Botterill v Botterill

These proceedings are now constituted, and properly so in my view, as proceedings for recovery of possession of the certificate of title, in which an order under s 138 of the RPA may be made, being proceedings for the production of a certificate of title. There will therefore be no necessity to consider (as I had once considered possible) whether the Family Court proceedings mentioned below need to be sent to this Court so that there may be a proceeding for recovery of land in which to make an order. 4 Secondly, the affidavit evidence has been amplified. The facts as they now appear are as follows. The plaintiff and the defendant were married and during their marriage the plaintiff invested money in the property which was and is in joint names. In proceedings between them under the Family Law Act 1975 (Cth) the Family Court of Australia on 1 November 1996 ordered the defendant to transfer to the plaintiff all his right, title and interest in the property and further ordered that in the event that he refused or neglected to execute a transfer, the Registrar or a Deputy Registrar of the Family Court be appointed to execute the transfer. Despite various requests, the defendant declined to execute a transfer and that transfer was indeed executed on his behalf by a Registrar of the Family Court. However, a problem still remained with the registration of the transfer to effect the passage of the whole of the property into the plaintiff's name in that, in order to register the transfer, the Registrar General requires production of the certificate of title. It is the plaintiff's case that she does not have the certificate of title and that in her belief the defendant does. The defendant asserts that the plaintiff has the certificate of title. In one conversation that he had with the plaintiff's solicitor he said, "Yes, I want you to understand my wife suffers from memory loss. She has the title deed. You can take that letter and shove it up your arse!" The plaintiff's recollection of the history of the certificate of title now deposed to in detail is that upon acquisition of the property it was unencumbered and the certificate of title was in her possession. She placed it in a file with other personal papers. That file was left in the property when she departed from the property as a result of the breakdown of her relationship with the defendant. Subsequently, she returned to the property, of which she has possession pursuant to the orders of the Family Court, although she has not been able to obtain the title. When she returned, the file which had contained the certificate of title, could not be found. It is from that that she infers that the defendant, who occupied the property in her absence, has it. The Family Court cannot, because of the decision of the High Court of Australia in Re Wakim; Ex Parte McNally & Ors (1999) 198 CLR 511, have the power to make an order under s 138 of the RPA. That Court takes the view, no doubt correctly, that it cannot deal with the New South Wales Torrens title register. Hence the proceedings brought in this Court. 5 Section 138 of the RPA has previously been used in proceedings between husband and wife concerning matrimonial property and the principles relating to the manner in which the Court's discretion ought be exercised have been dealt with in such a case. In Lank v Lank (1973) 21 FLR 384 Allen J sitting in the Family Law Division of this Court made an order for the issue by the Registrar General of a duplicate certificate of title. His Honour said at 387: "It is clear, therefore, that in an appropriate case the court has a wide discretion to effect changes in the register. But conveyancing practice has since its institution placed reliance upon the integrity of the registration system and 'Torrens Title' has become a by-word. It is perhaps title by registration rather than registration of title, but no order should lightly be made which would compel a change in the register which the Registrar-General opposed. Mr Smart for the Registrar-General made it clear at the outset of his submissions that the purpose of his appearance was not to attack the merits of the applicant's case but to ensure that due regard was paid to the importance of maintaining the system established by the Real Property Act. The court should, he submitted, be concerned to protect the integrity of the registration system and of the register; to avoid, if possible, the highly inconvenient situation which might arise from the existence of two duplicate certificates in respect of the same parcel of land, a situation which might lead to an unauthorized borrowing by one joint tenant on the security of the certificate wrongfully held; and to assist the registrar in his duty to protect the assurance fund from claims under s 127. An order under s 138 should not be made, counsel submitted, unless the court considered that on the facts established such a risk is minimal."