Property Exchange Australia Limited v Registrar-General of New South Wales

1. [1]

   By a summons filed on 10 October 2025, the plaintiff, Property Exchange Australia Limited (often referred to by the four letter acronym (FLA) PEXA), seeks judicial review of a decision of the first defendant, the Registrar-General of New South Wales (the RG). The RG filed a submitting appearance in accordance with the “Hardiman principle”. [1] In these circumstances, the Attorney General for New South Wales was joined as the second defendant in order to act as the contradictor in the proceedings.

2. [2]

   As the decision sought to be impugned concerns a fee payable by PEXA in relation to the national e-conveyancing scheme implemented cooperatively by all the States and Territories of the Commonwealth, it is necessary to understand relevant aspects of the factual background and functioning of that scheme as well as the specific circumstances relating to the impugned decision of the RG.

Factual background and circumstances

1. [3]

   As early as July 2008, agreement was reached at the Council of Australian Governments (often referred to using the FLA COAG) that there should be a new single national electronic system for the settlement of real property transactions in all the States and Territories. Subsequently, various steps were taken to implement such an agreement including, in 2010:

   1. (1)

      COAG approving the formation of a Business Regulation and Competition Working Group E-Conveyancing Sub Group to oversee the implementation of national e-conveyancing; and

   2. (2)

      New South Wales, Victoria and Queensland establishing a public company limited by guarantee, National E-Conveyancing Development Ltd (NECDL) to develop the single electronic system by which national electronic conveying would be effected. Western Australia became a member of NECDL in October 2010.

2. [4]

   In April 2011, NECDL was converted into a public company limited by shares and a number of banks became shareholders, in addition to the State shareholders. The object of the company was described as being:

3. [5]

   In late 2011, an intergovernmental agreement, known as the Electronic Conveyancing National Law Agreement 2011, came into effect. Eventually, each of the States and Territories became a party to this agreement. The objective of the agreement was set out in cl 4.1 as:

4. [6]

   As to the national operation of electronic conveyancing, clause 5.1 of the agreement provided:

5. [7]

   Under cl 5.2.2, the parties to the agreement agreed to “work collaboratively to ensure that business practices are consistent where possible”.

6. [8]

   Part 6 of the agreement provided for the establishment of the Australian Registrars’ National E-Conveyancing Council, often referred to by the multi-letter acronym (MLA) ARNECC. ARNECC is comprised of the Registrar of each participating jurisdiction or his or her nominee. The RG was and is a member of ARNECC. ARNECC’s principal functions include:

   1. (1)

      ensuring “that, as far as is practicable, business practices with respect to National E-Conveyancing are consistent when implemented in each jurisdiction”: cl 7.1.2; and

   2. (2)

      developing one nationally agreed set of Operating Requirements and Participation Rules for electronic lodgment network operators and any jurisdiction specific provisions: cl 7.2.

7. [9]

   Parts 8, 9 and 10 of the agreement dealt with how national e-conveyancing would be facilitated by an Electronic Conveyancing National Law to be implemented by way of a cooperative legislative scheme between the States and Territories.

8. [10]

   In 2012, the New South Wales Parliament enacted the Electronic Conveyancing (Adoption of National Law) Act 2012 (NSW) (the Adopting Act). By virtue of s 4(c) of the Adopting Act, the Electronic Conveyancing National Law (the National Law or ECNL), set out in the Appendix to the Act, applies as a law of New South Wales “as if it were an Act”. The other States and Territories have enacted legislation effectively adopting the ECNL as legislation of their respective State or Territory. [2]

9. [11]

   The object of the National Law is set out in s 5 as follows:

10. [12]

    The National Law regulates, inter alia, the operation of electronic lodgment networks (ELNs). In s 13 of the National Law, an ELN is defined as “an electronic system that enables the lodging of registry instruments and other documents in electronic form for the purposes of the land titles legislation”. Under s 15, the RG may approve a person as an Electronic Lodgment Network Operator (often referred to by the FLA ELNO) to provide and operate an ELN. PEXA is an approved ELNO in New South Wales and in other States and Territories.

11. [13]

    Section 18 of the National Law provides that a person approved as an ELNO under s 15 must comply with the “operating requirements”. The “operating requirements” are defined in s 3(1) to mean “the requirements determined under section 22” by the RG.

12. [14]

    In conferring power on the RG to determine the “operating requirements”, s 22(1) of the National Law provides generally that the operating requirements are to relate to the operation of an ELNO and the provision and operation by an ELNO of an ELN. More specifically, s 22(2) identifies “without limitation” various subject matters which may be dealt with in the operating requirements including fees and charges, under s 22(2)(c4).

13. [15]

    Under s 24(2) of the National Law, when determining operating requirements the RG “must have regard to the desirability of maintaining consistency with any model provisions”. The expression “model provisions” is relevantly defined in s 24(1) as including “model operating requirements … from time to time developed and published by ARNECC”.

14. [16]

    Ten versions of the operating requirements have been determined for New South Wales by the RG under s 22 of the National Law since it was enacted. Version 1 of the NSW Operating Requirements was made by the RG on 6 September 2013. Subsequently, there have been Versions 2, 3, 4, 5, 6, 6.1, 6.2, 7 and 7.1.

15. [17]

    On 3 March 2014, NECDL changed its name to Property Exchange Australia Limited, which remains the plaintiff’s name.

16. [18]

    As NECDL and later as PEXA, the company developed the system for national electronic conveyancing which included most pertinently the National Electronic Conveyancing Data Standard (NECDS) and other related intellectual property. In simple terms, the NECDS refers to a bundle of intellectual property rights which provide a standardised format for the exchange of data between ELNOs and land registries so as to facilitate electronic lodgment of documents and communication.

17. [19]

    In November 2018, PEXA was privatised pursuant to an “Agreement for the Sale and Purchase of Shares of Property Exchange Australia Ltd”. [3]

18. [20]

    In the latter part of 2018, the relevant Minister requested, under s 12A of the Independent Pricing and Regulatory Tribunal Act 1992 (NSW) (the IPART Act), that the Independent Pricing and Regulatory Tribunal of New South Wales, often referred to by the MLA, IPART, to investigate and report on an appropriate pricing regulation framework for the provision of electronic conveyancing services in New South Wales.

19. [21]

    In December 2018, in accordance with s 13 of the IPART Act, IPART consulted on the draft Terms of Reference before finalising them in January 2019. The finalised form of the Terms of Reference included:

20. [22]

    In the Executive Summary of its November 2019 Report, the Tribunal noted that in carrying out its task it was required to consider:

21. [23]

    IPART’s findings in its November 2019 Report included that in 2019:

22. [24]

    This recommendation effectively proposed to continue the regime set out in cl 5.4.3 of Version 5 of the Operating Requirements determined by the RG under s 22 of the National Law which were effective from February 2019. It appears that this recommendation was adopted so that the terms of cl 5.4.3 in Version 6 of the Operating Requirements, effective from April 2021, were the same as in Version 5. In both versions, cl 5.4.3 was as follows:

23. [25]

    In June 2022, the relevant Minister referred to IPART for investigation interoperability pricing for ELNOs, under s 12A of the IPART Act. This became referred to as “the first task”.

24. [26]

    By letter dated 23 December 2022, the Minister amended IPART’s terms of reference to include a second task as follows:

25. [27]

    IPART was required by the terms of reference in relation to the second task to consult with key stakeholders including ARNECC, ELNOs, ELNO subscriber representatives and the Australian Competition and Consumer Commission, among others.

26. [28]

    One of the reasons stated in the letter of 23 December 2022 for amending the terms of reference to include the second task was that:

27. [29]

    IPART’s final report on the first task, “Interoperability Pricing for Electronic Network Operators”, was delivered in June 2023. Interoperability and the context in which it is proposed to take place were described by IPART in its Report of June 2023 dealing with the first task as follows:

28. [30]

    Footnote (b) on page 1 in the IPART Report of June 2023 noted that:

29. [31]

    That report also referred to the second task and stated:

30. [32]

    PEXA continued to develop, own and manage the NECDS until 2024. In about April 2024, ARNECC determined that responsibility for, and control of, the NECDS should be transferred to an independent entity controlled by the States and Territories. Relevant to this, in 2022, NECDS Ltd had been registered as a not for profit, unlisted public company limited by guarantee with the members including New South Wales, Queensland, South Australia, and Victoria. It can be noted that the RG has been a director of this company since June 2022.

31. [33]

    On 1 June 2024, the NSW Productivity and Equality Commission published its market study on eConveyancing. In preparing this report, the Commission consulted with numerous stakeholders including: ARNECC and each of the relevant State and Territory registrars; PEXA and Sympli; IPART; the ACCC; relevant professional bodies; and, the Australian Treasury, among other interested parties. Under the heading “Findings and recommendations”, the Commission’s report included the following, noting that the incumbent ELNO referred to is PEXA:

32. [34]

    The recommendations of the Commission included:

33. [35]

    As to the ability of ARNECC to act as the industry regulator for national e-conveyancing, the Commission said:

34. [36]

    More specifically in relation to PEXA’s market share, the Commission found:

35. [37]

    As to PEXA’s prices and profitability, the Commission findings included:

36. [38]

    As to the effect of then current price control arrangements, the Commission found:

37. [39]

    On 30 August 2024 and consistently with Recommendation 7 of the NSW Productivity and Equality Commission, all rights and interests in the NECDS and other related intellectual property were transferred from PEXA to NECDS Ltd. [4]

38. [40]

    NECDS Ltd’s constitution states (CB765):

39. [41]

    On 2 September 2024, NECDS Ltd published licence terms governing access to, and use of, the NECDS by ELNOs. Those terms provide for payment of an “annual fee” and a “transaction fee”. PEXA accepted those licence terms by signing a document dated 29 August 2024. Although there appears to be a discrepancy between when the terms of the licence were finalised and when PEXA accepted those terms, the parties did not contend that anything turned on this discrepancy and I have proceeded on the basis that PEXA was bound by the terms of the license from 2 September 2024, given the terms of cl 3(b) and the definition of “commencement day” in the licence terms.

