GE Commercial Corporation (Aust) Pty Ltd v Lehane

[2008] NSWSC 963

CITATION:	GE Commercial Corporation (Aust) Pty Ltd v Lehane [2008] NSWSC 963
HEARING DATE(S):	10 September 2008
JUDGMENT DATE :	10 September 2008
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Order made under s 138(3)(b) of the Real Property Act 1900 that the Registrar General record a mortgage on a title.
CATCHWORDS:	CONVEYANCING [151] - Land titles under the Torrens system - Powers of Court - New South Wales - Order that the Registrar General make a recording in a folio of the Register – Order to record a second mortgage lodged in registrable form.
LEGISLATION CITED:	Real Property Act 1900 s 138
CATEGORY:	Principal judgment
CASES CITED:	Botterill v Botterill (2000) 10 BPR 18,787
PARTIES:	GE Commercial Corporation (Australia) Pty Ltd (P) Noel Christopher Lehane (D) Registrar-General New South Wales (R)
FILE NUMBER(S):	SC 2704/07
COUNSEL:	J M Watkins, Solicitor (P) No appearance (D) Submitting appearance (R)
SOLICITORS:	Dibbs Abbott Stillman (P) No appearance (D) K O'Keefe, Solicitor (R)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

WEDNESDAY, 10 SEPTEMBER 2008

2704/07 GE COMMERCIAL CORPORATION (AUST) PTY LTD v NOEL CHRISTOPHER LEHANE

JUDGMENT

1 HIS HONOUR: This is an application under s 138 of the Real Property Act 1900 for an order directing the registration of a mortgage on a certificate of title. Unlike the other decisions which have been noted in relation to s 138, eg, my decision in Botterill v Botterill (2000) 10 BPR 18,787, this case does not involve a lost certificate of title. The pathway through the section which the plaintiff seeks to follow to its desired goal is as follows.

2 Section 138(1) relevantly provides that a “court may, in proceedings for the recovery of any interest in land from the registered proprietor, make ancillary orders of the kind specified in subsection (3) if the court is of the opinion that the circumstances of the case require any such order to be made”. Subsection 3(b) provides that a court may order the Registrar General to make a recording in a folio of the register.

3 In this case the plaintiff obtained an order for specific performance against a defendant who was bankrupt. What was required by the order of specific performance was that the defendant execute a mortgage over the land in a form able to be registered as a second mortgage. The form of mortgage specified in the order for specific performance was a mortgage in the name of the defendant. It was executed by his trustee in bankruptcy, but the trustee in bankruptcy had not taken steps to have himself registered as the proprietor of the land. The Registrar General now declines to register the mortgage on the ground that the trustee in bankruptcy has not had himself registered as proprietor. The trustee in bankruptcy, on the other hand, declines to apply to have himself registered as proprietor, stating as his reason that the first mortgagee is proceeding to enforce its mortgage against the property. An impasse has therefore been reached.

4 The Registrar General, who is to be joined as a second defendant, consents to the making of an order under s 138(3)(b) provided costs are not sought against him, as they are not. The trustee in bankruptcy does not consent to but does not oppose the making of the order sought.

5 Although the situation is an unusual one and I am not aware of any authority that touches upon it, it does seem to me that the proceedings in which the order is sought by notice of motion are proceedings which fall within the terms of s 138(1) in the way that the plaintiff has submitted. In particular, I am of the view that in seeking specific performance of a contract to execute a mortgage in registrable form the plaintiff has brought proceedings for the recovery of an interest in land. Once that is established, it is plain that among the orders which the Court may make is an order that the Registrar General make a recording in a folio of the register, in this case, a recording of the mortgage procured by the plaintiff, which has already been lodged with the Registrar General and assigned a number, but has not been registered.

6 On the facts stated above, it is my opinion that the circumstances of the case require such an order to be made and I propose to make the orders sought.

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