Harrison v Office of Registrar General & Anor [2020] NSWSC 626

Harrison v Office of Registrar General & Anor [2020] NSWSC 626

Because the Trustee was Ms Hartwig's trustee in bankruptcy and the current registered proprietor of the Property, he was entitled to possession of the Certificate of Title. The proceedings were for possession or production of a certificate of title, enlivening s 138 of the Real Property Act 1900 (NSW). Ms Hartwig admitted having the current Certificate of Title and, given her repeated refusal, objection and subsequent disengagement, the Court was satisfied that it had not been and was not likely to be produced for registration of a dealing affecting the Property. Orders requiring delivery up and, in default, issue of a replacement Certificate of Title were therefore appropriate.

Jurisdiction
Australia
Judgment Date
25 May 2020
Procedural Posture
Equity Real Property List; Proceedings for Production of a Certificate of Title and Ancillary Orders for Issue of a Replacement Certificate of Title / Principal Judgment After Telephone Hearing and Determination on the Papers
Outcome
Orders made for production of the Certificate of Title and for issue of a replacement Certificate of Title in default of production; parties to be given an opportunity to make submissions as to costs.
Legal Topics
['torrens Title' 'certificate of Title' 'replacement Certificate of Title' 'trustee in Bankruptcy' 'real Property Act 1900 (nsw) S 138' 'bankruptcy Act 1966 (cth) S 58']
['land Law' 'real Property' 'bankruptcy'] ['torrens Title' 'certificate of Title' 'replacement Certificate of Title' 'trustee in Bankruptcy' 'real Property Act 1900 (nsw) S 138' 'bankruptcy Act 1966 (cth) S 58']

Case Brief

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Procedural Posture

Equity Real Property List; Proceedings for Production of a Certificate of Title and Ancillary Orders for Issue of a Replacement Certificate of Title / Principal Judgment After Telephone Hearing and Determination on the Papers

Legal Issues

  1. 1 ['Whether the plaintiff, as trustee in bankruptcy and registered proprietor, was entitled to possession of the certificate of title for the Property.' 'Whether the proceedings satisfied the preconditions in s 138(2) of the Real Property Act 1900 (NSW) for ancillary orders under s 138(3).' 'Whether the certificate of title had not been, or was not likely to be, produced by the second defendant for the purposes of registration of a dealing affecting the land.' 'Whether the Registrar General should be ordered to issue a replacement certificate of title if the second defendant failed to deliver up the existing certificate of title.']

Ratio Decidendi

Because the Trustee was Ms Hartwig's trustee in bankruptcy and the current registered proprietor of the Property, he was entitled to possession of the Certificate of Title. The proceedings were for possession or production of a certificate of title, enlivening s 138 of the Real Property Act 1900 (NSW). Ms Hartwig admitted having the current Certificate of Title and, given her repeated refusal, objection and subsequent disengagement, the Court was satisfied that it had not been and was not likely to be produced for registration of a dealing affecting the Property. Orders requiring delivery up and, in default, issue of a replacement Certificate of Title were therefore appropriate.

Court Disposition

Orders made for production of the Certificate of Title and for issue of a replacement Certificate of Title in default of production; parties to be given an opportunity to make submissions as to costs.

Orders

  • ['On or before 1 June 2020, the Second Defendant is to deliver up into the possession of the Plaintiff the Certificate of Title for Lot X in Strata Plan XXXXX, being X/XXX Street, Dubbo New South Wales 2830.' 'If the Second Defendant does not comply with Order 1, then upon the First Defendant receiving a statutory...