40. [42]

    The fees payable by a licensee under the licence terms were set out in cl 9 which relevantly included in relation to the 2025-26 financial year the following:

41. [43]

    The term “Transaction” was defined in cl 23.1 of the license terms as “each Discharge/Release, Transfer and Mortgage Registry Instrument that is lodged and processed by a Registrar via the ELN”.

42. [44]

    It can be seen from cl 9.3(d) that the amount of the transaction fee for the 2025-26 financial year had not been determined at the time the licence terms were published.

43. [45]

    On 31 March 2025 and under s 22 of the National Law, the RG determined the current operating requirements, described as “Operating Requirements (Version 7.1)” (the Operating Requirements). In doing so, she expressly noted that she adopted the Model Operating Requirements Version 7.1 developed and approved by ARNECC.

44. [46]

    The obligation of any ELNO, including PEXA, to comply with the Operating Requirements under s 18 of the National Law, is reinforced by cl 3 of the Operating Requirements which relevantly provides:

45. [47]

    The general obligations with which an ELNO must comply are set out in cl 5.3 and include that the ELNO must:

46. [48]

    Clause 5.4 of the Operating Requirements concerns “ELNO Service Fees” and includes the provision which in effect requires the RG’s approval to be obtained for any changes to the fees an ELNO such as PEXA may charge. It is this requirement which gives rise to the present proceedings.

47. [49]

    Clause 10.3 of the Operating Requirements requires that an ELN use the NECDS to present electronic registry instruments and other electronic documents for lodgment, and for system messages exchanged with a Land Registry. The NECDS is defined in cl 2.1.2 of the Operating Requirements as “the data standard specified by the Registrar and known as the National Electronic Conveyancing Data Standard, as amended from time to time.” Consequently, PEXA as an ELNO of an ELN was required to obtain a licence from NECDS Ltd to access the NECDS.

48. [50]

    On 11 April 2025, NECDS Ltd and PEXA had discussions concerning the proposal by NECDS Ltd to charge a $1 transaction fee for every transaction on or after 1 July 2025. The discussions included whether that fee should rather be applied only to documents in respect of which a lodgment fee is collected and, therefore, not in relation to documents such as a notice of sale, notice of acquisition, form 24 part A or B, form 25, nominations or nomination withdrawals.

49. [51]

    On 9 May 2025, PEXA wrote a letter responding to an earlier enquiry from ARNECC as to whether PEXA “still requested” the Registrars’ approval of costs pass-throughs under cl 5.4.4 of the Model Operating Requirements. PEXA confirmed its request for approval to “increase its fees to reflect additional costs as a result of the NECDS Ltd … transaction fee and State Revenue Office (SRO) charges”. PEXA noted that these “cost pass-throughs will be in addition to a price increase for PEXA’s ELNO Service Fees across all instruments, reflecting the permitted annual increase in CPI to March 2025 [of 2.4%]”.

50. [52]

    In particular, PEXA said it proposed to recover the NECDS transaction fee through a levy, on every transaction where lodgment fees are collected. The proposed levy was $1 (excluding GST) for single-participant transactions and $0.50 (excluding GST) for multi-participant transactions, or if NECDS Ltd fixed a different amount as the fee, that amount. The letter continued:

51. [53]

    PEXA noted that its proposed approach to SRO charges would result in a pricing schedule which would differ between States and Territories.

52. [54]

    Finally, PEXA sought that the Registrars’ decision concerning, inter alia, “pass-through [of] both the NECDS transaction fee and the SRO charges” be made at the ARNECC meeting on 15 May 2026.

53. [55]

    By letter dated 23 May 2025, NECDS Ltd informed PEXA that it had determined that the transaction fee for the financial year 2025/26 under cl 9.3(d) of the licence terms would be $1 (plus GST) for each relevant transaction lodged on or after 1 July 2025. In that letter, NECDS Ltd described what it had considered in determining the fee to be charged as referred to in cl 9.3(g) of the licence terms in the following terms:

54. [56]

    On 30 May 2025, ARNECC responded by letter to PEXA’s request for approval to pass-through the NECDS Ltd transaction fee and SRO charges. In that letter, ARNECC set out its understanding of PEXA’s request and provided its response in terms which relevantly included the following:

55. [57]

    On 19 June 2025, the RG wrote to PEXA referring to PEXA’s letter of 9 May 2025 to ARNECC and ARNECC’s response of 30 May 2025, which was expressly noted to have included that:

56. [58]

    The substance of the RG’s response was set out in par 3 of that letter:

57. [59]

    The letter then continued:

58. [60]

    PEXA responded to the RG’s letter of 19 June 2025, by letter dated 4 July 2025. In that letter, PEXA expressed disappointment with the RG’s approach and contended that:

59. [61]

    PEXA also set out in that letter its understanding of the different purposes of the NECDS licence fee of $1,500 per month and the NECDS transaction fee of $1 per transaction. In addition, PEXA explained its view that it was inappropriate to delay increasing the ELNO Service Fee to pass through the NECDS transaction fee pending the IPART pricing review. PEXA characterised that fee as “an additional recurrent charge by a government entity” for which cl 5.4.4 of the Operating Requirements provided a specific mechanism for dealing with. In addition it was said that the delay involved in a review of pricing by IPART would create

60. [62]

    PEXA’s view was also that the IPART pricing review was an inappropriate venue for consideration of the specific NECDS transaction fee, particularly since that was already clearly covered in the existing Model Operating Requirements (MOR) arrangements.

61. [63]

    PEXA then set out in some detail its understanding of the proper regulatory approach and the negotiations it had had around the transfer of the NECDS from PEXA to NECDS Ltd, and the accompanying licence agreement. PEXA’s letter then said:

62. [64]

    PEXA concluded by reiterating that it considered that the NECDS transaction fee fell squarely within cl 5.4.4(c) and 5.4.4(d) of the Operating Requirements and drawing attention to the fact that under cl 5.4.4:

63. [65]

    It was then said:

64. [66]

    On 7 July 2025, the RG wrote to IPART noting that its review of ELNO service fees, the second task, commenced that month and provided further information about current arrangements for ELNOs’ access under licence to the NECDS. This included that the transfer of the NECDS to NECDS Ltd had occurred and that ELNOs had accepted NECDS Ltd’s licence terms. In addition, the RG informed IPART as follows:

65. [67]

    The RG responded to PEXA by letter dated 11 July 2025 clarifying that PEXA’s request remained under review, pending completion of the IPART review and reiterating her view that it was “reasonable and appropriate for [her] to be properly informed by the IPART review before approving any new costs to Subscribers”. More specifically, the RG responded as follows:

66. [68]

    The RG also put PEXA on notice of potential consequences if it increased ELNO service fees without her approval, as possibly foreshadowed in the last part of PEXA’s letter of 4 July 2025.

67. [69]

    From late June to August 2025, the Registrar’s or their representatives of the States and Territories other than New South Wales gave their approvals for PEXA to pass-through the NECDS transaction fee, mostly with conditions which were not of any relevance to the present case.

68. [70]

    On 25 July 2025, PEXA’s solicitors wrote to the RG effectively setting out contentions as to why it was unreasonable for the RG to withhold approval as sought by PEXA and requesting confirmation of approval by 1 August 2025. Should the RG continue to withhold approval, PEXA’s solicitors indicated that, “our client may regrettably have to seek a determination of this issue”.

69. [71]

    On 1 August 2025, solicitors then acting for the RG wrote to PEXA’s solicitors indicating that the RG had considered the matters raised on behalf of PEXA and she maintained her position that PEXA’s request remained under review, pending completion of the IPART review. The letter then set out contentions as to: how the regulatory framework established by the Operating Requirements operated in the present context; why the RG’s approach was reasonable; and, why there was no unreasonable delay.

70. [72]

    On 19 August 2025, IPART called for submissions from all interested stakeholders on the regulation of ELNO service fees. It was said that conditions have changed since ELNO service fees were last reviewed in 2019 and IPART’s current review would investigate changes in input costs and explore what has changed in the market since its last review including the level and nature of competition. The input sought was described as follows:

71. [73]

    IPART anticipated that its final report on task two would be submitted by 30 June 2026.

72. [74]

    On 10 October 2025, PEXA filed a summons in this Court seeking judicial review of “the decision of the Registrar-General on 11 July 2025 not to approve the request from PEXA for a change to its ‘Pricing Table’ under Operating Requirement 5.4.4 in order to pass through the NECDS fee to subscribers”.

73. [75]

    On 16 November 2025, PEXA provided its revised submission to IPART in relation to the second task. This submission included information as to PEXA’s market share and the volume of transactions in the Australian e-conveyancing market.

74. [76]

    Accepting this information as reliable, I found that the market share of the only other ELNO in operation in Australia, Sympli, was less than 1% in the 2024-25 financial year. Thus, PEXA’s market share was over 99% of e-conveyancing transactions in Australia. In New South Wales, the only State where Sympli currently offers services, it performed 1.1% of e-conveyancing transactions in 2024-25, and thus for New South Wales, PEXA’s market share was 98.9%.

