Annexure A – Applicant’s Combined Submission

PART 1 — INTRODUCTION

1.1 This submission consolidates the Applicant’s position regarding:

• the legal status of the S.52 Property Law Act 1969 (WA) implied quasi‑easement (“S.52PLAISQE”);
• the Applicant’s claim that the loss of that right constitutes accidental loss or damage to the “Building” insured under the CHU/QBE Commercial Strata Insurance Policy;
• the Applicant’s claim that the conveyancers involved in the 2000 transfer breached their professional duties, enlivening the Law Mutual (WA) professional indemnity policy;
• the Applicant’s application under s.6(1) VPRA seeking leave to proceed on the basis that earlier administrative and judicial decisions were affected by jurisdictional error.

1.2 This document is structured to assist the Court by presenting:

• the facts,
• the relevant legislation,
• the policy wording,
• the professional duties,
• the interaction between these elements, and
• the relief sought.

1.3 The Applicant does not seek to re‑litigate matters already determined, but rather to demonstrate that the legal characterisation of the S.52PLAISQE was never properly considered in any prior forum.

PART 2 — DETAILED LEGISLATIVE ANALYSIS

2.1 Overview

This section sets out the legislative framework governing implied easements and restrictive covenants under the Property Law Act 1969 (WA), Transfer of Land Act 1893 (WA), Land Administration Act 1997 (WA), and Strata Titles Act 1985 (WA).

2.2 Property Law Act 1969 (WA), Part V

Section 52 codifies the principles of Wheeldon v Burrows and Tulk v Moxhay, recognising implied easements and implied restrictive covenants arising upon subdivision.

2.3 Transfer of Land Act 1893 (WA)

Section 68(1A) provides that land is subject to easements acquired by enjoyment or user. Section 131 confirms that implied covenants bind successors unless expressly negatived.

2.4 Land Administration Act 1997 (WA)

Section 15 provides that covenants over agreement land run with the land and bind successors.

2.5 Strata Titles Act 1985 (WA)

The STA defines “building” broadly and does not displace implied easements or covenants arising under the PLA or TLA.

2.6 Common Law Principles

Wheeldon v Burrows and Tulk v Moxhay support the existence of implied rights arising from continuous and apparent use.

2.7 Conclusion

The combined effect of these statutes is that the S.52PLAISQE, if established, is a legal incident of the land.

PART 3 — DETAILED POLICY WORDING ANALYSIS (CHU/QBE)

3.1 The CHU/QBE policy defines “Building” broadly, incorporating WA legislation.

3.2 The policy includes fixtures, structural improvements, and any items defined as buildings by relevant legislation.

3.3 WA law treats implied easements and restrictive covenants as legal incidents of land.

3.4 Therefore, the S.52PLAISQE falls within the policy definition of “Building”.

3.5 Its destruction constitutes accidental loss or damage.

PART 4 — DETAILED PROFESSIONAL NEGLIGENCE ANALYSIS

4.1 Conveyancers owe duties to detect, protect, and advise on easements, covenants, and use restrictions.

4.2 The Applicant submits that the conveyancers failed to:

• identify the S.52PLAISQE,
• detect the absence of registration,
• advise on risks,
• protect the right.

4.3 This failure caused the Applicant’s loss if the insurer denies indemnity.

PART 5 — CHRONOLOGY + EVIDENCE INDEX

5.1 A detailed chronology is provided, covering:

• 1997 WAPC approval,
• 1998 strata creation,
• 2000 purchase,
• 2016 loss of S.52PLAISQE,
• 2016–2021 insurance and administrative proceedings.

5.2 The Evidence Index lists title documents, planning approvals, insurance documents, court decisions, and legislative materials.

PART 6 — INTEGRATED LEGAL ARGUMENT

6.1 The legislative framework, policy wording, professional duties, and factual chronology support the Applicant’s position.

PART 7 — FINAL RELIEF SOUGHT

7.1 The Applicant seeks declarations that:

• the S.52PLAISQE existed,
• it was a legal incident of the land,
• it fell within the definition of “Building”,
• its loss constitutes accidental loss or damage,
• the conveyancers breached their duties.

7.2 The Applicant seeks leave under s.6(1) VPRA.

7.3 The Applicant seeks further directions as the Court considers appropriate.