Supreme Court New South Wales Medium Neutral Citation: Lopez v The Office of the Registrar General and anor. [2020] NSWSC 1816 Hearing dates: 14 December 2020 Date of orders: 14 December 2020 Decision date: 14 December 2020 Jurisdiction: Common Law Before: Bellew J Decision: (1) The proceedings are dismissed. (2) The plaintiff is to pay the defendants' costs of the proceedings as agreed or assessed. Catchwords: PRACTICE AND PROCEDURE – Application for summary dismissal – Where plaintiff brought proceedings arising from a refusal of the first defendant to pay compensation from the Torrens Assurance Fund – Where cause of action arose from an unregistered sub-lease – Where there was no loss or damage arising as a result of the operation of the Real Property Act 1900 (NSW) – Compensation not payable – Proceedings dismissed WORDS AND PHRASES – "Operation of the Act" Legislation Cited: Real Property Act 1900 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Dey v Victorian Railways Commissioners [1949] 78 CLR 62; [1949] HCA 1 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] 112 CLR 125; [1964] HCA 69 Perpetual Trustees Victoria v Cipri [2009] NSWSC 335 Category: Procedural and other rulings Parties: Jose Antonio Ponce Garcia Lopez – Plaintiff The Office of the Registrar of General – First Defendant Stephen Prent – Second Defendant Representation: Counsel: Self – Plaintiff L A Walsh – Defendants Solicitors: Solicitor for the Registrar General – Defendants File Number(s): 2020/178124 Publication restriction: Nil Judgment – EX TEMPORE (REVISED) 1. Before the Court for determination are two notices of motion. 2. The first is an amended notice of motion filed by the plaintiff on 21 October 2020 seeking the determination of a separate question or issue, namely whether a fraud has been committed. 3. The second is the defendants' notice of motion filed on 12 August 2020 seeking the dismissal of the proceedings pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (the Rules) 4. There is a large volume of documentary material in evidence. Exhibit A is a Court book containing the relevant pleadings and the principal evidence relied upon by the parties. A further large folder of material relied upon by the plaintiff constitutes exhibit 1, the majority of which was admitted without objection. However, exhibit 1 also contains a further affidavit sworn by the plaintiff on 11 November 2020. An objection was taken by counsel for the defendant to the admission of that evidence on the grounds of relevance. I indicated at the time that I would provisionally admit the material but in light of the conclusion that I have reached regarding the determination of the two notices of motion, it is not necessary for me to canvass the issue of the admissibility of such material any further. 5. The Court book contains an affidavit of Vanessa Jeavons, solicitor, of 12 August 2020. That affidavit establishes the following facts. 6. The plaintiff is a director of the SG Spark Group Pty Ltd and is a purported former sub-lessee of a bar located within restaurant premises at shop 20, 21 Norton Street, Leichhardt (the premises) which formerly traded as La Cocina de la Abuela. The premises consist of four lots, namely lots 50, 58, 59 and 60 within Strata plan 60919. 7. The purported sub-lessors of the bar were Sol & Mar Pty Limited trading as La Cocina de Abuela (Sol and Mar), Marshe Ferreira Abdallah (Abdallah) and Hugo Zepeda (Zepeda). Sol & Mar was deregistered by the Australian Security and Investments Commission on 15 June 2019. 8. A sublease was purportedly entered into by the parties on or about 28 September 2016 for a term of two years, with an option to renew for a further period of two years. That sublease was purportedly made subject to a head lease commencing on 13 October 2016 and terminating on 12 October 2018 with an option to renew for a further period of three years. 9. Neither the purported head lease nor the sublease was ever registered. 10. Against that background, the plaintiff has filed a summons commencing proceedings against the defendants. The plaintiff has conducted these proceedings on his own behalf and has seemingly prepared the pleadings without legal assistance. I mean no disrespect whatsoever to the plaintiff when I make the observation that his precise cause of action is difficult to determine. On one reading of the pleadings, the proceedings appear to be in the nature of an application for judicial review. In any event, and however the precise cause of action that the plaintiff seeks to bring might be categorised, it stems from a decision of the first defendant to refuse the plaintiff payment of compensation from the Torrens Assurance Fund pursuant to Part 14 of the Real Property Act 1900 (NSW) (the Act). 11. The plaintiff lodged his claim for compensation with the first defendant on 23 November 2018. He did not specify the precise amount of compensation which was sought. The first defendant provided the plaintiff with various opportunities to provide evidence in support of his claim. The plaintiff availed himself of those opportunities and provided material for the first defendant to consider. 12. On 17 December 2019 the plaintiff's claim for compensation was refused, on the basis that the plaintiff had failed to establish a nexus between the operation of the Act on the one hand, and the loss or damage he allegedly suffered on the other. In correspondence which passed between the parties subsequent to the decision of the first defendant, it was suggested to the plaintiff that any claim for compensation would be better directed to Sol & Mar. There is material before me that indicates that the plaintiff took that advice on board and commenced proceedings in NCAT seeking damages from Sol & Mar. It appears that those proceedings were successful and resulted in an order being made for the payment of compensation by Sol & Mar to the plaintiff. I am informed by counsel for the defendants, and I accept, that such compensation related to the payment, by the plaintiff, of a bond. 13. Bearing those matters in mind, it appears to be the plaintiff's case against the first defendant that the decision to refuse the payment of compensation under the Act constitutes either a jurisdictional error or an error of law on the face of the record. The second defendant, who is the principal solicitor in the office of the first defendant, is also joined in these proceedings. It would appear that the plaintiff's case against him, at least in part, is that insufficient reasons were provided by him in conveying the first defendant's decision. 