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CASELLA v CASELLA
SUPREME COURT OF VICTORIA

McINERNEY, J

6, 15, 20, 29 February,

10 May 1968
Matrimonial causes — Decree nisi ordering respondent to execute transfers and hand over duplicate
certificates of title — Refusal by respondent — Committed for contempt — Direction to Registrar of
Titles to cancel old and issue new certificates — All other means to be exhausted — Direction to
Registrar without joining him as party — Matrimonial Causes Act 1959 (Com.), s 88 (as amended by
Act No. 99 of 1965), s120, s 124 — Matrimonial Causes Rules, r10, r20, r259 — Transfer of Land Act 1958 (N
o. 6399), s 103 , s 104(5) — Rules of the Supreme Court, O.XVI, r11; O.XLI, r5; O.XLII, r33; Divorce Rules,
r152. .

Included in the orders in a decree nisi under the Matrimonial Causes Act 1959 (Com.) were orders
that the respondent husband transfer to the petitioning wife certain lands and hand to the
petitioner's solicitor the relevant duplicate certificates of title. Respondent refused to obey these
orders and the Court made an order directing the registrar of the Court to execute the transfers for
and in the name of the respondent. The Registrar of Titles refused to register the transfers without
production of the duplicate certificates of title. The respondent was committed for contempt of
court for refusing to comply with the order to hand over the certificates of title. The wife thereupon
made application to the Court for an order directing the Registrar of Titles to register the transfers
without production of the duplicate certificates of title or, alternatively, pursuant to s 103(1) of the
Transfer of Land Act 1958 , to cancel such certificates and to issue new certificates in substitution
therefor,
Held: (1) s 103(1) of the Transfer of Land Act 1958 is part of the law of Victoria "relating to the
enforcement of judgments of the Supreme Court" of Victoria, within the meaning of r259(1) of the
Matrimonial Causes Rules 1960 (Com.) and the words "In any proceedings in the Court relating to any
land or any instrument or dealing in respect thereof" in s 103(1) include proceedings under the
Matrimonial Causes Act 1959 (Com.) for the enforcement of the order in the decree nisi directing the
transfer by the respondent to the petitioner of his interest in the lands specified in the decree;
accordingly, the Court was empowered to direct the Registrar of Titles to cancel the existing
certificates of title and to issue new certificates of title.
(2) Such an order may be made in proceedings to which the Registrar of Titles is not a party.
(3) However, no order under s 103(1) of the Transfer of Land Act should be made unless and until every
other means has been exhausted of securing the production of the certificates of title from the
respondent; and as it appeared that a friend of the respondent was holding the certificates of title
subject to the direction of the respondent, a further effort to procure production of the certificates
should be made.
Dotter v Evans, [1969] VR 41 , approved.
Application and Summons
Nicola Casella, the respondent in a divorce petition, was directed by the Court to transfer to his wife,
Evelina Casella, certain lands, and to hand to the petitioner's solicitors the duplicate certificates of
title. Upon the respondent's refusal to execute transfers, Master Jacobs, a person appointed to
discharge the functions of a registrar of the Court signed transfers in accordance with the order of
the Court. The Registrar of Titles refused to register the transfers on the ground that the duplicate
certificates of title had not been produced. After service of a further order directing the respondent
to hand over the certificates of title, and his failure to do so, leave was given to the petitioner to issue
a writ of attachment against the respondent for his contempt of court. The respondent was arrested
and remained in custody and still refused to surrender the duplicate certificates of title.
Application was then made by the petitioner in the matrimonial proceedings for orders directing the
Registrar of Titles to register, without production of the duplicate certificates of title, the transfers,
or, alternatively, for an order directing the Registrar to cancel the titles and substitute new titles in
the name of the respondent. In this application the Registrar of Titles was added as a party without
any order of the Court. Subsequently, a summons was issued against the respondent and Registrar of
Titles, seeking identical relief as in the application in the matrimonial proceedings.
It was argued that the orders sought in the summons and in the application could be made under s 124
of the Matrimonial Causes Act 1959 , or, alternatively, under s 103(1) of the Transfer of Land Act 1958 .
EF Dunphy, for the petitioner.
The respondent in person.

McINERNEY, J, delivered the following written judgment:

