McVeigh v Whitelaw [2005] NSWSC 1112

The plaintiff was the trustee in bankruptcy of Whitelaw. He sought an order against Whitelaw to produce to the Court the certificate of title to his Gunnedah property. In the event it wasn’t produced, an order that the Registrar-General take all appropriate steps to cancel the certificate of title and re-issue it, recording the trustee in bankruptcy as the registered proprietor with the other tenant in common, Lewis.

Justice Brereton said (at [9]):

Real Property Act 1900 (NSW), s 138(2), provides that a court may, in proceedings for possession or production of a certificate of title, make certain ancillary orders if of the opinion that the certificate of title has not been or is not likely to be produced by a person for the purposes of the registration of a dealing affecting the land concerned.  The ancillary orders referred to in s 138(3) include an order that the Registrar General cancel or amend a folio of the register, cancel amend or make a recording in a folio of the register, create a new file, and/or issue a new certificate of title. 

The evidence showed that Whitelaw had repeatedly failed to produce the certificate of title on request or demand, including in response to a Court order for him to do so.

It was necessary for the certificate of title to be vested in the trustee for sale of the Gunnedah property pursuant to s 66G of Conveyancing Act 1919 (NSW).

His Honour found (at [11]) that the trustee had thereby established the grounds under s 138(2) of Real Property Act 1900 (NSW) for one of the ancillary orders in sub-section (3). As a result his Honour ordered (at [12]):

Pursuant to Real Property Act 1900 (NSW), s 138(2) and (3), I order that the Registrar General cancel the certificate of title volume 14662 folio 161 and issue a new certificate of title with folio identifier 137/75547 recording Dean Royston McVeigh and Wayne Anthony Lewis as the registered proprietors as tenants in common in equal shares. 

The costs were ordered to be costs in the administration of the estate.  

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