Hillsan v Vaccaro [2009] NSWSC 435

In this case the borrowers claim that the solicitor to whom they entrusted their certificate of title fraudulently or negligently allowed another fraudster to forge their signatures and enter the mortgage. The mortgage was not an all monies mortgage and so indefeasibility applies unless the lender can be shown to have been aware of the fraud before it submitted the mortgage for registration. The borrowers’ defence did not properly plead this allegation and so the lender sought summary judgement.

Bransgroves always tell lenders that unless a borrower is self-represented never bring an application for summary judgment. The futility of doing so is clearly attested to by the results achieved by everyone who does (in this regard visit see our website / mortgage case law / summary judgment). Preparing for a summary judgment application is almost as time consuming and costly as preparing for a full blown trial. The difference is that with a full blown trial you at least get closure. With a summary judgment application, if you lose, you end up back where you started having wasted 6-12 months.

Lenders always lose applications for summary judgment when the borrower is represented because a clever lawyer can always think of an arguable defence to amend even the most futile pleadings. Alternatively, if a arguable defence is described to the judge, then the judge will grant leave for the borrower to amend their defence – which is what happened in this case.

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