75. [77]

    In the 2024-25 financial year, the actual number of e-conveyancing transactions in Australia was 3,945,675 composed of:

76. [78]

    This was consistent with PEXA’s affidavit evidence that it presently bills more than 10,000 transactions per day.

77. [79]

    PEXA’s affidavit evidence, which was unchallenged and is to be accepted, was also that New South Wales accounts for approximately 30% of relevant transactions Australia wide which attract a lodgment fee. Since PEXA’s market share is 98.9% in New South Wales, it follows that PEXA provided in the order of 1.2 million e-conveyancing transaction services in the 2024-25 financial year in this State.

78. [80]

    Assuming no significant annual increase in the 2025-26 financial year compared to the 2024-25 financial year in the number of PEXA’s transactions in New South Wales and if each of those transaction services attracted the $1 NECDS Ltd transaction fee, PEXA would be required to pay approximately $1.2 million in respect of New South Wales transactions in the 2025-26 financial year. [5] By way of contrast, the NECDS Ltd annual fee which PEXA and Sympli would both be required to pay for the financial year 2025-26 is $1,500 per month or $18,000 per annum.

79. [81]

    On 22 January 2026, IPART wrote to the RG seeking an extension of time in which to deliver its final report on the second task, from 30 June to 30 September 2026.

80. [82]

    On 28 January 2026, the RG wrote to IPART approving the extension of time.

81. [83]

    PEXA has published its fees and charges as of 18 May 2026, for New South Wales and other States and Territories. These published fees and charges indicate that differential pricing for jurisdictions has been introduced to the extent that for certain e-conveyancing transaction services with the same description, the fee charged to subscribers in relation to New South Wales transactions is $1.10 (or $1 excluding GST) less than the fee to subscribers in other States and Territories.

PEXA’s summons

1. [84]

   In its summons filed on 10 October 2025, PEXA sought relief against the RG as set out in the following prayers for relief:

2. [85]

   The decision to be reviewed was described in par 2 of the Details of Decision in the summons as:

3. [86]

   The grounds of review set out in the summons are:

The Attorney General’s response to summons

1. [87]

   In the Attorney General’s response to the summons filed on 28 November 2025, it was contended in effect that no decision withholding approval had in fact been made by the RG, on the basis that PEXA’s request “remains under review” pending completion of the IPART review and the RG obtaining further information. On that basis, it was effectively contended that there was no relevant decision which could be the subject of the declaration in prayer 1 or which could be set aside by way of an order in the nature of certiorari as sought in prayer 2. In addition, the Attorney General took issue with pertinent matters raised in ground 1 (a) to (e) and grounds 2 and 3 as the basis for PEXA’s entitlement to relief as claimed.

2. [88]

   It is convenient to deal with each of grounds 1, 2 and 3 in order but before doing so it is necessary to consider the issue of whether there was any relevant decision of the RG amenable to an order in the nature of certiorari.

Is there a relevant decision?

1. [89]

   The Attorney General contended that a decision whether or not to approve PEXA’s request to pass through the transaction fee had not yet been made because the RG deferred making such a decision pending her obtaining information from the IPART review of e-conveyancing pricing. Thus, it was said there was no decision that met the description in par 2 of the Details of Decision in the summons, namely the decision “not to approve the request from PEXA for a change to its ‘Pricing Table’ under Operating Requirement 5.4.4 in order to pass through the NECDS fee to subscribers”.

2. [90]

   In this regard, it can be noted that prayers for relief 1 and 2 in the summons identify the impugned decision as the RG’s “decision … to withhold … approval of the [PEXA] request … to pass through the [NECDS fee] to subscribers” which is somewhat different from the description of the impugned decision in par 2 of the Details of Decision.

3. [91]

   In my view, the wording of par 2 of the Details of Decision should not be treated as a matter of strict pleading which would preclude PEXA from identifying the relevant decision of the RG as a decision to withhold approval of PEXA’s request to permit it to pass through the NECDS transaction fee. It is clear that the decision of the RG sought to be impugned is the decision communicated by the RG’s letters of 19 June 2025 and 11 July 2025 that “PEXA’s request [for approval] remains under review and [the RG] anticipate[d] arriving at a decision [whether or not to approve] once all the relevant information has been obtained”. From this description of what occurred, it follows that the RG made a decision not to approve or disapprove the request at that time and to keep the request for approval under review for the period necessary to obtain all the relevant information. During the period after the request was received and considered and while a decision has been made not to grant an approval pending the obtaining of all relevant information, there has been in effect a withholding of approval. That withholding was the result of the decision to keep the request for approval under review. In that sense, the RG’s decision communicated by her letters of 19 June 2025 and 11 July 2025 amounted to a decision to withhold approval until at least all relevant information was obtained. Furthermore, since the request for approval only related to fees to be charged in the 2025-26 financial year and “all the relevant information” referred to by the RG was anticipated to come from the IPART review which was not due to be the subject of a report before the end of June 2026 (which has subsequently been extended to September 2026), the effect of the decision to keep the request for approval to pass through fees under review was to withhold approval for the whole of the period in respect of which approval was sought.

4. [92]

   In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335-339; [1990] HCA 33 (Bond), Mason CJ considered which decisions were amenable to review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Although Bond concerned the meaning of “decision” in that particular statute, the reasoning relating to what types of decisions might properly be the subject of judicial review remains instructive. Mason CJ explained (Bond at 337) that a reviewable decision in the context of judicial review of administrative actions “will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration”. These characteristics provide appropriate criteria for identifying judicially reviewable decisions in the context of proceedings such as the present.

5. [93]

   In this case, the substantive issue related to whether the decision to withhold approval was “not unreasonable” on the proper construction of the Operating Requirements. In this context, a decision which has the effect of withholding approval for the entire period relevant to the requested approval will, in a practical sense, be an operative and determinative decision in relation to the factual issue to be determined. This is so, even if there is the possibility that at some future time a decision not to withhold approval may be made.

6. [94]

   Understood in this way, there was a relevant decision to withhold approval in the present case which could be the subject of relief as sought in prayers 1 and 2.

7. [95]

   Furthermore, I note that the Attorney General did not submit that, if the RG’s decision to defer making a decision whether or not to approve PEXA’s request did amount to a decision to withhold approval, it was not amenable to an order in the nature of certiorari. Consequently, that issue was not in dispute in the proceedings and the parties did not make any submissions on that topic. Both parties’ submissions proceeded on the effective basis that, if the errors identified by PEXA in its grounds were established, an order in the nature of certiorari might be made in respect of the RG’s decision.

8. [96]

   Given the parties’ positions, having regard to the fact that, when making such a decision, the RG was a statutory office holder exercising a function under the Operating Requirements, which are a “statutory instrument” as defined in cl 12(1) of Sch 1 to the National Law, and given relevant principles such as those referred to in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 and Agricultural Societies Council of NSW v Christie [2016] NSWCA 331; 340 ALR 560, I proceeded on the basis that a decision by the RG to withhold approval of PEXA’s request for a time would be amenable to an order in the nature of certiorari if it was affected by error as contended.

Ground 1 – Unreasonableness

1. [97]

   The first ground of review sought to impugn the RG’s decision to withhold approval of PEXA’s request by keeping it under review pending completion of the IPART review on two alternate bases relating to the reasonableness of the decision said to amount to jurisdictional error:

   1. (1)

      The RG proceeded on an incorrect understanding of the law as a result of misconstruing the phrase “unreasonably withheld” in cl 5.4.4 of the Operating Requirements; or

   2. (2)

      Alternatively, the RG’s decision was “legally unreasonable”.

2. [98]

   There were then set out in the summons, subgrounds (a) to (e) with subground (a) having three subsubgrounds (i) to (iii). PEXA’s written submissions took a somewhat different approach referring to seven reasons why, on the proper construction of cl 5.4.4 of the Operating Requirements and in the particular circumstances of this case, the RG has unreasonably withheld her approval. I shall identify where the subgrounds and the seven reasons overlap.

3. [99]

   PEXA relied on the stipulation in cl 5.4.4 of the Operating Requirements that the approval for a change to its pricing table “may not be unreasonably withheld” by the RG. It was submitted that having regard to the text of the clause and its context, including the National Law, the phrase “unreasonably withheld” should be construed in such a way that the grounds of refusal should relate to, and be consistent with, the purpose of the regime within which the request was made. Furthermore, it was said that construction of the phrase “unreasonably withheld” should not start from an assumption that automatically incorporates the high threshold required to establish the ground of judicial review known as “legal unreasonableness”.

4. [100]

   It was then contended that there were seven reasons or factors which indicated that the RG had misconstrued the phrase, in effect, because her decision to withhold consent for a period demonstrated unreasonableness.

5. [101]

   First, PEXA submitted that the NECDS Ltd transaction fee was precisely the kind of fee which cl 5.4.4 contemplated would be approved, relying on subcll (c) and (d) and the reasons for the inclusion in particular of subcl (d) in cl 5.4.4. PEXA also referred to its understanding of discussions with various participants concerning these clauses. This first reason was also subground (d).

6. [102]

   Secondly, it was said that ARNECC’s Guidance Notes for an earlier version of the Model Operating Requirements stated that the purpose of cl 5.4 was “to ensure that any fees [an ELNO charges] to a Subscriber for access to and use of the ELN are reasonable and [the ELNO is] not exploiting any lack of market competition for the services [it provides]” and passing through the NECDS Ltd transaction fee did not amount to exploitation of a lack of market competition.

7. [103]

   Thirdly, PEXA submitted that the bases on which approval can reasonably be “withheld” must be determined in the context of the National Law and the object of the national e-conveyancing scheme which was said to be to promote efficiency in e-conveyancing, to minimise inconsistencies between jurisdictions and to ensure that business practices are consistent where possible. The RG’s withholding of approval, when registrars in the other States and Territories have given approval, albeit with conditions which have no relevance for present purposes, leads to significant inconsistency in the national scheme and will be unreasonable unless there is a good reason for the inconsistency. In these circumstances, it was then submitted that awaiting the outcome of the IPART review without a cogent explanation of why that is required meant that the withholding of approval is “plainly unreasonable”.

8. [104]

   Fourthly, it was submitted that ARNECC approved PEXA’s request in principle and, while it was noted that each registrar was required to make his or her own decision, it was not contemplated that such a determination would be divorced from consideration of the desirability of a nationally consistent approach.

9. [105]

   Fifthly, PEXA contended that its proposed change to its Pricing Table was reasonable as it was only a pass-through and thus did not exceed the actual cost of the transaction fee.

10. [106]

    Sixthly, it was submitted that withholding approval until IPART reported meant that a decision on whether or not the change would be approved might be delayed for an indefinite time, given that the reporting date had already been extended from June 2026 to September 2026. In addition, it was noted that during this period PEXA could not pass-through the transaction fee in New South Wales whereas it could elsewhere. Furthermore, it was said to be unclear whether PEXA could seek retrospectively to pass-through the transaction fee. This temporal aspect of the withholding was said to compound the unreasonableness of the decision.

11. [107]

    Seventhly, it was submitted that cost and expense would be incurred in developing PEXA’s platform to accommodate different fees for subscribers in New South Wales compared to other States and Territories. Differential pricing was said not to be consistent with the approach to pricing inherent in the National Law.

12. [108]

    In the alternative, PEXA submitted that the expression “may not be unreasonably withheld” imports the usually implied condition that the exercise of the RG’s power under cl 5.4.4 to withhold approval must not be legally unreasonable in the sense of lacking sufficient rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power, citing Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [11]. It was then submitted that the same reasons relied on in relation to the other alternative construction of cl 5.4.4 also supported the conclusion that the RG’s decision was legally unreasonable. In addition, it was submitted that the RG’s decision was legally unreasonable because she failed to give adequate weight to a factor of great importance, namely that the National Law and Operating Requirements are intended to promote efficiency throughout Australia in property conveyancing by providing a common legal framework in which inconsistencies are minimised and business practices are consistent to the extent possible, and gave excessive weight to a factor of no great importance, being the IPART review, which should not cause inconsistency in the national scheme. This was said to be a factor of no great importance also having regard to the timing of the IPART review, as well as the scope of the review in relation to PEXA’s request which related to the 2025-26 financial year.

13. [109]

    In response, the Attorney General submitted that any withholding of approval by the RG was not unreasonable within the meaning of cl 5.4.4.

14. [110]

    More specifically it was contended that cl 5.4.4(c) and (d) merely identify types of fees that an ELNO may seek to pass through and did not indicate anything as to the reasonableness of a decision whether or not to withhold approval in respect of them. It was also said that PEXA’s discussions with other participants could not bind the RG.

15. [111]

    It was submitted that cl 5.4.4 did not specify circumstances which would render a decision to withhold reasonable or unreasonable and thus approval might reasonably be withheld on any ground considered appropriate, “except perhaps if the ground were impliedly outside the ‘terms, scope and purpose of the statute conferring the power’”. It was said in effect that concern as to the overall level of PEXA’s fees and the costs of administering the NECDS no longer borne by PEXA were not outside the scope of the Operating Requirement or the National Law, especially having regard to the terms of s 22 of the National Law. It was also submitted that the RG would not exceed the bounds of reasonableness by seeking input from the independent pricing regulator on that matter.

16. [112]

    The Attorney General also submitted that national consistency and the objects of the National Law do not assist PEXA’s argument. A common legal framework was said not to imply or mandate a common pricing framework and the independence of the registrar of each jurisdiction was emphasised. In addition, it was contended that the desirability of national consistency related to the content of the operating requirements determined under s 22 of the National Law rather than decisions made by individual registrars under those requirements. Vesting of the rule making power in individual registrars was said to mean that jurisdictional variation was accommodated by the scheme.

17. [113]

    As to the role and opinions of ARNECC and the 2011 intergovernmental agreement, it was submitted that these did not determine whether the RG’s particular decision in the present case was unreasonable. In addition, the Attorney General contended that withholding approval would not create “significant inconsistency”. It was noted that pricing already varied between States and Territories because of different charges by State Revenue Offices. It was noted that, as a practical matter, PEXA had already accommodated differential pricing in that PEXA’s pricing tables differed between New South Wales and elsewhere from 18 May 2026 by the amount of the NECDS Ltd transaction fee.

18. [114]

    The Attorney General also submitted that “unreasonably withheld” in cl 5.4.4 of the Operating Requirements should not be construed by reference to the use of that expression in private contractual contexts. This was said to arise because the RG is a statutory officeholder exercising a statutory mandate to administer operating requirements made under the National Law and factors that may constrain the reasonableness of a private party’s decision could not be assumed similarly to constrain such a public official’s exercise of statutory responsibilities. Rather, it was said that these words should be construed as importing “the undemanding public law standard of legal reasonableness” and the use of the words “unreasonably withheld” in cl 5.4.4 did not displace the presumption that this was the appropriate standard.

19. [115]

    It was then contended that the standard of legal reasonableness was satisfied in the present case in that awaiting the outcome of the IPART review was not so lacking in rational foundation or evident justification as to be outside “the range of possible lawful outcomes as an exercise of ... power”. In addition, it was submitted that Mason J’s observation in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 (Peko) at 41 that “a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance” did not assist PEXA in the present case, since there is nothing in the statutory framework to suggest that uniform pricing is a relevant consideration, much less one of “great importance”, or that the IPART review of ELNO service fees that will address the NECDS fee is “of no great importance”.

20. [116]

    In the alternative, the Attorney General submitted that even if the phrase “unreasonably withheld” imports a more rigorous standard than legal unreasonableness, the RG’s decision met that standard because in substance the grounds for withholding consent were honestly held and related to, and were consistent with, the purpose of the regime within which the request was made.

21. [117]

    The proper construction of the phrase “which may not be unreasonably withheld” in cl 5.4.4 of the Operating Requirements is governed, in the first place, by specific provisions in Sch 1 to the National Law.

22. [118]

    By virtue of s 4 and cl 37 of Sch 1 of the National Law, the principles of interpretation elaborated in Sch 1 apply not only to the Law but also to statutory instruments made under the law. Section 4 of the Law simply states that “Schedule 1 applies in relation to this Law”. Schedule 1 is headed “Miscellaneous provisions relating to interpretation” and includes cl 37, which states:

23. [119]

    In cl 12(1) of Sch 1 to the National Law, “statutory instrument” is defined for the purposes of the Law as meaning:

24. [120]

    In light of those definitions, the operating requirements made under s 22 of the National Law, including the New South Wales Operating Requirements Version 7.1, are “statutory instruments” for the purposes of the Law.

25. [121]

    Accordingly, the principles of interpretation set out in Sch 1 to the National Law apply when construing cl 5.4.4 of the Operating Requirements.

26. [122]

    Schedule 1 to the National Law most pertinently includes, in addition to cll 4, 12 and 37 which have already been referred to, the following:

27. [123]

    In addition, in light of the fact that the Operating Requirements are made under statute by a public official holding a statutory office, the general principles relating to statutory construction should, in my view, be taken to apply to the Operating Requirements either directly or, at least, by analogy, and to the extent that they are not inconsistent with Sch 1 to the National Law.

28. [124]

    These general principles of statutory construction were recently summarised by the High Court in Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35, in which Gageler CJ, Gordon, Jagot and Beech-Jones JJ relevantly said at [4] to [6]:

29. [125]

    More specifically, in the present case the phrase required to be construed includes the word “unreasonably” which expressly imports a requirement that a standard of reasonableness be applied. Generally, where a statutory power is conferred there is a common law presumption of statutory interpretation that the power is subject to the condition that it can only be exercised within the bounds of “legal reasonableness”. In other words, a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action will be invalid: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 (SZVFW) at [53] (Gageler CJ) and see also [51] and Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 (Quin) at 36 (Brennan J); [1990] HCA 21.

30. [126]

    Gageler CJ went on to say in SZVFW at [53] that:

31. [127]

    These provisions and principles are to be applied when construing the expression “unreasonably withheld” in cl 5.4.4 of the Operating Requirements which relevantly provides:

32. [128]

    Turning first to the text of the expression, “which may not be unreasonably withheld”, the use of the word “may” indicates that a power has been conferred on the RG to grant or withhold approval which may be exercised or not exercised, at discretion, as provided in cl 14 of Sch 1 to the National Law. Clause 22 of Sch 1 establishes that the function of approving or withholding approval may be exercised, from time to time as occasion requires. Although it can be said that the Operating Requirements do not bind the RG, they do confer that power on her but any exercise of the power will only be valid if exercised in accordance with the Operating Requirements. Accordingly, cl 5.4.4 should be construed as permitting the RG to withhold approval for a period but reserving the power to make a further decision whether or not to approve at a later time.

