CIV 1495 of 2026 – Justice Gething Annotation “COV 52/98 Vol.2 p.93”, s.52 PLAISQE & Silas Kierath’s Evidence
🇬🇧 ENGLISH VERSION
1. Purpose of this Note
This note explains why the annotation “COV 52/98 Vol.2 p.93” appears on a Form 26 planning approval and how it should be understood in the context of:
- The statutory scheme governing restrictive covenants; and
- The evidence of Silas Kierath (Cottage & Engineering Surveys, email dated 7 December 2020).
It is published for transparency in relation to CIV 1495 of 2026 before Justice Gething.
2. The Statutory Scheme
Under Western Australian land law, a restrictive covenant is created by a registered instrument, not by a planning form:
- Form 26 is a planning approval document.
- It does not create, amend, or formally record a covenant.
- A covenant such as COV 52/98 Vol.2 p.93 must originate from a separate registered dealing.
Therefore, any covenant notation on Form 26 cannot be a creation event.
3. The Annotation Anomaly
Justice Gething queried why the covenant reference appears on Form 26 when:
- Form 26 is not the statutory vehicle for a s.52 PLAISQE covenant; and
- The covenant already exists elsewhere in the land register.
4. Silas Kierath’s Evidence (7 December 2020)
Silas Kierath wrote:
“Our understanding is that this is a notation by the titles office on the form that was made at registration and probably relates to an amendment made by them on the form to correct an error.”
This supports the following conclusions:
- The notation was not added by the surveyor.
- It was not added by the applicant.
- It was added by a Titles Office officer at registration.
- The purpose was an administrative correction of an error, not the creation of a covenant.
5. Legal Conclusion
The presence of “COV 52/98 Vol.2 p.93” on Form 26 is best understood as:
- An administrative correction by the Titles Office recognising an existing covenant; and
- Not a legal act of creating that covenant via Form 26.
Thus, the annotation is evidence of the covenant’s existence, not its creation, and directly answers the concern raised by Justice Gething.
🇨🇳 中文版本(简体)
1. 本说明的目的
本说明解释为何 “COV 52/98 Vol.2 p.93” 会出现在 Form 26 规划批准表格上,并说明其与:
- 限制性契约的法律制度(登记程序),以及
- Silas Kierath 于 2020 年 12 月 7 日的电邮说明
有何关系。本说明与 CIV 1495 of 2026(Gething 法官)相关。
2. 法律制度
在西澳土地法下,限制性契约必须通过登记的法律文书创建,而不是通过规划表格:
- Form 26 只是规划批准文件;
- 它并不能创建、修改或正式登记契约;
- COV 52/98 Vol.2 p.93 必须源自独立的登记文书。
因此,Form 26 上的契约注释不可能是创建行为。
3. 注释的“异常”
Gething 法官质疑,为何契约编号会出现在 Form 26 上,因为:
- Form 26 并不是 s.52 PLAISQE 契约的法定载体;
- 该契约本身已经在土地登记册中存在。
4. Silas Kierath 的证据(2020 年 12 月 7 日)
Silas 写道:
“我们理解这是地契办公室在登记时作出的注释,可能是为了纠正表格中的错误。”
这说明:
- 注释并非由测量师添加;
- 也不是由申请人添加;
- 而是由地契办公室工作人员在登记时添加;
- 目的只是进行行政更正,而非创建契约。
5. 结论
Form 26 上出现 “COV 52/98 Vol.2 p.93” 最合理的理解是:
- 这是地契办公室为反映既有契约而作出的行政性更正;而
- 并不是通过 Form 26 创建该契约的法律行为。
换言之,该注释证明的是契约的存在,而不是其创建过程,并可直接回应 Gething 法官的疑问。
🇲🇾 VERSI BAHASA MELAYU
1. Tujuan Nota Ini
Nota ini menerangkan mengapa anotasi “COV 52/98 Vol.2 p.93” muncul pada Borang 26 (kelulusan perancangan) dan bagaimana ia perlu difahami dalam konteks:
- Skim perundangan berkenaan covenant; dan
- Keterangan Silas Kierath (emel bertarikh 7 Disember 2020).
