Hart v Hart [No 2]

[2012] WASC 277

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   HART -v- HART [No 2] [2012] WASC 277

CORAM:   PRITCHARD J

HEARD:   20 APRIL 2012

DELIVERED          :   20 APRIL 2012

FILE NO/S:   CIV 1928 of 2007

BETWEEN:   JOHNIE HART

Plaintiff

AND

TED ARNOLD HART
First Defendant

MARGARET ROSE SHEPPARD
Second Defendant

Catchwords:

Transfer of Land Act 1893 (WA) s 76

Legislation:

Transfer of Land Act 1893 (WA), s 75, s 76, s 77

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     Mr A Prime

First Defendant             :     No appearance

Second Defendant         :     No appearance

Solicitors:

Plaintiff:     McCallum Donovan Sweeney

First Defendant             :     No appearance

Second Defendant         :     No appearance

Case(s) referred to in judgment(s):

Hart v Hart [2010] WASC 329

PRITCHARD J: 

(This judgment was delivered extemporaneously on 20 April 2012 and has been edited from the transcript.)

Background

1. This matter has an unfortunate and lengthy history. Before me today is an application under s 76 of the Transfer of Land Act 1893 (WA) (the Act) by which the plaintiff seeks that the court issue a summons to the first defendant for him to show cause before the court why a duplicate certificate of title should not be delivered up.

2. I will start by explaining more about the background to the application.

3. The plaintiff has been granted letters of administration in respect of the estate of Daphne Leonie Sheppard who died on 15 March 2007 without leaving a formal will.  A more detailed background in relation to the grant of letters of administration can be found in the judgment of Jenkins J in Hart v Hart [2010] WASC 329. For present purposes I need only note that Mrs Shephard having died intestate, an application was made by the plaintiff for letters of administration in respect of Mrs Sheppard's estate. When she died Mrs Sheppard owned property in Westfield in Western Australia (the property).

4. Prior to the grant of letters of administration, one of Mrs Sheppard's children, the brother of the plaintiff and now the first defendant, Mr Ted Hart, was granted letters of administration ad colligenda bona defuncti, limited for the purpose of getting in property and for the purpose of permitting the sale of the property.  That grant of letters of administration was also subject to the grant of further representation in respect of Mrs Sheppard's estate.  It appears from the papers before me that as a result of Mr Ted Hart being granted limited letters of administration, he subsequently became the registered proprietor of the property and it appears that he was to have received the duplicate certificate of title in respect of the property.

5. As a result of the grant of letters of administration to the plaintiff, Mr Johnie Hart, in Hart, the letters of administration granted to Mr Ted Hart were superseded. 

6. The plaintiff in his capacity as the administrator of Mrs Sheppard's estate is now seeking to deal with the estate and wants to be able to sell the property and to distribute the proceeds of the estate.  He cannot now do so because he does not have a duplicate certificate of title in respect of the property.

The current application

1. The information before me which is set out in the affidavit material filed - namely, the affidavit of Anthony Michael Prime, the solicitor for the plaintiff, sworn 20 October 2011 - indicates that there was a belief that Mr Ted Hart had in his possession the duplicate certificate of title in respect of the property.

2. There have been various attempts to obtain the duplicate certificate of title since the grant of letters of administration to the plaintiff and all of those have been unsuccessful.

3. On 11 March 2011 the Registrar of Titles (the Registrar) wrote to Mr Ted Hart advising that he considered that Mr Ted Hart was wrongfully retaining the duplicate certificate of title within the meaning of s 71(1) of the Act and the Registrar required Mr Ted Hart to deliver the duplicate certificate of title to Landgate so that it could be given to the proper person, namely the plaintiff in this case, as the administrator of the estate.

4. The letter sent by the Registrar to Mr Ted Hart was, according to the affidavit of Mr Prime, returned undelivered.  The affidavit of Mr Prime also contains information from Landgate to the effect that it had been advised by Australia Post that an attempt to deliver the letter had been unsuccessful and that the postal officer had been told that Mr Hart did not reside at the address.

5. The Registrar then wrote to the plaintiff's solicitors indicating that the Commissioner of Titles (the Commissioner) was not intending to make an application under s 76(1) of the Act but that the plaintiff could make an application under s 76(2) of the Act. It is at this point that the plaintiff brought the present application but also at this point that a difficulty arose in my view in relation to the application of s 76.

The requirements of s 76 of the Act

1. Section 76 of the Act provides:

   76.Duplicate certificates etc. issued in error etc., powers to recover

   (1)In case it shall appear to the satisfaction of the Commissioner that any duplicate certificate of title or instrument has been issued in error or contains any misdescription of land or of boundaries or that any entry or endorsement has been made in error on any duplicate certificate of title or instrument or that any duplicate certificate instrument entry or endorsement has been fraudulently or wrongfully obtained or that any duplicate certificate or instrument is fraudulently or wrongfully retained he may by notice in writing require the person to whom such document has been so issued or by whom it has been so obtained or is retained to deliver up the same for the purpose of being cancelled or corrected or given to the proper party as the case may require; and in case such person shall refuse or neglect to comply with such requisition the Registrar on the direction of the Commissioner may apply to a judge to issue a summons for such person to appear before the Supreme Court or a judge and show cause why such duplicate certificate or instrument should not be delivered up for the purpose aforesaid; and if such person when served with such summons shall neglect or refuse to attend before such court or a judge thereof at the time therein appointed it shall be lawful for a judge to issue a warrant authorising and directing the person so summoned to be apprehended and brought before the Supreme Court or a judge for examination.

