Solicitors:
C A Williams Legal Pty Ltd (Plaintiff)
File Number(s): 2013/249518
[2]
EX TEMPORE Judgment - REVISED
HIS HONOUR: In this matter, the Plaintiff, who was, formerly, the registered proprietor of a property at Mount Pritchard, seeks an order under section 138(3) of the Real Property Act 1900 (NSW). The matter comes before me as Duty Judge.
There was a chain of litigation commencing with the procedural decision of Rein J in Matouk v Matouk [2014] NSWSC 1552, and then the substantive decision of Slattery J in Matouk v Matouk (No 2) [2015] NSWSC 748. In neither of the earlier hearings, as in the hearing before me, was there an appearance by the Defendants. (The second Defendant had died after the proceedings were commenced, and the orders of Rein J were necessary to enable these proceedings to continue against his estate. On 9 April 2015, consent orders were entered resolving the proceedings as against the third Defendant, Steven Stojanovic.)
It is not necessary for me to repeat the background facts, the procedural history, or the Plaintiff's claims for relief against each Defendant. It is necessary to note, however, that Slattery J decided that the Plaintiff had been wholly successful in the relief that she sought; that she had established that she was entitled to avoid the September 2011 transfer of the property at Mount Pritchard to the first Defendant; and that she should receive back unencumbered title to that property. No appeal was lodged against that decision.
Matouk v Matouk [2015] NSWSC 1316 | Case summary | Zoe
His Honour made the following orders:
"(1) The First Defendant deliver up to the Plaintiff's legal representative C A Williams of Unit 8, 39 John St Camden the Certificate of Title to the Property within 28 days of these orders.
(2) The First Defendant do all other acts and things necessary to transfer the title to the Property to the Plaintiff including the execution of a Transfer in registrable form within 28 days of these orders.
(3) The Registrar in Equity is authorised, in default of compliance with these orders to execute a transfer of the Property in favour of the Plaintiff pursuant to s 94 Civil Procedure Act.
(4) The Second Defendant be ordered, pursuant to s 74MA Real Property Act, to withdraw caveats AG90087 and AH540209 within 14 days of these orders.
(5) The Second Defendant to pay the Plaintiff's costs of the proceedings.
(6) Grant liberty to apply in relation to the implementation of these orders."
It is in exercise of the liberty to apply, granted in Order 6 above, that the Plaintiff, correctly, filed a notice of motion on 25 August 2015 in the same proceedings: Kyabram Property Investments Pty Ltd v Murray [2006] NSWSC 54, per Campbell J, at [4].
That notice of motion sought the following relief:
"An order that the Court, being satisfied that the certificate of title to the property being Folio Identifier xxxx situated at xxxx Mt Pritchard in the State of New South Wales has not been, and is not likely to be, produced for the purposes of registering the Transfer executed by the first defendant Samia Matouk, order the Registrar-General pursuant to s 138(3) of the Real Property Act 1900:
a. To record in the folio of the Register the Transfer executed by the said Samia Matouk in favour of Nadia Matouk.
b. To issue upon such registration a new certificate of title in the name of Nadia Matouk the transferee.
The affidavit in support of the notice of motion is an affidavit of Cheryl Ann Williams, the Plaintiff's solicitor, affirmed 31 July 2015. In that affidavit, Ms Williams deposes to the steps that she had taken, initially, to locate the first Defendant, and, then, to retrieve the relevant certificate of title. The searches undertaken and enquiries made included having discussions with the first Defendant, with her former solicitors, and enquiries by email sent to the de facto partner of the second Defendant and to her daughter.
Importantly, in the evidence, there is what appears to be a copy of a document, produced by the first Defendant's former solicitors, which suggests that the firm of solicitors held the original certificate of title between 23 September 2011 and 3 February 2012. On the latter date, the first Defendant appears to have retrieved the original certificate of title from the firm. (What appears to be a copy of the signature of the first Defendant is on the copy document next to the date and reference to the Folio Identifier of the property.)
The other evidence of Ms Williams relates to subsequent communications with the first Defendant, by telephone, to encourage her to reveal the whereabouts of, and to produce, the original certificate of title, without success.
However, none of the searches, or enquiries, has resulted in the production of the certificate of title of the property or the current whereabouts thereof.
