Minister for Education & Training v Canham [2004] NSWSC 274

Reported Decision : (2004) NSW ConvR 56-080

New South Wales Supreme Court

CITATION : Minister for Education & Training v Canham [2004] NSWSC 274 HEARING DATE(S) : 31/03/04, 01/04/04 JUDGMENT DATE : 16 April 2004

JUDGMENT OF : Pearlman AJ DECISION : 1. Declaration that plaintiff has good equitable title; 2. Declaration that plaintiff is entitled to a retransfer; 3. Order that the defendant retransfer property to the plaintiff; 4. Defendant to pay plaintiff's costs.

CATCHWORDS : Equity - Contract for sale of land - Land transferred by mistake - Mistake in transfer executed by vendor - Purchaser knew or ought to have known disputed land not included in sale - Retention of disputed land by purchaser unconscionable - Retransfer ordered. - Torrens system - indefeasibility of title - exceptions - personal equity - equity to order rectification and retransfer for mistake. LEGISLATION CITED : Real Property Act 1900 Fair Trading Act 1987 Frazer v Walker and Ors (1967) 1 AC 569 at 585 Breskvar v Wall (1971) 126 CLR 376 at 384-385 CASES CITED : Grgic v Australian and New Zealand Banking Group Ltd (1994) 33 NSWLR 202 at 222 Tutt and Anor v Doyle and Anor (1997) 42 NSWLR Oh Hiam v Tham Kong (1980) 2 BPR 97130 at 9454 Bahr and Anor v Nicolay and Ors (1988) 164 CLR 604 at 638 Minister for Education and Training PARTIES : v Wilson Sherlock Canham FILE NUMBER(S) : SC 1288/03 COUNSEL : Plaintiff: V B Hughston SC & J M Jagot Defendant: I M Khan SOLICITORS : Plaintiff: Crown Solicitor Defendant: David Geddes Solicitors