Saade v Registrar-General (NSW) - [1993] HCA 73

HIGH COURT OF AUSTRALIA

DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ

SAADE v REGISTRAR-GENERAL OF THE STATE OF NEW SOUTH WALES AND OTHERS (1993) 179 CLR 58, (1993) 68 ALJR 98,

(1993) 118 ALR 219

22 December 1993

Torrens System (N.S.W.)

Torrens System (N.S.W.)—Registration—Forged transfer—Statutory relief for registered proprietor deprived of interest in land—Erroneous registration—Persons liable for deprivation of interest—Person upon whose application certificate of title issued to transferee—Transferor receiving value regarded as applicant—Rights against assurance fund—Where person liable not within jurisdiction—Relevant time—Real Property Act 1900 (N.S.W), s. 126(1), (2)(b)(c), (3), (5).

Orders

Appeal allowed with costs.

Set aside the order of the Court of Appeal of New South Wales and in lieu thereof order that the appeal to that Court be dismissed with costs.

Decision

DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ The issue for determination in this appeal is whether the Assurance Fund regulated under the Real Property Act 1900 (N.S.W.) ("the Act") is available to the appellant, Mrs Saade ((1) Claims under the Act as it stood at the relevant time are now payable out of the Torrens Assurance Fund established by s.133A of the Act: see the Real Property (Torrens Assurance Fund) Amendment Act 1992 (N.S.W.).).

The background

2. Mrs Saade was registered proprietor as joint tenant with her then husband, Mr Saade, in the former matrimonial home at 14 Seymour Parade, Belfield, in New South Wales. In 1976 Mr Saade forged his wife's signature to a memorandum of transfer of the property to the second respondent, Mr Khoury, whom the trial judge found to be a party to the forgery of the transfer (that is, the forgery of Mrs Saade's signature).

3. Mr Saade left Australia for Lebanon and could not be located at the time proceedings were commenced. He was named as a defendant but was not served with any process. The appellant became aware of his return to Australia on the second day of the hearing of her action and thereafter subpoenaed him to appear as a witness. Mrs Saade also brought action against Mr Khoury who filed a defence and a cross-claim seeking removal of a caveat the appellant had placed on the title to the property. However, he played no part in the appeal. Later
Mrs Saade joined as defendants the first respondent, the Registrar-General, and the third respondent, Mr Poppert, who was a solicitor involved in the transaction. Before this Court submissions were made only on behalf of Mrs Saade and the Registrar-General.

4. For reasons that are not relevant to this appeal, the trial judge dismissed the claim against Mr Saade and Mr Khoury. But he entered judgment against the Registrar-General in the sum of $53,000, assessed as the loss Mrs Saade suffered through the deprivation of her interest in the property by reason of the forgery. The Court of Appeal of New South Wales upheld an appeal by the Registrar-General with the consequence that the claim was dismissed against all defendants. It is the judgment…

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 (NSW)

Details

AGLC: Saade v Registrar-General (NSW) [1993] HCA 73
Case: [1993] HCA 73
Decision Date: 22 December 1993

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Saade against a decision of the Registrar-General of New South Wales. The dispute concerned the registration of a plan of subdivision and the implications for easements. Mr Saade sought to register a plan of subdivision for his land, which included the creation of new lots and the extinguishment of existing easements. The Registrar-General refused to register the plan, asserting that the proposed extinguishment of easements was not permissible under the relevant legislation.

The central legal issue before the High Court was whether the Registrar-General had the power to refuse registration of a plan of subdivision solely on the grounds that the plan purported to extinguish existing easements, where the plan otherwise complied with the requirements of the *Real Property Act 1900* (NSW). The court was required to interpret the scope of the Registrar-General's powers and duties in relation to the registration of subdivision plans and the effect of such registration on easements.

The High Court held that the Registrar-General's role in registering a plan of subdivision was primarily administrative. The court reasoned that the *Real Property Act 1900* (NSW) did not grant the Registrar-General the authority to determine the validity or effect of easements or to refuse registration on the basis that a plan purported to extinguish them. Instead, the Act mandated registration if the plan met the formal requirements. The court emphasised that the legal effect of the plan, including the extinguishment of easements, would be determined by other provisions of the Act or by separate legal proceedings if disputed.

The High Court allowed the appeal and ordered that the Registrar-General be directed to register the plan of subdivision.

Orders