Back v Registrar-General of NSW

Ms Back's claims

1. By way of Statement of Claim filed 25 August 2023, Ms Back seeks statutory compensation in the sum of $146,505, pursuant to ss 129(1), 39(1B) and 134(3) RPA.
2. The plaintiff makes a number of allegations in her Statement of Claim that are somewhat difficult to understand. Ms Back's complaints relate to: 1. The existence of the two private covenants. 2. A development in 2017 of a neighbour's property, alleged to be in breach of the private covenants, or "illegally" permitted. 3. The conversion of her property's paper Certificate of Title to an electronic Certificate. 4. The change on title concerning the local government area, including her 25 July, 12 and 24 August 2022 claims for compensation from the Valuer-General and Paramatta Council for "compulsory acquisition" under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) for her alleged loss of land.
3. On 31 March and 12 April 2023, Ms Back submitted Torrens Assurance Fund claims, under s 131(4) RPA, raising substantially the same claims set out above. These were rejected on 27 June 2023, with reasons. Ms Back alleges the Registrar General provided false information to her when giving those reasons.
4. I also note that in various documents purporting to be "reply" affidavits, Ms Back alleges fraud, falsification of evidence, and forgery on the part of the Registrar-General and its legal representatives.

Summary Dismissal Principles

1. Pursuant to UCPR r 13.4(1), the Court has the power to summarily dismiss a claim: (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim.
2. This power must be exercised with caution. The claim must be "so obviously untenable that it cannot possibly succeed" or "manifestly groundless": General Steel Industries v Commissioner for Railways (1964) 112 CLR 125 at 128-129 (Barwick CJ). A high degree of certainty that the claim will fail if it proceeds to trial in the ordinary way, taking the plaintiff's case at its highest, is required: Simmons v NSW Trustee and Guardian [2014] NSWCA 405 at [196]-[200] (Gleeson JA, Beazley P and Barrett JA agreeing).
3. The Registrar General submits that the proceedings ought to be dismissed due to Ms Back's failure to show that the Court's jurisdiction under s 129(1) RPA has been engaged. As the party invoking the jurisdiction, the onus lies on Ms Back to satisfy the Court that such jurisdiction exists: Meehan v Commissioner of Police (1999) 47 NSWLR 284; [1999] NSWCA 292 at [4] (Mason P, agreeing with Giles JA).
4. Further, the Registrar General submits that Ms Back has not demonstrated that she has suffered loss or damage connected to s 129(1) RPA.

Compensation under the Real Property Act

1. The provisions of the RPA, upon which Ms Back relies for compensation are: 129 Circumstances in which compensation payable (1) Any person who suffers loss or damage as a result of the operation of this Act in respect of any land, where the loss or damage arises from-- … (b) the registration (otherwise than under section 45E) of some other person as proprietor of the land, or of any estate or interest in the land, or (c) any error, misdescription or omission in the Register in relation to the land, or (d) the land having been brought under the provisions of this Act, or (e) the person having been deprived of the land, or of any estate or interest in the land, as a consequence of fraud, or (f) an error or omission in an official search in relation to the land, or (g) any error of the Registrar-General in recording details supplied in the notice referred to in section 39 (1B), is entitled to payment of compensation from the Torrens Assurance Fund. 134 Torrens Assurance Fund (3) The following amounts are payable out of the Torrens Assurance Fund-- (a) any compensation payable under or in connection with this Part, … (c) any costs and expenses incurred by the Registrar-General in connection with any claim for compensation from the Fund, including the payment of compensation in settlement of any such claim, (d) any costs and expenses incurred by the Registrar-General in, or as incidental to, the administration of the Fund, (e) any other amounts required by or under this or any other Act or law to be paid out of the Fund.
2. A causal connection between the loss suffered by Ms Back and the operation of the RPA must be established to ground a claim under s 129(1): Perpetual Trustees Victoria Ltd v Cipri [2009] NSWSC 335 at [61] (Hall J). A causal connection between that loss and one of the matters set out in s 129(1)(a)-(g) must also be established. Causation is assessed with a pragmatic, common-sense approach: Chandra v Perpetual Trustees Victoria Ltd [2008] NSWSC 178 at [16], [17]-[19] (Bryson AJ).

Consideration

1. As noted above, Ms Back has filed voluminous material supporting her claims.
2. However, for the following reasons I consider that Ms Back has failed to demonstrate that any of her claims would engage s 129 in order to substantiate a claim for compensation. Each subsection is considered in turn, identifying why Ms Back has failed.
3. Registration of some other person as proprietor: s 129(1)(b). Ms Back has been the sole registered proprietor of the property since 2012. The mortgage over the property to Westpac was discharged in 2018. There is no evidence that some other person has acquired or registered an interest in the property. Therefore, this section does not apply.
4. Error, misdescription or omission in the Register: s 129(1)(c). No such error, misdescription or omission is disclosed in any material provided to the Court.
5. The land having been brought under the provisions of the RPA: s 129(1)(d). The property was already subject to the RPA from the time Ms Back purchased it.
6. Deprivation of the land as a consequence of fraud: s 129(1)(e). Although Ms Back has made allegations of fraud against the Registrar-General, there is no evidence that she was ever deprived of her land or any interest in it since she became its registered proprietor.
7. Error or omission in an official search: s 129(1)(f). Ms Back complains that copies of title searches adduced by the Registrar-General in evidence are fabricated, on the apparent basis that they bear the date of retrieval and the username of the person who conducted the search. These are not errors or omissions in the search. Ms Back's title is not in jeopardy from these matters. No other errors or omissions are disclosed in the material.
8. Error by the Registrar-General in recording s 39(1B) notice details: s 129(1)(g). Section 39(1B) RPA permits the Registrar-General to refuse to register a dealing affecting any interest in land under the RPA or an application changing the name of a registered proprietor, if a notice in the approved form is not provided. As no such dealing or application is disclosed, and Ms Back remains the sole registered proprietor of the property, there is no demonstrated error falling under this subsection.
9. Therefore, none of Ms Back's complaints arise out of the operation of the RPA. Nor does anything filed identify a link to the circumstances set out in s 129(1). There is also no causal link to any loss. I consider that there is no basis for granting relief under s 129(1).
10. I also accept that s 134(3) RPA does not provide a separate basis for a claim against the Torrens Assurance Fund.
11. I consider there is no basis for, in effect, setting aside the Registrar General's rejection of Ms Back's claim for compensation.
12. For the reasons identified above, I consider it appropriate to dismiss Ms Back's statement of claim summarily.

