Ippin Textiles Pty Ltd v Winau Aust Pty Ltd [2021] NSWCA 9
Hearing dates:
29 October 2020
Date of orders:
12 February 2021
Decision date:
12 February 2021
Before:
Macfarlan JA at [1]; Leeming JA at [48]; Brereton JA at [80]
Decision:
(1) Grant leave to appeal.
(2) Direct the applicants within 14 days to file and serve a Notice of Appeal in the form of the draft Notice of Appeal provided to the Court.
(3) Dismiss the appeal with costs.
Catchwords:
LAND LAW – Torrens title – indefeasibility of title – fraudster procured execution and registration of mortgages purportedly on behalf of mortgagor – whether mortgages properly construed secure anything against the lands
LAND LAW – Torrens title – indefeasibility of title – effect of acknowledgment of receipt of payment in registered mortgage – acknowledgment prima facie evidence of receipt but must yield to the facts as proved – no advance actually made to mortgagor due to intervention of fraudster
LAND LAW – Torrens title – indefeasibility of title – whether an unregistered document can be incorporated by reference into a registered mortgage – existence of Special Condition in registered mortgage excluding unregistered document where void – unregistered document void due to fraud
[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 Ippin Textiles Pty Ltd v Winau Aust Pty Ltd
Sign in free to access the full text
Details
AGLC
Ippin Textiles Pty Ltd v Winau Aust Pty Ltd [2021] NSWCA 9
Case
[2021] NSWCA 9
Decision Date
CaseChat Overview and Summary
The dispute in *Ippin Textiles Pty Ltd v Winau Aust Pty Ltd* concerned the validity of registered mortgages over land held under the Torrens system. The applicant, Ippin Textiles Pty Ltd, sought to appeal a decision concerning these mortgages, which had been procured by a fraudster who purported to act on behalf of the mortgagor. The appeal was heard in the Court of Appeal of New South Wales.
The central legal issues before the Court of Appeal were whether the registered mortgages, despite being executed and registered due to fraud, could properly be construed to secure anything against the mortgagor's land. Further, the Court had to determine the legal effect of an acknowledgment of receipt of payment within a registered mortgage, and whether an unregistered document could be incorporated by reference into a registered mortgage, particularly where the registered mortgage contained a special condition excluding unregistered documents found to be void.
The Court reasoned that while an acknowledgment of receipt of payment in a registered mortgage is prima facie evidence of receipt, this presumption yields to the facts as proved. In this instance, no advance was actually made to the mortgagor due to the fraudster's intervention. The Court also considered the incorporation of unregistered documents, finding that a special condition within the registered mortgage explicitly excluded such incorporation where the unregistered document was void. As the unregistered document in question was void due to fraud, it could not be incorporated into the registered mortgage.
Ultimately, the Court of Appeal granted leave to appeal but then dismissed the appeal with costs.
Orders
Orders of the court
(1) Grant leave to appeal.
(2) Direct the applicants within 14 days to file and serve a Notice of Appeal in the form of the draft Notice of Appeal provided to the Court.