Supreme Court New South Wales Medium Neutral Citation: Weston v Phillips [2013] NSWSC 1061 Hearing dates: 30/07/2013 Decision date: 09 August 2013 Jurisdiction: Common Law Before: Garling J Decision: (1)The Certificate of Title, presently in the Court's possession, to the land described in Folio Identifier 54/216093 being the land situated at and known as 34 The Spinnaker, Port Macquarie, NSW, be handed over to the Solicitor for the plaintiffs for the sole purpose of immediate delivery to the Registrar-General in accordance with the order of the Court made on 19 November 2012. (2)The first defendant to pay the plaintiffs' costs of the Motion. (3)Motion otherwise dismissed. Catchwords: REAL PROPERTY - whether certificate of title ought be delivered to the Registrar-General to enable sale of property - no general point of principle Legislation Cited: Conveyancing Act 1919 Evidence Act 1995 Real Property Act 1900 Category: Principal judgment Parties: Paul Weston as Statutory Trustee of land in Folio Identifier 54/216093 (P1) Anthony Elkerton as Statutory Trustee of land in Folio Identifier 54/216093 (P2) Marianne Phillips (D1) Hilda Marion Phillips (D2) Registrar-General, Land & Property Information, NSW (D3) Representation: Counsel: D Hand (P1 & P2) In Person (D1) No Appearance (D2) Submitting Appearance (D3) Solicitors: Bridges Lawyer (P1 & P2) G Bartier (D3) File Number(s): 2012/293506 Judgment 1On 20 September 2012, the plaintiffs, Mr Paul Weston and Mr Anthony Elkerton, in their capacity as statutory trustees for sale of the land described in folio identifier 54/216093 being the land situated at, and known as, 34 The Spinnaker, Port Macquarie ("the land"), commenced proceedings against Ms Marianne Phillips as first defendant and her mother, Mrs Hilda Phillips as second defendant. 2Those proceedings sought judgment for possession of the land, together with leave to issue a Writ of Possession forthwith. As well, the plaintiffs sought an order that the defendants deliver up the Certificate of Title of the land to the RegistrarGeneral. 3Although not originally a party, on 18 July 2013, the Court ordered, with the Registrar-General's consent, and without opposition from Ms Phillips, pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 (UCPR), that the RegistrarGeneral, Land & Property Information NSW be joined as a third defendant to the proceedings. 4The Registrar-General, having been joined on 18 July 2013, filed a submitting appearance. 5When the proceedings were heard on 30 July 2013, the plaintiffs appeared by counsel. Ms Marianne Phillips, the first defendant, appeared for herself. There was no appearance by her mother, Mrs Hilda Phillips, who has not taken any part in the proceedings. 6On 30 July 2013, the plaintiffs, Mr Weston and Mr Elkerton, by way of a Notice of Motion, sought orders, the effect of which was that the Certificate of Title to the land at Port Macquarie be issued by the Registrar-General to them so that they might effect the sale of the property. Background Facts 7It would appear that in 2008, Ms Phillips defaulted upon a contractual obligation into which she had entered with GE Money. That contract related to the finance of a motor vehicle. The motor vehicle was repossessed in September 2008, and apparently sold. 8On 18 December 2009, a Statement of Claim was issued out of the Local Court at Port Macquarie. The sum claimed by GE Money, or its assignee, from Ms Phillips was a little over $8,500. 9In default of any Defence, on 1 February 2010, judgment was entered in the Local Court against Ms Phillips for a total sum of $9,258.64. 10It is apparent that Ms Phillips did not make any payment towards the judgment debt. She made no attempt to set the judgment aside. 11Bankruptcy proceedings were commenced. They were not contested. Accordingly, in June 2010, the Federal Magistrates Court of Australia (now called the Federal Circuit Court of Australia) made a sequestration order. On 2 June 2010, Mr Stephen Dickson was appointed as trustee of the bankrupt estate of Ms Marianne Phillips. 12At the time of the sequestration order, Ms Phillips was registered on the title of the land at Port Macquarie as one of two joint proprietors. The other joint proprietor was her mother. Ms Phillips held the Certificate of Title in her possession. 13On 10 December 2010, Mr Dickson, the trustee in bankruptcy, lodged a request with the Registrar-General, by way of a requisition for production of Certificate of Title under s 12(1)(a) of the Real Property Act 1900 (NSW). 14The text of the request was as follows: "Marianne Gay Phillips ("the Bankrupt") is registered on title as the joint proprietor of the above property and holds the Certificate of Title. The Applicant is the Trustee in Bankruptcy for the estate of the Bankrupt and wishes to lodge a form 04BAP Bankruptcy Application with the LPMA to take transmission of the property and realise the asset. The Applicant has demanded production of the Certificate of Title from the Bankrupt who, by her action, has refused to produce the Certificate. The Applicant seeks to rely on s 12(1)(a) of the Real Property Act 1900 which empowers the Registrar-General to require the Bankrupt to produce the Certificate of Title." 15In about December 2010, following upon this request, the Trustee in Bankruptcy was registered on title as a joint tenant of the property along with the second defendant. 16On 7 September 2011, the Trustee in Bankruptcy commenced proceedings by way of a Summons in the Supreme Court of NSW against Mrs Hilda Phillips for the appointment of trustees upon a statutory trust for sale, pursuant to s 66G of the Conveyancing Act 1919 (NSW). 