Permanent Custodians v Yazgi [2007] NSWSC 279

In this case there was a mortgage and loan agreement provided by Permanent Custodian, signed by Mr and Mrs Yazgi as borrowers. The mortgage was registered. The Yazgis defaulted on payments.

Mrs Yazgi claimed her husband had forged her signature on the mortgage and loan agreement and the court agreed. Nevertheless Associate Justice Harrison gave judgement for the lender upon the grounds that upon registration the mortgage obtained indefeasibility. The Court also held also found that the Contracts Review Act could not be relied upon by Mrs Yazgi as she was not a party to any contract on her own evidence.

The Court of Appeal has since overturned this judgment holding that on proper interpretation the mortgage did not charge the wife’s interest in the property because it relied on a “all monies” clause. (Yazgi v Permanent Custodians Ltd [2007] NSWCA 240).

Bransgroves Lawyers continually warns lenders not to use all monies mortgages. Despite the raft of recent cases:

  1. Small v Tomasetti [2001] NSWSC 1112
  2. Perpetual Trustees Victoria Ltd v Tsai [2004] NSWSC 745
  3. Permanent Custodians v Yazgi [2007] NSWSC 279
  4. Printy v Provident Capital Limited [2007] NSWSC 287
  5. Chandra v Perpetual Trustees Victoria Ltd [2007] NSWSC 694
  6. Perpetual Limited v Costa [2007] NSWSC 1093
  7. Queensland Premier Mines Pty Ltd v French [2007] HCA 53
  8. Perpetual Trustees Victoria Limited v Ford [2008] NSWSC 29
  9. Perpetual Trustees Victoria Ltd v Van den Heuvel [2008] NSWSC 350
  10. Vella v Permanent Mortgages P/L [2008] NSWSC 505
  11. Provident Capital Ltd v Printy [2008] NSWCA 131
  12. Perpetual Trustees Australia v Richards [2008] NSWSC 658

lenders continue to ignore the peril of using all monies mortgages. Matthew Bransgroves has been warning lenders since 17 November 2003 (in a College of Law paper on Indefeasibility of Mortgages) not to use all monies mortgages.

Click here to read the full judgment

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