Beardsley v Registrar of Titles [1992] QSC 157 [1993] 2 Qd R 117

'tr L-· /' ' l\ / ~vi/, 1( TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRlSBANE. Q. 4000 Tel. (07) 227.4360 (Copyright in this trdllSCript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION RYAN J No 2012 of 1990 MARIE BEARDSLEY also known as MARY BEARDSLEY and THE REGISTRAR OF TITLES and THE REGISTRAR GENERAL BRISBANE .. DATE. 30/ 4/92 JUDGMENT 1 REViSED COPiES ISSUEol State Reporting Bureau Date ~I )/ )... Plaintiff First Defendant Second Defendant -- 1 of 31 -- 300492 JUDGMENT HIS HONOUR: I dismiss the action and order that judgment be entered for the Registrar of Titles with costs, including any reservEocosts to be taxed. I publish my reasons. 2 10 20 30 40 50 60 -- 2 of 31 -- Se c) / . 7CJ... 1'57 IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: No. 2012 of 1990 MARIE BEARDSLEY (Otherwise known as MARY BEARDSLEY) OF 8/52 The Esplanade, North Glenelg in the State of South Australia THE REGISTRAR OF TITLES Plaintiff First Defendant THE REGISTRAR-GENERAL Second Defendant JUDGMENT - RYAN J. Delivered the Thirtieth day of April, 1992 CATCHWORDS Real Property Husband and wife registered as joint proprietors in fee simple - Husband forges signature of wife and executes mortgages - Mortgages registered - Mortgagee gives notice of exercise of power of sale - Wife then discovers forgery by husband - Husband becomes bankrupt - Where wife has action against Registrar of Titles under s. 127 or s. 128 of Real Property Act - Time when deprived of interests - Whether claims statute barred - Whether person becoming registered must be responsible for the fraud. Counsel: Mr. L. Harrison Q.C. with H. Linacre for Plaintiff Mr. B. Clarke for Defendant Solicitors: Messrs. McDonald, Balanda & Chesters, Solicitors for Plaintiff The Crown Solicitor for Defendant Hearing Dates: 23, 24, 25 and 26 March, 1992. -- 3 of 31 -- IN THE SUPREME.COURT OF QUEENSLAND No. 2012 of 1990 BETWEEN: AND: MARIE BEARDSLEY (Otherwise known as MARY BEARDSLEY) OF 8/52 The Esplanade, North Glenelg in the State of South Australia THE REGISTRAR OF TITLES Plaintiff First Defendant THE REGISTRAR-GENERAL Second Defendant JUDGMENT- RYAN J. Delivered the Thirtieth day of April, 1992. In this action the plaintiff claims against the Registrar of Titles or alternatively against the Registrar-General as Nominal Defendant pursuant to s .127 of the Real Property Act 1861 for damages for the deprivation of an estate or interest in land in consequence of fraud by her husband who has been judged insolvent together with damages for loss of rental from the date of deprivation to the date of judgment and interest. She seeks also a declaration that the assurance fund is liable for the payment of such damages. Though the claim was made in the alternative against the Registrar of Titles and the Registrar-General it was agreed by the parties to proceed on the basis that the Registrar of Titles was the proper defendant. The writ was issued on 14 December 1990. -- 4 of 31 -- 2 The plaintiff gave evidence that she and her husband whom she had married in 1949 came to Australia in 1964. They settled in South Australia. They bought two maisonettes in Brighton in that State and built four units. They occupied one maisonette and the other maisonette which was subdivided and the units were rented. Later they bought property in Holdfast Towers in South Australia. These properties were held by them as joint tenants. She said that everything they had was in their joint names but that they always had separate bank accounts. According to the plaintiff her husba~d won a prize in the lotto and they bought a unit in a building called Golden Gate in Surfers ·Paradise. They sold this unit and bought another unit no. 2808 higher up in the same building. They did not occupy the first unit which· was rented as they were still in South Australia but they did move into the second unit. They sold the unit in Hold fast Towers when they moved to Golden Gate. . On 2 0 March 1 9 7 8 Mrs. Beardsley executed a power o~ attorney appointing her husband her attorney to sell her real property at Brighton. On 1 0 November 1978 the plaintiff and her husband were registered as holders of an estate in fee simple as joint tenants free from encumbrances in the unit no. 2808. According to the plaintiff the certificate of title was kept at their home in South Australia. She said that her husband kept all documents. She referred to him as always looking after the business side of their affairs and she said that he always made decisions about sales and purchases and borrowing. On 24 July 1980 an affidavit was made by the plaintiff and her husband to the effect that the certificate of title had been -- 5 of 31 -- 3 lost, mislaid or accidentally destroyed. It purports to be signed by both Mr. and Mrs. Beardsley. She said that she thought it was her signature but did not recall signing the affidavit or whether the certificate of title had become lost. The provisional certificate of title was issued in September 1980. Mrs. Beardsley said that she did not know this. On 6th October 1980 there was executed a Bill of Mortgage which purports to be signed by Mr. and Mrs. Beardsley to secure a loan of $10,000 to Mr. Beardsley by Brisbane Credit Union Limited. This was registered on 16 December 1980 (Bill .of Mortgage No. G222455). By Memorandum of Variation of Mortgage dated 13 July 1982 which purports to be executed by Mr. and Mrs. Beardsley the principal sum in that mortgage was increased by $7,500. It was further increased by $5,000 by Memorandum of Variation of Mortgage dated 3 November 1982 which purported to be executed by Mr. and Mrs. Beardsley. It was increased again by $20, 000 by Memorandum of Variation of Mortgage dated 1 0 February 1983 which purported to be executed by Mr. and Mrs. Beardsley. It was increased by $10,265.86 by Memorandum of Variation of Mortgage dated 22 March 1983 and this also purports to be signed by Mr. and Mrs. Beardsley. These memoranda of variations of mortgage were registered in the name of Sunstate Open Credit Union Limited as Brisbane Credit Union Limited had become by change of name. On 27 May 1983 a Bill of Mortgage which purported to be signed by Mr. and Mrs. Beardsley was executed securing a loan of $1 2, 0 00 to Mr. Beardsley by Gold