Bull v Wimble [2004] NSWSC 528

Bull v Wimble [2004] NSWSC 528

The court has authority under s.138 of the Real Property Act 1900 to make orders to facilitate registration, cancellation and replacement of a folio and issue a new certificate of title where the vendor defaults, the transfer is already executed by a Deputy Registrar, and the certificate of title will not be produced. The plaintiffs are entitled to pay the purchase money into court and recoup assessed and further costs from those funds due to the defendant's intransigence.

Parties
First Plaintiff: Murray Leslie Bull; Second Plaintiff: Glenn Robert Stewart; Third Plaintiff: Julie Anne Ann Stewart; Defendant: James Alfred Wimble
Jurisdiction
Australia
Judgment Date
22 June 2004
Procedural Posture
Equity Conveyancing / Post Specific Performance, Orders to Enforce Performance and Ancillary Relief
Outcome
Orders made for payment into court, registration of the transfer, replacement of folio, issue of new certificate of title, delivery of certificate of title to Registrar General, payment of assessed and further costs out of purchase monies, and other ancillary orders.
Legal Topics
Conveyancing, Torrens Title System, Specific Performance, Land Transfer, Vesting Orders, Costs, Court Orders for Title Replacement
Property Law Equity Conveyancing Torrens Title System Specific Performance Land Transfer Vesting Orders Costs +1 more

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Parties

Murray Leslie Bull

First Plaintiff

Glenn Robert Stewart

Second Plaintiff

Julie Anne Ann Stewart

Third Plaintiff

James Alfred Wimble

Defendant

Procedural Posture

Equity Conveyancing / Post Specific Performance, Orders to Enforce Performance and Ancillary Relief

Legal Issues

  1. 1 Whether a vesting order should be made where a Deputy Registrar has executed a transfer due to a defaulting vendor
  2. 2 Whether the Court should order replacement of the folio of the register and issue a new certificate of title under s.138 Real Property Act 1900 when the certificate is not produced
  3. 3 How costs and related orders for recoupment from funds paid into court should be structured

Ratio Decidendi

The court has authority under s.138 of the Real Property Act 1900 to make orders to facilitate registration, cancellation and replacement of a folio and issue a new certificate of title where the vendor defaults, the transfer is already executed by a Deputy Registrar, and the certificate of title will not be produced. The plaintiffs are entitled to pay the purchase money into court and recoup assessed and further costs from those funds due to the defendant's intransigence.

Court Disposition

Orders made for payment into court, registration of the transfer, replacement of folio, issue of new certificate of title, delivery of certificate of title to Registrar General, payment of assessed and further costs out of purchase monies, and other ancillary orders.

Orders

  • Plaintiffs to pay $198,966.31 into court within seven days, held for defendant subject to other orders.
  • Registrar General, upon lodgement of documents, to cancel existing folio, create new folio, and issue new certificate of title recording plaintiffs as proprietors if and when the transfer is recorded.