The parties to these proceedings were formerly husband and wife, having been married on 28
January 1953 at Grumento Nova, Potenza, Italy. On 29 May 1967, on the hearing of the wife's petition
on the ground of desertion, Monahan, J, made a decree nisi for dissolution of the marriage.
The difficulties with which I have been asked to deal arise in consequence of the orders contained in
paragraphs 4, 5 and 6 of the decree nisi relief, whereby the respondent was ordered--
(1) to transfer to the petitioner all his right title and interest in the property situate and known as
97 Park Street East, Brunswick, being the whole of the land more particularly described in
certificate of title volume 3769 folio 706, and in the matrimonial home situate at and known as 111
Park Street East, Brunswick, being the whole of the land more particularly described in
certificate of title volume 8250 folio 008, without any encumbrance whatsoever;
(2) to hand to the solicitors for the petitioner the duplicate certificates of title volume 3769 folio
706 and volume 8250 folio 008 to the said properties;
(3) to execute a transfer to the petitioner of all his right title and interest in such properties, such
transfer to be drawn by and at the expense of the petitioner and presented to the respondent for
signature within 14 days of the decree being made absolute. The decree nisi further provided
that in the event of the respondent failing to comply with such order when required to do so, the
petitioner's transfers be signed by the registrar. Presumably the latter provision was intended to
mean that the transfer by the respondent to the petitioner would be signed by the registrar of
the Court.
The decree nisi became absolute on 30 August 1967, but the respondent has resolutely declined either
to execute the transfers of the lands referred to in the decree nisi or to hand over the certificates of
title. Transfers of the land in the name of the respondent to the petitioner have, pursuant to the
direction contained in the decree nisi, been executed by Master Jacobs as "Registrar" of the Court for
and in the name of the respondent. Registration of these transfers at the office of titles has been
refused on the ground that the duplicate certificates of title have not been produced to the Registrar
of Titles.
On 3 November 1967 Smith, J, made an order directing the respondent to hand the relevant
certificates of title to the solicitors for the petitioner within four days of service on the respondent of
a copy of the decree nisi, of a memorandum of its having become absolute and of a copy of the order
of Smith, J, all duly endorsed in accordance with O.XLI, r5, of the Rules of the Supreme Court.
Respondent, although served with the documents mentioned in the order of Smith, J, failed to
comply with that order.
On 15 December 1967 Starke, J, gave leave to the petitioner to issue a writ of attachment against the
respondent for his contempt in not handing to the solicitor for the petitioner the duplicate
certificates of title volume 3769 folio 706 and volume 8250 folio 008 in accordance with the orders
dated 29 May 1967 and 30 October 1967.
Subsequently on 19 December 1967 a writ of attachment was issued pursuant to which the sheriff
attached the respondent who has since then been confined in Pentridge Gaol.
Upon the sheriff reporting to me in February 1968, that the respondent had been attached, I directed
that the respondent be brought before me in the Practice Court. This was accordingly done on 6
February 1968 when I inquired of the respondent whether he was prepared to comply with the order
to produce the duplicate certificate of title. Respondent did not give me any assurance that he would
produce or cause to be produced those duplicate certificates of title. I warned him of the possible
consequences to himself of his persistent failure to comply with the orders of the Court but he
remained recalcitrant.
Consequently I made no order for his release and he was returned in custody to Pentridge Gaol. I
directed that the matter be mentioned to me on 15 February 1968.
Pursuant to a notification which I had directed to be given to the petitioner's solicitors, Mr. Dunphy,
of Counsel for the petitioner, was also in attendance on 6 February. It being apparent that the
respondent would not, of his own volition, produce the duplicate certificates of title, and having
been told by Mr. Dunphy that the Registrar of Titles had intimated that he did not propose, in this
case, to exercise the discretionary power conferred on him by s 104(5) of the Transfer of Land Act 1958
of dispensing with the production of the duplicate certificates of title, I intimated to Mr. Dunphy
that he ought to consider whether some application could be made on behalf of the petitioner for an
order directing the Registrar to cancel the duplicate certificates of title which the respondent was
holding and to issue new certificates in their stead.
Accordingly, on 12 February 1968 the petitioner's solicitors took out an application expressed to be
returnable before the Court on 15 February 1968 for orders directing the Registrar of Titles to
register, without production of the duplicate certificates of title, the transfers signed by the registrar
of the Court from the respondent to the petitioner dated 8 November 1967 in all respects as though
the said transfers were accompanied by the said duplicate certificates of title, and to issue new
duplicate certificates of title in the name of the transferee, the petitioner; alternatively, for an order
directing the Registrar of Titles to cancel the certificate of titles issued in the one case in the names
of the respondent and petitioner and in the other case in the name of the petitioner and to substitute
for those certificates of title two new certificates of title to be issued in the name of the petitioner.
The application is expressed to be one made in Matrimonial Cause 1966 No. 2275 and is intituled:
"Between Evelyn Casella Petitioner and Nichola Casella Respondent and Charles Patrick Allen
Registrar of Titles". A copy of this application, together with a copy of the supporting affidavit sworn
by Armida Mary Poli on 12 February 1968 was served on the respondent personally at Pentridge Gaol.
Service of the application was also effected on the Registrar of Titles on 14 February 1968.
When the matter was mentioned to me on 15 February 1968, I inquired by what authority or by whose
order the Registrar of Titles had been added as a party in the matrimonial cause proceedings. No
order of the Court, or rule authorizing the joinder without such an order of the Registrar of Titles as
a party was produced or cited, and, after hearing certain further submissions on the part of counsel
for the petitioner, I adjourned the matter to a date to be fixed to enable counsel for the petitioner to
consider what further or other procedural steps should be taken.
On 19 February 1968 the solicitors for the petitioner issued a summons (numbered M6206 of 1968) in
the Supreme Court of Victoria, returnable before me on 20 February 1968. In this summons Evelyn
Casella was named as applicant and Nicola Casella and Charles Patrick Allen (Registrar of Titles)
were named as respondents. The summons was evidently prepared for issue as a "Summons under s 1
61 Marriage Act ". The words "under s 161 Marriage Act " at the head of the summons have been
crossed out and I assume that this was done because prior to or at the time of issue of the summons it
was realized that there was no jurisdiction to issue such a summons having regard to the fact that the
parties were no longer man and wife.
The summons sought the same relief as had been sought under the application issued on 12 February
1968 and a copy of the summons and a supporting affidavit was served on the Registrar of Titles on 19
February 1968. It does not appear that service of the summons issued on 19 February 1968 was effected
on the respondent. Presumably the summons issued on 19 February 1968 was intended to invoke the
jurisdiction inferred by s 103 of the Transfer of Land Act 1958 although the summons gives no
indication that it was issued pursuant to the Transfer of Land Act 1958 , nor indeed does the Transfer
of Land Act 1958 contain any provision for applications under that Act to be initiated by way of
summons. In the absence of such a provision, an application to the Court would normally be by way
of motion. The summons could, of course, be treated by the Court as a notice of motion: see Alliance
Contracting Co Ltd v Russell (1898) 23 VLR 545; 4 ALR 85.
In a letter dated 20 February 1968 to the solicitors for the petitioner, the Registrar of Titles has
acknowledged service both of the application and copy affidavit in the Matrimonial Cause No. 2275 of
1968 and of the summons and copy affidavit in the summons No. M 6206/1968, and has intimated that
he is quite prepared to abide by whatever order the judge may see fit to make in these matters and
that the consents to any amendments which may be procedurally necessary to conclude these
actions.
It should here be stated that in January 1968, the Registrar informed the deponent Armida Poli, of the
solicitors for the petitioner, that he would not, in this case, exercise the discretionary power
conferred on him by s 104(5) of the Transfer of Land Act 1958 to dispense with the production of
certificates of title volume 3769 folio 706 and volume 8250 folio 008.
The two applications--that in Matrimonial Cause No. 2275 of 1966 and the summons No. M 6206 of
1968--came on for hearing before me on 20 and 29 February 1968 when I reserved my decision.
For the petitioner, Mr. Dunphy argued that the orders sought in the summons and in the application
could be made under s 124 of the Matrimonial Causes Act 1959 or, alternatively, under s 103(1) of the Tra
nsfer of Land Act 1958 .
S 124 of the Matrimonial Causes Act 1959 provides: "A court exercising jurisdiction under this Act may
grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the
enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so
and either unconditionally or upon such terms and conditions as the court thinks just."
S 124 is expressed in the widest terms, limited in the first instances by the consideration that "the
court must be exercising jurisdiction under the Act before the section can operate", and that the
"power is limited to aiding enforcing or protecting the proper and due exercise of the matrimonial
causes jurisdiction or the provisions of the Act": see Horne v Horne, [1963] ALR 288, at p. 302, per
Wallace, J, who also expressed (ibid) the view that the injunction, in an appropriate case could be
either quia timet or mandatory as well as interim of ex parte.
In Doran v Doran (1964) 6 FLR 209, at p. 211; [1964-5] NSWR 1213, at p. 1215, Allen, J, observed that "The
Court's power in s 124 is expressed in the widest language and contains, it would seem, 'discretion
untrammelled in terms', but whilst the discretion so conferred is in terms unfettered, the manner of
its exercise must necessarily be controlled by a judicial discretion acting within the general scheme
of the statute".
The section is explicit that the injunction may be granted in aid of the enforcement of the decree,
and it is wide enough in its terms to permit the granting of an injunction against the Registrar of
Titles if in the circumstances "it appears to the court to be just or convenient to do so."
The existence of a statutory power in a court to grant an injunction in cases "in which it appears to
the court to be just or convenient to do so" does not enlarge the jurisdiction of the court so as to
enable it to grant an injunction in a case in which there is no right on the one side and no liability on
the other, either at law or in equity: see Halsbury, 2nd ed., vol. 18, p. 7, para. 10, and the cases there
cited. The general principle, therefore, is that if a proper case is made out for the exercise by the
court of its jurisdiction, any person against whom a right of action exists may be restrained by an
injunction: see Halsbury, 3rd ed., vol. 21, p. 408, para. 856, and see Ayers v Hanson, Stanley, and Prince
(1912) 56 Sol Jo 735, there cited. An injunction will not ordinarily, however, be granted against a
person not a party to the proceedings in which the injunction is sought. Such a person may, however,
be restrained from aiding and abetting a party in committing a breach of an injunction granted
against a defendant: see Halsbury, 3rd ed., vol. 21, p. 409, para. 858. See also Hubbard v Woodfield
(1913) 57 Sol Jo 729, and Seaward v Paterson, [1897] 1 Ch 545, at pp. 550-2 ; [1895-9] All ER Rep 1127, per
North, J Consequently, even though an injunction restraining the act complained of is claimed
against a defendant alone, the order will, if necessary, be extended to his workmen, servants, and
agents though not, it seems, to his tenants: see Hodson v Coppard (1860) 29 Beav 4; 54 ER 525, and see
Seton on Judgments, 7th ed., p. 509. It is clear, therefore, that an injunction will not ordinarily be
granted against a person not a party to the legal proceedings in which it is sought and will not
ordinarily bind such a person: see Iveson v Harris (1802) 7 Ves 251; 32 ER 102, and see Kerr on
Injunctions, 6th ed., pp. 632 and 674.
Where a transfer by a registered proprietor of his interest in certain land to a third party would
defeat the claims of a person beneficially entitled to an interest in that land, injunctions have been
granted restraining the registered proprietor from proceeding with the transfer or registration
thereof. In such proceedings the Registrar of Titles has sometimes been joined as a party, and a quia
timet injunction claimed against him restraining him from registering the transfer. Consequently, in
the present case, if the respondent had sought to transfer his interest in any of the lands the subject
of the orders in the decree nisi, it would have been open to the petitioner to seek an injunction under
s 124 restraining the respondent from proceeding with that transfer, and it would, in my view, have
been competent for the petitioner to have joined the Registrar of Titles as a party to the proceedings
and to have claimed an injunction against the Registrar restraining him from registering any
transfer of any such land by the respondent otherwise than to the petitioner.
In the present case, however, there is no allegation that the respondent is seeking to transfer his
interest in any of the lands and I am not disposed to grant an injunction against the Registrar of
Titles when he is not a party to the proceedings. I have now to consider whether I have power to
direct that he be joined as a party.
R20 of the Matrimonial Causes Rules provides that "where an application to a court or registrar
relates to pending or completed proceedings, the applicant and each other party of those pending or
completed proceedings who is affected by the application are parties to the application".
I do not think this rule has the effect of making the Registrar of Titles a party to the application
issued on 12 February 1968.
Except as provided by that rule there is no other provision dealing with the question of parties to an
application for an injunction, though s120 of the Act does confer on the Court a power to make
orders affecting persons not originally parties to the suit: see Whitbread v Whitbread, [1966] 2 NSWR
406, at p. 408; [1967] ALR 380.
It was argued that an order for joinder of the Registrar of Titles could be made under r259 of the
Matrimonial Causes Rules. By that rule, and subject to the Matrimonial Causes Rules, the laws of a
State or Territory relating to the enforcement of judgments of the Supreme Court of that State or
Territory are made applicable to and in relation to the enforcement by that Supreme Court of a
decree made under the Matrimonial Causes Act. The expression "the laws of a State or Territory"
includes the practice and procedure of the Supreme Court of the State or Territory: see r259(2). If the
phrase "the practice and procedure of the Supreme Court" means the practice and procedure laid
down by the Marriage Act 1958 and the Divorce Rules (as was argued in Price v Price, [1963] NSWR 1214,
at p. 1221; [1963] ALR 695, the provisions of Divorce R152 incorporate and apply the rules practice and
mode of procedure in force in the Court in its civil jurisdiction so far as the same are applicable in
the matters falling within the Divorce and Matrimonial Causes jurisdiction of the Supreme Court
and, therefore, the provisions of O.XVI, r11, of the Rules of the Supreme Court. I do not think,
however, that the provisions of O.XVI, r11, can be described as provisions relating to the enforcement
of judgments of the Supreme Court. I am, therefore, of opinion that an order for the joinder of the
Registrar of Titles as a party to the proceedings in Matrimonial Cause No.2275 of 1966 cannot be made
by virtue of the combined operation of r259 of the Matrimonial Causes Rules, Divorce R152, and O.
XVI, r11, of the Rules of the Supreme Court.

