ACN 063 346 707 Pty Ltd (formerly known as South Passage Pty Ltd) v Douglas James Marshall [2022] NSWSC 1597

Supreme Court New South Wales

Medium Neutral Citation: ACN 063 346 707 Pty Ltd (formerly known as South Passage Pty Ltd) v Douglas James Marshall [2022] NSWSC 1597 Hearing dates: 21 November 2022 Date of orders: 21 November 2022 Decision date: 21 November 2022 Jurisdiction: Equity - Real Property List Before: Kunc J Decision: Dealings declared to be shams; orders made for register to be amended Catchwords: EQUITY — Equitable fraud — Sham transactions LAND LAW — Torrens title — The register — Correction of the register — Real Property Act 1900 (NSW), s 138 Legislation Cited: Evidence Act 1995 (NSW) Real Property Act 1900 (NSW) Cases Cited: In the Matter of ACN 063 346 708 (formerly known as South Passage Pty Ltd) [2018] NSWSC 1709 Lewis v Condon; Condon v Lewis [2013] NSWCA 204 Category: Principal judgment Parties: ACN 063 346 707 (formerly known as South Passage Pty Ltd) (Plaintiff) Douglas James Marshall (First Defendant) Registrar General of NSW (Second Defendant) Representation: Counsel:

M Bennett (Plaintiff)

Solicitors:

Stacks Law Firm (Plaintiff) File Number(s): 2021/184990 Publication restriction: Nil

EX TEMPORE Judgment (REVISED)

Summary 1. These proceedings are the third time that the conduct of the first defendant (Mr Marshall) and his partner, Ms Karen Chase (Ms Chase), has required the attention of a judge of this Court. That conduct appears to have the sole purpose of vexing their, respectively, brother-in-law and brother Mr Stuart Chase (Mr Chase). 2. The plaintiff (South Passage) is the registered proprietor of a farming property (the Property) on which Mr Chase has lived and worked since 1982. Mr Chase is now the sole director and shareholder of the plaintiff. This was not always the case. 3. In these proceedings, South Passage alleges that three dealings - a lease, a mortgage and a variation of mortgage - purportedly granted to Mr Marshall over the Property when South Passage was under the control of Ms Chase are shams, and therefore void and of no effect. South Passage seeks consequential orders that the second defendant (the Registrar General of NSW) (Registrar General) cancel the recording on the folio for the Property of those purported dealings, together with a caveat lodged by Mr Marshall which relies on them (together the Impugned Instruments). 4. For the reasons which follow, the Court is satisfied that South Passage is entitled to the relief which it seeks. 5. Mr M Bennett of Counsel appeared for South Passage. The Court records its gratitude to him for his thorough and lucid written and oral submissions. There was no appearance for Mr Marshall, who has not filed a defence or any evidence. The Registrar General has entered a submitting appearance save as to costs.