REGISTRAR GENERAL v SAADE [1992] NSWCA 206

REGISTRAR GENERAL vy SAADE

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, SHELLER JJA and SAMUELS AJA 9 June 1992, 18 June 1992 [1992] NSWCA 206

REAL PROPERTY, ASSURANCE FUND, ESTOPPEL FACTS: Mrs Saade, half owner of matrimonial property, is deprived of her interest in the land by the fraud of her husband who forged her signature on a transfer in favour of Mr Khoury, who was a party to the fraud. Her husband disappears in Lebanon and cannot be sued. In an interlocutory proceeding in 1982 Mrs Saade agrees to withdraw a caveat on the property, and Powell J finds that she is estopped from suing Mr Khoury. She successfully sues. Registrar General appeals.

HELD: No order against the Registrar General can be made under s127. There was always in existence a right conferred by s126 to sue Mr Khoury. When Mrs Saade withdrew the caveat, she did not abandon her claim for that interest. The destruction of one remedy for one's rights, leaving other remedies intact, is not the same as destroying one's rights, particularly if the destruction is neither final nor permanent.

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Real Property Act 1900, s126, s127

Meagher JA After a strenuous contest, the facts as eventually found by Powell J can be simply stated: the hapless Mrs Saade, who was a half-owner of the matrimonial property, was fraudulently deprived of her interest in it by the activities of her husband, who forged her signature to a Memorandum of Transfer of the entire property in favour of Mr Saade Khoury. Mr Khoury was a friend of the fraudulent Mr Saade, was well acquainted with exactly what was happening, and was in all senses particeps criminis. Mrs Saade then bestirred herself to obtain her legal remedies. She could not successfully sue her husband, the person primarily liable for her misfortunes, because he disappeared to an unknown address in Lebanon. (In fact she commenced proceedings against him, but could not serve them on him.) She did sue Mr Khoury, and, after a decent interval, also sued the Registrar General. Powell J held that she could not succeed against the former, but could against the latter. She also sued successfully a Mr Poppert, the solicitor involved in the transaction. From this decision the Registrar General has appealed, but - curiously - Mrs Saade has not, and less curiously - neither has Mr Poppert.