Non est factum

Perpetual Trustee v El-Bayeh [2010] NSWSC 1487

Half of the loan was used to discharge a previous mortgage and the other half was paid into an account in the borrower’s name. The borrower claimed his brother had engaged in fraud and taken the over borrowings. The brother claimed the property was held on trust for him and denied the fraud. The lender …

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BankWest v Luo [2010] NSWSC 733

This was a claim by the lender for possession of the borrowers’ (a husband and wife) property that was secured by a mortgage, following their default in making repayments. The borrowers relied mainly on the defences of non est factum, undue influence, unconscionability (s 51AA of the Trade Practices Act 1974), and misleading and deceptive …

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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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Permanent Custodians v Tony Geagea [2010] NSWSC 117

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 …

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Ford by his Tutor v Perpetual Trustees Victoria [2009] NSWCA 186

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, …

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Satchithanantham v NAB [2009] NSWCA 268

This was a unanimous decision of the Court of Appeal delivered by Young JA. It involved a Sri Lankan woman who claimed, through the medium of her husband, relief on the grounds of the undue influence of her husband under the Yerkey v Jones principle and Contracts Review Act. In relation to the husband’s involvement …

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Steele-Smith v Liberty Financial [2005] NSWSC 398

The plaintiffs borrowed money from the second defendant, Liberty Funding (“LF”), secured over their land by mortgage. The plaintiffs claimed that the loan agreements and the mortgages were procured by fraud or unconscionable conduct or other wrongdoing and should be set aside.  The thrust of the Plaintiffs’ complaint was directed to alleged misconduct on the …

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Mango Media v Bassal [2004] NSWSC 1253

This was an application to extend a caveat until further order and a declaration that the plaintiff had an equitable interest in the form of a charge over the land.The plaintiff Mango Media was a financier. The defendants Bassal were people who wanted to borrow money. The defendants approached a mortgage broker, Rook & Associates, …

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