On 11 October 2021, the Real Property Amendment (Certificates of Title) Act 2021 commenced, which abolished the Certificates of Title (CTs) and the control of the right to deal (CoRD) framework. All existing CTs have been cancelled and CTs will no longer be issued. Existing CTs will not need to be produced, and CoRD holder consent will not be required, for a dealing or plan to be registered. All existing Guidelines subject to this change are currently being reviewed and will be updated to reflect these changes. For further information regarding the abolition of CTs, please see https://www.registrargeneral.nsw.gov.au/property-and-conveyancing/eConveyancing/abolition-of-certificates-of-title

Charge pursuant to s189AB Bankruptcy Act 1966

Pursuant to section 189AB of the Bankruptcy Act 1966 (Cth) (the ‘Act’), when a debtor's property becomes subject to the authority of a controlling trustee, the property is charged with certain secured and unsecured debts of the debtor. In these circumstances, a charge in favour of a controlling trustee may be registered by lodgment of a Request form 11R signed by the controlling trustee. The Request does not require marking by Revenue NSW.
 
Such a charge takes priority over any other charge or encumbrance except those:

  • that affected the debtor's property immediately before the debtor signed an authority under section 188 of the Act; and
  • that were acquired in good faith and for market value by a person who did not have notice of the charge created

(see section 189AB(3) – (4) of the Act).
 
NOTE: This dealing type must be lodged as Dealing with Exception and be accompanied by a completed Lodgment Rules Exception form.

A charge under section 189AB of the Act may be cancelled by lodgment of a Request form 11R. The Request must be executed by:

  • the controlling trustee, the Official Trustee or a trustee in bankruptcy indicating that the control of the debtor’s property has ceased because of the occurrence of one of the events in section 189(1A) of the Act. Evidence of the cessation of control of the controlling trustee must accompany the Request, or
  • the registered proprietor accompanied by a sealed copy of a Court Order, pursuant to section 208, releasing the property from control.

Additionally, a charge under section 189AB of the Act will be automatically cancelled upon registration of a:

  • transfer in exercise of a power of sale by the controlling trustee or a prior mortgagee or
  • transfer in exercise of a power of sale whether by the chargee under the charge or by a prior chargee.

If the parties to the transfer are uncertain as to whether the charge will be removed in the above situations they should lodge a Request form 11R with the transfer.

The Request for cancellation does not require marking by Revenue NSW.

See also section 189 of the Act.

NSW legislation can be accessed at www.legislation.nsw.gov.au/

Commonwealth legislation can be accessed at www.legislation.gov.au/

Staff processing information

Refer all cases to Legal through the Senior Examining Officer.

Registration Procedure

On direction from Legal that charge can be registered.

PRIME CODE    CH

DETAILS          [Act pursuant to which the charge was created]

 

Publication Date: March 2024