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House of Assembly - Fifty-First Parliament, Second Session (51-2)
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STATUTES AMENDMENT (REAL PROPERTY) BILL

Introduction and First Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs) (16:09): Obtained leave and introduced a bill for an act to amend the Bills of Sale Act 1886, the Community Titles Act 1996, the Real Property Act 1886, the Stock Mortgages and Wool Liens Act 1924 and the Strata Titles Act 1988. Read a first time.

Second Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs) (16:09): I move:

That this bill be now read a second time.

Successive registrars-general have recommended practical amendments to the Real Property Act 1886, the Community Titles Act 1996 and the Strata Titles Act 1988, the Bills of Sale Act 1886 and the Stock Mortgages and Wool Liens Act 1924.

The process of drafting a comprehensive bill to deal with these problems started under the previous government and has continued since then, with consultation between Parliamentary Counsel, the Attorney-General's Department and the Lands Titles Registration Office. Indeed, registrars-general have come and gone during that deliberation.

The proposed amendments are mostly minor and technical in nature. Nevertheless, recognising that the amendments would be of interest to land law specialists, the government released a consultation draft of the bill in July, 2003 for public comment. Some changes to the bill have been made as a result of this consultation. Some other matters have been added to the bill since the consultation period ended on the advice of the Lands Titles Registration Office.

There are many amendments, more than 80 in all, dealing with a wide range of technical matters. The amendments will improve the administration and efficiency of South Australia's land management system. I seek leave to have the balance of the second reading explanation inserted in Hansard without my reading it.

Leave granted.

Definition of 'allotment'

The word 'allotment' is used in two different contexts in the Real Property Act. For purposes of land division and amalgamation under Part 19AB, 'allotment' is defined (except for the purposes of s223LB) so as to exclude community or development lots or common property within the meaning of the Community Titles Act, or a unit or common property within the meaning of the Strata Titles Act. That is because the division and amalgamation of parcels of land under the Community Titles Act or Strata Titles Act is subject to the specific provisions of those Acts in addition to the general land division provisions in Part 19AB. In other contexts within the Real Property Act, for example sections 51E, 90B, and 90C, a broader meaning of the word 'allotment' is intended. However, there is no definition of the word as it applies to any Part other than 19AB.

The Bill therefore amends section 3 of the Real Property Act to insert a broad definition of 'allotment' that will apply to sections 51E, 90B, and 90C.

Replacement of term 'licensed land broker'

Several provisions in the Real Property Act still refer to a 'licensed land broker'. This term ceased to be used when the Land Agents, Brokers and Valuers Act 1973 was replaced by the Land Agents Act 1994 and the Conveyancers Act 1994. 'Licensed land brokers' are now referred to as 'registered conveyancers'.

The Bill amends the Real Property Act to replace references to 'licensed land brokers' with 'registered conveyancers'.

Registration of dealings in the order intended

Often instruments affecting the same interest in land are lodged in the incorrect order where it is clear on the face of the documents what order they were intended to be lodged. For example, a series of documents may be lodged with a transfer of land being presented before an existing mortgage is discharged.

Section 56 of the Real Property Act directs that the Registrar General must register the documents in the order that they are presented. Given this requirement, it is necessary to withdraw the document that is out of registrable order temporarily and then re lodge that document in its correct order. This process incurs an administration fee and is time consuming for both the Registrar General and the parties. The process can be further complicated where other documents are lodged over the same certificate of title after the series requiring temporary withdrawal.

To address this the Bill amends section 56 to authorise the Registrar General to register a series of documents affecting the same land in an order that gives effect to the intention of the parties. Where the intention of the parties appears to the Registrar General to be in conflict, the order of registration will remain the order in which the dealings were lodged for registration. The proposed amendment is based upon similar provisions in the New South Wales' Real Property Act.

Permitting the Registrar-General to issue a new certificate of title

The automation of the land titles register means that it is easier and more effective for the Registrar General to issue a new certificate of title when amendments or corrections need to be made, rather than making alterations on the face of existing certificates of title.

In recognition of this the Bill inserts a new Section 78A into the Real Property Act, authorising the Registrar General to issue a new certificate of title whenever he is required by legislation to amend or update an existing certificate of title.

Expanding the list of 'short form' easements

Section 89A of the Real Property Act provides that, where an instrument refers to a short form easement set out in the Sixth Schedule, the instrument will, unless the contrary intention appears, be taken to incorporate the corresponding long form of that easement as set out in the Sixth Schedule. There are nine short form easements incorporated in the Sixth Schedule. Given the benefits of using short form easements rather than transcribing the long form of an easement in all instruments, the Bill adds these additional short form easements to the Sixth Schedule:

an easement for the transmission of telecommunication signals by underground cable. This easement is similar in terms to the existing easement for the transmission of television signals by underground cable;

an easement for the transmission of telecommunication signals by overhead cable. This easement would deal with telecommunication signals that are transmitted by overhead cable;

an easement for support. Such an easement would arise where a party requires the support of a structure on the servient land. Examples would include a right to support from a retaining wall;

an easement to park a vehicle. There are cases where it is necessary for the grantee of an easement to park and leave a vehicle or moor a boat or vessel on the right of way. Therefore, there is a need to provide that the grantee will enjoy a free and unrestricted right of way over a defined portion of the servient land and have the right to park and leave a vehicle. The right to park may be in a designated portion of the right of way or over the entire right of way;

a right of way on foot. There are occasions where a right of way is granted but limited to pedestrian access. It is envisaged that this short form easement could be used in such cases.

'Right of Way' heading to Schedule 5

Section 89 of the Real Property Act provides that the words 'a free and unrestricted right of way' in any instrument will be deemed to imply the words set out in Schedule 5. Schedule 5 provides:

A full and free right and liberty to and for the proprietor or proprietors for the time being taking or deriving title under or through this instrument, so long as he or they shall remain such proprietors, and to and for his and their tenants, servants, agents, workmen, and visitors, to pass and repass for all purposes, and either with or without horses or other animals, cart, or other carriages.

At times confusion arises because Schedule 5 is headed simply 'Right of Way', and some conveyancers and solicitors are under the erroneous belief that the words 'right of way' in an instrument will be deemed to imply Schedule 5 words. To avoid any ambiguity the Bill amends the heading to Schedule 5 so that it refers to 'A free and unrestricted right of way'.

Land 'registered' under this Act

Section 90B of the Real Property Act refers to 'land registered under this Act' and 'land not registered under this Act'. This wording is inconsistent with that used throughout the remainder of the Act. The Bill amends section 90B to make it consistent with the remainder of the Act in describing land as 'under the provisions of this Act'.

Extension of a mortgage or encumbrance to an easement created appurtenant to the encumbered land

When an easement is granted appurtenant to land that is subject to an existing mortgage or encumbrance, a collateral mortgage or encumbrance must be lodged for the mortgagee or encumbrancee to be able to transfer that appurtenant easement when exercising a power of sale. Without lodging a collateral mortgage or encumbrance, the new certificate of title will only observe that the mortgage or encumbrance is over the land, and not over the appurtenant easement. The need to prepare and register a collateral mortgage or encumbrance would be avoided if the existing mortgage or encumbrance over the dominant land automatically extended to cover a subsequently created easement. This would be consistent with the current procedures for the creation of easements by a plan of division or community division.

The Bill amends the Real Property Act to insert a new section 90F, and make a consequential amendment to section 90A, to provide that if, when an easement is granted over servient land, the dominant land or any part of it is subject to a mortgage or encumbrance, the easement is also subject to the mortgage or encumbrance if the instrument granting the easement provides that it is subject to the mortgage or encumbrance and the mortgagee or encumbrancee has endorsed his consent to that on the instrument.

Creation of an easement by reservation to the grantor

The common law does not permit an easement to be created by reservation on the transfer of land. Instead, the purchaser must consent to a re grant of the easement to the vendor. This has the same end effect as a reservation but requires the execution of extra documentation.

This common law rule has been abrogated in New South Wales, Victoria, Queensland and Tasmania, however, it continues to apply in South Australia even though permitting reservation of an easement would not adversely affect a transferee because the transferee must endorse the transfer document that would refer to the reservation.

To bring the law in South Australia into line with these other jurisdictions, the Bill amends the Real Property Act to insert a new section 96AA to allow the creation of an easement by reservation.

Registering or recording the vesting of an estate or interest by operation of law without the necessity of a formal application

Section 115A of the Real Property Act provides that, on receiving an appropriate application, the Registrar General may register an estate or interest that has vested by operation of law.

This vesting by operation of law could be streamlined if the Registrar General could update the register of his own motion rather than only on application.

In light of this, the Bill repeals section 115A of the Real Property Act and replaces it with a new provision that will allow the Registrar General to update the register by his own motion where a vesting by operation of law has come to his attention.

This amended provision will not enable the Registrar General to deprive any person of his or her interest in land. It permits the Registrar General to update the Register to reflect something that an Act has already done. The Registrar General is of the opinion that the wording of this amendment would require him to make a notation on the title referring to the statute under which the transfer or vesting occurred. He has advised that the notation would appear either on the certificate of title itself or on the Historic Search for that title.

New section 115A is also drafted so as apply where the person acquiring an estate or interest in land by operation of law is other than the Crown in right of the State or the Commonwealth.

