Refina Pty Ltd v Binnie [2009] NSWSC 914

Refina Pty Ltd v Binnie [2009] NSWSC 914

Although Refina had been entitled before registration of the 2002 plan to apply for possessory title and had not acknowledged Mr Binnie's title, registration of the 2002 plan incorporated the disputed strip into a larger lot so that it was no longer a whole parcel of land and no possessory application could be made. Refina's prior adverse possession gave it no legal or equitable interest or personal equity as against Mr Binnie as registered proprietor. The registered plan contained no relevant error because inclusion of the Closed Road lots accorded with the intention of the applicant for consent and the Council; any omission was in the wording of the consent and was rectified by the...

Jurisdiction
Australia
Judgment Date
03 September 2009
Procedural Posture
Equity Division Real Property Proceedings Concerning Possessory Title, Personal Equity and Correction of Registered Plan / Principal Judgment After Hearing
Outcome
Proceedings dismissed with costs.
Legal Topics
['adverse Possession' 'possessory Title' 'indefeasibility of Title' 'personal Equity' 'correction of Registered Plans' 'development Consent' 'subdivision and Consolidation']
['real Property' 'torrens Title' 'equity' 'planning and Subdivision'] ['adverse Possession' 'possessory Title' 'indefeasibility of Title' 'personal Equity' 'correction of Registered Plans' 'development Consent' 'subdivision and Consolidation']

Case Brief

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Procedural Posture

Equity Division Real Property Proceedings Concerning Possessory Title, Personal Equity and Correction of Registered Plan / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the owners of Henkley adversely possessed the disputed strip so as to qualify to make an application for possessory title.' "Whether Refina acknowledged Mr Binnie's title to the strip so as to defeat any claim for possessory title." "Whether Refina's claim for possessory title was defeated by registration of the plan of resubdivision of Tiverton incorporating the disputed strip into a larger lot." 'Whether Refina had a personal equity against Mr Binnie arising from adverse possession or the circumstances of registration of the 2002 plan.' 'Whether the Registrar-General should be required to correct the plan by omitting former Lot 2 DP125769 on the basis of error.']

Ratio Decidendi

Although Refina had been entitled before registration of the 2002 plan to apply for possessory title and had not acknowledged Mr Binnie's title, registration of the 2002 plan incorporated the disputed strip into a larger lot so that it was no longer a whole parcel of land and no possessory application could be made. Refina's prior adverse possession gave it no legal or equitable interest or personal equity as against Mr Binnie as registered proprietor. The registered plan contained no relevant error because inclusion of the Closed Road lots accorded with the intention of the applicant for consent and the Council; any omission was in the wording of the consent and was rectified by the...

Court Disposition

Proceedings dismissed with costs.

Orders

  • ['Order that the proceedings be dismissed with costs.' 'Direct that this order not be entered prior to 11 September 2009.' 'Reserve leave to either party to apply, by arrangement with my associate prior to 11 September 2009, to vary the within costs order.']