2. Skim Perundangan
Di bawah undang‑undang tanah Australia Barat, covenant diwujudkan melalui instrumen berdaftar, bukan melalui borang perancangan:
- Borang 26 ialah dokumen kelulusan perancangan;
- Ia tidak mencipta, meminda atau secara rasmi merekodkan covenant;
- Covenant COV 52/98 Vol.2 p.93 mesti datang daripada instrumen berasingan yang didaftarkan.
Oleh itu, sebarang anotasi covenant pada Borang 26 bukan tindakan penciptaan.
3. Anomali Anotasi
Hakim Gething mempersoalkan mengapa rujukan covenant muncul pada Borang 26 sedangkan:
- Borang 26 bukan instrumen statutori bagi covenant di bawah s.52 PLAISQE; dan
- Covenant tersebut sudah pun wujud dalam daftar tanah.
4. Bukti Silas Kierath (7 Disember 2020)
Silas menulis:
“Kami faham bahawa anotasi ini dibuat oleh pejabat titles semasa pendaftaran, mungkin untuk membetulkan ralat pada borang.”
Ini menunjukkan bahawa:
- Anotasi itu bukan ditambah oleh juruukur;
- Bukan ditambah oleh pemohon;
- Ia ditambah oleh pegawai pejabat titles semasa pendaftaran;
- Tujuannya ialah pembetulan pentadbiran, bukan penciptaan covenant.
5. Kesimpulan
Kehadiran “COV 52/98 Vol.2 p.93” pada Borang 26 patut difahami sebagai:
- Satu pembetulan pentadbiran oleh pejabat titles yang mengiktiraf covenant sedia ada; dan
- Bukan tindakan undang‑undang untuk mencipta covenant melalui Borang 26.
Dengan itu, anotasi tersebut adalah bukti kewujudan covenant, bukan bukti penciptaannya, dan menjawab persoalan yang dibangkitkan oleh Hakim Gething.
file:///C:/Users/nnchi/OneDrive/Desktop/CURRENT%20FOLDERS/DESKTOP-180326/ADDENDUM-GEETHNG%20230226/GETHING/SCWA-CIV1109OF2026-POST%20LEAVE%20OS%20TO%20BE%20FILED/SCWA-DOCS-S.6(1)VPRA-270126/WALRC-PROJECT91-RC.pdf
ReplyDelete2. CREATION OF RESTRICTIVE COVENANTS
ReplyDelete(a) Ensuring that the burden of a restrictive covenant runs with the land
2.3 At common law the burden of a covenant does not run with freehold land so as to bind
it in the hands of a person other than the original owner, that is, it does not run to a successor
in title of the original owner. However, in equity a restrictive covenant is enforceable against
all successors in title to the land whether or not they have notice of the covenant, except in the
case of a purchaser for value of the legal estate without notice of the covenant. Under the
Torrens system notification of the covenant on the register provides notice to every
prospective acquirer of an interest in the land. The burden of the covenant runs with the land
and is enforceable against successors in title if the following conditions exist -
* there is land for the benefit of which the covenant is given, that is, there must
be both burdened and benefited land and the covenant must touch and concern
the benefited land;3
3
If the covenant is annexed only to the whole of the land it is not enforceable unless it "touches and
concerns" the whole as a whole: In re Ballard's Conveyance [1937] 1 Ch 473. In this case, the land to
which the benefit of the covenant was annexed was about 1,700 acres and the covenant was annexed to
the whole only and not to each and every part. It restricted the user of the adjoining 18 acres to dwelling
houses. While a breach of the covenant could affect a part of the 1,700 acres in the vicinity of the
Mr. Silas Kierath
ReplyDeleteCOTTAGE ^ ENGINEERING SURVEYS
87-89 Guthrie Street, Osborne Park, WA 6017
Postal: P.O. Box 1611 Osborne Park Business Centre WA 6917
