The guarantor claimed she had not signed the mortgage or guarantee. The lender retorted that if the mortgage was forged, the guarantor had nonetheless obtained the benefit of the money through the discharge of an earlier mortgage. The guarantor claimed that that earlier mortgage had also been forged. Ultimately the Court concluded both mortgages had …
This High Court case concerned the validity of a registered charge. Initially two loans were guaranteed by Octaviar, however, only one of the loans was secured by way of a fixed and floating charge. The secured loan was repaid, but the lender did not release the charge, claiming that it now secured the previously unsecured …
Public Trustee of Queensland v Fortress Credit Corporation (Aus) 11 [2010] HCA 29 Read More »
The second defendant (“Mr McMillan”) caused $127,000 to be borrowed for three months from Bidmonta at 15 percent per month interest, reducing to 10 percent per month if promptly paid. Mr McMillan used his mother’s home at Mt Druitt as security for the loan. He signed the mortgage and related documents. He was unable to …
The borrowers sought to set aside a mortgage taken over the family home in 1988. The lender sought to enforce the mortgage. The interest rate on the mortgage was 20% per annum. This was not unusual, at the time of the loan the interest-rate on Court judgments was 18% per annum. The mortgage contained a …
The Court of Appeal has provided welcome clarification of the principles to be applied where one co-owner of a property forges the signature of the other on a mortgage. There has been a degree of confusion in the recent caselaw, and injustice in the results, which Justice Sackville decision, with whom Allsopp P and Campbell …
Perpetual Trustees Victoria v English [2010] NSWCA 32 Read More »
In this case the borrowers were three brothers who mortgaged their jointly-owned property. Two of the brothers alleged that the third brother (who is bankrupt) forged their signature. One of them had a very convincing alibi. He pointed out that at the time the document was executed he was in custody in Lebanon in respect …
Permanent Custodians v Tony Geagea [2010] NSWSC 117 Read More »
In this case, a guarantor argued that his liability was limited to one part of the debt. The lender argued that it was an “all moneys” guarantee and that no such limitation could reasonably be read into the terms of the guarantee. The guarantor introduced extrinsic evidence, which the judge found to be unconvincing. Click …
Taurus Trade Finance v Mortensen [2009] NSWSC 1156 Read More »
In this case the Father was illiterate, intellectually disabled and hoodwinked into signing the mortgage by his son. Non est factum The father argued non est factum (literally ‘not my deed’) and succeeded before the trial judge. On appeal the lender argued that all highest defence that could be raised by the father was incapacity, …
Ford by his Tutor v Perpetual Trustees Victoria [2009] NSWCA 186 Read More »
The husband forged the wife’s signature. The Court had to decide whether or not the lender would succeed by virtue of the indefeasibility of title or fail completely. Justice Simpson undertook a very thorough examination of the law, which will be very useful in future cases. In summary, he noted that there were two tests. …
Perpetual Trustees Victoria v English [2009] NSWSC 478 Read More »
In this case there was a first and second mortgage, both were forged. The first mortgage was held by Perpetual Trustees Victoria. The second mortgage was held by Finance Express. The judge was asked to decide whether or not the mortgages secured the respective debts. This depended upon the wording of the two mortgages. Both …
Perpetual Trustees Victoria v Ann-Marie Menzies [2009] NSWSC 352 Read More »
