JC & R Bourke Pty Ltd v Robertson

[1996] QSC 84

IN THE SUPREME COURT

OF QUEENSLAND

Brisbane  No. 1627 of 1994

Before the Hon Justice White

[J.C. & R. Bourke Pty Ltd v. Robertson]

BETWEEN:

J.C. & R. BOURKE PTY LTD
  ACN 000 960 609
  Plaintiff

AND:

ROYLAINE ROBERTSON
  Defendant

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 20/05/1996

CATCHWORDS:     ASSESSMENT of damages in default of defence - forgery of director's signature on bill of mortgage - fraudulent use of company seal - quantum of damages to redeem mortgage and restore unencumbered status to Certificate of Title.

Counsel:Mr A Couper for plaintiff

Solicitors for defendant

Solicitors:TF Wardrobe as town agent for Davies - Graham & Associates for plaintiff

Reidy and Tonkin as town agents for Price & Roobottom for defendant

Hearing Date:   20 May 1996

IN THE SUPREME COURT

OF QUEENSLAND

No. 1627 of 1994

[J.C. & R. Bourke Pty Ltd v. Robertson]

BETWEEN:

J.C. & R. BOURKE PTY LTD
  ACN 000 960 609
  Plaintiff

AND:

ROYLAINE ROBERTSON
  Defendant

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 20/05/1996

The plaintiff obtained judgment with damages to be assessed and costs in default of defence pursuant to O.31 r. 4 on 5 February 1996.  Its intention to do so had been foreshadowed in a letter to the defendant's solicitors dated 1 February 1996.  At the hearing today the defendant's solicitors filed an affidavit and sought leave to withdraw.  They no longer held instructions from the defendant but had earlier been informed by their client that she wished the judgment and assessment of damages to proceed as quickly as possible.  She was then serving a term of imprisonment in respect of the conduct which gives rise to this action.
           The plaintiff is and was the registered proprietor and beneficial owner of an estate in fee simple of land situated at Cypress Drive West, Carrara.  Prior to 5 August 1993 its interest was unencumbered.  On about 5 August 1993 the defendant delivered to the solicitors for Perpetual Trustees WA Ltd the certificate of title of the land together with a document purporting to be a bill of mortgage in form 5 under the Real Property Act 1861 and the Real Property Regulations 1986 to secure a loan of $100,000 to be made by Perpetual Trustees upon the security of the land.  The bill of mortgage was forged by the defendant in that the defendant without authority of the plaintiff forged in item 11 of the bill of mortgage the signature of the director of the plaintiff, Ross Bourke, and affixed the common seal of the plaintiff to item 11 without the authority of a resolution of the directors of the plaintiff or the members of the plaintiff.  In so doing the defendant was guilty of fraud.  The defendant received and applied for her own use and benefit the loan of $100,000 made by Perpetual Trustees on the security of the bill of mortgage and thereby derived a benefit by her fraud.
           The bill of mortgage was registered by the Registrar of Titles at Brisbane on 18 August 1993 as dealing number L603056K against the certificate of title of the land.  The loan was repayable on or about 5 August 1994 with provision  for earlier payment on default in compliance with the terms of the mortgage.  Perpetual Trustees commenced proceedings against the plaintiff in March 1994 in default of compliance with the terms of the mortgage.  In order to remove the bill of mortgage as an encumbrance on the title to the land and to restore the plaintiff's unencumbered title to the land the plaintiff paid to Perpetual Trustees the principal sum secured together with interest in the sum of $12,362.03 and costs of $6,715.85 making an amount of $119,113.88.  In those proceedings the plaintiff paid its own solicitor's costs and disbursements in the sum of $3,500.  In order to procure the stamping and registration of the release of the bill of mortgage the plaintiff incurred additional expenses of $250 for solicitor's costs and $87 for registration fees being an amount of $337.  In this action the plaintiff claims from the defendant as damages those amounts.  In paragraph 15 of the statement of claim herein the plaintiff claims "Principal money, interest and costs paid to procure the release of the said Bill of Mortgage" and the amount of $119,113.88 is set out.
           The affidavit of Leo Charles Goggins, registered valuer, exhibits Mr Goggins' report in which he assesses the unencumbered fee simple value of the subject property as at 9 May 1996 at $235,000.  The damages claimed by the plaintiff are thus within the value of its land, Registrar of Titles and the Treasurer of Queensland v. Keddell and Anor, unreported decision of the Court of Appeal (CA 93/426 of 25 October 1993).
           In his affidavit which was served on the defendant's solicitors on 17 May 1996 Mr Ross Bourke, director of the plaintiff company, sets out the amounts which were paid by the plaintiff to secure the removal of the bill of mortgage from the title to which I have referred together with the bill of costs delivered by his solicitors in respect of the action between Perpetual Trustees and the plaintiff as defendant amounting to $5,644.31.  He has exhibited the bill of costs in the present action amounting to $4,890.32.  In paragraph 6 of his affidavit Mr Bourke swears that the company has incurred interest on the borrowings of $119,133.88 from the National Australia Bank Limited and he seeks an order for the payment of interest.  In his affidavit filed today Mr Bourke also claims the costs of the valuation in the sum of $325.  He exhibits a letter from the manager of the National Australia Bank setting out the interest and other charges which have accrued in respect of the moneys raised to pay out the bill of mortgage.  Those charges and interest sums amount to $21,024.02.
           The defendant was given notice of the intention to claim interest in the statement of claim and in my view the plaintiff is not restricted to the amount set out in the statement of claim.  Further notice was given as to the intention to claim the costs of borrowing the money to redeem the mortgage in Mr Bourke's affidavit served on 17 May.  The need to borrow money to discharge the mortgage and the commercial cost of such borrowings were reasonably foreseeable consequences of the fraud by the defendant.  I am satisfied that the plaintiff is entitled to recover those sums from the defendants.
           The claim for costs as an item of damage to be assessed in this action is no longer pressed by Mr A Couper of counsel who appeared on behalf of the plaintiff.
           Accordingly I assess damages in the following amounts:

To the mortgagee the principal

sum secured  $100,000.00

To the mortgagee interest to

date of payment  $ 12,362.03

To mortgagee's solicitors for

the costs of the action  $  3,850.00

To mortgagee's solicitors for

costs of release of mortgage,

disbursements and outlays  $  2,901.85

To plaintiff's solicitors on mortgagee's

action  $  5,644.31

Interest and bank charges on borrowings

to redeem bill of mortgage  $ 21,024.02

TOTAL:$145,782.21

I assess damages to be paid by the defendant to the plaintiff in the sum of $145,782.21.
           I further order that the defendant pay the plaintiff's costs of and incidental to this action to be taxed on a solicitor and own client basis.