Registrar-General v Behn [1981] HCA 36

High Court of Australia Gibbs C.J. Mason, Murphy, Aickin and Brennan JJ. Registrar-General v Behn [1981] HCA 36

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

July 28 Gibbs C.J.

This appeal, which is brought from a judgment of the Court of Appeal of the Supreme Court of New South Wales, raises a question as to the construction of s. 126 of the Real Property Act 1900 N.S.W. as amended. It is not in contest that the respondent, the plaintiff in the original proceedings, was deprived of her land in consequence of fraud. The fraud was perpetrated by a company, Cornic Loan and Credits Pty. Ltd. ("Cornic"), through its servant or agent Bodiam. The company is now insolvent and Bodiam is dead. In consequence of the fraud, the respondent agreed to sell the land to Cornic for $50,000, which was very much more than its real value, and gave a signed transfer to Cornic. That company, on 29 September 1972, procured registration of the transfer and became registered proprietor of the land. The purpose of the fraud was to enable Cornic to use the land as security for a loan, and on 20 November 1972 there was registered a mortgage to the Commercial Bank of Australia Ltd. to secure payment of certain moneys. The amount of the mortgage debt exceeds the value of the land. Subsequently the respondent sued Cornic for the balance of the price payable under the contract of sale, and on 7 September 1973 obtained judgment by default against that company for $47,983.17. It is agreed that the judgment is quite valueless; there is no prospect that the respondent will recover anything under it.

In these circumstances the respondent commenced the present action against the Registrar-General. It was agreed that the value of the land at the date of the trial was approximately $21,000 and that the respondent had received $2,016.83 as part of the moneys payable under the contract. The Court of Appeal gave judgment for the respondent for the difference, namely $18,983.17, and it is from that judgment that this appeal is brought.