Ph: (08) 9446 7361
silas@cottage.com.au
http://www.cottage.com.au
Ms. Erica FINCHAM of AFCA
Ms. Vikki Mc Roberts for the Commissioner of Titles at Landgate;
The Chief Executive Officer of the City of Swan
RE: MY QUERY ON THE ANNOTATIONS "COV52/98; VOL2; P.93" ON FORM 26 APPROVAL OF S.P. BY WAPC
DATED 28.4.1998 TO COTTAGE & ENGINEERING SURVEYS AS THE SURVEYOR AS PER YOUR REPLY
LETTER
I refer to your email reply to me dated 7.12.2020 at 11:53 AM requesting me to state (YOUR REQUEST IN RED
FONT) the exact issues of my request from you (YOUR REPLY). I would like to respond to YOUR REQUEST IN RED
FONT as follows:
20/01/2026, 08:35 Gmail - 383 Victoria Road Malaga - Query
https://mail.google.com/mail/u/0/?ik=d601a2a766&view=pt&search=all&permthid=thread-f:1685486803528496924&simpl=msg-f:168548680352… 2/36
1) At line 21 of your reply immediately below YOUR REQUEST IN RED FONT, you have stated the following: (the
ReplyDeleteLine 21 of Your Reply):
"I have also checked up regarding the notation on the Form 26 “Cov 52/1998 Vol 2 p93” and our understanding is that
this is a notation by the titles office on the form that was made at registration and probably relates to an amendment
made by them on the form to correct an error."
2) From the Line 21 of Your Reply, the issue of YOUR REQUEST IN RED FONT is now clear (the Exact Issue of My
Request as Stated by COTTAGE);
3) The Exact Issue of My Request as stated by COTTAGE implies the following points:
3.1) COTTAGE did reasonably make the survey of the Quasi Easement Rights referred to as the S.52PLAISQE for
the Victoria Road Lunch Bar for the twenty Units of the original land Lot 12;
NO we did not.
Based on the diagram 95718 and the strata plan 34739 only and no other records:
We did a subdivision on Lot 12 which subdivided the lot into 2 Green Title Lots (Lots 15 & 16 on
Diagram 95718)
There is no indication on the Diagram or the Strata plan as per the copies from Landgate of any
interests between Lots 15 & 16
3.2) COTTAGE is reasonably aware of the following facts as indicated in line 23, 24, 25 and 26 of Your Reply (Line
23, 24 and 25: Original Land Lot 12 became two Strata Title: SP:34659 & 34739) which is stated thus in Your Reply:
Lot 12 was subdivided into 2 green title lots on Diagram 95718 in what appears to be an essentially concurrent
process with the Strata subdivision.
Lot 12 therefore no longer exists and the strata was created over lot 16 on Diagram 95718 not over lot 12
Lot 15 which is the other lot created from lot 12 on Diagram 95718 was Strata Titled under Strata Plan 34739
(this also appears to have occurred essentially concurrently)
We are aware of this from the public record based on the Strata Plans and the Registration dates of the
ReplyDeleterelevant plans and diagrams based on Landgate Plans and records.
As per previous as we have no in house records on this we do not know what exact sequence happened in the
subdivision/s and when the relevant applications were made or even which ones we were involved in beyond
the actual plans.
3.3) COTTAGE is reasonably aware that the original owner of Lot 12 St. Marks used the WAPC Planning Approval for
Lunch Bar dated 19.12.1997 as attached to confer it on Unit 1/383 Victoria Road Malaga WA 6090 as the dominant
tenement and binding the S.52PLAISQE on all the twenty subdivided units of the original Land Lot 12 aka 383 Victoria
Road (the Binding Land Covenants)..