Coast Credit Union Lirni ted. This was registered on 28 July 1983 (No. H 32137). -- 6 of 31 -- 4 On 7 February 1984 a Bill of Mortgage which purported to be signed by Mr. and Mrs. Beardsley was executed to secure a loan of $100,000 by National Westminster Finance Australia Limited. This was registered on 23 February 1984 (No. H 202302). Prior to its registration there were registered discharges of the mortgages to Brisbane Credit Union and Gold Coast Credit Union Limited. · On 21 May 1984 a Bill of Mortgage which purported to be signed by Mr. and Mrs. Beardsley was executed to secure a loan of $21,500 to Gold Coast Credit Union Limited. This was registered on 8 June 1984 (No. H 299731). Mrs. Beardsley gave evidence that she had nothing to do with National Westminster Finance Limited in 1984 and that she did not sign the Bill of Mortgage dated 7 February 1984. The witness to the signature is stated in that dqcument to be one E.A. Robinson J.P .. Mrs. Beardsley stated that she did not know her in 1984. She said also that she did not sign the Bill of Mortgage dated 21 May 1984 or the Bill of Mortgage to Brisbane Credit Union Limited or the Variations of Mortgage or the Bill of Mortgage in favour of Gold Coast Credit Union Limited dated 27 May 1983. Mrs. Robinson gave evidence that she knew Mr. Beardsley and that she had witnessed his signature. She did not know Mrs. Beardsley and could not remember ever seeing her. She agreed that her signature was on the Bills of Mortgage dated 7 February 1984 and 21 May 1984 but she said that she had no recollection of the circumstances of signing them. She said also that she had no recollection of being shown powers of attorney by Mr. Beardsley. -- 7 of 31 -- 5 Mr. Bardwell who is a retired detective inspector of police and who is an expert in document examinations said that he conducted a test which involved having Mrs. Beardsley write her signature on one sheet of foolscap and Mr. Beardsley write signatures on two sheets. He said that if he had not seen them written he would say they had all been written by the same person. They were he said "the best simulated forgeries I have ever seen and they were written very fluently,· no hesitation and obviously well." He was unable to tell whether a signature by Mrs. Beardsley on a document was real or forged. Mr. Beardsley said that he won about $330,000 in the lotto. He and his wife decided to buy a unit in Golden Gate and go there for the winter season, but they decided to settle down in Surfers Paradise when their daughter married. He said that he had sold the property at Brighton a month or two after the date of the power of attorney (20 March 1978). They bought the unit in Holdfast Towers in Adelaide and a unit in Golden Gate. They sold the unit in Holdfast House in 1979 when they decided to settle in Surfers Paradise. After he had been warned by me that he was not required to answer any question which may tend to incriminate him, he said that in relation to the Bill of Mortgage to Brisbane Credit Union Limited for $10,000 he signed it and imitated his wife's signature. She did not give him permission to do that and he did not tell her he was going to do it or that he had done it. He received the sum of $10,000 and banked it. He said that he was in trouble financially as a result of speculative investments in commodities and shares and race horses. He kept on borrowing more money to keep on paying his debts an he did not want his -- 8 of 31 -- 6 wife to know what was going on. In relation to the variations of mortgage and the mortgages he said that he signed in front of a Justice of the Peace and produced a power of attorney saying that there was no need for Mrs. Beardsley to sign it. He then took the documents away and imitated his wife's signature. The application to National Westminster Finance Limited for finance is signed by Mr. Beardsley. It gives us the reason for the loan, "consolidation and furnish unit in Adelaide". It contains settlement details which indicate payments to solicitors, to Sunshine Open Credit Union Limited, Gold Coast Credit Union and a sum of $31,465.14 to J.W. and M. Beardsley. Mr. Beardsley said that he paid this into the Commonwealth Bank Account in his name only. He said that "I signed the cheque on the back as if Mrs. Beardsley had paid to Mr. Beardsley and I imitated her signature on the back of the cheque". In relation to the reasons given for the loan he said that his wife had bought a unit in Adelaide in her name. He added however that he had misled the mortgagee when he said that the money was to be used for refurbishing the unit in Adelaide. Mr. Beardsley admitted that in his applications for finance he disclosed the name of his accountant in Adelaide and gave his son and daughter as credit referees. This accountant handled also the affairs of Mrs. Beardsley. Mr. Beardsley had executed a statutory declaration on 29 June 1981 in which he stated that he is the duly constituted attorney of Mary Beardsley of Apartment 2802, Golden Gate, Surfers Paradise under and by virtue of a power of attorney dated 20 March 1978 and that he had not received any notice of its -- 9 of 31 -- 7 revocation. This declaration was re-executed on 13 November 1984 and on 16 July 1985. The statutory declaration was made, he said, long after the unit covered by the power of attorney had been sold. Out of the sum of £100,000 advanced by National Westminster Finance Australia Limited pursuant to the Bill of Mortgage $46,436.43 was paid to Brisbane Credit Union Limited in order to obtain the discharge of the Registered Mortgage No. G 292455 as varied from time to time· and $19,649.18 was paid to Gold Coast Credit Union Limited in order to obtain the discharge of its Registered Bill of Mortgage No. H 32137. On 18 September 1987 National Westminster Finance Australia Limited issued a notice of exercise of power of sale pursuant to the bill of mortgage alleging default and demanding payment. On 23"March 1988 an authority was given to Ray White Real Estate to sell the unit by public auction .. This purports to be signed by both Mr. and Mrs. Beardsley. Mr. Beardsley said that he signed his own signature and imitated his wife's signature. The date of auction was stated as 30 April 1988. The land was sold by the mortgagee pursuant to the power of sale under