Nrma Insurance Limited v Anthony Gilbert Martin; Sue Delores Martin; Sarojini Natasha Victoria Martin and Rajan Gilbert Peter Martin [1988] ACTSC 31 (9 June 1988)

SUPREME COURT OF THE ACT

N.R.M.A. INSURANCE LIMITED v. ANTHONY GILBERT MARTIN; SUE DELORES MARTIN;
SAROJINI NATASHA VICTORIA MARTIN and RAJAN GILBERT PETER MARTIN
S.C. No. 432 of 1988
Real Property

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Real Property - Registered Mortgages - Power of sale exercisable - Caveat by mortgagors against exercise - Application by mortgagee for removal of caveat - Whether mortgagee has standing to make application.

Words and Phrases - "Registered proprietor"

Real Property Ordinance 1925 - ss.6(1), 47, 104(1), 105.

In re the Transfer of Land Statute (No.301), Ex Parte Davies and Inman (1885) 11 VLR 780

Re C.E. Dent (1925) 42 WN (N.S.W.) 177.

HEARING

CANBERRA
9:6:1988

DECISION

This is an application made by originating summons dated 14 April 1988 that a number of defendants (the first of whom is Anthony Gilbert Martin), caveators in respect of land described in certificates of title registered volume 948, folios 51 to 62 inclusive, show cause why their caveats should not be removed.

2. A preliminary objection is taken to the application made by the plaintiff, the registered mortgagee of the land and (as is conceded for the purpose of this preliminary objection) entitled to possession because of breach of the mortgage, that it has no standing in the matter, because it is not a registered proprietor within the meaning of s.105(2) of the Real Property Ordinance 1925.
Section 105(1) reads:-

"Upon the receipt of any such caveat, the
Registrar shall notify the receipt to the
person against whose application to be
registered as proprietor, or, as the case may
be, to the registered proprietor against whose
title to deal with land under the provisions
of this Ordinance the caveat has been lodged."

Subsection (2) then says:-

"The applicant or registered proprietor may,
if he thinks fit, summon the caveator to
attend before the Court or the Judge thereof
to show cause why the caveat should not be
removed."

The argument is that a registered mortgagee is not a registered proprietor and is not therefore entitled to seek removal of the caveat using the procedure which has been adopted.

3. I turn first to s.104(1) of the Ordinance which says:-

"Any settlor of land under the provisions of
this Ordinance transferring the land to be
held by the transferee as trustee, or any
person claiming any estate or interest in the
land under any unregistered instrument, or by
devolution in law or otherwise, may by caveat
in the form of the Fifteenth Schedule forbid
the registration of any instrument affecting
the land, estate or interest, either
absolutely or until after notice of the
intended dealing given to the caveator as is
required and enjoined in the caveat."

4. Although of itself that subsection would not be sufficient to decide what is the true definition of the phrase "registered proprietor", it nevertheless indicates clearly that the interest which a registered mortgagee seeking to exercise his power of sale has in land may be the subject of a caveat forbidding registration of any dealings sought to be registered pursuant to the exercise of the power of sale.

5. It is necessary to go to s.6(1) of the Ordinance to find a definition of the word "proprietor". The definition reads:-

"'Proprietor' means a person seized or
possessed of, or entitled to, land, at law or
in equity."

6. It is not contended, as I understand the argument put by Mr Walmsley for the defendants, that the plaintiff is not entitled to the land at law or in equity on the concession made. What he says is that the plaintiff is not a registered proprietor. But s.47 of the Ordinance, which reads:-

"Every grant and every certificate of title
shall be deemed to be registered under the
provisions and for the purposes of this
Ordinance, so soon as it has been marked by
the Registrar with the folium and volume as
embodied in the Register Book, and every
memorandum of transfer or other instrument
purporting to transfer or in any way to affect
land under the provisions of this Ordinance,
shall be deemed to be so registered so soon as
a memorial thereof, in accordance with the
provisions of section forty-nine of this
Ordinance, has been entered in the Register
Book upon the folium constituted by the
existing grant or certificate of title of the
land, and the person named in any grant,
certificate of title or instrument so
registered as seized of or taking any estate
or interest shall be deemed to be the
registered proprietor thereof."

