Perebo Pty Ltd v Wayville Residential Investments Pty Ltd - [2019] SASC 35

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
PEREBO PTY LTD v WAYVILLE RESIDENTIAL INVESTMENTS PTY LTD & ORS
[2019] SASC 35
Judgment of The Honourable Justice Stanley
14 March 2019
REAL PROPERTY - TORRENS TITLE - MORTGAGES, CHARGES AND ENCUMBRANCES - POWERS AND REMEDIES OF MORTGAGEE
MORTGAGES - MORTGAGE CONTRACT
The plaintiff loaned moneys to the first, second and third defendants in three tranches totaling $710,000. The plaintiff obtained the registration over various properties to secure the loans. The defendants failed to repay the loans. The plaintiff brings this action against the defendant to recover the moneys due and payable and enforce its securities pursuant to the loan agreements and the deed of variation.
Held (per Stanley J):
1. There was no evidence that the conduct of the plaintiff was unconscionable in accordance with the unwritten law or section 12CB of the Australian Securities and Investments Commission Act 2001 (Cth).
2. The defendants took the full benefit of the moneys lent to them and made no complaint of any aspect of the loan moneys or the loan facilities until they defaulted on the terms and conditions of the loans. It follows that the defendants' submission that the notice of intention to sell was invalid pursuant to section 132 of the Real Property Act 1886 (SA) must be rejected.
3. The plaintiff was entitled to the orders it sought.
Australian Securities and Investments Commission Act 2001 (Cth) s 12CB; Corporations Act 2001 (Cth) s 127; Stamp Act 1894 (Qld) s 53(5); Supreme Court Civil Rules 2006 (SA) Rule 204; Trade Practices Act 1974 (Cth) s 53AB; Real Property Act 1886 (SA) ss 69, 128, 132, 240A, 240F, 273, 273A, referred to.
PSAL Ltd v Kellas-Sharpe & Ors [2012] QSC 31, distinguished.
Australian Competition and Consumer Commission (ACCC) v Samton Holdings Pty Ltd (2002) 117 FCR 301; Australian Competition and Consumer Commission v Radio Rentals Ltd (2005) 146 FCR 292; Breskvar v Wall (1971) 126 CLR 376; Epworth Group Holdings Pty Ltd & Anor v Permanent Custodians Ltd [2011] SASCFC 32; Grgic v Australian and New Zealand Banking Group Ltd (1994) 33 NSWLR 202; Pyramid Building Society (In Liq) v Scorpion Hotels Pty Ltd [1998] 1 VR 188, discussed.
Bahr v Nicolay (No. 2) (1988) 164 CLR 604; Butler v Fairclough (1917) 23 CLR 78; Maher v Coe (1968) 88 WN (Pt 1) (NSW) 549; Public Trustee v Paradiso (1995) 64 SASR 387; Stuart v Kingston (1923) 32 CLR 309, considered.

PEREBO PTY LTD v WAYVILLE RESIDENTIAL INVESTMENTS PTY LTD & ORS
[2019] SASC 35
STANLEY J:
Introduction

In this matter, the plaintiff loaned money to the defendants. The plaintiff loaned money to the defendants in three tranches totalling $710,000 over a period from 3 August 2017 to 15 December 2017. The plaintiff obtained the registration of mortgages over various properties to secure the loans. The defendants have failed to repay the loans. The plaintiff brings this action to recover moneys due and payable and enforce its securities. The plaintiff sought orders against the defendants as follows:
(1)judgment in the sum of $1,173,687.98 plus accruing interest, fees and charges;
(2)a declaration that the following securities remain in force on the Torrens Title register to secure the above judgment debt, namely, second registered mortgages over the whole of the land comprised and described in Certificate of Title Register Book volume 6132 folio 723 (Lot 2, Primary Community Plan 24541, Brighton in the State of South Australia, being a residential house dwelling situated at 134B Esplanade, Brighton SA 5048), and Certificate of Title Register Book volume 6132 folio 514 (being a residential house dwelling situated at 134C Esplanade, Brighton SA 5048) of which Wayville Investments Pty Ltd is the registered proprietor, (collectively referred to as the “Brighton properties”), and Certificate of Title Register Book volume 6168 folio 266 (being land and a residential house known as “Mount Breckan mansion” at 27‑31 Renown Avenue, Victor Harbor SA 5211) of which ACN 110962126 is the registered proprietor;
(3)possession of the mortgaged properties comprised and described in Certificate of Title Register Book volume 6132 folio 723 situated at 134B Esplanade, Brighton and Certificate of Title Register Book volume 6132 folio 514 situated at 134C Esplanade, Brighton SA;
(4)a warrant of sale over all the secured properties including the yacht, Librarian; and
(5)costs.
In addition, the plaintiff sought a declaration that the yacht, Librarian, is mortgaged security and possession of that sea vessel.