the bill of mortgage to Mr. and Mrs. Rysenbry as joint tenants. The sale was completed on 26 July 1988 and the price paid was $174,000. Mr. and Mrs. Rysenbry became registered as proprietors of the land on 9 December 1988. I am satisfied that Mr. and Mrs. Rysenbry purchased the land from National Westminster Finance Australia Ltd. and became registered as proprietors of the land in good faith. -- 10 of 31 -- 8 The net settlement moneys of $165,246.75 were distributed as follows:- Solicitors' costs and outlays on sale First mortgagee's pay out Second mortgagee's pay out Total $1,319.00 $153,927.75 $10,000.00 $165,246.75 In April, 1988 the money outstanding pursuant to Bill of Mortgage No. H 299731 (in favour of Gold Coast Credit Union Limited) was $26,590.30 and no further payment in reduction of the principal interest and other moneys outstanding pursuant to this bill of mortgage were made after April 1988. Mr. Beardsley said that the notice of exercise of power of sale was sent to his Adelaide address. He and his wife were living there with their daughter. Eventually when he found that he could go no further he let his wife know what had happened and they both went to see a solicitor .in Adelaide. He said that he told his wife about the matter in September or October 1988. This date is obviously incorrect. Mr. Beardsley related it to the time when a tenant, Mr. Wraight, moved out of the unit in Golden Gate and this was on 19 February 1988. An order for possession of the land was made on 12 February 1988 by the Magistrates Court at Southport on the application of National Westminster Finance Australia Limited. After consulting a solicitor in Adelaide the plaintiff wrote a letter to a Queensland solicitor asking him to act for her in protecting her interest in the unit. The letter is undated but it refers to a telephone conversation of the solicitor with her husband on 18 March 1988. On 23 March 1988 a caveat was lodged -- 11 of 31 -- 9 on behalf of Mrs. Beardsley on the ground that "I have not executed, authorised nor have I consented to any mortgage of the said lot and any mortgage of the said lot has been given without my knowledge at any relevant time". On 12 April 1988 Mrs. Beardsley issued a writ of summons against National Westminster Finance Australia Limited and Sunstate Credit Union Limited (the former Gold Coast Credit Union Limited) seeking certain declarations and an order restraining the defendants from selling the land. On 29 April 1988 Dowsett J. made orders refusing the application for an interlocutory injunction and. ordering removal of the caveat. On 17 October 1988 Mr. Beardsley became a bankrupt, pursuant to the Bankruptcy Act 1960. It is alleged in the statement of claim that in respect of the loan agreement entered into in February 1984 by Mr. Beardsley with National Westminster Finance Australia Limited and the Bill of Mortgage No. H 202302 Mr. Beardsley did without the knowledge, permission or authority of the plaintiff include her as applicant and mortgagor and fraudulently signed her name to the relevant documentation ·including a mortgage. It is further alleged that on or about 21 May 1984 Mr. Beardsley himself executed and without the knowledge, permission or authority of the plaintiff forged the signature of the plaintiff to a bill of mortgage of the land securing the sum of $21,500 to Gold Coast Credit Union Limited. These allegations were strongly contested on behalf of the defendant. It was said that the evidence of Mr. Bardwell went only to establishing that Mr. Beardsley had the capacity to produce a facsimile signature of his wife but did not support an -- 12 of 31 -- 10 inference that any signatures were in fact forgeries. The essential question, it was argued, was whether the evidence of Mr. Beardsley that he forged his wife's signature and of Mrs. Beardsley that she did not sign the documents should be accepted. In relation to Mr. Beardsley it was clear from his testimony that he was prepared to act dishonestly and he incurred no monetary disadvantage in making his admissions of forgery. In reiation to Mrs. Beardsley it was suggested that her evidence should not be accepted. Several reasons were given to support that suggestion. It was pointed out for example ~hat Mr. Beardsley. referr.ed to her as an astute business woman and it was suggested that it was inconceivable that her husband would have dissipated nearly $500,000 between 1978 and 1988 without this coming to the plaintiff's notice. It was pointed out also that both Mr. and Mrs. Beardsley stated that property was always purchased in their joint names but that evidence was given by Mr. Beardsley that a unit in Adelaide was in the sole name of Mrs. Beardsley. It was suggested that the inference should be drawn that in signing the documents Mr. Beardsley was acting with the plaintiff's permission and authority having regard to evidence that he looked after all the business side of their affairs and to the evidence of Mrs. Beardsley that, "he always did everything. Whatever we bought or sold he always did so". I have concluded, though not without considerable hesitation, that I should accept as established the two allegations to which I have referred. Mrs. Beardsley may have been an astute business woman in handling her own affairs but I accept that she left all matters relating to the buying and -- 13 of 31 -- 1 1 selling of real estate to her husband. I accept that he got into financial difficulties as a result of speculative investments and sought to obtain further finance by mortgaging the unit at Surfers Paradise which was purchased in their joint names though as a result of a lottery win by him. There was no reason why Mrs. Beardsley should have been alerted to the existence of the loans until the mortgagee acted upon default if Mr. Beardsley failed to reveal their existence to her. The action of Mrs. Beardsley in referring the mortgagee to the accountant of both himself and his wife and to their children in respect of their credit worthiness when the loan application was mad·e does not in itself refute his claim that he had not informed his wife about his financial difficulties. I am satisfied that Mr. Beardsley was capable of forging his wife's signature and that he did fraudulently sign his wife's name to the Bills of Mortgage without