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Lincu v Registrar-General

Lincu v Registrar-General

Case [2019] NSWSC 568 16 May 2019

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Supreme Court

New South Wales

Medium Neutral Citation: Lincu v Registrar-General [2019] NSWSC 568
Hearing dates: 9 April 2018; further written submissions 23 April, 6 May, 16 May 2018
Date of orders: 16 May 2019
Decision date: 16 May 2019
Jurisdiction: Equity - Real Property List
Before: Kunc J
Decision:
Torrens assurance fund not liable; Cross-claim dismissed

Catchwords: LAND LAW — Torrens title — Compensation for loss of interest in land — Torrens assurance fund — Whether “breach of trust” exemption from compensation includes fraudulent breach of trust or applies only where sole cause of loss or damage is breach of trust — Real Property Act 1900 (NSW), s 129(2)(f)(i)
Legislation Cited: Interpretation Act 1987 (NSW)
Real Property Act 1857 (SA)
Real Property Law Amendment Act 1858 (SA)
Real Property Act 1860 (SA)
Real Property Act 1861 (SA)
Real Property Act 1862 (NSW)
Real Property Further Amendment Act 1877 (NSW)
Real Property Act 1900 (NSW)
Real Property Amendment Act 1970 (NSW)
Real Property (Torrens Assurance Fund) Amendment Act 1992 (NSW)
Real Property Amendment (Compensation) Act 2000 (NSW)
Real Property and Conveyancing Legislation Amendment Act 2009 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Challenger Managed Investments Ltd v Direct Money Group Pty Ltd [2003] NSWSC 1072; (2003) 59 NSWLR 452
Cooper v The General Accident, Fire, and Life Assurance Cooperation Limited (1922) 128 LT 481
Diemasters Pty Ltd v Meadowcorp Pty Ltd [2001] NSWSC 495; (2001) 52 NSWLR 572
Fish v Solution 6 Holdings Limited [2006] HCA 22; (2006) 225 CLR 180
Government Insurance Office of NSW v RJ Green and Lloyd Pty Ltd [1966] HCA 6; (1967) 114 CLR 437
Guns Forest Product Ltd v North Insurances Pty Ltd [2004] VSC 155
Kavanagh v Commonwealth [1960] HCA 25; (1960) 103 CLR 547
Kirkland v Quinross Pty Limited [2008] NSWSC 286; (2008) 14 BPR 26,979
Krnjulac v Lincu [2015] NSWCA 367
Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573
Lincu v Krnjulac [2014] NSWSC 532
Parker v Registrar-General [1977] 1 NSWLR 22
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Khazaal [2012] HCA 26; (2012) 246 CLR 601
Re Alcan Australia Limited; Ex parte Federation of Industrial, Manufacturing & Engineering Employees Union [1994] HCA 34; (1994) 181 CLR 96
Re Hamilton Irvine (1990) 94 ALR 428
Registrar-General v Behn [1980] 1 NSWLR 589
Registrar-General v Harris (1998) 45 NSWLR 404
Robinson v Registrar-General (1982) 2 BPR 97154; (1983) NSW ConvR 55-138
Saade v Registrar-General (NSW) [1993] HCA 73; (1993) 179 CLR 58
Schmidt v Registrar-General of Land [2015] NZHC 2015; [2016] 2 NZLR 121
TAL Life Ltd v Shuetrim [2016] NSWCA 68; (2016) 91 NSWLR 439
Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510
Voudouris v Registrar-General (1993) 30 NSWLR 195
Vrondissis v Stevens [1940] 2 KB 90
Texts Cited: NSW Law Reform Commission Report 76…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lincu v Registrar-General

Details

AGLC: Lincu v Registrar-General [2019] NSWSC 568
Case: [2019] NSWSC 568
Decision Date: 16 May 2019

CaseChat Overview and Summary

The dispute in Lincu v Registrar-General involved the applicant, Lincu, who sought compensation from the Torrens assurance fund for the loss of interest in land due to a fraudulent breach of trust by the defendant, the Registrar-General. The matter was heard in the Supreme Court of New South Wales. The central legal issue was the interpretation of the term "breach of trust" in section 129(2)(f)(i) of the Real Property Act 1900 (NSW) and whether it encompassed fraudulent breaches of trust or was limited to situations where the breach of trust was the sole cause of the loss or damage.

The court examined the plain language of the statute and found that the term "breach of trust" was not limited to non-fraudulent breaches. The court held that the exemption from compensation applied not only when the breach of trust was the sole cause of the loss or damage, but also when the breach of trust was a contributing factor, even if not the sole cause. The court also noted that the purpose of the assurance fund was to compensate for losses resulting from errors or omissions by the Registrar-General, and that the fund should be interpreted broadly to achieve this purpose.

The court concluded that the applicant was entitled to compensation from the Torrens assurance fund. The court found that the fraudulent breach of trust by the Registrar-General was a contributing factor to the loss of interest in land, and therefore, the exemption did not apply. The court ordered that the Registrar-General pay the applicant compensation for the loss of interest in the land.

Orders