NO
As the surveyor on the subdivision and strata we would have NO interest in what the uses for the
relevant units in the development were beyond the fact that they were in some way commercial.
The use on the lots is not referred to in the Strata plan or the Diagram and so is of no relevance to the
surveyor,
We have no reason to believe the surveyor would have been reasonably aware of this at the time of
subdivision as it had no bearing on his work
3.5) COTTAGE is reasonably aware that the ANNOTATIONS: COV:52 VOL.2 P.93 is made either by the Land Titles
Office and/or the City of Swan after Form 24 was submitted by COTTAGE together with the Survey Plans etc.
(COTTAGE AWARE THAT ANNOTATIONS BY LANDGATE OR LOCAL GOVERNMENT);
20/01/2026, 08:35 Gmail - 383 Victoria Road Malaga - Query
https://mail.google.com/mail/u/0/?ik=d601a2a766&view=pt&search=all&permthid=thread-f:1685486803528496924&simpl=msg-f:168548680352… 3/36
Yes and No
As per the previous email : "I have also checked up regarding the notation on the Form 26 “Cov 52/1998
Vol 2 p93” and our understanding is that this is a notation by the titles office on the form that was made
at registration and probably relates to an amendment made by them on the form to correct an error."
I do not know if we would have know about this at the time and as per my statement, this is our
understanding of the note on the document only. This would be verified by Landgate.
I am also not sure what relevance a comment/notation on a form has.
3.6) COTTAGE is reasonably aware that at the time of making the Survey for and on behalf of St. Marks on or before
9.3.1998 that the Signage is up at the site of dominant tenement i.e. unit 1/383 Victoria Road Malaga WA 6090 on or
after the 8the day of December, 1997 when buildings works was being constructed to change Unit 1/383 from a
Showroom to a Lunch Bar specific to Unit 1/3383 and not to Unit 10/383 which is one of the Servant Lands following
the anticipated approval for the Victoria Road Lunch Bar on 19.12.1997 as per the attached document (the Approval for Victoria Road Lunch Bar)
NO
ReplyDeleteAs I have no record beyond that of public record I have no knowledge of what the surveyor know at the
time of survey.
As per the response to Item 3.3 the survey would have no interest in the use of the relevant lots as they
are not relevant to the surveyors work.
3.7). COTTAGE is reasonably aware that St. Marks after developing Unit 1/383 from a Showroom to a Lunch Bar is
likely to sell it to the highest bidder and it happens that the buyers were Mr. and Mrs. Fillipous on 4.8.1998 who are
the predecessors-in-title to the Claimants who are the Purchaser Nicholas Ni Kok Chin and Mr. Paul Chung Kiong on
23.2.2000, the latter as its current registered owner. (COTTAGE AWARE THE PENDING DIVESTMENT OF
S.52PLAISQE);
NO
Cottage has no interest in the disposal / sale of the lots after the strata is registered
We have no interest in whether the lots are to be sold , rented or occupied by the developer as it again
has not bearing on the work carried out by the surveyor.
As per items 3.3 & 3.6 the surveyor has no interest in the proposed use of any of the units beyond the
fact they are commercial.
We are not aware of any “Quasi Easement” between Lots 15 & 16 as per Item 3.1
As per previous we have no records on the project and nothing has been supplied or appears in
the documents we have looked at that would support this suggestion.
3.8) COTTAGE is also reasonably aware that St. Marks had caused developer Aliena Homes to alter Unit 1/383
Victoria Road, Malaga from a Show Room into the Lunch Bar thereby making itself the owner of the exclusive land
rights known as the s.52PLAISQE using s.52 of the Property Law Act, 1969 WA: such works were to begin on
8.12.1997 when it displayed the signage issued by the City of Swan after St Marks had made its application for Lunch
Bar Approval for all the twenty units of Lot 12 on 15.10.1997 but not for the single unit of Unit 1/383 with the
anticipated approval that was later approved by the WAPC on 19.12.1997 (COTTAGE AWARE THAT ST MARKS
CAUSED ALIENA HOMES TO CONVERT UNIT 1/38 TO LUNCH BAR).