her knowledge or permission; The plaintiff's claim is based upon s .127 . of the Real Property Act 1861, but this refers back to s.126. So far as is relevant, this provides:- "Any person deprived of any land or of any estate or interest in land in consequence of fraud or in consequence of the issue of a certificate of title to any other person or in consequence of any recording in the register or of any error or omission in any certificate of title or in any recording in the register may bring and prosecute an action at law in the Supreme Court for the recovery of damages against the person who derived benefit by such fraud or in consequence of the issue of such certificate of title or by such recording or in consequence of such error or omission. Provided always that no such action shall lie or be sustained unless the same shall be commenced within six years from the date of such deprivation ... " -- 14 of 31 -- 12 If the plaintiff had brought an action against her husband under s.126, it would be necessary for her to prove: (a) That she had been deprived of land or of an estate or interest in land, (b) That she was deprived in consequence of fraud or one of the other matters referred to in the section, (c) That her husband had derived benefit by such fraud or other matter referred to in the section. Section 127 provides so far as is relevant: "In case the person against whom such action for damages 'is directed to be brought shall be dead or shall have been judged insolvent or shall have absconded out of the jurisdiction of the Supreme Court, then in such case it shall be lawful to bring an action for damages against the Registrar-General as nominal defendant for the purposes of recovering the amount of the said. damages and costs against the insurance fund hereinbefore described and in any such case ... the Treasurer of the Colony upon receipt of a certificate of a Judge of the Supreme Court and of a warrant under the hand of the Governor as hereinafter provided shall pay the amount of such damages and costs or the unrecouped balance thereof as the case may be and shall charge the same to the account of the assurance fund. Provided always that the assurance fund shall not be- liable for payment of any damages after the expiry of six years from the time when the cause of action arose." In relation to s. 126 it is clear that the plaintiff was deprived of an interest in the land, though it is a matter for consideration when she was deprived. For the plaintiff it was submitted that she was deprived when the transferees were registered or alternatively when the order for possession was made. For the nominal defendant, it was said that there was a partial deprivation of the plaintiff's interest in the land upon the registration of each of the relevant mortgages, and there was -- 15 of 31 -- 13 a further deprivation of the balance of her interest (if any such interest in fact remained) upon the exercise of the power of sale. It was next submitted on behalf of the Registrar of Titles that s.126 required that the plaintiff must be deprived of an interest in land in consequence of the fraud of the person who became registered, thereby depriving the plaintiff of the interest in land. Reliance was placed for this submission on the judgment of Mason J. (with'whom Barwick C.J. and Jacob J. agreed) in Registrar of Titles (W.A.) v. Franzon (1975) 132 C.L.R. 611 .at p.618. For the plaintiff it was argued that the remarks by Mason J. were made in relation to a provision in the Western Australian Act which was basically different from that contained in the Queensland Act. · It was submitted for the Registrar of Titles that the persons who derived a benefit were those who became registered as mortgagees. For the plaintiff it was said that it was the husband who derived a benefit. Section 126 contains a limitation provision requiring institution of the action within six years from the date of deprivation. The submission for the Registrar of Titles was that an action taken pursuant to the first limb of s.127 would be subject to the limitation provision in the proviso to s.126 and to the first proviso of s.127. For the plaintiff it was argued that s.127 dealt with two matters. First, it provided a cause of action against the Registrar-General in cases where it would be pointless to sue the fraudulent person. No limitation period was stated for that cause of action. Secondly, it provided a -- 16 of 31 -- 14 means for recovering damages under both sections 126 and 127 from the Treasurer. In each case the assurance fund was liable to indemnify the Registrar-General only for the period of six years from the date on which the relevant cause of action arose. In this case, it was claimed, the cause of action arose at the earliest at Mr. Beardsley's bankruptcy, since the cause of action arose when proceedings could first be instituted. I shall consider first the question whether the first limb of s.127 creates a new cause of action as was submitted for the plaintiff, or whether, as was contended for the Registrar of Titles, the substitution of the new defendant was merely·a matter o~. procedure by which the action against the fraudulent party was continued. I was referred to the decision of. Connolly J. ~n Breskvar v. White [1978] Qd.R. 187. That case arose in relation to proceedings by Mr. and Mrs. Breskvar who had originally been registered proprietors of certain-land, for a declaration as to their rights pursuant to s.127. In that case the applicants had obtained an award of damages and costs by virtue of s.126, but the judgment had not been satisfied. They then sought to recover the amount of damages and costs against the assurance fund pursuant to s.127. The matter for determination was whether the period of six years mentioned in the proviso to s.127 had run when the Governor was asked for his warrant on 14 March 1977. The Breskvars were deprived of their land on 31 October 1968. It was held by Connolly J. that the assurance fund was not liable for the payment of the damages. His Honour said (at p.191): "I should say first that in my opin:j..on the first limb of s .127 creates a fresh statutory cause of action which is related to, but not the same as, that which is created by s. 126. The arising of the cause of -- 17 of 31 -- 15 action under the first limb of s.127 requires a concurrence of the existence of a cause of action under s.126 and either the death, insolvency or absconding of the person benefited." Later, at p.192, he said, in relation to the first limb of s.127: "The claimant must still not merely initiate his proceedings but carry them to the point at which he can perfect a judgment which entitles him to present payment from the fund and obtain the Governor's warrant within six years of the death, insolvency or absconding of the person benefited. The provision is stringent but in my view no other reading is open." I respectfully agree with the statement by Connolly J. that the first limb of s. 127 created a statutory cause of action against the Registrar-General as Nominal Defendant, and that its .. arising required a concurrence of the existence of a cause of action under s.126 and the death, insolvency or absconding of the person benefited. If, however, the cause of action under s.126 was barred, then no cause of action under s.127 could arise. In my opinion, the first limb of s.127 contains no limitation clause because the limitation clause in s.126 is to be imported into it. Section 126 permits a person deprived of an estate or interest ir. land in consequence of fraud to bring an action for the recovery of damages against the person who derived benefit by such fraud etc. and requires the action to be commenced within six years from the date of such deprivation. If it is not, no action shall lie or be sustained. Section 127 permits him to bring an action for damages against the Registrar-General for the purpose of recovering the amount of the damages against the assurance fund in certain defined circumstances, namely where the person who derives benefit from a fraud by which a registered proprietor is deprived of the interest in land, shall be dead or -- 18 of 31 -- 16 shall have been judged insolvent or shall have absconded out of the jurisdiction. The Registrar~General is instituted as defendant in those circumstances 1 and in my opinion he is entitled to invoke the limitation provision. If no action can be sustained under s.126 1 there can be no basis for a claim under s. 127. I do not regard the first proviso to s.127 as extending the time within which an action for damages for deprivation of an interest in land must 'be instituted. Its effect is rather to limit the time within_which payment of damages from t?e assurance fund may be made. It does this by reference to the time "when the cause of action arose". It is a possib~e interpretation of this expression that the "cause of action" is the cause of action of the person deprived by fraud etc. of an estate or interest in land. In Finucane v. The Registrar of Titles (1902) St.R.Qd. 75 at p. 95 1 it was said by Griffith C.J. that the cause of action in s.127 is the same thing which is described in s.126 as the deprivation. But the deprivation alone does not give rise to an action under s.127 1 and it seems to me that the reference in the proviso to s.127 is to the statutory cause of action created in the first limb of s. 127 1 with the consequence that the proviso limits the liability of the assurance fund to a period of six years from the time which the person who derived benefit from the fraud was judged insolvent. I regard it as more natural to interpret the expression in the latter part of s.127 by reference to the cause of action which is created in the earlier part of s.127 1 and this interpretation avoids the anomalous situation referred to by -- 19 of 31 -- 17 Connolly J. that the applicant can never avail himself of the full period of limitation allowed by the first proviso to s.126. It is however unnecessary for the resolution of the issues which arise in this case to decide whether the proviso to s.127 provided a bar to recovery by the plaintiff from the assurance fund. If the plaintiff was unable to bring an action under s.126 because she had been deprived of her estate or interest in the land prior to 14 December, 1984, she woul~ be unable, in my opinion, to bring an action against the Registrar-General under s.127. If, on the contrary, she was deprived only in 1988, she would not be prevented from bringing an action in 1990 by the p~~viso to s.126, nor would she be subject at this time to the limitation contained in the proviso to s.127. The submission for the plaintiff was that deprivation occurs when a person is deprived of his right of pr·esent enjoyment. In Finucane v. The Registrar of Titles the facts were that Mrs. Finucane was registered as proprietor in fee simple, subject to certain mortgages. The plaintiffs had an estate in remainder contingent on the death of Mrs. Finucane. They alleged that they had been deprived of their estate or interest. Griffith C.J. said at p. 94: "The question then arises: 'When is a person deprived of land or an estate or interest in land? This Court has held in Cox v. Bourne (1896) 7 Q.L.J. 53, 8 Q.L.J. 66 that a man is not deprived of land so long as the title remains in the hands of a person from whom he can recover it qua land by action of ejectment or other appropriate remedy. In the present case, therefore, so long as the title remains in Mrs. Finucane, the plaintiffs have not been deprived of the land or of any estate or interest in it. "But we think that s. 126 includes the case of a partial as well as a total deprivation, so that if, when the time comes for enjoyment of the land, the -- 20 of 31 -- 18 person who would, but for the Act, be entitled to possession finds it encumbered in favour of a personagainst whom he has no recourse, he is deprived of the land within the meaning of the section. This view was acted on by the court in Cox v. Bourne, and has been generally accepted by the profession. Possibly, also,this diminished right of enjoyment may be held to be deprivation of an "interest" in the land within the meaning of that term in s.126. But, apart from the question of partial deprivation byencumbrance, when is a person deprived? In the caseof an estate in possession he is obviously deprived of the land so soon as by the effect of the statute hisright to recover possession is extinguished. And thisis so whether he is entitled to 'the whole land or to an undivided share of it, whether the hereditament is corporeal or incorporeal and whether the estate is legal