Other matters

1. For completeness, I note the following.

Unparticularised allegations of fraud

1. In various documents filed in the proceedings, Ms Back has advanced various accusations of fraud, deceit, forgery, contempt, falsification of evidence and manipulation at the Registrar-General and its legal representatives. At directions hearings on 13 October 2023 and 3 November 2023, she also alleged that the Registrar-General had conspired with Parramatta Council and others to defraud her out of part of her land.
2. Recently, Leeming and Kirk JJA stated in Odtojan v Condon [2023] NSWCA 129 at [24]-[25] regarding allegations of fraud made without a proper basis: No-one in this State is above the law, including solicitors and senior counsel. If the respondent has a case to answer then answer it he must. But he is entitled to a fair process in accordance with long-established principles of practice and procedure. The applicant seeks to make allegations against him, and others, of a very grave kind… It is basic law that such allegations should not be made unless there is a proper basis for doing so. It "has frequently been said that fraud must be pleaded distinctly and with particularity and clearly proved": Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 573; [1995] HCA 68; note also UCPR, r 14.14. An "allegation of fraud, or participation in fraud, is not lightly to be made": Saltoon v Lake [1978] 1 NSWLR 52 at 58. The ASOC does not come anywhere near to complying with these longstanding requirements. It was practically inevitable that the whole of it would be struck out if and when such was sought.
3. Here, Ms Back has provided no particulars nor evidence in support of her serious allegations. Nothing on the material before me suggests any proper basis for such allegations. I accept the Registrar General's submission that it cannot properly respond to these allegations when the case against it has been so poorly articulated.

Construction on neighbour's land

1. Ms Back complains about the construction on the neighbouring property and the allegation that it "encroached" on a stormwater line on her property. Even if that is correct, it would not amount to a compulsory acquisition of property that would entitle compensation from the Torrens Assurance Fund. Ms Back also complains that Parramatta Council "illegally" granted development consent in violation of the covenants. As noted above, the covenants were private. If a private covenant provided Ms Back with a claim against her neighbour in relation to a development, it would not be a matter for the Registrar General.
2. Further, neither the Council, nor the neighbour have been joined by Ms Back to the proceedings as defendants, and therefore it would be inappropriate to make any findings against them. It appears from the material filed by Ms Back that the Council considered her complaint was a "civil matter not a council matter".
3. If the complaint amounts to one that there is a reservation and covenant on title relating to a sewerage pipe added in 1968, that is not a matter that now would give rise to compensation to Ms Back.
4. The Valuer-General has not been joined as a party, nor has Ms Back pleaded relief from the Valuer-General. Therefore, it would not be appropriate to order compensation from the Valuer-General.

Nature of title searches and certificates of title

1. The registered title of a property will record dealings from the time they are registered. Therefore, title searches carried out at different times will be different if dealings have been recorded in the interim; different "editions" will exist. Further, a title search will bear the date upon which it was carried out and may bear a reference to the person who carried out the search. Those matters do not impact on the underlying proprietary interest of Ms Back as sole registered proprietor.
2. Further, the change in the Certificate of Title to an electronic form has no negative effect on Ms Back's ownership of her property. Since 11 October 2021, all physical certificates of title have now ceased to be issued and are not necessary by reason of Part 12 of Schedule 3 of the RPA. Dealing AN695391 created an electronic certificate of title for Ms Back's property and was not deceitful. Historical dealings are kept in electronic format and there is no evidence that the Registrar General has falsified any records.

Ms Back's motions

1. On 13 October 2023, Slattery J granted Ms Back leave to file a notice of motion seeking summary dismissal of the Registrar General's defence. On 18 October 2023, Ms Back filed a motion, in the form of a notice to admit, which in substance disputes the authenticity of documents in evidence and repeats the relief sought in the statement of claim.
2. Without leave, she has also sought to file motions dated 29 September 2023 and 7 November 2023. The substance of the 29 September 2023 motion is akin to a reply to the defence and does not seek further relief to the statement of claim. The 7 November 2023 motion reiterates her claims that the Registrar-General has fabricated documents and does not appear to seek any relief.
3. The 18 October 2023 motion makes reference to r 14.28, which enables the Court to strike out pleadings, but does not point to any basis for striking out the defence.
4. For the reasons outlined above in relation to the Registrar General's motion and because of the failure of Ms Back to identify any basis to provide her with the relief she seeks, I will dismiss her motion.

Conclusion

1. I make the following orders: 1. Dismiss the statement of claim on a summary basis, with no order as to costs. 2. Dismiss the plaintiff's 18 October 2023 motion, with no order as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2023