Following paragraph cited by:

Swancare Group Inc v Commissioner for Consumer Protection (13 March 2014) (Pritchard J)
71 Frazer v Walker [1967] AC 569, 581 (Lord Wilberforce) in relation to s 80 of the Land
Transfer Act 1952 (NZ) which provided ‘The Registrar may, upon such evidence as appears
to him sufficient, subject to any regulations under this Act, correct errors and supply
omissions in certificates of title or in the register, or in any entry therein, and may call in
any outstanding instrument of title for that purpose’. Section 81 of that Act, which was
discussed by his Lordship, was in terms similar to s 76 of the TL Act , and was considered to
be wider in scope. Similar statutory provisions to s 76 of the TL Act also exist in other
States. In relation to s 12, s 135 and s 136 of the Real Property Act 1970 (NSW) see also Quach v
Mavrickville Municipal Council (1990) 22 NSWLR 55, 60, 71 (Young J), State Bank of New South
Wales v Berowra Waters Holdings Pty Ltd (1986) 4 NSWLR 398, 403 - 404 (Needham J), Scallan
v Registrar-General (1988) 12 NSWLR 514 and Sahab Holdings Pty Ltd v Registrar-General [2011
] NSWCA 395 [183] - [193] (Campbell JA & Tobias AJA, McColl JA agreeing) (overturned on
appeal, but without discussion on this point: Castle Constructions Pty Ltd v Sahab Holdings
Pty Ltd [2013] HCA 11; (2013) 247 CLR 149). In relation to s 103 of the Transfer of Land Act 1958 (
Vic) see Casella v Casella [1969] VR 49, 55 (McInerney J) . In relation to s 64 of the Real
Property Act 1886 (SA) see Elder's Trustee & Executor Co Ltd v Bagot's Executor & Trustee Co
Ltd [1964] SASR 306 (Mayo J); Rogers v Resi-Statewide Corp Ltd (No 2) (1991) 32 FCR 344, 351 (v
on Doussa J). See further Skead N & Carruthers P 'The Registrar's power of correction:
'Alive and well', though perhaps 'unwelcome'? Part 1: The Slip Provision (2010) 18(1) Australia
n Property Law Journal 32.

Andrew Garrett Wine Resorts v National Australia Bank Ltd (No. 6) (03 August 2005) (Judgment
of The Honourable Justice Gray)

52. In Casella v Casella ,[24] the Victorian Supreme Court had occasion to consider the
extent of its jurisdiction under section 103 of the Transfer of Land Act 1958 (Vic) . That
section represents the Victorian counterpart to section 64 of the Real Property Act . As
McInerney J observed: [25]

Section 103 (1) of the Transfer of Land Act 1958 was first enacted in Victoria as s. 103 (1)
of the Transfer of Land Act 1954 (Act No. 5842). The sidenote of the latter subsection
suggests that it is derived from the provisions of ss. 233 and 245 of the Transfer of Land
Act 1928 (Act No. 3791), from s. 64 of the Real Property Act of South Australia and s. 12
(d) of the Real Property Act of New South Wales.

via

[25] [1969] VR 49 at 55 .

[1969] VR 55

R10 of the Matrimonial Causes Rules provides that where the provisions of the Act relating to practice and
procedure and the rules made under the Act do not make provision in respect to the practice and procedure
applicable in the circumstances of a particular case, or difficulty arises or doubt exists as to the practice or
procedure applicable in the circumstances of the particular case, the Court may give such directions with
respect to the practice and procedure to be followed in the case as the Court considers necessary.
I conclude, therefore, that if I consider it necessary or desirable that the Registrar of Titles should be joined as
a party to Matrimonial Cause No. 2275 of 1966, I can give the necessary directions under r10.

It was urged, however, that I need not direct that the Registrar of Titles be added as a party and that it was
open to me to resolve the difficulties at present existing in this matter by making an order under s 103(1) of the
Transfer of Land Act 1958 , which is in these terms: "In any proceedings in the Court relating to any land or
any instrument or dealing in respect thereof, if the Court directs the Registrar to cancel correct make record
substitute or issue any Crown grant certificate of title plan of subdivision or entry in the Register Book or
otherwise to do any act or make any entry necessary to give effect to any judgment decree or order of the
Court the Registrar shall obey such direction."

In the present case, the first question which arises with respect to s 103(1) of the Transfer of Land Act 1958 is
whether the provisions of that sub-section may be invoked by a judge sitting in the exercise of the jurisdiction
invested in him by the Matrimonial Causes Act 1959 . A second question, perhaps the converse to the first, is
whether the words in s 103(1) viz. "In any proceeding in the Court relating to any land or any instrument or
dealing in respect thereof", are wide enough to include proceedings under the Matrimonial Causes Act for the
enforcement of an order in a decree nisi directing the transfer by the respondent to the petitioner of his
interest in the lands specified in the decree. A third question is whether an order under s 103(1) can or ought to
be made against the Registrar of Titles in a proceeding in which he has not been joined as a party.

The first question, whether the provisions of s 103(1) of the Transfer of Land Act 1958 may be regarded as part
of the law of Victoria "relating to the enforcement of judgments of the Supreme Court of Victoria" within the
meaning of r259(1) of the Matrimonial Causes Rules, requires some consideration of the history of s 103(1) and
the judicial interpretation which that sub-section has received.

S 103(1) of the Transfer of Land Act 1958 was first enacted in Victoria as s 103(1) of the Transfer of Land Act 1954
(Act No. 5842). The side note of the latter sub-section suggests that it is derived from the provisions of s233 and
s245 of the Transfer of Land Act 1928 (Act No. 3791), from s64 of the Real Property Act of South Australia and s 1
2(d) of the Real Property Act of New South Wales.

[1969] VR 56

S245 of the Transfer of Land Act 1928 was in the following terms: "Upon the recovery of any land estate or
interest by any proceedings at law or in equity from the person registered as proprietor thereof, it shall be
lawful for the court or a judge, in any case in which such proceeding is not herein expressly barred, to direct
the Registrar to cancel any certificate of title or instrument or any entry or memorial in the register book
relating to such land estate or interest, and to substitute such certificate of title or entry as the circumstances
of the case require; and the Registrar shall give effect to such order."

That section derives--through s245 of the 1915 Act, s206 of the 1890 Act, and s139 of the Transfer of Land Statute
1866 (Act No. 301), from s127 of the Real Property Statute 1862 (Act No. 140), which was in these terms: "Upon
the recovery of any land estate or interest by any proceeding at law or in equity from the person registered as
proprietor thereof it shall be lawful for the court or a judge in any case in which such proceeding is not
hereinbefore expressly barred to direct the Registrar-General to cancel any certificate of title or instrument or
any entry or memorial in the register book relating to such land and to substitute such certificate of title or
entry as the circumstances of the case may require and the Registrar-General shall give effect to such order."

A provision in the same terms appears as s137 of the Real Property Act 1861 of South Australia (Act No. 22 of
1861): see South Australian Acts of Parliament 1852-1861, p. 289. The Victorian section remained unaltered until
the 1954 Act when the present s 103(1) was introduced, but in South Australia, by the Real Property
Amendment Act 1878 (Act No. 128 of 1878), a new section was substituted for the former s137, and this new
section--s48--is plainly the ancestor of s64 of the Real Property Act 1886 -1936 to which reference is made in the
side note to s 103 of the Transfer of Land Act 1954. The corresponding provision in New South Wales is s 138 of
the Real Property Act 1900 - 1956. S 12(d) of the Real Property Act 1900 -1956, to which reference is made in the
side note in s 103 of the Transfer of Land Act 1954, is obviously the provision upon which s 103(2) of the 1954
Act was modelled, but the power itself goes back in Victoria to s41(4) of the original Act No. 140 (Real Property
Act 1862).

In relation to s137 of the Real Property Act 1861 of South Australia, it was held in Re Biggs (1877) 11 SALR 43 ,
that the section does not authorize the Court to cancel a certificate of title on the petition of a person claiming
to be entitled to such land unless and until the title of such claimant has been established by proceedings at
law. The report does not expressly identify who was "the respondent" to that petition, but I assume it was the
Registrar-General. The same construction was put upon s48 of the Real Property Act (Amendment) Act 1878:
see Re Charles White (1887) 21 SALR 6 , where Boucaut, J, on a summons to the Registrar-General to show
cause why the registration of a discharge of mortgage should not be cancelled, held that the section applies
only when proceedings at law or in equity have been taken, and then only to give effect to the decree or order
by which the questions at issue in such proceedings have been determined. He held that the applicant must
first take proper proceedings to establish his rights before the Court will act under s48 of the Real Property
Act (Amendment) Act 1878.

[1969] VR 57

The decision in Re Charles White (1887) 21 SALR 6 , was considered by Mayo, J, in Elder's Trustee and
Executor Co Ltd v Bagot's Executor and Trustee Co Ltd, [1964] SASR 306 . In that case, in anticipation of the
payment of the moneys secured by a registered mortgage, a discharge of the mortgage was executed by the
mortgagees. By a mistake the discharge was registered at the Lands Titles Office before the moneys had been
paid. The mortgagees applied to the Supreme Court for (1) a declaration that the moneys secured by the
mortgage were still due and owing, and (2) an order directing the Registrar-General to cancel the registration
of the discharge of the mortgage. The Registrar-General was made a party to the proceedings. Mayo J, stated,
without comment, the effect of the decision in Re Charles White, supra, and made an order directing the
Registrar-General to cancel the Registration of the discharge of mortgage.

In New Zealand, the view adopted as to the corresponding section (Land Transfer Act 1885, s73, now s85 of the
Land Transfer Act 1952) has been that the power of the Court to cancel or correct the register is subsidiary to
the recovery of the land or some stated interest in it from the registered proprietor by a judgment of the Court:
see Assets Co Ltd v Mere Roihi, [1905] AC 176, at p. 195 .

In Assets Co Ltd v Mere Roihi, [1905] AC 176, at p. 195, the Privy Council, discussing s73 of the Land Transfer
Act 1885, observed that "There does not, moreover, appear to be any power conferred on the Supreme Court to
cancel or correct any certificate of title or entry on the register unless applied to by the registrar or on appeal
from him, except where land or some state or interest therein is recovered by some proceeding in that Court
from a registered proprietor. In such a case, if the proceeding is not expressly barred...the Supreme Court or
Judge can direct the registrar to cancel a certificate or entry and substitute another for it (s73)."

The course of authority in Victoria in relation to the section is curious and by no means uniform. In Gunn v
Harvey (1875) 1 VLR (E) 111, at pp. 116 and 121, Molesworth, J, expressed the view that the way in which he had
relieved from the inequitable effect of certificates was to order the holders of them to transfer. In Campbell v
Jarrett (1881) 7 VLR (E) 137; 3 ALT 49, Holroyd, J, likewise expressed (at VLR p. 145) the view that he had no
power to correct a certificate of title. In neither of these cases, however, were the provisions of s139 of the
Transfer of Land Statute 1866 (Act No. 301) referred to. In Ogle v Aedy (1887) 13 VLR 461 , Webb, J, refused to
order the cancellation of a certificate of title obtained by fraud, because the Registrar of Titles had not been
made a party. In Messer v Gibbs (1887) 13 VLR 854, where an attorney had forged the plaintiff's signature to a
mortgage and had later absconded with the proceeds of the mortgage, Webb, J, considered (at p. 873) that the
facts of the case brought it within s 139 of the Transfer of Land Statute 1866, and, accordingly, made an order
directing the defendant Gibbs, the Registrar of Titles, to cancel the two certificates of title issued in the name
of the fictitious person, Hugh Cameron, and to substitute therefor two certificates of titles for the same land
respectively in the name of the plaintiff, subject, however, to the mortgage executed in Cameron's name by
the fraudulent attorney (Cresswell) to the McIntyres: see 13 VLR, at p. 874 . Both the Full Court ( 13 VLR 876 )
and the Privy Council (sub nom. Gibbs v Messer, [1891] AC 248 ) appear to have assumed the validity of the
view adopted by Webb, J, although the judgment of Webb, J, was varied in the Privy Council by directing the
defendant Gibbs (the Registrar of Titles) to cancel not only the two certificates of titles issued in the name of
Hugh Cameron but also the mortgages entered as an encumbrance on the certificates of title.

[1969] VR 58

In the light of these authorities, therefore, I conclude that s 103(1) of the Transfer of Land Act 1958 may be
regarded as part of the law of Victoria "relating to the enforcement of judgments of the Supreme Court" of
Victoria, and, therefore, as being comprehended by those words as used in r259(1) of the Matrimonial Causes
Rules.

I turn now to the second question arising, namely, whether the words in s 103(1) of the Transfer of Land Act
1958 , viz. "In any proceedings in the Court relating to any land or any instrument or dealing in respect
thereof", are wide enough to include proceedings under the Matrimonial Causes Act for the enforcement of
that part of the decree nisi herein which directs the respondent to transfer to the petitioner the lands specified
in the decree.

As to this question, I am of the view that the proceedings in this cause for the enforcement of that portion of
the decree nisi which required the respondent to transfer to the petitioner his interest in the land therein
referred to are proceedings in this Court relating to that land and to the instrument of transfer in respect
thereof which by the decree nisi was ordered to be executed by the respondent. The respondent refused to
execute such a transfer; consequently, it became necessary to make an order under s 88 of the Matrimonial
Causes Act 1959 (as amended by Act No. 99 of 1965, s14) appointing an officer of this Court, namely, the
registrar, to execute instruments of transfer in the name of the respondent. Notwithstanding the execution of
those transfers and their lodging for registration, it now appears that the registration of those transfers cannot
be effected because the instruments of transfer are not accompanied by the duplicate certificate of title to
which they relate, which duplicates the respondent has resolutely refused to produce. It appears to me that if
the respondent persists in this refusal it may ultimately prove necessary, if the decree nisi is to be made
effective, to direct the Registrar to cancel the existing certificates of title and to issue new certificates in their
place, such certificates to be issued in the name of the petitioner.

It seems to me, therefore, that the provisions of s 103(1) of the Transfer of Land Act 1958 are applicable to and
in relation to the enforcement by this Court of the decree nisi herein.

I come then to the third question, namely, whether an order under s 103(1) can or ought to be made against the
Registrar of Titles in a proceeding in which he has not been joined as a party. So far as the reported cases
show, Ogle v Aedy, supra, is authority for the proposition that an order will not be made under the section if
the Registrar of Titles is not a party to the proceedings.

In some of the cases already discussed--Gunn v Harvey, supra, and Campbell v Jarrett, supra--the existence of
the section does not seem to have been adverted to: see Hogg on The Australian Torrens System, p. 844.

In other cases in which an order has been made under the section-- e.g. Gibbs v Messer, supra, and Elder's
Trustee and Executor Co. Ltd. v Bagot's Executor an Trustee Co. Ltd., supra--the Registrar has been a party to
the proceedings. Mr. Dunphy stated that he had been informed that in Brancatisano v Dudenas (1966,
unreported), Newton, J, had made an order under s 103(1) although the Registrar of Titles was not a party to
the proceedings. The case was one in which the defendant had failed to comply with a decree for specific
performance directing him to transfer certain land to the plaintiff. Perusal of the Court file shows, however,
that an order under s 103 was made upon motion of which the Registrar of Titles, although not named as a
party in the action, was given notice. The order made by Newton, J, does not recite any appearance by or on
behalf of the Registrar upon the motion.
[1969] VR 59

On the other hand, in Loke Yew v Port Swettenham Rubber Co Ltd, [1913] AC 491, at p. 504, the Privy Council
expressed the strongest view of "the power and duty of a court to direct rectification of the register". The
formal advice given, however, was merely that the judgment of the court of first instance be restored, and the
terms in which this order is reported (at p. 495) do not include any reference to an order in the terms of our s 103
, but merely record an order that the respondent should execute and register a transfer of the subject land to
the applicant.

My own view, is that where the question of the title to land has been determined by the Court adversely to the
registered proprietor, in proceedings in which he is a party, the Court has power to make an order under s 103
(1) even though the Registrar of Titles is not a party to the proceedings--cf. Wiseman, Transfer of Land Act ,
2nd ed., p. 405; Baalman, The Torrens System in NSW (1951), pp. 423, 424, and Kerr, Australian Lands Titles
System, pp. 199, 200.

Whether such an order ought to be made otherwise than on notice to the Registrar, is, in my view, a matter to
be determined by the Court on the facts of each individual case in the light of the orders sought.

The powers of the Court to make orders under s 103 of the Transfer of Land Act 1958 are obviously to be
exercised with very great care. The Registrar has power in his discretion to dispense with the production of a
duplicate certificate of title: see s 104(5) . Where a discretion is committed by the Act to the Registrar and the
Registrar declines--as he has done in this case--to exercise his discretion in the manner sought, the Court
should be slow to override the officer charged with the administration of the Torrens system of title in this
State. To make an order cancelling a duplicate certificate of title, while at the same time leaving that duplicate
in existence and capable of giving rise to unregistered dealings or transactions in which a person may advance
money on the face of a supposed subsisting duplicate certificate of title, would be destructive of the objects of
the Transfer of Land Act . I do not feel disposed, therefore, to make any order under s 103 unless and until
every other means has been exhausted of securing the production of the duplicate certificates of title now held
by or at the direction of the respondent unless, indeed, it is "necessary to give effect to" the decree pronounced
by Monahan, J.

Since writing the preceding paragraph I have ascertained that Gillard, J, in reasons for judgment delivered on
29 April 1968 (Dotter v Evans, [1969] VR 41 ) has expressed a similar view as to the section. I quote from those
reasons, at p. 46: "It is my opinion that the provisions of this section should only be resorted to in the last
extremity. The ordinary established procedure of effectuating the transmission of title should be completely
exhausted before the Court is requested to make an extraordinary order of this character which by being
repeatedly granted could inevitably be destructive of the Torrens system. ...the Court should not place itself in
a position of assisting a duplicate to continue in existence, with always a threat of its possible misuse, at the
same time as some further muniment of title either by way of Crown grant or certificate was issued by the
Registrar in accordance with the Court's order. The Court should attempt in the first place to safeguard the
principles of the Torrens system of having but one duplicate original in circulation in respect of any piece of
land."

[1969] VR 60

The statements made by the respondent on the last occasion on which he was before me indicate that the
certificates of title are held by a friend of his subject to his direction. It appears to me that, in this situation, the
provisions of O.XLII, r33, are available to the petitioner and that under this rule an order may be made for the
examination of the respondent to ascertain the identity of the person holding those certificates. If the identity
of that person is discovered, then that person may likewise, under the same provisions, be brought up for
examination to ascertain the whereabouts of the duplicate certificates of title, and whether that person is
prepared to produce those duplicate certificates of title to the Registrar of Titles. If that person refuses to
produce the duplicate certificates of title to the Registrar of Titles, it may then be open to the petitioner to
apply to the Court for an injunction ordering that person to produce those duplicate certificates of title to the
Registrar of Titles. But until it is clear that recourse to this procedure has provided no solution to the present
problem, I do not think that an order should be made under s 103 of the Transfer of Land Act 1958 or that any
injunction should be granted against the Registrar of Titles under the provisions of the Matrimonial Causes
Act.

I am prepared, if the petitioner makes application for such an order, to make an order under O.XLII, r33, for
the attendance and the examination, before me or before the judge sitting in the Practice Court, of the
respondent to be examined as to the present whereabouts of each of the said duplicate certificates of title, and
as to the identity and present whereabouts of the person or persons in whose possession custody or power
each such duplicate certificate of title now is and as to the terms or authority upon or under which each such
duplicate certificate of title is held by such person or persons.

If it subsequently appears necessary or desirable to do so, no doubt application may then be made under O.
XLII, r33, for an order for the attendance and examination of the person or persons presently having the
custody or possession of or control over each of the said duplicate certificates of title, and as to the identity and
present whereabouts of the person or persons in whose possession custody or power each such duplicate
certificate of title now is and on what terms or under what authority each such duplicate certificate of title is
now held by such person or persons. Indeed, it may be that an order for the production by such person or
persons of such duplicate certificates of title before the Court or a judge might be made under O.XXXVII, r7:
see Elder v Carter; Ex parte Slide and Spur Gold Mining Company (1890) 25 QBD 194, at p. 201, per Bowen, LJ I
express no concluded view on this matter which, in the result, may not arise for decision.

Having regard to the foregoing considerations, I think I should not at the present stage order that the Registrar
of Titles be joined as a party to the Matrimonial Cause No. 2275 of 1966, or grant any injunction against him
under s 124 of the Matrimonial Causes Act 1959 , or make any order against him under s 103 of the Transfer of
Land Act 1958 .

On the application in Matrimonial Cause No. 2275 of 1966, in which these orders were sought, I make no order
other than to adjourn the application sine die, leaving it to the petitioner (if so advised) to bring the
application on for further hearing after resort has been had to the process of the examination under O.XLII,
r33.

[1969] VR 61

As to the summons number M 6206 of 1968, I am disposed to think, having regard to the views expressed by
the Privy Council in Assets Co Ltd v Mere Roihi, [1905] AC 176, at p. 195, that the powers of the Court under s 103
of the Transfer of Land Act 1958 may be exercised only in relation to and in some existing proceedings in the
Court relating to land or any instrument or dealing in respect thereof, and that s 103 does not authorize the
issue of a summons standing independently of such proceedings. If this view be correct, the issue of summons
M.6206 of 1968 was misconceived. I need not, I think, finally determine that question: it will be sufficient for
the time being to adjourn that summons sine die.

I would add that, as at present advised, I think that Matrimonial Cause No. 2275 of 1966 is a proceeding in the
Court which relates, inter alia, to the lands more particularly described in certificate of title volume 3769 folio
706 and certificate of title volume 8250 folio 008 and to an instrument or dealing in respect thereof, namely,
the transfer by the respondent to the petitioner of his interest in the said lands, pursuant to the decree nisi
pronounced by Monahan, J. Again I need not, I think, finally determine that question.

As to costs, I think I should reserve the costs of the present application to await the outcome of whatever
proceedings may be taken under O.XLII, r33. Having regard to the fact that the respondent has not yet purged
his contempt of court by producing the duplicate certificates of title, or directing the holder of the same to
produce them to the Court or to the Registrar of Titles, and to the further fact that it will be desirable to have
him attend for examination under O.XLII, r33, I am not disposed at present to order his release from custody.

I will certify for counsel and give liberty to apply.

Note: On 2 December 1968 McInerney, J, further considered Casella v Casella, [1969] VR 49, and ordered that
the Registrar of Titles do register, without production to him of the duplicates of certificates of title vol. 3769,
folio 706 and vol. 8250 folio 008, instruments of transfer of the said lands comprised in those certificates signed
by Charles Phillip Jacobs, Master of the Supreme Court, as "Registrar under the Matrimonial Causes Rules
1959-1967", being a person appointed to carry out the duties of a Registrar under the said rules, and being
transfers in the case of the land comprised in certificate of title vol. 3769, folio 706, of all the right, title and
interest of the respondent, Nicola Casella, in and to the said land to the petitioner and in the case of the land
comprised in certificate of title vol. 8250, folio 008 of all the right, title and interest of the respondent and
petitioner in and to the said land to the petitioner in all respects as if each of the said transfers had been
executed by the registered proprietor, Nicola Casella; and his Honour further ordered that upon registration
of the aforesaid instruments of transfer, the Registrar of Titles do cancel the certificate of title in the names of
Nicola Casella and Evelina Casella vol. 8250 folio 008 and the certificate of title vol. 3769 folio 706 in the name
of Nicola Casella and substitute for the said certificates of title two new certificates of title to the lands
respectively comprised therein, the said new certificates of title to be issued in the name of the petitioner,
Evelina Casella.

His Honour made further consequential orders, and said: "The respondent having apologized to the Court for
having disturbed the Court in previous proceedings before me, and it appearing that having regard to the
orders now made that no further purpose is served by detaining him further, I order that he be forthwith
released from custody."

Order accordingly.

Solicitors for the petitioner: Perillo and Adami. MALCOLM EVANS

Cited by:
Official Trustee in Bankruptcy v Registrar of Titles [2015] VSC 563 (06 October 2015) (Riordan J)

8. In the case of Marchesi v Registrar of Titles, [1] Ferguson J reviewed the authorities with respect to
the principles to be applied in considering applications for relief under s 103(1) of the Transfer of
Land Act 1958 consequent on the inability to produce a duplicate Certificate of Title. Her Honour
noted that in Dotter v Evans, [2] Gillard J had adopted the ‘last resort’ approach. His Honour had
expressed concern about the possible misuse of a second duplicate of title and had refused to
make an order under s 103(1) until other avenues had been completely exhausted. Similarly in Casel
la v Casella, [3] McInerney J had refused to make an order under s 103(1) until all other avenues had
been exhausted and, in particular, the defendant had been compelled under Court ordered oral
examination to disclose the identity of his friend, who appeared to be holding the duplicate.

Official Trustee in Bankruptcy v Registrar of Titles [2015] VSC 563 (06 October 2015) (Riordan J)

9. However, in Rizos v Rizos, [4] Lush J distinguished Dotter and Casella on the basis that, in those
cases, the duplicate certificates were not missing; but rather the party in possession was refusing
to produce them. Further, to reduce the risk of misuse of the second duplicate, Lush J adopted the
mechanism of directing the Registrar to register the transfer of the half interest without
production of the duplicate title and to issue a new Certificate of Title and duplicate in place of the
old title.

Official Trustee in Bankruptcy v Registrar of Titles [2015] VSC 563 (06 October 2015) (Riordan J)

8.
 8. In the case of Marchesi v Registrar of Titles, [1] Ferguson J reviewed the authorities with respect to
the principles to be applied in considering applications for relief under s 103(1) of the Transfer of
Land Act 1958 consequent on the inability to produce a duplicate Certificate of Title. Her Honour
noted that in Dotter v Evans, [2] Gillard J had adopted the ‘last resort’ approach. His Honour had
expressed concern about the possible misuse of a second duplicate of title and had refused to
make an order under s 103(1) until other avenues had been completely exhausted. Similarly in Casel
la v Casella, [3] McInerney J had refused to make an order under s 103(1) until all other avenues had
been exhausted and, in particular, the defendant had been compelled under Court ordered oral
examination to disclose the identity of his friend, who appeared to be holding the duplicate.

via
[3] [1969] VR 49 .

Swancare Group Inc v Commissioner for Consumer Protection [2014] WASC 80 (13 March 2014) (Pritchard J)
Casella v Casella [1969] VR 49
Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd

Swancare Group Inc v Commissioner for Consumer Protection [2014] WASC 80 (13 March 2014) (Pritchard J)
Casella v Casella [1969] VR 49
Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd

Swancare Group Inc v Commissioner for Consumer Protection [2014] WASC 80 (13 March 2014) (Pritchard J)
71 Frazer v Walker [1967] AC 569, 581 (Lord Wilberforce) in relation to s 80 of the Land Transfer Act 1952 (NZ
) which provided ‘The Registrar may, upon such evidence as appears to him sufficient, subject to any
regulations under this Act, correct errors and supply omissions in certificates of title or in the register, or
in any entry therein, and may call in any outstanding instrument of title for that purpose’. Section 81 of
that Act, which was discussed by his Lordship, was in terms similar to s 76 of the TL Act , and was
considered to be wider in scope. Similar statutory provisions to s 76 of the TL Act also exist in other
States. In relation to s 12, s 135 and s 136 of the Real Property Act 1970 (NSW) see also Quach v Mavrickville
Municipal Council (1990) 22 NSWLR 55, 60, 71 (Young J), State Bank of New South Wales v Berowra Waters
Holdings Pty Ltd (1986) 4 NSWLR 398, 403 - 404 (Needham J), Scallan v Registrar-General (1988) 12 NSWLR
514 and Sahab Holdings Pty Ltd v Registrar-General [2011] NSWCA 395 [183] - [193] (Campbell JA & Tobias
AJA, McColl JA agreeing) (overturned on appeal, but without discussion on this point: Castle
Constructions Pty Ltd v Sahab Holdings Pty Ltd [2013] HCA 11; (2013) 247 CLR 149). In relation to s 103 of the
Transfer of Land Act 1958 (Vic) see Casella v Casella [1969] VR 49, 55 (McInerney J) . In relation to s 64 of the
Real Property Act 1886 (SA) see Elder's Trustee & Executor Co Ltd v Bagot's Executor & Trustee Co Ltd [1964]
SASR 306 (Mayo J); Rogers v Resi-Statewide Corp Ltd (No 2) (1991) 32 FCR 344, 351 (von Doussa J). See
further Skead N & Carruthers P 'The Registrar's power of correction: 'Alive and well', though perhaps
'unwelcome'? Part 1: The Slip Provision (2010) 18(1) Australian Property Law Journal 32.