33. [129]

    Furthermore, the text of cl 5.4.4 establishes that the exercise of this discretion to approve or withhold approval is conditioned on any withholding being not unreasonable or, expressed positively, reasonable. This requirement of reasonableness is capable of being construed as either:

    1. (1)

       requiring that any withholding be not unreasonable, or reasonable, on the ordinary meaning of those terms, in all the circumstances of the case; or

    2. (2)

       referring to the notion of legal unreasonableness, as explained for example in SZVFW and Quin.

34. [130]

    The context for the words “may not be unreasonably withheld” is provided by cl 5.4 of the Operating Requirements which deals with the pricing of ELNO’s services to customers, known as subscribers, and includes provisions which in effect strictly regulate the prices which ELNOs may charge their customers and requires an ELNO to obtain the RG’s approval for any changes to the fees an ELNO may charge beyond a certain level. That clause relevantly includes:

35. [131]

    The Explanatory Notes to the Model Operating Requirement Version 7.1 published by ARNECC, which have been adopted under s 22 of the National Law as the current NSW Operating Requirements consistently with s 24(2), explained that “the intention of … cl 5.4.3 is to restrict ELNO Service Fee increases until there is effective competition in the market.” Even though this Explanatory Note does not fall within any of the extrinsic material as defined in cl 8(1) of Sch 1 of the National Law, this note provides factual context which aids in understanding the purpose of relevant provisions of the Operating Requirements. The explanation given is also consistent with the fact that in New South Wales PEXA has approximately 98.9% market share in the market for e-conveyancing services provided by ELNOs. In the circumstances, cl 5.4.2 requires an ELNO such as PEXA, each financial year, to prepare and publish its Pricing Table for New South Wales.

36. [132]

    Clause 5.4.3 involves a form of price control whereby an ELNO may not charge prices to customers for specified years if the prices are increased compared to the previous year by more than the increase in the consumer price index over the same period. This form of price control was adopted in earlier versions of cl 5.4.3, some of which have been quoted above at [24]. By the present cl 5.4.3, that form of price control has been effectively extended for another year by the current Operating Requirements.

37. [133]

    The words “which may not be unreasonably withheld” are found in the chapeau to cl 5.4.4 of the Operating Requirements in the context of an ELNO seeking the RG’s approval of proposed changes to the ELNO’s Pricing Table required to be prepared and published each financial year under cl 5.4.2.

38. [134]

    A new par (d) was added to cl 5.4.4 in the current Version 7.1 of the Operating Requirements. This addition was explained in the ARNECC Explanatory Notes as follows:

39. [135]

    It was not in dispute that the NECDS Ltd transaction fee fell within cl 5.4.4(d). Thus, it can be seen that cl 5.4.4 of the Operating Requirements was intended to allow an ELNO to seek the RG’s approval to change its Pricing Table in circumstances where the NECDS Ltd annual and transaction fees were imposed on an ELNO in order to operate an ELN.

40. [136]

    All of this provides the specific context in which cl 5.4.4 establishes that the RG’s approval of a request by an ELNO to change its fees as a result of a fee, such as the NECDS Ltd transaction fee, being imposed on the ELNO “may not be unreasonably withheld”.

41. [137]

    The purpose of cl 5.4 including the regulation of ELNO service fees charged to customers because of the absence of effective competition in the market for ELNO services tends, in my view, in favour of construing “not unreasonably” as invoking a higher standard than would be required if “unreasonably” referred only to legal unreasonableness, in the sense explained above. The text and context of the expression “may not be unreasonably withheld” together with the general purpose of cl 5.4 and the specific inclusion of cl 5.4.4(d) suggest that any withholding of approval by the RG must be not unreasonable having regard to the relevant factual circumstances, the purpose of cl 5.4 and the broader scope and purpose of the Operating Requirements, as well as the object, scope and purpose of the National Law, under which the Operating Requirements were made.

42. [138]

    Further context is provided by s 27 of the National Law. Subsection (1) of s 27 establishes that, notwithstanding the obligation on an ELNO to comply with the operating requirements, including in the present case cl 5.4, by virtue of s 18 of the National Law and cl 3 of the Operating Requirements, the RG may “waive compliance with all or any provisions of the operating requirements … if the Registrar is satisfied that granting the waiver is reasonable in all the circumstances”. Section 27(2) lists examples of types of waivers which illustrate the extensive width of this power as follows:

43. [139]

    Section 27(1) imposes a standard of “reasonableness” in respect of any decision to grant a waiver under the section. Having regard to the types of waiver in s 27(2) and the nature of the obligations that may be waived, it appears that the intention was to impose a standard of “reasonableness” in that provision which is higher than the standard of being not legally unreasonable, as explained above. Given that both s 27(1) and cl 5.4.4 involve decisions not to require strict compliance with aspects of the Operating Requirements, it would be appropriate, in my view, to construe the reasonableness standard invoked by the wording of both s 27(1) of the National Law and cl 5.4.4 of the Operating Requirements in the same way.

44. [140]

    This construction of “not unreasonably” in cl 5.4.4 as involving a higher standard of reasonableness than is involved in legal unreasonableness is also supported by a consideration of the object of the National Law as required by cl 7 of Sch 1 to the National Law read together with cl 37. Those clauses in effect mean that an interpretation of a provision of the Operating Requirements, including cl 5.4.4, which best achieves the object of the Law is to be preferred to any other interpretation.

45. [141]

    As noted above, the object of the National Law as set out in s 5(1) is “to promote efficiency throughout Australia in property conveyancing by providing a common legal framework” that meets certain criteria. There are two elements to this object: promoting efficiency; and, a common legal frame work for achieving that efficiency.

46. [142]

    Thus, a construction of the Operating Requirements that assist to achieve the object of promoting “efficiency” is to be preferred to any other construction. The use of “efficiency” in s 5(1), given the factual circumstances in which national e-conveyancing has been developed, set out in some detail above, suggests that the National Law is intended to promote not only technical efficiency in relation to electronic filing of conveyancing documents but also cost efficiency for consumers of e-conveyancing services as well as the efficient deployment of resources in the wider national economy as a result of competitive pricing for such services. As is permitted by cl 8(1) of Sch 1 to the National Law, this approach is confirmed by the Second Reading Speech for the Electronic Conveyancing (Adoption of National Law) Bill 2012 which included the following statements indicative of the purpose of the legislation in relation to efficiency: [6]

47. [143]

    A construction of “not unreasonably withheld” in cl 5.4.4 that involves a standard of reasonableness higher than legal reasonableness is more appropriate in order to give effect to the efficiency object of the National Law. Such a construction would focus attention on the reasonableness of the withholding in light of relevant circumstances relating, inter alia, to the promotion of efficiency in the provision of e-conveyancing services in respect of technical, cost and pricing efficiency in relevant market conditions and not just require consideration of the lower standard namely whether no reasonable repository of the power could have taken the impugned decision.

48. [144]

    Furthermore, consideration of the object of providing a “common legal framework” specified in s 5(1) of the National Law does not lead to a different conclusion. A “common legal framework” refers to the fact that the national e-conveyancing system is to be implemented through a co-operative scheme whereby the States and Territories each adopt the Appendix to New South Wales’ Electronic Conveyancing (Adoption of National Law) Act 2012 as the common applicable legislation in each jurisdiction. This common legal framework is required by s 5(1) of the National Law to be such as to enable electronic lodgment of documents in each participating jurisdiction and not to derogate from the fundamental principles of the Torrens system. The requirement for a common legal framework does not suggest that the reasonableness of a withholding of approval under cl 5.4.4 should be judged by reference to the lower standard of legal unreasonableness rather than what is reasonable in all the relevant circumstances and having regard to the scope and purpose of the Operating Requirements and the object, scope and purpose of the National Law.

49. [145]

    Finally, there did not appear to be any other considerations which weighed substantially in favour of construing “not unreasonably” in cl 5.4.4 as involving only the lower standard of legal unreasonableness. Indeed, the present case is, in my view, an example of the situation referred to by Gageler CJ at [53] in SZVFW where the relevant provision indicates that the repository of the power must meet a higher standard than the standard of legal unreasonableness.

50. [146]

    Considering all those matters, the words “which may not be unreasonably withheld” in cl 5.4.4 are to be construed as referring to a standard of reasonableness judged in all the relevant circumstances having regard to the grounds of refusal and the extent to which they are rationally related to, and consistent with, the scope and purpose of the Operating Requirements, particularly cl 5.4, and the object, scope and purpose of the National Law.

51. [147]

    In light of that conclusion, the way in which PEXA put its case requires me now to consider whether the RG’s decision to withhold approval of PEXA’s request to pass through the NECDS Ltd transaction fee to customers displayed such unreasonableness that it amounted to the approval being “unreasonably withheld” on the proper construction of those words in cl 5.4.4. At times, the submissions in this regard verged on seeking merits review rather than judicial review. Nonetheless, for the sake of completeness I have considered all the submissions.