o_r equitable." It is clear from this judgment that if on the death of ·Mrs. Finucane the plaintiffs had no right to possession, they suffered no deprivation .and had no right to damages pursuant to the provisions of the Real Property Act.. See Finucane v. · Registrar of Titles (No. 2) (1946) St.R.Qd. 26 at p. 35. It follows, in my view, that since the plaintiff in the present case lost the right to possession when the mortgagee exercised the power of sale over the land (see Property Law Act s.86(2)), she was then deprived of her estate or interest in the land. But can it be said that she was so deprived, partially or totally, at an earlier point of time? There are many cases in which it has been held that the grant of a mortgage securing payment of monies deprives the mortgagor pro tanto of an interest in land at the date of registration. In Messer v. Gibbs (1887) 13 V.L.R. 854 at p. 872 it was said that before certain dealings:- "the plaintiff's estate in the land was that of tenant in fee simple, free from encumbrances, and her interest in it was absolute and co-extensive with her estate. After the dealings, she was only tenant in fee simple, subject to the mortgage, and her interest, if not her estate - that is supposing a mortgagee -- 21 of 31 -- 19 under the Act takes no estate in the land - was less by the amount of the mortgage than it was before and to that extent she had been deprived of an interest in the land." In Cox v. Bourne (1897) Q.L.J. 66, Griffith C.J. referred (at p. 67) to the plaintiff as having been deprived of his interest in the land to the extent of a mortgagee's encumbrance upon it; see also his remarks which I have already quoted in Finucane v. Registrar of Titles at p. 94. See also Franzon v. Registrar of Titles (1975) W.A.R. 107 at p. 110-111 and Parker v. Registrar-General (1977) 1 N.S.W.L.R. 22 at p. 28. It is, I .consider·, unnecessary to consider the position prior to the registration of the mortgage to National Westminster Finance Australia Ltd. on 23 February, 1984. It may be that as a result of the paying off of the earlier mortgages when that mor.tgage was granted, the plaintiff would not be able to prove,_... that she had suffered any loss as a consequence of the granting of the earlier mortgages. But I consider that if one looks at the situation upon the registration of the mortgage to National Westminster Finance Australia Ltd., it is clear that at that time she was deprived of an interest in the land as a result of the registration of the statutory charge upon the land. She was further deprived by the registration on 8 June, 1984 of the second mortgage to Gold Coast Credit Union Ltd .. This deprivation occurred more than six years before the issue of the writ. There was a further deprivation of the balance of the plaintiff's interest upon the exercise of the power of sale in 1988. This deprivation occurred less than six years before the issue of the writ. -- 22 of 31 -- 20 It was submitted for the plaintiff that the deprivations which occurred through registration of the mortgages were only contingent deprivations, and did not become a final deprivation until the mortgagee exercised its power of sale on 30 June, 1988. There was no deprivation in the sense of s. 126 until the defrauded person was deprived of the right of present enjoyment. It was said that in the case of a mortgage by joint tenants, even if the mortgagee takes without fraud, the defrauded proprietor may get the land back, as the money may never be called up against the innocent party, and the fraudulent eo-mortgagor may repay the monies, as it was claimed he intended to do i~ this case. I am unable to accept these submissions. I consider that the fact that a defrauded proprietor may ge~ the land back does not mean that prior to redemption she has not been deprived of an interest in the land. I was referred to a passage in Finucane v. The Registrar of Titles at p. 97, where Griffith C.J. said: "In the present case there is a further difficulty in the plaintiff's way; that is, it is quite uncertain whether when their right of present enjoyment arises they will suffer any deprivation at all. The mortgages may, by that time, have been paid off, and if they have not, it is quite uncertain what will be the extent of the deprivation. It is, we think, clear that the plaintiffs will be entitled, except as against persons who then have a paramount title, to the enjoyment of the land free from encumbrances, but non constat that they will not get it." Those remarks were made in the context of a case where it had been held that the plaintiffs were contingent remaindermen. In their case, it was held, they would not be deprived of land or of an estate or interest in land until their interest became vested in possession; and at that time the mortgages may have -- 23 of 31 -- 21 been paid off. But a decision that in the case of persons who were contingent r·emaindermen it was necessary to look at the position at the time when they became entitled to possession does not preclude me from concluding, consistently with what was said in Finucane v. The Registrar of Titles at p. 94, that there had been a partial deprivation by encumbrance more than six years before the writ was issued in the case of a person who was entitled to possession when the mortgages were granted. I conclude, therefore, that if the plaintiff was entitled to institute an action against her husband in December 1990, pursuant to s.126, it was only for the deprivation of her interest which remained after the partial deprivations which resulted from the registration of the mortgages. How is the value of that remaining deprivation to be assessed? The damages must be such as to put the plaintiff in the same position, so far as money can do it, as if the wrongful act complained of had not been done. In Registrar-General v. Behn [1980] 1 N.S.W.L.R. 589 at pp. 596-598 Mahoney J.A. said: "Prima facie, the plaintiff, upon the statutory cause ·of action, is entitled to recover at least that of which he has been 'deprived' or more correctly, the value of it. Where the deprivation consists of the registration of a mortgage, prima facie, this will be the amount owing under the mortgage: cf. Registrar of Titles (0) v. Crowle (1947) 75 C.L.R. 191 at p. 201. . . . In the present case, the amount