Registrar-General v Whitehead - [2007] SASC 275

Supreme Court of South Australia
(Civil)
REGISTRAR-GENERAL v WHITEHEAD
[2007] SASC 275
Judgment of The Honourable Justice Debelle (ex tempore)
20 July 2007
CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - CERTIFICATES OF TITLE AND CROWN GRANTS GENERALLY - CANCELLATION AND RECTIFICATION
Summons to produce certificate of title – defendant refused to produce certificate of title – certificate of title cancelled and issue new certificate of title pursuant to s 64 of Real Property Act 1886 – Registrar-General authorised to register transmission application and transfer on new certificate of title – defendant to pay nominal penalty.
Real Property Act 1886 s 64, s 220, s 227, referred to.

REGISTRAR-GENERAL v WHITEHEAD
[2007] SASC 275
Civil

DEBELLE J. The events leading to this application are set out in the remarks I made on 6 July 2007.
Ms Irene Whitehead, otherwise known as Mrs Irene Jankovsky, and sometimes known as Mrs Irene Janson, has been summonsed pursuant to s 227 of the Real Property Act 1886. That is in consequence of her having failed to comply with a summons issued pursuant to s 220 of the Real Property Act and the failure of Ms Whitehead to produce a duplicate certificate of title.
On 6 July 2007 Ms Whitehead said that she did not have the duplicate certificate of title. She said that it was in the possession of her land broker. When asked to identify the land broker she named three land brokers, Mr Nick Xenides, Mr Geoffrey Adam and Mr Henry Rusak. The Crown Solicitor made inquiries of each of those persons. Those inquiries disclose that there is a Mr Geoffrey John Adam who is a solicitor but who is also the Chief Executive Officer of the Australian Institute of Conveyancers, South Australian Division. There is also a Geoffrey Keith Adams, who is a solicitor conducting his own practice. Neither of those gentlemen has ever held the duplicate certificate of title. Mr Geoffrey Adam, the Executive Officer of the Australian Institute of Conveyancers, has proved that the Institute does not, itself, conduct a conveyancing practice. If inquiries are made to it, it refers the person making the inquiry to one of its members.
Mr Xenides has sworn an affidavit that he has never done any conveyancing on behalf of Ms Whitehead. Mrs Rusak is the wife of Mr Henry Rusak. She and her husband run a conveyancing practice. She has conducted searches at their office and those searches disclose that they have never conducted any conveyancing on behalf of Ms Whitehead. In short, none of the persons named by Ms Whitehead holds a duplicate certificate of title on her behalf.
Public Trustee was appointed pursuant to the Aged and Infirm Persons’ Property Act 1940 to act for Ms Whitehead in the course of the matrimonial proceedings instituted by her former husband which led to the dissolution of their marriage. Public Trustee has attended today. Mr Keith, who appears for Public Trustee, states that Public Trustee has never held a duplicate certificate of title on behalf of Ms Whitehead.
These facts have been pointed out to Ms Whitehead. I directed Ms Whitehead to go into the witness box and be examined on oath as to the whereabouts of the duplicate certificate of title. Ms Whitehead now says that the duplicate certificate of title is in England. Ms Whitehead was evasive in her answers and at times inconsistent in her answers. I do not accept her evidence. I have a strong belief that she, in fact, holds the duplicate certificate of title and that she is not willing to produce it.
It seems that she misunderstands the nature of these proceedings. She has, I believe, the mistaken belief that the production of the duplicate certificate of title is intended in some way to divest her of any interest in the land formerly held by her and her husband in Willunga. The truth of the matter is that she is completely mistaken in that respect. The purpose of the application is simply to register a dealing in the land. The interest which Ms Whitehead holds in the land will remain entirely unaffected by that dealing.
In my view, evasive answers were given by Ms Whitehead because she misunderstood the position and her defence mechanism was to be evasive and obstructive. Alternatively, they were given because of what she perceives to be past wrongs to her. In the result it does not matter what the reason might be. The fact of the matter is that the duplicate certificate of title will not be produced.
The Registrar-General has made this application pursuant to s 227 of the Real Property Act. Section 227 provides:
