Rita Sahade v Owners Corporation SP 62022 [2013] NSWSC 1791

Rita Sahade v Owners Corporation SP 62022 [2013] NSWSC 1791

The Strata Plan contained an obvious error in the Register because the height limitation for the garden area did not account for the steeply sloping access handle intended to form part of Lot 3. Under s 12(1)(d), as construed consistently with Sahab, the correction power was not limited to departmental errors, and correcting the height description would not impinge on indefeasible rights. The Court therefore declined to uphold the Registrar-General's refusal and ordered correction under s 122(4). However, construing the notation by reference to the Lot 3 garage floor level would be absurd, the evidence did not establish an equity for rectification, and there was no power or basis to...

Jurisdiction
Australia
Judgment Date
03 December 2013
Procedural Posture
Application to Review the Registrar General's Decision Refusing to Correct an Alleged Error in the Register / Principal Judgment After Hearing
Outcome
Order for register to be corrected; plaintiff succeeded on the s 122 review but failed on construction and rectification arguments; no order as to costs between plaintiff and defendant proprietors.
Legal Topics
['correction of Errors and Omissions in the Register' "review of Registrar General's Decision" 'construction of Strata Plan' 'indefeasibility' 'rectification' 'meaning of "in Relation To"']
['torrens System' 'real Property' 'strata Title'] ['correction of Errors and Omissions in the Register' "review of Registrar General's Decision" 'construction of Strata Plan' 'indefeasibility' 'rectification' 'meaning of "in Relation To"']

Case Brief

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Procedural Posture

Application to Review the Registrar General's Decision Refusing to Correct an Alleged Error in the Register / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the notation in Strata Plan 62022 limiting garden areas by reference to "the floor level of Lot 3" should be construed as referring to the floor level of the Lot 3 garage.' 'Whether the Strata Plan contained an error in the Register capable of correction by the Registrar-General under s 12(1)(d) of the Real Property Act 1900 (NSW), and whether the Court should order correction under s 122.' 'Whether the plaintiff had an equity for rectification of the Strata Plan.' 'Whether correction of the height of the access handle should also permit reduction of its width.']

Ratio Decidendi

The Strata Plan contained an obvious error in the Register because the height limitation for the garden area did not account for the steeply sloping access handle intended to form part of Lot 3. Under s 12(1)(d), as construed consistently with Sahab, the correction power was not limited to departmental errors, and correcting the height description would not impinge on indefeasible rights. The Court therefore declined to uphold the Registrar-General's refusal and ordered correction under s 122(4). However, construing the notation by reference to the Lot 3 garage floor level would be absurd, the evidence did not establish an equity for rectification, and there was no power or basis to...

Court Disposition

Order for register to be corrected; plaintiff succeeded on the s 122 review but failed on construction and rectification arguments; no order as to costs between plaintiff and defendant proprietors.

Orders

  • ['The parties other than the Registrar-General are to procure their expert surveyors to provide by 13 December 2013 an agreed notation giving effect to the reasons, particularly paragraph [73], in substitution for notation B in the Emery Plan.' 'The plaintiff, within seven days of receiving the agreed notation, is...