   (2)Where a person has not complied with a requisition under subsection (1) and the Registrar has not applied to a judge for the issue of a summons referred to in that subsection, nothing in subsection (1) prevents any other interested person from applying to a judge to issue a summons referred to in that subsection.

2. Section 76 of the Act is a rather lengthy paragraph but it seems to me that there are four requirements that would need to be met before a summons could be issued under that section.

3. First it must appear to the satisfaction of the Commissioner that a duplicate certificate of title has been wrongly retained by a person.  In the present case, the affidavit of Mr Prime provides information to that effect.  Annexure AMP2 of Mr Prime's affidavit is a letter from the Commissioner to Mr Ted Hart which indicates the Commissioner's belief that Mr Ted Hart was wrongfully retaining the duplicate certificate of title.

4. Secondly, the Commissioner may then in writing require the person wrongfully retaining the duplicate certificate of title to deliver it up for the purpose of being given to the proper party.  Again, the affidavit of Mr Prime annexes the letter from the Commissioner which requires Mr Ted Hart to deliver up and produce the duplicate certificate of title within 14 days to Landgate.

5. However, the affidavit of Mr Prime, at Annexure AMP3, indicates that the letter sent by the Commissioner to Mr Ted Hart was returned undelivered.

6. This poses a particular problem in respect of what appears to be the third requirement under s 76(1) for the issue of a summons. That requirement is that if the person refuses or neglects to comply with the requisition, then an application can be made for the summons.

7. In the present case there is no evidence before me that Mr Ted Hart has in fact refused or neglected to comply with the requisition from the Commissioner for the reason that there is positive evidence that he did not in fact receive that requisition in the first place.

8. The final requirement of s 76 is not in fact a requirement but a permissive provision to the effect that an interested person may apply for the court to issue a summons if the Commissioner decides not to make that application, and of course that is what has been done in the present case; but as I indicated there is a difficulty with respect to what seems to be the third requirement in s 76(1).

Conclusion

1. I have heard the submissions of counsel for the plaintiff, and he has been unable to shed any light on any alternative construction to s 76(1), apart from the construction which at first blush appears appropriate; namely, there is an implication in s 76(1) that the refusal or neglect to comply with the requisition will follow from the person having been sent the requisition and having received it. As there is positive evidence in this case that that did not occur, I am unable to be satisfied that the requirement has been met.

2. I make no observations in this case about what the requirements for service otherwise are in respect of s 76 because in this case there is positive evidence that there has in fact not been any such service of the requisition from the commissioner.

3. I should add as well that it appears that the court has a discretion with respect to the issue of a summons under s 76. Quite apart from the question whether there has been compliance with all the requirements for the issue of a summons, this case also appears to raise a potential difficulty for the issue of a summons in any event. The difficulty is that the affidavit of Mr Prime discloses that there have been two sources of information which have come to Mr Prime's attention to indicate that Mr Ted Hart does not in fact have the duplicate certificate of title.

4. Mr Ted Hart's former solicitor has provided an affidavit to Mr Prime which indicates that he sought to send the duplicate certificate of title to Mr Hart.  It was returned in the first instance undelivered and then he sent it again and did not hear anything further from Mr Hart.  However, Mr Hart has maintained, and has now told Mr Prime personally, that he has not received the duplicate certificate of title or that it is not in his possession.

5. In those circumstances, there may be a question as to whether it would in any event have been appropriate to issue a summons under s 76 when one of the purposes, perhaps the primary purpose, of s 76 is to permit the person to be examined under s 77 and then to be required, if appropriate, to deliver up the duplicate certificate of title. However, it may be that the purpose of s 77 also extends to obtaining information under oath from a person so summonsed as to whether or not they in fact have a duplicate certificate of title and in such circumstances an admission under oath that they do not have the title might suffice for other purposes; for instance, for the issue of a further certificate under s 75 of the Act.

6. It is of course a matter for the plaintiff to determine what he now wishes to do but in view of the lengthy history of this matter, I make the following observations. First, it seems from the information set out in the affidavit of Mr Prime that the plaintiff now has a more recent and apparently correct address for the first defendant. It may therefore be open to the Commissioner to issue a further requisition under s 76 for the production of the duplicate certificate of title to the extent that the Commissioner remains satisfied that Mr Ted Hart is wrongfully retaining the duplicate certificate of title.

7. Secondly, the plaintiff may wish to explore with the Commissioner whether the Commissioner may be satisfied for the purposes of s 75 that the duplicate certificate of title is no longer held by Mr Ted Hart and the conclusion can be reached that it has been lost. In those circumstances the Commissioner may be able to be persuaded to take the action available to him under s 75(1) of the Act. I simply raise both of those alternatives as matters for the plaintiff to give consideration to in order to progress this matter and to continue the administration of the estate.

8. On the basis of the above reasons, the application for a summons under s 76 of the Act is dismissed.