Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73

Facts: The COT to land acquired by Bursill (B1) included the notification of an encumbrance in terms ‘Right of Way created by and more fully set out in ... Transfer 7922...”. Transfer 7922 was executed buy Guy, B1s predecessor, to Long, Berger’s (B2) predecessor and granted him as an extension of an existing right of way a right to all the buildings on the road and to pull down and rebuild them at a height no less than 12 feet.

B2 was in occupation of the building over the right of way and sought a declaration that it was entitled to retain the building to its own use, receive support of a building B1s land and to build on the right of way with the only restriction applying that the buildings be less than 12 feet. It was ruled in the court below that Transfer 7922 created an easement over the land which, since it was registered, was binding, but a declaration as to the ability to rebuild was not made.

Windeyer J:

Justice Windeyer was of the view that what was conveyed by transfer 7922 was something of a very different character to an easement – the fact of exclusive ownership made it very different from an easement. Even though it was a stratum interest – this was an interest that could effectively be notified on the register since it was an interest known to the law (‘the freeholder is the owner not only of the surface of the land...’)

• Given that such an interest existed the question becomes whether the interest was...’notified on the folium of the register book constituted by...the certificate of title’

Windeyer J was of the opinion that even though it said ‘extension of the right of way’ and didn’t refer to any further rights, that a prospective purchaser would have been ‘notified’ had they made “such searches as ought reasonably to have been made” on the basis of constructive notice:

• This was true even though he would have been surprised to find out what the search would have revealed – prudent persons would make inquiries as to what exactly the right of way entailed

• It would seem especially unlikely that a purchaser of land in such a built up area wouldn’t be aware of a building over the passage of way in whom someone was residing

Hence the RP of the land now holds it subject to this interest.

He then dealt with the question on the cross-appeal – whether or not there was a right to construct and reconstruct – answering this question in the negative:

• Berger contended that the right to any building over the right of way would give him the ability to knock down and build any other building on the way – this is untenable. The right to rebuild which Berger has is limited to erecting the same dimensions as that which the original building had

Appeal dismissed with Griffith CJ agreeing

Menzies J (in dissent):

Framed the question of notification thus “whether the transfer of the property interest was itself notified by the reference to an instrument which...created a right of way”

• The instrument as it accurately said created a right of way

• The only interest notified were that of a right of way and the description can’t be regarded as covering the transfer of an interest in land constituted by the actual transfer of the building

• It isn’t conducive to the purpose of the Act to establish indefeasibility to what is the notification of the creation of rights of way as going further and notifying an unmentioned transfer of land by reason of the reference to the instrument that effected the transfer and which only said that rights of way were created

• The transfer of land wasn’t notified

Barry v Heider (1914) 19 CLR 197

Facts (as set out in the judgement of Griffith CJ):

Barry (B) was the RP of land, a part of which was signed to Hector (H1) under a memorandum of transfer for 1200. An application was made to the R-G for a new COT but wasn’t issued when the transfer was executed. H1, through Messrs Gale & Gale (G) got a loan on security of the land from Heider (H2) for 800. H1 and his solicitor handed H2 the original transfer and a signed document authorizing the R-G to deliver the COT to G and on the faith of these documents the loan money was paid. Later Gale (G’) a member of G executed another mortgage for 400 in his favour on the land. None of these documents were registered due to issues with adjustments of boundaries.

The claim: B commenced action against S on the grounds that the land was obtained by a false and fraudulent representation for grossly inadequate consideration (he agreed to sell for 4000). He claimed an injunction against the registration of the transfer and a declaration that it was void. Before the judgement was drawn G found out...