title to land which in the subject case arguably contains unallocated Crown land.

32. We turn to the respondent’s submissions in reply to the above contentions.

33. Mr Clarke, counsel for the respondent submitted that the now challenged sentence in his Honour’s reasons achieves its significance from part of a passage in his Honour’s reasons which  we have set out in paragraph 27 ante.  He relies especially on the following:-

“Different considerations may well arise ... where ... registration [of the instrument sought to be registered] might deprive a person of lawful rights of interest in land ... .  This is not such a case.  Registration of the plan of survey will not change the lawful boundaries of the land contained in the Certificate of Title in respect to the land.”

34. A photocopy of Certificate of Title No.368865 Vol.1949 Fol.205 shows the subject land was earlier described as “subdivision 29 of resubdivision 2 of subdivision 2A of portion 7A on plan catalogue No.12574 deposited in the office of the Registrar of Titles, Brisbane” and an endorsement on the title shows the description was converted to “lot 29 Registered Plan No.12574".  As already stated, plan No.12574 was prepared by Surveyor James in 1915.  Lot 28 and lot 29 have a straight line common boundary, lot 28 being to the north of lot 29.

35. Mr Clarke next submitted that the photocopy of registered plan No.12574, shows in effect the following particulars identifying the boundaries of lot 29:-

1. A point of commencement at the south-east corner of lot 28 (also the north-east corner of lot 29) where lot 28 touches Gillan Street.  [We accept Mr Clarke’s submission  that the exact location of this point should be either pegged or recoverable from the surveyor’s notes of Mr James, which should be held at the Land Titles Office from the time when the survey plan No.12574 was lodged in the Titles Office].

2. A boundary [the common boundary with lot 28] formed by a right line proceeding in a general westerly direction from that point of commencement to the mean high water mark of Norman Creek.  The precise bearing of that line is stated on plan No.12574 as 291 degrees and the length of that line in 1915 is stated on Plan 12474 and obviously that length is based on calculations in the 1915 survey.  The expression “right line” (used by Mr Clarke) means a straight line formed by or with reference to a right line perpendicular to another right line (see Shorter Oxford English Dictionary on historical principles (3rd Ed)).

3. A second boundary formed by another right line from the point of commencement in a southerly direction to the mean high water mark of Norman Creek.  This right line forms the eastern boundary of lot 29 and for most of its length is the common boundary between lot 29 and Gillan Street.  The precise bearing of that common boundary with Gillan Street is stated on plan No.12574 to be 201 degrees.  The length of that right line in 1915 is stated on plan No.12574 and obviously that length is based on calculations made by Mr James in his 1915 survey.  The first and second right lines are of course at right angles to each other.

4. The third and final boundary is formed by the mean high water mark of Norman Creek,  that boundary being between the points at which the above two right lines intersect with Norman Creek.

36. Mr Clarke has described this third boundary as an “ambulatory boundary” - a description went adopt as we think “ambulatory” correctly describes the nature of that boundary.

37. Mr Clarke emphasises that these above particulars identify the boundaries of lot 29 and thus, as we understand him, refer to particulars already recorded in the freehold land register necessary to identify lot 29 (s. 28(1)(a) Land Title Act).

38. Mr Clarke pointed out, correctly in our view, that any person searching the freehold land register after plan No. 905522 is registered, with a view to seeking information as to the surveyed boundaries for lot 29, would extract from the particulars in plan No.905522 the identical particulars appearing in plan No.12574 except for the lengths of the two right lines from the point of commencement to the mean high water mark of Norman Creek.

39. He has further submitted that it would be obvious to any Surveyor that the lengths of the two right lines were, in both the plans 12574 (done in 1915) and 905522 (done in 1997) inexact in the sense that as the ambulatory boundary varied so would the lengths of each of the right lines terminating at that ambulatory boundary.  In his submission Mr Clarke places even greater emphasis on a matter which he regards as obvious and that is that knowledge of the lengths of the two right lines was and is not necessary for any Surveyor to re-establish the boundaries in question.  We understand him to be referring to the boundaries of lot 29 and especially the ambulatory boundary.

