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Orb Holdings Pty Ltd v WCL (Qld) Albert St Pty Ltd QCA 198
SUPREME COURT OF QUEENSLAND
Orb Holdings Pty Ltd v WCL (Qld) Albert St Pty Ltd  QCA 198
ORB HOLDINGS PTY LTD
ACN 010 227 371
WCL (QLD) ALBERT ST PTY LTD
ACN 600 302 976
Appeal No 13088 of 2019
SC No 6514 of 2019
Court of Appeal
General Civil Appeal
Supreme Court at Brisbane –  QSC 265 (Davis J)
11 September 2020
3 April 2020
Sofronoff P and McMurdo JA and Boddice J
REAL PROPERTY – TORRENS TITLE – INDEFEASIBILITY OF TITLE – EXCEPTIONS TO INDEFEASIBILITY – OTHER MATTERS – where the respondent is the registered owner of land which was, until recently, used as a public laneway – where the respondent wishes to develop the land in conjunction with adjoining lots – where the appellant is the owner of nearby land – where the appellant brought an originating application in the trial division seeking a declaration that the lane is a public road – where the application was summarily dismissed – where the appellant argues that the land became vested in the Crown, and the ownership of the land is not under the Land Title Act 1994 (Qld), and is unaffected by its provisions for an indefeasible title – whether the primary judge erred in holding that the lot had ceased to be land vested in the Crown for use as a public road, because of the indefeasibility provisions of the Land Title Act
Land Act 1962 (Qld), s 362, s 369
Land Act 1994 (Qld), s 95, s 454
Real Property Act 1861 (Qld), s 119
Attorney-General (Quebec) v Attorney-General (Canada)  1 AC 401;  UKPC 96, considered
Brodie v Singleton Shire Council (2001) 206 CLR 512;  HCA 29, followed
Commonwealth v WMC Resources Ltd (1998) 194 CLR 1;  HCA 8, cited
Ex rel Attorney-General (SA); Australian Mutual Provident Society v Adelaide City Corporation  SASR 217;  SAStRp 13, considered
Miller v Minister of Mines & Anor  AC 484, considered
Pratten v Warringah Shire Council  2 NSWR 161, considered
South-Eastern Drainage Board (South Australia) v Savings Bank of South Australia (1939) 62 CLR 603;  HCA 40, considered
Trieste Investments Pty Ltd v Watson  NSWR 1226, considered
Vickery v Municipality of Strathfield (1911) 11 SR (NSW) 354;  NSWStRp 71, considered
Yanner v Eaton (1999) 201 CLR 351;  HCA 53, considered
J D McKenna QC, with J P Hastie, for the appellant
P Dunning QC, with S B Whitten, for the respondent
HWL Ebsworth Lawyers for the appellant
CDI Lawyers for the respondent
- SOFRONOFF P: I agree with the reasons and conclusions of McMurdo JA and wish to add some observations of my own about the text of the Land Act 1962 (Qld).
- The Land Title Act 1994 (Qld) allows for the creation of “lots” by the Crown’s alienation of land pursuant to a deed of grant. Lots may also be newly created by registering a plan of subdivision which divides an existing lot into smaller lots or by amalgamating smaller lots into a single larger lot. In any case, upon registration of the deed of grant or the plan, an indefeasible title is thereby created in the new lot. Of fundamental importance is s 184 of the Land Title Act which provides that the registered proprietor of an interest in a lot holds that interest subject only to registered interests affecting that lot. The “State” itself may acquire, hold and deal with lots and, moreover, the “State” is bound by the Act. This absolute indefeasibility of registered title lies at the very heart of the system of registration of land.
- The problem that arose in this case was due to the apparent inconsistency between s 37 of the Land Title Act 1994, by which an “indefeasible title for a lot is created on the recording of the particulars of the lot in the freehold land register”, read with s 184 of that Act, and s 369 of the Land Act 1962, which provides that land that has been dedicated as a road by “the owner” shall, by virtue of that dedication, “[be vested] in the Crown”. Section 369 was enacted long after the Torrens system was established in this State and so that provision was enacted as part of a system of land title management that contemplated the indefeasibility of a registered interest.
- What, then, can the word “vested” mean in this context and what is comprehended by the use in the provision of the word “land”?
- In his seminal article, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, Professor Wesley Hohfeld drew attention to the ambiguity of a word that is closely related to “vested”, namely “property”. He said:
“The word “property” furnishes a striking example. Both with lawyers and with laymen this term has no definite or stable connotation. Sometimes it is employed to indicate the physical object to which various legal rights, privileges, etc., relate; then again–with far greater discrimination and accuracy–the word is used to denote the legal interest (or aggregate of legal relations) appertaining to such physical object. Frequently there is a rapid and fallacious shift from the one meaning to the other. At times, also, the term is used in such a “blended” sense as to convey no definite meaning whatever.”
