Matouk v Matouk [2015] NSWSC 1316

Matouk v Matouk [2015] NSWSC 1316

Because the earlier proceedings were proceedings for the recovery of an estate or interest in land from the registered proprietor and the original certificate of title had not been produced by the first Defendant for the purpose of registering the transfer ordered in favour of the Plaintiff, the prerequisites for the exercise of the ancillary power under s 138(3) of the Real Property Act were satisfied and the Registrar-General should be ordered to record the transfer and issue a new certificate of title.

Jurisdiction
Australia
Judgment Date
02 September 2015
Procedural Posture
Equity Proceedings Concerning Torrens Title Land and an Application Under Section 138(3) of the Real Property Act 1900 (nsw) / Notice of Motion Before the Duty Judge in Exercise of Liberty to Apply Following Earlier Orders
Outcome
Notice of motion granted; orders made under s 138(3) and s 138(5) of the Real Property Act.
Legal Topics
['torrens Title' 'certificate of Title' 'registrar General' 'ancillary Orders Under S 138 Real Property Act 1900 (nsw)' 'recovery of Interest in Land']
['real Property' 'equity' 'civil Procedure'] ['torrens Title' 'certificate of Title' 'registrar General' 'ancillary Orders Under S 138 Real Property Act 1900 (nsw)' 'recovery of Interest in Land']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Torrens Title Land and an Application Under Section 138(3) of the Real Property Act 1900 (nsw) / Notice of Motion Before the Duty Judge in Exercise of Liberty to Apply Following Earlier Orders

Legal Issues

  1. 1 ['Whether the earlier proceedings were proceedings for the recovery of land, estate or interest from the registered proprietor within the meaning of s 138(1) of the Real Property Act.' 'Whether the original certificate of title had not been produced for the purposes of registering the transfer to the Plaintiff.' 'Whether the Court should order the Registrar-General under s 138(3) of the Real Property Act to record the transfer and issue a new certificate of title.']

Ratio Decidendi

Because the earlier proceedings were proceedings for the recovery of an estate or interest in land from the registered proprietor and the original certificate of title had not been produced by the first Defendant for the purpose of registering the transfer ordered in favour of the Plaintiff, the prerequisites for the exercise of the ancillary power under s 138(3) of the Real Property Act were satisfied and the Registrar-General should be ordered to record the transfer and issue a new certificate of title.

Court Disposition

Notice of motion granted; orders made under s 138(3) and s 138(5) of the Real Property Act.

Orders

  • ['Being satisfied that the certificate of title to the property, being folio identifier xxxx and being the whole of the land situated at and known as xxxx Mount Pritchard in New South Wales, has not been produced for the purposes of registering the transfer executed by Samia Matouk, the Court ordered the Registrar...