Matouk v Matouk

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.

His Honour made the following 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:

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:

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]:

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: