New South Wales Supreme Court CITATION : Official Trustee in Bankruptcy v Registrar General for NSW [2006] NSWSC 236 HEARING DATE(S) : 8 and 23 March 2006 JUDGMENT DATE : 23 March 2006 JURISDICTION : Equity JUDGMENT OF : Hamilton J DECISION : Issue of fresh certificate of title ordered. 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 - Circumstances in which order made for issue of new certificate of title. LEGISLATION CITED : Real Property Act 1900 s 138 CASES CITED : Official Trustee in Bankruptcy v Registrar General for New South Wales [2006] NSWSC 113 PARTIES : Official Trustee in Bankruptcy (P) Registrar General for NSW (D) FILE NUMBER(S) : SC 1498/06 COUNSEL : J T Johnson (P) No appearance (D) SOLICITORS : Sally Nash & Co (P) No appearance (D) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J THURSDAY, 23 MARCH 2006 1498/06 OFFICIAL TRUSTEE IN BANKRUPTCY v REGISTRAR GENERAL FOR NEW SOUTH WALES & ANOR JUDGMENT 1 HIS HONOUR: The circumstances of this matter up to 20 February 2006 are recorded in my judgment Official Trustee in Bankruptcy v Registrar General for New South Wales [2006] NSWSC 113 and I shall not repeat them here. The matter has been back in court on two occasions between then and today, namely, on 24 February 2006 and on 8 March 2006. On or since 20 February 2006 four steps have been taken: (1) Stephen Vasil was joined as a defendant in the hope that this step might procure further information from him as to the whereabouts of the certificates of title. However, he has not been able to be served, despite efforts. (2) A request was made of the Registrar of the District Court at Sydney to produce the certificates of title. (3) A subpoena was issued to the State Crown Solicitor to produce the certificates of title. (4) A subpoena was issued to the Commissioner of Police to produce the certificates of title. Steps (2), (3) and (4) have had a variety of success. 2 Correspondence has been received from the District Court Registry and from the Crown Solicitor which indicates that appropriate searches have been made and it would seem that the certificates of title are not and never have been in the possession of that Court or the Crown Solicitor. 3 In relation to the subpoena to the Commissioner of Police, this led to the production to the Court of the original of one of the certificates of title, which was in the custody of the Police. While there is no clear evidence as to how this came about, it seems that it may corroborate what Mr Vasil earlier said, to the extent that at least one of the certificates of title was seized from him by the Police under a search warrant. This makes one wonder whether the other certificate of title is not also somewhere in the offices of the Commissioner of Police, particularly as the Police have a copy of it. However, the Court is informed by a written communication from Detective Sergeant Taig, the Fraud Squad Coordinator, that the original of that certificate of title cannot be located. I am told that eight boxes of documents have been thoroughly searched without result. 4 It is a little unsatisfactory in light of the risk of fraud, to which I have already adverted, that the Police are not able to tell the Court whether the second certificate of title was seized in the first place and, if so, what has become of it. However, a situation has been reached where it does seem that search has been made and it cannot now be located. 5 The original certificate of title that has been recovered from the Police may be handed out of court to the plaintiff, who is the person now entitled to it, and who has sold that property under a contract which awaits settlement. Furthermore, more recently, on 14 March 2006 the plaintiff has exchanged contracts for the sale of the second property in respect of which the original certificate of title is still missing. The contract provides for settlement 42 days from exchange. 6 Despite the remaining uncertainty as to the whereabouts of the second certificate of title, I have come to the conclusion that in all the circumstances the time has come to make an order under s 138 of the Real Property Act 1900 for the issue of a fresh certificate of title in respect of the second property. I shall make orders by reference to short minutes brought in to give effect to the decisions recorded in this judgment. ********** 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.