Wang v Copko

[2008] NSWSC 736

CITATION:	Wang v Copko [2008] NSWSC 736
HEARING DATE(S):	16/07/08
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
EX TEMPORE JUDGMENT DATE:	16 July 2008
DECISION:	Leave to the plaintiff to amend the summons by adding the mortgagee as the fifth defendant.
CATCHWORDS:	CONVEYANCING [195]- Torrens system- Dealings- Transferor dies before registration of transfer- Transfer ceases to be an operative document- Mortgagee to be added as a party- Vesting order must then be made vesting the deceased's estate in the transferee.
CASES CITED:	Davis v Williams (2003) 11 BPR 21,313 J A Westaway & Son Pty Ltd v Registrar General (Young J, 6 September 1996, unreported) McVey v Denis (1984) 55 ALR 201 Watt v Lord [2005] NSWSC 53
PARTIES:	Li Ping Wang (P) Daniel Copko (D1) Adam Copko (D2) Ruth Bar-Shimon (D3) The Public Trustee (D4)
FILE NUMBER(S):	SC 2565/08
COUNSEL:	G W McGrath (P) Defendants 1-4 submitted
SOLICITORS:	Austin Haworth & Lexon Legal (Sydney) (P) Defendants 1-4 submitted

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 16 July 2008

2565/08 – WANG v COPKO

JUDGMENT

1 HIS HONOUR: In these proceedings all parties directly affected have consented to the order that the plaintiff seeks. Essentially the plaintiff says that she was the de facto wife of the deceased and that she made very large contributions towards the acquisition of the subject property. She says that she had conversations with the deceased about putting her name on the title and eventually the deceased signed a transfer in which he was the transferor and he and the plaintiff the transferees as joint tenants and their signatures were duly witnessed by Mr Xu, solicitor of Burwood.

2 The plaintiff has come to a settlement with the family members of the deceased. They do not oppose her getting the title. However, the mortgagee will not do anything, it says in its correspondence, until there is a probate of the estate of the deceased produced to it and it is fully paid out. The plaintiff is prepared to pay out the mortgagee whatever it is owed.

3 Neither the estate nor the mortgagee are parties. Mr G W McGrath, who appears for the plaintiff, says that it is idle to make the estate a party as it is clear on the evidence that the estate has no assets. This seems to be right. Everyone who has an interest is not alleging anything to the contrary. However, the mortgagee has certain rights. If it is paid the full amount owing to it, it probably has no alternative but to transfer the mortgage to the plaintiff and the plaintiff can then have the current order registered with the Registrar General and the mortgage vacated.

4 The situation appears to be that when a registered proprietor dies, any transfer that he or she may have signed before death ceases to be an operative document so far as the Registrar General is concerned so that the Registrar General can no longer use it to alter the title. This flows from the decision of the Court of Appeal in McVey v Denis (1984) 55 ALR 201, which was applied by me in J A Westaway & Son Pty Ltd v Registrar General (6 September 1996, unreported) and again by me as a member of the Court of Appeal in Davis v Williams (2003) 11 BPR 21,313 at 21,340 [209]. The matter was recently considered by Gzell J in Watt v Lord [2005] NSWSC 53.

5 Of course, if the Registrar General does register the document, then the transferee will get an indefeasible title, but solicitors could not conscientiously present documents to the Registrar General knowing that the transferor was now dead. Accordingly, what needs to happen is that a vesting order be made vesting the estate previously held by the deceased in the plaintiff. The order should also require the mortgagee to produce the certificate of title. The mortgagee appears to be one of these small-time lenders who might not be fully aware of its obligations.

6 It seems to me that the most practical course is to give leave to the plaintiff to add the mortgagee as a fifth defendant and have the mortgagee served. It may very well consider after looking at these reasons that it will agree that it be paid out, that it will produce the certificate of title and that the vesting order be registered. If it does not, then at its own risk as to costs, it can be heard, but I am a bit reluctant to make an order without giving it the opportunity of being heard in case there is something that I have overlooked.

7 I give leave to the plaintiff to amend the summons by adding the fifth defendant. I stand the matter over to my list at 9.30am on 31 July 2008.

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