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Queensland Judgments

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Orb Holdings Pty Ltd v WCL (QLD) Albert Street Pty Ltd  
Unreported Citation: [2019] QSC 265
EDITOR'S NOTE

This case considered whether land over which there had been dedication of a public road at common law, prevented the registered owner from closing access. Notably, Davis J found that the public rights arising from dedication of a public road “stood wholly outside” the Land Title Act 1994. However, legislation in 1962 had converted such public rights into a proprietary interest of the State, which was not outside the ambit of the Land Title Act 1994. By reason of the indefeasibility of title provided by the Land Title Act 1994, the registered owner held its title free from any such unregistered interests.

Davis J

29 October 2019

This dispute related to land on the corner of Margaret, Albert and Alice Streets in the Brisbane CBD. [5]. The respondent, WCL, is the registered owner of the relevant land (Lot 11), to which it purported to close access. [20]. The applicant, Orb, is the owner of a building for which carpark access is gained over Lot 11. [18]. Orb commenced a proceeding by originating application, seeking a declaration that WCL had no entitlement to close access to Lot 11, on the basis that it had been dedicated as a public road at common law prior to 1923. WCL sought summary judgment of that application. [2].

Davis J considered that the key question was whether any rights of user arising through dedication of Lot 11 as a public road could survive or be asserted against WCL’s fee simple title as held under the Land Title Act 1994. If they could not, then WCL would be entitled to summary judgment. [30]. For reasons which follow, his Honour concluded that they could not, and so summarily dismissed Orb’s application. [30].

The alleged dedication of the public road

Orb made two arguments. Firstly, it contended that, prior to 1923, a citizen could dedicate land in Queensland as a public road provided that an intention to dedicate the land was manifested, and provided there was acceptance by the public through use. [33]. It adduced evidence that Lot 11 had been described as a “Right of Way” on an earlier title plan, and that the public had come to use the land as a road, which came to be known as “Beatrice Lane”. [34]. Secondly, it contended that s 369 of the Land Act 1962 had vested in the State any public roads which had been so dedicated, and thereby deprived WCL of any right to close access. [23]–[24].

Davis J accepted that there was an arguable case of dedication of the land as a public road. [68]. His Honour also accepted there was an arguable case that Lot 11 had vested in the State by reason of the Land Act 1962 (his Honour later accepted this conclusion in general, as discussed below). [69]. However, the point remained that WCL was the registered proprietor of Lot 11, the registered plan for which did not show any road existing over it. [70].

Having made those findings, his Honour approached the application for summary judgment by asking whether any rights or interests, if they existed, would be defeated by WCL’s registered title. [40].

Exception to indefeasibility argument

His Honour noted that the object of the Torrens Title system is to create a “scheme of title by registration”, which “assumes that the only interests in the land which are recognised are those shown in the register, although there may be some exceptions” (citing Breskvar v Wall (1971) 126 CLR 376). [54]. As s 184 of the Land Title Act 1994 provides, “[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”. [89]–[90]. WCL’s title was not subject to any registered interest of a public road. [88].

However, Orb submitted that the “registered title of WCL is subject to public rights of way”, even though that interest “appears nowhere on the freehold land register”. [99]. In support of this alleged exception to Torrens system indefeasibility, Orb submitted that the case of Vickery v Municipality of Strathfield (1991) 11 SR (NSW) 354 stood as authority for the proposition that “the dedication of land as a public highway or road has been said to ‘lie wholly outside’ the system of land titling and the acquisition of title by registration”. [101].

Resolution by Davis J

Davis J accepted that Vickery supported the proposition that some interests may lie wholly outside the Torrens system. [114]. However, his Honour found that whatever public rights of user had existed, had been “converted to an interest in land” in favour of the State, by reason of s 369 of the Land Act 1962. That interest in land could not be said to exist outside the scope of the Torrens system. [115]. The Land Title Act 1994 bound the State. [128]. Accordingly, WCL’s registration as proprietor in fee simple of Lot 11 “effectively extinguished any interest in the land by the State”. [15], [129]. The Land Title Act itself did not recognise any exception to indefeasibility for rights of user arising from dedication of a public road at common law. [118].

It followed that WCL’s title was not subject to any interest arising from the common law dedication of Lot 11 as a public road prior to 1923. [144]. Accordingly, it was entitled to summary judgment against Orb. [145].

W Isdale