52. [148]

    The RG’s grounds for withholding approval of PEXA’s request were initially set out in her letter of 19 June 2025 and subsequently in her letter of 11 July 2025, relevant portions of which have been quoted at some length in [57]-[59] and [67]-[68] above respectively. PEXA did not otherwise seek a statement of reasons. Accordingly, the RG’s grounds should not be treated as a formal, definitive statement of her position. The substance of her grounds for withholding approval can be summarised as follows:

    1. (1)

       On the general level, the RG was of the view that she required further information before arriving at a decision whether or not to approve the request and that information would be provided by IPART as a result of its scheduled comprehensive review of the service fees of PEXA and other ELNOs to be undertaken from 1 July 2025. Since the IPART review was imminent and would cover the components of ELNOs’ fees that may be attributable to the NECDS Ltd licence fees, including the transaction fee, it was reasonable for the decision whether to approve the passing through of the new NECDS Ltd transaction fee as sought by PEXA to be made only after IPART completed its review and reported.

    2. (2)

       On the more specific level, the effect of PEXA’s request was that the total cost of the new NECDS Ltd transaction fee should be borne by customers notwithstanding that PEXA would receive a benefit as a result of paying that fee, namely management and curation of the NECDS. Previously, PEXA bore the cost of management and curation of the NECDS itself and this was already factored into its pricing tables which had been previously applied under cl 5.4 of the operating requirements and which could be increased by up to the increase in the CPI each financial year, under cl 5.4.3. The RG considered it was relevant to value the benefit PEXA received as a result of paying the NECDS Ltd licence fee when making a decision regarding allocation of costs in that regard by approving PEXA’s request. It was noted that this was a matter which was to be specifically considered by IPART.

    3. (3)

       As to the impact of deferring a decision on whether or not to approve the pass-through of the NECDS Ltd transaction fee, if IPART concluded that a cost previously incurred by ELNOs (such as the NECDS Ltd transaction fee) could reasonably be passed on to customers, the RG was of the view that IPART would be able to recommend, where appropriate, an approach to allow for retrospective recovery of those costs. In this way, concerns about the time it may take IPART to complete its review could be appropriately addressed.

53. [149]

    In addition, the RG expressly took into account a number of additional considerations which included, most pertinently, that other jurisdictions may decide to approve PEXA’s request and, if this occurred, it could result in inconsistent PEXA service fees between jurisdictions. The RG stated in that regard that “while national consistency is a relevant consideration, it does not supersede my duty as Registrar to exercise my powers under the eConveyancing legal framework in NSW objectively and independently”.

54. [150]

    I shall address in turn PEXA’s seven reasons why it should be concluded that the RG’s withholding of approval was unreasonable on the proper construction of cl 5.4.4, identifying where relevant the corresponding subground in ground 1 in the summons. As I understood it this ground of judicial review in substance involved the contention that it was not open to the RG to conclude that, on the proper construction of cl 5.4.4, it was not unreasonable to withhold approval of PEXA’s request in the circumstances.

55. [151]

    PEXA’s first reason, which was also subground (d), turned on the contention that the NECDS Ltd transaction fee was precisely the kind of fee referred to in cl 5.4.4(c) and (d) which ARNECC contemplated would be approved under cl 5.4.4. While it can be accepted that the NECDS Ltd transaction fee fell within cl 5.4.4(d), it does not follow that approval to pass that fee to customers must be given by the RG in every case that such a fee is imposed. Clause 5.4.4(c) and (d) only specify circumstances in which approval for a change in an ELNO’s Pricing Table can be sought. Those subclauses do not establish that approval must be given if those circumstances arise and a request is made. Indeed, the chapeau to cl 5.4.4 expressly contemplates that approval may be withheld where reasonable. Accordingly, the fact that the NECDS Ltd transaction fee fell within, and was intended to fall within, cl 5.4.4(d) and arguably mighty fall within cl 5.4.4(c) does not render the RG’s withholding of approval for the passing through of that fee to customers unreasonable, on that ground alone or in combination with other factors. Furthermore, the fact that there were discussions between PEXA and persons other than the RG which were said to relate to whether PEXA could pass the NECDS Ltd transaction fee through to customers does not, by itself or in combination with other factors, render the RG’s withholding of consent in the circumstances unreasonable in any relevant sense.

56. [152]

    The second reason which was said to establish that the withholding of approval was unreasonable was based on:

    1. (1)

       the statement in the ARNECC’s Guidance Notes for an earlier version of the Model Operating Requirements that the purpose of cl 5.4 was “to ensure that any fees [an ELNO charges] to a Subscriber for access to and use of the ELN are reasonable and [the ELNO is] not exploiting any lack of market competition for the services [it provides]”; and

    2. (2)

       the assertion that “passing through of a transaction fee charged by a government entity to use a data standard that PEXA must use in order to operate does not amount to any exploitation of a lack of market competition”.

57. [153]

    The evidence in this matter indicated that PEXA’s market share in New South Wales was in the order of 98.9% and the absence of interoperability inhibited the ability of customers to use an ELNO other than PEXA. Further, In June 2024, the NSW Productivity and Equality Commission had found that:

    1. (1)

       the current market for eConveyancing was “not effectively competitive, as demonstrated by high levels of market concentration and the incumbent Electronic Lodgment Network Operator [PEXA] earning high profits”;

    2. (2)

       the current price control arrangements had allowed PEXA to set price levels that did “not reflect their underlying costs” and included “no requirement to improve efficiency or pass on the benefits of cost efficiencies to consumers”; and

    3. (3)

       “the significant productivity benefits … have likely been captured by ELNOs operating in the market to date [PEXA] in the form of above normal profits”.

58. [154]

    In a competitive market, a transaction fee charged in order to be able to use the required data standard may have to be absorbed, in whole or in part, by an ELNO such as PEXA rather than being passed through to customers. The parties’ evidence in this matter did not address what might occur in that regard in a competitive market and, as a result, I do not accept that it has been established that passing through of a fee such as the NECDS Ltd transaction fee does not amount to or involve “any exploitation of a lack of market competition”. In these circumstances, I reject the argument that the RG’s decision was unreasonable on the basis contended in PEXA’s second reason.

59. [155]

    Furthermore, this consideration of PEXA’s second reason tends to indicate that, far from being unreasonable, the RG’s decision was justified and appropriate. The RG’s grounds for withholding approval at the time included in substance that she wanted to obtain further information concerning, inter alia, pricing and competition in the market for e-conveyancing services, including in relation to whether passing through the NEDCS Ltd transaction fee was justified in a market which was found to be affected by a lack of competition and in which the NSW Productivity and Equality Commission found that PEXA was earning high or above normal profits. Having regard to the circumstances and the purpose of cl 5.4 of the Operating Requirements, this approach by the RG was rational, convincingly explained and gave effect to the purposes of the Operating Requirements and the object of the National Law. In that sense, the decision was also not so unreasonable as to demonstrate error on the part of the RG in relation to the proper construction of the expression “may not be unreasonably withheld”.

60. [156]

    PEXA’s third reason relied on the contention that the national e-conveyancing scheme was intended to operate so as to minimise inconsistencies between jurisdictions. It was submitted that the RG’s withholding of approval in the present case was unreasonable since it caused pricing in New South Wales to be inconsistent with all other jurisdictions since all other registrars had approved PEXA’s request to pass through the NECDS Ltd transaction fee. This reason was also in substance the subject of subground (a) in the summons, although that subground was put on the basis that the RG failed to give adequate weight to those matters.

61. [157]

    I accept that the Electronic Conveyancing National Law Agreement 2011 between the States and Territories included:

    1. (1)

       in cl 5.1 an agreement to:

    2. (2)

       in cl 5.2.2, an agreement to:

    3. (3)

       In cl 7.1.3, an agreement that ARNECC’s functions were to include ensuring:

62. [158]

    In addition, as noted above, the object of the National Law is stated in s 5(1) as being “to promote efficiency throughout Australia in property conveyancing by providing a common legal framework” that enables the lodgment and processing of relevant documents in electronic form without derogation from the fundamental principles of the Torrens system.

63. [159]

    While the 2011 Agreement between the States and Territories clearly stated an objective of achieving consistency in “business practices” under the national e-conveyancing system, in each case quoted above the objective is qualified by words such as “where possible” or “as far as practicable”. Further it is not self-evident that the phrase “business practices” was intended to refer to pricing. Even if that were the case, the continued existence of inconsistency was in effect accepted when the parties agreed to cooperate on implementation and management of the system “to minimise” rather than to eliminate inconsistencies between jurisdictions. It is inherent in this that where inconsistencies are justified in the circumstances, they were intended to be permitted in the national e-conveyancing scheme. Accordingly, it cannot be accepted that any inconsistency in pricing between jurisdictions must involve unreasonableness in the decisions whereby the inconsistency was created.

64. [160]

    Furthermore, the object of the National Law being “to promote efficiency throughout Australia in property conveyancing by providing a common legal framework …” does not establish that pricing for e-conveyancing services must or should be the same across all jurisdictions. As observed above there are two elements to this object: promoting efficiency; and, a common legal framework for achieving that.

65. [161]

    As to the first element, promoting efficiency in the provision of e-conveyancing services, “efficiency” includes technical, cost and pricing efficiency. If different market conditions between jurisdictions would dictate or support different efficient pricing outcomes in various jurisdictions, then this element of the objective would generally require that prices in the different jurisdictions be different.

66. [162]

    As to the “common legal framework”, that expression refers essentially to the framework provided by the National Law adopted as the common legislation for the scheme by each of the States and Territories. The “common legal framework” is also reflected in the operating requirements determined under s 22 for each jurisdiction, since when determining operating requirements, each registrar “must have regard to the desirability of maintaining consistency with any model provisions”, by virtue of s 24(2) of the National Law. The “common legal framework” does not refer to uniform or consistent pricing between jurisdictions.