- In Commonwealth v WMC Resources Ltd the High Court had to consider whether legislative changes that reduced the physical scope of an area that was the subject of a statutory permit to explore for petroleum constituted an “acquisition of property” within the meaning of s 51(xxxi) of the Constitution. Gummow J accepted that the permits that had been issued under the legislation could carry a commercial value and they might also be the subject of rights and obligations created inter partes, which themselves could be supported by the law of contract and by legal and equitable doctrines and remedies. It followed that the legislation that reduced the land area covered by the permits might have diminished the commercial value of the permit and, correspondingly, advantaged the Commonwealth by allowing it more easily to achieve certain purposes for which the new law had been enacted. However, this did not involve any acquisition of property by the Commonwealth because the “property” held by WMC was “inherently unstable”. His Honour said:
“To accept this proposition is not to assert that the defeasible character of the statutory rights in question denies them the attribute of “property” in the “traditional” sense of the general law. For example, the vested interest of a beneficiary under a settlement in which the settlor reserved a power of revocation would, pending such revocation, be proprietary in nature. A revocable trust is enforceable in equity whilst it subsists and the revocation would be without prejudice to prior distribution of income or capital. The point of present significance is that in some circumstances, of which the statutory rights in this case are an instance, the nature of the property may be such that its defeasance or abrogation does not occasion any acquisition in the constitutional sense.” (footnote omitted)
- In Yanner v Eaton the question was whether native title to hunt crocodiles in a certain area had been extinguished by s 7(1) of the Fauna Conservation Act 1974 (Qld) which provided that, subject to certain irrelevant exceptions, all fauna “is the property of the Crown and under the control of the Fauna Authority”. It was held that native title was not extinguished. Citing Professor Hohfeld’s article, Gummow J said that the word “property” in s 7(1) was used to denote the “aggregate of legal relations between the “Crown” and “fauna”” and it was necessary, therefore, to determine the scope of legal relations created by the Act between crocodiles and the Crown. His Honour held that the interests held by the Crown comprehended by the word “property” were no more than the right to recover royalties under the Act and the right to recover penalties for contraventions of the Act. Gummow J cited the following dictum from Attorney-General (Quebec) v Attorney-General (Canada):
“It is not unimportant, however, to notice that the term ‘vest’ is of elastic import; and a declaration that lands are ‘vested’ in a public body for public purposes may pass only such powers of control and management and such proprietary interest as may be necessary to enable that body to discharge its public functions effectively.”
- Being a word of elastic import, a statutory declaration that lands are “vested” in a public body for public purposes may “pass only such powers of control and management and such proprietary interest as may be necessary to enable that body to discharge its public functions effectively”.
- The Land Title Act and the Land Act do not define the term “interest”, but in relation to land, it is defined in Schedule 1 to the Acts Interpretation Act 1954 (Qld) to mean:
“(a) a legal or equitable estate in the land …; or
- (b)a right, power or privilege over, or in relation to, the land …”.
- No person holds any legal or equitable estate in land vested under s 369 of the Land Act. Nor does any single person hold any right, power or privilege in relation to the land. It is the public at large that has a right of use but that cannot sensibly be regarded, within the meaning of the Acts Interpretation Act, as a right, power or privilege; certainly it is not a right of a registrable kind held by a person. It is also certain that the Crown does not, by such vesting, acquire a fee simple in the land. As McMurdo JA has pointed out, the public right of passage, the protection of which is the object of the “vesting”, need not be and, indeed, cannot be registered. That is consistent with the nature of such public rights as entrenched by the Land Act. This was the conclusion reached by Rich AJ, sitting on the Supreme Court of New South Wales in Vickery v Municipality of Strathfield. Speaking of the relationship of statutory indefeasibility to statutory public rights, his Honour said:
“The Act is designed to enable dealings in land unhampered by the technicalities and pitfalls of Common Law conveyancing and real property law. Speaking generally, it secures this end by enabling a proprietor so to register his title that a purchaser from him may obtain a title free from the interests of any persons who have not registered those interests in the manner prescribed by the Act. But it makes no provision, express or implied, for the destruction of public rights, nor does it provide any machinery for the recognition of the existence or the creation of such rights. I cannot see that it is inconsistent with the general purposes of the Act as gathered from the Act itself that it should remain perfectly competent for a registered proprietor to dedicate registered land for the purposes of a public highway by any means which would suffice if the land were unregistered, or that any acts or proceedings which would be sufficient to create a highway over unregistered land should not be equally efficacious where the land is registered.
Nor is it inconsistent with those purposes that a transferee from a registered proprietor should take the land subject to any public highways which have been lawfully brought into existence thereover. Where such a highway exists the fact of its existence is generally patent or suggested by physical marks on the land; it was not in my opinion to protect purchasers from public rights such as these that the Act was framed.”
- For these reasons, as well as for the reasons given by McMurdo JA, I agree that the appeal should be allowed.
- McMURDO JA: In central Brisbane is a narrow piece of land, extending between Albert and Margaret Streets, called Beatrice Lane. Until recently, it was used as a public laneway. It is a registered lot under the Land Title Act 1994 (Qld) and its registered owner is the respondent (WCL), which wishes to develop it in conjunction with adjoining lots.
- The appellant (Orb) is the registered owner of nearby land, fronting Margaret Street, to which access was provided by Beatrice Lane. Orb says that Beatrice Lane is, by law, a public road, dedicated as such in the late 19th century, and since the enactment of the Land Act 1962 (Qld), vested in the Crown.
- When WCL began to develop this site, it prevented access to the lane, resulting in this proceeding, brought by Orb by an originating application in the Trial Division, seeking a declaration that the lane is a public road.
- After Points of Claim and Points of Defence were delivered, WCL applied for a summary dismissal of the case, pursuant to r 658 of the Uniform Civil Procedure Rules 1999 (Qld). It argued that Orb’s case could not succeed, even upon the facts which Orb alleged. The primary judge accepted WCL’s case, and dismissed the proceeding with costs. In essence, his Honour held that WCL’s claim to the land must prevail, because of the indefeasibility provisions of the Land Title Act.
- By this appeal, Orb argues that by s 369 of the Land Act 1962, the lane became vested in the Crown as a public road, and that this remains the case by s 95 of the Land Act 1994 (Qld). Consequently, Orb says, the lane is land, the ownership of which is not under the Land Title Act, and is unaffected by its provisions for an indefeasible title.
- For the reasons that follow, Orb’s case should be accepted, and the appeal should be allowed.
The history of Beatrice Lane
- In 1874, the trustees of Brisbane Grammar School purchased land bounded by Margaret, Albert and Alice Streets. That land consisted of four freehold parcels, described as allotments 8 to 11 of section 37. The allotments were rectangular in shape and of identical dimensions. Each had a frontage to Albert Street. Lot 8 was on the corner with Alice Street, and lot 11 was on the corner with Margaret Street.
- In March 1876, a strip of land, measuring 1.5 links by 250 links, was excluded from allotments 9 to 11, creating a barrier between them and land which had adjoined the rear of them. The primary judge called this the reserve.
