Kyabram Property Investments Pty Ltd v Murray [2006] NSWSC 54

Kyabram Property Investments Pty Ltd v Murray [2006] NSWSC 54

Given the destruction of title documents and lack of alternative means for plaintiffs to perfect their mortgage interests, and pursuant to section 138 Real Property Act 1900 and the scope of liberty to apply, the Registrar-General is ordered to create new folios and issue new certificates of title, and indemnity costs are ordered due to contractual obligation.

Jurisdiction
Australia
Judgment Date
10 February 2006
Procedural Posture
Equity Proceedings Application Under Real Property Act 1900 / Post Judgment, Liberty to Apply Following Previous Orders; Ex Tempore Judgment
Outcome
Orders made requiring Registrar-General to cancel and replace folios and issue new certificates of title; defendant ordered to pay plaintiffs' costs on indemnity basis; orders to be entered forthwith.
Legal Topics
['torrens Title' 'rectification of Mortgage' 'issuing New Certificates of Title' 'indemnity Costs' 'supreme Court Procedure' 'liberty to Apply']
['conveyancing' 'property Law' 'equity'] ['torrens Title' 'rectification of Mortgage' 'issuing New Certificates of Title' 'indemnity Costs' 'supreme Court Procedure' 'liberty to Apply']

Case Brief

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Procedural Posture

Equity Proceedings Application Under Real Property Act 1900 / Post Judgment, Liberty to Apply Following Previous Orders; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether new certificates of title should be issued due to destruction of original documents' 'Scope of liberty to apply in the Supreme Court' 'Whether indemnity costs should be ordered under contractual provision in mortgage']

Ratio Decidendi

Given the destruction of title documents and lack of alternative means for plaintiffs to perfect their mortgage interests, and pursuant to section 138 Real Property Act 1900 and the scope of liberty to apply, the Registrar-General is ordered to create new folios and issue new certificates of title, and indemnity costs are ordered due to contractual obligation.

Court Disposition

Orders made requiring Registrar-General to cancel and replace folios and issue new certificates of title; defendant ordered to pay plaintiffs' costs on indemnity basis; orders to be entered forthwith.

Orders

  • ['Registrar-General to cancel specified folios in the Register.' 'Registrar-General to create new folios replacing the cancelled folios.' 'Registrar-General to record interest of Kyabram Property Investments Pty Ltd as mortgagee with specified mortgage and variation numbers in new folios.' 'Registrar-General to...