Re Crompton

[2000] QSC 386

SUPREME COURT OF QUEENSLAND

CITATION:	Re Crompton [2000] QSC 386
PARTIES:	IN THE MATTER of an application by Glenn Roy CROMPTON pursuant to s 183 of the Land Titles Act 1994
FILE NO:	S8282 of 2000
DIVISION:	Trial Division
DELIVERED ON:	2nd November 2000
DELIVERED AT:	Brisbane
HEARING DATE:	12th October 2000
JUDGE:	Holmes J
ORDER:	Application dismissed
CATCHWORDS:	SUPREME COURT PROCEDURE – QUEENSLAND – JURISDICTION – Statutory and Otherwise - Powers of the Supreme Court – Declaration as to a Question of Fact – Registered Owner of Torrens Title Land – Powers and Discretion of Registrar of Titles under Land Titles Act Qld 1994
COUNSEL:	R. P. Smith (solicitor) for the Applicant
SOLICITORS:	Walker, Smith & Breen for the Applicant

1. HOLMES J:  The applicant, Mr Crompton, finds himself in the unusual position of, on his account, having to seek re‑registration as owner of a property which he had earlier transferred into a fictitious name.  According to his affidavit, Mr Crompton acquired the property (lot 1 on RP 76552, County of Stanley, Parish of Yeerongpilly, title reference 12745130) upon a transfer from his father in 1957, when he was 23 years of age.  He has lived ever since in the dwelling on the property, which is at Tarragindi.  In 1982 he married.  In 1986 the marriage was encountering some difficulties, and a friend, a Mr Bowyer, advised him that he should transfer the property into a fictitious name to avoid any claim by his wife should they separate.

1. Mr Crompton’s adviser, according to his affidavit, assisted him in filling out a transfer form which purported to transfer the property into the name of Norman Roy McDougall.  That name was arrived at by combining Mr Crompton’s father’s Christian names with his mother’s maiden name (actually Dougan).  Mr Crompton filled out some of the details of the memorandum of transfer, while others were completed by Mr Bowyer. The latter, in addition, witnessed the transfer document, (although there is nothing to suggest he was either a justice of the peace or a solicitor)  and signed in the name McDougall as transferee.  The transfer was duly registered in the Titles Office on 10 September 1986.  Mr Crompton continued to hold his copy of the title deed to the property.

1. Mr Crompton and his wife did not, in the event, part.  In July 2000, he decided to transfer an interest as in the property as joint tenant to his wife.  In order to do so, he lodged a general request (Form 14) requesting a change of name of registered owner from Norman Roy McDougall to Glenn Roy Crompton, an accompanying declaration to the effect that Norman R McDougall and Glenn Roy Crompton were one and the same person, a transfer by which it was sought to effect the transfer of an interest as joint tenant to his wife, and a property transfer information form.  Upon being advised by an employee of the Titles Office that the documents were insufficient, Mr Crompton, with the assistance of solicitors, prepared a more extensive declaration explaining the circumstances by which the property came to be in the McDougall name.  His documents were re-lodged with that declaration in August 2000.  Later that month the Registrar of Titles issued a requisition notice in the following terms

“In view of the matters disclosed in the statutory declaration of G.R. Crompton dated 2/8/00, this office is not prepared to register any dealings in respect of this parcel of land in the absence of an Order of the Court for which you should seek legal advice.”

1. In an endeavour to obtain such an order, Mr Crompton has applied to the court for the following relief

“1.A declaration that Glenn Roy Crompton is the same person as Norman Roy McDougall.

2.A declaration that Glenn Roy Crompton is entitled to have the property known as lot 1 on RP 76552, County Stanley, Parish Yerongapilly [sic], title reference 12745130 registered in his name pursuant to s 183 of the Land Titles Act 1994.”

1. Mr Smith, who appeared for Mr Crompton, readily conceded that he had been unable to identify any statutory power by which the court could intervene to effect the registration as owner sought by Mr Crompton, relying instead on what he submitted was the inherent jurisdiction of the court to make the declarations sought.