- In September 1876, the trustees lodged for registration a plan of subdivision, in order to divide the land constituted by allotments 8 to 11 into nine new lots. The plan was registered as RP1073. Lots 1 to 5 each fronted Albert Street, and lot 1 was on the corner with Margaret Street. Lots 6 to 9 each fronted Alice Street, and lot 6 was on the corner with Albert Street.
- However, not all of the previous allotments were included in the new lots. RP1073 showed some remaining land, and this was the L-shaped piece which became Beatrice Lane. It was described on RP1073 as “Lot 11 (Balance)”, and the words “Right of Way” were written on its area.
- According to a report by surveyors which was in evidence, this piece of land was an example of what was known as an “undescribed balance” on a plan of subdivision, meaning that it was not described as a distinct lot on a plan, but instead was described as the remainder of the original land or lands which had been subdivided. In this way, the land remained owned by the trustees of the Grammar School as the balance of its original land, although there was no separate description of it in the register, and no certificate of title.
- It was not until March 1994 that this land was given its own description, namely lot 11 on RP1073. Apparently, this did not occur at the initiative of the owners (still the trustees of the Grammar School), but instead by the operation of what was called the Automated Titles System, which was established in that year. On 4 March 1994, a certificate of title for the land was issued to the trustees, free of any encumbrance.
- In 2008, the trustees transferred the land to a developer. In 2012, another plan, numbered SP142332, was registered, which showed the land described as Beatrice Lane.
- In March 2014, lot 11 was transferred to another company, which transferred it to WCL in September 2014.
- Lot 11 is recorded in the Roads Register maintained by the Brisbane City Council, where it is described as Beatrice Lane and a road controlled by the Council.
The dedication of roads at common law
- Orb’s case is that the trustees, in various ways, effected a dedication of the land as a road for public use, under the common law.
- In Permanent Trustee Co of NSW Ltd v Campbelltown Municipal Council, Windeyer J said that:
“At common law a highway was created when a competent landowner manifested an intention to dedicate land as a public road, and there was an acceptance by the public of the proferred dedication. With some exceptions, any landowner absolutely entitled in fee simple is, at common law, competent to dedicate land as a road. The main exceptions are mortgagors, who require the consent of their mortgagees, and trustees and bodies corporate if they are not empowered to do so.”
- The primary judge accepted that there was an issue, requiring a trial, of whether the land had been dedicated as a public road, when RP1073 was registered, or in the following years, by the laneway being allowed to be used by the public, and the public using it. Subject to a question of whether the landowners, being trustees under the Grammar Schools Act 1860 (Qld), were competent to dedicate the road, WCL accepts that for the purposes of its application for summary judgment, it was to be assumed that the land was dedicated by the trustees as a road or lane for public use. I will return to that question of the trustees’ authority.
- In 1923, an amendment to the Local Authorities Act 1902 (Qld) put paid to any further dedication, at common law, by private landowners of new roads. However, WCL accepts that the dedication of this land, if it occurred, predated 1923.
The Land Act 1962
- If this land was a dedicated road, it became vested in the Crown upon the enactment of the Land Act 1962, of which s 369 provided:
“369 All land which, having been before, is at the commencement of this Act, or which may on or after the commencement of this Act be, dedicated by the owner thereof, not being the Crown, to public use as a road shall, by virtue of such dedication be vested (and in the case of land so dedicated before the commencement of this Act, is hereby declared to have always been vested) in the Crown and may be dealt with in the same manner as roads which have been dedicated to public use by the Crown”.
- The word “road” was defined for that Act as follows:
“‘Road’––Any road, whether surveyed or unsurveyed, dedicated, or notified or declared in any manner howsoever to be a road for public use, and any road comprised of land taken, pursuant to any enactment, for the purpose of a road for public use.
The term includes–
- (a)any road, street, esplanade, reserve for esplanade, parade, promenade, avenue, crescent, drive, lane, highway, pathway, footway, thoroughfare, track or stock route; and
- (b)any part of any road or any bridge, causeway, culvert or other works in, on, over or under any road or any part of any road within the meaning of this definition … ”.
- It is convenient at this point to discuss an argument, by WCL, that any dedication of this land, by the registration of RP1073, was not a dedication of a “road”, as distinct from a “street”, “passage” or “thoroughfare”. The argument is based upon the terms of s 119 of the Real Property Act 1861 (Qld), as they were when RP1073 was registered. Section 119 required a plan of subdivision to “exhibit distinctly delineated all roads, streets, passages, thoroughfares, squares or reserves appropriated or set apart for public use …”. The argument is that although RP1073 distinctly delineated this land, it did not distinctly describe it as a road, as distinct from a street, passage or thoroughfare. Therefore, it is suggested, it was not a road for the purposes of s 369 of the Land Act 1962.
- That argument cannot be accepted. Section 119 did not require RP1073 to distinguish this land as, for example, a road rather than as a street. But in any case, the registration of RP1073 was not the only basis for the judge’s assumption that this land had been dedicated at common law. And the land was clearly within the defined meaning of a “road” under the Land Act 1962.
- The dedication of Crown lands as roads was governed by a different provision of the Land Act 1962, namely s 362. By that provision, Crown land could be opened as a road by the relevant Minister declaring it to be “land open as a road for public use”. Crown land could also be dedicated “as a road for public use”, by the registration and deposit in the Office of the Surveyor-General of a plan of survey showing the land as thereby dedicated. In such cases, s 362(4) provided that “[t]he ownership of land comprised in all roads opened or dedicated under this section … shall be and remain vested in the Crown.”
- The primary judge accepted, upon the premise that the trustees had dedicated the land as a public road, that it became vested in the Crown by the operation of s 369. The critical issue in this case is the effect of that vesting. The respondent says that it had the effect of excluding the rights of the public, and of giving the Crown the fee simple in the land. Orb argues that the public rights continued, and that there were limitations upon the Crown’s right to deal with the land which distinguished its interest from that of a registered proprietor.
