Lincu v Registrar-General [2019] NSWSC 568

Lincu v Registrar-General [2019] NSWSC 568

The Cross-Claimants satisfied the entitlement gateway in Real Property Act 1900 (NSW) s 129(1), but compensation was not payable because their loss or damage arose from breaches of trust by registered proprietors within s 129(2)(f)(i). The exemption is not confined to losses solely caused by breach of trust and is not confined to non-fraudulent breaches of trust. The fraudulent conduct and the breaches of trust were both operative causes of the loss, and the 2000 and 2009 legislative changes, the structure of Parts 13 and 14, the ordinary meaning of "arises from" and "where", and the historical non-recognition of trusts on the Torrens register supported a complete bar to compensation.

Jurisdiction
Australia
Judgment Date
16 May 2019
Procedural Posture
Cross Claim Seeking Compensation From the Torrens Assurance Fund Under Real Property Act 1900 (nsw) S 129(1)(e) / Principal Judgment Determining the Cross Claim After Hearing
Outcome
Torrens Assurance Fund not liable; cross-claim dismissed.
Legal Topics
['torrens Assurance Fund' 'compensation for Loss of Interest in Land' 'fraud' 'breach of Trust Exemption' 'real Property Act 1900 (nsw) S 129(2)(f)(i)' 'statutory Construction']
['land Law' 'torrens Title' 'equity' 'trusts'] ['torrens Assurance Fund' 'compensation for Loss of Interest in Land' 'fraud' 'breach of Trust Exemption' 'real Property Act 1900 (nsw) S 129(2)(f)(i)' 'statutory Construction']

Case Brief

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Procedural Posture

Cross Claim Seeking Compensation From the Torrens Assurance Fund Under Real Property Act 1900 (nsw) S 129(1)(e) / Principal Judgment Determining the Cross Claim After Hearing

Legal Issues

  1. 1 ['Whether compensation was payable from the Torrens Assurance Fund where the loss or damage arose from fraud that was also a breach of trust by a registered proprietor.' 'Whether Real Property Act 1900 (NSW) s 129(2)(f)(i) applies only where breach of trust is the sole cause of loss or damage.' 'Whether the phrase "breach by a registered proprietor of any trust" in s 129(2)(f)(i) should be confined to non-fraudulent breaches of trust.' 'Whether the "true cause" of the Cross-Claimants\' loss was fraud rather than breach of trust.']

Ratio Decidendi

The Cross-Claimants satisfied the entitlement gateway in Real Property Act 1900 (NSW) s 129(1), but compensation was not payable because their loss or damage arose from breaches of trust by registered proprietors within s 129(2)(f)(i). The exemption is not confined to losses solely caused by breach of trust and is not confined to non-fraudulent breaches of trust. The fraudulent conduct and the breaches of trust were both operative causes of the loss, and the 2000 and 2009 legislative changes, the structure of Parts 13 and 14, the ordinary meaning of "arises from" and "where", and the historical non-recognition of trusts on the Torrens register supported a complete bar to compensation.

Court Disposition

Torrens Assurance Fund not liable; cross-claim dismissed.

Orders

  • ['Cross-claim dismissed.' 'The Court will hear the parties as to costs.']