67. [163]

    Furthermore, each registrar is responsible under s 22(2)(c4) of the National Law for determining operating requirements for that registrar’s jurisdiction including in relation to setting of fees and charges. Conferring that power on each individual registrar is inconsistent with it being an imperative or overriding purpose of the national e-conveyancing scheme that pricing be uniform or consistent across all jurisdictions. Rather it indicates that inconsistent pricing may occur between jurisdictions where that outcome is justified in all the circumstances.

68. [164]

    For these reasons, I do not accept that the national e-conveyancing system was intended to achieve uniform pricing across all jurisdictions or that inconsistent pricing between jurisdictions without more demonstrates or indicates unreasonableness in the decision giving rise to the inconsistency and thus error on the part of the RG in relation to the construction of the expression “may not be unreasonably withheld”.

69. [165]

    As to the contention that the RG failed to give adequate weight to the consideration of pricing consistency across jurisdictions as “a relevant factor of great importance”, the RG did consider this matter. As noted above, the RG was of the view that “while national consistency is a relevant consideration, it does not supersede my duty as Registrar to exercise my powers under the eConveyancing legal framework in NSW objectively and independently”. In light of all the considerations referred to above and the RG’s functions, this consideration was adequate, especially since national consistency in pricing was not an outcome that was mandated under the national e-conveyancing scheme. In fact the national scheme envisaged, as explained above, that inconsistencies between jurisdictions would and could arise.

70. [166]

    Finally, there appears to be a logical flaw underlying PEXA’s argument in relation to the third reason. It does not follow from the fact that, unlike other registrars, the RG has withheld her approval for PEXA’s request and this has led to inconsistent pricing between New South Wales and other jurisdictions, that the RG’s decision was unreasonable because it led to inconsistent pricing. As a matter of logic, it may be that the other registrar’s decisions were unreasonable and the RG’s decision was not. Alternatively, it may be that all the decisions were reasonable in the circumstances relevant to each jurisdiction but, in the RG’s case, her decision was different from that of the others because she had the opportunity to obtain further necessary information from an existing review being undertaken in her State which the other registrars did not.

71. [167]

    For all of these reasons, I do not accept that the fact that the RG’s withholding of approval has led to inconsistent pricing between jurisdictions establishes, or even supports, the conclusion that her decision is unreasonable or so unreasonable as to demonstrate on her part error as to the proper construction of cl 5.4.4, as PEXA effectively contended in its third reason.

72. [168]

    The fourth reason advanced by PEXA was also related to inconsistent pricing between jurisdictions and relied on ARNECC’s agreement in principle with PEXA’s request in ARNECC’s letter of 30 May 2025. This was also the subject of subground (a). While PEXA acknowledged that ARNECC had said that each individual Registrar would make their own determination on the matters relevant to their jurisdiction, it was submitted that it was obvious that ARNECC was not contemplating that the RG would make her own determination divorced from any consideration of the desirability of a nationally consistent approach. In so far as this submission was premised on the proposition that the RG withheld approval “divorced from any consideration of the desirability of a nationally consistent approach”, that premise was factually incorrect. As mentioned above on several occasions, the RG stated in that regard in her letter of 19 June 2025, “while national consistency is a relevant consideration, it does not supersede my duty as Registrar to exercise my powers under the eConveyancing legal framework in NSW objectively and independently”. Accordingly, there was no failure on the RG’s part to consider a relevant matter. In my view, that consideration was adequate given the RG’s other grounds for withholding approval. Furthermore, as explained above, the fact that the RG reached a different conclusion from other registrars and ARNECC does not demonstrate or provide support for the conclusion that the RG misconstrued the words “unreasonably withheld” because her decision was unreasonable, on the proper construction of cl 5.4.4.

73. [169]

    The fifth reason, and PEXA’s subground (e), involved the assertion that “PEXA’s proposed change to its Pricing Table is reasonable as it is a pass through only and does not exceed the actual cost incurred of the NECDS Transaction Fee”. Once again, for a number of reasons, this assertion does not assist to establish that the RG misconstrued the words “unreasonably withheld” by withholding approval in circumstances that rendered the decision unreasonable. First, the fact that a proposal is reasonable does not, as a matter of logic or common sense, justify the conclusion that withholding approval for such a proposal is unreasonable.

74. [170]

    Secondly and in any event, at the factual level, if:

    1. (1)

       PEXA previously bore the costs of curating and maintaining the NECDS which were recoverable in its fees and charges under cl 5.4.3;

    2. (2)

       after PEXA transferred the NECDS to NECDS Ltd, curating and maintenance costs were incurred by NECDS Ltd not PEXA with the result that PEXA’s costs were reduced; and

    3. (3)

       PEXA nevertheless obtained the benefit of curating and maintenance by NECDS Ltd at the cost of the licence fees, including most significantly the NECDS Ltd transaction fee,

    4. (4)

       if PEXA were allowed to pass the transaction fee through to its customers, those customers would be required to pay that additional amount without any reduction in the fees under cl 5.4.3 to reflect the costs of curating and maintenance no longer incurred by PEXA.

75. [171]

    In such a factual situation, the assertion that PEXA’s proposal to pass through the transaction fee was “reasonable” because the pass through does not exceed the actual cost of the transaction fee would be unjustified.

76. [172]

    Thirdly, if as the Productivity and Equality Commission found in 2024, PEXA was able to make “above normal profits” under the current price control arrangements and these arrangements had allowed PEXA to set price levels that did “not reflect their underlying costs” and included “no requirement to improve efficiency or pass on the benefits of cost efficiencies to consumers”, it was reasonable for, if not incumbent on, the RG, as the NSW ELNO services price regulator, to inform herself as to whether it was appropriate for PEXA to be permitted to pass through to customers the NECDS Ltd transaction fee at cost. The RG’s decision to withhold approval in order to have claims such as that made by PEXA properly investigated and reviewed by IPART was not only justified, in the circumstances, but also prudent regulatory conduct. In these circumstances, it was not unjustified or unreasonable for the RG to give weight to the consideration that IPART was conducting a review that would investigate these very matters.

77. [173]

    For all these reasons, I also reject subground (b) that the RG “gave excessive weight to a relevant factor of no great importance, being the fact that [IPART] is conducting a review”.

78. [174]

    PEXA’s sixth reason why the RG’s decision to withhold approval pending obtaining the required information from the IPART review was submitted to be unreasonable was that it involved delay while IPART concluded its review and provided its report and during this period PEXA could not pass through the transaction fee in New South Wales whereas it could elsewhere. In addition, it was said to be unclear whether a pass-through could be recovered retrospectively, if it were subsequently approved. This is also the subject of subground (c).

79. [175]

    It was not the case that the RG did not consider the issue of delay and the potential impact upon PEXA. In substance, the RG considered that if IPART concluded that a cost, such as the NECDS Ltd transaction fee, that had already been incurred by ELNO’s such as PEXA could reasonably be passed on to customers, IPART would be able to recommend, where appropriate, an approach to retrospective recovery of those costs.

80. [176]

    I accept that the issues of delay and potential lost revenue from the pass through of the licence fee might give rise to prejudice to PEXA, but only if PEXA’s request were subsequently and retrospectively approved. Thus, there is no certainty that any such prejudice would actually be suffered. In any event, in the RG’s responses to PEXA she referred to how potential prejudice of this nature could be addressed. One way identified was IPART making recommendations, if appropriate, as to the nature and extent of retrospective recovery. Those recommendations would have the benefit of being based on all the information derived by IPART from its investigation of pricing by PEXA and others and the state of the e-conveyancing market. In my view, the considerations raised by PEXA in relation to delay and potential prejudice did not provide any substantial support for the conclusion that the RG misconstrued the words “unreasonably withheld” and thus withheld her approval unreasonably in all the circumstances, especially since the RG considered and addressed how potential prejudice arising from delay while awaiting the IPART report might be alleviated, if it ever arose.

81. [177]

    The seventh reason relied on by PEXA was that cost and expense would be incurred by PEXA in developing its platform to accommodate different, inconsistent fees for subscribers in New South Wales compared to other States and Territories. While this may be the case, it appears that those costs and expenses have already been incurred since PEXA’s pricing publications said to be effective from 18 May 2026 include differential New South Wales pricing. To the extent that this is prejudice suffered by reason of the RG’s withholding approval, like reason six, it will only be relevant if it is subsequently and retrospectively determined that it is appropriate to approve PEXA’s proposal, which cannot be assumed at this stage. In addition, it can also be noted that some differential pricing between States and Territories already exists because of different SRO charges.

