Indefeasibility

Maxton & Maxton v Port Village Accommodation [2014] WASC 93

A caveator sought an extension of its caveat which was opposed by the registered mortgagee. The caveator argued the fraud exception to indefeasibility. The caveator sought to infer dishonesty from the fact that the borrower knew of the existence of the charge, yet proceeded to grant the mortgage to secure a debt in excess of …

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Ocvirk v Permanent Custodians [2013] NSWSC 1021

The parents allege the son and his wife forged their signatures on the mortgage. All monies mortgage The parents claim that the loan agreement is void and, because the mortgage secured amounts due under the loan agreement, the mortgage itself therefore secures nothing and it is liable to be set aside. This is the indefeasibility …

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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 …

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CBA v Hamilton [2012] NSWSC 768

Please note we have written another case note on an earlier decision in this matter. Click here to view the earlier decision. The bank successfully sued a solicitor on a forged mortgage and loan for being complicit in the fraud. These proceedings concerned the solicitor’s liability for the bank’s costs in their unsuccessful action against …

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Bank of Western Australia v Tannous [2012] NSWSC 559

A son allegedly forged his mother’s signature on mortgage given to Firstfolio. The Firstfolio mortgage was subsequently refinanced by a mortgage given to Bankwest. This time the mother’s signature was allegedly forged by the father. Bankwest claimed possession. The mother defended on the grounds of fraud and unjustness under the Contracts Review Act. Her circumstances …

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Xiao v Perpetual Trustees [2012] VSCA 85

A woman alleged that her signature had been forged on a mortgage and guarantee. She claimed that she was not aware of the loan and that she had been made a director and shareholder of the company without her knowledge. The woman had delayed proceedings for a myriad of reasons ranging from medical grounds, terminating …

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Mitchell Morgan Nominees v Vella [2011] NSWCA 390

This Court of Appeal decision involved a forged mortgage. The lender’s solicitor chose to use an all monies mortgage which meant the mortgage was unenforceable. Had the solicitor used security documents which contained their vital covenants within the registered mortgage, then the mortgage would have been indefeasible and the mortgage would have been enforceable. The …

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RHG Mortgage Corporation v Astolfi [2011] NSWSC 1526

The borrower defaulted on its mortgage and the lender sought possession. The lender’s claim to possession was not disputed. The court held that the borrower’s defence that her loan had been securitised did not preclude the lender as registered mortgagee from being able to obtain possession based on the indefeasibility provisions of the Real Property …

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