Jea Holdings (Aust) Pty Ltd v Registrar-General of NSW [2013] NSWSC 587

Jea Holdings (Aust) Pty Ltd v Registrar-General of NSW [2013] NSWSC 587

Although the wording in Memorandum of Transfer J493622 was capable in substance of giving rise to an easement and the car parking rights did not necessarily deprive the plaintiff of proprietorship, the purported easement had never been registered on the servient tenement as required by former s 35 of the Real Property Act 1900. It therefore was neither an omitted easement nor an easement validly created for the purposes of s 42(1)(a1). The plaintiff held its title free of the purported easement or restrictive covenant, and the Registrar-General could not record it on the plaintiff's folio.

Jurisdiction
Australia
Judgment Date
21 May 2013
Procedural Posture
Equity Division Application Seeking to Restrain Registration of a Purported Easement or Restrictive Covenant on Torrens Title Land / Principal Judgment on Plaintiff's Summons
Outcome
Plaintiff succeeded; declaration and injunction granted; defendants ordered to pay the plaintiff's costs.
Legal Topics
['indefeasibility of Title' 'easements' 'restrictive Covenants' 'registration of Dealings' 'real Property Act 1900 S 42(1)(a1)' 'car Parking Rights Over Servient Land']
['real Property' 'torrens Title' 'equity'] ['indefeasibility of Title' 'easements' 'restrictive Covenants' 'registration of Dealings' 'real Property Act 1900 S 42(1)(a1)' 'car Parking Rights Over Servient Land']

Case Brief

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Procedural Posture

Equity Division Application Seeking to Restrain Registration of a Purported Easement or Restrictive Covenant on Torrens Title Land / Principal Judgment on Plaintiff's Summons

Legal Issues

  1. 1 ['Whether Memorandum of Transfer J493622 was capable of giving rise to an easement despite being expressed as a covenant.' 'Whether the car parking rights purportedly conferred would substantially deprive the servient owner of proprietorship or legal possession.' "Whether the absence of a recording of the purported easement on the plaintiff's folio was an omission of an easement validly created under Real Property Act 1900 s 42(1)(a1)." 'Whether the Registrar-General could record the purported easement or restrictive covenant on Certificate of Title Folio Identifier 4/219028.']

Ratio Decidendi

Although the wording in Memorandum of Transfer J493622 was capable in substance of giving rise to an easement and the car parking rights did not necessarily deprive the plaintiff of proprietorship, the purported easement had never been registered on the servient tenement as required by former s 35 of the Real Property Act 1900. It therefore was neither an omitted easement nor an easement validly created for the purposes of s 42(1)(a1). The plaintiff held its title free of the purported easement or restrictive covenant, and the Registrar-General could not record it on the plaintiff's folio.

Court Disposition

Plaintiff succeeded; declaration and injunction granted; defendants ordered to pay the plaintiff's costs.

Orders

  • ['Declare that the plaintiff holds its interest as registered proprietor of the land in Certificate of Title Folio Identifier 4/219028 free of any easement or restrictive covenant purportedly created by Memorandum of Transfer J493622 dated 10 October 1963 between Green Valley Shopping Centre Pty Ltd as transferor...