Nicholls v Registrar General [2004] NSWSC 393

New South Wales Supreme Court

CITATION : Nicholls v Registrar General [2004] NSWSC 393 HEARING DATE(S) : 5, 6 & 7 May 2004 JUDGMENT DATE : 7 May 2004 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : Orders that third defendant withdraw caveat and for issue of new certificate of title.

CATCHWORDS : CONVEYANCING [148] - Land titles under the Torrens system - Certificates of title and Crown grants generally - Issue and form of certificate - Application for cancellation of certificate and issue of new certificate of title - Order may be made in proceedings in which court makes a determination as to an estate or interest in land - What constitutes. LEGISLATION CITED : Bankruptcy Act 1966 (Cth) ss 5, 16, 27, 58, 149, 152, 153, 154, 139ZQ, 139ZR, & 139ZS Real Property Act 1900 ss 36(6A), 41, 74MA, & 138 CASES CITED : Botterill v Botterill (2000) 10 BPR 18,787 Re Hannon; Ex parte Official Receiver (1945) 13 ABC 218 Alan Richard Nicholls (P) PARTIES : Registrar General of NSW (D1) Robin Margaret Grant (D2) David Mervyn Cottrell (D3) FILE NUMBER(S) : SC 2580/04 J T Johnson (P) COUNSEL : Submitting appearance (D1) In Person (D2) In Person (D3) Sally Nash & Co (P) SOLICITORS : K C Hall (D1) In Person (D2 & D3)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

FRIDAY, 7 MAY 2004

2580/04 ALAN RICHARD NICHOLLS v THE REGISTRAR GENERAL & ORS JUDGMENT 1 HIS HONOUR: There is a great body of litigation involving the parties who are currently before me. There is no doubt that the third defendant was for a considerable time bankrupt and that the plaintiff was his trustee in bankruptcy. The third defendant was discharged from that bankruptcy by operation of law on 19 April 2004. The second defendant is his sister, Mrs Grant, and she is the registered proprietor of real property ("the property") in which the third defendant claims to have an interest by way of life estate arising from an agreement oral and/or written between her and her brother. There are two elements in the body of litigation. There were extensive proceedings in the Federal Court of Australia relating to the bankruptcy. The second element related to possession of the property. In proceedings in the Common Law Division of this Court the plaintiff obtained an order for possession pursuant to which the second and third defendants have been removed from the property. The third defendant was at one stage resident upon the property. 2 The plaintiff is now seeking to sell the property. He is not, as is apparent from what I have already said, the registered proprietor of the property. However, whilst the bankruptcy was current, he sought to exercise rights over the property through the mechanism of ss 139ZQ and 139ZR of the Bankruptcy Act 1966 (Cth) ("the BA"). Those sections, so far as they are material, are as follows: "139ZQ Official Receiver may require payment