- As to the rights of the public, the primary judge said:
“ The effect of s 369 of the Land Act 1962 was to convert a public right of way into a proprietary interest in the land in favour of the State. That would then permit the State to regulate roads and their use. If the public rights of way subsisted then there could be a conflict between the State’s interest in the land and the public rights. That is not what was intended.”
- The words which I have emphasised are strongly challenged by the submissions for Orb, as being inconsistent with authorities upon similar legislation in other jurisdictions, which I will now discuss.
- In their judgment in Brodie v Singleton Shire Council, Gaudron, McHugh and Gummow JJ, after quoting the passage which I have set out at , said:
“The tort of nuisance included unlawful interference with a right over or in connection with land, and interference with the safe enjoyment of the public right of way over a highway might constitute an actionable nuisance. In Australia, the vesting by statute in local government authorities of the fee simple in land over which there are public streets leaves the streets dedicated to the public. The authorities hold the fee simple “subject to the rights of the public to use the street for passing and re-passing, except in so far as those rights may be taken away or limited by statute.”
Their Honours were there quoting from the judgment of Murray CJ in Ex rel Attorney-General (SA); Australian Mutual Provident Society v Adelaide City Corporation, where immediately before that statement, Murray CJ said:
“Now, although the fee simple of all public streets within a municipality is vested in the Corporation of that Municipality, I think it is clear that the Corporation has not an unencumbered estate in the land, and an unrestricted right to use it in any manner it pleases. The surface is a street dedicated to the public, and it is as a street that the Corporation acquires its title to the land …”.
In a footnote to the penultimate sentence in that passage in Brodie quoted above, their Honours added:
“This may be so even in respect of land held under Torrens title: Vickery v Municipality of Strathfield (1911) 11 SR (NSW) 354 at 363-364.”
- To the same effect, in Attorney-General (Quebec) v Attorney-General (Canada), the Privy Council said:
“It is not unimportant, however, to notice that the term “vest” is of elastic import; and a declaration that lands are “vested” in a public body for public purposes may pass only such powers of control and management and such proprietary interest as may be necessary to enable that body to discharge its functions effectively … ”
- And in Buckle v Bayswater Road Board, Dixon J said:
“A highway is devoted to public use and its use is an advantage enjoyed as of common right. The public right is independent of the ownership of the soil, which might be vested in the frontagers or in other persons not in the least concerned in the state of the way. In order that the public right may be enjoyed to best advantage, road authorities are established and armed with powers in relation to the highways.
The purpose of giving the road authority property in and control over the road is to enable it to execute its powers in relation to the highway, not to impose upon it new duties analogous to those of an occupier of property. The body remains a public authority charged with an administrative responsibility.”
- The reasoning in these authorities cannot be distinguished in this case. Until the enactment of s 369, the fee simple in Beatrice Lane was vested in the trustees of the Grammar School. However, on the assumed facts, there were co-existing public rights to use the land, which were independent of the trustees’ ownership. In 1962, the land became vested in the Crown, but “subject to the rights of the public to use [it] for passing and re-passing”, to adopt the words in that passage in Brodie.
- If this land was dedicated as a public road, by definition there were public rights to use the land. The trustees, as the owners of the fee simple, were subject to these rights, although they held a Torrens title. That accords with the opinion of Sir George Rich, sitting as a judge of the Supreme Court of New South Wales in 1911, in Vickery v Municipality of Strathfield, a case which has been followed consistently in that State and in Victoria, and which, as already noted, was approved in Brodie.
- With respect to the primary judge, it cannot be accepted that there was a conflict, actual or potential, between the Crown’s ownership of the land and the rights of the public to use it as a road. It was for the very reason that this land had been dedicated for public use that, by s 369, it became vested in the Crown. The land could be dealt with by the Crown in the same manner as roads which the Crown had dedicated to public use. Under s 362, Crown land could be dedicated “as a road for public use”. Where that occurred, the land remained vested in the Crown, and what changed was that the public was entitled to use it. In cases of roads vested under s 369, the public rights were maintained, by the particular nature of the Crown’s ownership of the land.
- The Crown’s ownership thereby differed from the fee simple of a proprietor under the Real Property Act. The public rights could be removed only by the provisions of the Land Act which allowed for the closure of roads. The Crown was not free to deal with the land as it wished.
The overriding effect of s 369
- Section 369 thereby overrode the provisions of the Torrens statute. In the words of Street J in Pratten v Warringah Shire Council, this was a case “where the fee simple has, by an overriding statute, been in effect removed from the registration system.”
- In Pratten, the contest was between the registered proprietor of Torrens land and a local authority which claimed that the land had become vested in it, as a drainage reserve, by the operation of a provision of the Local Government Act 1919 (NSW). The effect of that section was that where, in the subdivision of any land, provision was made for a drainage reserve, the land was thereby vested in the Council in fee simple for drainage purposes. Street J said that the automatic vesting of the land in the Council did not authorise the Registrar-General to enter the Council as the registered proprietor of that land, there being at that time no provision in the Real Property Act, or in any other statute, which permitted the Registrar-General to do so. Neither was there any legislative sanction authorising the removal of the name of the previous registered proprietor from the register. Street J continued:
“The position simply was that although the land remained registered in the name of the previous registered proprietor as proprietor of an estate in fee simple therein, s 398 of the Local Government Act had operated on the land to divest the ownership from the registered proprietor and to vest that ownership in the council in fee simple for drainage purposes. This was a vesting in the fullest sense, giving to the council all the rights properly belonging to the owner of an estate in fee simple in possession.”
