NSW Trustee and Guardian v Obeid [2021] NSWSC 4

NSW Trustee and Guardian v Obeid [2021] NSWSC 4

A registered proprietor who acquires Torrens system land as a volunteer but without notice of any unregistered equitable interest is entitled to indefeasibility of title under s 42 Real Property Act 1900 (NSW) and takes free of such interests; therefore, there is no serious question to be tried as to whether the volunteer’s title is vulnerable in the absence of fraud or notice.

Jurisdiction
Australia
Judgment Date
11 January 2021
Procedural Posture
Interlocutory Application / Hearing and Determination of Application for Interlocutory Injunction
Outcome
Application for interlocutory injunction dismissed with costs.
Legal Topics
['interlocutory Injunctions' 'indefeasibility of Title' 'equitable Interests in Land' 'torrens Title System' 'volunteers Under Torrens System']
['equity' 'property Law'] ['interlocutory Injunctions' 'indefeasibility of Title' 'equitable Interests in Land' 'torrens Title System' 'volunteers Under Torrens System']

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Procedural Posture

Interlocutory Application / Hearing and Determination of Application for Interlocutory Injunction

Legal Issues

  1. 1 ['Whether a volunteer registered proprietor under Torrens title takes free from unregistered equitable interests of which it had no notice' 'Whether there is a serious question to be tried supporting interlocutory relief enjoining dealing with real property']

Ratio Decidendi

A registered proprietor who acquires Torrens system land as a volunteer but without notice of any unregistered equitable interest is entitled to indefeasibility of title under s 42 Real Property Act 1900 (NSW) and takes free of such interests; therefore, there is no serious question to be tried as to whether the volunteer’s title is vulnerable in the absence of fraud or notice.

Court Disposition

Application for interlocutory injunction dismissed with costs.

Orders

  • ["Khaled Elskaf's application to restrain the NSW Trustee & Guardian from dealing with and/or disposing of the land known as ** North Liverpool Road, Heckenberg pending conclusion of the proceedings is dismissed with costs."]