Kumar v Registrar-General of New South Wales [2021] NSWSC 1103

Supreme Court New South Wales

Medium Neutral Citation: Kumar v Registrar-General of New South Wales [2021] NSWSC 1103 Hearing dates: 22 March; 31 May and 28 July 2021 Date of orders: 31 August 2021 Decision date: 31 August 2021 Jurisdiction: Equity Before: Darke J Decision: Claim for compensation from the Torrens Assurance Fund is refused. Catchwords: LAND LAW – Torrens title — Compensation for loss of interest in land – Torrens assurance fund – plaintiff held an equitable interest as unpaid vendor or as equitable mortgagee – plaintiff's agent left signed withdrawal of caveat form with director of registered proprietor – director dishonestly used form in order to remove plaintiff's caveat as part of refinancing transaction – refinancing transaction involved creation of new interests including new first registered mortgage – new first mortgage secured greater sum – first mortgagee exercised power of sale – proceeds remaining after satisfaction of first mortgage divided by agreement amongst competing claimants – plaintiff received 26% of remaining funds – whether plaintiff deprived of land as a consequence of fraud – whether plaintiff suffered loss or damage as a result of the operation of the Real Property Act – not shown that plaintiff would have been financially better off had refinancing transaction not occurred – plaintiff failed to establish that he suffered loss or damage that falls within s 129(1)(e) of the Act – compensation in any event not payable under s 129(2)(a) of the Act because any such loss or damage is a consequence of acts or omissions of the plaintiff Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(2) Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9(1)(b) Real Property Act 1900 (NSW), ss 42, 43, 43A, 120, 129(1)(e), 129(2)(a) Real Property Amendment (Compensation) Act 2000 (NSW) Cases Cited: Australia Capital Financial Management Pty Ltd v Linfield Developments Pty Ltd (2017) 18 BPR 36,683; [2017] NSWCA 99 Challenger Managed Investments Ltd v Direct Money Corporation Pty Ltd (2003) 59 NSWLR 452; [2003] NSWSC 1072 Chandra v Perpetual Trustees Victoria Ltd (2007) 13 BPR 24,675; [2007] NSWSC 694 Chandra v Perpetual Trustees Victoria Ltd [2008] NSWSC 178 Diemasters Pty Ltd v Meadowcorp Pty Ltd (2001) 52 NSWLR 572; [2001] NSWSC 495 Heid Connell Investments Pty Ltd v Registrar-General (1987) 9 NSWLR 628 Lincu v Registrar-General (2019) 19 BPR 39,351; [2019] NSWSC 568 Thomas v Registrar-General of New South Wales [2019] NSWCA 198 Category: Principal judgment Parties: Mohan Kumar (Plaintiff) Registrar-General of New South Wales (Defendant) Representation: Counsel: Ms P Lane (Plaintiff) Ms L A Walsh (Defendant)