NO
As per items 3.3, 3.6 & 3.7 the surveyor has no interest in the use of the units as it has no bearing on
the work carried out by him.
As per 3.1 we have no reason to believe we surveyed or created any Quasi Easement , Implied easement etc between Lots 15 & 16
Cheers
NICHOLAS NI KOK CHIN as PURCHASER AND PAUL CHUNG KIONG CHIN AS REGISTERED OWNER OF UNIT
1/383 VICTORIA ROAD, MALAGA WA 6090.
---------- Forwarded message ----------
ReplyDeleteFrom: Silas
To: "'Nicholas N Chin'"
Cc:
Bcc:
Date: Mon, 7 Dec 2020 11:51:24 +0800
Subject: RE: FW: New enquiry from Nicholas Ni via Yellow Pages
Nicholas
Despite several people here reading you email and investigating what we can on the property despite having no in
house records of this file we are unclear what you are seeking from us. As per previous email I cannot find any
records for the subdivisions that relate to the property in question. We simply don’t keep records relating to projects
going back that far.
Can you please state clearly what it is you are requesting from us giving consideration to the below
comments and our stated position with regards to existing records.
With respect to the Form 26 for Strata Plan 34659, the process of strata subdivision (at the time) as it applied to this
circumstance was as follows:
Surveyors would carry out the survey work for the strata and create the strata plan.
This was carried out once the construction work was completed to around lock up.
Surveyor would submit a Form 24 application to WAPC
This would include
the proposed strata plan
The council development / planning approval/s
Other relevant document if necessary
WAPC would provide either a conditional or unconditional approval of the application
Conditional / Unconditional typically depended on the status of construction and relevant council sign
offs
On application for Certification the WAPC would produce / endorse the Form 26
On receipt of the Form 26 from WAPC plus the council certificate Form 7 plan would be submitted to Landgate
(DOLA at the time)
Plan submission would include:
Strata Plan
Form 5 (surveyors certificate)
Form 5 (surveyors certificate)
Form 7(Council certificate)
Form 26 (WAPC approval)
Landgate would then examine the plan and titles office would register the strata and issue the new titles.
So the original of the Form 26 should be with Landgate as it would have been lodged with them. The issuing of the
form 26 would have been by WAPC as they issued the Form 26 up until they delegated this responsibility to councils
around 2007.
You would have to contact WAPC if you are looking for what was submitted to them as the Form 24 Application as
while we would have kept records / copies of this at the time we no longer have any.
I have also checked up regarding the notation on the Form 26 “Cov 52/1998 Vol 2 p93” and our understanding is that
this is a notation by the titles office on the form that was made at registration and probably relates to an amendment
made by them on the form to correct an error.
Please note:
20/01/2026, 08:35 Gmail - 383 Victoria Road Malaga - Query
https://mail.google.com/mail/u/0/?ik=d601a2a766&view=pt&search=all&permthid=thread-f:1685486803528496924&simpl=msg-f:16854868035… 10/36
Lot 12 was subdivided into 2 green title lots on Diagram 95718 in what appears to be an essentially concurrent
process with the Strata subdivision.
Lot 12 therefore no longer exists and the strata was created over lot 16 on Diagram 95718 not over lot 12
Lot 15 which is the other lot created from lot 12 on Diagram 95718 was Strata Titled under Strata Plan 34739
(this also appears to have occurred essentially concurrently)
As we don’t deal on the actual registrations or the development applications and simply do the lot subdivision as
instructed we would not be able to comment on the reason for the structure, titles or interests between the lots
especially as we no longer have any of the records or correspondence which relates to this.
Silas Kierath
Subdivisions Manager