Maguire, Gillian Margaret Mary v Recorder of Titles

[1998] FCA 1594

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TG 20 of 1998

BETWEEN:

GILLIAN MARGARET MARY MAGUIRE
APPLICANT

AND:

RECORDER OF TITLES
FIRST RESPONDENT

COMMONWEALTH BANK OF AUSTRALIA
SECOND RESPONDENT

JUDGE:	BURCHETT J
DATE:	24 NOVEMBER 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

In this matter, I am asked to grant an extension of time to enable an appeal to be brought by the applicant, Mrs Maguire, against a decision given by Heerey J on 25 August of this year.  If there were any arguable ground of appeal, I would be satisfied, in accordance with the Full Court decision in Jess v Scott (1986) 12 FCR 187, that sufficient special reason has been shown. However, the respondents opposed the application on the ground that to grant it would be futile, since there is no arguable ground of appeal.

The case arises out of the purchase of some land by the utilisation, at least in part, of a borrowing from the respondent bank obtained upon the basis that the land would be mortgaged to the bank.  The land was under the Torrens system.  The mortgage nominated a particular volume number and folio number.  When it was registered, it was registered in respect of a different volume number and folio number, the Recorder of Titles having issued a new certificate of title.

Mrs Maguire claims that that in some way invalidates both the mortgage and her title, and that questions of title arise in respect of which she should receive the relief she seeks. 

Heerey J thought that the whole application was, as he put it, “based on a misconception”.  He said:

“[T]he mortgage is registered on the new title, but the land remains the same.  The liabilities of the applicant remain the same.  There is no point in this application."

It seems to me that that conclusion is plainly right, and that there is no arguable case to the contrary.  If there were any defect, it would be a defect that a court exercising equitable jurisdiction would cure so as to enable the very thing to be done which the Recorder of Titles has done, namely, to have the mortgage registered on the existing certificate of title.

I do not accept there is any reasonable argument that s 33 of the Land Titles Act 1980 (Tas) does not authorise the Recorder to do what he has done. It is unfortunate that the Recorder has not chosen to put on more detailed evidence explaining the situation with precision. Had he done so, this application might, for all I know, never have been brought. But at least it is clear that s 33, either by virtue of subss (12) and (13), or by virtue of subs (18), is entirely apt to give the Recorder the wide powers he claims, and there is nothing in the material before me to suggest that those powers have been exercised other than validly.

Accordingly, the application will be dismissed.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett

Associate:

Dated:           24 November 1998

Counsel for the Applicant:	The applicant appeared in person
Counsel for the 1st Respondent:	Mr C Owen
Solicitor for the 1st Respondent:	Office of the Director of Public Prosecutions
Counsel for the 2nd Respondent:	Mr C Cunningham
Solicitor for the 2nd Respondent:	Simmons Wolfhagen
Date of Hearing:	24 November 1998
Date of Judgment:	24 November 1998