Discharge or extinguishment of proprietary interests as a consequence of consent to a grant of easement

When an easement is granted over land that is subject to a registered mortgage or encumbrance, it is general practice to discharge the mortgage or encumbrance over the portion of land forming the easement. The partial discharge occurs to avoid extinguishment of the easement in accordance with section 136 of the Real Property Act where a power of sale is exercised over the servient land. The Bill accommodates this general practice by inserting a new provision, section 144, which provides that, if a mortgagee or encumbrancee consents, an existing mortgage or encumbrance will be partially discharged to the extent of the new easement.

Inclusion of the words 'with no survivorship' in a mortgage, encumbrance or lease

Section 162 of the Real Property Act prohibits the inclusion of trust details on Real Property Act instruments. Section 163 provides a partial exception to this prohibition by requiring the words 'with no survivorship' to be used on a transfer where the interest received will be held by trustees.

For many years the Registrar General has also allowed the words 'with no survivorship' to be used on mortgage, encumbrance and lease instruments. It is not clear whether this practice is authorised by the Real Property Act even though section 164 clearly permits the registered proprietor of an interest to apply for the inclusion of those words on an instrument.

The Bill amends sections 163 and 164 to make it clear that the words 'with no survivorship' may be included on a mortgage, encumbrance or lease instrument.

Requirement to provide an 'office copy' of specified documents

Section 176 of the Real Property Act deals with an executor, administrator or Public Trustee being registered as proprietor of property forming the deceased's estate, and section 184 deals with a person being registered as the proprietor of land by dint of a court order. In both sections there is reference to a person providing an 'office copy' of the probate, letters of administration or order (as the case may be). In current practice, there is no relevance to the use of the word 'office' in this section.

The Bill therefore amends section 176 and 184 so that the requirement is to provide a 'copy' (as distinct from an 'office copy') of the probate, letters of administration or order (as the case may be).

Where two or more executors or administrators, all to concur in every instrument relating to the estate or interest of the deceased proprietor

Section 179 of the Real Property Act provides that, where probate or letters of administration are granted to two or more persons, all of them must concur in every instrument relating to the 'real estate' of the deceased registered proprietor. The reference to 'real estate' dates back to the time when there was a distinction between the transfer of real property and the transfer of personalty (mortgages and encumbrances) or chattels real (leases).

There is no justification for approaching the administration of a subsidiary estate or interest in land any differently from administration of a freehold estate in land. The Bill therefore amends section 179 to replace the words 'real estate' with 'land'.

Meaning of 'contiguity' for the purpose of division and amalgamation under the Real Property Act

The Real Property Act contemplates the division and amalgamation of part allotments that are contiguous with whole allotments. For the purposes of the division and amalgamation provisions of the Act, an allotment will be considered contiguous with another allotment if they abut one another or are separated only by a street, road, thoroughfare, travelling stock route, a reserve or other similar open space dedicated for public purposes. However, this extended definition of contiguity applies only to whole allotments. Any part allotment must physically abut another allotment or part allotment to be considered contiguous with that allotment or part allotment. Owing to the limitation in the definition of contiguity, a part allotment would not be considered contiguous with another part or whole allotment if they were separated by a street, road, thoroughfare, travelling stock route, a reserve or other similar open space dedicated for public purposes.

This appears to be contrary to Parliament's intention that the position of a road, thoroughfare, reserve or similar area should not be relevant when determining whether land parcels are contiguous. The Bill therefore amends sections 223LA(3) and (4) of the Act to make clear that part allotments should also be considered to be contiguous with other part or whole allotments notwithstanding that they may be separated by a street, road, thoroughfare, travelling stock route, reserve or other similar open space.

Restrictions on division involving more than one part allotment

Section 223LB(2) of the Real Property Act imposes a restriction on the granting, selling, transfer etc., of an estate or interest (except a right-of-way or other easement) over a land parcel unless certain criteria are met. Amongst other things, conveyance is allowed if the land parcel constitutes 'an allotment or allotments and a part allotment that is contiguous with that allotment or with one or more of those allotments'.

This provision was inserted in the Act to ensure that a person could not deal in isolation with a part allotment or part allotments of land. Essentially, one or more part allotments may only be dealt with if they are contiguous with one or more full allotments of land. By dint of the wording of the provision, a person would only be able, in a single transaction, to deal with one part allotment that is contiguous with one or more allotments. A person would not be able to deal, in a single transaction, with more than one part allotment, despite all parts being contiguous with each other, and at least one part being contiguous with one or more allotments. Such an intention would have to be carried out through a successive series of transactions. There is no justification for this. The Bill therefore amends section 223LB to enable a person, in one transaction, to deal with a number of part allotments that are in some respect contiguous with one or more allotments.

Vesting by deposit of plan

Section 223LE of the Real Property Act provides that on the deposit of a plan of division, an estate or interest will vest, as specified in the plan, in a person to the extent it is not already vested. Subsection (3)(a) limits section 223LE by providing that an estate in fee simple can vest in a person only if that person was the proprietor of an estate or interest in some part, or the whole, of the land before division.

The limitation in subsection (3)(a) was inserted to prevent persons being vested with an estate in fee simple in the land on deposit of the plan when that person was not the holder of the estate in fee simple of the land before division. However, the wording of the provision could mean that a person who is simply the owner of an encumbrance (such as a lease or easement) over the undivided land could be vested with an estate in fee simple in the land. This was never intended. The Strata Titles Act and the Community Titles Act both restrict the vesting of an estate in fee simple for any of the created units or lots to a person who possessed an estate in fee simple over the land before division. The Bill therefore amends section 223LE(3)(a) to provide that the deposit of the plan of division will serve to vest an estate in fee simple, in allotments created by the division, only in a person who was the registered proprietor of an estate in fee simple in the land before division.

Certification of documents

Section 273(1) of the Real Property Act requires that all applications to bring land under the Act and all instruments that purport to deal with land to be certified as correct, except those exempt by regulation.

Certification of instruments is extremely important as it is not feasible for the Registrar General to be in a position to know, or be able to ascertain definitively, the genuineness or correctness of every instrument that is lodged for registration and which can affect interests in the land in question. Certification pursuant to section 273 is intended to provide some assurance to the Registrar-General that a particular instrument is registrable. Matters being certified include matters as to the instrument's creation and execution, the details underlying the transaction, and the identity of the persons executing the instrument as parties to the transaction.

In practice, certification is usually provided by the registered conveyancer or legal practitioner acting for the benefiting party.

However, to do so, that party's conveyancer or legal practitioner must rely upon the other party's solicitor or conveyancer having carried out the appropriate checks as to the identity of their client, and that the documents effect a dealing in the manner required, as they have no personal knowledge as to the correctness of other party's identity or the information the other party has included in the documentation.

Certification is therefore premised in many cases upon the certifier being able to rely upon information provided by the other party's (transferor's) solicitor or conveyancer.

The Crown Solicitor has advised that section 273 requires the person certifying an instrument to have actual personal knowledge as to the matters being certified (being matters as to the instrument's creation and execution, the details underlying the transaction, and the identity of the persons executing the instrument as parties to the transaction). Although a solicitor or conveyancer will have personal knowledge of all of these matters insofar as they relate to those parts of the documents the solicitor or conveyancer prepared for his client, he will not (or is unlikely to) have personal knowledge of the relevant matters relating to the other party.

Given the Crown Solicitor's advice, the Registrar General would prefer that certification be given by or on behalf of each side of a land transaction, that is, dual certification.

However, the Crown Solicitor has also advised that dual certification is arguably not permitted under section 273 as this provision is expressed in the singular; it speaks of an instrument being endorsed with 'a' certificate. As such, the Registrar General cannot lawfully demand that any instrument bear more than on certification and cannot lawfully refuse to register an otherwise registrable instrument that bears only one certification.

Although it would be possible for the Registrar General to make dual certification a matter of non mandatory policy and practice, this is not advised as a person must certify as to the correctness of the whole instrument, making the value of a second certification negligible at best, and such a policy could be problematic as dual certification may confuse issues of liability and potentially interfere with the operation of the sanction in section 232 of the Real Property Act against false and misleading certification.

As dual certification cannot be accommodated administratively, the Registrar General has recommended that section 273 be amended so as to allow for dual certification of instruments in appropriate circumstances.

In accordance with the Registrar General's recommendation, the Bill amends section 273 by deleting subsection 273(1) and replacing it with two new subsections.

New subsection (1)(a) provides that applications to bring land under the provisions of the Act must continue to be certified by or on behalf of the applicant. New subsection (1)(b) provides:

in the case of instruments of a prescribed class, for certification by or on behalf of each party (dual certification); or

in the case of instruments that are not of a prescribed class, for certification by or on behalf of the party claiming under or in respect of the instrument.

New subsection (1a) provides that a certificate under subsection (1) may be signed by solicitor or conveyancer.

Repeal of obsolete provisions

Part 19AB, Division 4A of the Real Property Act was enacted in 1992 to deal with the amalgamation of allotments in exchange for division of land. The legislation was directed at the owners of land in the Mount Lofty Ranges Water Protection Area, and formed part of the then Government's Mount Lofty Ranges Management Plan.

Division 4A is now obsolete because the 'transfer of title' scheme, that the provisions supported, was abandoned in 1994.

As there is no intention to reactivate this scheme, the Bill repeals Division 4A of Part 19AB.

The Bill also repeals section 200 as this provision refers to the jurisdiction of the local courts and the Local Courts Act 1926.

Duplicate instruments

A number of provisions in the Real Property Act, Community Titles Act and Strata Titles Act require the production of, or notation by the Registrar General on, duplicate instruments. The production of duplicate instruments is time consuming and labour intensive. It provides little, if any, benefit to the public.

The Bill removes all legislative obligations for persons to produce, or for the Registrar General to place notations on, duplicate instruments.

Reducing the appurtenance of an easement

Generally, all persons with an estate or interest in either dominant or servient land must consent before an easement or its appurtenance is varied. There is an exception to this rule whereby the proprietor of dominant land may unilaterally vary the appurtenance of an easement through the transfer or conveyance of a portion of the dominant land without the easement being appurtenant. Consent is not required from persons with an interest in the servient land because the burden over the servient land is only being reduced.

However, the exception operates only where there is the transfer or conveyance of the portion of the dominant land. The exception does not apply where the reduction is effected by the deposit of a plan of land division. Currently, a developer needs the consent of the person with an interest in the servient land or needs a waiver from the Registrar General. There is no rationale for this distinction. The Bill therefore amends the relevant provisions of the Real Property Act, Community Titles Act and Strata Titles Act to allow an easement to be extinguished in respect of part of the dominant land by the deposit of a plan of division without the consent of those with an interest in the servient land or a waiver from the Registrar General.

Lodgement of a Memorandum of standard terms and conditions for encumbrances, bills of sale, stock mortgage or wool lien

Section 129A of the Real Property Act allows a person to deposit 'standard terms and conditions' for mortgage documents with the Registrar General. Subsequent mortgage instruments may refer to the deposited standard terms and conditions and those terms and conditions would then become part of the arrangement as if they were set out verbatim in the document. The mortgagee must have provided the mortgagor with a copy of the deposited standard terms and conditions. The advantage of this practice is that the original and duplicate mortgage instruments will be considerably shorter. A similar provision, section 119A, provides the same with respect to leases.

Industry participants have recommended amendments to the Real Property Act to allow the depositing of standard terms and conditions for encumbrances. Although it is unlikely that such provisions will be used extensively, the Government accepts that the capacity to deposit standard terms and conditions for encumbrances will be beneficial for some. The Bill therefore amends section 129A to insert a provision to allow a person to deposit standard terms and conditions for an encumbrance.

The same principle can be applied to bills of sale, stock mortgages and wool liens. As such the Bill amends the Bills of Sale Act to insert a new section 11A to allow a person to deposit standard terms and conditions of a bill of sale. Consequential amendments are also made to the Stock Mortgages and Wool Liens Act to insert a new section 18A that provides that section 11A of the Bills of Sale Act applies equally to stock mortgages and wool liens.

Varying or extinguishing 'statutory encumbrances' on deposit of a plan of division, or a plan of community or strata division

A number of provisions in the Real Property Act, Community Titles Act and Strata Titles Act provide for the creation, variation or extinguishment of estates or interests in land (with varying conditions and exceptions to the rule) on deposit of a plan of division. These provisions effectively remove the need for additional documentation to create, vary, or extinguish an estate or interest by providing that it automatically occurs as specified in the plan. Other provisions require applicants to satisfy the Registrar General that persons affected consent to the plan.

Statutory encumbrances, however, are not estates or interests in land. Examples of statutory encumbrances include aboriginal heritage agreements, agreements relating to the management, preservation or conservation of land and heritage agreements created under various statutes. This means that the creation, variation or extinguishment of statutory encumbrances cannot occur simultaneously with the deposit of the plan. Additional documentation must be completed and noted against the title, and this takes time and money.

To address this, the Bill amends the Real Property Act, Community Titles Act and Strata Titles Act so that a statutory encumbrance can be varied or extinguished as specified in a plan of division. The creation of statutory encumbrances will continue to require full documentation.

It is important to acknowledge that there are other parties who, according to the relevant legislation, must be involved in the process of varying or terminating a statutory encumbrance. For example, under the Heritage Places Act 1993, the Minister must first seek and consider the advice of the Authority established under the Act before agreeing with the landowner to vary or terminate an agreement made under that Act.

Therefore, the amended provisions require the holder of the statutory encumbrance to endorse the application and to certify that the consultative process in the Act under which a statutory encumbrance is varied or terminated has been satisfied.

The Bill amends the Real Property Act, Community Titles Act and Strata Titles Act in slightly different ways, although the principle is the same. In each case, both 'statutory encumbrance' and 'holder' are defined. Each Act is to have a new section to specifying what must be included in an application if it is to be successful in varying or extinguishing a statutory encumbrance. Finally, each Act will require an applicant to provide a certificate from the holder of the statutory encumbrance, certifying consent to the deposit of the plan of division. There is, however, a minor difference between the Strata Titles Act and the Community Titles Act in that, under the Community Titles Act, a statutory encumbrance is already included in the definition of an encumbrance, and holders of registered encumbrances are already required to consent to deposit or amendment of community plans.

Requirement to lodge a certificate under section 51 of the Development Act

Section 223LD of the Real Property Act provides for an application for the division of land to be made by registered proprietor of land. Section 12 of the Strata Titles Act provides for an application for the amendment of a deposited strata plan to be made by the strata corporation.

Section 14 of the Community Titles Act provides for the registered proprietor of an estate in fee simple in land comprising an allotment or allotments, or comprising a primary lot or a secondary lot, for the division of the land by a plan of community division. Sections 52 and 58 of the Community Titles Act provide, respectively, for applications:

by the community corporation, for the amendment of a deposited community plan; and

by the registered proprietor of an estate in fee simple in a development lot, for the division of the development lot in pursuance of the development contract and for the consequential amendment of the community plan.

In each case the application is made to the Registrar General and must be accompanied by a certificate from the Development Assessment Commission under section 51 of the Development Act 1993.

With the introduction of Electronic Development Application Lodgement and Assessment and the proposed introduction of Electronic Plan Lodgement it is proposed that an application no longer be accompanied by the section 51 certificate. Rather, the Commission will issue the section 51 certificate in electronic form and store it on its system. The Lands Titles Registration Office will then access the Commission's systems to view or down load a hard copy of the approval.

The Registrar-General has therefore recommended that the requirement that an application under section 223LD of the Real Property Act, section 12 of the Strata Titles Act and sections 14, 52 and 58 of the Community Titles Act provisions be accompanied by a section 51 certificate be replaced with a requirement the Registrar General be satisfied that:

the Commission has given a certificate under section 51; and

the certificate is in force in relation to the development proposed.

Amendments implementing the Registrar General's recommendations are included in the Bill.

Community Plan conforming to requirements of Community Titles Act

Section 22 of the Community Titles Act provides that when the Registrar General receives an application for division of land by a community plan and the plan complies with 'the requirements of the Act' then the Registrar General must deposit the plan in the Lands Titles Registration Office. This means that, to enable them to be filed, the Registrar General must be satisfied with the physical form of the plan and that the scheme description, the by laws and the development contract include all content that is mandatory under the Act.

The Community Titles Act does not envisage the Registrar General giving a legal opinion as to the validity or effect of all provisions in these documents when they are lodged. It would be neither appropriate nor practical for the Registrar General to do so.

Nevertheless it is undesirable for scheme descriptions, by-laws or development contracts to be filed if they are inconsistent with the Act.

The Bill therefore amends sections 30, 31, 34, 39, 47 and 50 of the Community Titles Act to require the person who prepared the scheme description, by laws and development contract to certify that they have been correctly prepared in accordance with the Act. In the case of amendment to a scheme description, variation of by laws or variation or termination of a development contract, an officer of the corporation may provide the certification. This is consistent with the obligations imposed by section 273 of the Real Property Act on persons making applications under that Act. The form of the certification is to be as prescribed by regulation.

Consequential amendments to section 232 of the Real Property Act make it an offence to falsely or negligently certify such correctness.

The amendment is a discretionary one and still allows the Registrar General to examine any matter or thing that has been certified, whether that be the proposed new certificates to deal with the by-laws, scheme description and development contract, the surveyor's certificate or the valuer's certificate.

Avoiding the need for a development contract

The Community Titles Act permits both staged developments and the imposition of future obligations on purchasers. Both are regulated by requiring a developer to lodge a scheme description and development contract. The scheme description and other documents are lodged first with the relevant planning authority along with the plan of land division. If the relevant authority approves the scheme description and plan the documents are lodged with the Registrar-General along with an application for land division. If all legal requirements have been satisfied, the Registrar General then deposits the plan upon which the community corporation is established. The developer and purchaser are then bound to fulfil their obligations under the scheme description and development contracts.

In recent years some large developers have failed to lodge development contracts, relying upon statements in their scheme description that future development is 'expected', 'envisaged' or equivocal words to that effect. This creates a risk that off the plan purchasers might be misled as to the obligation of the developer to actually carry out the proposed development.

To address this, and provide greater protection to off-the-plan purchasers, the Bills amend sections 13 and 14(4) of the Community Titles Act to require the lodgement of a development contract where the scheme description indicates that further development 'is to' occur or 'is likely to' occur.

Registered leases

Section 23(7) of the Community Titles Act provides that where land to be divided by a community plan is subject to a registered encumbrance (not being a statutory encumbrance or an easement), the encumbrance will not be registered on the certificate for the common property and the encumbrance will be taken to be discharged to that extent. Encumbrances include leases and mortgages.

Under this provision, common property cannot be leased at the time of the deposit of the plan, because the community corporation that would own the common property would not exist until after the deposit of the plan. However, it is possible, with the lessee's agreement, to specify that the land subject to the lease is to be, at least initially, a community lot over which a lease can subsist. Then, after the deposit of the plan, the plan can be amended, with the land designated as common property, and leased from the community corporation. This is an expensive and costly method of achieving an outcome that all parties desired from the outset.

The Bill amends section 23 so that an existing lease can exist over common property created by the deposit of a plan of community division, where this is provided for in the plan. Potential purchasers who will become members of the corporation on deposit of the plan should be made aware of the lease by being given or by requesting a copy of the scheme description if one is required, or by their conveyancer's search of the register, or both.

Amendment of community plan where common property unaffected

Section 52 of the Community Titles Act provides for the amendment of a deposited community plan on the application of a community corporation.

Subsection 52(2)(a) requires an application for amendment to have the unanimous approval of the corporation. This protection is necessary to prevent a majority changing lot entitlements or disposing of common property against the wishes of (or to unfairly prejudice) a minority.

However, where two or more owners wish to alter their boundaries in a manner that would not affect any other owners or the common property this requirement for unanimous approval is unnecessary. Particularly for minor amendments of the community plan, the need to obtain a unanimous resolution is inhibitive.

Therefore, the Bill amends section 52 so that an application to amend a community plan may be lodged under section 52(1) by any two or more contiguous lot owners without the need for any corporation consent provided that the proposed amendment:

does not affect common property;

does not alter the total number of community lots in the community parcel;

does not affect the aggregate of the lot entitlements of the amended lots;

does not alter the boundary of the community parcel;

is not contrary to a scheme description, by laws, or development contract;

in the case of a secondary plan, is not contrary to the scheme description or by laws of the primary scheme;

in the case of a tertiary plan, is not contrary to the scheme description or by laws of the primary or secondary scheme.

Permitting the Registrar-General to prescribe scales for survey plans

Under these provisions of the Community Titles Act:

section 14(4), that deals with applications for a community plan;

section 52(4)(f)(ii), that deals with amendment of deposited plans;

section 58(3)(e), that deals with the division of a development lot; and

section 60(3)(f) that deals with amalgamation of plans,

the certificate of a licensed surveyor must be correctly prepared in accordance with the Act 'to a scale prescribed by regulation'.

The Registrar-General publishes a Manual of Survey Practice Volume 1 (Plan Preparation Guidelines). This Manual sets out standards to be observed by professional surveyors to ensure that their work meets the Registrar General's requirements. The Manual is updated from time to time in accordance with the Registrar General's requirements.

The Registrar-General has recommended that scales be contained within the Manual rather than be prescribed by regulation. These requirements have been deleted from both the Strata Titles Act and Real Property (Land Division) Regulations to enable the Registrar General greater flexibility and a centralised plan requirement publication in preparation for Electronic Plan Lodgement into the Lands Titles Office.

In accordance with the Registrar General's advice, the Bill amends subsections 14(4), 52(4)(f)(ii), 58(3)(e) and 60(3)(f) of the Community Titles Act to replace references to 'scale prescribed by regulation' with 'scale determined by the Registrar General'.

Schedule of lot entitlements

Sections 14, 58, 60 and 69 of the Community Titles Act require an application for division of land, amendment of a plan, division of the development lot in pursuance of the development contract (and consequential amendment of the plan) and amalgamation of two or more plans to be accompanied by certificates from:

a surveyor certifying that the plan or amended plan has been correctly prepared to a scale prescribed by regulation;

and a valuer certifying that the schedule of lot entitlements included in the plan is correct.

Section 3 of the Act defines 'schedule of lot entitlement' to mean 'the schedule of lot entitlements included in a plan of community division'. A number of other provisions refer to 'a schedule of lot entitlements' being included in a plan or application.

The effect of these provisions is to make the schedule of lot entitlements part of the plan. This means that, at the time of certification of the plan by the surveyor, the schedule of lot entitlements must be included.

This is unnecessary. The surveyor, in certifying the plan, is not validating the valuer's certificate, only that the schedule of lot entitlements is with the plan.

The position is the same under the relevant provision of the Strata Titles Act.

The Registrar-General advises that the current practice is inconsistent with the schedule of lot or unit entitlements being part of the plan. Generally the schedule is completed (and certified as being correct) by the valuer after the surveyor has certified the plan. Both the plan and the schedule are certified as correct, however, the schedule does not form part of the plan at the time it is certified by the surveyor.

The Registrar-General has recommended that the Community Titles Act and Strata Titles Act be amended to accommodate this practise.

The Bill contain amendments to sections 3, 14, 58, 60 and 69 of the Act make clear that a schedule of lot entitlements is not considered part of the plan. A similar amendment to section 5 of the Strata Titles Act is also included.

Receipts generated by a computerised trust account program

Regulation 18(2)(b) of the Strata Titles Regulations 2003 and Regulation 31(2)(b) of the Community Titles Regulations 1996 provide that receipts for an agent's trust funds can be generated by a computer program, if the program 'automatically makes a separate contemporaneous record of the receipt, so that at any time a hard copy of the receipt may be produced'. These regulations are consistent with regulations under the Legal Practitioners Act 1981, Conveyancers Act 1994, and Land Agents Act 1994 that permit computerised trust accounting. There is a question, however, over whether these regulations meet the obligation in the Strata Titles Act and Community Titles Act (sections 36G(2)(b) and 126(2) respectively) that an agent 'make and retain a copy of the receipt'.

To remove any doubt, it is appropriate that section 36G of the Strata Titles Act and section 126 of the Community Titles Act be amended to ensure that there is no conflict between the provisions of the Act and the respective Regulations. Section 36G(4) of the Strata Titles Act and section 126(4) of the Community Titles Act already provide that accounts and records 'referred to in this section' must be retained 'in a legible written form, or so as to be readily convertible into such a form, for at least five years'. Computer records are of course 'readily convertible' into 'legible written form' although it is not clear whether the description of 'accounts and records referred to in this section' also includes copies of receipts under subsection (2)(b).

The Bill therefore amends section 36G(4) of the Strata Titles Act and section 126(4) of the Community Titles Act so that 'accounts and records' includes also 'copies of receipts under subsection (2)(b)'.

Jurisdiction of the Magistrates Court

Section 100 of the Community Titles Act provides that an application may be made to the District Court to appoint an administrator to a community corporation. Under s149, an application may be made to the District Court for relief from provisions requiring a special or unanimous resolution of the corporation.

The Strata Titles Act contains comparable provisions to sections 100 and 149 at sections 37 and 46. However, under the Strata Title Act, applications are made to the Supreme Court rather than the District Court.

These provisions are separate from the more commonly used dispute settling provisions of each Act. Sections 141 and 142 of the Community Titles Act and section 41A of the Strata Titles Act permit applications to settle community title and strata title disputes to be made to the Magistrates Court and for the application to be treated as a minor civil action, with minimal formality.

This creates a problem if resolution of a dispute before the Magistrates Court requires the appointment of an administrator or relief from provisions requiring a special or unanimous resolution of the corporation. In such cases the Magistrates Court has insufficient jurisdiction to make the requisite orders. It would be necessary for the parties to commence a second action, in either the District Court (if under the Community Titles Act) or the Supreme Court (if under the Strata Titles Act) before, perhaps, returning to the Magistrates Court to finalise settlement of the dispute.

These anomalies impose an expensive and unnecessary burden on parties to litigation under the two Acts.

To address this, and to ensure matters that are commenced in the Magistrates Court can be heard in that jurisdiction in their entirety, the Bill amends sections 142, 149 of, and inserts a new 149A into, the Community Titles Act and amend sections 37, 41A, 46 of, and insert new section 48A into, the Strata Title Act. The effect of these amendments is to confer jurisdiction on the Magistrates Court so that disputes requiring either the appointment of an administrator or relief from provisions requiring a special or unanimous resolution of the corporation may be settled before the one court.

Repeal of provisions permitting new applications under the Strata Titles Act

Part 2 Division 2 of the Strata Titles Act comprises sections 7 and 8 of that Act. Section 7 provides for applications for deposit of strata plans, while section 8 provides for the depositing of strata plans by the Registrar General where an application has been made under section 7, the legislative requirements in relation to the application have been satisfied and the plan conforms to the requirements of the Act.

Section 8 was amended by the Statutes Amendment (Community Title) Act 1996 to include new subsection (1a). Subsection (1a) authorised the Governor to issue a proclamation to prevent new divisions under the Strata Titles Act after the commencement of Community Titles Act.

In November, 2001, the Governor made a proclamation under subsection (1a), the effect of which was to stop the lodgement of new strata plans under the Strata Titles Act subject to a transition period for 'proceedings' that had commenced before 1 January, 2002. From that date, applications for the deposit of new plans are to be made only under the Community Titles Act.

Under the transitional provisions, 22 new plans under the Strata Titles Act were deposited in 2002, 11 in 2003, and three in 2004. No plans have been lodged since the beginning of 2005.

The Registrar-General has therefore recommended that sections 7 and 8 and the transitional provisions be repealed. In accordance with this advice, the Bill repeals Part 2, Division 2 and the transitional provision (in clause 5 of the Schedule 2) of the Strata Titles Act.

Technically it is possible that a developer who applied for land division consent before 1 January, 2002, (thereby commencing 'proceedings') could apply to deposit a plan under the Strata Titles Act. Even if a pre-2002 land division application were to lead to an application for deposit of a strata plan, the developer would not be disadvantaged by being required to make the application under the Community Titles Act, rather than the Strata Titles Act.

I commend this Bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Bills of Sale Act 1886

4—Insertion of section 11A

Section 129A of the Real Property Act 1886 allows a person to deposit a copy of 'standard terms and conditions' for mortgage documents. That has the effect of making original and duplicate mortgage instruments considerably shorter. This clause proposes to insert a new section 11A into the Bills of Sale Act 1886 to permit a similar procedure to apply to bills of sale. As with mortgages, the grantee must provide the grantor with a copy of any standard terms and conditions. There are similar clauses in the measure about encumbrances (clause 47) and stock mortgages and wool liens (clause 73).

Part 3—Amendment of Community Titles Act 1996

5—Amendment of section 3—Interpretation

This clause inserts a definition to clarify who will be taken to be the 'holder' of a statutory encumbrance and inserts into the existing list of statutory encumbrances in the Community Titles Act 1996 an additional 4 examples of statutory encumbrances. It also amends the definition of schedule of lot entitlements to provide that the schedule may be annexed to, rather than included in, the plan.

6—Amendment of section 13—Staged development and development contracts

Section 13 of the Community Titles Act 1996 requires developers to execute development contracts in respect of certain matters provided for in a scheme description (such as future division of the community parcel, erection of buildings or other future improvements or division or other development of a community lot). This amendment is proposed to make it clear that even if the scheme description only indicates that things are likely to happen, the requirement to execute a development contract will apply.

7—Amendment of section 14—Application

The clause removes the requirement that the application be accompanied by the certificate from the Development Assessment Commission (under section 51 of the Development Act 1993) and instead requires the Registrar General to satisfy himself or herself that the certificate has been issued and is in force in relation to the development.

In addition, the clause makes an amendment consequential to clause 6, amendments consequential to the new definition of schedule of lot entitlements and is 1 of several provisions in the measure that would allow the Registrar General to prescribe the scale for plans to be submitted to the Registrar General under the Act (instead of being prescribed by regulation).

8—Insertion of section 15A

This clause proposes to insert a new section 15A into the Community Titles Act 1996. The clause permits an application for deposit of a plan of community division to vary or terminate a statutory encumbrance, provided the application is accompanied by—

a certificate from the holder of the statutory encumbrance, certifying that the requirements for varying or terminating the statutory encumbrance (under the other relevant Act) have been complied with; and

any other documentary material required by the Registrar General.

This clause does not apply to the creation of a statutory encumbrance, only to its variation or termination.

9—Amendment of section 16—Consents to application

Generally, all persons with an estate or interest in either dominant or servient land must consent before an easement or its appurtenance is varied. There is an exception to this rule for a proprietor of dominant land, who may unilaterally vary the appurtenance of an easement by transferring or conveying of a portion of the dominant land without the easement being appurtenant. Consent is not required from persons with an interest in the servient land because the burden over the servient land is only being reduced. However, currently the exception operates only where there is the 'transfer' or 'conveyance' of the portion of the dominant land. The exception does not apply where the reduction is effected by the deposit of a plan. A developer needs the consent of the person with an interest in the servient land or needs a waiver from the Registrar General. This clause proposes to amend section 16 of the Community Titles Act 1996 to allow a developer to divide the dominant land and state in the plan of division that part of the land will be without the appurtenant easement, without being required to obtain consent from the owner of the servient tenement or a waiver from the Registrar General.

10—Amendment of section 23—Vesting etc of lots etc on deposit of plan

Under section 23(7)(b) of the Community Titles Act 1996, common property cannot be leased at the time of the deposit of a community plan. To arrange a lease of land that is to be common property, it is necessary to specify that the land subject to the lease is to be, at least initially, a community lot over which a lease can subsist. Then, after the deposit of the plan, the plan can be amended, with the land designated as common property, and leased from the community corporation. This clause proposes to amend section 23 of the Community Titles Act 1996 to provide that an existing lease can exist over common property created by the deposit of a plan of community division, where this is provided for in the plan. Potential purchasers who will become members of the corporation on deposit of the plan should be made aware of the lease by being given or by requesting a copy of the scheme description, or by their conveyancer's search of the register, or both.

11—Amendment of section 30—Scheme description

Section 14 of the Community Titles Act 1996 requires an application for division of land by a community plan to be accompanied by the scheme description, by laws and any relevant development contract. Section 22 of the Act provides that when the Registrar General receives an application for division of land by a community plan, and the plan complies with 'the requirements of the Act', then the Registrar General must deposit the plan in the Land Titles Registration Office. This clause (relating to the scheme description) is 1 of a number of provisions in the measure that requires these documents to be endorsed with a certificate indicating that they have been correctly prepared in accordance with the Act. The form of the certification is to be as prescribed by regulation. Because this Act and the Real Property Act 1886 are to be read as 1 Act (see section 5 Community Titles Act 1996), the penalties applicable under that Act for false or negligent certification would apply to this certification.

12—Amendment of section 31—Amendment of scheme description

This clause requires that an amended scheme description be certified as having been correctly prepared in accordance with the Act (for consistency with section 30 as proposed to be amended by the measure).

13—Amendment of section 34—By-laws

This clause requires that by laws be certified as having been correctly prepared in accordance with the Act.

14—Amendment of section 39—Variation of by laws

This clause requires that varied by laws be certified as having been correctly prepared in accordance with the Act (for consistency with section 34 as proposed to be amended by the measure).

15—Amendment of section 47—Development contracts

This clause requires development contracts to be certified as having been correctly prepared in accordance with the Act.

16—Amendment of section 50—Variation or termination of development contract

This clause requires that a varied development contract be certified as having been correctly prepared in accordance with the Act (for consistency with section 47 as proposed to be amended by the measure).

17—Amendment of section 52—Application for amendment

The amendments proposed by subclauses (1) and (2) would allow, in certain specified circumstances, the owners of community lots affected by an amendment to apply for amendment of a deposited community plan (where currently the application must always be made by the community corporation). Subclause (3) is similar to the amendment in clause 9 of the measure (but relates to amendment of a deposited community plan, rather than the deposit of the plan). Subclause (5) allows the Registrar General to prescribe the scale for any new plan required as a result of the amendment (rather than having the scale prescribed by regulation). Subclause (4) removes the requirement that the application that affects the delineation of lots or common property, or that creates new lots, be accompanied by the certificate from the Development Assessment Commission (under section 51 of the Development Act 1993) and subclause (6) instead requires the Registrar General to satisfy himself or herself that the certificate has been issued and is in force in relation to the amendment.

18—Amendment of section 53—Status of application for amendment of plan

This clause is consequential to clause 17.

19—Insertion of section 53A

This clause proposes to insert a new section 53A into the Community Titles Act 1996. This section is similar to the proposed new section 15A (see clause 8) but applies to an application for amendment of a deposited community plan, rather than an application to deposit.

20—Amendment of section 55—Vesting etc of interests on amendment of plan

This clause is consequential to clause 17.

21—Amendment of section 58—Amendment of plan pursuant to development contract

This clause allows the Registrar General to prescribe the scale for any new plan required as a result of an amendment necessitated by a development contract (rather than having the scale prescribed by regulation). The clause also removes the requirement that the application be accompanied by the certificate from the Development Assessment Commission (under section 51 of the Development Act 1993) and instead requires the Registrar General to satisfy himself or herself that the certificate has been issued and is in force in relation to the development. The clause also contains an amendment consequential to the amendment to the definition of schedule of lot entitlements.

22—Amendment of section 60—Amalgamation of plans

This clause would allow the Registrar General to prescribe the scale for any new plan required as a result of an amalgamation (rather than having the scale prescribed by regulation).

23—Amendment of section 65—Application to the Registrar General

This is 1 of 16 clauses in the Bill that remove legislative obligations for persons to produce, or for the Registrar General to place endorsements on, duplicate instruments. Section 65 deals with an application to the Registrar General to cancel a deposited community plan. The proposed amendment removes the obligation on an applicant to produce duplicate instruments (if any) for the registered encumbrances (if any) over the lots and common property. It does not affect the obligation to produce the duplicate certificate of title.

24—Amendment of section 67—Application to the Court

This is 1 of 16 clauses in the Bill that remove legislative obligations for persons to produce, or for the Registrar General to place endorsements on, duplicate instruments. Section 67 deals with an application to the Court for an order cancelling a deposited community plan. The clause removes the obligation on an applicant to produce duplicate instruments (if any) for the registered encumbrances (if any) over the lots and common property. It does not affect the obligation to produce the duplicate certificate of title for the lots and common property.

25—Amendment of section 69—Cancellation

This clause is consequential to the amendment to the definition of schedule of lot entitlements.

26—Amendment of section 100—Administrator of community corporation's affairs

This clause would allow an application to be made to the Magistrates Court or the District Court for the appointment of an administrator of a community corporation (currently such an application can only be made to the District Court).

27—Amendment of section 126—Keeping of records

Regulation 31(2)(b) of the Community Titles Regulations 1996 provides that receipts can be generated by a computer program, if the program 'automatically makes a separate contemporaneous record of the receipt, so that at any time a hard copy of the receipt may be produced'. These regulations are consistent with regulations under the Legal Practitioners Act 1981, the Conveyancers Act 1994, and the Land Agents Act 1994 that permit computerised trust accounting. Section 126(2) of the Community Titles Act 1996 requires an agent to 'make and retain a copy of the receipt'. Section 126(4) of the Community Titles Act 1996 provides that accounts and records 'referred to in this section' must be retained 'in a legible written form, or so as to be readily convertible into such a form, for at least five years'. Computer records are of course 'readily convertible' into 'legible written form'. In order to remove any suggestion that the description of 'accounts and records referred to in this section' might not include copies of receipts under subsection (2)(b), this clause amends section 126(4) so that 'accounts and records' includes also 'copies of receipts under subsection (2)(b)'. Clause 82 makes an equivalent amendment to the Strata Titles Act 1988.

