Indefeasibility

Bycoon v Wollongong Truck and Machinery Centre [2011] NSWSC 1323

The liquidator of a company sought possession of the sole asset of the company being premises from which a trucking business was run.  The tenant resisted possession claiming that he had entered into a 12 year lease of land from the company. However because the lease was not registered as required, no legal lease was …

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Perpetual v Dilati [2011] NSWSC 891

A mortgagor owner of a house entered into an agreement with a purchaser to buy a house in two instalments over three years, with the purchaser permitted to occupy immediately. The mortgagee obtained default judgment for possession of the land and the occupier sought to have that set aside and be joined as second defendant. …

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Bidmonta v Georgiou [2011] NSWSC 227

A son raised a loan secured over his mother’s land and made no repayments. A director of the lender swore in an affidavit that he had a conversation with the son in which the son said he had forged his mother’s signature. The lender claimed possession and lodged a caveat claiming under the unregistered mortgage …

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Capital Access Australia v Hraiki [2011] NSWSC 109

The funds were advanced to the nephew and used for his business. The borrowers claimed their signatures were forged by the nephew. However the nephew and the lender alleged that the borrowers had consented to the loan to the nephew. The mortgage was an all monies mortgage. Therefore, if the borrowers were not bound by …

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MDN Mortgages v Caradonna [2010] NSWSC 1298

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 …

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Capital Finance Aust v Pella Properties [2010] NSWSC 1262

This was a construction loan. The developer was placed into liquidation when the property market turned. There was a default under the mortgage. The claim for possession as against the developer was undefended however an investor sought to be joined to the proceedings claiming a prior interest in one of the units. All other units have …

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Smit v Carney [2010] NSWSC 910

Mrs Smit was born in 1935. Her son began living with her after his marriage failed. In February 2009, her son claimed he wished to finance a rock concert but she refused to mortgage her property for the purpose of raising those funds. The son resolved to forge a mortgage. The mortgage he entered had …

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Van den Heuvel v Perpetual Trustees Victoria; Registrar General of NSW v Van den Heuvel [2010] NSWCA 171

In proceedings for possession of land brought by the lender, the wife whose husband had forged her signature on a mortgage over the family home argued that the mortgage was an “unjust credit contract” under the Consumer Credit Code (“the Code”) and ought to be set aside. The Judge at the first instance hearing found …

Van den Heuvel v Perpetual Trustees Victoria; Registrar General of NSW v Van den Heuvel [2010] NSWCA 171 Read More »

Perpetual Trustees Victoria v English [2010] NSWCA 32

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 …

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