Harrison v Office of Registrar General & Anor [2020] NSWSC 626

Supreme Court New South Wales

Medium Neutral Citation: Harrison v Office of Registrar General & Anor [2020] NSWSC 626 Hearing dates: 7 April 2020 and then on the papers Date of orders: 25 May 2020 Decision date: 25 May 2020 Jurisdiction: Equity - Real Property List Before: Kunc J Decision: Orders made for production of certificate of title and issue of new certificate of title in default of production Catchwords: LAND LAW – Torrens title – The register – Order for issue of new certificate of title – Bankrupt refuses to provide certificate of title to trustee Legislation Cited: Bankruptcy Act 1966 (Cth) Real Property Act 1900 (NSW) Cases Cited: Botterill v Botterill [2000] NSWSC 1152; (2000) 10 BPR 18,787 Darren v McMahon [2012] NSWSC 761 Prentice v Registrar General [2014] NSWSC 1060 Woodgate as trustee in bankruptcy of Geoffrey Leonard Hadley v Registrar-General [2012] NSWSC 1640 Category: Principal judgment Parties: Brett Richard Geoffrey Harrison (Plaintiff)

Office of Registrar General ABN 819 138 30179 (First Defendant) Leonie Maree Hartwig (Second Defendant) Representation: Solicitors:

SLF Lawyers (Plaintiff) Office of the Registrar General, Department of Customer Service (First Defendant) Leonie Hartwig (in person) (Second Defendant) File Number(s): 2019/248166 Publication restriction: No

Judgment

Summary 1. The plaintiff (the "Trustee") is the trustee of the bankrupt estate of the second defendant, Ms Leonie Hartwig ("Ms Hartwig"). As the beneficiary of her late mother's estate, Ms Hartwig succeeded to and became the registered proprietor of a property in Dubbo (the "Property"). 2. By summons filed on 9 August 2019, the Trustee seeks, inter alia, an order that the first defendant, the Office of the Registrar General (the "Registrar General") issue to the Trustee a replacement Certificate of Title for the Property. The Trustee requires a Certificate of Title so that, in his capacity as Ms Hartwig's trustee in bankruptcy, he can sell the Property for the purpose of paying out her bankrupt estate's creditors. 3. The Trustee has now been registered as the registered proprietor of the Property. However, he has had to bring these proceedings because Ms Hartwig has repeatedly failed to comply with his requests that she deliver up to him the Certificate of Title to the Property. 4. There can be no doubt that the Property forms part of Ms Hartwig's bankrupt estate and that, in his capacity as her trustee in bankruptcy, the Trustee is entitled to be on the register as the proprietor of the Property. Ms Hartwig has admitted that she has the original Certificate of the Title for the Property. She has failed to comply with the Trustee's requests that she deliver up the Certificate of Title. The Court therefore concludes that, if Ms Hartwig fails to deliver up the Certificate of Title in accordance with an order of the Court, then the Registrar General should be ordered to issue a replacement Certificate of Title. 5. The matter was heard before me initially by telephone hearing (due to the Court's COVID-19 protocols) on 7 April 2020. Mr M J Davis of Counsel appeared on behalf of the Trustee. Ms Hartwig appeared for herself. The Registrar General has filed a submitting appearance in these proceedings, save as to costs. 6. The resolution of the legal issue presented by these proceedings has been straightforward. However, for reasons which will become apparent, it is necessary to set out the procedural aspects of the matter in some detail.