Express Business Finance Pty Limited v Monaco

Express Business Finance Pty Limited sought an order for the sale of land that was subject to a mortgage. The dispute arose because one of the co-owners of the property had signed documents related to the mortgage, but it was later found that this signature was a forgery. The matter was heard in the Supreme Court of Victoria.

The court was required to determine the validity of the mortgage in light of the forged signature and whether an equitable mortgage existed over the half interest in the property held by the co-owner whose signature was a forgery. The court also needed to decide on the appropriate orders for the sale of the property, the appointment of trustees, and the allocation of costs.

The court found that despite the forgery, an equitable mortgage was established over the half interest in the property held by the co-owner whose signature was forged. The court made an order for the appointment of trustees to sell the land and vest the title in the trustees for the purpose of sale. It also directed that the mortgagee's costs be paid from the proceeds of the sale, initially from the share of the first defendant, and that the second defendant's costs be paid from the proceeds. Finally, the court ordered that the first defendant bear the costs of the proceedings.

The court's orders effectively allowed for the sale of the property to proceed while ensuring that the mortgagee's costs were prioritised from the proceeds of sale, and that the costs of the proceedings were borne by the first defendant.