Saade v Registrar-General - [1993] HCATrans 132

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S86 of 1992
B e t w e e n -
NOELEEN SAADE

Applicant

and
REGISTRAR GENERAL

First Respondent

SAADE KHOURY

Second Respondent

RONALD JOHN POPPERT

Third Respondent

Application for special leave
to appeal

Saade

21/5/93

DAWSON J
GAUDRON J

MCHUGH J

TRANSCRIPT OF fROCEEDINGS

AT SYDNEY ON FRIDAY, 21 MAY 1993, AT 9.56 AM

(Continued from 30/4/93)

MR D.M.J. BENNETT, QC: If the Court pleases, I appear for

the applicant with my learned friends,

MR P. HALL, QC and MR D. MALLON. (instructed by
Dibbs Crowther & Osborne)

MR B.A.J. COLES, QC: If Your Honours please, I appear for

the respondent with my learned friend,

MR J.E. SEXTON. (instructed by the Crown Solicitor
for New South Wales)

DAWSON J: Yes, Mr Bennett.

MR BENNETT:

Your Honours, I have an outline of submissions

which I hand to the Court.

DAWSON J: Yes, Mr Bennett.

MR BENNETT:

Your Honours, the section appears at pages 124

and 125. Might I just quickly show Your Honours
the structure of that. It is a very old section.
It goes back to the various Acts in the last
century and the ambiguities in it have been
faithfully preserved when the Act has been
re-enacted.

126.(1) Any person deprived of land .....
(a) in consequence of fraud; .....
may bring and prosecute in any Court ..... an
action for the recovery of damages.

(2) An action ..... shall, ..... be brought -

subject to these other subsections -
against the person -
(b) upon whose application the erroneous

registration was made; or
(c) who acquired title to the land ..... through
the fraud.

So you have got the two people, the fraudster who
achieves the erroneous or fraudulent registration
and the person who gets the benefit of it.

DAWSON J: In this case, Mr Saade and Mr Khoury?

MR BENNETT: Yes, Your Honour. Subsection(3) then says:

In every case in which the fraud, error,
omission, or misdescription occurs upon a
transfer for value -

Saade

21/5/93

that is this case -
the transferor receiving the value -

that is Saade -
shall be regarded as the person upon whose
application the certificate of title was
issued.

So that just confirms that (b) is Saade. It
stresses that is the person we are talking about,
in a sense is the key person. Subsection (4) does
the same thing:

Except in the case of fraud -

well, this was fraud, so the paragraph does not
apply, but it is relevant to the structure -
the person upon whose application such land
was brought under the provisions of this Act,
or such erroneous registration was made -

again, Saade -
shall, upon a transfer of such land bona fide
for value cease to be liable -

so there is special provision that, if there is no
fraud, the person who caused the transfer…

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 Saade v Registrar-General

Details

AGLC: Saade v Registrar-General [1993] HCATrans 132
Case: [1993] HCATrans 132
Decision Date

CaseChat Overview and Summary

The applicant, Mr Saade, sought special leave to appeal to the High Court of Australia against a decision concerning the *Real Property Act 1900* (NSW). The dispute arose from an action for damages brought by Mr Saade, who alleged he had been deprived of land in consequence of fraud. The core of the matter involved the interpretation of provisions within the Act that allowed for recovery of damages from the Registrar-General in certain circumstances.

The legal issues before the Court concerned the interpretation of s 126 of the *Real Property Act 1900* (NSW), particularly subsections (2), (3), (4), and (5). Specifically, the Court was required to determine who constituted "the person upon whose application the erroneous registration was made" and "the person who acquired title to the land... through the fraud" for the purposes of bringing an action for damages. Further, the Court had to consider the circumstances under which an action could be brought against the Registrar-General, particularly when the primary persons liable were dead, bankrupt, or could not be found, and whether this applied where both the transferor and transferee were allegedly involved in the fraud.

The applicant argued that s 126(3) identified the transferor as the person upon whose application the certificate of title was issued, thereby confirming that Mr Saade was the relevant party. The applicant contended that s 126(5) provided a pathway to sue the Registrar-General when the person liable for damages was deceased, bankrupt, or could not be found. The Court considered the structure of s 126, noting that it provided for actions against the person who procured the erroneous registration or who acquired title through fraud, and that s 126(3) clarified the former. The Court also examined the conditions under which liability ceased or an action could be brought against the Registrar-General under s 126(5), including the ambiguity surrounding "the person liable for damages" when multiple parties might be involved in the fraud.

Orders