Case: Dotter v Evans [1969] VR 41
Outcome: referred to
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 Transfer 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] VSC 386 ; [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 Transfer 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." 10 Gillard J gave further consideration to the exercise of the Court's discretion to make an order under s 103 of the Transfer of Land Act in Marshall v Williams [1974] VR 592. In that case he made an order under s 103 because the vendor could not be found and the duplicate certificate of title obtained from him. Having referred to his judgment in Dotter v Evans he continued (at 594); "The basis for my view was that there should be no opportunity for two duplicate certificates of title being in existence at the same time in respect of the same land. It seemed to me that such a situation was contrary to the intent and policy of the Transfer of Land Act . I think, however, that if one follows the order made by Lush J in Ritzos v Ritzos [1970] VR 150 to ensure the old certificate is cancelled and a new duplicate certificate issued, then some of the difficulties that I had foreseen in Dotter v Evans will be overcome."