After that automatic vesting of the relevant land in the Council, the Torrens statute was amended to provide that, in such a case, the Registrar-General might, at the request of a person in whom there has been such a vesting, register the person in whom the land was vested as the proprietor “of such estate therein as shall be appropriate”. However, no request was made by the Council before the case was heard nearly 50 years later. In the meantime, the plaintiff had become registered as the owner of the land. Street J said that it had long been accepted that there could exist proprietary rights, over freehold land, which do not depend upon registration under a Torrens statute for their efficacy, citing Hogg on Australian Torrens System at p 804. Guided by Vickery v Municipality of Strathfield, South-Eastern Drainage Board (South Australia) v Savings Bank of South Australia, Miller v Minister of Mines & Anor, and Trieste Investments Pty Ltd v Watson, his Honour held that the estate which became vested in the Council “vacated any further interest in the land in question on the part of the then registered proprietor”, who thereafter did not have the fee simple in the land and was unable “by transfer to call back, so to speak, that fee simple and vest it in a transferee”. Street J continued:
“The absolute indefeasibility ordinarily flowing from registration (Frazer v Walker  1 All ER 649;  1 AC 569) will not avail where the fee simple has, by an overriding statute, been in effect removed from the registration system. Moreover, not only was the then registered proprietor incapable of calling back his fee simple, but no act of the Registrar-General otherwise than consequent upon the written request of the council pursuant to s 14 of the Real Property (Amendment) Act 1921, could be recognized as effective to trench in any way upon the council’s fee simple.”
- In South-Eastern Drainage Board, the question was whether a charge on land, purportedly created by the South-Eastern Drainage Act 1931 (SA), prevailed over a registered mortgage. The Act which created the charge was a later enactment than the Torrens statute, which had provided that no law, inconsistent with it, should apply to land subject to it unless it was expressly enacted that it should apply “notwithstanding the provisions of the Real Property Act 1886”. The drainage statute did not contain those words. Nevertheless, the question, said Dixon J, was:
“whether in the enactments creating the statutory charges such a clear intention is expressed to include land under the Real Property Act and to give to the charges an absolute and indefeasible priority over all other interests that, notwithstanding sec 6 of that Act, no course is open but to allow the intention so expressed in the later enactments to be paramount over the earlier Real Property Act.”
He concluded that such an intention plainly appeared.
- In Miller v Minister of Mines & Anor, the conflict was between the rights conferred by a mining licence issued under a mining statute, and the rights of the registered proprietor of the land under the Land Transfer Act of New Zealand. The Privy Council upheld the priority of the mining licence, saying:
“Their Lordships were referred to cases in New Zealand where statutory rights over land were held to exist despite the fact that they did not appear on the register. It is not necessary in their Lordships’ opinion that there should be a direct provision overriding the provisions of the Land Transfer Act. It is sufficient if this is [the] proper implication from the terms of the relative statute.”
- Trieste Investments was a suit by a registered proprietor against the Registrar-General for damages, claiming that his certificate of title contained an error, omission or misdescription, in that it did not indicate that part of the land had been resumed for a public road. The majority judgments (Herron CJ and Nagle J) held that the Registrar-General had no authority, or at least no duty, to make any entry on the register of the resumption. In that case, involving as it did a claim for compensation, the plaintiff conceded that the resumption for the road had deprived him of his ownership of the relevant part of his land. Nevertheless, as Street J said in Pratten, the observations in the judgments of the majority were directly relevant to the case before him. In particular, Street J quoted this passage from the judgment of Herron CJ:
“But the fallacy, I think, lies in asserting that the Act achieves complete indefeasibility. For the apparent indefeasibility is qualified. Section 32 contains the authority of the Registrar-General to register dealings. It empowers him to record only particulars of instruments, dealings and matters required by the Act to be registered or entered. Nothing else is to be registered. A public road or highway is not an easement and in New South Wales could not, prior to 1930, be registered … Despite the decisions of the Privy Council above referred to as to indefeasibility, the view cannot be taken that a resumption is something coming within the registration system and therefore requiring registration. In 1929 in this State, the Crown did not assert its title to the road as the owner of a registered interest. Public roads prevailed notwithstanding the absence of any note of their existence from the certificate of title and a transferee took subject to public rights-of-way although not specified in the certificate: Vickery v Municipality of Strathfield (1911) 11 SR (NSW) 354.”
- The reasoning in these cases provides strong guidance for the interpretation of the relevant legislation in the present case. Section 369 of the Land Act 1962 unambiguously vested this land in the Crown (if it had been dedicated as a public road). It made no provision for that vesting to be perfected by something being recorded on the Torrens register. And in the words of Street J, not only were the registered owners of this land thereafter incapable of calling back their fee simple, but no act of the Registrar “could be recognised as effective to trench in any way upon the [Crown’s] fee simple.”
- That last statement is directly relevant to a suggestion that the issue of a certificate of title (for the first time) for this land in 1994 could have affected the Crown’s ownership of the land. This occurred very shortly before the commencement of the Land Title Act 1994, and the commencement, later in that year, of the Land Act 1994. The impact (or otherwise) of those statutes is about to be considered. But the issue of the certificate of title to the Trustees of the Grammar School could not have affected the Crown’s ownership.
- The primary judge accepted that if the land had been dedicated to public use by the Trustees, it became vested in the Crown by the operation of s 369. On that basis, his Honour said, correctly, that the vesting “must have created an interest in the State which took priority over that of the registered proprietors of the fee simple in the land”, for otherwise s 369 would have no effect against the registered owner.
- His Honour observed that under the Torrens legislation at that time, “[t]here was no express provision for the issue of certificates of title reflecting the State’s interests in the land vested in it by the Land Act 1962”. But then his Honour said:
“ However, in relation to roads which appear delineated on a plan of subdivision lodged under the 1861 Act, the delineation of the road becomes part of the register. Consequently, the effect of s 369 of the Land Act 1962 was to vest roads delineated on a plan to the State. From that point the State held an interest in the land.”
In a footnote to the first sentence of that passage, his Honour referred to s 35 and s 119 of the Real Property Act 1861, and to the definition of “instrument” in s 3 as including a plan. The apparent effect of his Honour’s reasoning was that the combined effect of s 369 and the delineation of this land as a road on RP1073 was to vest in the Crown a registered title under the Real Property Act 1861. For the reasons which I have given, I respectfully disagree.
