New South Wales Supreme Court CITATION : Wilson v Registrar General of New South Wales [2004] NSWSC 1220 HEARING DATE(S) : 13 December 2004 JUDGMENT DATE : 13 December 2004 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : Rectification of transfer and amendment of register ordered CATCHWORDS : EQUITY - rectification - rectification of Real Property Act 1900 transfer which has been registered - appropriate form of order - CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - transfers - transfer mistakenly identifying land intended to be transferred - transfer registered - rectification of transfer - appropriate form of order to achieve rectification LEGISLATION CITED : Real Property Act 1900 In re Colebrook's Conveyances; Taylor v Taylor [1972] 1 WLR 1397 CASES CITED : Re Jay-O-Bees Pty Ltd (in liq); Rosseau Pty Ltd (in liq) v Jay-O-Bees Pty Ltd (in liq) [2004] NSWSC 818; (2004) 50 ACSR 565 White v White (1872) LR 15 Eq 247 Zdrojkowski v Pacholczak (1959) SR NSW 382 Margaret Rose Wilson - First Plaintiff PARTIES : Authur James Dubber - Second Plaintiff Registrar General of New South Wales - Defendant FILE NUMBER(S) : SC 5773/04 COUNSEL : E Cox - Plaintiffs SOLICITORS : Turtons Lawyers - Plaintiffs Submitting appearance - Defendant IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST CAMPBELL J MONDAY 13 DECEMBER 2004 5773/04 MARGARET ROSE WILSON & ANOR v REGISTRAR GENERAL OF NEW SOUTH WALES JUDGMENT – Ex Tempore, revised 13 December 2004 1 HIS HONOUR: The two plaintiffs in this case together owned two parcels of land which were adjacent to each other. They constituted the two parts of a semi-detached cottage. The plaintiffs owned each of those cottages as tenants in common in equal shares. 2 One of the cottages was known as 18A Mount Street, Hurlstone Park. It was the land comprised in lot 1 of DP 529893. The other was known as 18 Mount Street, Hurlstone Park. It was the land comprised in lot 2 DP 529893. Both titles were under the Real Property Act 1900. 3 Both properties were free of mortgage at all relevant times. 4 In May or June of 2000 the second plaintiff offered to give his share in 18 Mount Street to the first plaintiff. The plaintiffs both went to a solicitor, and told him what they wanted to achieve. That solicitor arranged for a valuation of 18 Mount Street to be carried out. He used the valuation so obtained as the basis for paying stamp duty on a Real Property Act 1900 form of transfer from the second plaintiff to the first plaintiff. 5 Unfortunately, the solicitor made a mistake in drawing up the transfer. Instead of transferring lot 2 in DP 529893 the document which he drew transferred the land in lot 1 of DP 529893. 6 The transfer which he drew was signed by both of the plaintiffs, and, after the amount of stamp duty which was appropriate in accordance with the valuation of 18 Mount Street had been paid on that transfer, the transfer was registered. 7 It was only in late 2001 or early 2002, when notices of valuation were received from the Valuer General, that the plaintiffs realised that 18A Mount Street was shown as being solely the property of the first plaintiff, and 18 Mount Street was shown as still being a property of the two of them as tenants in common. 8 There is evidence from both the transferor and the transferee that their intention was to transfer the land at number 18. There is evidence from the solicitor involved in the transaction that he understood that their intention was to transfer the land in number 18, and that he made a mistake in drawing the conveyance. 9 There is power in the Court to rectify a transfer or conveyance in circumstances where a document which has been executed does not carry out the intention of the parties: White v White (1872) LR 15 Eq 247; In re Colebrook's Conveyances; Taylor v Taylor [1972] 1 WLR 1397. The possibility of an order for rectification being made concerning a transfer of Real Property Act 1900 land was recognised by the Full Court of this Court in Zdrojkowski v Pacholczak (1959) SR NSW 382 at 389, provided that all parties who have any interest in the land and could possibly be affected by the rectification are joined in the proceedings. In the present case, the only parties with interests in the land are the two plaintiffs, as there is no mortgage on the property, and there are no other rights in favour of persons other than the two plaintiffs, which might possibly be affected by the orders. 10 As it is crystal clear that a mistake has been made in drawing up the transfer, and also crystal clear what the parties intended to achieve by the transfer document they executed, it is appropriate to grant rectification of the transfer so that it effects what they intended. 11 This is a situation where the amount of stamp duty which is appropriate to the transaction which the parties intended to enter has been paid, so there are no complications of the type which there might be if inadequate stamp duty on the intended transaction had been paid. 12 The only defendant in these proceedings is the Registrar General, who has entered a submitting appearance. 13 Usually when an order for rectification of an instrument is made, the order is endorsed on the instrument which is to be rectified: Seton's Judgments and Orders, 7th ed, (1912) p. 1638-1643, Re Jay-O-Bees Pty Ltd (in liq); Rosseau Pty Ltd (in liq) v Jay-O-Bees Pty Ltd (in liq)[2004] NSWSC 818; (2004) 50 ACSR 565 at [74]. Such an order in the present case would not be either adequate or appropriate. Endorsing the court order on the transfer might well convert the transfer into an instrument which is not in registrable form, and would not of itself be enough to require the Registrar-General to amend the register, so that it showed the first plaintiff alone as the proprietor of 18 Mount Street, and both plaintiffs as the proprietors as tenants in common in equal shares of 18A Mount Street. 14 In this, as in all cases, a court applying equitable principles moulds its order to the particular factual circumstances in which the order is made, making such order as is necessary to achieve the purpose which underlies the equitable principles which are being applied. In the present case, where the transfer has been registered, the intention with which the parties executed the transfer can be given effect to only if the register is altered. I shall order that it be altered. Further, if the register is altered , thereby giving indefeasible title in accordance with its state as so altered, the transfer has no ongoing capacity to be a source of error or confusion. Hence, there is no need to order that the face of the transfer be amended in any way. 15 I make the declarations and orders in paragraphs 1 to 5 of the summons, namely: "1. A declaration that the transfer dated 4 July 2000 between the First and Second Plaintiff intended to transfer the Second Plaintiff's interest in Lot 2 of DP 529893 to the First Plaintiff. 2. A declaration that the said transfer dated 4 July 2000 did not express the true agreement between the First Plaintiff and the Second Plaintiff and was executed under a common mistake. 3. An order that the said transfer dated 4 July 2000 be rectified so as to express the true agreement between the parties that the Second Plaintiff transfer to the First Plaintiff his interest in Lot 2 of DP 529893. 4. An order that the Defendant correct the register in respect of Lot 1 of DP 529893 by removing the transfer recorded on 5 July 2000 being No. 6924360. 5. An order that the Defendant correct the register in respect of Lot 2 of DP 529893 by recording a transfer of 5 July 2000 being No. 6924360." ********** Last Modified: 12/17/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.