Botterill v Botterill
[2000] NSWSC 1152
•1 December 2000
Reported Decision: [2001] NSW ConvR 55-977
New South Wales
Supreme Court
CITATION: Botterill v Botterill [2000] NSWSC 1152 CURRENT JURISDICTION: Equity FILE NUMBER(S): SC 4084/00 HEARING DATE(S): 20 November and 1 December 2000 JUDGMENT DATE: 1 December 2000 PARTIES :
Mary Jane Botterill (P)
Keith John Botterill (D)JUDGMENT OF: Hamilton J
COUNSEL : Diana Black (P)
No appearance (D)SOLICITORS: Peter Marr & Associates (P)
No appearance (D)CATCHWORDS: CONVEYANCING [151] - Land titles under the Torrens system - Powers of Court - New South Wales - Order for cancellation of certificate of title and issue of new certificate - Order of Family Court that husband transfer property to wife - Certificate of title not produced by husband. LEGISLATION CITED: Family Law Act 1975 (Cth)
Real Property Act 1900 s 138CASES CITED: Lank v Lank (1973) 21 FLR 384
Re Wakim; Ex Parte McNally & Ors (1999) 198 CLR 511DECISION: Order that Registrar General cancel existing certificate of title and issue new certificate of title in name of wife.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISIONHAMILTON J
FRIDAY, 1 DECEMBER 2000
4084/00 MARY JANE BOTTERILL v KEITH JOHN BOTTERILL
JUDGMENT
HIS HONOUR:
1 These proceedings were commenced by a summons filed on 28 September 2000 by which the plaintiff claims:
“1 An order that the interests of the defendant in the land comprising Certificate of Title Folio Identifier 20/6506 and known as Lot 20, Grafton Road, Glenreagh be settled on the plaintiff.
……
3 An order that the Registrar General take all appropriate steps to effectuate order 1.”
When the matter first came before me the order in fact sought by Mrs Black, of counsel for the plaintiff, was an order under s 138 of the Real Property Act 1900 (“the RPA”). That section provides as follows:
“138 Court may direct cancellation of folios and other actions related to folios
(1) A court may, in proceedings for the recovery of any land, estate or interest from the person registered as proprietor of the land, make ancillary orders of the kind set out in subsection (3), if the court is of the opinion that the circumstances of the case require any such order to be made.
(2) A court may, in proceedings for the possession or production of a certificate of title or in proceedings in which the court makes a determination as to an estate or interest in land, make ancillary orders of the kind set out in subsection (3), if the court is of the opinion that the certificate of title has not been, or is not likely to be, produced by a person for the purposes of the registration of a dealing affecting the land concerned.
(3) A court may order the Registrar-General to do one or more of the following:
(a) cancel or amend a folio of the Register,
(b) cancel, amend or make a recording in a folio of the Register,
(c) create a new folio of the Register,
(d) issue a new certificate of title.(5) A court that makes an order under this section may order that a person deliver a certificate of title or other instrument to the Registrar-General for the purpose of giving effect to any such order.
(4) The Registrar-General must give effect to any such order.
…….”
2 When the matter was first before me there seemed to me to be two problems that the plaintiff had in obtaining relief. The first was that I had grave doubts as to whether the proceedings as then constituted could be properly characterised as proceedings in which an order under s 138 could be made, ie, either “proceedings for the recovery of any land” or “proceedings for the possession or production of a certificate of title or in which the court makes a determination as to an estate or interest in land”. The original prayer for a settlement of the defendant’s interest in the property on the plaintiff did not appear to me to give the proceedings the necessary quality, nor did there appear to me to be any basis for such an order. The other problem that I had was, bearing in mind the strictures to which I shall later in this judgment return, as to protecting the integrity of the register. I was of the view at that time there was not sufficient evidence concerning the history and location of the certificate of title, or the circumstances in which it had been last seen, or in various other regards, for me to be able to assess realistically the degree of risk that there would be if I created the situation where there conceivably might be two certificates of title in circulation in relation to the same piece of land.
3 During an adjournment which I granted both of these problems have been addressed on the part of the plaintiff. As to the first, an amended summons has today been filed by leave under which the orders sought are that:
"1 The Defendant, Keith John Botterill, produce to this Court Certificate of Title folio identifier 20/6506.
2 If the Defendant fails to produce the Certificate of Title referred to in 1 above to the Court then the Registrar General take all appropriate steps to issue a new Certificate of Title Folio Identifier 20/6506, recording the Plaintiff, Mary Jane Botterill, as the registered proprietor."
These proceedings are now constituted, and properly so in my view, as proceedings for recovery of possession of the certificate of title, in which an order under s 138 of the RPA may be made, being proceedings for the production of a certificate of title. There will therefore be no necessity to consider (as I had once considered possible) whether the Family Court proceedings mentioned below need to be sent to this Court so that there may be a proceeding for recovery of land in which to make an order.