- The primary judge drew support from the judgment of the New South Wales Court of Appeal in City of Canada Bay Council v F & D Bonaccorso Pty Ltd. That case concerned two parcels of Torrens land which the appellant Council had acquired and which it said had become a “public reserve” and therefore “community land” within the meaning of the Local Government Act 1993 (NSW). Years later, it contracted to sell this land and a transfer was subsequently registered. If the land was community land under that Act, the Council’s sale of the land was contrary to s 45 of the Act, which provided that a council has no power to sell community land. The Council subsequently argued that it had no power to sell the land and the statutory impediment in s 45 prevailed over the indefeasibility created by the Real Property Act 1900 (NSW). The Court held that the transfer had been made in breach of s 45, but that the indefeasibility provisions prevailed. As the primary judge in this case observed, this was a case decided by reference to particular legislation.
- The observations which that Court made, which are relevant to the present case, do not support his Honour’s conclusion that the State’s interest in this land was not “wholly outside the scope of the [Torrens system]”. In that case, the Council had acquired and become the registered owner of the two parcels. It had not acquired the land by the operation of another statute, such as s 369 of the Land Act 1962. There was no issue that the land in that case had remained within the Torrens system. And that Court’s discussion of relevant authorities, in particular Vickery v Municipality of Strathfield, Pratten v Warringah Shire Council and South-Eastern Drainage Board, provided no support for his Honour’s view.
The Land Act 1994
- The Land Act 1962 was repealed and replaced by the Land Act 1994, of which s 454 provided:
“454 Existing roads continue
All roads dedicated and set apart under the repealed Act [the Land Act 1962] are taken to be dedicated roads under this Act.”
- Section 95 of the Land Act 1994 provided for the continuing ownership of land in all roads dedicated and opened for public use:
“95 Roads vest in the State
The land in all roads dedicated and opened for public use under the following Acts vests in, or remains vested in, the State––
- (a)this Act, or an Act repealed by this Act or repealed by the repealed Act;
- (b)the Land Title Act 1994.”
- The primary judge considered that s 95 was inapplicable here, for this reason:
“ Section 95 concerns title to land over which there is a road. It has no relevance here as s 95 only concerns roads “dedicated and opened for public use” under legislation. Orb’s case is that the road over Lot 11 was dedicated not under statute but by operation of the common law.”
- His Honour did not discuss s 454, but it is to be expected that he would have excluded its operation in this case for the same reason. In my respectful view, his Honour’s interpretation of s 95 cannot be accepted.
- As I have discussed, roads were vested in the State by both s 362 and s 369 of the Land Act 1962. Crown land was dedicated by the operation of s 362(1) or (2). Dedicated private land vested in the Crown, by the operation of s 369. The effect of his Honour’s interpretation of s 95 would be that, for no apparent reason, only land which was in the first category was to remain in the ownership of the State. Yet the 1994 Act made no other provision for what was to be the ownership of the land which had vested by s 369. If possible, s 95 should be construed in a way which would avoid extensive and apparently unintended consequences, and in my opinion, it can be so interpreted. In s 95, a road “dedicated and opened for public use under [the repealed Act]” was a road that was, for the operation of that Act, a road dedicated and opened for public use.
- Section 94 of the Land Act 1994 provides for the dedication of new roads, rather than roads already dedicated at the commencement of the Act. By s 94(1), the Minister may dedicate unallocated State land as a road for public use. Section 94(4) provides that land may be dedicated as a road for public use by the registration of a dedication notice or a plan of subdivision. By s 94(5), on the day the dedication notice or plan of subdivision is registered, the dedication of the land as a road takes effect and the land is opened for public use as a road. That registration of the plan is its registration under the current Torrens statute, namely the Land Title Act 1994.
The Land Title Act 1994
- Section 27 of this Act requires to be kept what the Act calls the freehold land register. Section 28 requires the registrar to record in that register the particulars necessary to identify, amongst other things, “every lot brought under this Act”, and “the name of the person who holds, and the name of each person who has held, a registered interest”.
- A “lot” is defined by sch 2 of the Act to mean:
“a separate, distinct parcel of land created on––
- (a)the registration of a plan of subdivision; or
- (b)the recording of particulars of an instrument;
and includes a lot under the Building Units and Group Titles Act 1980”.
- Section 37 provides that:
“An indefeasible title for a lot is created on the recording of the particulars of the lot in the freehold land register.”
- By s 38, the “indefeasible title for a lot is the current particulars in the freehold land register about the lot.”
- Lots may be created by the alienation of State land, under s 47, in which case the registrar is to register the deed of grant by recording the particulars of the grant in the freehold land register: s 47(2). Upon registration of the deed of grant, an indefeasible title is created for the relevant lot: s 47(3).
- Section 48 provides:
“The State may, under this Act, acquire, hold and deal with lots.”
The trial judge saw s 48 as having a particular importance for this case, as he also regarded s 5, by which the Act binds all persons, including the State. In those respects, his Honour said, this case was different from Vickery v Municipality of Strathfield.
- Division 3 of Part 4 of the Land Title Act deals with plans of subdivision. It commences with s 49, which defines a plan of subdivision to be a plan of survey providing for one or more of the following:
“(a) division of 1 or more lots;
- (b)amalgamation of 2 or more lots to create a smaller number of lots;
- (c)dedication of land to public use;
- (d)redefinition of a lot on a resurvey.”
- Section 49A provides that a plan of subdivision may be registered, and upon that registration, a lot which is defined in the plan is created.
- Section 50(1)(a) requires a plan of subdivision to “distinctly show all roads, parks, reserves and other proposed lots that are to be public use land”.
- Section 51 provides for the dedication of a lot to public use in a plan of subdivision. By s 51(1), such a dedication must be of the registered proprietor’s whole interest in the lot. By s 51(2)(a), it is provided that on registration of the plan, without anything further, if the dedication is for a road, the road is opened for the Land Act 1994.