1. I cannot conceive that there is any such inherent jurisdiction.  The Torrens system provides a comprehensive legislative scheme for registration of title and consequent indefeasibility.  In this State, it was first given effect by the Real Property Act 1861; presently the Land Titles Act 1994 governs registration of freehold land.  A number of the provisions of that Act enable the Supreme Court to make orders concerning alterations to the register. For example, s 187 enables a range of orders to be made where there is fraud or the case falls within one of the categories set out in s 185(1) (interests other than that of the registered proprietor).  Section  188B permits the court to make orders, inter alia, cancelling, correcting or creating indefeasible title where a claimant has been deprived of an interest or suffered loss or damage through various causes including fraud or error. Section 114 enables application for registration of a person as proprietor of a lot where a beneficial interest arises under a trust or will. None of those provisions encompasses the situation where a registered proprietor deliberately procures registration in a false name. They cannot assist the applicant here; indeed the existence of a power to order registration in those specified circumstances leads by inference to the conclusion that there is no such power at large.

1. Section 30(1) of the Land Titles Act 1994 provides as follows:

“If a person lodges an instrument and complies with the requirements of this Act for its registration, the registrar must register the instrument.”

That section imposes on the registrar of titles an obligation to register, but the obligation is not absolute.  While the registrar cannot properly decline to register an instrument merely because there are competing interests, he is not constrained to register where the legitimacy of the instrument in question is questionable:

“It is not a function of the registrar, however, to resolve possible points of contention between persons interested in the same parcel of land.  Different considerations may well arise where the instrument sought to be registered is illegal or otherwise tainted by illegality where its registration might deprive a person of lawful rights of interest in land or assist in implementing an unlawful act or transaction.”

That statement, made by Muir J in Beames v Leader (1998) Q Conv R 54‑506 at p.60,080 was endorsed on appeal by the Court of Appeal in a judgment reported under the same name at [2000] 1 Qd R 347.

1. A power to correct the register does reside in the registrar of titles.  Section 15(1) of the Land Titles Act 1994 provides as follows:

“The registrar may correct any register kept by the registrar if the registrar is satisfied that -
(a)      the register is incorrect; and

(b)the correction will not prejudice the rights of the holder of an interest recorded in the register.”

There is nothing in the Act to suggest that the registrar may be directed in the exercise of that discretion by the court. 

1. Section 19 enables the registrar to hold an inquiry:

“The registrar may decide to hold an inquiry under this division -
(a)      to decide whether a register should be corrected; or
(b)      to consider whether a person has fraudulently or wrongfully -

(i)obtained, kept or procured an instrument affecting land in a register; or

(ii)procured a particular in a register or an endorsement on an instrument affecting land; or

(c)      in circumstances prescribed by regulation.”

There appear to be no circumstances prescribed by regulation. Again, there is no provision in the Act for direction of the registrar as to how his discretion as to whether to hold an inquiry might be exercised.

1. In the present case there was material to cause the registrar concern, in the circumstance that a person not named as the registered proprietor was seeking to effect a transfer.  That of itself was sufficient, in my view, to justify the registrar’s refusal of registration.  It may be questioned, however, whether the requisition in the form it took was within the registrar’s powers.  Section 156(1) enables the registrar to require a person lodging an instrument:

“(a)to re‑execute, complete or correct the instrument or document if it appears to the registrar to be wrong, incomplete or defective; or

(b)to produce to the registrar specified information, or deposit a specified instrument or document, in support of the person’s application to register the instrument.”

I doubt that a requirement that an “Order of the Court” be obtained amounts to a requisition to “deposit a specified instrument or document” or to produce “specified information”. 

1. However that may be, for the reasons already given, I do not think that there is power in the court to make an order in respect of this matter. The first declaration sought, as to Mr Crompton being one and the same as Norman Roy McDougall, is not to be contemplated.  That is a question of fact which could not properly be pursued in an uncontested application, on affidavit material exhibiting copies. Those copies appear on their face to support Mr Crompton’s account, when one examines the handwriting and considers the fact that he appears to have retained the certificate of title. However, any proper inquiry would necessitate, at the least, the production of original documents and a good deal more supporting evidence by way, for example, of rates notices and electricity and telephone accounts directed to Mr Crompton at the address in question.  Such matters might properly be dealt with by a registrar’s inquiry under s 19 of the Land Titles Act; but they are simply inappropriate for this court to deal with on an application for a declaration. 

1. The second declaration, as I have already indicated, is one which I consider this court has no power to make.  Nor do I see any basis on which the court could or should attempt to direct the registrar as to the exercise of his discretions under s 15 and s 19 of the Land Titles Act.  It is open to the applicant to seek to have the registrar exercise his discretion upon proper material, with, in the event of a refusal, such rights of judicial review as might arise from the decision.

1. Accordingly, the application must be dismissed.