charged on the land was far in excess of its value at deprivation or at judgment, and ·it was not argued that damages in this regard should exceed the value of the land at whatever be the relevant date. The Registrar-General submitted that damages arelimited to the land of which the plaintiff was deprived, valued at the date when she was deprived of it. I do not think that what was said in Spencer v. Registrar of Titles (1908) A.C. 235 at p. 240 or Crowle's case should be seen as limiting damages in -- 24 of 31 -- 22 all cases to the value of the land at the date when the plaintiff was deprived of it." In that case, it was held that the plaintiff should have damages calculated by reference to the value of the land at the date of the trial. It was submitted for the plaintiff in this case, in reliance upon the judgment to which I have referred, that where the interes~ in land had been lost entirely, as here, the measure was the value of the land as at the date of trial. Alternatively, it was said the land was to be 'valued at the date of deprivation, which was the date·when it finally became impossible for the mortgage to ·be redeemed. I am unable to accept these submissions. They are based on a contention which I ha~e rejected, namely that the relevant depriv~tion occurred only when the mortgagee exercised its power of sale. The loss which the plaintiff suffered thereby was the loss of her interest in the land but its value was the value of her interest which was subject to mortgages given in 1984. It should be assessed by determining the value of the lanj at the time of the exercise of the power of sale by the mortgagee, namely 30 June, 1988, and subtracting therefrom the amount owing under the mortgages. There is no evidence as to the value of the land when the power of sale was exercised, or of the amount owing under the mortgages. These are matters which could be determined by a direction that they be ascertained. It is however unnecessary to give such direction since in my opinion the plaintiff's claim under s.127 fails on a ground to which I now turn. -- 25 of 31 -- 23 In Registrar of Titles v. Franzon (1979) 132 C.L.R. 611, an analysis was made by Mason J. at pp. 618-619 of s.201 of the Transfer of Land Act (W.A.). This provides that any person deprived of land or of any estate or interest in land in consequence of fraud ... may bring and prosecute an action at law for the recovery of damages against the person ... who acquired title to the estate or interest through such fraud " Mason J. said: "There are several reasons why the reference to 'fraud' should be read as a reference to fraud for which the person becoming registered is responsible. This is the meaning that the word 'fraud' bears in the sections dealing with indefeasibility under the Torrens system. See Assets Co. Ltd. v. Mere Roihi (1905) A.C. 176 at p. 210, where it was expressed as fraud 'brought home to the person whose registered title is impeached or to his agents'. Although s.201 is not a provision which relates directly to indefeasibility of title, it is complimentary to those prov~s~on which ·regulate indefeasibility of title and it provides compensation for loss of an indefeasible title. · It is a sound rule of construction to.give the same meaning to the same words appearing in different parts of a statute unless there is reason to do otherwise. Here no such reason appears . Indeed, there are indications to be found in s.201 that 'fraud' is used in the limited sense already explained. First, the section identifies the person against whom action may be brought as the person who acquired title to the estate or interest through such fraud. These words strongly suggest that the section is directed to fraud perpetrated by or on behalf of the person who secures registration ... " It was pointed out on behalf of the plaintiff that s.126 of the Queensland Act contains no parallel to the Western Australian requirement that the action lies against the person who acquired title to the estate or interest through fraud. In its terms·, it permits recovery of damages against the person who de:z:-i ved benefit by the fraud which deprived a person of any land or of -- 26 of 31 -- 24 any estate or interest in land. It is however necessary to interpret s. 126 in its context w~ thin the Reai Property Act. That context was explained by Griffith C.J. in Finucane v. The Register of Titles at 93 as follows: "A person entitled to the possession of land notsubject to the provisions of the Real Property Actcould recover possession by action of ejectment,unless he was barred by some statute or by his own acts or conduct. But the continuance of such a right to its full extent would have been quite inconsistent with the scheme of the Real Property Act, which was to make the register book conclusive evidence of title except in the cases mentioned in s.44. It is accordingly provided by s.123 that, except in certain enumerated instances, no action of ejectment shall bebrought ag~inst a registered proprietor ... It would, however, have been unfair to take away the right to recover the possession of land of which a man had wrongfully been deprived without making some compensatory provisions. Such provision js made by ss.126 and 127, which deal with the cases of persons who are deprived of land or of an estate or interest in land in consequence of fraud or of the operations in the registry. As land is not a perishable thing it is difficult to conceive of a case in which one man can be deprived of land which, ex hypothesi, was rightfully his, without some other person deriving benefit from the deprivation. The Act, adopting this view, provides that the new right of action shall be primarily against the person who derived benefit from the fraud or error, and goes on to provide that, failing recovery from him, recourse may be had to the Assurance Fund. The fund is therefore in the position of a quasi-surety, guaranteeing against losses which but for the Act could not occur." It is clear from this that ss.126 and 127 are designed to provide compensation to a person who is wrongfully deprived of land and who is unable to recover it by reason of the operation of the Real Property Act. They are not designed to provide a remedy to a person who is able to bring an action under the general law. The effect of