- Importantly, s 52 provides, in part, that in registering a plan of subdivision, the registrar must record in the freehold land register particulars of “each proposed lot that is not public use land”. They are the particulars of a lot which are the subject of s 38.
- Division 3A provides for the dedication of a road by the registered owner of a lot. Section 54 provides that this is done by the lodgement and registration of a dedication notice, by which the registrar is requested to register a dedication of land as a road. By s 54(4), the dedication takes effect and the land is opened for public use as a road on the day the dedication notice is registered.
- By s 174 of the Land Title Act, an instrument is registered when the registrar records particulars, necessary to identify the instrument, in the freehold land register. Section 175 provides that a registered instrument forms part of the freehold land register from when it is lodged. A map or plan of survey that may be lodged is an “instrument” under this Act.
- The verb “register” is defined by sch 2 as follows:
“register a lot, interest, instrument or other thing means record the particulars of the thing in the freehold land register.”
- The critical indefeasibility provision of the Land Title Act is s 184, by which 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.
- Of course, ss 51, 52 and 54 provide for the opening of new roads. However, it is significant that although they provide that a road will occupy a lot, they do not provide that the particulars of the lot will be entered in the freehold land register, nor that the Crown will be recorded, in the freehold land register, as the registered owner. Its ownership of such land does not derive from the freehold land register under this Act. It derives from the operation of s 95 of the Land Act 1994. In this way, the Land Title Act maintains the distinction between the ownership of freehold land under the Torrens statute, and the ownership of roads according to a different and overriding statute, by which the land is effectively removed from the registration system.
- The Land Title Act preserves interests and certificates of title, as they had existed under the Real Property Act 1861, the Real Property Act 1877 and the other legislation which it repealed. Section 201 of the Land Title Act provides that each interest in freehold land held by a person immediately before its commencement, and recorded under an Act repealed by this Act, is taken to be an interest held by the person in the freehold land register. However, the ownership of this land, deriving from s 369 of the Land Act 1962, was not, and could not have been, recorded under the Acts which were repealed by the Land Title Act. And importantly, there is no provision of the Land Title Act which brings within its operation the ownership of land which had derived from another statute and which was outside the operation of its statutory predecessors.
- I return to s 48 of the Land Title Act, which provides that the State may, under that Act, acquire, hold and deal with lots. That was the successor to s 15A of the Real Property Act 1861, which provided, by sub-section (1), that “[t]he Crown in right of the State may, under this Act, acquire, hold and deal with land under the name ‘Queensland Government’”. Section 48 operates with s 17 of the Land Act 1994, by which the Governor in Council may grant land to the State in fee simple, s 18 of that Act, by which the Governor in Council may exchange Crown land for freehold land, and s 19 by which the Minister on behalf of the State may buy freehold land. It is one thing for the State to be able to acquire, hold and deal with lots under the Land Title Act. It is another thing to say that any land which has otherwise become vested in the State is to be held, and may be dealt with, as a lot under the Land Title Act. As I have explained, the Land Title Act provides otherwise.
- The primary judge said this:
“ The public rights of way were subsumed by s 369 of the Land Act 1962 into any title over Lot 11 vested in the State. The registration of Plan SP142332 and the registration of WCL as proprietor of the fee simple in lot 11 effectively extinguished any interest in the land by the State, subject to any legislative provision beyond the 1994 Act.”
For the above reasons, I am unable to agree with those statements. However, something more should be said about SP142332. This plan was registered in 2012. Its purported effect was to close a different area of land, which had been marked on a previous registered plan as roads, by amalgamating them with what was then a single lot bounded by Margaret and Albert Streets, and Beatrice Lane. The boundaries of the subject land, lot 11, were not altered. It appears that the judge saw it as relevant that there was no note of a “Right of Way” shown on lot 11, and that Beatrice Lane was shown as “the Reserve”. However, as I see it, the plan indicated that “Beatrice Lane” was the land in question, rather than the Reserve. Be that as it may, the registration of this plan could not have divested the Crown of its ownership of lot 11.
- It follows, in my respectful opinion, that the primary judge erred in holding, on the facts that had to be assumed in Orb’s favour, that lot 11 had ceased to be land vested in the Crown for use as a public road, because of the indefeasibility provisions of the Land Title Act.
The trustees’ authority
- It remains to consider WCL’s argument that Orb’s case is bound to fail because the trustees of the Grammar School did not have the sanction of the Governor and the Executive Council to dedicate the land as a public road.
- The Grammar Schools Act 1860 was in force until its repeal and replacement by the Grammar Schools Act 1975. At any relevant time, s 6 of that Act was as follows:
“Provided always that it shall not be lawful for the said trustees to alien, mortgage, charge or demise any messuages, lands, tenements or hereditaments to which they may become entitled by grant, purchase or otherwise howsoever unless with the sanction of the Governor and the Executive Council except by way of lease for any term not exceeding 21 years in position…”
- On this question, his Honour reasoned as follows:
“ WCL submits rightly that there is no evidence that the Governor and the executive council approved the dedication by the Grammar School of Lot 11 as a road.
 As the authorities referred to below show, the private dedication of a common law road does not, of itself, vest in any government authority an interest in the land over which the road is dedicated. That vesting of title, if it occurred, occurred through no act of the Grammar School, but occurred by force of statute, namely s 369 of the Land Act 1962. It is therefore difficult to see how the creation of a right in the public to pass is to “alien … lands [of the Grammar School]”. To alienate land is to create an interest in the property.
 It is therefore by no means clear that the Grammar School could not, prior to 1923 (being the year in which private citizens were prohibited from dedicating roads except when regulated), lawfully dedicate the road without the sanction of the Governor and the executive council. Summary judgment could not be given on the basis that there has been some breach of the Grammar Schools Act which affects the validity of the dedication.”
- It is unnecessary to consider the correctness of his Honour’s opinion that a common law dedication of a road did not involve the alienation of the land. I agree that it did not involve the creation of a proprietary interest in the land. But the meaning of “alien”, used as a verb in s 6, is a different question.