28—Amendment of section 142—Resolution of disputes

This clause is consequential to clause 31.

29—Insertion of section 145A

Clause 7 of this Bill amends section 14(4) of the Community Titles Act 1996 to require an applicant to certify that the scheme description, by laws and development contract (if any) have been correctly prepared in accordance with that Act. This clause inserts a new provision, section 145A, entitling the Registrar General to rely on such a certificate.

30—Amendment of section 149—Relief where unanimous or special resolution required

This clause would allow an application to be made to the Magistrates Court or the District Court for relief from a requirement to have a unanimous or special resolution of the community corporation (currently such an application can only be made to the District Court).

31—Insertion of section 149A

This clause inserts a new section into the principal Act providing that applications to the Magistrates Court under the Act are to be dealt with as if they were a minor civil action within the meaning of the Magistrates Court Act 1991 (subject to any prescribed modifications).

32—Insertion of section 151A

This clause inserts a new section 151A into the principal Act, consequentially to clauses 12, 14 and 16.

Part 4—Amendment of Real Property Act 1886

33—Amendment of section 3—Interpretation

The word 'allotment' is used in 2 different senses in the Real Property Act 1886. For purposes of land division and amalgamation, under Part 19AB of the Act, the word 'allotment' is generally defined (except for the purposes of section 223LB) in such a way as to exclude community or development lots or common property within the meaning of the Community Titles Act 1996, or a unit or common property within the meaning of the Strata Titles Act 1988. That is because the division and amalgamation of parcels of land under the Community Titles Act 1996 or the Strata Titles Act 1988 are subject to those 2 Acts rather than Part 19AB of the Real Property Act 1886.

In other contexts within the Real Property Act 1886, namely in sections 51E, 90B, and 90C, it is apparent that a broader meaning of the word 'allotment' is intended, but there is no definition of the word that applies to any Part other than Part 19AB. Therefore this clause amends section 3(1) of the Real Property Act 1886 to include a broad definition of 'allotment' that will apply to sections 51E, 90B, and 90C.

34—Amendment of section 19—Solicitor not to engage in private practice

Several sections of the Real Property Act 1886 contain references to a 'licensed land broker'. There was a change of terminology when the Land Agents, Brokers and Valuers Act 1973 was replaced by the Land Agents Act 1994 and the Conveyancers Act 1994. What were formerly referred to as 'licensed land brokers' are now referred to as 'registered conveyancers'. This clause updates a reference in keeping with this change.

35—Amendment of section 56—Priority of instruments

This clause does 2 things. Firstly, sub clauses (1) and (2) amend section 56 to permit the Registrar General to give effect to the intention of parties who lodge documents in the incorrect order. Where the intentions of the parties appear, to the Registrar General, to be in conflict, the order of registration will remain the order in which the dealings were lodged for registration. The proposed amendment is based upon similar provisions in the Real Property Act 1900 of NSW.

Secondly, sub clause (3) is 1 of 16 provisions in the Bill that remove legislative obligations for persons to produce, or for the Registrar General to place endorsements on, duplicate instruments. Section 56(4) deals with a memorandum of the variation of an order of priority. The subclause removes the Registrar General's obligation to have the memorandum endorsed on every mortgage or encumbrance affected. It does not affect the Registrar General's obligation to have the memorandum endorsed on the certificate of title.

36—Amendment of section 58—Where 2 or more instruments presented at same time

This is 1 of 16 clauses in the Bill that remove legislative obligations for persons to produce, or for the Registrar General to place endorsements on, duplicate instruments. Section 58 deals with the Registrar General's obligations when presented with 2 or more instruments, executed by the same proprietor, and that purport to affect the same estate or interest, perhaps in a conflicting manner. This clause removes the Registrar General's discretion in these circumstances to register such an instrument on the basis of the presentation of any evidence other than a duplicate certificate of title.

37—Insertion of section 78A

The automation of the land titles register means that it is easier and more effective for the Registrar General to issue a new certificate of title when amendments, corrections etc are to be made, rather than making alterations on the face of existing certificates of title. This clause inserts a new section 78A into the Real Property Act 1886 authorising the Registrar General to issue a new certificate of title whenever required by legislation to amend or update an existing certificate of title.

38—Amendment of section 80H—Cancellation of instruments

This is 1 of 16 clauses in the Bill that remove legislative obligations for persons to produce, or for the Registrar General to place endorsements on, duplicate instruments. Section 80H requires the Registrar General, after issuing a new certificate of title, to cancel any existing certificate of title, as well as any instrument, entry or memorial in the Register Book altogether or to such extent as is necessary to give effect to the certificate issued. This clause removes the obligation on the Registrar General to endorse every instrument so cancelled, but does not affect the Registrar General's obligation to endorse each cancelled certificate of title.

39—Substitution of section 90A

This clause does 2 things. Firstly, the proposed new section 90A(1) replaces what is now section 90A but changes the words 'land registered under this Act' to the words 'land under the provisions of this Act' to ensure consistency with wording used elsewhere in the Real Property Act 1886. Secondly, the insertion of section 90A(2) is consequential to clause 41, which inserts a new section 90F. Subsection (2) provides that the provisions of section 90F apply only to 'land under the provisions of this Act' (ie. proposed new section 90F is not to apply to any old system land).

40—Amendment of section 90B—Variation and extinguishment of easements

This clause mirrors the proposed new section 90A(1) by changing the expressions 'land registered under this Act' and 'land not registered under this Act' to 'land under the provisions of this Act' and 'land not under the provisions of this Act' (respectively).

41—Insertion of section 90F

When an easement is granted appurtenant to land that is subject to an existing mortgage or encumbrance, a collateral mortgage or encumbrance must be lodged for the mortgagee or encumbrancee to be able to transfer that appurtenant easement when exercising a power of sale. Without lodging a collateral mortgage or encumbrance, the new certificate of title will only observe that the mortgage or encumbrance is over the land, and not over the appurtenant easement. This clause inserts into the Real Property Act 1886 a new section 90F, to provide that where an easement is created, any existing mortgage or encumbrance over the dominant land will be deemed to extend to cover the appurtenant easement if the mortgagee or encumbrancee has made an endorsement to this effect on the instrument creating the easement.

42—Insertion of section 96AA

The common law does not permit an easement to be created by reservation on the transfer of land. Instead, the purchaser must consent to a re grant of the easement to the vendor. This has the same end effect as a reservation but requires the execution of extra documentation. This common law rule has been abrogated in New South Wales, Victoria, Queensland and Tasmania, but still exists in South Australia. This clause inserts a new section 96AA into the Real Property Act 1886, to allow the creation of an easement by reservation.

43—Substitution of section 115A

The proposed substitution of section 115A does 2 things. Firstly, it would allow the Registrar General to update the register where a vesting by operation of law has occurred, whether or not someone has applied for that to occur. Secondly, in the proposed new section, all references to an 'acquiring authority' have been removed so that it applies to any person acquiring an estate or interest in land by operation of law.

44—Amendment of section 120—Lease may be surrendered by separate instrument

This is 1 of 16 clauses in the Bill that remove legislative obligations for persons to produce, or for the Registrar General to place endorsements on, duplicate instruments. Under section 120(1), a registered lease may be surrendered by instrument in the appropriate form, signed by the lessee and lessor. This clause proposes to substitute a new subsection (2) in that section, so that if the Registrar General is of the opinion that it is necessary or desirable to do so, the Registrar General may endorse the surrender on the duplicate certificate of title, without having to endorse copies of the lease also.

45—Amendment of section 121—Registrar General may enter surrender

This is 1 of 16 clauses in the Bill that remove legislative obligations for persons to produce, or the Registrar General to place endorsements on, duplicate instruments. Under section 121, the Registrar General may, upon application by the lessor, make an entry in the Register Book of the surrender of a lease. This clause removes any obligation for the Registrar General to make an endorsement on the lease also.

46—Amendment of section 126—Registrar General to note particulars of re entry in Register Book

This is 1 of 16 clauses in the Bill that remove legislative obligations for persons to produce, or for the Registrar General to place endorsements on, duplicate instruments. When a lessor has lawfully re entered and taken possession of lease premises, the Registrar General shall, under section 126, note the re entry in the Register Book. This clause removes any obligation for the Registrar General also to 'cancel such lease if delivered up to him for that purpose'.

47—Amendment of section 129A—Standard terms and conditions of mortgage or encumbrance

Section 129A of the Real Property Act 1886 allows a person to deposit with the Registrar General 'standard terms and conditions' for mortgage documents. The advantage of this practice is that the original and duplicate mortgage instruments are considerably shorter. Under subsection (3), the mortgagee must have provided the mortgagor with a copy of the deposited standard terms and conditions. A similar provision (section 119A) exists with respect to leases. This clause amends section 129A to provide that encumbrances may be treated in the same way as mortgages, permitting a person to deposit standard terms and conditions of an encumbrance.

48—Amendment of section 143—Discharge of mortgages and encumbrances

This is 1 of 16 clauses in the Bill that remove legislative obligations for persons to produce, or for the Registrar General to place endorsements on, duplicate instruments. Section 143 provides for the discharge of mortgages and encumbrances, subject to production of the duplicate mortgage or encumbrance. This clause amends section 143 so that such production is not necessary unless the Registrar General requires it.