s.123 of the Real Property Act is that an action of ejectment does not lie where a person is deprived of land or an estate or interest in land by reason of .. -- 27 of 31 -- 25 its transfer to a purchaser or mortgagee bona fide for value. That was the position in this case. In those circumstances, s.126 operates to compensate the person deprived by enabling him to recover damages against the person who derived benefit by the fraud. Reading that provision with s.123 leads me to conclude that it is designed to enable the person deprived to recover against the person registered as proprietor through fraud, and that "fr.aud" in this context bears the meaning given to it in Assets Co. Ltd. v. Mere Roihi (1905) A.C. 176, namely that the registration as proprietor was obtained by the proprietor:s own fraud. A person derives benefit by fraud in the sense of s.126 only if he gets the estate or interest of whdch another person is deprived.as a conseque~ce of his fraud. That was not the position here. Mr. Beardsley was fraudulent but he did not obtain as a consequence of his fraud the estate or interest of which Mrs. Beardsley was deprived. Accordingly .I consider that she had no claim under ss.126 or 127 of the Real Property Act. The effect of Mr. Beardsley's fraud was that the mortgagees became registered, and it was they who acquired a benefit, but they did not do so through fraud for which they were responsible. I do not need to consider whether the plaintiff could obtain any remedy under s. 1 26 against the mortgagees, since she has not sought to do so. I would add only that the mortgagees seem to me to be in exactly the same position as the mortgagees in Frazer v. Walker [1967] A.C. 569. The plaintiff relied also upon s.128 of the Real Property Act. This provides so far as is relevant - -- 28 of 31 -- 26 "Every action which shall be brought by any person to recover damages for or by reason of any loss or damage occasioned by any omission mistake or misfeasance of the Registrar-General or any of his officers or clerks in the execution of their duties under the provisions of this Act shall be brought against the Registrar-General as nominal defendant and in case in any such action the plaintiff recover final judgment against the nominal defendant then upon theapplication or motion of such plaintiff any Judge of the Supreme Court shall and he is hereby directed tocertify to the Treasurer the fact of such judgment having been recovered and the amount of damages and costs recovered." It is alleged in the statement of claim that in registering the bill of mortgage to National Westminster Finance Australia Ltd., and to the Gold Coast Credit Union Ltd., the Registrar of Titles mistook the forged_signature for that of the plaintiff, and mistakenly registered the bill of mortg~ge notwithstanding that the signature had not been witnessed by a Justice of the Peace. The sale of the land was occasioned by those mistakes in respect of the bill of mortgage to the National Westminster Finance Australia Ltd. and the plaintiff thereby suffered loss and damage, namely the loss of her estate in fee simple as joint tenant in the land. Moreover, in consequen~e of those mistakes, Gold Coast Credit Union Ltd. , became entitled to that part of the proceeds of the sale to which National Westminster Finance Australia Ltd. was not entitled, to which the plaintiff would otherwise have been entitled. In the course of argument in Finucane v. Registrar of Titles. (1902) St.R.Qd. at p. 84, Griffith C.J. observed that s.128 "does not give a right of action, it assumes one; either the same as in ss.126, 127 or a different one. Prima facie there is a right of claim against any public officer who fails in the performance ·<:.::.: .. . .- ... . . . .... ~' -- 29 of 31 -- 27 of his duty". Later, in the course of his judgment, he said (at p. 97): "With respect to the alternative right of action set up under s.128, we think that, so far as the right of action is for deprivation of land or an estate orinterest in land, the specific remedy given by the Act must be followed." There does not appear to be any other decision which deals with the scope of s.128. Decisions on statutes which contain provisions analogous to s.128 seem to me to turn on features which ·are not to be found in the Queensland provision. In particular, there is not to be found in the Queensland provision a clause enabling a person who sustained loss or damage by the registration of any other person as proprietor of land to recover against the Registrar-General as nominal defendant. The decision on s.205 in Registrar of Titles v. Franzon (1975) 132 C.L.R. 611 turned on the presence of that clause in the Western Australian Act. Section 128, unlike s.126, does not require that the person who brings the action to recover damages should have been deprived of any land or of any estate or interest in land. Nor does it limit the right of the person to bring the action to recover damages from the assurance fund to the case where the defendant is dead or insolvent or shall have absconded. From this it may be inferred, consistently with what was said in · Finucane v. Registrar of Titles at p. 97, that s.128 is concerned ~ith losses not amounting to deprivation of land or of an estate or interest in land, and that only the procedure in ss.126 and 127 is applicable where there has been such a deprivation. -- 30 of 31 -- 28 In this case there is no doubt that the plaintiff was deprived of her interest in the land, and it is for that deprivation that she seeks damages. She must, in my opinion, justify her claim to them under s.126 or s.127; she cannot do so by invoking s.128. The plaintiff asserts that there was a mistake of the Registrar-General or his officers or clerks in the execution of their duties in accepting as valid a forged signature and a signature not witnessed by a justice of the peace. It has been held that an official is under no duty towards persons who are registered as proprietors of an interest in land to take care to prevent forged instruments from being registered. See Davies v. Ryan [1951] V.L.R. 283 at p. 287. If there was no duty, there could be no mistake in the execution of the duty. I dismiss the action, and order that judgment be entered for the Registrar of Titles, with costs to be taxed. -- 31 of 31 --