Yuejin GUO v BANK OF CHINA LIMITED [2008] NSWCA 89 (9 May 2008)

Last Updated: 19 May 2008

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Yuejin GUO v BANK OF CHINA LIMITED [2008] NSWCA 89


FILE NUMBER(S):
40870/07

HEARING DATE(S):
29 April 2008

JUDGMENT DATE:
9 May 2008

PARTIES:
Claimant - Yuejin Guo
Opponent - Bank of China Limited (ABN 29 002 929 955)

JUDGMENT OF:
Mason P Giles JA McColl JA

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
12101/07

LOWER COURT JUDICIAL OFFICER:
Bell J

LOWER COURT DATE OF DECISION:
26 November 2007

LOWER COURT MEDIUM NEUTRAL CITATION:
[2007] NSWSC 1337

COUNSEL:
Claimant - R Killalea
Opponent - R Newlands SC

SOLICITORS:
Claimant - City Law
Opponent - Websters

CATCHWORDS:
REAL PROPERTY – Torrens Title – legal proceedings generally – proceedings for possession or recovery of land – execution of mortgage by Deputy Registrar – whether Deputy Registrar authorised to execute mortgage – where court order empowered execution by “the Registrar” – whether a Deputy Registrar is or is not a Registrar – Civil Procedure Act 2005, s19

LEGISLATION CITED:
Civil Procedure Act 2005
Public Sector Employment and Management Act 2002
Supreme Court Act 1970


CASES CITED:
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154

TEXTS CITED:


DECISION:
Leave to appeal refused. Summons dismissed with costs.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40870/2007

MASON P

GILES JA

McCOLL JA

Friday 9 May 2008

Yuejin GUO v BANK OF CHINA LTD

JUDGMENT

1 MASON P: Proceedings in the Equity Division involving the present parties and others were settled on terms embodied in a Deed of Settlement and Release. The Deed contained the following Acknowledgment:

2.1 Guo acknowledges that he is indebted to the Bank for the Moneys owed and that the Bank is entitled to be registered as first mortgagee over the Units as security for the moneys owed in addition to any other securities including the Guarantee.

2.2 The defendants agree and acknowledge that the Bank is entitled to and consents to the orders set out in the Short Minutes of Order and the Bank shall file the Executed Short Minutes within seven (7) days of receipt.

2 Orders were made on 9 October 2006 as follows:

1. The third defendant, Foremost Apartments Pty Limited ACN 076 579 309 (“Foremost”) deliver the titles to and an executed Transfer in registrable form over the units being lots 260, 266, 267 and 271 and five car spaces being lots 411, 412, 414, 446 and 447 in Strata Plan 57702 (“the Units”) to the first defendant, Yuejin Guo (“Guo”) within 60 days of the date of these orders, time being “of the essence”.

2. Guo deliver to the Bank the titles to the Units and an executed first mortgage in registrable form over the Units to the Bank such that the Bank is able to be registered as first mortgagee over the Units within 60 days of the date of these orders, time being “of the essence”.

3. In default of Orders 1 and/or 2 above the Registrar be empowered to do all such things and sign all documents as necessary to give effect of the said orders.

4. The proceedings otherwise be dismissed with no order as to costs.

3 The Orders were made by Registrar Musgrave in Chambers, by consent, and they were subsequently entered.

4 After 60 days had elapsed from the date of the Orders without the applicant having complied with Order 2, a Mortgage was executed by Ms Joanne Gray, a Deputy Registrar of the Supreme Court. It was subsequently registered.

5 When default in complying with the applicant’s monetary obligations continued, the Bank instituted proceedings for possession in the Common Law Division. It relied upon the registered Mortgage.

6 A Defence was filed in which the defendant, the present applicant, raised in answer to the whole of the Statement of Claim the contention that the Deputy Registrar was not authorised to sign the Mortgage.

7 Bell J struck out the defence as untenable and entered judgment in the Bank’s favour. In my view, her Honour was correct in doing so.