49—Insertion of section 144

When an easement is granted over land that is subject to a registered mortgage or encumbrance, it is general practice to discharge the mortgage or encumbrance over the portion of land forming the easement. The partial discharge occurs to avoid extinguishment of the easement in accordance with section 136 of the Real Property Act 1886 where a power of sale is exercised over the servient land. This clause aims to streamline the process by inserting a new section 144 to provide that where an easement is to be created over land subject to a mortgage or encumbrance, that mortgage or encumbrance will be partially discharged so that it is subject to the easement, provided that the mortgagee or encumbrancee consents to the grant of easement.

50—Amendment of section 145—Entry of satisfaction of annuity

This is 1 of 16 clauses in the Bill that remove legislative obligations for persons to produce, or for the Registrar General to place endorsements on, duplicate instruments. When an annuity or other secured sum of money is discharged and no longer payable, section 145 requires the Registrar General to make an entry in the Register Book, and also on the encumbrance or other instrument of title. This clause removes the obligation on the Registrar General to make the entry on the encumbrance or other instrument of title. It does not alter the Registrar General's obligation to make the entry in the Register Book.

51—Amendment of section 148A—Entry in Register Book where rights of mortgagee barred by Statute

This is 1 of 16 clauses in the Bill that remove legislative obligations for persons to produce, or for the Registrar General to place endorsements on, duplicate instruments. When the rights of a mortgagee to bring an action for the money secured by the mortgage are barred by the Limitation of Actions Act 1936, section 148A authorises the Registrar General to make an entry to that effect in the Register Book, on the mortgage, on the duplicate certificate or other instrument of title, and on the duplicate mortgage if produced to him. This clause amends section 148A by removing references to the mortgage, the duplicate certificate or other instrument of title and the duplicate mortgage. The clause does not affect the operation of subsection (2), which provides that the mortgage is deemed to be discharged by the Registrar General's entry in the Register Book.

52—Amendment of section 163—Insertion of the words 'with no survivorship' in instruments

Section 162 of the Real Property Act 1886 prohibits the inclusion of trust details on Real Property Act instruments. However, section 163 provides a partial exception to this prohibition by permitting the words 'no survivorship' to be used on a transfer where the interest received will be held by trustees. In practice, the words 'no survivorship' are also used on mortgage, encumbrance and lease instruments. Section 164 clearly permits the registered proprietor of an interest to apply for the inclusion of those words on an instrument. This clause of the Bill amends section 163 to make it clear that 'with no survivorship' may be included on a mortgage, encumbrance or lease instrument.

53—Amendment of section 164—Trustees may authorise insertion of those words

This clause does 2 things. Firstly, subclause (1) is consequential to clause 52. Secondly, subclauses (2) and (3) make this clause 1 of the 16 clauses in the Bill that remove legislative obligations for persons to produce, or for the Registrar General to place endorsements on, duplicate instruments. Section 164 permits any joint proprietors or joint trustees to authorise the Registrar General to insert the words 'no survivorship' upon the original certificate, or other instrument of title, evidencing their title to such estate or interest, in the Register Book, or filed in the office of the Registrar General, and also upon the duplicate of such instrument. Subclauses (2) and (3) limit this power of authorisation to 'the original certificate' and 'in the Register Book'.

54—Amendment of section 169—Disclaimers

This clause is 1 of the 16 clauses in the Bill that remove legislative obligations for persons to produce, or for the Registrar General to place endorsements on, duplicate instruments. Section 169 permits a person who claims to have been registered without his consent, to disclaim an estate or interest in land. If the Registrar General is satisfied that is the case, the Registrar General will make a correction 'in the Register Book and on any certificate or other instrument of title as are necessary for that purpose, and by cancelling any certificate or other instrument of title that it is necessary to cancel.' This clause provides that the correction and cancellation need only be made to the Register Book and the certificate, and not any other instrument.

55—Amendment of section 176—Application to be made in such case

This clause does 2 things. Firstly, sub clause 38(1) is another of the 16 provisions that remove legislative obligations for persons to produce, or for the Registrar General to place endorsements on, duplicate instruments. Section 176 deals with applications by executors, administrators, or the public trustee after the death of a registered proprietor. Subclause (1) provides that such persons need only present to the Registrar General the 'duplicate certificate' and not any 'other instrument of title'. Secondly, section 176 refers to 'an office copy of the probate, letters of administration, or order'. In current practice, there is no relevance to the use of the word 'office' in this section. Therefore, subclause (2) amends section 176 so that it is only necessary to provide a 'copy' (as distinct from 'office copy') of the probate, letters of administration or order (as the case may be).

56—Amendment of section 179—Where two or more executors or administrators, all must concur

Section 179 provides that where probate or letters of administration are granted to 2 or more persons, all of them must concur in every instrument relating to the real estate of the deceased registered proprietor. The reference to 'real estate' dates back to the time when there was a distinction between the transfer of real property and the transfer of personalty (mortgages and encumbrances) or chattels real (leases). This clause replaces the reference to 'real estate' with a reference to 'land'.

57—Amendment of section 184—Order of Court vesting land

This clause makes the same change as subclause (2) of clause 55. It removes the word 'office' from the phrase 'office copy' as the word has no relevance in current practice.

58—Repeal of section 200

Section 200 of the Real Property Act 1886 confers jurisdiction on 'Local Courts of full jurisdiction' to hear 'actions in respect of land under the provisions of this Act' pursuant to the Local Courts Act 1926. This appears to be a reference to the Local and District Criminal Courts Act 1926 that was repealed in 1991. In dozens of other provisions of the Real Property Act 1886, powers are granted to 'the Court'. Since the commencement of the Statutes Amendment (Attorney-General's Portfolio) Act 2002, on 3 March 2003, 'Court' has been defined in section 3 to include the District Court, at least for the purposes of section 191, Part 17 and Schedule 21 of the Real Property Act 1886. For the purposes of other sections of the Real Property Act 1886, 'Court' is the Supreme Court or 'any other court or tribunal constituted under the law of this State or the Commonwealth'. Section 200 is therefore redundant, and so this clause provides for its repeal.

59—Amendment of section 220—Powers of Registrar General

This clause is 1 of the 16 clauses in the Bill that remove legislative obligations for persons to produce, or for the Registrar General to place endorsements on, duplicate instruments. The amendment of paragraph (c) and repeal of paragraph (k) are consistent with this legislative policy.

60—Amendment of section 223LA—Interpretation

This clause does 2 things. Firstly, sub clauses (1) and (2) are part of a scheme of 3 clauses in Part 4 of the Bill (the others being clause 63 and clause 65) that together provide for a scheme of extending and extinguishing 'statutory encumbrances' on deposit of a plan of division. Subclause (1) amends section 223LA to define a 'holder' and subclause (2) amends section 223LA to define a 'statutory encumbrance'.

Second, subclauses (3), (4), (5) and (6) amend subsections 223LA(3) and (4) of the Real Property Act 1886 to make it clear that part allotments should be considered to be contiguous with other part or whole allotments notwithstanding that they may be separated by street, road, thoroughfare, travelling stock route, a reserve or other similar open space. This will permit part allotments considered contiguous under section 223LA to be divided and amalgamated under the provisions of section 223LB.

61—Amendment of section 223LB—Unlawful division of land

Section 223LB(2) enacts a restriction on the granting, selling, transfer etc of an estate or interest (except a right of way or other easement) over a land parcel unless certain criteria are met. Amongst other things, conveyance is allowed if the land parcel constitutes 'an allotment or allotments and a part allotment that is contiguous with that allotment or with one or more of those allotments'. The provision was inserted in the Act to ensure that a person could not deal in isolation with a part allotment or part allotments of land. 1 or more part allotments may be dealt with only if they are contiguous with 1 or more full allotments of land.

By virtue of the wording of the provision, a person would only be able, in a single transaction, to deal with 1 part allotment that is contiguous with 1 or more allotments. A person would not be able to deal, in a single transaction, with more than 1 part allotment, despite all parts being contiguous with each other, and at least 1 part being contiguous with 1 or more allotments. Such an intention could, however, be carried out through a successive series of transactions. The clause amends section 223LB to enable a person to deal in 1 transaction with a number of part allotments that are in some respect contiguous with 1 or more allotments.

62—Amendment of section 223LD—Application for Division

This clause amends section 223LD to remove the requirement that an application for division be accompanied by the certificate from the Development Assessment Commission (under section 51 of the Development Act 1993) and instead requires the Registrar General to satisfy himself or herself that the certificate has been issued and is in force in relation to the development.

63—Insertion of section 223LDA

This clause is 1 of 3 clauses in Part 4 of the Bill (the others being clause 60 and clause 65) that together provide for a scheme of extending and extinguishing 'statutory encumbrances' on deposit of a plan of division. The clause inserts a new section 223LDA into the Real Property Act 1886 to specify what must be included in an application if it is to be successful in varying or extinguishing a statutory encumbrance. It would permit an application for deposit of a plan of division to vary or terminate a statutory encumbrance, provided the application is accompanied by a certificate from the holder of the statutory encumbrance certifying that the requirements for varying or terminating the statutory encumbrance (under the other relevant Act) have been complied with, and any other material required by the Registrar General. This clause does not apply to the creation of a statutory encumbrance, only to its variation or termination.

64—Amendment of section 223LE—Deposit of plan of division in Lands Titles Registration Office

According to section 223LE of the Real Property Act 1886, on the deposit of a plan of division an estate or interest will vest, as specified in the plan, in a person to the extent it is not already vested. Subsection (3)(a) limits this general provision by providing that an estate in fee simple can vest in a person only if that person was the proprietor of an estate or interest in some part, or the whole, of the land before division. The limitation in subsection (3)(a) was inserted to prevent persons from avoiding stamp duties by being vested with an estate in fee simple in the land on deposit of the plan when that person was not the holder of the estate in fee simple of the land before division. However, the wording of the provision could mean that a person who is simply the owner of an encumbrance (such as a lease or easement) over the undivided land could be vested with an estate in fee simple in the land. It was never intended that the holder of a lesser estate or interest in undivided land be capable of being vested with an estate in fee simple in the divided land.