17On 21 October 2011, the Court made orders, appointing the plaintiffs as trustees of the land, free from encumbrances affecting the undivided share or shares held by the trustees. The Orders also noted that the trustees were at liberty to sell the land by public auction, pay certain expenses out of the proceeds of sale and account to the parties for their portion of the balance. 18In March and April 2012, the trustees formally demanded the production of the Certificate of Title from both the first and second defendants, and also from a firm of lawyers who had been acting for the first defendant. Those demands were then, and remain now, unmet. 19On 14 August 2012, the plaintiffs became the registered proprietors of the land. They were noted as joint tenants. On 20 September 2012, the present proceedings were commenced seeking, as I have noted earlier, inter alia, possession of the property. 20On 19 November 2012, the Court entered judgment in favour of the plaintiffs against both defendants for possession of the property. As well on that day, the Court made an order to the following effect: "The first defendant is to deliver the certificate of title of the land to the Registrar-General on a date that is two weeks from the date of judgment." 21Delivery of the Certificate of Title did not occur by the date specified in that Order. It has not happened at any later time. 22On 21 January 2013, acting at the request of the plaintiffs, and in consequence of a Writ of Possession, which had been issued on 14 January 2013, the Sheriff of NSW issued a Notice to Vacate the land which was addressed to the first and second defendants. 23On 28 February 2013, officers of the Sheriff of NSW attended at the land and executed the Writ of Possession. The residence had been vacated by the occupants, the premises secured, the locks changed and possession given to the plaintiffs' agent. 24The plaintiffs now wish to effect the sale of the property in accordance with the Court's orders. However, in order to do so they require the Certificate of Title, or else an order that the Registrar-General issue a new Certificate of Title having cancelled the one that is held by the first defendant. 25Prior to the commencement of proceedings, at the request of the plaintiffs the Registrar-General made a number of attempts to obtain the Certificate of Title held by the first defendant. These attempts were unsuccessful. If a new Certificate of Title is to be issued, then the Registrar-General will do so, but only pursuant to an order of the Court. These Proceedings 26The Notice of Motion, which grounds the relief sought, was filed on 4 June 2013. In addition to seeking orders that the Registrar-General be joined, the plaintiffs sought an order in the following terms: "An order pursuant to s 138(3)(d) of the Real Property Act 1900 (NSW) that the Registrar-General issue a new certificate of title for the land comprised in folio identifier 54/216093 being the land situated at and known as 34 The Spinnaker, Port Macquarie in the State of New South Wales." 27Substituted service was sought on the first defendant. 28The matter was first returnable before the Court on 18 July 2013, when the first defendant, Ms Marianne Phillips, appeared. 29On that day, Ms Phillips applied for a stay of the proceedings for a six month period. That stay was refused. She then applied for an adjournment to enable her to consult with her lawyer, who was then out of the jurisdiction but was returning within a relatively short time. The plaintiffs opposed that adjournment. 30In the course of debate about that adjournment, it became apparent, and there was no dispute, that Ms Phillips had in her possession at Court, the Certificate of Title to the land which she had been ordered to deliver to the Registrar-General by this Court on 19 November 2012. It was this Certificate of Title which the Registrar-General had made unsuccessful attempts to obtain. 31As the matter was before the Court for the hearing of the Notice of Motion, and Ms Phillips was a person compellable to give evidence, the Court, on the application of the plaintiffs, made an order pursuant to s 36 of the Evidence Act 1995, that she produce to the Court the Certificate of Title which was in her possession in the courtroom. Ms Phillips complied with the order. The Certificate of Title was placed into the Court's custody. 32Having regard to the order which had been previously made by the Court, that she produce the Certificate of Title to the Registrar-General, and having regard to her failure to comply with that order, I was equally satisfied that the Court could make such an order in its inherent jurisdiction as an order in support of, or in facilitation of, the original order of the Court. 33It was made clear to Ms Phillips that the making of the order did not preclude her from making any further submissions as to what orders the Court should make with respect to the requirement that she produce the Certificate of Title to the Registrar-General, as the plaintiffs had originally sought. 34The hearing of the proceedings was adjourned for two weeks to enable Ms Phillips to obtain legal advice. 35The proceedings resumed on 30 July 2013. Ms Phillips again appeared without representation. She indicated that she sought a further stay of the proceedings for six months, during which time she anticipated that an application would be made to the Local Court to set aside the original judgment, and then proceedings could be taken to annul the bankruptcy. It was apparently the ultimate aim of all of the proceedings to restore the land to her. 36Ms Phillips did not adduce any evidence in support of that application for a six month stay. The terms of the stay being sought were identical to the stay that she had unsuccessfully sought on 18 July 2013. 