DM & Longbow Pty Limited v Registrar-General of NSW [2016] NSWSC 1844

DM & Longbow Pty Limited v Registrar-General of NSW [2016] NSWSC 1844

Because the property was not part of the Chang Family Trust, the Deed of Confirmation concerning that trust had no operation in respect of the property and could not vest it in Longbow under the Trustee Act 1925 (NSW). Longbow was registered only because of a mistaken belief that the property was trust property of the Chang Family Trust, while Lexingcross had held it on a resulting trust for Mr Chang. No third party right protected by indefeasibility would be affected. The Register therefore contained an error of a character correctable under s 12(1)(d), and it was appropriate under s 122(4)(b) to order the Registrar-General to correct Folio 2/605537 by reinstating Lexingcross as...

Jurisdiction
Australia
Judgment Date
15 December 2016
Procedural Posture
Review Under S 122 of the Real Property Act 1900 (nsw) of a Decision of the Registrar General Declining to Correct the Register / Principal Judgment; Ex Tempore; Application Determined
Outcome
Order made directing the Registrar-General to take action to correct an error in the Register.
Legal Topics
['torrens System' 'correction of Errors or Omissions in the Register' 'review of Registrar General Decision' 'resulting Trust' 'change of Trustee' 'mistake']
['real Property' 'equity' 'trusts' 'administrative Law'] ['torrens System' 'correction of Errors or Omissions in the Register' 'review of Registrar General Decision' 'resulting Trust' 'change of Trustee' 'mistake']

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Procedural Posture

Review Under S 122 of the Real Property Act 1900 (nsw) of a Decision of the Registrar General Declining to Correct the Register / Principal Judgment; Ex Tempore; Application Determined

Legal Issues

  1. 1 ["Whether the Registrar-General's refusal to exercise power under s 12(1)(d) of the Real Property Act 1900 (NSW) was reviewable under s 122." "Whether Longbow's registration as proprietor of Folio 2/605537 was an error in the Register capable of correction under s 12(1)(d)." 'Whether correction by reinstating Lexingcross as registered proprietor would impinge upon any right to which indefeasibility attached.']

Ratio Decidendi

Because the property was not part of the Chang Family Trust, the Deed of Confirmation concerning that trust had no operation in respect of the property and could not vest it in Longbow under the Trustee Act 1925 (NSW). Longbow was registered only because of a mistaken belief that the property was trust property of the Chang Family Trust, while Lexingcross had held it on a resulting trust for Mr Chang. No third party right protected by indefeasibility would be affected. The Register therefore contained an error of a character correctable under s 12(1)(d), and it was appropriate under s 122(4)(b) to order the Registrar-General to correct Folio 2/605537 by reinstating Lexingcross as...

Court Disposition

Order made directing the Registrar-General to take action to correct an error in the Register.

Orders

  • ['Pursuant to s 122(4)(b) of the Real Property Act 1900 (NSW), the Registrar-General is to take action to correct the Register in respect of Folio 2/605537 by reinstating Lexingcross Limited as registered proprietor in place of DM & Longbow Pty Limited.' 'No order as to costs.']