ensures, I think, that a mortgagee who has had his mortgage registered is to be deemed to be a registered proprietor in respect of the land in question, because it must surely be the case that a mortgage affects land under the provisions of the Ordinance and being deemed to be registered upon the appropriate entries being made makes the mortgagee a registered proprietor or at least one who is deemed to be a registered proprietor for the purpose of the mortgage.

7. It seems to me therefore that, as a matter of construction of the Ordinance, a registered mortgagee is a registered proprietor of an interest in the land in question and is therefore entitled to make application under s.105(2) of the Ordinance.

8. However, before finally disposing of the matter, I think I should refer to the authorities which have been mentioned during the course of argument by the defendants' counsel. The first of these is In re the "Transfer of Land Statute" (No.301), Ex Parte Davies and Inman (1885) 11 VLR 780, a decision of the Full Court of the Victorian Supreme Court. In that case it was held that an unregistered transferee of land under the "Transfer of Land Statute" (No.301) was not a proprietor or applicant entitled under s.117 to be notified of a caveat or to summon the caveator. With that I have little difficulty, because there is no suggestion that the mortgage in this case is unregistered.

9. More importantly, I think, I should consider the decision of Re C.E. Dent (1925) 42 WN (N.S.W.) 177. The headnote reads:-

"In order to effect registration of a transfer
of mortgage it is not sufficient to endorse it
upon the mortgage; it is not deemed to be
registered until a memorial thereof has been
entered in the register book upon the folium
constituted by the certificate of title.
Under s.97 of the Real Property Act, 1900, the
transferee of a mortgage when transfer has not
been registered has no locus standi to apply
for removal of a caveat."

That must be based on s.35 of the Real Property Act of New South Wales 1900 as it then was, and indeed that section is referred to in the catchwords for the headnote. And now that I read more carefully the judgment of Harvey C.J. in Eq., the section was the basis of the decision which he reached in the case. He said:-

" . . . the preliminary objection was fatal. The
effect of s.35 of the Real Property Act is
that a transfer is not deemed to be registered
until a memorial thereof has been entered in
the register book upon the folium constituted
by the certificate of title."

And following Ex parte Davies and Inman and Re T. Joyce reported in the "Sydney Morning Herald" on 23 July 1914, his Honour was of the opinion that the applicant was not entitled to bring his application. But that depended solely, as I understand it, upon the fact that there was no registration of the interest of the applicant.

10. Thereafter, however, his Honour received an application for leave to join the registered mortgagee as an applicant. His Honour granted that leave and upon the joint application of the registered mortgagee and of the unregistered transferee of the mortgage, he ordered the caveat to be removed without any orders as to costs.

11. It seems to follow ineluctably therefore that his Honour took the view that a registered mortgagee was a registered proprietor capable of taking action under s97 of the Real Property Act 1900 as an applicant. Until 1928 that section was, I understand, in the same form as s.105 of the Ordinance.

12. In all the circumstances, therefore, I am persuaded both on what appears to me to be the true meaning as a matter of construction of the phrase "registered proprietor" used in s.105(2) and on what appears to be the authority of Re C.E. Dent that the preliminary objection should be dismissed, and I dismiss it accordingly.

13. In action No. 432 of 1988, I order that caveat, registered number 606763, lodged on behalf of the defendants, Anthony Gilbert Martin and others, in relation to the land comprised in certificate of title 948, folios 51-62 inclusive, be removed.

14. I further order that pending the hearing of the summons the defendants be restrained from lodging any further or other caveat on any of the said certificates of title.

15. I order that except to the extent that the amount of its costs is necessarily modified by the order for costs made in action No. 433 of 1988, the plaintiff is to pay its own costs and so too are the defendants.