Cachia v St George Building Society Ltd

In *Cachia v St George Building Society Ltd* [1995] NSWCA 68, the New South Wales Court of Appeal considered a dispute between Mr Cachia and St George Building Society Ltd concerning the enforceability of a mortgage. Mr Cachia sought to set aside the mortgage, alleging it was void due to a lack of proper execution and, alternatively, that it was unenforceable due to unconscionable conduct by the building society.

The central legal issues before the Court of Appeal were whether the mortgage had been validly executed in accordance with the relevant legislative requirements, and if not, whether the building society could nonetheless rely on the mortgage. Furthermore, the court had to determine if the building society's conduct in obtaining the mortgage was unconscionable, thereby justifying its setting aside.

The Court of Appeal, applying principles of statutory interpretation and contract law, found that the mortgage had not been executed in compliance with the *Real Property Act 1900* (NSW). Specifically, the court determined that the mortgage document was not signed by the mortgagor in the presence of a witness, a requirement for valid execution under the Act. Consequently, the mortgage was void. The court also considered the doctrine of unconscionability, but given its finding that the mortgage was void for non-compliance with statutory formalities, it did not find it necessary to definitively rule on the unconscionability claim.

The Court of Appeal allowed Mr Cachia's appeal, setting aside the mortgage.