Prentice as trustee for the bankrupt estate of Livio Sulligoi v Livio Sulligoi

[2012] NSWSC 1655

Supreme Court

New South Wales

Medium Neutral Citation:	Prentice as trustee for the bankrupt estate of Livio Sulligoi v Livio Sulligoi [2012] NSWSC 1655
Hearing dates:	20 December 2012
Decision date:	20 December 2012
Jurisdiction:	Equity Division
Before:	Brereton J
Decision:	That Registrar-General issue new certificates of title in respect of subject properties
Catchwords:	REAL PROPERTY - summons for production of certificates of title to trustee in bankruptcy - where bankrupt and certificates cannot be found - whether new certificates of title should be issued
Legislation Cited:	(NSW) Real Property Act 1900, s138
Category:	Principal judgment
Parties:	Maxwell Prentice as trustee for the bankrupt estate of Livio Sulligoi - Plaintiff Livio Sulligoi - First Defendant Registrar-General of NSW - Second Defendant
Representation:	Counsel: S Gollege - Applicant Ex parte Solicitors: Lander & Rogers Lawyers - Applicant
File Number(s):	2012/ 386677

Judgment (ex tempore)

1. HIS HONOUR: By summons filed on 13 December 2012, Maxwell Prentice as trustee of the bankrupt estate of Livio Sulligoi claims an order that Mr Sulligoi produce to the Registrar-General certificates of title in respect of four strata properties in Glebe and Newtown to enable registration of transfers of title to those properties by Mr Prentice, who has exchanged contracts for sale of three of them, and, alternatively, an order that the Registrar-General issue new certificates of title in respect of each of those properties, pursuant to (NSW) Real Property Act 1900, s 138.

1. Mr Prentice was appointed Mr Sulligoi's trustee in bankruptcy on a creditors petition in or about April 2012. The trustee has been unable to find Mr Sulligoi, let alone to obtain a statement of affairs from him, despite extensive enquiries.

1. It is somewhat remarkable that the registered proprietor of five unencumbered properties in Glebe and Newtown would be unable to be found, but such hints of his appearance and habits as the evidence reveals suggest that he is reclusive, occasionally frequents one of the properties at late hours at night, and cannot be found in the telephone book. Although he is the registered owner of a car, that car cannot be found; and an electoral search has not located him. Enquiries of local police and of the Mental Health Department at Royal Prince Alfred Hospital have also not elicited Mr Sulligoi's whereabouts.

1. The trustee has exchanged contracts for sale of three of the properties. In respect of one of those sales, a notice to complete has been served, which expires on 7 January 2013. In order to complete the sales and deliver transfers, the trustee will require certificates of title.

1. In these proceedings the trustee seeks an order for production of those certificates of title. Real Property Act, s 138(3) provides that a Court may, in proceedings for the production of a certificate of title, make ancillary orders of the kind set out in subsection (3), which include (d) an order that the Registrar-General issue a new certificate of title.

1. As the summons claims an order for production of the certificate of title, the jurisdictional basis is plainly satisfied. The Court's main concern in making an order for the issue of a new certificate of title is the risk that old certificates of title may be in circulation and, accordingly, that third parties might rely on a duplicate of the certificate of title.

1. The evidence of search and enquiry in this case has led the trustee to conclude that the certificates of title are lost, mislaid or destroyed, because, despite many months of searching for Mr Sulligoi and searching for the certificates of title in places where they might be - including bank security deposit boxes and the properties - the trustee has not been able to locate those certificates. The trustee's solicitor has declared that, based on the searches conducted, the certificates of title are not held by any other person or corporation as security.

1. The Chief Judge made orders for substituted service on 13 December 2012. The affidavit of Alan Rayner Cole, sworn 14 December 2012, establishes that the proceedings have been served in accordance with those orders, and that the proceedings are, therefore, taken to have been served on Mr Sulligoi.

1. Pursuant to (NSW) Real Property Act 1900, s 138(3)(d), I order that the Registrar-General issue a new certificate of title to the plaintiff in respect of each of the following properties:

(1)   X/X Charlton Way, Glebe New South Wales 2037, being the land comprised in folio identifier 3/SPXXXX;

(2)   X/X Sheehy Street, Glebe New South Wales 2037, being the land comprised in folio identifier 13/SPXXXX;

(3)   X/X Sheehy Street, Glebe New South Wales 2037, being the land comprised in folio identifier 9/SPXXXX; and

(4)   X/X Chelmsford Street, Newtown New South Wales 2042, being the land comprised in folio identifier 8/SPXXXXX .

1. I direct that the orders be entered forthwith.

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Decision last updated: 23 May 2013