Official Trustee in Bankruptcy v Registrar General for NSW [2006] NSWSC 113

New South Wales Supreme Court

CITATION : Official Trustee in Bankruptcy v Registrar General for NSW [2006] NSWSC 113

HEARING DATE(S) : 20 February 2006

JUDGMENT DATE : 20 February 2006

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Further investigations as to whereabouts of missing certificate of title required.

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 further investigation of whereabouts of certificate of title required.

LEGISLATION CITED : Real Property Act 1900 s 138

Botterill v Botterill (2000) 10 BPR 18,787 CASES CITED : Bull v Wimble (2004) 12 BPR 22,233 Commonwealth of Australia v Official Trustee in Bankruptcy as Trustee of the Property of S Vasil [2004] NSWSC 1155 Nicholls v Registrar General [2004] NSWSC 393

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

MONDAY, 20 FEBRUARY 2006

1498/06 THE OFFICIAL TRUSTEE IN BANKRUPTCY v REGISTRAR GENERAL FOR NEW SOUTH WALES JUDGMENT 1 HIS HONOUR: There is before me a summons for the issue of fresh certificates of title in respect of two properties under s 138 of the Real Property Act 1900. I have delivered two previous judgments concerning applications under that section, which I mention because they both contain features particularly relevant to this application. The first of those judgments is Botterill v Botterill (2000) 10 BPR 18,787; the other is Nicholls v Registrar General [2004] NSWSC 393. 2 The first relevant feature of Botterill is that it emphasises that it is a precondition to the making of an order under s 138(3) that the application be made in proceedings specified in either s 138(1) or s 138(2). The original lack in Botterill was cured by the summons being amended to seek an order for the production to the Court of the certificate of title. 3 At the moment the summons in these proceedings seeks only an order for the cancellation of the certificates of title and the issue of fresh certificates of title and therefore the proceedings do not fall within either s 138(1) or s 138(2). It seems to me that, if an application is made for an amendment of the summons to join Stephen Vasil as a defendant and seeking an order for the production to the Court of the certificates of title, by Stephen Vasil, then they would become proceedings that fall within s 138(2), which would permit an order to be made under s 138(3). 4 The plaintiff has apparently hesitated to sue Stephen Vasil in this fashion, because he has cooperated by providing a letter saying he does not have the certificates of title, since they were seized from him by police officers. However, that statement was not made on oath. Furthermore, there are reasons for doubts about statements made by Stephen Vasil, bearing in mind that he has recently been imprisoned for fraud and there have been other findings which smack of fraud on his part made concerning him in civil proceedings: see the judgment of Young CJ in Eq in Commonwealth of Australia v Official Trustee in Bankruptcy as Trustee of the Property of S Vasil [2004] NSWSC 1155. 5 It is therefore not inappropriate, in my view, for Stephen Vasil to be joined as a defendant and for an order to be sought that he produce the certificates of title to the Court. It would be appropriate for the plaintiff's solicitors to suggest to him that, having been served with the amended summons, he should swear and file, or provide to them, an affidavit in which he deposes that he is no longer in possession of the original certificates of title. 6 The second matter referred to in Botterill and Nicholls supra that is relevant to these proceedings is the caution that I indicated should be exercised in resorting to s 138, in that an order for the creation of a new certificate of title may put into circulation two certificates of title for the same property, with the potentiality for fraud that that situation creates. This was also referred to by Barrett J in Bull v Wimble (2004) 12 BPR 22,233. In this regard, whilst thorough investigations have been set on foot by the plaintiff's solicitors, there are two gaps in the responses which have been received, which means that two possible locations of the certificates of title have not been negatived. 7 The first is the New South Wales Police, who Stephen Vasil says seized the certificates of title from him. They have not answered correspondence seeking their knowledge of the certificates of title. If they will not answer proper enquiries made of them by the plaintiff's solicitors, I suggest that the appropriate course is to issue a subpoena directed in the appropriate way to the Commissioner of Police requiring the production of the certificates of title to the Court. I am quite prepared to contemplate the issue of such a subpoena, since there is evidence which suggests that the certificates of title did pass into the possession of the Police and have not been seen since. 8 Equally, the District Court is a possible location. This is a less likely source than the Police, since there is no clear evidence pointing to the certificates of title passing into the possession of the District Court. The possibility that they are there really arises solely from the fact that that is the Court in which Stephen Vasil's recent criminal trial took place, although it seems the certificates of title did not play any part in the fraud for which he was there prosecuted. A subpoena to the District Court is, of course, not appropriate, but I direct that the Registrar of this Court request that the District Court produce to this Court those certificates of title, if they are in the possession of the District Court. This should lead to their production or a response to the effect that a search has been made and they are not in the possession of the District Court, if that be the situation. 9 I shall stand the matter over to this Friday before me in the Duty List for these matters to be attended to. 10 I make orders in accordance with form of order initialled by me and placed with the papers. **********