Section 138(2) of the Real Property Act, relevantly, provides that a court, in proceedings in which the court makes a determination as to an estate or interest in land, may make ancillary orders of the kind set out in subsection (3), if the court is of the opinion that the certificate of title has not been produced by a person for the purposes of the registration of a dealing affecting the land concerned.
Section 138(3) provides that a court may order the Registrar-General to do one, or more, of the following:
"(a) cancel or amend a folio of the Register,
(b) cancel, amend or make a recording in a folio of the Register,
(c) create a new folio of the Register,
(c1) create a new edition of a computer folio,
(d) issue a new certificate of title."
The sub-section gives a wide discretion to the Court upon being satisfied that the prerequisites to the exercise of the power are established. As was written by McDougall J in Prentice v Registrar General [2014] NSWSC 1060, at [7]-[8]:
"It will be seen that s 138(3)(b) of the Real Property Act empowers the Court to order the Registrar General to issue a new certificate of title. To the extent that it is necessary in this day and age, para (c1) authorises the Registrar General to create a new edition of a computer folio. However, as is apparent from subss (1) and (2), the powers in subs (3) are 'ancillary'. In other words, the powers in subs (3) are not substantive or stand alone powers but, rather, powers that may be exercised ancillary to an application under one of the preceding subsections.
In those circumstances, it has been said many times and I respectfully agree, that it is necessary that the application under subs (3) be made in a proceeding which claims as substantive relief an order under subs (1) or (2). That is established by, among many others, the judgments of Hamilton J in Botterill v Botterill (2000) 10 BPR 18,787 and Young CJ in Eq in Crocombe v Pine Forest of Australia Pty Ltd (No 3) (2007) 13 BPR 24,241."
I am satisfied that the proceedings before Slattery J were proceedings "for the recovery of any land, estate or interest from the person registered as proprietor" within the meaning of s 138(1). It is clear that those proceedings related to the regaining of an estate or interest which the Plaintiff once had, of which she had been deprived by a process that Slattery J determined was defective and ineffective.
I am also satisfied that the original certificate of title has not been produced by a person (the first Defendant) for the purposes of registration of the transfer ordered to be executed by her, in registrable form, and delivered to the Plaintiff to enable the registration of the Plaintiff as the registered proprietor of the property.
Hopefully, the nature of the orders sought by the Plaintiff, and which will be made, will ensure that there will not be in circulation two certificates of title for the one parcel of land. The form of order envisaged should significantly reduce the risk of that consequence because of the issue of a new certificate of title in the name of the Plaintiff.
I should mention that the evidence of service of the notice of motion and the affidavit in support is somewhat vague. It may be that service was not effected until either 31 August 2015 or 1 September 2015. Although that is not three clear days prior to the hearing of the notice of motion, I am satisfied that I should dispense with that requirement. It is apparent from the reasons for judgment of Slattery J that the first Defendant would not have any reasons of substance for opposing the making of the orders sought.
I should also mention that no notice of the application was given to the Registrar General. Counsel for the Plaintiff informed me that this was unnecessary, as the customary practice in such matters, even where there is no other, as it were, contradictor, the Registrar General does not appear: Prentice v Registrar General, at [6]. The Registrar General usually files a submitting appearance except in respect of costs in the proceedings. No costs are being sought against the Registrar General.
Accordingly the Court:
(a) 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 the State of New South Wales, has not been produced for the purposes of registering the transfer executed by the first Defendant, Samia Matouk, orders that the Registrar General, pursuant to section 138(3) of the Real Property Act, record in the folio of the register, the transfer executed by the said Samia Matouk in favour of Nadia Matouk, which transfer is dated 6 July 2015, and issue, upon such registration, a new certificate of title in the name of Nadia Matouk, the transferee as registered proprietor.
(b) Orders, pursuant to section 138(5) of the Real Property Act, that the Plaintiff deliver the original transfer, signed by the first Defendant to the Registrar General for the purposes of giving effect to the orders by 11 September 2015.
(c) Directs that the Plaintiff, by her solicitor, send to the first Defendant by letter posted no later than 4:00 p.m. today, the nature of the orders that have been made today.
(d) Orders that these orders be entered forthwith.
[3]
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Decision last updated: 10 September 2015