The Strata Titles Act 1988 and the Community Titles Act 1996 both restrict the vesting of an estate in fee simple for any of the created units or lots to a person who possessed an estate in fee simple over the land before division. This clause amends section 223LE(3)(a) to provide that the deposit of the plan of division will serve to vest an estate in fee simple, in allotments created by the division, only in a person who was the registered proprietor of an estate in fee simple in the land before division.

65—Amendment of section 223LH—Consent to plans of division

This clause does 2 things. Firstly, subclause (1) is part of a scheme of 3 clauses in Part 4 of the Bill (the others being clause 60 and clause 63) that together provide for a scheme of extending and extinguishing 'statutory encumbrances' on deposit of a plan of division. Subclause (1) amends section 223LH to require an applicant to provide a certificate from the holder of the statutory encumbrance, certifying consent to the deposit of the plan of division.

Secondly, subclause (2) is complementary to clauses 9 and 17 (in Part 3) and clause 77 (in Part 6). It amends section 223LH of the Real Property Act 1886 to permit the deposit of a plan of division to extinguish an easement in respect of part of the dominant land, without the requirement to obtain consent from the owner of the servient land, provided that rights under the easement continue in respect of some other part of the dominant land.

66—Repeal of Part 19AB Division 4A

This clause provides for the repeal of Division 4A of Part 19AB of the Real Property Act 1886.

67—Amendment of section 232—Penalty for certifying incorrect documents

This clause is consequential to clause 7. Section 232 already provides a penalty for 'any person who shall falsely or negligently certify to the correctness of any application or instrument'. This clause would provide that the same penalty applies to any 'other document that is required to be certified.' This would include documents certified under clause 7, because under section 5 of the Community Titles Act 1996, that Act and the Real Property Act 1886 are to be read together as a single Act.

68—Amendment of section 273—Authority to register

This clause amends section 273 to require certification of an instrument by each party to the instrument or by a solicitor or registered conveyancer.

69—Amendment of section 274—Solicitors and conveyancers to be generally entitled to recover fees for work done under this Act

This clause replaces a reference to 'licensed land broker' with a reference to 'registered conveyancer'.

70—Amendment of section 277—Regulations

This clause replaces a reference to 'licensed land broker' with a reference to 'registered conveyancer'.

71—Substitution of heading to Schedule 5

Section 89 of the Real Property Act 1886 provides that the words 'a free and unrestricted right of way' in any instrument will be deemed to imply the words set out in Schedule 5. Confusion occasionally arises because Schedule 5 is headed 'Right of Way', and some conveyancers and solicitors are under the erroneous belief that the words 'Right of Way' in an instrument will be deemed to imply Schedule 5 words. This conclusion is not supported by section 89. Therefore this clause amends the heading of Schedule 5 to refer to 'A free and unrestricted right of way'.

72—Amendment of Schedule 6—Short forms of easements and their interpretation (section 89A)

Section 89A of the Real Property Act 1886 provides that, where an instrument refers to a short form easement set out in the sixth schedule, the instrument will, unless the contrary intention appears, be taken to incorporate the corresponding long form of that easement as set out in the sixth schedule. There are presently 9 short form easements incorporated in the sixth schedule, including an easement for water supply purposes, an easement for transmission of electricity by overhead cable, party wall rights, etc. This clause provides for a number of additional short form easements to be included in the sixth schedule as follows:

an easement for the transmission of telecommunication signals by underground cable. This easement is similar in terms to the existing easement for the transmission of television signals by underground cable;

an easement for the transmission of telecommunication signals by overhead cable;

an easement for support;

an easement to park a vehicle;

a right of way on foot.

Part 5—Amendment of Stock Mortgages and Wool Liens Act 1924

73—Insertion of section 18A

This clause is complementary to clause 4 and clause 47. Section 129A of the Real Property Act 1886 allows a person to deposit a copy of 'standard terms and conditions' for mortgage documents. That has the effect of making original and duplicate mortgage instruments considerably shorter. As with mortgages, the grantee must provide the grantor with a copy of any standard terms and conditions. Clause 4 inserts a new section 11A into the Bills of Sale Act 1886 to permit a similar procedure to apply to bills of sale. This clause inserts a new section 18A into the Stock Mortgages and Wool Liens Act 1924, to provide that section 11A of the Bills of Sale Act 1886 equally applies to stock mortgages and wool liens.

Part 6—Amendment of Strata Titles Act 1988

74—Amendment of section 3—Interpretation

This is the first of 3 clauses in Part 6 (the others being clause 77 and clause 78) that together provide for a scheme of extending and extinguishing 'statutory encumbrances' on amendment of an existing, deposited strata plan. The scheme mirrors clauses 6, 8 and 19, that amend the Community Titles Act 1996. This clause defines the 'holder' of a statutory encumbrance, and inserts into the existing list of statutory encumbrances in section 3 an additional 2 examples of statutory encumbrance and, for consistency with other legislation, deletes an unnecessary entry relating to the Retirement Villages Act 1987.

75—Amendment of section 5—Nature of strata plan and requirements with which it must conform

This clause removes the requirement that a strata plan 'include' a schedule of unit entitlements and replaces it with a requirement that a strata plan have such a schedule annexed to it (consistently with amendments to the Community Titles Act 1996 proposed by Part 3 of the measure).

76—Repeal of Part 2 Division 2

This clause repeals the provisions that allow new applications for deposit of a strata plan to be made under the Strata Titles Act 1988.

77—Amendment of section 12—Application for amendment

This clause does 4 things. Firstly, subclause (1) amends section 12 of the Strata Titles Act 1988, so that if units or common property are subject to a statutory encumbrance, a strata corporation applying to amend its strata plan must provide evidence to the satisfaction of the Registrar General that the holder of a statutory encumbrance consents to the amendment. Secondly, subclause (2) is complementary to clauses 9 and 17 (in Part 3) and subclause (2) of clause 65 (in Part 4). It amends section 12 of the Strata Titles Act 1988 to permit the amendment of a strata plan to extinguish an easement in respect of part of the dominant land, without being required to obtain consent from the owner of the servient tenement, provided that rights under the easement continue in respect of some other part of the dominant land.

Thirdly, section 12 is amended to remove the requirement that an application for amendment that affects the delineation of units or common property be accompanied by the certificate from the Development Assessment Commission (under section 51 of the Development Act 1993) and instead requires the Registrar General to satisfy himself or herself that the certificate has been issued and is in force in relation to the amendment.

Finally, minor amendments are made to section 12(5) and (5a) by way of clarification.

78—Insertion of section 12A

This clause inserts a new section 12A into the Strata Titles Act 1988. The clause permits an application for amendment of a deposited strata plan to vary or terminate a statutory encumbrance, provided the application is accompanied by a certificate from the holder of the statutory encumbrance, certifying that the requirements for varying or terminating the statutory encumbrance (under the other relevant Act) have been complied with, and any other documentary material required by the Registrar General. This clause does not apply to the creation of a statutory encumbrance, only to its variation or termination.

79—Amendment of section 16—Amalgamation of adjacent sites

This clause replaces a reference to a schedule of unit entitlements 'included' in a plan with a reference to such a schedule 'annexed to' the plan.

80—Amendment of section 17—Cancellation

This clause is 1 of the 16 clauses in the Bill that remove legislative obligations for persons to produce, or for the Registrar General to place endorsements on, duplicate instruments. Section 17 provides for the cancellation of a deposited strata plan. The clause removes the need for a strata corporation, lodging an instrument of cancellation, to provide to the Registrar General any duplicate instrument. It does not affect the strata corporation's obligation to provide the duplicate certificate of title for every unit and the common property, and 'any other documentary material as the Registrar General may require'.

81—Amendment of section 17A—Procedure where the whereabouts of certain persons is unknown

This clause makes a consequential amendment to section 17A to delete the reference to Division 2 (which is proposed to be deleted by clause 76).

82—Amendment of section 36G—Keeping of records

This clause amends section 36G(4) of the Strata Titles Act 1988 to remove any suggestion that the description of 'accounts and records referred to in this section' might not include copies of receipts under subsection 36G(2)(b). This amendment corresponds to the equivalent amendment to the Community Titles Act 1996, in clause 27 of the Bill.

83—Amendment of section 37—Administrator of strata corporation's affairs

This clause would allow an application to be made to the Magistrates Court or the Supreme Court for the appointment of an administrator of a community corporation (currently such an application can only be made to the Supreme Court).

84—Amendment of section 41A—Resolution of disputes etc

This clause is consequential to clause 86.

85—Amendment of section 46—Relief where unanimous resolution required

This clause would allow an application to be made to the Magistrates Court or the Supreme Court for relief from a requirement to have a unanimous resolution under the Act (currently such an application can only be made to the Supreme Court).

86—Insertion of section 48A

This clause inserts a new section into the principal Act providing that applications to the Magistrates Court under the Act are to be dealt with as if they were a minor civil action within the meaning of the Magistrates Court Act 1991 (subject to any prescribed modifications).

87—Amendment of Schedule 2—Transitional provisions

This clause deletes clause 5 of Schedule 2 (consequentially to the repeal of Part 2 Division 2).

Debate adjourned on motion of Mrs Redmond.

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