Printy v Provident Capital [2007] NSWSC 287

In this case the owner of the security travelled overseas while allowing friends to reside at the property during which time an unidentified fraudster obtained a new CT and entered into a series of mortgage dealings which then fell into default. The lender obtained default judgement for possession and sold the property. The former owner commenced these proceedings to recover the proceeds of the sale.

The first mortgage involved was an ‘all monies’ mortgage where the mortgage itself does not refer to the sum secured but instead refers to an unregistered collateral agreement. In these circumstances even though the mortgage is protected by indefeasibility it secures nothing because the collateral agreement is found to be void. The court so held. Upon the same analysis the second mortgage (which did not use an ‘all monies’ clause) was found to be indefeasible and the money could not be recovered from the lender.

The lender unsuccessfully appealed in Provident Capital Ltd v Printy [2008] NSWCA 131.

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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