Wang v Copko [2008] NSWSC 736

Wang v Copko [2008] NSWSC 736

Because the deceased transferor had died before registration, the signed transfer was no longer an operative document for alteration of the Torrens title, so a vesting order would be required; however, the mortgagee had rights and should be added as a party and given an opportunity to be heard before orders affecting it, including production of the certificate of title, were made.

Jurisdiction
Australia
Judgment Date
16 July 2008
Procedural Posture
Equity Division Proceedings Concerning Torrens Title Transfer and Vesting Order / Application for Leave to Amend the Summons by Adding the Mortgagee as Fifth Defendant
Outcome
Leave granted to the plaintiff to amend the summons by adding the mortgagee as the fifth defendant; matter stood over.
Legal Topics
['torrens System' 'transferor Dies Before Registration of Transfer' 'mortgagee to Be Added as a Party' 'vesting Order' 'certificate of Title']
['conveyancing' 'equity' 'real Property'] ['torrens System' 'transferor Dies Before Registration of Transfer' 'mortgagee to Be Added as a Party' 'vesting Order' 'certificate of Title']

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Procedural Posture

Equity Division Proceedings Concerning Torrens Title Transfer and Vesting Order / Application for Leave to Amend the Summons by Adding the Mortgagee as Fifth Defendant

Legal Issues

  1. 1 ['Whether a transfer signed by a registered proprietor before death remains an operative document for registration after the transferor dies.' 'Whether the mortgagee should be added as a party before orders are made requiring production of the certificate of title and registration of a vesting order.' "Whether the appropriate course is to make a vesting order vesting the deceased's estate in the plaintiff."]

Ratio Decidendi

Because the deceased transferor had died before registration, the signed transfer was no longer an operative document for alteration of the Torrens title, so a vesting order would be required; however, the mortgagee had rights and should be added as a party and given an opportunity to be heard before orders affecting it, including production of the certificate of title, were made.

Court Disposition

Leave granted to the plaintiff to amend the summons by adding the mortgagee as the fifth defendant; matter stood over.

Orders

  • ['Leave to the plaintiff to amend the summons by adding the mortgagee as the fifth defendant.' "The matter is stood over to the judge's list at 9.30am on 31 July 2008."]