Ashworth v Terrill [2019] NSWSC 1596

Ashworth v Terrill [2019] NSWSC 1596

The decision to create a folio for the lane and register the first defendant as proprietor adversely affected the plaintiffs' competing interest in the lane, particularly because registration made the first defendant's title paramount under s 42 of the Real Property Act 1900 (NSW). The Act contained no express words of sufficient clarity to exclude procedural fairness, and procedural fairness required notice to the plaintiffs of the first defendant's primary application and an opportunity to be heard. Because no prior notice was given, the Registrar General's decision made on 29 April 2019 was unlawfully made and had to be set aside with consequential orders.

Jurisdiction
Australia
Judgment Date
18 November 2019
Procedural Posture
Summons Seeking Relief Under S 69 of the Supreme Court Act 1970 (nsw) for Denial of Procedural Fairness / Principal Judgment; Matter Resolved by Consent and Orders Made on the Papers
Outcome
Decision quashed; declaration made that the decision was unlawfully made for failure to observe procedural fairness; consequential orders and costs order made.
Legal Topics
['procedural Fairness' 'primary Application to Bring Old System Land Under the Real Property Act 1900 (nsw)' 'certiorari' "registrar General's Creation of Folio of the Register"]
['administrative Law' 'real Property'] ['procedural Fairness' 'primary Application to Bring Old System Land Under the Real Property Act 1900 (nsw)' 'certiorari' "registrar General's Creation of Folio of the Register"]

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Procedural Posture

Summons Seeking Relief Under S 69 of the Supreme Court Act 1970 (nsw) for Denial of Procedural Fairness / Principal Judgment; Matter Resolved by Consent and Orders Made on the Papers

Legal Issues

  1. 1 ["Whether the Registrar General was required to give the plaintiffs notice of the first defendant's primary application before deciding to bring the lane under the Real Property Act 1900 (NSW)." "Whether the Registrar General's decision made on or about 29 April 2019 should be set aside for denial of procedural fairness." 'What consequential orders were required to undo the effect of the decision.']

Ratio Decidendi

The decision to create a folio for the lane and register the first defendant as proprietor adversely affected the plaintiffs' competing interest in the lane, particularly because registration made the first defendant's title paramount under s 42 of the Real Property Act 1900 (NSW). The Act contained no express words of sufficient clarity to exclude procedural fairness, and procedural fairness required notice to the plaintiffs of the first defendant's primary application and an opportunity to be heard. Because no prior notice was given, the Registrar General's decision made on 29 April 2019 was unlawfully made and had to be set aside with consequential orders.

Court Disposition

Decision quashed; declaration made that the decision was unlawfully made for failure to observe procedural fairness; consequential orders and costs order made.

Orders

  • ['An order in the nature of certiorari quashing the decision purportedly made by the Registrar-General on or about 29 April 2019 to bring land the subject of PA83491 under the provisions of the Real Property Act 1900 (NSW) by creating for the Land a folio of the Register in which the first defendant is recorded as...