New South Wales Supreme Court CITATION : McVeigh v Whitelaw [2005] NSWSC 1112 HEARING DATE(S) : 1 September 2005 JUDGMENT DATE : 1 September 2005 JUDGMENT OF : Brereton J CATCHWORDS : REAL PROPERTY – land under Real Property Act – application by trustee in bankruptcy for cancellation of certificate of title and issue of replacement recording trustees as registered proprietor. Bankruptcy Act 1966 (Cth) LEGISLATION CITED : Conveyancing Act 1919 (NSW) Real Property Act 1900 (NSW) Dean Royston McVeigh PARTIES : Zyna Marie Whiltelaw Wayne Anthony Lewis FILE NUMBER(S) : SC 1215 of 2005 COUNSEL : Mr J Hammond (plaintiff) SOLICITORS : W G McNally & Co (plaintiff) LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BRERETON J Thursday 1 September 2005 1215/05 Dean Royston McVeigh v Zyna Marie Whitelaw & Anor JUDGMENT (ex tempore) 1 HIS HONOUR: By summons filed on 25 January 2005 the plaintiff, Dean Royston McVeigh, who is the trustee in bankruptcy of the first defendant, Zyna Marie Whitelaw, claims the following relief: 1. The first defendant or second defendant, Zyna Marie Whitelaw or Wayne Anthony Lewis, produce to this court Certificate of Title Volume 14662 Folio 161. 2. If the defendant fails to produce the Certificate of Title referred to above in 1 to the court, then the Registrar General take all appropriate steps to cancel the Certificate of Title referred to in 1 and issue a new Certificate of Title with Folio Identifier 137/75547, recording Dean Royston McVeigh and Wayne Anthony Lewis as the registered proprietors as tenants in common in equal shares. 3. Costs. 4. Any such further orders this honourable court thinks fit. 2 The certificate of title referred to in the summons relates to land at Trunk Street, Breeza, near Gunnedah in the State of New South Wales. Prior to the bankruptcy of Ms Whitelaw she and the second defendant, Wayne Anthony Lewis, were the registered proprietors of the Breeza land as tenants in common in equal shares. 3 Ms Whitelaw became bankrupt as a result of a sequestration order made against her ex parte in the Federal Court of Australia, Victoria District Registry, on 18 April 2000. Mr McVeigh had consented to be appointed trustee of her bankrupt estate. 4 On 28 July 2004, Mr McVeigh, as Ms Whitelaw's trustee in bankruptcy, made an application by way of request to the Registrar General that he use his power under Real Property Act 1900 (NSW), s 12(1)(a), to require production of the title documents, the trustee having previously requested that Ms Whitelaw do so to no avail. On the same date, 28 July, the trustee made a bankruptcy application under Real Property Act 1900 (NSW), s 90, to be registered as proprietor of the Breeza land, and it appears that the title has since been amended to reflect the registered proprietors as the trustee and Mr Lewis as tenants in common in equal shares. 5 The trustee now wishes to proceed to make an application under the Conveyancing Act 1919 (NSW), s 66G, for the appointment of trustees for sale of the Breeza land. To carry such a sale to completion, it will be necessary for the vendors to be in possession of the certificate of title. 6 The evidence discloses numerous attempts to make contact with Mr Lewis and with Ms Whitelaw. There has been some contact with Mr Lewis, by telephone. In a conversation between the trustee's solicitor Mr Hill and Mr Lewis on 14 October 2004, Mr Lewis asserted that he did not have the certificate of title but only a photocopy of it, the original being with Ms Whitelaw. The evidence shows that Mr Lewis and Ms Whitelaw continue, apparently, to share a post office box, namely Post Office Box 4070, Lalor Park, New South Wales 2140. 7 As a result of difficulties encountered in locating the Ms Whitelaw and Mr Lewis, the trustee obtained an order for substituted service of the summons by post to that post office box, and the summons was subsequently served in accordance with that order. On 20 July 2005, Einstein J ordered that, to the extent that Ms Whitelaw has possession, custody or control of the certificate of title, she produce it to the court by 1 September 2005 (that is to say, today) and that to the extent that Mr Lewis has possession, custody or control of the certificate of title, he produce to the court on or before this day. His Honour stood the proceedings over to today for the purpose of dealing with the trustee's claim to order 2 in the summons, and costs. 8 A minute of the orders made by Einstein J was forwarded by ordinary pre-paid post to each of the defendants at Post Office Box 4070, Lalor Park on 20 July 2005. Evidence given before me today by the trustee's solicitor, Mr Hill, establishes that there has been no response to the order, either to the trustee's solicitor or to the Registry or to the Court, he having made enquiries of the Registry and having searched the court file. 9 Real Property Act 1900 (NSW), s 138(2), provides that a court may, in proceedings for possession or production of a certificate of title, make certain ancillary orders if of the opinion that the certificate of title has not been or is not likely to be produced by a person for the purposes of the registration of a dealing affecting the land concerned. The ancillary orders referred to in s 138(3) include an order that the Registrar General cancel or amend a folio of the register, cancel amend or make a recording in a folio of the register, create a new file, and/or issue a new certificate of title. 10 As is apparent from the summons and, indeed, from the order already made by Einstein J, these are proceedings for the production of a certificate of title in respect of the land in question. The evidence suggests that Mr Lewis does not have the certificate of title and that Ms Whitelaw has it but, more importantly, the course of endeavours to obtain production of the certificate of title to date, including a formal demand made on Ms Whitelaw pursuant to the trustee's powers under the Bankruptcy Act 1966 (Cth), her failure to respond to that demand, and Mr Lewis' consistent refusal to disclose where he may be contacted physically, warrants the conclusion that not only has the certificate of title not been produced as required, but also that it is not likely to be produced for the purposes of registration of any dealing by the trustee affecting the land concerned in the future. 11 The certificate of title is reasonably required by the trustee for the purposes of enabling the land, in due course, to be vested in trustees for sale pursuant to Conveyancing Act 1919 (NSW), s 66G. Accordingly, the plaintiff has established the grounds referred to in Real Property Act 1900 (NSW), s 138(2), for the making of one or more of the ancillary orders referred to in subsection (3). 12 Pursuant to Real Property Act 1900 (NSW), s 138(2) and (3), I order that the Registrar General cancel the certificate of title volume 14662 folio 161 and issue a new certificate of title with folio identifier 137/75547 recording Dean Royston McVeigh and Wayne Anthony Lewis as the registered proprietors as tenants in common in equal shares. 13 I order that costs of the proceedings be costs in the administration of the bankrupt estate of the first defendant. 14 I direct that Registrar sign and settle a minute of these orders forthwith. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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