Livio Sulligioi V Livio Sulligio 2012 NSWSC/Prentice
.Livio Sulligoi v Livio Sulligoi [2012] NSWSC
Prentice as trustee for the bankrupt estate of Livio Sulligoi v Livio Sulligoi [2012] NSWSC 1655
Supreme Court New South Wales
- Medium Neutral Citation
- Prentice as trustee for the bankrupt estate of Livio Sulligoi v Livio Sulligoi [2012] NSWSC 1655
- Hearing Dates
- 20 December 2012
- Decision Date
- 20/12/2012
- Jurisdiction
- Equity Division
- Before
- Brereton J
- Decision
- That Registrar-General issue new certificates of title in respect of subject properties
- Catchwords
- REAL PROPERTY - summons for production of certificates of title to trustee in bankruptcy - where bankrupt and certificates cannot be found - whether new certificates of title should be issued
- Legislation Cited
- (NSW) Real Property Act 1900, s138
- Category
- Principal judgment
- Parties
- Maxwell Prentice as trustee for the bankrupt estate of Livio Sulligoi - Plaintiff
Livio Sulligoi - First Defendant
Registrar-General of NSW - Second Defendant - Representation
- Solicitors:
Lander & Rogers Lawyers - Applicant
Counsel:
S Gollege - Applicant
Ex parte - File Number(s)
- 2012/ 386677
Judgment (ex tempore)
1HIS
HONOUR: By summons filed on 13 December 2012, Maxwell Prentice as
trustee of the bankrupt estate of Livio Sulligoi claims an order that Mr
Sulligoi produce to the Registrar-General certificates of title in
respect of four strata properties in Glebe and Newtown to enable
registration of transfers of title to those properties by Mr Prentice,
who has exchanged contracts for sale of three of them, and,
alternatively, an order that the Registrar-General issue new
certificates of title in respect of each of those properties, pursuant
to (NSW) Real Property Act 1900, s 138.
2Mr
Prentice was appointed Mr Sulligoi's trustee in bankruptcy on a
creditors petition in or about April 2012. The trustee has been unable
to find Mr Sulligoi, let alone to obtain a statement of affairs from
him, despite extensive enquiries.
3It
is somewhat remarkable that the registered proprietor of five
unencumbered properties in Glebe and Newtown would be unable to be
found, but such hints of his appearance and habits as the evidence
reveals suggest that he is reclusive, occasionally frequents one of the
properties at late hours at night, and cannot be found in the telephone
book. Although he is the registered owner of a car, that car cannot be
found; and an electoral search has not located him. Enquiries of local
police and of the Mental Health Department at Royal Prince Alfred
Hospital have also not elicited Mr Sulligoi's whereabouts.
4The
trustee has exchanged contracts for sale of three of the properties.
In respect of one of those sales, a notice to complete has been served,
which expires on 7 January 2013. In order to complete the sales and
deliver transfers, the trustee will require certificates of title.
5In these proceedings the trustee seeks an order for production of those certificates of title. Real Property Act,
s 138(3) provides that a Court may, in proceedings for the production
of a certificate of title, make ancillary orders of the kind set out in
subsection (3), which include (d) an order that the Registrar-General
issue a new certificate of title.
6As
the summons claims an order for production of the certificate of title,
the jurisdictional basis is plainly satisfied. The Court's main
concern in making an order for the issue of a new certificate of title
is the risk that old certificates of title may be in circulation and,
accordingly, that third parties might rely on a duplicate of the
certificate of title.
7The
evidence of search and enquiry in this case has led the trustee to
conclude that the certificates of title are lost, mislaid or destroyed,
because, despite many months of searching for Mr Sulligoi and searching
for the certificates of title in places where they might be - including
bank security deposit boxes and the properties - the trustee has not
been able to locate those certificates. The trustee's solicitor has
declared that, based on the searches conducted, the certificates of
title are not held by any other person or corporation as security.
8The
Chief Judge made orders for substituted service on 13 December 2012.
The affidavit of Alan Rayner Cole, sworn 14 December 2012, establishes
that the proceedings have been served in accordance with those orders,
and that the proceedings are, therefore, taken to have been served on Mr
Sulligoi.
9Pursuant to (NSW) Real Property Act 1900, s
138(3)(d), I order that the Registrar-General issue a new certificate
of title to the plaintiff in respect of each of the following
properties:
(1)X/X Charlton Way, Glebe New South Wales 2037, being the land comprised in folio identifier 3/SPXXXX;
(2)X/X Sheehy Street, Glebe New South Wales 2037, being the land comprised in folio identifier 13/SPXXXX;
(3)X/X Sheehy Street, Glebe New South Wales 2037, being the land comprised in folio identifier 9/SPXXXX; and
(4)X/X Chelmsford Street, Newtown New South Wales 2042, being the land comprised in folio identifier 8/SPXXXXX.
10I direct that the orders be entered forthwith.
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