40. Mr Clarke submits, correctly in our view, that in the present case the length of each of these two right lines does not establish where the natural feature (i.e. Norman Creek) begins and further that it is where that natural feature begins, that establishes the length of each of these two right lines.

41. He has relied on the decision of the Full Court of the Supreme of Queensland in Donaldson v Hemmant (1901) 11 Q.L.J. 35 in support of his submission that in re-identifying boundaries, the highest regard is had to natural boundaries.

42. In that case the dispute between the parties arose out of a sale of land by auction on 8 February 1890.  The contract included the real property description of the land and referred to a plan of subdivision of portions 430 and 431.  At the time of the auction the purchaser saw all the pegs on six of the allotments he had bought and road pegs on two other allotments.  He also had a lithograph.  The lithograph was not headed “plan of subdivision of portions 430 and 431" but had a large printed heading “plan of Eldernell Hill” and there was no mention in it of any particular portions.  As Griffith CJ said (at p. 40):-

“It appears that the lithograph does not exactly correspond with the boundaries as actually marked.”

His Honour continued:-

“The plaintiff contends that what he is entitled to under the written contract is whatever might turn out to be the land bounded by lines projected on the ground in accordance with the lines drawn on that plan, where the words “subdivision 117,” for instance, were written.  It is to be remarked that the plan does not indicate any magnetic bearings; and we are told, and it is a fact of which we are entitled to take notice, that this land is extremely rugged.  Moreover, there is no scale.  The lines on the lithograph, therefore, do not represent the actual length of lines measured on the ground, but the boundaries of an imaginary horizontal plane surface, bounded by vertical planes passing through the corners of the lots.  On the other hand, the defendant says that that is not the contract.  He says the contract was that the plaintiff should buy the subdivisions, called in the document referred to, whatever that was, allotment 117, and which at that time, within the knowledge of all parties, was marked out by the boundary pegs, which denoted where the corners were, and of what allotments they were the corners.

Now, for determining the question of parcel or no parcel, a rule to which I referred in the course of the argument, has been laid down in the American Courts.  It is to be found in the fourth edition of Taylor on Evidence, p. 1029, s. 1105(n.).  I have quoted it many times in this Court from the Bar, and I now quote it again from the Bench:-

‘The object in cases of this kind is to interpret the instrument - that is, to ascertain the intent of the parties.  The rule to find the intent is to give most effect to those things about which men are least liable to mistake.  On this principle the things usually called for in a grant - that is, the things by which the land granted is described - have been thus marshalled in America: (1) The highest regard is had to natural boundaries.  (2) To lines actually run and courses actually marked at the time of the grant.  (3) If the lines and courses of an adjoining tract are called for, the lines will be extended to them, if they are sufficiently established, and no other departure from the deed is thereby required, marked lines prevailing over those which are not marked.  (4) To courses and distances, giving preference to the one or the other according to the circumstances.  Words necessary to ascertain the premises must be retained, but words not necessary for that purpose may be rejected if inconsistent with the others’.”

It is unnecessary to discuss Donaldson v. Hemmant any further.

43. The observations in that case are relevant.  They reinforce the views that the natural feature remains the primary boundary, and that lines on maps, if subordinated by description of the natural feature, are merely secondary guides which are capable of correction from time to time.

44. We would add that once plan 905522 is registered, there will be a change in the lengths of the above two right lines - this will arise because any person searching the relevant Certificate of Title will be referred to plan 905522 and because the title will no doubt then show the land described as lot 29 on Registered Plan 905522; once that plan is consulted the change will be apparent.  Mr J.S. Douglas Q.C. has submitted that such a change is a change of an essential ingredient.  With respect we do not agree.  Any change in the length of each of these two straight lines is established by the natural feature - Norman Creek, and in our view any such change is not essential because statements of those particular lengths are surplusage when it comes to recording in the freehold land register the particulars necessary to identify lot 29 and comply with s. 28(1)(a) Land Title Act.  In identifying lot 29 it suffices to say one boundary is the mean high water mark of Norman Creek.