The plaintiff does not press an order for possession of the Mount Breckan mansion as there has been a prior order for possession made in Supreme Court Action No. 242 of 2017 in favour of the first mortgagee, Vaznos Pty Ltd, which the plaintiff has acknowledged and the Court has noted.
The basis of the claim and the defence
It is common ground that on 3 August 2017 the defendants, as borrowers, entered into a loan agreement with the plaintiff as the lender pursuant to which the plaintiff lent the sum of $160,000 to the defendants. The loan was repayable on or before 5 February 2018. On 21 September 2017 the defendants, as borrowers, entered into a further loan agreement with the plaintiff as the lender pursuant to which the plaintiff lent the sum of $400,000 to the defendants. The loan was repayable on or before 21 September 2018. On 15 December 2018, the plaintiff and the defendants entered into a deed of variation to the loan agreement of 21 September 2017 pursuant to which the plaintiff advanced a further sum of $150,000 by way of loan to the defendants. That further advance was repayable on or before 21 September 2018.
It is common ground the defendants have not repaid the principal, interest and all fees and charges owing pursuant to the terms and conditions of the loan agreements and the deed of variation.
The defendants contend that the plaintiff is not entitled to enforce the securities on a number of grounds. First, that the plaintiff has not made a valid demand for payment under the loan agreements and the moneys are not therefore due and payable. Second, the defendants contend that the registered mortgage is not valid and effective to secure the loan facility on the basis that the plaintiff was not entitled to obtain registration of the mortgage because of its non-compliance with the requirements of the Real Property Act 1886 (SA) (the RPA). The defendants submit that by reason of the non-compliance with the requirements of the RPA equity will intervene to stop the plaintiff from obtaining an order for possession of the mortgaged properties. Third, the defendants contend that moneys advanced pursuant to the loan agreements are not secured by any mortgage which is indefeasible for the purpose of s 69 of the RPA. Fourth, the defendants submit that the loan agreements provided for a rate of interest on the loan facility of five per cent compounded and capitalised per month or a discounted rate of three per cent compounded and capitalised per month if payment was made on or before the due date for repayment. The defendants submit that these provisions are unconscionable contrary to the general law or s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act). It is alleged to constitute a further basis upon which the mortgage is unenforceable.
The plaintiff’s case can be shortly stated. The plaintiff concedes that there has been non-compliance with the provisions of s 128 of the RPA. The plaintiff concedes that under these circumstances the Registrar-General was prohibited from registering the mortgage pursuant to the provisions of s 273(1) of the RPA. Nonetheless, contrary to s 273 the Registrar-General did register the mortgage over the Brighton properties. As a result, the plaintiff’s interest in those properties as mortgagee pursuant to the registered mortgage is indefeasible. Notwithstanding the statutory non-compliance, the plaintiff is entitled to the enforcement of its securities. It contends there is no proper basis for equity to restrain it from doing so.
In order to understand the issues it is necessary to refer to the terms of the loan agreements, the deed of variation and the mortgages.
First loan agreement 3 August 2017
The loan agreement was made between the plaintiff, Perebo Pty Ltd, as the lender, and Robert David Moore, the third defendant, and Wayville Residential Investments Pty Ltd, the first defendant, as borrowers.
The first loan agreement was executed as a deed by the first defendant, Wayville Residential Investments Pty Ltd. It was executed pursuant to s 127 of the Corporations Act 2001 (Cth) (Corporations Act) by the signature of Robert David Moore, the sole director and sole secretary of the first defendant. His signature was witnessed by a justice of the peace, Joshua Samuel Baldwin.
The commercial details of the deed provide that the principal sum is $160,000 which is lent at a standard interest rate of five per cent compounded and capitalised per month, but if the borrowers make repayment on or before the scheduled date for repayment the interest rate will be charged at the discount rate of three per cent compounded and capitalised per month. The deed provided that the borrower must repay the outstanding debt and all fees and interest due and owing on or before 5 February 2018. The authorised purpose of the loan is for commercial business purposes. The deed provides for three securities, being:
1.Second registered mortgage over 134B Esplanade, Brighton SA 5048 being the whole of the land comprised and described in Certificate of Title Register Book volume 6132 folio 723.
2.Second registered mortgage over 134C Esplanade, Brighton SA 5048 being the whole of the land comprised and described in Certificate of Title Register Book volume 6132 folio 514.
3.General security agreement over Wayville Investments Pty Ltd ACN 144934636 ATF Rose Terrance Trust 2 of Woods Penhall, 27 Charles Street, Norwood SA 5067.
The borrowers address for notices is described as “Woods Penhall, 27 Charles Street, Norwood SA 5067”. The deed provides for mortgaged properties as follows:
1.Mortgage granted by the borrower to the lender over the whole of the land comprised and described in Certificate of Title Register Book volume 6132 folio 723 situated at 134B Esplanade, Brighton SA 5048.
2.Mortgage granted by the borrower to the lender over the whole of the land comprised and described in Certificate of Title Register Book volume 6132 folio 514 situated at 134C Esplanade, Brighton SA 5048.