Marchesi v Registrar of Titles [2010] VSC 524 (17 November 2010) (Ferguson J)

13. That case was soon followed by the decision of McInerney J in Casella v Casella. [10] In that case,
the husband had been ordered to transfer property to his wife under the Matrimonial Causes Act
1959 (Cth) . He refused to do this and orders were made directing the Court Registrar to execute
transfers in the name of the husband. However, the Registrar of Titles would not register the
transfers unless the duplicate certificates of title were produced. The husband was committed for
contempt for refusing to hand over the duplicate titles. The wife sought orders under s 103(1) of the
Transfer of Land Act directing the Registrar to register the transfer without production of the
duplicate certificates of title or to cancel the certificates of title and issue fresh ones in the name of
the wife. His Honour was however also concerned about making such orders which would leave a
second duplicate title in existence. He would not make orders under s 103 until all other avenues
for securing the production of the duplicate certificates of title had been exhausted. The duplicate
titles appeared to be held by the husband’s friend. His Honour was of the opinion that the correct
approach was for the husband to be required (through a court process of oral examination) to
disclose the identity of the friend. The friend could then be required to produce the duplicate
certificates of title. Only if that procedure failed to produce the duplicates did his Honour think an
order should be made under s 103 .
 via

[10] [1969] VR 49 .

Marchesi v Registrar of Titles [2010] VSC 524 (17 November 2010) (Ferguson J)

48. Nevertheless, the powers conferred on the Court by s 103(1) should be exercised with caution.
Here, the following matters are relevant in the exercise of the discretion as to whether or not to
make orders under the section:

(a) If the orders are not made, additional costs will be

incurred and there will be further delay in the administration
and finalisation of the bankrupt estate which began in
September 2004.

(b) The risks associated with having a second “live”

certificate of title in existence, can be overcome by the making
of orders akin to those made in Marshall v Williams – if such
orders are made, the principles of the Torrens system are not
undermined.

(c) Whilst Optquest and/or Mr Vasiliou or Ms Apostolou

may hold or control the existing certificates of title, neither they
nor the family trust have any beneficial interest in the property.

(d) The beneficial interest in the property vested

automatically in Mr Marchesi upon the bankruptcy of Mr
Vasiliou [38] and Mr Marchesi is entitled to be registered as
proprietor. [39] Therefore, it is not necessary for any vesting
order to be made by the Court. In that sense, Mr Marchesi is
one step further along the line than the plaintiffs in many of the
earlier cases where the application was for a vesting order with
ancillary orders sought under s 103 . [40]

(e) There are no practical steps that Mr Marchesi could

take to obtain the duplicate titles. This is particularly so having
regard to the history of the litigation between Mr Marchesi and
Mr Vasiliou, Ms Apostolou and Optquest and the orders that
were made against each of them which were breached.

via

[40] Dotter v Evans [1969] VR 41; Marshall v Williams [1974] VR 592; Rizos v Rizos [1970] VR 150. See also
Re Purkess [1999] 3 VR 223 where only a vesting order was sought and made, and Steinbarth v Peters [2005]
VSC 87. Compare Casella v Casella [1969] VR 49 where no vesting order was sought but rather the
application was for orders under s 103(1) of the Transfer of Land Act alone.

Bloomingdale Holdings v 87 Stevedore Street [2010] VSC 268 (07 June 2010) (Warren CJ)

28. The court’s attitude to a petition for a vesting order will depend to some extent on the propriety of
the case before it, the assiduity with which the evidence, including any documentary evidence, has
been assembled, and the need for the relief sought. [11]

via

[11] Casella v Casella [1969] VR 49 ; Re Bennett [1954] QWR 52.

Haslam v Money for Living (No 2) [2007] FCA 1981 (21 December 2007) (Tracey J)
 Casella v Casella [1969] VR 49 referred to

Haslam v Money for Living (No 2) [2007] FCA 1981 (21 December 2007) (Tracey J)

8. The fourteenth respondent is the Victorian Registrar of Titles. It will be convenient to refer to him
hereafter as “the Registrar”. In his written submissions, counsel for the Registrar contended that
Victorian case law which had developed under s 51 of the Trustee Act 1958 (Vic) and s 103 the Transfe
r of Land Act 1958 (Vic) rendered a vesting order as a step of last resort for parties who had “no
other ordinary conveyancing procedure available to them.” Section 51 provided for vesting orders
to be made, inter alia, when a trustee, who was under a duty to do so, neglected or refused to
convey any property. Section 103 provided for the Supreme Court to direct the Registrar to correct
the record in the Register. Reliance was placed on Dotter v Evans [1969] VR 41; Casella v Casella [1969
] VR 49 and Re Purkiss [1999] 3 VR 223. In argument counsel agreed that these cases were
concerned with the exercise, by the Supreme Court of Victoria, of statutory discretions to direct
the Registrar to amend the Register. The Registrar placed particular reliance on the observations
of Gillard J in Dotter v Evans at 45 where his Honour said:

“I would, therefore, be inclined to the view that having regard to this policy [of providing for
the certificate of title or Crown Grant to be in duplicate], set out or to be discovered in the Tra
nsfer of Land Act , a vesting order should not be where it is merely intended to facilitate or be
a substitute for ordinary conveyancing practice. In these proceedings supplementary orders
are being sought to enforce a judgment for specific performance and it should be assumed
that the defendant should and will obey the Court’s orders on any directions given. At the
initial stages these orders should involve simple conveyancing matters only. Although from
the evidence before the Court one may believe that the defendants will prove recalcitrant
and will not willingly co-operate to carry out the judgment of the Court, nevertheless at this
stage of the proceedings, in asking for supplementary directions, it seems to me that the
plaintiff should follow the ordinary practice, both in Court proceedings and in conveyancing.
All remedies based on such practices should be exhausted before other extraordinary
remedies are granted by the Court.”

Haslam v Money for Living (No 2) [2007] FCA 1981 (21 December 2007) (Tracey J)

9. His Honour’s observations were made in the course of dealing with a case in which a vendor had
failed to comply with an order for specific performance of a contract for the sale of land. Casella v
Casella involved the failure by a husband to comply with a Court order to transfer certain land to
his wife as part of property arrangements following a divorce. McInerney J refused to make an
order under s 103 of the Transfer of Land Act because of a concern that it could lead to the
continuance in existence of a duplicate certificate of title which did not reflect the terms of the
Register and which might be misused (see at 59-60).

Andrew Garrett Wine Resorts v National Australia Bank Ltd (No. 6) [2005] SASC 292 (03 August 2005)
(Judgment of The Honourable Justice Gray)
Andrew Garrett Wine Resorts Pty Ltd & Anor v National Australia Bank [2004] SASC 348; Evajade Pty Ltd v
National Australia Bank Ltd (No 2) [2005] SASC 229 ; Purnell Bros Pty Ltd v Transport Engineers Pty Ltd (1984)
73 FLR 160 at 175 ; Rivers v Rivers [2004] SASC 295 ; The Commissioner for Railways v Small (1938) 38 SR
(NSW) 564; National Employers’ Mutual General Insurance Assn Ltd v Waind [1978] 1 NSWLR 372 ; Santos Ltd
v Pipeline Authority of South Australia (1996) 66 SASR 38 ; Hunt v Russell (1995) 63 SASR 402 ; R v Ran (1996)
16 WAR 447; R v Ridgeway [1998] SASC 6963 ; Rogers v Resi-Statewide (No 2) (1991) 32 FCR 344 ; Lipohar v
The Queen (1999) 200 CLR 485 ; Re Biggs (1877) 11 SALR 43; Lallandsal Pty Ltd (in Liq) v REI Building Society (19
93) 41 FCR 421; Re Charles White (1887) 21 SALR 6; Re Mallen (1892) 25 SALR 34; Elders Trustee and Executor
Co Ltd v Bagot's Executor and Trustee Co [1946] SASR 306; Lank v Lank (1973) 21 FLR 384; Casella v Casella [196
9] VR 49 ; Rogers v Resi-Statewide (No 2) (1991) 32 FCR 344, considered.

Andrew Garrett Wine Resorts v National Australia Bank Ltd (No. 6) [2005] SASC 292 (03 August 2005)
(Judgment of The Honourable Justice Gray)

52. In Casella v Casella , [24] the Victorian Supreme Court had occasion to consider the extent of its
jurisdiction under section 103 of the Transfer of Land Act 1958 (Vic) . That section represents the
Victorian counterpart to section 64 of the Real Property Act . As McInerney J observed: [25]
 Section 103 (1) of the Transfer of Land Act 1958 was first enacted in Victoria as s. 103 (1) of the Transfer of
Land Act 1954 (Act No. 5842). The sidenote of the latter subsection suggests that it is derived from the
provisions of ss. 233 and 245 of the Transfer of Land Act 1928 (Act No. 3791), from s. 64 of the Real
Property Act of South Australia and s. 12 (d) of the Real Property Act of New South Wales.

Andrew Garrett Wine Resorts v National Australia Bank Ltd (No. 6) [2005] SASC 292 (03 August 2005)
(Judgment of The Honourable Justice Gray)

53. The question in Casella was whether the words in section 103 :

in any proceedings in the Court relating to any land or an instrument or dealing in respect thereof

were wide enough to include proceedings under the Matrimonial Causes Act 1959 (Cth) for the
enforcement of that part of decree nisi directing the transfer of land. The Court took the view that
the proceedings did enliven the jurisdiction conferred by the Transfer of Land Act. McInerney J
then considered whether the jurisdiction should be exercised: [26]

[T]he powers of the court under s. 103 … may be exercised only in relation to and in some existing
proceedings in the court relating to land or any instrument or dealing in respect thereof, and that s. 103
does not authorize the issue of a summons standing independently of such proceedings.