14. The pivotal section of the Act for present purposes is s 129(1), which is in the following terms: Circumstances in which compensation payable (1) Any person who suffers loss or damage as a result of the operation of this Act in respect of any land, where the loss or damage arises from: (a) any act or omission of the Registrar-General in the execution or performance of his or her functions or duties under this Act in relation to the land (including any such act or omission of the authorised operator), or (b) the registration (otherwise than under section 45E) of some other person as proprietor of the land, or of any estate or interest in the land, or (c) any error, misdescription or omission in the Register in relation to the land, or (d) the land having been brought under the provisions of this Act, or (e) the person having been deprived of the land, or of any estate or interest in the land, as a consequence of fraud, or (f) an error or omission in an official search in relation to the land, or (g) any error of the Registrar-General in recording details supplied in the notice referred to in section 39 (1B), is entitled to payment of compensation from the Torrens Assurance Fund. 1. The plaintiff seeks to bring himself within the provisions of s 192(1)(e). He alleges, as I understand it, that there was a fraud committed by Abdallah and Zepeda. 2. The short point raised by counsel for the defendants is that even if the plaintiff's allegation of fraud were made out, s 129 has no application in circumstances where neither the head lease nor the sublease was ever registered. This, it was submitted, is because any loss or damage which might have been suffered by the plaintiff could not be said to have been sustained as a result of the operation of the Act. 3. The plaintiff takes issue with the proposition that neither the head lease nor the sublease was ever registered. However, the affidavit evidence to which I have referred is uncontested. 4. It is appropriate to turn to the defendant's notice of motion in the first instance. In the event that I am satisfied that the order sought by the defendant should be made, the plaintiff's amended notice of motion is necessarily rendered otiose. 5. The order sought by the defendants is an order pursuant to r 13.4 of the Rules. The power in r 13.4 to summarily dismiss proceedings is one which must be exercised with caution, and only in the clearest of cases in which the Court is satisfied that the plaintiff's claim is bound to fail. The test to be applied has been expressed in different ways, but the fundamental point to be emphasised is that a case must be clear in order to justify the summary intervention of the Court to make an order preventing a plaintiff from submitting his or her case for determination. Once it appears that there is a real question to be determined, it is not competent for the Court to exercise the power conferred by the rule and dismiss the proceedings. [1] 6. The provisions of s 129 of the Act are clear and unambiguous. They set out the basis of a person's entitlement to the statutory compensation for which the Act provides. It is clear from the opening words of s 129 that the loss or damage in question must result from the "operation of the Act". 7. In determining what is meant by the phrase "operation of the Act" it is necessary to bear in mind that the Act generally, and ss 42 and 43 in particular, create a system of indefeasibility of title by reference, amongst other things, to the registration of instruments. In the present case, the uncontested evidence is that neither the head lease nor the sublease was ever registered. Given the system of indefeasibility of title which is created by the Act, the fact that neither instrument was registered is a sufficient basis upon which to conclude that the requirements of s 129 have not been met, and that any loss or damage which the plaintiff may have suffered does not arise as a result of the operation of the Act. 8. Further, and bearing in mind what I understand to be the basis on which the plaintiff brings his claim, he must establish that the loss of which he complains arises from some act or omission on the part of the first and/or second defendant in the execution and/or performance of their functions and duties under the Act. Neither the first defendant nor the second defendant has performed any function or duty under the Act in relation to the property, because the instruments in question were never registered. [2] 9. For all those reasons, I am satisfied that the test imposed by rule 13.4 has been met. In those circumstances, it is not necessary for me to consider the amended notice of motion filed by the plaintiff. 10. The plaintiff has resisted the making of an order for costs in favour of the defendants on the grounds firstly, that my reasons reflect bias and secondly, that he proposes to bring an appeal against my decision. Neither of those matters persuades me that costs should not follow the event. 11. I make the following orders: 1. The proceedings are dismissed. 2. The plaintiff is to pay the defendants' costs of the proceedings as agreed or assessed. ********** Endnotes 1. See General Steel Industries Inc v Commissioner for Railways (NSW) [1964] 112 CLR 125, [1964] HCA 69 at 128-129 per Barwick CJ, citing Dey v Victorian Railways Commissioners [1949] 78 CLR 62, [1949] HCA 1 at 91 per Dixon J (as his Honour then was). 2. Perpetual Trustees Victoria v Cipri [2009] NSWSC 335 at 61. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2020