New South Wales Supreme Court CITATION : Abbott v Clark [2006] NSWSC 627 HEARING DATE(S) : 14 June 2006 JUDGMENT DATE : 14 June 2006 JURISDICTION : Equity JUDGMENT OF : Hamilton J DECISION : Issue of new 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 – Declaration that co-purchaser with plaintiff who was not intended to take beneficially holds his interest in land in trust for plaintiff – Circumstances in which vesting of property in plaintiff may be effected by issue of new certificate of title. LEGISLATION CITED : Duties Act 1997 s 55(1)(b) Real Property Act 1900 s 138(3) CASES CITED : Abbott v Clark [2006] NSWSC 130 PARTIES : Sylvia Abbott (P) Roy Clark (D) FILE NUMBER(S) : SC 6464/05 COUNSEL : K J Andronos (P) No appearance (D) SOLICITORS : MWA Lawyers (P) No appearance (D) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J WEDNESDAY, 14 JUNE 2006 6464/05 SYLVIA ABBOTT v ROY CLARK JUDGMENT 1 HIS HONOUR: I delivered judgment in this matter on 23 February 2006: Abbott v Clark [2006] NSWSC 130 ("my judgment"). But I have not up to today made final orders. 2 There have since that time been some rather dramatic developments. Mr Andronos, of counsel for the plaintiff, today asked for leave to re-open his case to file additional affidavits. Those affidavits revealed that, since my judgment, by almost superhuman efforts, the defendant has been located in England. He has very frankly and properly acknowledged that he has no beneficial interest in the property and has executed an acknowledgement to that effect. He was proffered a transfer to execute, but has failed to execute it. This was largely because he was asked to see a solicitor concerning the matter, which he has some reluctance to do. In the circumstances, he could not be criticised for this. 3 Mr Andronos has now approached me with orders which he asks me to make. The principal order that he has sought is an order under s 138(3) of the Real Property Act 1900 that the Registrar General issue a new certificate of title naming the plaintiff as the sole registered proprietor of the property. 4 Normally the Court would be reluctant to make an order for the issue of a new certificate of title where there are other mechanisms available for effecting the transfer of the property, ie, in this case by having an appropriate transfer executed by the Registrar on behalf of the defendant. The reluctance is in part because the simple order for the issue of a new certificate of title may avoid the payment of stamp duty which would otherwise be due. 5 However, in this case enquiries of the revenue authorities, which have been conveyed to the Court, suggest that duty would not be payable if it were demonstrated that the transfer was by an apparent purchaser to the real purchaser of the property. That formula is in the Duties Act 1997 s 55(1)(b). It seems to me from the facts proved in this case and found in my judgment that this transfer would fall in that category and I should be prepared to make a specific finding to that effect if it were necessary. 6 Another possible objection to dealing with the matter by the simple issue of a new certificate of title may be the attitude of the Registrar General to this course. But correspondence has been put into evidence that shows that the Registrar General has no objection to this course being followed in this case, provided that, as well as order 2 of the proposed orders, orders 3 and 4 are also made. These will procure the plaintiff's possession of the current certificate of title and record an undertaking by the plaintiff to the Registrar General to lodge a notice of death in respect of the plaintiff's husband, the late John Francis Abbott, who is still on the title as a joint tenant, and the current certificate of title when possession is obtained. Liberty to apply is granted so that if there is any difficulty in carrying out these steps the Court may be approached. 7 On that basis I have made orders in the form of proposed orders presented to me on behalf of the plaintiff. ********** 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.