If any person shall refuse or neglect to obey or comply with the requirements of any such summons the Registrar-General may apply to a Judge for a summons calling upon such person to show cause why he should not obey or comply with the same, and any Judge may, on the hearing of such summons, make such order in the premises as he shall think fit, and unless the Judge shall on such hearing certify that such refusal or neglect was reasonable, such person shall forfeit and pay a penalty, to be enforced by the said Judge not exceeding two hundred dollars.
The terms of s 227 permit me to make such order as I think fit. Section 64 of the Real Property Act provides wide powers to the court in relation to the cancellation of a certificate of title. It is in these terms:
In any proceeding in the Court respecting any land, or any transaction, contract, or application relating thereto, or any instrument, caveat, memorial, or other entry affecting any such land, it shall be lawful for the Court to direct the Registrar-General to cancel, correct, record, substitute, issue or make any certificate, or any memorial or entry in the Register Book, notwithstanding that the relevant duplicate certificate has not been produced to him, or otherwise to do such acts and make such entries as may be necessary to give effect to any judgment, decree or order of such Court given or made in such proceeding, and the Registrar-General shall obey every such direction.
The ultimate purpose of this application is to enable the registration of interests in the land at Willunga consequent on the death of Mr Janson, Ms Whitehead’s former husband. She and her former husband held the land as tenants in common. The production of the duplicate certificate of title is intended for the purpose only of registering two dealings in the land. The first is to register a transmission application to enable the land to be transferred to the late Mr Janson’s executors. The second is to make a transfer to the children of the marriage in order to give effect to the terms of his will, probate of which was granted in this Court on 8 April 2005.
I am prepared to proceed pursuant to s 64 notwithstanding that Ms Whitehead is not represented and notwithstanding my real concern that she has no proper comprehension of these proceedings. Nevertheless, I think she has a sufficient comprehension to know that she could instruct a solicitor if she wished. In any event, and more importantly, the effect of the application has no adverse consequence for the interests of Ms Whitehead. In all material respects Ms Whitehead’s interests remain unaffected by the orders which I will make. She will continue as hitherto to hold her interest in the land at Willunga. On one view of the matter any order will be beneficial to her in that it will facilitate any future dealing in the land.
For these reasons I will make an order authorising the Registrar-General to cancel the existing certificate of title in respect of the land, being Allotment 371 St Johns Terrace, Willunga, and to issue a new certificate of title in respect of the said land. The Registrar-General can then register the transmission application and the transfer on the new certificate of title and issue appropriate duplicates of that title.
The terms of s 227 of the Real Property Act require that a penalty be ordered. The court has no discretion except as to the amount of the penalty. Mr McDonald, who appears for the Registrar-General properly asks for a nominal penalty. He also seeks an order as to costs. It is appropriate that the costs be paid by Ms Whitehead.
For these reasons there will be orders as follows:
1That the Registrar-General be directed to cancel the certificate of title Register Book Volume 5612 Folio 473 in respect of Allotment 371 file plan 164194 in the area named Willunga South in the Hundred of Willunga which allotment is hereafter called ‘the land’ and in lieu thereof issue a new certificate of title.
2That the Registrar-General be authorised to register on the new certificate of title for the land the transmission application of Richard Martin Janson, Michael Alan Janson, Stephen David Janson and Melonie Clare Harris dated 18 July 2005 and the transfer to those persons of the interest of Joseph Janson in the land pursuant to the terms of the Will of Joseph Janson probate of which was granted on 8 April 2005 being the memorandum of transfer dated 18 July 2005 referred to in paragraph 3 of the affidavit herein of Stephen Andrew McDonald sworn on 31 May 2007.
3That Irene Whitehead otherwise known as Irene Jankovsky pay a penalty of $10 to the Registrar-General.
4That the costs of the Registrar-General be paid by Irene Whitehead otherwise known as Irene Jankovsky.