Prentice v Registrar General - [2014] NSWSC 1060

Supreme Court

New South Wales

Medium Neutral Citation: Prentice v Registrar General [2014] NSWSC 1060
Hearing dates: 01/08/2014
Decision date: 01 August 2014
Jurisdiction: Equity Division
Before: McDougall J
Decision:
Make order pursuant to s 138(3) of the Real Property Act 1900 (NSW) for production of certificate of title.

Catchwords: REAL PROPERTY - Torrens title - certificates of title, folios and Crown grants generally - whether appropriate to order the Registrar-General to issue a new certificate of title - whether it is necessary to make an order under s 138(2) so that an order under s 138(3) of the Real Property Act 1900 (NSW) can be made or whether the only order that need be made is one under s 138(3) - whether an order under s 138(2) of the Real Property Act 1900 (NSW) would lack utility
Legislation Cited: Real Property Act 1900 (New South Wales)
Cases Cited: Botterill v Botterill (2000) 10 BPR 18,787
Crocombe v Pine Forest of Australia Pty Ltd (No 3) (2007) 13 BPR 24,241
Category: Procedural and other rulings
Parties: Maxwell William Prentice (Plaintiff)
The Registrar General of New South Wales (Defendant)
Representation: Counsel:
J T Johnson (Plaintiff)
Solicitors:
Sally Nash & Co Lawyers
(Plaintiff)

File Number(s): 2014/226727

Judgment (ex tempore - revised 5 august 2014)

HIS HONOUR: The plaintiff is the trustee in bankruptcy of a Mr Peter John Cashman. The sequestration order was made in the Federal Circuit Court of Australia on 22 August 2013. At that date the bankrupt was registered, subject to various notified interests, as the proprietor of a property at Balmain. The trustee has become registered as proprietor of that property. The most recent search available discloses there are no other relevant registered interests.

It seems that arrangements have been made to pay out the entire debts of the bankrupt, including costs, and that settlement is expected to occur on Monday next, 4 August 2014. On that date the Federal Circuit Court will hear an application for annulment of the bankruptcy. No doubt, if everything is paid out and the plaintiff as trustee does not oppose the making of the orders, the annulment will occur.

To enable the annulment to occur, it is necessary that the property at Balmain be mortgaged to an incoming mortgagee, who will provide the necessary funds to underpin the annulment application.

The only problem is that the certificate of title for the Balmain property cannot be found. Enquiries have been made of the bankrupt, his former wife and his former legal advisers. Those enquiries have been fruitless.

In those circumstances, the trustee makes application pursuant to s 138

of the Real Property Act 1900 (NSW). That section reads as follows:

138 Court may direct cancellation of folios and other actions related to folios

(1) A court may, in proceedings for the recovery of any land, estate or interest from the person registered as proprietor of the land, make ancillary orders of the kind set out in subsection (3), if the court is…

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 Prentice v Registrar General

Details

AGLC: Prentice v Registrar General [2014] NSWSC 1060
Case: [2014] NSWSC 1060
Decision Date: 01 August 2014

CaseChat Overview and Summary

The case before the court involved Prentice, the appellant, and the Registrar General, the respondent. The dispute centred on the issuance of a new certificate of title by the Registrar General under section 138 of the Real Property Act 1900 (NSW). The dispute required the court to determine whether an order under section 138(2) of the Act is necessary to enable an order under section 138(3) to be made or if only an order under section 138(3) is required. A further issue was whether an order under section 138(2) would be futile.

The court examined the statutory framework provided by the Real Property Act 1900 (NSW), specifically sections 138(2) and 138(3), to understand the process and requirements for the issuance of a new certificate of title. The court had to discern whether section 138(2) plays an indispensable role in the process of issuing a new certificate of title or if section 138(3) alone suffices. The court also assessed the potential utility of an order under section 138(2) in the context of issuing a new certificate of title.

The court concluded that an order under section 138(2) is not necessary to facilitate an order under section 138(3). The court held that the only order required is one under section 138(3), which directly addresses the issuance of a new certificate of title. Additionally, the court found that an order under section 138(2) would lack utility in this context, as it does not contribute to the practical process of issuing a new certificate of title. The court's reasoning was grounded in the statutory language and the practical implications of the provisions.

The court ordered that the Registrar General issue a new certificate of title under section 138(3) of the Real Property Act 1900 (NSW), without the need for an order under section 138(2). This decision clarified the process for issuing a new certificate of title and affirmed the limited role of section 138(2) in this context.

Orders