Registration is not automatic. The Registrar examines instruments and can refuse them. Part XV Division 1 of the Land Registration Act gives the proprietor a direct remedy.
Section 145(1) — the four triggers
(a) refuses to register a dealing or transmission; or
(b) refuses to issue an instrument; or
(c) refuses to perform an act or duty which the Act provides is to be done by the Registrar; or
(d) gives a direction with which the proprietor is dissatisfied —
the proprietor may (e) require the Registrar to set out in writing the grounds; and (f) at his own cost, summon the Registrar to appear before the Court to substantiate and uphold those grounds.
Note that the remedy belongs to a proprietor, and covers a direction as well as a refusal.
Step one — get the grounds in writing
Paragraph (e) is the step to take first, and it is free. A written statement of grounds:
- tells you whether the objection is curable — a defective form, a missing consent, an unpaid fee, an omitted Ministerial approval;
- fixes the Registrar’s position, so that the case in court is confined to the grounds actually given; and
- is the material on which you decide whether to summon at all.
Under section 155 the Registrar may refuse to receive an instrument that contains matter contrary to law, has not been duly completed because of an omission or misdescription, does not comply with a provision of the Act, or contains an error, alteration or erasure — and may instead request that it be amended or completed and re-submitted, or that a fresh instrument be submitted. Fixing the instrument is usually faster and cheaper than litigating.
Step two — the summons
A summons under section 145(1) shall be served on the Registrar at least six clear days before the day appointed for the hearing.
On the hearing:
- (a) the Registrar or his lawyer shall open and have the right of reply — an unusual reversal, reflecting that it is the Registrar who must substantiate and uphold the refusal;
- (b) if an issue of fact is involved, the Court may direct the issue to be tried; and
- (c) the Court may make any order which, in its opinion, the circumstances require.
Paragraph (c) is a wide remedial power: the Court is not confined to affirming or setting aside, but can order what the case needs.
Section 145(4) to (6) — costs, and the Assurance Fund
All expenses of and incidental to the proceedings shall be borne by the person instituting them — unless the Court certifies that there were no reasonable grounds for the Registrar’s refusal or direction.
Where the Court gives a certificate, it shall include a statement that (a) a specified amount represents the expenses of the proceedings, and (b) those expenses are payable out of the Assurance Fund. The Departmental Head then acts on the certificate.
So the costs rule is asymmetric and deliberately so. Litigating against the Registrar is at your own risk unless the refusal was unreasonable — in which case the system, not you, pays.
The Registrar’s investigative powers
Section 156 gives the Registrar real powers where a transaction is about to be effected. He may:
- require a person to produce all instruments in their possession or control relating to the transaction;
- summon a person to appear and give evidence in relation to it; and
- administer an oath, or require a declaration of the truth of statements made in examination.
A person who, on a written requisition, refuses or neglects to produce an instrument or allow it to be inspected, refuses or neglects to give evidence, or knowingly misleads or deceives the Registrar, is guilty of an offence.
The other remedies in Part XV
- Division 2 — Ejectment. Recovery of possession of registered land.
- Division 3 — Damages. The route by which a person who has suffered loss through the operation of the registration system obtains an award, ultimately payable out of the Assurance Fund under Part XIV — subject to the section 142 exclusion for loss occasioned by breach of trust or default.
Part XVI separately provides for amendment of the description of land, which is the route for correcting a wrong description or boundary — matters that are also exceptions to indefeasibility under section 33(1)(d) and (e).
Practical sequence
- Ask what is wrong, informally, and fix it if it is a section 155 defect.
- Require written grounds under section 145(1)(e).
- Check for a missing external step — most commonly Ministerial approval of a controlled dealing under the Land Act, without which the dealing is void and could not properly be registered.
- Protect your position meanwhile with a caveat, remembering the three-month lapse.
- Summon only if the grounds are wrong — and weigh the costs rule.
- Serve at least six clear days before the hearing.
Sources
- Land Registration Act (Chapter 191) — ss 33, 142, 145, 155, 156; Parts XIV, XV, XVI and XVII
- Land Act 1996 — ss 127–129
- Constitution — ss 59, 155
Before relying on anything here, read the current text of the Land Act 1996 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.