45. Mr Douglas’ final contention (as earlier set out in paragraph 31 of these reasons at letter “g”) is that a bona fide purchaser for value of lot 29 as resurveyed by plan 905522 will obtain an indefeasible title to land which arguably contains unallocated Crown land.  Mr Clarke, to meet this submission has submitted that when the true boundaries are ascertained, a mistaken measurement, even a measurement intended to be a precise measurement, does not lead to an augmentation of the indefeasible title.  He relies on a decision of Griffith CJ - Overland v. Lenehan (1901) 11 Q.L.J. 59.  In that case the plaintiffs were the registered proprietors of a corner block of land upon which was erected the Clarence Corner Hotel in Stanley Street, South Brisbane (described as subdivision 1 B). [This hotel is still standing at that address.]  The plaintiffs sought to recover part of the adjoining subdivision (subdivision 10) also abutting Stanley Street, on the strength of the description of subdivision 1B in their Certificate of Title.  In that title the northern boundary of subdivision 1B (its abutment to Stanley Street) was described as follows:-

“... on the north by a road bearing west 2 chains 50 links ...”

The Chief Justice held (at p. 67) that the plaintiff’s Certificates of Title contained a misdescription in as much as they erroneously described the northern frontage as 2½ chains, whereas it was actually less than that by 37.5 links.

46. The fact that the description of measurements of the subject land in Overland v.  Lenehan was by metes and bounds rather than by reference to lines on a plan referred to in a certificate of title is immaterial.

47. If Overland v. Lenehan applies to the Land Title Act, it is contrary to the appellant’s submission set out in paragraph 31 of these reasons at letter “g”.

48. At pp. 59-60 of the report Griffith CJ said:-

“By s. 44 of The Real Property Act of 1861 the estate of a registered proprietor is declared to be paramount, except in certain cases, one of which is “the wrong description of the land or its boundaries.”  It is clear, therefore, that if it is made out that the description of the land or of the boundaries of the land as set out in a certificate of title is erroneous, the erroneous description is not conclusive.  This proposition assumes that the identity of the land in question is not necessarily to be determined by a mere literal application of the description contained in the certificate to the locus in dispute.  It assumes further that if the identity of the land is clearly ascertained an error in the description of the land or of its boundaries may be disregarded.  Section 123 of the same Act provides, in effect, that a man deprived of land by a wrong description of the land or of its boundaries is not precluded from asserting his title by action of ejectment; and s. 124 provides that in such a case the Court may direct the instrument of title to be rectified.  It obviously follows, I think, that an error in description of boundaries cannot be relied upon to displace the title, otherwise good, of a person in possession of land erroneously included in the title.”

His Honour was there referring to the now repealed Real Property Acts.

49. The exception of “the wrong description of land or its boundaries” found in s. 44 of the Real Property Act of 1861 has been substantially retained in the Land Title Act 1994.  Part 9 of the latter Act is headed “REGISTRATION OF INSTRUMENTS AND ITS EFFECT”.

50. Division 2 of Part 9 is headed “Consequences of Registration” and subdivision B of Part 2 is headed “Indefeasibility”.  It contains four sections - 184 to 187 (both inclusive).  Section 184 provides:-

“Quality of registered interests

184(1) A registered proprietor of an interest in a lot holds the interest subject to registered interests affecting the lot but free from all other interests.

(2) In particular, the registered proprietor -

1. is not affected by actual or constructive notice of an unregistered interest affecting the lot; and

2. is liable to a proceeding for possession of the lot or an interest in the lot only if the proceeding is brought by the registered proprietor of an interest affecting the lot.

(3)However, subsections (1) and (2) do not apply -

1. to an interest mentioned in section 185 (Exceptions to s 184); or

2. if there has been fraud by the registered proprietor, whether or not there has been fraud by a person from or through whom the registered proprietor has derived the registered interest.”

51. Subsection 184(3) is relevant to the present case and if an interest is mentioned in s. 185 then subsections 184(1) and (2) do not apply.

52. Relevant to the present case s. 185(1) which section is headed “Exceptions to s 184" reads:-

“185(1)A registered proprietor of a lot does not obtain the benefit of section 184 (Quality of registered interests) for the following interests in relation to the lot -

...