37Ms Phillips did not produce a copy of any application which she intended to make to the Local Court to set aside the judgment, nor was she able to articulate the grounds upon which the Local Court could be satisfied that the judgment of 2010 could be set aside. 38In the course of submissions, Ms Phillips could not point to any sufficient justification for the delay which had occurred since the Local Court judgment was first entered, and for her failure to take any steps prior to now to initiate and prosecute such application. 39A question also arose as to whether, having regard to the fact that the judgment had been the basis of the sequestration order made by the Federal Magistrates Court of Australia (as it then was), there now existed any basis upon which a Court would be entitled to set it aside. However, as this was a question upon which I did not receive any submissions from either Ms Phillips or the plaintiffs' solicitor, it is preferable that I do not determine it. Discernment 40There was no basis in the material placed before the Court for it to make any order further delaying the hearing and determination of these proceedings. 41That is because no ground is identified by Ms Phillips, upon which this Court could properly conclude, that she had any reasonable prospect that the Local Court would set aside the judgment which was entered over three years ago, nor that the sequestration order would be annulled. 42In particular, in the absence of any explanation for the very lengthy delay between when the judgment was entered and, when it seems that she intends to make an application for the Local Court judgment to be set aside, this Court has no basis to conclude that such an application would succeed, or else has any reasonable prospect of success. In those circumstances, the interests of justice do not permit the further delaying of the hearing and determination of this application. 43Accordingly, the application by Ms Phillips for a stay of the proceedings for six months must be dismissed. What Orders Should be Made? 44Having regard to the fact that the Certificate of Title is in the Court's possession, the order presently sought in the Notice of Motion is inapt. The plaintiffs sought to amend their Notice of Motion so as to have the Court make an order that the requisite Certificate of Title, which was handed to the Court on 18 July 2013, be handed over to the solicitor for the plaintiffs for the sole purpose of delivery to the Registrar-General in accordance with the order of the Court made on 19 November 2012. 45Ms Phillips continued to oppose any such order but, in light of the events that had occurred, her opposition was not directed to the form of the order, but to its substance. It was Ms Phillips' submission, that the Court would not make any order about the Certificate of Title because this would permit the sale of the land to occur in the circumstances when she says that she wished to set aside her bankruptcy, and ultimately take back the property. 46Ultimately the position appears to be this: the Court has previously ordered that the plaintiffs be appointed trustees for the sale of the land at Port Macquarie. In order to sell that land, the plaintiffs need the original Certificate of Title to be produced to the Registrar-General. 47Application has been made to stay the proceedings for a lengthy period. That application has been dismissed. 48The Court's original orders of November 2012 still stand. I did not understand Ms Phillips to suggest that those orders were not properly made. I did not understand her to suggest that the order for the production of the Certificate of Title was not properly made. Rather, she was seeking to attack her status as a bankrupt by first seeking to have the Local Court judgment set aside. 49But, as has been explained earlier, she has not established that she has any real prospects of success in making the application to have that judgment set aside. 50In all of the circumstances, it seems to me that the interests of justice require that the orders now sought by the plaintiffs be made, and that the Certificate of Title be handed over to the Registrar-General via the solicitor for the plaintiffs. 51The plaintiffs sought an order for costs against both defendants. The second defendant has not appeared and has taken no part in the proceedings. It is not suggested that she ever had the Certificate of Title. In those circumstances, I can see no basis for an order against her for costs. 52The usual order for costs ought be made against the first defendant, Ms Phillips. Since she continues to be a bankrupt, the effect of that order will be a matter between the plaintiffs and the Trustee in Bankruptcy. Orders 53I make the following orders: (1)The Certificate of Title, presently in the Court's possession, to the land described in Folio Identifier 54/216093 being the land situated at and known as 34 The Spinnaker, Port Macquarie, NSW, be handed over to the Solicitor for the plaintiffs for the sole purpose of immediate delivery to the Registrar-General in accordance with the order of the Court made on 19 November 2012. (2)The first defendant to pay the plaintiffs' costs of the Motion. (3)Motion otherwise dismissed. ********** 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. Decision last updated: 09 August 2013