82. [178]

    In summary, none of the reasons relied upon by PEXA to contend that the RG’s decision to withhold approval demonstrated or provided any significant support for the conclusion that she misconstrued the expression “unreasonably withheld”. On the contrary, consideration of those matters confirmed, in my view, that the RG’s grounds for withholding approval of PEXA’s request, which I have summarised above, amounted to reasonable grounds for the decision to withhold approval and, therefore, her approval did not demonstrate a misconstruction of “unreasonably withheld”, on the proper construction of cl 5.4.4. My view was reached having regard, in particular, to:

    1. (1)

       the circumstances set out at some length in the factual background to this judgment;

    2. (2)

       the relevant provisions of the National Law and the Operating Requirements including, in particular, the functions of the RG under the National Law and the Operating Requirements as the price regulator in respect of e-conveyancing services in New South Wales and the statutory office holder charged with applying the National Law and determining and applying the Operating Requirements so as to promote technical efficiency and efficient pricing in relation to the provision of e-conveyancing services in New South Wales;

    3. (3)

       the fact that in performing her functions, the circumstances and the object of the legislation in effect required the RG to bear in mind the interests not only of PEXA and other ELNOs, but also the interests of consumers of e-conveyancing services provided by ELNOs as well as the efficient allocation of resources more generally;

    4. (4)

       the need for relevant information in relation to costs and pricing of e-conveyancing services in New South Wales. This is especially pertinent in light of the Productivity and Equality Commission’s findings in June 2024 concerning PEXA’s prices, costs and profits and the state of the e-conveyancing market, and the fact that such information would be likely available to the RG as a result of the IPART review in relation to the second task. Such information was not then available nor would it be likely to be available otherwise than through the IPART review; and

    5. (5)

       the fact that any potential prejudice to PEXA as a result of the RG withholding approval until the relevant information had been obtained and considered - which prejudice would only arise only if it were subsequently decided that PEXA’s request in respect of the 2025-26 financial year should be approved - is likely to be able to cured adequately by mechanisms which could be recommended by IPART and implemented, if required; and

    6. (6)

       the fact that the RG considered the desirability of consistency in pricing between jurisdictions but in substance concluded that the other matters that she was required to take into account in performing her functions outweighed that consideration.

83. [179]

    The evidence as a whole led me to the conclusion that the grounds for the RG’s decision to withhold approval were, genuinely held, properly supported by the factual circumstances at the time of the decision, consistent with the purpose and scope of the Operating Requirements, gave effect to the object of, and were otherwise consistent with, the National Law, and were not extraneous to or inconsistent with the national e-conveyancing scheme as a whole. Therefore, were it necessary for me to reach a conclusion on the matter, I was satisfied that the RG’s approval was not “unreasonably withheld” on the proper construction of cl 5.4.4 of the Operating Requirements.

84. [180]

    For these reasons, I reject the first ground of review in so far as it was contended that the RG proceeded on an incorrect understanding of the law as a result of misconstruing the phrase “unreasonably withheld” in cl 5.4.4 of the Operating Requirements. Her decision to withhold approval of PEXA’s request was reasonable on the proper construction of that clause and did not demonstrate any legal error in that regard.

85. [181]

    If I am wrong in respect of my conclusion as to the proper construction of the phrase “unreasonably withheld” in cl 5.4.4 set out above and that phrase only imposed a requirement that any withholding of approval not be “legally unreasonable”, I make the following comments. That alternative construction would require PEXA to establish that the decision to withhold approval was one which was so unreasonable that no reasonable repository of the power could have taken the impugned decision. As Allsop CJ observed in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [11], without his Honour attempting to be exhaustive or definitional:

86. [182]

    In the present case, the RG’s decision to withhold approval had a more than sufficient rational foundation or evident and intelligible justification, as explained in her letters to PEXA. In the circumstances, it was in no way plainly unjust, arbitrary, capricious or lacking in common sense, especially having regard to the object, scope and purpose of the National Law and the Operating Requirements.

87. [183]

    Furthermore, even accepting for the purpose of argument that seeking consistency in pricing outcomes where possible was a mandatory consideration, it was not of such great importance that failure to achieve that outcome would render the RG’s decision legally unreasonable. The stated objective of the 2011 Agreement between the States and Territories being to achieve consistency in “business practices” under the national e-conveyancing system was qualified by words such as “where possible” or “as far as practicable”. Accordingly, it was envisaged that the objective of consistency would yield to other relevant considerations in appropriate cases.

88. [184]

    This approach was confirmed by s 22(2)(c4) of the National Law which made each registrar responsible for determining operating requirements for that registrar’s jurisdiction including in relation to setting of fees and charges. As already observed, conferring such a power on each individual registrar is inconsistent with it being an imperative or overriding purpose of the national e-conveyancing scheme that pricing be uniform or consistent across all jurisdictions. If national pricing consistency was a requirement of the scheme, pricing would have been set nationally and not on a jurisdiction by jurisdiction basis. In all the circumstances, the structure adopted in the National Law for determining ELNO service fees and charges indicates that inconsistent pricing between jurisdictions is permitted and intended to occur where that outcome is justified in all the circumstances.

89. [185]

    Furthermore, for the reasons already given above, it does not follow from inconsistency in pricing because of different decisions made by different registrars that the decision of one rather than another registrar was unreasonable in any relevant sense.

90. [186]

    In these circumstances, the fact that the RG’s withholding of approval for PEXA’s request to pass through the NECDS Ltd transaction fee, even though other registrars had approved that pass through, did not amount to a decision that was legally unreasonable even though it produced pricing inconsistency.

91. [187]

    For these reasons and all the reasons given above in relation to the construction of cl 5.4.4 that I prefer, the RG’s decision was manifestly not legally unreasonable and thus did not support the conclusion that she misconstrued the expression “unreasonably withheld”, on the alternative construction of that expression.

92. [188]

    Accordingly, I reject PEXA’s alternate basis put forward under the first ground of review.

93. [189]

    It follows that the first ground of review is rejected in its entirety.

Ground 2

1. [190]

   PEXA’s second ground of review proceeded on the premise that the RG failed to consider a mandatory relevant consideration, namely “that the Electronic Conveyancing National Law and the Operating Requirements made under that Law are intended to promote efficiency throughout Australia in property conveyancing by providing a common legal framework” and to minimise inconsistency.

2. [191]

   PEXA’s submissions in relation to its second ground were founded on the principles stated by Mason J in Peko and Basten JA in Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 at [49]. It was submitted that, as a matter of statutory construction, the RG was bound to consider that the National Law and Operating Requirements are intended to promote efficiency throughout Australia in property conveyancing by providing a common legal framework in which inconsistencies are minimised and business practices are consistent to the extent possible. It was said that the RG’s reference in her 19 June 2025 letter to “national consistency” being a relevant consideration amounted to mere “formalistic reference” rather than the required level of consideration.

3. [192]

   It was then said on PEXA’s behalf that it may be expected that, had the RG considered the relevant matter, she would have made the same decision that all of the other States and Territories had already made to achieve consistency and, in those circumstances, the Registrar failed to consider a mandatory relevant consideration. Thus, it was contended in substance that the RG fell into jurisdictional error.

4. [193]

   The Attorney General submitted in effect that this second ground of review was based on an asserted desirability of uniform pricing but this was not a mandatory relevant consideration, since it was expressly inconsistent with the independent discretion of each Registrar under the National Law. It was said that PEXA wrongly conflated the National Law’s pursuit of a “common legal framework” with a common pricing framework.

5. [194]

   Further and in any event, it was submitted that the RG had considered nationally consistent pricing but did not give it decisive weight. It was in effect submitted that this consideration was not required to be given decisive weight and that this ground should be rejected.

6. [195]

   The locus classicus for the statement of the principles relied on by PEXA is Mason J’s judgment in Peko. There, his Honour said relevantly for present purposes: [7]

7. [196]

   In the present case, the RG’s discretion whether to approve or withhold approval of a request under cl 5.4.4 is unconfined by the terms of the Operating Requirements or any legislation, except to the extent that any withholding must not be unreasonable. In particular, the Operating Requirements do not expressly state what factors the RG must take into account when making such a decision.

8. [197]

   For the purposes of consideration of this ground it may be accepted, as PEXA contended, that the RG was bound to take into account when exercising her power under cl 5.4.4 to withhold approval, as a matter of statutory construction, that:

9. [198]

   Notwithstanding the broad terms in which this factor is expressed, the only aspects of “efficiency”, “common legal framework” and “business practices” that PEXA relied upon was consistency in decision making in relation to pricing ELNO’s service fees.

10. [199]

    As observed above, however, the RG did take into account national consistency in decision making as to service fees as stated in her letter of 19 June 2025, which has been quoted above at [59].

11. [200]

    The principles stated in Peko make clear that it is generally for the decision-maker, and not the Court on a judicial review application, to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. The powers conferred on the RG under the National Law in relation to setting ELNO service fees and charges and the factual circumstances that might be relevant to any decision in that regard entitled, and probably required, the RG to obtain the necessary information in order to carry out her price regulatory functions on a properly informed basis. Thus, it was within the RG’s proper discretion to give priority to obtaining necessary and relevant information by means of the IPART review over achieving nationally consistent pricing outcomes in the short term.

12. [201]

    For the sake of completeness, it can be noted here that the question of whether there has been a failure to give adequate weight to a relevant factor of great importance so that the decision was legally unreasonable, has already been considered under ground 1. There it was in effect concluded that the consideration relied on by PEXA was not of such great importance that the RG’s decision to withhold approval was legally unreasonable because it led to nationally inconsistent pricing.

13. [202]

    For all of these reasons, the second ground of review should be rejected.

Ground 3

1. [203]

   PEXA’s ground 3 was put as an alternative to grounds 1 and 2, and only on the basis that there had been no relevant decision of the RG. As explained above, there was, in my view, a relevant decision by the RG to withhold approval and PEXA’s challenges to that decision have been considered under grounds 1 and 2. As a result, ground 3 does not arise.

Orders

1. [204]

   None of the grounds of review relied on by PEXA has been successful. Thus, it is appropriate to dismiss the summons. In these circumstances, the Attorney General sought costs. There are no factors of which I am aware that would justify making an award of costs otherwise than in accordance with r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW).

2. [205]

   Accordingly, the orders of the Court are:

   1. (1)

      The plaintiff’s summons filed on 10 October 2025 is dismissed.

   2. (2)

      The plaintiff is to pay the defendants’ costs.