7. the interest of another registered proprietor if the lot described in the indefeasible title wrongly includes land in which the other registered proprietor has an interest.”

53. Mr Clarke submits, correctly in our view, that in the present case the length of each of these two right lines does not establish where the natural feature (i.e. Norman Creek) begins and further that it is where that natural feature begins, that establishes the length of each of these two right lines.

“Wrong description of land: This exception to indefeasibility has been retained in clause 115(3)(g).”

This clause 115(3)(g) with slight and immaterial alterations appears in the Land Title Act as s. 189(1)(g).

54. In our view the “wrong description of land or its boundaries” exception formerly present in s. 44 of the Real Property Act 1861 is now present in s. 185(1)(g) of the Land Title Act and Overland v. Lenehan applies in the present case.

55. One of the important aspects of the present case is the need to bear in mind subsection 28(1)(a) of the Land Title Act in terms of which the registrar must record in the freehold land register the particulars necessary “to identify every lot brought under this Act”.

56. We have already discussed this aspect and emphasise that the provisions require the freehold land register to contain the particulars necessary to identify lot 29.  Subsection 28(1)(a) does not require the register to contain particulars which conclusively define lot 29.

57. On this aspect Mr Clarke has submitted that the Land Title Act does not intend to guarantee the accuracy of surveys and descriptions and he relies on subsections 189(1)(f) and (g) of the Act as indicating absence of such intention.

58. Section 189 appears in subdivision C of Part 9 headed “Compensation for Loss of Title” and ss. 189(1)(f) and (g) read:-

“189(1) A person is not entitled to compensation from the State for deprivation, loss or damage -

...

6. because of an error in the location of a lot’s boundaries or in a lot’s area; or

7. because of an error or shortage in area of a lot according to a plan lodged in the land registry; ...”

59. In our view the scheme of the provisions of the Land Title Act to which we have referred is to recognise:-

1. that if the Registrar has before him lodged for registration a plan within s. 49(d) redefining lot 29 and that plan contains the particulars necessary to identify lot 29 then if the plan complies with the requirements of s. 50 of the Land Title Act and appears on its face to be capable of registration then the registrar must register it.

2. if the plan is later proved to have the wrong description of lot 29 or to have wrongly described the boundaries of lot 29 then the registered proprietor of lot 29 does not obtain indefeasibility of title to land apparently within lot 29 because of the wrong description of the boundaries on the plan.

3. the accuracy of surveys and description in surveys is not guaranteed.

4. the true limit of an ambulatory boundary (such as one defined as the line of a mean high water mark) is always ‘on the ground’ rather than where it is drawn on a plan.  Plan 905522 merely re-defines a lot that is already registered under the Act.  Nothing prevents further re-definition in the future, for example after litigation between interested parties.  Plan 905522 can be no more objectionable than the existing registered plan which all parties agree no longer represents the present topographical position.

60. The identification of lot 29 is to be determined from particulars on the plan of survey (s. 28(1)(a)) but in the present case where one boundary is ambulatory the identification is not necessarily made by literally applying the dimensions of boundaries of the lot appearing on the plan (see Overland v. Lenehan (supra)).

61. If there are subsequent proceedings begun by the Crown against the present respondent and as a result of those proceedings an error in the description of lot 29 is disclosed then that error can be corrected and the extent of the land to which the respondent has indefeasibility of title established.

62. In the present case, for reasons already given we have concluded that the contentions advanced by the appellant in its later submissions must be rejected.  We conclude that the statement made by the learned judge in the challenged sentence is correct.

63. In our respectful view the appellant has failed to demonstrate that the learned trial judge erred in finding that the appellant was wrong in refusing to register the plan of survey. The plan of survey has complied with the requirements of s. 50 of the Land Title Act and the Registrar erred in taking up the cudgels of the Crown instead of leaving it to the applicant and the Crown to fight out between themselves exactly where the true mean high water mark which delineates one boundary of lot 29 is situated.  We would dismiss the appeal with costs to be taxed.  We have not commented on the learned trial judge’s definition of the principle of accretions.  This aspect was not an issue on this appeal and it is inappropriate that we now comment on it, particularly when there may be future litigation concerning exactly where the mean high water mark is.