Chamberlain v Registrar-General of NSW [2020] NSWSC 923

Supreme Court New South Wales

Medium Neutral Citation: Chamberlain v Registrar-General of NSW [2020] NSWSC 923 Hearing dates: 23 June 2020 Date of orders: 21 July 2020 Decision date: 21 July 2020 Jurisdiction: Equity Before: Darke J Decision: Proceedings dismissed with costs. Catchwords: LAND LAW — Torrens title — claim for compensation from the Torrens Assurance Fund — property of plaintiff company transferred to director of company and his wife in 1997 — transfer effected as part of fraud perpetrated by director — director transferred his interest to wife in 2000 — wife thereafter held title as sole registered proprietor — company commenced statutory derivative proceedings in 2008 against director and wife to recover the land — held at first instance that wife's title was indefeasible but orders for equitable compensation made against director — on appeal company successful in obtaining order that wife held property on trust for it — in 2015 High Court holds that wife's initial title was indefeasible but she held a one-half interest on trust for the company — company makes claim in 2017 for compensation from Assurance Fund — Registrar-General rejects claim on basis that it was made out of time — whether claim for compensation brought outside time stipulated in s 131(2) of Real Property Act 1900 (NSW) — whether "compensable loss" within s 129 of Real Property Act arose more than six years before claim made in 2017 — held that "compensable loss" had been suffered by 15 September 2000 — held that "compensable loss" was not first suffered at time of High Court decision — whether cause of action barred by s 14(1)(d) of Limitation Act 1969 (NSW) — held that six year limitation period commenced to run on 15 September 2000 — held that limitation period was not thereafter suspended on the basis that company was a person "under a disability" within s 52 of Limitation Act — disability provisions of s 52 held to apply only to natural persons — held that in any event company was not substantially impeded by reason of any relevant impairment or restraint — held further that even if under a disability during a period of receivership the limitation period would have expired in March 2012 — no action brought on cause of action before expiry of limitation period — cause of action extinguished — proceedings dismissed. Legislation Cited: Limitation Act 1969 (NSW), ss 11(3), 14(1)(d), 52 Interpretation Act 1987 (NSW), s 21(1) Minors (Property and Contracts) Act 1970 (NSW), ss 8,9 Real Property Act 1900 (NSW), Parts 13 and 14 Real Property Amendment (Compensation) Act 2000 (NSW) Cases Cited: Atlas Tiles Ltd v Briers (1978) 144 CLR 202 Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334; [1999] HCA 9 Baxter v Obacelo Pty Ltd (2001) 205 CLR 635; [2001] HCA 66 Cassegrain v Gerard Cassegrain & Co Pty Ltd [2013] NSWCA 454 Cassegrain v Gerard Cassegrain & Co Pty Ltd (2015) 254 CLR 425; [2015] HCA 2 Challenger Managed Investments Ltd v Direct Money Corporation Pty Ltd (2003) 59 NSWLR 452; [2003] NSWSC 1072 Gerard Cassegrain & Co Pty Ltd v Cassegrain [2011] NSWSC 1156 Gerard Cassegrain & Co Pty Ltd v Cassegrain (2013) 87 NSWLR 284; [2013] NSWCA 453 Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 Haines v Bendall (1991) 172 CLR 60 Lincu v Community First Credit Union Ltd (2019) 19 BPR 39,351; [2019] NSWSC 568 Pedulla v Panetta [2011] NSWSC 1386 Registrar-General (NSW) v Behn (1981) 148 CLR 562 Registrar-General v Cleaver (1996) 41 NSWLR 713 Saade v Registrar-General of NSW (1993) 179 CLR 58 Scarcella v Lettice (2000) 51 NSWLR 302; [2000] NSWCA 289 Sinclair v Registrar-General [2010] NSWSC 173 Category: Principal judgment Parties: Christopher Mel Chamberlain in his capacity as liquidator of Gerard Cassegrain & Co Pty Ltd (in liquidation) (First Plaintiff) Gerard Cassegrain & Co Pty Ltd (in liquidation) (Second Plaintiff) Registrar-General of NSW (Defendant) Representation: Counsel: Mr B A Coles QC with Mr G B Colyer (Second Plaintiff) Mr P Walsh (Defendant)