4 Secondly, the affidavit evidence has been amplified. The facts as they now appear are as follows. The plaintiff and the defendant were married and during their marriage the plaintiff invested money in the property which was and is in joint names. In proceedings between them under the Family Law Act 1975 (Cth) the Family Court of Australia on 1 November 1996 ordered the defendant to transfer to the plaintiff all his right, title and interest in the property and further ordered that in the event that he refused or neglected to execute a transfer, the Registrar or a Deputy Registrar of the Family Court be appointed to execute the transfer. Despite various requests, the defendant declined to execute a transfer and that transfer was indeed executed on his behalf by a Registrar of the Family Court. However, a problem still remained with the registration of the transfer to effect the passage of the whole of the property into the plaintiff's name in that, in order to register the transfer, the Registrar General requires production of the certificate of title. It is the plaintiff's case that she does not have the certificate of title and that in her belief the defendant does. The defendant asserts that the plaintiff has the certificate of title. In one conversation that he had with the plaintiff's solicitor he said, “Yes, I want you to understand my wife suffers from memory loss. She has the title deed. You can take that letter and shove it up your arse!” The plaintiff's recollection of the history of the certificate of title now deposed to in detail is that upon acquisition of the property it was unencumbered and the certificate of title was in her possession. She placed it in a file with other personal papers. That file was left in the property when she departed from the property as a result of the breakdown of her relationship with the defendant. Subsequently, she returned to the property, of which she has possession pursuant to the orders of the Family Court, although she has not been able to obtain the title. When she returned, the file which had contained the certificate of title, could not be found. It is from that that she infers that the defendant, who occupied the property in her absence, has it. The Family Court cannot, because of the decision of the High Court of Australia in Re Wakim; Ex Parte McNally & Ors (1999) 198 CLR 511, have the power to make an order under s 138 of the RPA. That Court takes the view, no doubt correctly, that it cannot deal with the New South Wales Torrens title register. Hence the proceedings brought in this Court.
5 Section 138 of the RPA has previously been used in proceedings between husband and wife concerning matrimonial property and the principles relating to the manner in which the Court’s discretion ought be exercised have been dealt with in such a case. In Lank v Lank (1973) 21 FLR 384 Allen J sitting in the Family Law Division of this Court made an order for the issue by the Registrar General of a duplicate certificate of title. His Honour said at 387:
“It is clear, therefore, that in an appropriate case the court has a wide discretion to effect changes in the register. But conveyancing practice has since its institution placed reliance upon the integrity of the registration system and ‘Torrens Title’ has become a by-word. It is perhaps title by registration rather than registration of title, but no order should lightly be made which would compel a change in the register which the Registrar-General opposed.
Mr Smart for the Registrar-General made it clear at the outset of his submissions that the purpose of his appearance was not to attack the merits of the applicant's case but to ensure that due regard was paid to the importance of maintaining the system established by the Real Property Act. The court should, he submitted, be concerned to protect the integrity of the registration system and of the register; to avoid, if possible, the highly inconvenient situation which might arise from the existence of two duplicate certificates in respect of the same parcel of land, a situation which might lead to an unauthorized borrowing by one joint tenant on the security of the certificate wrongfully held; and to assist the registrar in his duty to protect the assurance fund from claims under s 127. An order under s 138 should not be made, counsel submitted, unless the court considered that on the facts established such a risk is minimal.”
Turning to the actual decision of that case, his Honour said at 389:
“However, the affidavit evidence does, I think, show that this respondent has in all probability abandoned any interest he had in these lands. In the circumstances, the risk of any substantial loss arising from any dealing by the respondent with this certificate does seem to be remote.”
6 I am inclined to think that the point has now been reached where the evidence before me justifies the making of an order for the issue by the Registrar General of a fresh certificate of title in the plaintiff's name alone. The only doubt I have had is whether I ought first make an order that the defendant produce to the Court the certificate of title in a last effort to capture the errant certificate of title that is at large. However, there are a number of reasons for which I do not think it is necessary to take this step. The first is that, despite his defiant and unpleasant attitude, it is not clear on the evidence that the defendant is not indeed telling the truth insofar as he states that the certificate of title is not in his possession. Whilst it is understandable that the plaintiff should fear that this is so, there are various other possible inferences. They include that the defendant took the plaintiff's file but destroyed it or that he did not in fact take it at all and that it has simply become lost during her absence from the house. Furthermore, I now have available to me a larger amount of evidence concerning the defendant and his way of life. He has worked at various times as a labourer, a window fixer and a farm labourer. He has had an irregular work history. He has not, so far as the evidence goes, ever engaged in any business or in any financial transactions of any sophistication. Six years have passed since the making of the order against him in 1994 and there is not the faintest suggestion that he has, during that time, attempted to carry out any transaction with the agency or aid of the missing certificate of title. In any event if I made an order against him requiring production of the certificate of title it seems likely that he would simply repeat his assertion, which may be the truth, that he does not have the certificate of title. He has left the property in accordance with the Family Court’s orders. In those circumstances I have formed the view that any possibility of the use by him in any inappropriate way of the certificate of title is very remote and that, whilst he continues to maintain a dog in a manger attitude, he has in reality, in Allen J’s words, abandoned the property.
7 In those circumstances I am in general terms prepared to make an order for the issue of a fresh certificate of title as requested. The defendant has at no time appeared to the summons in this matter. He has not had the amended summons served upon him. However, it was plain from the summons that was served upon him that the plaintiff was asking the Court to direct the Registrar General to take any step necessary to permit the effectuation of the transfer of the title to her. The order that I propose to make for the issue of a fresh certificate of title falls within the general relief sought in the served summons. I propose to dispense with service of the amended summons rather than require it to be served before I make the order. Had I been minded to order him to produce the certificate of title to the Court I should not have been prepared to do so without service of the summons on him. An invitation was made on the Registrar General's behalf to the plaintiff to apply to the Court for an order under s 138 of the RPA without there being any suggestion that the Registrar General was interested in being joined as a defendant in or appearing in these proceedings.
8 The orders that I make are as follows:
1 I dispense with service of the amended summons.
2 I order that the Registrar General issue a new certificate of title to the land comprised in Certificate of Title Folio Identifier 20/6506 recording the plaintiff Mary Jane Botterill as the registered proprietor.
3 I order the defendant to pay the plaintiff's costs of these proceedings.
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