Registrar-General (SA) v Wright [1917] HCA 23; (1917) 23 CLR 214 (2 June 1917)

HIGH COURT OF AUSTRALIA

The Registrar-General (South Australia) Appellant; and Wright Respondent.

H C of A

On appeal from the Supreme Court of South Australia.

2 June 1917

Isaacs, Powers and Rich JJ.

Cleland K.C. (with him H. P. Ward), for the appellant.

McLachlan (with him Browne), for the respondent.

The judgment of the Court, which was read by Isaacs J., was as follows:—

June 2

Isaacs, Powers and Rich JJ.

The material facts are that the registered proprietor of land under the South Australian Real Property Act 1886 (No. 380) subject to a mortgage sold his land to a third person, and executed a transfer to the purchaser. The mortgagee has possession of the duplicate certificate of title by virtue of a covenant in the mortgage containing also an undertaking to produce it. For the purpose of obtaining registration of the transfer, the transferor applied to the mortgagee to produce the certificate of title to the Registrar-General, and the mortgagee refused. The Registrar-General, on being applied to, then under sec. 220, sub-sec. 3, of the Act summoned the mortgagee to produce the duplicate certificate. The Supreme Court held that it was ultra vires the Registrar-General to issue the summons as the circumstances calling for the exercise of the power had not yet arisen.

The words of the sub-section are: "He shall, whenever the production of any duplicate certificate, or other instrument of title is required, for the purpose of entering or making on the same any memorial or entry by this Act directed to be entered or made thereon, or for the purpose of cancelling or correcting the same under the provisions of this Act, summon any proprietor, mortgagee, encumbrancee, or other person having the possession, custody, or control thereof, to produce the same for such purpose." The rest of the sub-section is immaterial to the present case.

At the date of the summons was the production of the duplicate certificate "required" for the purpose of making an entry upon it or cancelling or correcting it? We are of opinion it was.

It may be at once conceded that the power given to the Registrar-General by the sub-section was in order to enable him to perform his statutory duties. But the words conferring the power ought to be read, if possible, as enabling him to perform those duties in conformity with all the provisions of the Act. In other words, the Act intends obedience to its provisions, and not a contravention of them.

Sec. 98, so far as material, provides that "When a transfer purporting to transfer any estate of freehold is presented for registration, the duplicate certificate shall ... be delivered to the Registrar-General; and the Registrar-General shall, upon registering the transfer, enter on the original certificate and also on the duplicate certificate ... a memorandum cancelling the same, either wholly or partially." It is plain that the Act directs that the transfer shall not be presented without delivery of the duplicate certificate. The Registrar-General is bound by sec. 56 to register transfers in their order of production, but unless accompanied by the duplicate certificate the registration of the transfer would be irregular and unauthorized, and contrary to the express directions of the Legislature.

It could not, therefore, be said that on that irregular production the moment had arrived when the Registrar-General had the duty of registering the transfer. Still less could it be said that on mere presentation of the transfer the Registrar-General's duty would arise to enter on the duplicate certificate a memorandum of cancellation. How could he have that duty when the document was not before him, and the statutory direction of sec. 98 with respect to it was still unfulfilled?

To construe sec. 220 (3) as operating only to compel lodgment of the duplicate certificate when the Registrar-General's duty has arisen to make the entry on the duplicate certificate, and sec. 98 as operating to create the duty of making the entry on the certificate only on condition that both the transfer and the duplicate certificate are already lodged, is really to create an impasse.

Apart from his contractual undertaking to produce the certificate, which does not affect this question, the mortgagee was not in default in refusing to produce it to the Registrar-General before the summons was issued. But it may be observed that the position would have been no different in that respect, even if the transfer had been lodged. His refusal to produce simply prevented the transferor from fulfilling the statutory requirement of delivering the certificate to the Registrar-General.

On the construction maintained by the respondent, sec. 98 and sub-sec. 3 of sec. 220 would not be workable except upon condition of some breach of the former section, or the voluntary acquiescence of a mortgagee or other person holding the certificate. That is not consistent with the policy of the Act, which aims at simplicity and facility of transactions combined with security of title. (See Acts Interpretation Act 1915, sec. 22.)

The construction contended for by the Registrar-General should, in our opinion, prevail and the appeal be allowed.

The order of the Court will be:—Appeal allowed. Order of Full Court discharged and appeal to Supreme Court allowed. Order in Chambers of 1st December 1916 set aside and order made on summons of 22nd November 1916 as asked. Wright to forfeit and pay a penalty which, looking at this as a test case, we fix at 1s. With regard to the costs, the respondent's refusal to produce was in order to compel payment of the mortgage notwithstanding the Moratorium Regulations. He must therefore pay all the costs except the costs of this appeal, as to which, in the circumstances, we say nothing.

Order accordingly.

Solicitors for the appellant, Young, Newland & Ward.

Solicitors for the respondent, McLachlan, Napier & Browne.