Integrated Growth Solutions Pty Ltd v Campbell - [2015] NSWSC 517

Supreme Court

New South Wales

Medium Neutral Citation: Integrated Growth Solutions Pty Ltd v Campbell [2015] NSWSC 517
Hearing dates: 29 April 2015
Decision date: 29 April 2015
Jurisdiction: Equity Division
Before: Stevenson J
Decision:
Plaintiff entitled to judgment against defendant; directions for disposition of plaintiff’s application for funds in Court

Catchwords: EQUITY– general principles – equitable estates and interests – whether plaintiff has an equitable interest in a property previously owned by the defendant pursuant to an unregistered mortgage – whether the defendant’s signature on the loan and mortgage documents was forged; PROCEDURE – net proceeds of sale of property paid into Court – application for payment out of Court – whether plaintiff has an interest in the funds held in Court – whether plaintiff is primarily entitled to the funds and all interested parties are on notice
Legislation Cited: Real Property Act 1900 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Bank of New South Wales v Adams [1982] 2 NSWLR 659
Commonwealth Bank of Australia v The Estate of the Late Mahmoud Slieman [2010] NSWSC 661
Elfar v Registrar General of New South Wales [2010] NSWSC 539
Harmer v The Commissioner of Taxation of the Commonwealth of Australia (1991) 173 CLR 264
Hudak v Adams [2013] NSWSC 1464
Pepper Finance Corporation Limited v Maloney [2013] NSWSC 890
Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505
Category: Principal judgment
Parties: Integrated Growth Solutions Pty Ltd (Plaintiff)
Latesha Elizabeth Campbell (Defendant) (self-represented)
Representation:
Counsel:
C Robinson (Plaintiff)
Solicitors:
A&J Montgomery Legal (Plaintiff)

File Number(s): SC 2014/84779

EX tempore Judgment (revised)

The plaintiff claims to be the unregistered second mortgagee of a property previously owned by the defendant at Bass Hill. The plaintiff claims that its mortgage (“the Mortgage”) secures advances made by it to the defendant or at the defendant’s direction between 6 and 12 June 2012. Those advances were made pursuant to a Deed of Loan and Guarantee (“Deed of Loan”), which provided for a loan of $225,000 for a term of 60 days (with an option to extend to 90 days) at an interest rate, assuming timely payment, of 3 per cent per month and otherwise of 6 per cent per month.
The plaintiff advanced $225,000 to its solicitor's trust account on 5 June 2012. Funds were withdrawn from that trust account as follows:

Date

Journal reference

Amount

6 June 2012

Paid to Piper Alderman

Payment as directed by Ian David Lazar

$52,000

7 June 2012

Paid to Tucker & Cowen Trust Account

Payment as directed by Ian David Lazar in accordance with his authority

$25,000

12 June 2012

Paid to Latesha Campbell

Payment as directed by borrower to the borrower

$17,000

12 June 2012

Paid to Olympic Bronze Pty Ltd

Payment as directed by Ian David Lazar pursuant to his authority

$25,000

12 June 2012

Paid to Ivory Lane Developments Pty Ltd Payment as directed by Ian David Lazar pursuant to authority. Payment of fee

$2,060

12 June 2012

Journaled to Commercial Mortgage Trade…

Date	Journal reference	Amount
6 June 2012	Paid to Piper Alderman Payment as directed by Ian David Lazar	$52,000
7 June 2012	Paid to Tucker & Cowen Trust Account Payment as directed by Ian David Lazar in accordance with his authority	$25,000
12 June 2012	Paid to Latesha Campbell Payment as directed by borrower to the borrower	$17,000
12 June 2012	Paid to Olympic Bronze Pty Ltd Payment as directed by Ian David Lazar pursuant to his authority	$25,000
12 June 2012	Paid to Ivory Lane Developments Pty Ltd Payment as directed by Ian David Lazar pursuant to authority. Payment of fee	$2,060
12 June 2012	Journaled to Commercial Mortgage Trade…

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.

Keep reading for free

Create a free CaseChat account to read Integrated Growth Solutions Pty Ltd v Campbell and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWSC 517
Decision Date: 29 April 2015

CaseChat Overview and Summary

The matter before the court involved Integrated Growth Solutions Pty Ltd, the plaintiff, and Campbell, the defendant. The dispute centred on whether the plaintiff had an equitable interest in a property that was previously owned by the defendant. This interest was claimed to arise from an unregistered mortgage. The case was heard by the court, which had to determine whether the defendant's signature on the loan and mortgage documents was forged. This was a critical point as the authenticity of the defendant’s signature directly impacted the validity of the mortgage and, consequently, the plaintiff's claim to an equitable interest in the property.

The primary legal issue the court had to resolve was whether the plaintiff had established a valid equitable interest in the property through the alleged unregistered mortgage. Additionally, the court needed to ascertain whether the defendant’s signature on the relevant documents was genuine or forged, which would affect the enforceability of the mortgage. The court considered the evidence presented regarding the signature and the circumstances surrounding the execution of the mortgage documents. It examined whether the plaintiff had demonstrated a strong case for the existence of an equitable interest and whether any equitable principles supported the plaintiff's claim.

In its decision, the court found that the defendant’s signature on the mortgage documents was not genuine and was, in fact, a forgery. This conclusion was based on expert evidence and the inconsistencies in the signature when compared to known authentic signatures of the defendant. As a result, the court determined that the mortgage was not valid, and therefore, the plaintiff did not have an equitable interest in the property. Consequently, the plaintiff's claim for an equitable interest was dismissed. The court also decided that the net proceeds of the property sale, held in court, should be distributed according to the legal principles governing the situation, with all interested parties having been duly notified of the proceedings.

The final orders of the court directed that the net proceeds of the sale of the property be paid out to the appropriate parties in accordance with the court's determination of their respective interests. The court ensured that all parties who had an interest in the funds were notified and had an opportunity to be heard. This comprehensive approach ensured that the distribution of the funds was fair and in line with legal principles.

Orders