In relation to s 137 of the Real Property Act 1861 of South Australia, it was held in Re Biggs (1877), 11
SALR 43, that the section does not authorize the Court to cancel a certificate of title on the petition of
a person claiming to be entitled to such land unless and until the title of such claimant has been
established by proceedings at law. The report does not expressly identify who was "the respondent" to
that petition, but I assume it was the Registrar-General. The same construction was put upon s48 of
the Real Property Act (Amendment) Act 1878: see Re Charles White (1887), 21 SALR 6, where Boucaut, J.,
on a summons to the Registrar-General to show cause why the registration of a discharge of mortgage
should not be cancelled, held that the section applies only when proceedings at law or in equity have
been taken, and then only to give effect to the decree or order by which the questions at issue in such
proceedings have been determined. He held that the applicant must first take proper proceedings to
establish his rights before the Court will act under s48 of the Real Property Act (Amendment) Act
1878.

The decision in Re Charles White (1887), 21 SALR 6, was considered by Mayo, J., in Elder's Trustee &
Executor Co Ltd v Bagot's Executor & Trustee Co Ltd ,[1964] SASR 306. In that case, in anticipation of the
payment of the moneys secured by a registered mortgage, a discharge of the mortgage was executed
by the mortgagees. By a mistake the discharge was registered at the Lands Titles Office before the
moneys had been paid. The mortgagees applied to the Supreme Court for (1) a declaration that the
moneys secured by the mortgage were still due and owing, and (2) an order directing the Registrar-
General to cancel the registration of the discharge of the mortgage. The Registrar-General was made a
party to the proceedings. Mayo J, stated, without comment, the effect of the decision in Re Charles
White , supra, and made an order directing the Registrar-General to cancel the registration of the
discharge of mortgage.

In New Zealand, the view adopted as to the corresponding section (Land Transfer Act 1885, s73, now s85
of the Land Transfer Act 1952) has been that the power of the Court to cancel or correct the register is
subsidiary to the recovery of the land or some stated interest in it from the registered proprietor by a
judgment of the Court: see A ssets Co Ltd v Mere Roihi , [1905] AC 176, at p. 195 .

In Assets Co Ltd v Mere Roihi , [1905] AC 176, at p. 195, the Privy Council, discussing s73 of the Land
Transfer Act 1885, observed that "There does not, moreover, appear to be any power conferred on the
Supreme Court to cancel or correct any certificate of title or entry on the register unless applied to by
the registrar or on appeal from him, except where land or some state or interest therein is recovered
by some proceeding in that Court from a registered proprietor. In such a case, if the proceeding is not
expressly barred...the Supreme Court or Judge can direct the registrar to cancel a certificate or entry
and substitute another for it (sec 73)."

The course of authority in Victoria in relation to the section is curious and by no means uniform. In Gu
nn v Harvey (1875) 1 VLR (E) 111, at pp. 116 and 121, Molesworth, J., expressed the view that the way in
which he had relieved from the inequitable effect of certificates was to order the holders of them to
transfer. In Campbell v Jarrett (1881) 7 VLR (E) 137; 3 ALT 49, Holroyd, J., likewise expressed (at VLR p.
145) the view that he had no power to correct a certificate of title. In neither of these cases, however,
were the provisions of s139 of the Transfer of Land Statute 1866 (Act No. 301) referred to. In Ogle v Aedy (1
887) 13 VLR 461, Webb, J., refused to order the cancellation of a certificate of title obtained by fraud,
because the Registrar of Titles had not been made a party. In Messer v Gibbs (1887), 13 VLR 854, where
an attorney had forged the plaintiff's signature to a mortgage and had later absconded with the
 proceeds of the mortgage, Webb, J, considered (at p. 873 ) that the facts of the case brought it within
s139 of the Transfer of Land Statute 1866, and, accordingly, made an order directing the defendant
Gibbs, the Registrar of Titles, to cancel the two certificates of title issued in the name of the fictitious
person, Hugh Cameron, and to substitute therefor two certificates of titles for the same land
respectively in the name of the plaintiff, subject, however, to the mortgage executed in Cameron's
name by the fraudulent attorney (Cresswell) to the McIntyres: see 13 VLR, at p. 874 . Both the Full
Court ( 13 VLR 876 ) and the Privy Council (sub nom. Gibbs v Messer , [1891] AC 248) appear to have
assumed the validity of the view adopted by Webb, J., although the judgment of Webb, J., was varied
in the Privy Council by directing the defendant Gibbs (the Registrar of Titles) to cancel not only the
two certificates of titles issued in the name of Hugh Cameron but also the mortgages entered as an
encumbrance on the certificates of title.

In the light of these authorities, therefore, I conclude that s 103(1) of the Transfer of Land Act 1958 may
be regarded as part of the law of Victoria"relating to the enforcement of judgments of the Supreme
Court" of Victoria, and, therefore, as being comprehended by those words as used in r. 259(1) of the
Matrimonial Causes Rules.

The powers of the Court to make orders under s. 103 … are obviously to be exercised with very great
care. The registrar has power in his discretion to dispense with the production of a duplicate
certificate of title: see s. 104 (5). Where a discretion is committed by the Act to the registrar and the
registrar declines – as he has done in this case – to exercise his discretion in the manner sought, the
court should be slow to override the officer charged with the administration of the Torrens system of
title in this State. To make an order cancelling a duplicate certificate of title, while at the same time
leaving that duplicate in existence and capable of giving rise to unregistered dealings or transactions
in which a person may advance money on the face of a supposed subsisting duplicate certificate of
title, would be destructive of the objects of the Transfer of Land Act. I do not feel disposed, therefore,
to make any order under s. 103 unless and until every other means has been exhausted of securing the
production of the duplicate certificates of title now held by or at the direction of the respondent
unless, indeed, it is “necessary to give effect to” the decree pronounced by Monahan, J.

Andrew Garrett Wine Resorts v National Australia Bank Ltd (No. 6) [2005] SASC 292 (03 August 2005)
(Judgment of The Honourable Justice Gray)

52. In Casella v Casella , [24] the Victorian Supreme Court had occasion to consider the extent of its
jurisdiction under section 103 of the Transfer of Land Act 1958 (Vic) . That section represents the
Victorian counterpart to section 64 of the Real Property Act . As McInerney J observed: [25]

Section 103 (1) of the Transfer of Land Act 1958 was first enacted in Victoria as s. 103 (1) of the Transfer of
Land Act 1954 (Act No. 5842). The sidenote of the latter subsection suggests that it is derived from the
provisions of ss. 233 and 245 of the Transfer of Land Act 1928 (Act No. 3791), from s. 64 of the Real
Property Act of South Australia and s. 12 (d) of the Real Property Act of New South Wales.

via

[24] [1969] VR 49 .

Andrew Garrett Wine Resorts v National Australia Bank Ltd (No. 6) [2005] SASC 292 (03 August 2005)
(Judgment of The Honourable Justice Gray)

52. In Casella v Casella ,[24] the Victorian Supreme Court had occasion to consider the extent of its
jurisdiction under section 103 of the Transfer of Land Act 1958 (Vic) . That section represents the
Victorian counterpart to section 64 of the Real Property Act . As McInerney J observed: [25]

Section 103 (1) of the Transfer of Land Act 1958 was first enacted in Victoria as s. 103 (1) of the Transfer of
Land Act 1954 (Act No. 5842). The sidenote of the latter subsection suggests that it is derived from the
provisions of ss. 233 and 245 of the Transfer of Land Act 1928 (Act No. 3791), from s. 64 of the Real
Property Act of South Australia and s. 12 (d) of the Real Property Act of New South Wales.

via

[25] [1969] VR 49 at 55 .

Andrew Garrett Wine Resorts v National Australia Bank Ltd (No. 6) [2005] SASC 292 (03 August 2005)
(Judgment of The Honourable Justice Gray)
53. The question in Casella was whether the words in section 103 :

in any proceedings in the Court relating to any land or an instrument or dealing in respect thereof

were wide enough to include proceedings under the Matrimonial Causes Act 1959 (Cth) for the
enforcement of that part of decree nisi directing the transfer of land. The Court took the view that
the proceedings did enliven the jurisdiction conferred by the Transfer of Land Act. McInerney J
then considered whether the jurisdiction should be exercised: [26]

[T]he powers of the court under s. 103 … may be exercised only in relation to and in some existing
proceedings in the court relating to land or any instrument or dealing in respect thereof, and that s. 103
does not authorize the issue of a summons standing independently of such proceedings.

In relation to s 137 of the Real Property Act 1861 of South Australia, it was held in Re Biggs (1877), 11
SALR 43, that the section does not authorize the Court to cancel a certificate of title on the petition of
a person claiming to be entitled to such land unless and until the title of such claimant has been
established by proceedings at law. The report does not expressly identify who was "the respondent" to
that petition, but I assume it was the Registrar-General. The same construction was put upon s48 of
the Real Property Act (Amendment) Act 1878: see Re Charles White (1887), 21 SALR 6, where Boucaut, J.,
on a summons to the Registrar-General to show cause why the registration of a discharge of mortgage
should not be cancelled, held that the section applies only when proceedings at law or in equity have
been taken, and then only to give effect to the decree or order by which the questions at issue in such
proceedings have been determined. He held that the applicant must first take proper proceedings to
establish his rights before the Court will act under s48 of the Real Property Act (Amendment) Act
1878.