- For other reasons, however, WCL’s argument should not be accepted, at least at this stage. The evidence was silent on this point, neither proving nor disproving the fact of a sanction. The case for Orb has the advantage of the presumption of regularity, by which it should be presumed that the trustees acted with the requisite authority, until the contrary is shown. Further, it must be kept in mind that this was an application for summary judgment. The prospect that the preparation of this case towards a full hearing would disclose relevant evidence on this question cannot be excluded.
- For these reasons, the primary judge should not have been persuaded that the case should be dismissed without a trial. I would order as follows:
- Appeal allowed.
- Set aside the orders made on 29 October 2019.
- Order the respondent to pay the costs of the application heard on 25 September 2019 and the costs of the appeal.
- BODDICE J: I agree with McMurdo JA.
 Section 47.
 Section 49.
 Section 47(3).
 Section 48.
 Section 5.
 (1913) 23 Yale Law Journal 16.
 Ibid, at 21-22; see also the discussion in the later article, ‘Fundamental Legal Conceptions as Applied in Legal Reasoning’, (1917) 26 Yale Law Journal 710 at 719-733 concerning the nature of rights in rem.
 (1998) 194 CLR 1.
 “51. Legislative powers of the Parliament
The Parliament shall, subject to this Constitution, have power12 to make laws for the peace, order, and good government of the Commonwealth with respect to:
(xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws…”.
 Supra, at .
 Ibid, .
 (1999) 201 CLR 351.
 Ibid, at .
 Ibid, at .
 Ibid, at .
  1 AC 401 at 409.
 City of Perth v Crystal Park Ltd (1940) 64 CLR 153 at 168 per Williams J, quoting Attorney-General (Quebec), supra, at 409; see also Wik Peoples v Queensland (1996) 187 CLR 1 at 197 per Gummow J.
 As to the meaning of “fee simple” under Australian land statutes, see Commonwealth v New South Wales (1923) 33 CLR 1 at 45 per Isaacs J.
 (1911) 11 SR (NSW) 354 at 363-364.
 Orb Holdings Pty Ltd v WCL (QLD) Albert Street Pty Ltd  QSC 265 (“Judgment”).
 Treating the front of allotments 8 to 11 as their Albert Street frontage.
 Pursuant to s 81 of the City of Brisbane Act 2010 (Qld).
 (1960) 105 CLR 401 at 420.
 In City of Keilor v O'Donohue (1971) 126 CLR 353 at 363, Windeyer J described a highway in this sense as “a way over which all members of the public are entitled to pass and repass on their lawful occasions.”
 By the inclusion of s 83C in the Act.
 s 362(1).
 s 362(2).
 Citing City of Canada Bay of Council v F & D Bonaccorso Pty Ltd (2007) 71 NSWLR 424.
 (2001) 206 CLR 512 at 565-566 .
  SASR 217 at 229.
  1 AC 401 at 409.
 Cited in City of Perth v Crystal Park Ltd (1940) 64 CLR 153 at 162 (Rich ACJ) and 168 (Williams J); Yanner v Eaton (1999) 201 CLR 351 at 391  (Gummow J); Western Australia v Ward  HCA 28; (2002) 213 CLR 1 at 140  (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
 (1936) 57 CLR 259 at 281; although Dixon J’s statement, of the absence of a civil liability of a road authority, was disapproved by the majority in Brodie, the passage is presently relevant for its description of the nature of the Crown’s ownership, as co-existing with the rights of the public to use the road.
 (1911) 11 SR (NSW) 354.
 Trieste Investments Pty Ltd v Watson  NSWR 1226; Pratten v Warringah Shire Council (1969) 2 NSWR 161 at 166; Australian Hi-Fi Publications Pty Ltd v GEHL  2 NSWLR 618 at 624 and Quach v Marrickville Municipal Council (1990) 22 NSWLR 55 at 58.
Anderson v City of Stonnington (2017) 227 LGERA 176;  VSCA 229.
 The concluding words of s 369.
 s 362(1), (2).
 s 362(4).
 Land Act 1994, ch 3 div 2.
  2 NSWR 161 at 166.
  2 NSWR 161 at 162.
  2 NSWR 161 at 162-163.
  2 NSWR 161 at 164.
 (1939) 62 CLR 603.
  AC 484.
  NSWR 1226.
  2 NSWR 161 at 166.
  2 NSWR 161 at 166-7.
 (1939) 62 CLR 603 at 627-628.
  AC 484 at 498.
  2 NSWR 161 at 166.
  NSWR 1226 at 1229.
 Assets Co Ltd v Mere Roihi  AC 176 and Waimiha Sawmilling Co Ltd (in liquidation) v Waione Timber Co Ltd  AC 101.
  2 NSWR 161 at 166-167.
 Reasons .
 Real Property Act 1861 (Qld).
 (2007) 71 NSWLR 424;  NSWCA 351.
 Judgment .
 Judgment .
 Judgment .
 Definition of “instrument” in sch 2.
 Pratten v Warringah Shire Council  2 NSWR 161 at 166.
 Introduced by Act No 17 of 1992.
 Municipal District of Concord v Coles (1905) 3 CLR 96; Tierney v Loxton (1891) 12 LR (NSW) 308; Municipal Council of Sydney v Young  AC 457.
 Richardson v Cummins (1951) 15 ABC 185 at 191; Lang v Castle  SASR 255 at 263-4; Di Carlo v Kashani-Malaki  2 Qd R 17 at .
 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164-5; Dixon v Lekich (2010) 56 MVR 70;  QCA 213 at  (Fraser JA with whom McMurdo P and White JA agreed).
- Published Case Name:
Orb Holdings Pty Ltd v WCL (Qld) Albert St Pty Ltd
- Shortened Case Name:
Orb Holdings Pty Ltd v WCL (Qld) Albert St Pty Ltd
- Reported Citation:
 QCA 198
Sofronoff P, McMurdo JA, Boddice J
11 Sep 2020
- Selected for Reporting: