Van Der Velde as Trustee of the Bankrupt Estate of Jagjit Singh and Trustee of the Bankrupt Estate of Sarbjit Kaur v Singh (No. 2)

[2013] NSWSC 1499

Supreme Court

New South Wales

Medium Neutral Citation:

Van Der Velde as Trustee of the Bankrupt Estate of Jagjit Singh and Trustee of the Bankrupt Estate of Sarbjit Kaur v Singh (No. 2) [2013] NSWSC 1499

Hearing dates:

14 October 2013

Decision date:

14 October 2013

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Order 2 made on 17 September 2013 is varied to read as follows:

An order pursuant to section 15 of the Real Property Act 1900 that the Defendants be required to produce the Certificate of Titles on or before 22 October 2013 for the following properties:

i. the land and premises known as Unit 7, 33 Bowden Street, Harris Park in the State of New South Wales, being the whole of the land comprised in Folio Identifier 7/SP11723; and

ii. the land and premises known as 148 Aberglassyn Road, Rutherford in the State of New South Wales, being the whole of the land comprised in Folio Identifier 1822/1090379.

2. The amended order is to be served on the Defendants by 5pm on 15 October 2013.

Catchwords:

PROCEDURE - slip rule - where order made should have specified a date for the act to be performed - order varied

Legislation Cited:

Real Property Act 1900
Uniform Civil Procedure Rules

Cases Cited:

Barrell Insurances Pty Ltd v Pennant Hills Restaurants Pty Ltd (1983) 58 ALJR 51
L Shaddock & Associates Pty Ltd v Penrith City Council (1982) 56 ALJR 875
Van Der Velde as Trustee of the Bankrupt Estate of Jagjit Singh and Trustee of the Bankrupt Estate of Sarbjit Kaur v Singh [2013] NSWSC 1343

Category:

Interlocutory applications

Parties:

Terry Grant Van Der Velde as Trustee of the Bankrupt Estate of Jagjit Singh and Trustee of the Bankrupt Estate of Sarbjit Kaur (Plaintiff)
Jagjit Singh (First Defendant)
Sarbjit Kaur (Second Defendant)

Representation:

Counsel:
S Quang (Plaintiff)
No appearances (Defendants)
Solicitors:
Grace Lawyers Pty Ltd (Plaintiff)
No appearances (Defendants)

File Number(s):

2013/179289

Judgment

1. On 17 September 2013 I gave judgment on a Notice of Motion filed 6 September 2013: Van Der Velde as Trustee of the Bankrupt Estate of Jagjit Singh and Trustee of the Bankrupt Estate of Sarbjit Kaur v Singh [2013] NSWSC 1343. The judgment dealt with the right of the trustee to obtain possession of the Certificates of Title by reason of his appointment as trustee of the bankrupt estates of the Defendants.

1. I made an order pursuant to s 15 Real Property Act 1900 requiring the Defendants to produce the Certificate of Titles for the properties and an alternative order that,0 if they failed to do so, pursuant to s 138 of the Real Property Act the Registrar-General issue a new Certificates of Title for the properties.

1. At the hearing of the Motion my attention was not drawn to that part of s 15 of the Act which provided that the order must specify a day to be named for the production by the person of the Certificates of Title. Application is now made by the Plaintiff pursuant to r 36.17 UCPR (the "slip rule") to vary order 2 to name a date upon which the Certificates of Title are required to be produced.

1. I am satisfied that the matter falls squarely within r 36.17. If the matter had been raised at the hearing the order would have included a date by which the Certificates of Title were to be produced: Barrell Insurances Pty Ltd v Pennant Hills Restaurants Pty Ltd (1983) 58 ALJR 51; L Shaddock & Associates Pty Ltd v Penrith City Council (1982) 56 ALJR 875 at 876-877.

1. Accordingly order 2 made on 17 September 2013 is varied to read as follows:

(2) An order pursuant to section 15 of the Real Property Act 1900 that the Defendants be required to produce the Certificate of Titles on or before 22 October 2013 for the following properties:

i. the land and premises known as Unit 7, 33 Bowden Street, Harris Park in the State of New South Wales, being the whole of the land comprised in Folio Identifier 7/SP11723; and

ii. the land and premises known as 148 Aberglassyn Road, Rutherford in the State of New South Wales, being the whole of the land comprised in Folio Identifier 1822/1090379.

1. In the circumstances the amended order is to be served on the Defendants by 5pm on 15 October 2013.

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Decision last updated: 14 October 2013