8 Section 19 of the Supreme Court Act 1970 provides:

(1) In this Act and in the rules, except in so far as the context or subject-matter otherwise indicates or requires: ...

registrar means a person who is for the time being appointed to and holding an office of registrar, as referred to in section 119, and includes:

(a) a person who is for the time being appointed to act temporarily in an office of registrar (as referred to in section 120(b)), and

(b) a person who is for the time being appointed as a deputy to the holder of an office of registrar (as referred to in section 120(c)), whether designated as a deputy, assistant or otherwise, but only when the person is exercising a power conferred by or under this Act or the Criminal Appeal Act 1912 on the holder of an office of registrar with the authority of that holder or a person for the time being appointed to act temporarily in the office of that holder, and

(c) a person who is authorised under section 120A to exercise any power conferred by or under this Act or the Criminal Appeal Act 1912 on the holder of an office of registrar, but only when the person is exercising such a power.

9 Section 120(c) of the Supreme Court Act authorises the employment under Chapter 2 of the Public Sector Employment and Management Act 2002 of “persons to be deputies of any of the [officers mentioned in s119]”. Section 119 refers to the appointment of registrars.

10 The applicant submitted that these provisions of the Supreme Court Act did not assist in the present situation because no power under that Act has been exercised, let alone one referable to a “registrar”.

11 These propositions may be accepted, but they are not to the point.

12 The Supreme Court’s power to have made Order 3 stemmed from s94 of the Civil Procedure Act 2005. Relevantly, that section states that, if any person does not comply with a judgment or order directing the person to execute a document, then the court may order that the document be executed “by such person as the court may nominate for that purpose”.

13 Accordingly, the question at issue is the meaning and scope of the expression “the Registrar” when used in the Order. As indicated, the parties to the Deed had, by their Terms of Settlement, agreed that an order in those terms would be made.

14 The applicant does not suggest that “the Registrar” in Order 3 nominated or designated the Principal Registrar or even the Registrar of the Equity Division. He conceded below and in this Court that Order 3 was to be construed, in its reference to “the Registrar”, as nominating “a” in the sense of “any” Registrar of the Supreme Court. The point taken was that a Deputy Registrar is not a Registrar.

15 In her reasons ([2007] NSWSC 1337) Bell J said (at [20]):

The evident purpose of order 3 was to provide a mechanism to give effect to the parties’ agreement in the event of the defendant’s default by authorising an officer of the court to sign the necessary documents. Persons appointed as deputy registrars may be authorised to exercise any of the powers conferred on a registrar under the Supreme Court Act and the Criminal Appeal Act. In practice it is common for deputy registrars to be authorised to carry out the range of functions conferred on registrars. The execution of the mortgage pursuant to the order did not involve the exercise of a power under the SCA and it follows that Ms Gray in signing the document was not a registrar within the meaning of s19. Order 3 empowers “the Registrar” to do certain things. There is no office of “the Registrar” of the Court. I consider in light of the scheme of the SCA and the practice to which I have referred that it is implicit that order 3 empowered officers of the court holding appointment as registrars and deputy registrars to sign all necessary documents.

16 As Bell J indicated, it is in practice common for Deputy Registrars to be authorised to carry out the range of functions conferred on Registrars under the legislation (including rules) regulating the procedure of the Supreme Court. The presumption of regularity underpins this conclusion (see generally Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154) and, being unrebutted, removes any possible issue about the Deputy Registrar not being able to perform the general statutory functions of Registrars if directed to do so by the Principal Registrar.

17 These matters, however, do no more than confirm the clear impression that the expressed intent of the parties to the Deed, and the scope of the orders they procured the court to make by consent, included within the reference to “the Registrar” any Deputy Registrar duly performing any of the official functions of a registrar in relation to the business of the Supreme Court of New South Wales.

18 Bell J was correct in striking out the Defence and in entering summary judgment in favour of the Bank.

19 The application for leave to appeal should be refused and the summons dismissed with costs.

20 GILES JA: I agree with Mason P.

21 McCOLL JA: I agree with Mason P.

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LAST UPDATED:
16 May 2008