The decision in Re Charles White (1887), 21 SALR 6, was considered by Mayo, J., in Elder's Trustee &
Executor Co Ltd v Bagot's Executor & Trustee Co Ltd ,[1964] SASR 306. In that case, in anticipation of the
payment of the moneys secured by a registered mortgage, a discharge of the mortgage was executed
by the mortgagees. By a mistake the discharge was registered at the Lands Titles Office before the
moneys had been paid. The mortgagees applied to the Supreme Court for (1) a declaration that the
moneys secured by the mortgage were still due and owing, and (2) an order directing the Registrar-
General to cancel the registration of the discharge of the mortgage. The Registrar-General was made a
party to the proceedings. Mayo J, stated, without comment, the effect of the decision in Re Charles
White , supra, and made an order directing the Registrar-General to cancel the registration of the
discharge of mortgage.

In New Zealand, the view adopted as to the corresponding section (Land Transfer Act 1885, s73, now s85
of the Land Transfer Act 1952) has been that the power of the Court to cancel or correct the register is
subsidiary to the recovery of the land or some stated interest in it from the registered proprietor by a
judgment of the Court: see A ssets Co Ltd v Mere Roihi , [1905] AC 176, at p. 195 .

In Assets Co Ltd v Mere Roihi , [1905] AC 176, at p. 195, the Privy Council, discussing s73 of the Land
Transfer Act 1885, observed that "There does not, moreover, appear to be any power conferred on the
Supreme Court to cancel or correct any certificate of title or entry on the register unless applied to by
the registrar or on appeal from him, except where land or some state or interest therein is recovered
by some proceeding in that Court from a registered proprietor. In such a case, if the proceeding is not
expressly barred...the Supreme Court or Judge can direct the registrar to cancel a certificate or entry
and substitute another for it (sec 73)."

The course of authority in Victoria in relation to the section is curious and by no means uniform. In Gu
nn v Harvey (1875) 1 VLR (E) 111, at pp. 116 and 121, Molesworth, J., expressed the view that the way in
which he had relieved from the inequitable effect of certificates was to order the holders of them to
transfer. In Campbell v Jarrett (1881) 7 VLR (E) 137; 3 ALT 49, Holroyd, J., likewise expressed (at VLR p.
145) the view that he had no power to correct a certificate of title. In neither of these cases, however,
were the provisions of s139 of the Transfer of Land Statute 1866 (Act No. 301) referred to. In Ogle v Aedy (1
887) 13 VLR 461, Webb, J., refused to order the cancellation of a certificate of title obtained by fraud,
because the Registrar of Titles had not been made a party. In Messer v Gibbs (1887), 13 VLR 854, where
an attorney had forged the plaintiff's signature to a mortgage and had later absconded with the
proceeds of the mortgage, Webb, J, considered (at p. 873 ) that the facts of the case brought it within
s139 of the Transfer of Land Statute 1866, and, accordingly, made an order directing the defendant
Gibbs, the Registrar of Titles, to cancel the two certificates of title issued in the name of the fictitious
person, Hugh Cameron, and to substitute therefor two certificates of titles for the same land
respectively in the name of the plaintiff, subject, however, to the mortgage executed in Cameron's
name by the fraudulent attorney (Cresswell) to the McIntyres: see 13 VLR, at p. 874 . Both the Full
Court ( 13 VLR 876 ) and the Privy Council (sub nom. Gibbs v Messer , [1891] AC 248) appear to have
assumed the validity of the view adopted by Webb, J., although the judgment of Webb, J., was varied
 in the Privy Council by directing the defendant Gibbs (the Registrar of Titles) to cancel not only the
two certificates of titles issued in the name of Hugh Cameron but also the mortgages entered as an
encumbrance on the certificates of title.

In the light of these authorities, therefore, I conclude that s 103(1) of the Transfer of Land Act 1958 may
be regarded as part of the law of Victoria"relating to the enforcement of judgments of the Supreme
Court" of Victoria, and, therefore, as being comprehended by those words as used in r. 259(1) of the
Matrimonial Causes Rules.

The powers of the Court to make orders under s. 103 … are obviously to be exercised with very great
care. The registrar has power in his discretion to dispense with the production of a duplicate
certificate of title: see s. 104 (5). Where a discretion is committed by the Act to the registrar and the
registrar declines – as he has done in this case – to exercise his discretion in the manner sought, the
court should be slow to override the officer charged with the administration of the Torrens system of
title in this State. To make an order cancelling a duplicate certificate of title, while at the same time
leaving that duplicate in existence and capable of giving rise to unregistered dealings or transactions
in which a person may advance money on the face of a supposed subsisting duplicate certificate of
title, would be destructive of the objects of the Transfer of Land Act. I do not feel disposed, therefore,
to make any order under s. 103 unless and until every other means has been exhausted of securing the
production of the duplicate certificates of title now held by or at the direction of the respondent
unless, indeed, it is “necessary to give effect to” the decree pronounced by Monahan, J.

via

[26] [1969] VR 49 at 55-59 .

Re Purkiss [1999] VSC 386 (14 October 1999) (Warren J)

18. The courts have demonstrated a reluctance to make vesting orders where the procedure is used
"to facilitate or be a substitute for ordinary conveyancing practice": Dotter v Evans (1969) VR 41 . In
Casella v Casella (1969) VR 49 the court declined to make a vesting order where a husband refused
to obey an order to transfer a house to his wife. McInerney J said that the court should not make
an order "until every other means has been exhausted of securing the production of the duplicate
certificates of title now held by or at the direction of the respondent". Such approach was initially
adopted by Gillard J in Dotter v Evans, supra and followed later in Marshall v Williams at 594
where the learned judge observed:

"Having regard therefore to these well-established principles of equity, at all times

material after the balance of purchase money was paid by Mr. and Mrs. Marshall,
Mr. Williams no longer had any beneficial interest in the property and he held the
legal estate as trustee for Mr. and Mrs. Marshall.

Accordingly, Mr. and Mrs. Marshall were entitled to come to the Court and apply for
a vesting order under the provisions of s. 51 of the Trustee Act 1958 .

My brother McInerney in Casella v Casella [1969] VR 49 , and myself in Dotter v

Evans, [1969] VR 41 , have indicated the reluctance of a court to make a vesting order
in circumstances such as these until such time as all curial and conveyancing
processes have been exhausted to obtain the due registration of the applicants'
interest under the Transfer of Land Act ."

Re Purkiss [1999] VSC 386 (14 October 1999) (Warren J)

18. The courts have demonstrated a reluctance to make vesting orders where the procedure is used
"to facilitate or be a substitute for ordinary conveyancing practice": Dotter v Evans (1969) VR 41 . In
Casella v Casella (1969) VR 49 the court declined to make a vesting order where a husband refused
to obey an order to transfer a house to his wife. McInerney J said that the court should not make
an order "until every other means has been exhausted of securing the production of the duplicate
certificates of title now held by or at the direction of the respondent". Such approach was initially
adopted by Gillard J in Dotter v Evans, supra and followed later in Marshall v Williams at 594
where the learned judge observed:
 "Having regard therefore to these well-established principles of equity, at all times
material after the balance of purchase money was paid by Mr. and Mrs. Marshall,
Mr. Williams no longer had any beneficial interest in the property and he held the
legal estate as trustee for Mr. and Mrs. Marshall.

Accordingly, Mr. and Mrs. Marshall were entitled to come to the Court and apply for
a vesting order under the provisions of s. 51 of the Trustee Act 1958 .

My brother McInerney in Casella v Casella [1969] VR 49 , and myself in Dotter v

Evans, [1969] VR 41 , have indicated the reluctance of a court to make a vesting order
in circumstances such as these until such time as all curial and conveyancing
processes have been exhausted to obtain the due registration of the applicants'
interest under the Transfer of Land Act ."

Marshall v Williams [1974] VR 592 (15 March 1974) (Gillard, J)

Casella v Casella, [1969] VR 49 ; Dotter v Evans, [1969] VR 41 ; Ritzos v Ritzos, [1970] VR 150 , referred to.

Marshall v Williams [1974] VR 592 (15 March 1974) (Gillard, J)

My brother McInerney in Casella v Casella [1969] VR 49 , and myself in Dotter v Evans, [1969] VR 41 ,
have indicated the reluctance of a court to make a vesting order in circumstances such as these until such
time as all curial and conveyancing processes have been exhausted to obtain the due registration of the
applicants' interest under the Transfer of Land Act .

Rizos v Rizos [1970] VR 150 (13 October 1969) (Lush, J)

Casella v Casella, [1969] VR 49 ; [1969] ALR 103 , and Dotter v Evans, [1969] VR 41 , distinguished.

Rizos v Rizos [1970] VR 150 (13 October 1969) (Lush, J)

The second case was Casella v Casella, [1969] VR 49 . In that case an order had been made in the
matrimonial causes jurisdiction for the transfer by a husband to a wife of a house. The husband refused
to comply with this order. Again, in this case, it appeared that the husband was in a position to comply
with the order if he wished. At p. 59 of the report McInerney, J, said: "The powers of the Court to make
orders under s 103 of the Transfer of Land Act 1958 are obviously to be exercised with very great care. The
Registrar has power in his discretion to dispense with the production of a duplicate certificate of title: see
s104(5). Where a discretion is committed by the Act to the Registrar and the Registrar declines--as he has
done in this case--to exercise his discretion in the manner sought, the Court should be slow to override
the officer charged with the administration of the Torrens system of title in this State. To make an order
cancelling a duplicate certificate of title, while at the same time leaving that duplicate in existence and
capable of giving rise to unregistered dealings or transactions in which a person may advance money on
the face of a supposed subsisting duplicate certificate of title, would be destructive of the objects of the Tr
ansfer of Land Act . I do not feel disposed, therefore, to make any order under s 103 unless and until every
other means has been exhausted of securing the production of the duplicate certificates of title now held
by or at the direction of the respondent unless, indeed, it is 'necessary to give effect to' the decree
pronounced...".