Supreme Court New South Wales Medium Neutral Citation: Prentice v Registrar General [2014] NSWSC 1060 Hearing dates: 01/08/2014 Decision date: 01 August 2014 Jurisdiction: Equity Division Before: McDougall J Decision: Make order pursuant to s 138(3) of the Real Property Act 1900 (NSW) for production of certificate of title. Catchwords: REAL PROPERTY - Torrens title - certificates of title, folios and Crown grants generally - whether appropriate to order the Registrar-General to issue a new certificate of title - whether it is necessary to make an order under s 138(2) so that an order under s 138(3) of the Real Property Act 1900 (NSW) can be made or whether the only order that need be made is one under s 138(3) - whether an order under s 138(2) of the Real Property Act 1900 (NSW) would lack utility Legislation Cited: Real Property Act 1900 (New South Wales) Cases Cited: Botterill v Botterill (2000) 10 BPR 18,787 Crocombe v Pine Forest of Australia Pty Ltd (No 3) (2007) 13 BPR 24,241 Category: Procedural and other rulings Parties: Maxwell William Prentice (Plaintiff) The Registrar General of New South Wales (Defendant) Representation: Counsel: J T Johnson (Plaintiff) Solicitors: Sally Nash & Co Lawyers (Plaintiff) File Number(s): 2014/226727 Judgment (ex tempore - revised 5 august 2014) 1HIS HONOUR: The plaintiff is the trustee in bankruptcy of a Mr Peter John Cashman. The sequestration order was made in the Federal Circuit Court of Australia on 22 August 2013. At that date the bankrupt was registered, subject to various notified interests, as the proprietor of a property at Balmain. The trustee has become registered as proprietor of that property. The most recent search available discloses there are no other relevant registered interests. 2It seems that arrangements have been made to pay out the entire debts of the bankrupt, including costs, and that settlement is expected to occur on Monday next, 4 August 2014. On that date the Federal Circuit Court will hear an application for annulment of the bankruptcy. No doubt, if everything is paid out and the plaintiff as trustee does not oppose the making of the orders, the annulment will occur. 3To enable the annulment to occur, it is necessary that the property at Balmain be mortgaged to an incoming mortgagee, who will provide the necessary funds to underpin the annulment application. 4The only problem is that the certificate of title for the Balmain property cannot be found. Enquiries have been made of the bankrupt, his former wife and his former legal advisers. Those enquiries have been fruitless. 5In those circumstances, the trustee makes application pursuant to s 138 of the Real Property Act 1900 (NSW). That section reads as follows: 138 Court may direct cancellation of folios and other actions related to folios (1) A court may, in proceedings for the recovery of any land, estate or interest from the person registered as proprietor of the land, make ancillary orders of the kind set out in subsection (3), if the court is of the opinion that the circumstances of the case require any such order to be made. (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. (3A) If a court makes an order under subsection (3) (c), the Registrar-General may require a person to lodge with the Registrar-General a plan (being, where the Registrar-General so specifies, a plan of survey) of the relevant land, together with such number of copies of the plan, if any, as the Registrar-General may specify. (4) The Registrar-General must give effect to any such order. (5) A court that makes an order under this section may order that a person deliver a certificate of title or other instrument to the Registrar-General for the purpose of giving effect to any such order. (6) An action does not lie against the Registrar-General for recovery of damages sustained through deprivation of land, or any estate or interest in land, because of compliance by the Registrar-General with an order under this section. (7) In this section: court does not include the Local Court or a tribunal. 6The application has been made on notice to the Registrar General. The Registrar General has not appeared. I have been informed and accept that this is the customary practice in such matters where there is no other, as it were, contradictor. 7It will be seen that s 138(3)(b) of the Real Property Act empowers the Court to order the Registrar General to issue a new certificate of title. To the extent that it is necessary in this day and age, para (c1) authorises the Registrar General to create a new edition of a computer folio. However, as is apparent from subss (1) and (2), the powers in subs (3) are "ancillary". In other words, the powers in subs (3) are not substantive or stand alone powers but, rather, powers that may be exercised ancillary to an application under one of the preceding subsections. 8In those circumstances, it has been said many times and I respectfully agree, that it is necessary that the application under subs (3) be made in a proceeding which claims as substantive relief an order under subs (1) or (2). That is established by, among many others, the judgments of Hamilton J in Botterill v Botterill (2000) 10 BPR 18,787 and Young CJ in Eq in Crocombe v Pine Forest of Australia Pty Ltd (No 3) (2007) 13 BPR 24,241. 9I would not trouble to add to the jurisprudence on this issue except for one reason: the summons that has been filed seeks an order under s 138(2) and, effectively in the alternative, an order under s 138(3). 10I am satisfied on the basis of the evidence that it is appropriate to make an order under s 138(3). However, the question is whether it is necessary to make as well an order under subs (2) or whether the only order (directed to the Registrar General) that need be made is one under subs (3)? 11It is necessary to return to the text of subs (2). That subsection says that in proceedings for production of a certificate of title, the court may make ancillary orders as set out in subs (3) if the court is satisfied that it is not likely that the certificate of title will be produced. (I have paraphrased the subsection only to the extent it is of present relevance.) 12Thus, before an order can be made under subs (3), it is necessary that the Court be satisfied (or, in the language of the statute, form the opinion) that the certificate of title has not been and is not likely to be produced. 13I am satisfied that the certificate of title has not been produced by anyone who is likely to have had it in his possession. I am equally satisfied that it is not likely that any such person will produce it. 14There is a general principle that the Court does not make orders that lack any utility. In this case there is no reason to think that the Registrar General might have the certificate of title in his possession. There is no evidence that any dealing has been registered with the certificate of title so that (for example) by some mishap the dealing might have been registered but the Registrar General's Department might have retained the certificate of title. I say that because the only relevant recent dealing is the application of the trustee to be registered as proprietor on the bankruptcy of the bankrupt, and it is plain on the evidence that that application was made without production of the certificate of title. 15In the circumstances, there does not seem to me to be the slightest point in making an order under subs (2). It is sufficient, I think, that the order has been sought and that, in the course of considering the evidence, the Court can come, as it has, to the conclusion that the certificate of title has not been found and is not likely to be produced. 16The orders sought are that the summons be made returnable and heard forthwith, and that the certificate of title issue in favour of the plaintiff trustee. There are also ancillary orders sought. 17For the reasons I have given, I am satisfied in principle that it is appropriate to make those orders. I will discuss the precise form of the orders with counsel. [Counsel addressed.] 18I reserve liberty to apply on short notice. I make orders in accordance with paras 1 to 5 of the short minutes, amended and initialled by me and dated today. ********** 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: 07 August 2014