Woodgate as trustee in bankruptcy of Geoffrey Leonard Hadley v Registrar-General [2012] NSWSC 1640

Supreme Court New South Wales

Medium Neutral Citation: Woodgate as trustee in bankruptcy of Geoffrey Leonard Hadley v Registrar-General [2012] NSWSC 1640 Hearing dates: 18 December 2012 Decision date: 18 December 2012 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Registrar-General issue a new certificate of title in respect of the subject property Catchwords: REAL PROPERTY - summons for Registrar-General to issue new certificate of title to trustee in bankruptcy - Real Property Act s 138 Legislation Cited: (NSW) Real Property Act 1900, s 138 Cases Cited: Botterill v Botterill [2000] NSWSC 1152 Darren v MacMahon [2012] NSWSC 761 Category: Principal judgment Parties: Giles Geoffrey Woodgate, trustee in bankruptcy of Geoffrey Leonard Hadley - Plaintiff Registrar-General - First Defendant Representation: Counsel: S Nash (solicitor) - Plaintiff Solicitors: Sally Nash & Co - Plaintiff File Number(s): 2012/ 390504

Judgment 1HIS HONOUR: By summons filed on 17 December 2012, Giles Geoffrey Woodgate, the trustee in bankruptcy of Geoffrey Leonard Hadley, claims an order pursuant to (NSW) Real Property Act 1900, s 138(3)(d), that the Registrar-General issue a new Certificate of Title in respect of the property comprised in the Folio Identifier xx/xxxxx at xx xxxxx xxxxxx, Bathurst, in the State of New South Wales. 2Mr Woodgate is not only the trustee in bankruptcy of Mr Hadley, who was formerly the sole registered proprietor of the property, but is also the trustee for sale of the property pursuant to orders made in the Federal Magistrates Court of Australia in proceedings for property adjustment under the (Cth) Family Law Act 1975, s 79, between Mr Hadley's wife, Mr Hadley and Mr Woodgate. 3Endeavours have been made to obtain the original certificate of title from Mr Hadley - who says that although he has a copy, he does not have the original; from his brother and power of attorney, who resides on the property; from Mr Hadley's wife; from the Commonwealth Bank, which was once the mortgagee of the property; and by advertisement in appropriate newspapers and by relevant searches. 4None of these enquiries has been able to shed light on the whereabouts of the original certificate of title. The last evidence of its existence is, in those circumstances, surprisingly recent, in that the enquiries of the Commonwealth Bank appear to reveal that the title deed, which had been held (presumably) by the security department of the Bank, was released to the Bathurst branch in 2010 following the repayment of all loans and the Commonwealth Bank no longer claiming an interest in the property. 5A letter from the Commonwealth Bank to the plaintiff's solicitors, of 9 May 2012, indicates that the certificate of title and discharge of mortgage was returned to the client on 24 February 2012. A letter from the Commonwealth Bank at its Bathurst branch to Mr Hadley, dated 14 April 2010, apparently enclosed the certificate of title and discharge of mortgage, although all that has been produced from enquiries are copies of those documents. The reference to 24 February 2012 in the Commonwealth Bank's letter of 9 May 2012 seems to be incorrect, having regard to the letter of 14 April 2010, and appears to be derived from a notation "24/2" made in response to the plaintiff's solicitor's inquiry, which may have been misinterpreted by the author of the letter of 9 May 2012. 6I am satisfied that in circumstances where the plaintiff will require the certificate of title in order to register a transfer pursuant to the sale of the property, which has now been effected by exchange of contracts, the certificate of title is not likely to be produced. 7Real Property Act, s 138(2), provides as follows: (2) A court may, in proceedings for the possession or production of a certificate of title or in proceedings in which the court makes a determination as to an estate or interest in land, make ancillary orders of the kind set out in subsection (3), if the court is 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. (3) A court may order the Registrar-General to do one or more of the following: (a) cancel or amend a folio of the Register, (b) cancel, amend or make a recording in a folio of the Register, (c) create a new folio of the Register, (c1) create a new edition of a computer folio, (d) issue a new certificate of title. 8The section is expressed in terms that confers a power to make the relevant order - here, an order under subsection (3)(d): In proceedings for the possession or production of a certificate of title or in proceedings in which the Court makes a determination as to an estate or interest in land. 9In Botterill v Botterill [2000] NSWSC 1152, Hamilton J expressed grave doubt as to whether proceedings in which only an order for the issue of a new certificate of title was sought as the substantive relief could be described as proceedings within that description. His Honour said: The original prayer for a settlement of the defendant's interest in the property on the plaintiff did not appear to meet, given the proceedings, the necessary quality, nor did there appear to me to be any basis for such an order. 10During an adjournment, the summons was amended to claim an order that the defendant produce the certificate of title, and a consequential order that if he failed to do so, a new certificate of title be issued. His Honour concluded that by that amendment, the proceedings became constituted as proceedings for recovery of possession of the certificate of title, in which an order under s 138 could be made. 11The present proceedings are brought in this Court by the trustee - in circumstances where the Federal Magistrate's Court, though it exercises jurisdiction both in bankruptcy and in family law, does not have jurisdiction to make an order under Real Property Act, s 138 - in aid of the obligations of the trustee, pursuant to his appointment as such by the Federal Magistrates Court, including to give effect to the sale of the property which he has been directed to effect by that court. It would be prudent, in the future, to avoid this issue by claiming, as principal relief, an order that the defendant produce the certificate of title, as the proceedings in Botterill v Botterill were amended to do. However, in substance, it seems to me that these proceedings may be characterised as proceedings for the production of a certificate of title, in which it is evident from the outset that such an order would be futile so that, without formally claiming that order, the consequential or ancillary order is being sought at the outset. 12Accordingly, I am satisfied that in substance, though not necessarily in form, these are proceedings for the possession or production of a certificate of title, and as I have recorded, I am satisfied that the certificate of title is not likely to be produced for the purposes of the registration of a transfer by the trustee. The Registrar-General has provided a letter stating that the Registrar-General neither consents to nor opposes the proposed orders. Comfort that there will not be undue jeopardy from the presence or existence of two duplicate certificates of title is provided by the practice of the Registrar-General, described by Stevenson J in Darren v MacMahon [2012] NSWSC 761. 13Pursuant to (NSW) Real Property Act 1900, s 138(3)(d), I order that the Registrar-General issue a new certificate of title in respect of the land contained in folio identifier xx/xxxx situate at and known as xx xxxxx xxxxxxx Bathurst in the State of New South Wales. 14I direct that the Registrar sign and settle a minute these orders forthwith.