Botterill v Botterill [2000] NSWSC 1152

Botterill v Botterill [2000] NSWSC 1152

The amended summons made the matter a proceeding for production of a certificate of title within s 138 of the Real Property Act 1900. The certificate of title had not been produced and was not likely to be produced, and the evidence showed any risk that the defendant would use it improperly was very remote, given the uncertainty that he possessed it, his lack of sophisticated dealings, the lapse of time without any attempted dealing, and his practical abandonment of the property. It was therefore appropriate to order the Registrar General to issue a new certificate of title recording the plaintiff as registered proprietor.

Jurisdiction
Australia
Judgment Date
01 December 2000
Procedural Posture
Equity Proceedings for Production of a Certificate of Title and Ancillary Order Under S 138 of the Real Property Act 1900 / Final Judgment on Amended Summons
Outcome
Application granted.
Legal Topics
['torrens Title' 'certificate of Title' 'registrar General' 'matrimonial Property Transfer' 'real Property Act 1900 S 138']
['conveyancing' 'real Property' 'family Law'] ['torrens Title' 'certificate of Title' 'registrar General' 'matrimonial Property Transfer' 'real Property Act 1900 S 138']

Case Brief

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Procedural Posture

Equity Proceedings for Production of a Certificate of Title and Ancillary Order Under S 138 of the Real Property Act 1900 / Final Judgment on Amended Summons

Legal Issues

  1. 1 ['Whether the amended proceedings were proceedings for production of a certificate of title in which an order under s 138 of the Real Property Act 1900 could be made.' 'Whether the evidence justified ordering the Registrar General to issue a new certificate of title despite the missing existing certificate of title.' 'Whether the risk to the integrity of the Torrens register from a possible certificate of title at large was sufficiently remote.' 'Whether service of the amended summons should be dispensed with.']

Ratio Decidendi

The amended summons made the matter a proceeding for production of a certificate of title within s 138 of the Real Property Act 1900. The certificate of title had not been produced and was not likely to be produced, and the evidence showed any risk that the defendant would use it improperly was very remote, given the uncertainty that he possessed it, his lack of sophisticated dealings, the lapse of time without any attempted dealing, and his practical abandonment of the property. It was therefore appropriate to order the Registrar General to issue a new certificate of title recording the plaintiff as registered proprietor.

Court Disposition

Application granted.

Orders

  • ['Service of the amended summons dispensed with.' 'The Registrar General is to issue a new certificate of title to the land comprised in Certificate of Title Folio Identifier 20/6506 recording Mary Jane Botterill as the registered proprietor.' "The defendant is to pay the plaintiff's costs of the proceedings."]