Porter v Low [2018] NSWSC 672

Supreme Court New South Wales

Medium Neutral Citation: Porter v Low [2018] NSWSC 672 Hearing dates: 14 May 2018 Decision date: 14 May 2018 Jurisdiction: Common Law Before: Adamson J Decision: See paragraph [5] Catchwords: ORDERS – possession of property and orders pursuant to s 138 of the Real Property Act 1900 (NSW) to cancel certificate and issue a new certificate of title where bankrupt refuses to relinquish certificate to trustee in bankruptcy Legislation Cited: Real Property Act 1900 (NSW) s 138 Category: Principal judgment Parties: Jason Lloyd Porter (Plaintiff) Lan Heong Low (Defendant) Representation: Counsel: A Power (Plaintiff)

Solicitors: J.S. Mueller & Co (Plaintiff) File Number(s): 2016/344632

Judgment – EX TEMPORE 1. By notice of motion filed on 10 May 2018, Jason Porter (the plaintiff) seeks default judgment on a claim for possession of property of which Lan Heong Low (the defendant) is the registered proprietor (the Property). 2. The plaintiff is the defendant's trustee in bankruptcy. The Property is situated in North Wollongong in the State of New South Wales. The defendant has failed to provide to the plaintiff the certificate of title to the Property. The lack of certificate makes it difficult for the plaintiff to exercise his responsibilities as the defendant's trustee in bankruptcy. 3. The plaintiff seeks judgment for possession of the land and leave to issue a writ of possession forthwith. I assume that this relief is a prelude to the sale of the Property. In order to effect any such sale, the plaintiff seeks an order pursuant to s 138 of the Real Property Act 1900 (NSW). Section 138 empowers this Court to direct cancellation of folios and take other actions relating to folios to regularise the register of land title in circumstance such as these. 4. I am satisfied, on the basis of the affidavits read in support of the notice of motion and the submission of Ms Power, who appears on behalf of the plaintiff, that it is appropriate to make the orders set out below. The defendant has had ample notice of the orders sought by the plaintiff with respect to the Property and its certificate of title.