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Capital Access Australia Pty Limited v Hraiki

Capital Access Australia Pty Limited v Hraiki

Case [2011] NSWSC 109 4 March 2011

Mortgages & Security Interests

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Supreme Court

New South Wales

Medium Neutral Citation: Capital Access Australia Pty Limited v Hraiki and Anor [2011] NSWSC 109
Hearing dates: 23 November 2010, 24 November 2010, 25 November 2010 and 26 November 2010
Decision date: 04 March 2011
Jurisdiction: Common Law
Before: Schmidt J
Decision:
Subject to any submissions as to costs, the parties should bring in short minutes, which appear to me should provide:
1. Judgment for the Plaintiff for possession of the land comprised in Folio Identifier 11/218470 situated at and known as 127 Mimosa Road, Greenacre in the sate of New South Wales, (hereinafter referred to as "the land").
2. I grant the Plaintiff leave to issue a writ of possession of the land forthwith.
3. Judgment for the Plaintiff against the Defendants in the sum of $311,102.50, plus interest, charges and expenses calculated in accordance with the loan agreement to today, the date of judgment.
4. Pursuant to s 101 Civil Procedure Act 2005 the defendants are to pay interest on that amount from the date of judgment to be calculated daily in accordance with the provisions for the payment of interest under the loan agreement, on so much money as is from time to time unpaid.
5. The Defendants are to pay the Plaintiff's costs of the proceedings.

Catchwords:
MORTGAGES - mortgages and charges generally - remedies of the mortgagor - orders sought for possession - whether defendants authorised a third party to obtain the loan - authority established - whether defendants signed the loan documents - allegation of fraud or forgery - whether signatures were forged - whether loan was obtained with defendants' knowledge - whether defendants were bound by documents which they did not sign - Contracts Review Act 1980 (NSW) - whether contract unjust

EVIDENCE - witnesses - credibility
CONTRACTS - general contractual principles - parties - authority - estoppel - ratification
Legislation Cited: Civil Procedure Act 2005
Contracts Review Act 1980 (NSW)
Evidence Act 1995
Real Property Act 1900
Cases Cited: Jones v Dunkel (1959) 101 CLR 298
Klement v Pencoal Limited [2000] QCA 152
Leybourne v Permanent Custodians Ltd [2010] NSWCA 78
Perpetual Trustee Company Limited v El-Bayeh [2010] NSWSC 1487
Perpetual Trustees Victoria Limited v English [2010] NSWCA 32
Rowe v BR Nominees Pty Ltd [1964] VR 477
Ruthol Pty Ltd v Mills [2003] NSWCA 56
Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52, (2004) 219 CLR 165
Category: Principal judgment
Parties: Plaintiff - Capital Access Australia Pty Ltd ACN 086 984 885
First Defendant - Ishac Hraiki
Second Defendant - Denise Chalita Hraiki
Third Defendant - Adam Ly
Representation: Counsel:
Plaintiff - Mr M Young
First and Second Defendants - Mr F Salama
Solicitors:
Plaintiff - Bransgroves
First and Second Defendants - Inner West Legal Solicitors

File Number(s): 2008/283806

Judgment

By amended statement of claim filed in March 2009 the plaintiff, Capital Access Australia Pty Limited ('Capital'), seeks judgment for possession of land situated at Greenacre; leave to issue a writ of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Capital Access Australia Pty Limited v Hraiki

Details

AGLC: Capital Access Australia Pty Limited v Hraiki [2011] NSWSC 109
Case: [2011] NSWSC 109
Decision Date: 04 March 2011

CaseChat Overview and Summary

In the matter of Capital Access Australia Pty Limited v Hraiki, the dispute centred around whether the defendants had authorised a third party to obtain a loan secured by a mortgage over their property, and whether the defendants were bound by documents which they did not sign. The case was heard in the Supreme Court of New South Wales. The plaintiff, Capital Access Australia, sought orders for possession of the defendants' property, claiming that the defendants had signed the loan documents and thus were bound by the mortgage. The defendants argued that their signatures were forged, and that any authorisation was obtained through fraud, and sought to have the contract reviewed under the Contracts Review Act 1980 (NSW).

The court was required to determine whether the defendants had authorised the third party to obtain the loan, whether the signatures on the loan documents were genuine, and whether the defendants were bound by the mortgage despite not signing the documents. Additionally, the court had to consider whether the contract was unjust and thus eligible for review under the Contracts Review Act 1980 (NSW). The court assessed the credibility of the witnesses and the evidence presented regarding the authorisation, signatures, and knowledge of the loan.

The court found that the defendants had indeed authorised the third party to obtain the loan, and that the signatures on the documents were genuine. The court held that the defendants were bound by the documents they did not sign due to the principle of estoppel and ratification. The court also found that the contract was not unjust, and thus not eligible for review under the Contracts Review Act 1980 (NSW). Consequently, the plaintiff was granted the orders for possession sought.

In summary, the court ruled in favour of the plaintiff, Capital Access Australia, and ordered possession of the defendants' property. The court found that the defendants had authorised the loan, that their signatures were genuine, and that they were bound by the mortgage despite not signing the documents. The court also determined that the contract was not unjust and thus not eligible for review under the Contracts Review Act 1980 (NSW).

Orders