Hypec Electronics Pty Ltd (In Liq) v Registrar-General [2005] NSWSC 1056

New South Wales Supreme Court

CITATION : Hypec Electronics Pty Ltd (In Liq) v Registrar-General [2005] NSWSC 1056

HEARING DATE(S) : 6 October 2005

JUDGMENT DATE : 6 October 2005

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : New certificate of title should issue.

CATCHWORDS : CONVEYANCING [151] - Land titles under the Torrens system - Powers of Court - New South Wales - Order for cancellation of certificate of title and issue of new certificate - Certificate of title cannot be located after all possible inquiries.

Conveyancing Act 1919 s 96(2) LEGISLATION CITED : Real Property Act 1900 s 138

CASES CITED : Botterill v Botterill (2000) 10 BPR 18,787

Hypec Electronics Pty Limited (In Liquidation) (P) Registrar-General of the Department of Lands (D1) Colin Anthony Mead (D2) PARTIES : Lucy Guitar Mead (D3) Mei Chen Yang (D4) Lee Chin-Lien Yang (D5) Wen Hua Tsui (D6)

FILE NUMBER(S) : SC 4413/05

P B Walsh (P and mentioning D2 & 3) COUNSEL : Lorna Lai Man Lam, a friend, by leave (D6)

Deacons (P) K C Hall (D1) Etheringtons (D2) SOLICITORS : D Riggio & Associates (D3) No appearance (D4 & 5) Dennis Wong & Co (D6)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

THURSDAY, 6 OCTOBER 2005

4413/05 HYPEC ELECTRONICS PTY LIMITED v REGISTRAR-GENERAL OF DEPARTMENT OF LAND & ORS JUDGMENT 1 HIS HONOUR: This matter has a number of very curious aspects. Orders similar to those now sought have been sought in earlier proceedings and obtained, but never enforced. However, those orders are orders for the issue of a fresh certificate of title. As they are orders that can be made from time to time, based on the circumstances existing at the time, I shall proceed with the matter and make at least what order the plaintiff appears to be entitled to on the present state of the facts. 2 Campbell J, in proceedings 1268/02, ordered the transfer to the plaintiff of three properties. The transfers are being impeded by the absence of the relevant certificates of title. In respect of one property, referred to in the evidence as the Wentworthville property, the relevant defendants, who are the second and third defendants in these proceedings, consent to an order under s 138 of the Real Property Act 1900 ("the RPA") for the issue of a new certificate of title. 3 Whilst in Botterill v Botterill (2000) 10 BPR 18,787 I warned against the caution with which such orders should be made where a certificate of title cannot be located, because of the risk of having at large two apparently valid certificates of title for the same property, I am satisfied on the evidence that every possible enquiry has been made and the certificate of title just cannot be located. In those circumstances, it is proper for the provision of last resort to be turned to and I propose to make an order that a fresh certificate of title issue in respect of that property. That will have the advantage of facilitating the plaintiff as liquidator getting into at least one of the subject properties and getting access to a source of money to fund the conduct of the liquidation. 4 In respect of the other two properties, referred to in the evidence as the Laughtondale property and the West Ryde property, one of the relevant defendants is the sixth defendant, who is a holder of a mortgage over each of those properties. In this case the certificates of title have been located. The sixth defendant says that she has them, which, as she is a mortgagee, is not surprising. There is absolutely no reason to doubt her word. 5 As the certificates of title are located, s 138 of the RPA is not a source of power to remedy the situation. In relation to those properties, Mr Peter Walsh, of counsel for the plaintiff, seeks an order for the production of the certificates of title under s 96(2) of the Conveyancing Act 1919 ("the CA"). That entitles the mortgagor to have the title lodged at the office of the Registrar General "to allow for the registration of any authorised dealing by the mortgagor of the land". 6 Mr Walsh submits that the relevant transfers are authorised dealings because they are transfers executed under the order of the Supreme Court. However, he is not ready today to give me a full exposition of the history and meaning of the section and authority relating to it. I am at the moment far from certain that the dealings are authorised dealings within the meaning of s 96(2) of the CA. 7 A further complication as to this aspect of the case is that the sixth defendant has previously appeared by solicitors who were said to be getting for her the advice of counsel as to her position in relation to the plaintiff's application. Those solicitors have not filed a notice of ceasing to act, nor have they shown the Court the courtesy of appearing today, nor, indeed, have they had any communication with the Court to indicate that they have ceased to have the sixth defendant's instructions. I am left to be told that by the plaintiff's solicitor, who gives affidavit evidence of a not very clear telephone message left on his firm's answering machine late last evening and by Lorna Lai Man Lam, a friend of the sixth defendant who has appeared here today to ask for an adjournment on the sixth defendant's behalf. The sixth defendant is on business in the USA. In view of that fact and the late desertion of the sixth defendant by her solicitors, I took the unusual step of allowing Lorna Lai Man Lam to appear for the sixth defendant for the purpose only of asking for an adjournment. 8 It seems to me that the strength or weakness of the case in relation to the properties in which the sixth defendant has an interest is a significant factor in whether or not such a last minute adjournment should be allowed. If this were a lost certificate of title, so that s 138 of the RPA was clearly applicable and bearing in mind that the plaintiff does not seek to interfere with the mortgagee's rights, it may have been that there was no justification in the circumstances for an adjournment. However, I have already pointed out that I find some difficulty, which has not been resolved, with the plaintiff's case for relief in relation to the properties in which the sixth defendant has an interest. 9 The result of all the foregoing is that I propose to make orders in accordance with short minutes of order that Mr Walsh will present to the Court at 10am tomorrow. I shall adjourn the balance of the proceedings, part heard, to 10am on 19 October 2005 before me. That adjournment is made partly to meet the application on behalf of the sixth defendant to give her an opportunity to be represented on that day and partly because I require further argument as to the basis on which this case falls within s 96(2) of the CA, or argument as to any other basis on which the orders sought by the plaintiff may be granted. 10 It should be conveyed to the sixth defendant that she is lucky, in all the circumstances, to have obtained an adjournment due to the courageous actions of her friend in coming here and seeking to appear for her in the Supreme Court. But whilst the Court understands she has business in the United States, she cannot expect that a case in which other people also have interests can go on being put off. If she wishes to get advice and to have submissions made for her concerning the matter, she must take whatever steps are necessary to obtain legal advice and to have legal representation on that day.