Bank of Western Australia v Coppola [2012] NSWSC 1495

The wife argued that she signed a mortgage because of her daughter’s dishonesty and the husband argued that his daughter signed as his attorney without authority. Consent judgment was obtained against the wife. The husband and wife after considerable delay sought to bring a cross-claim seeking declarations that the mortgages were procured by fraud and seeking compensation from the Torrens Assurance Fund.

The court held the consent judgment final and found the wife estopped from bringing her cross-claim against the bank and the Torrens Assurance Fund by operation of the principle of res judicata, which prevents issues determined or issues which should have been raised from being re-agitated (even though the Registrar General was not a party to the consent judgment). The court also found that it was an abuse of process against the Registrar General. So the court dismissed the wife’s cross-claim.

In relation to the husband and his power of attorney, the court found that the daughter acted within authority and the husband was held to be bound by the loans and mortgages. In addition, even had the daughter been outside her authority the mortgage would still have been enforceable. This is because the only exception to indefeasibility obtained upon registration of a mortgage is actual fraud brought home to the mortgagee and the court found the bank was not privy or aware of any alleged fraud. The court also dismissed the husband’s claim against the Registrar General because compensation from the fund is expressly not payable where loss arises from execution by an attorney acting without authority.

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