FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lang & Hardy [2024] FedCFamC2F 1654
File number: MLC 7406 of 2020 Judgment of: JUDGE SYMONS Date of judgment: 20 November 2024 Catchwords: FAMILY LAW – Third application in aid of enforcement of final property orders – where orders require sale of property – where first respondent retains original paper Certificate of Title and has failed to produce it – where sale cannot proceed without the Certificate of Title – where applicant seeks cancellation of current Certificate of Title and creation of new electronic Certificate of Title – no engagement by the first respondent – orders and declarations of interest made – order for payment by first respondent of indemnity costs Legislation: Bankruptcy Act 1966 (Cth)
Family Law Act 1975 (Cth), s 117
Transfer of Land Act 1958 (Vic), ss 27B, 103
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), rr, 12.08, 12.13
Cases cited: Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248
Marchesi v Registrar of Titles (2010) 30 VR 397; [2010] VSC 524
Marshall v Williams [1974] VR 592
Roydon & Roydon [2024] FedCFamC1A 105
Division: Division 2 Family Law Number of paragraphs: 38 Date of last submission/s: 19 November 2024 Date of hearing: 19 November 2024 Place: Melbourne Counsel for the Applicant: Mr J Melilli Solicitor for the Applicant: PCL Lawyers Solicitor for the First Respondent: No appearance by or on behalf of the First Respondent Solicitor for the Second Respondent: No appearance by or on behalf of the Second Respondent ORDERS
MLC 7406 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS METZ (AS ADMINISTRATOR OF THE ESTATE OF THE LATE MS LANG)
Applicant
AND: MR HARDY
First Respondent
REGISTRAR OF TITLES (VICTORIA)
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
20 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The first respondent produce to the office of the applicant’s solicitor, PCL Lawyers at Level 14, 90 Collins Street, Melbourne, 3000, Victoria the original paper Certificate of Title to the property described in Certificate of Title Volume … Folio …, being the land in Crown Allotment … Section … Township of Town C, Parish of Town C and known as B Street, Town C, in the State of Victoria (the Property) within seven days of the date of these orders.
2.In the event the Certificate of Title is not produced in accordance with paragraph 1 of these orders, and on production of an affidavit from the applicant’s solicitor to that effect, the Registrar of Titles for the State of Victoria is to:
(a)cancel Certificate of Title Volume … Folio … (being the Certificate of Title in respect of the Property);
(b)Create a new folio of the Register and an electronic Certificate of Title for the land in Crown Allotment … Section … Township of Town C, Parish of Town C;
(c)take the steps necessary to carry over to the new folio caveat…
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- Lang & Hardy [2024] FedCFamC2F 1654
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- [2024] FedCFamC2F 1654
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CaseChat Overview and Summary
The court had to decide whether to compel the first respondent to produce the original Certificate of Title, and if not produced, whether the Registrar of Titles should cancel the current Certificate of Title and create a new electronic one. Additionally, the court needed to determine whether the applicant had an interest and entitlement to the Certificate of Title for the purposes of the Transfer of Land Act 1958 (Vic) and who should have control of the electronic Certificate of Title to be created. The court also had to consider the costs incurred by the applicant and whether the first respondent should bear the indemnity costs.
The court found that the first respondent's failure to produce the original Certificate of Title, despite multiple opportunities, warranted the cancellation of the current Certificate of Title and the creation of a new electronic one. The court determined that the applicant had an interest and entitlement to the Certificate of Title and that the applicant or her solicitor should control the new electronic Certificate of Title. The court ordered the first respondent to produce the original Certificate of Title within seven days or face the cancellation and creation of a new electronic Certificate of Title by the Registrar of Titles. Additionally, the court ordered the first respondent to pay the applicant's costs on an indemnity basis amounting to $36,886.
The final orders require the first respondent to produce the original Certificate of Title within seven days of the order date, or face the Registrar of Titles cancelling the current Certificate of Title and creating a new electronic one. The court also declared that the applicant has an interest and entitlement to the Certificate of Title and that the applicant or her solicitor should control the new electronic Certificate of Title. The first respondent was ordered to pay the applicant's costs on an indemnity basis, fixed at $36,886.
Orders
Orders of the court
MLC 7406 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS METZ (AS ADMINISTRATOR OF THE ESTATE OF THE LATE MS LANG)
Applicant
AND:
MR HARDY
First Respondent
REGISTRAR OF TITLES (VICTORIA)
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
20 NOVEMBER 2024
THE COURT ORDERS THAT:
1. The first respondent produce to the office of the applicant’s solicitor, PCL Lawyers at Level 14, 90 Collins Street, Melbourne, 3000, Victoria the original paper Certificate of Title to the property described in Certificate of Title Volume … Folio …, being the land in Crown Allotment … Section … Township of Town C, Parish of Town C and known as B Street, Town C, in the State of Victoria (the Property) within seven days of the date of these orders.
2. In the event the Certificate of Title is not produced in accordance with paragraph 1 of these orders, and on production of an affidavit from the applicant’s solicitor to that effect, the Registrar of Titles for the State of Victoria is to:
(a) cancel Certificate of Title Volume … Folio … (being the Certificate of Title in respect of the Property);
(b) Create a new folio of the Register and an electronic Certificate of Title for the land in Crown Allotment … Section … Township of Town C, Parish of Town C;
(c) take the steps necessary to carry over to the new folio caveat …;
(d) amend the Register if so necessary.
3. The first respondent pay the applicant’s costs on an indemnity basis, fixed in the amount of $36,886.
4. The applicant serve a sealed copy of these orders on the first and the second respondent by no later than 4 pm on 22 November 2024.
THE COURT DECLARES THAT:
A. For the purposes of the Transfer of Land Act 1958 (Vic) (TLA) and to give effect to the orders for the sale of the Property made on 10 September 2021, the applicant has an interest and an entitlement to the Certificate of Title produced under paragraph 1 of these orders.
B. For the purposes of s 27B(6) of the TLA the applicant or PCL Lawyers on her behalf, is entitled to control of the electronic Certificate of Title to be created pursuant to paragraph 2(ii) of these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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Evidence Before The Court
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