Mehmet Cihan v City of Sydney RSL Club Co- Op Ltd [2011] NSWSC 1417

Mehmet Cihan v City of Sydney RSL Club Co- Op Ltd [2011] NSWSC 1417

The certificate of title referenced in the register does not set out the dominant tenement nor identify the instrument creating the easement; therefore, the existence of the easement is not adequately recorded on the Register as required by the Real Property Act 1900 (NSW). This amounts to an omission under section 42(1)(a1), and the notification is insufficient to indicate the easement to a prudent purchaser; searches beyond the register, contrary to Torrens principles, would be required.

Parties
Plaintiff: Mehmet Cihan; Second Defendant: City of Sydney RSL & Community City Club Co-originating process Limited; Third Defendant: Kulin Holdings Pty Limited; Fourth Defendant: Owners Corporation, Strata Plan 32388; Fifth Defendant: Registrar-General
Jurisdiction
Australia
Judgment Date
24 November 2011
Procedural Posture
Equity Real Property / Determination of Separate Questions Prior to Any Other Issues
Outcome
Separate questions answered (a) No, (b) Yes.
Legal Topics
Torrens Title, Easements, Notification on Certificates of Title, Old System Land, Register Recording Requirements
Real Property Torrens Title Easements Notification on Certificates of Title Old System Land Register Recording Requirements

Case Brief

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Parties

Mehmet Cihan

Plaintiff

City of Sydney RSL & Community City Club Co-originating process Limited

Second Defendant

Kulin Holdings Pty Limited

Third Defendant

Owners Corporation, Strata Plan 32388

Fourth Defendant

Registrar-General

Fifth Defendant

Procedural Posture

Equity Real Property / Determination of Separate Questions Prior to Any Other Issues

Legal Issues

  1. 1 Whether an easement created over old system land is recorded as an interest on the current certificate of title under the Torrens System
  2. 2 Whether failure to record dominant tenement or instrument on certificate amounts to omission under Real Property Act 1900 (NSW) s42(1)(a1)

Ratio Decidendi

The certificate of title referenced in the register does not set out the dominant tenement nor identify the instrument creating the easement; therefore, the existence of the easement is not adequately recorded on the Register as required by the Real Property Act 1900 (NSW). This amounts to an omission under section 42(1)(a1), and the notification is insufficient to indicate the easement to a prudent purchaser; searches beyond the register, contrary to Torrens principles, would be required.

Court Disposition

Separate questions answered (a) No, (b) Yes.

Orders

  • Answers to be recorded: (a) No, (b) Yes.