The plaintiff’s solicitor gave evidence by affidavit that a copy of the memorandum of mortgage was provided to the defendants with the other loan facility documentation and was returned to his office with the executed loan agreement and General Security Agreement. He was not cross-examined on his affidavit. I accept this evidence.
The second loan agreement 21 September 2017
This was an agreement between the plaintiff, Perebo Pty Ltd, as lender, and Robert David Moore, the third defendant, Wayville Residential Investments Pty Ltd, the first defendant, and ACN 110962126 Pty Ltd, the second defendant, as borrowers. The agreement was executed as a deed by the defendants with Mr Moore executing the deed for the first and second defendants pursuant to s 127 of the Corporations Act as the sole director and sole secretary of each company. The commercial details of the deed record that the sum of $400,000 was to be drawn down on 21 September 2017. It was lent at a standard interest rate of five per cent compounded and capitalised per month but if the borrowers made repayment on or before the scheduled date for repayment the interest rate would be charged at the discount rate of three per cent compounded and capitalised per month. The deed provided that if after the advance the borrower fails within three business days to take all action requested of it by the lender to facilitate the registration of the lender’s interest in any security the interest rate payable by the borrower would be 2.75 per cent per month higher than the interest rate which would otherwise prevail. The deed provided that the borrower was to repay the outstanding debt and all fees and interest due and owing on or before 21 September 2018. The authorised purpose was specified as being for commercial business purposes / discharge other business loans. It provided for the following securities:
1.Registered mortgage over 134B Esplanade, Brighton SA 5048 being the whole of the land comprised and described in Certificate of Title Register Book volume 6132 folio 723.
2.Registered mortgage over 134C Esplanade, Brighton SA 5048 being the whole of the land comprised and described in Certificate of Title Register Book volume 6132 folio 514.
3.Registered mortgage granted over 27-31 Renown Avenue, Victor Harbor SA 5211 being the whole of the land comprised and described in Certificate of Title Register Book volume 6168 folio 266.
4.General security agreement over Wayville Investments Pty Ltd ACN 144934636 ATF Rose Terrance Trust 2.
5.General Security agreement over ACN 110962126 Pty Ltd.
The deed identified properties to be mortgaged as follows:
1.Mortgage granted by the borrower to the lender over the whole of the land comprised and described in Certificate of Title Register Book volume 6132 folio 723 situated at 134B Esplanade, Brighton SA 5048;
2.Mortgage granted by the borrower to the lender over the whole of the land comprised and described in Certificate of Title Register Book volume 6132 folio 514 situated at 134C Esplanade, Brighton SA 5048;
3.Mortgage granted by the borrower to the lender over the whole of the land comprised and described in Certificate of Title Register Book volume 6168 folio 266 known as “Mount Breckan Mansion” 27-31 Renown Avenue, Victor Harbor SA 5211; and
4.Sea Vessel: Type: Yacht, Name: Librarian, Official Number: 851343, Length: 17.50 metres, Kept: Port Adelaide / Registered.
The deed records the borrower’s address for notices for Mr Moore as Unit 3, 134 Esplanade, Brighton SA 5048; for Wayville Residential Investments Pty Ltd as Woods Penhall, 27 Charles Street, Norwood SA 5067, and for ACN 110962126 Pty Ltd, c/- R P Dunk & Co, 22 Bridge Street, Salisbury SA 5108.
Mr Moore’s signature was witnessed by a solicitor, Alexandra Dewar.
Deed of variation 15 December 2017
The deed of variation was between the plaintiff, Perebo Pty Ltd as “lender as mortgagee”, and the defendants, Wayville Residential Investments Pty Ltd, ACN 110962126 Pty Ltd and Robert David Moore as “borrowers as mortgagors”.
The deed of variation relates to the loan agreement of 21 September 2017. It was executed as a deed on 15 December 2017 by Franco Martino Quaini for and on behalf of Perebo Pty Ltd in accordance with s 127 of the Corporations Act as its director and sole secretary, and by Robert David Moore for and on behalf of the first and second defendants pursuant to s 127 of the Corporations Act and on his own behalf personally. Pursuant to the deed of variation the plaintiff advanced a further sum to the defendants of $150,000 pursuant to the same terms and conditions as the loan agreement of 21 September 2017 and including that the loan facility must be paid in full and inclusive of all interest, fees and charges on or before 21 September 2018 or the borrowers would be in default of the loan facility. The deed provided that the securities granted by the borrowers to the lender continue to secure all moneys advanced by the lender to the borrowers pursuant to the second loan agreement and to the variation to that loan agreement as provided in the deed of variation and any other loan facility granted to the borrowers by the lender.
The registered mortgage
The mortgage is over the whole of the land in Certificate of Title Register Book volume 6132 folio 723 and volume 6132 folio 514 (the Brighton properties). It records the mortgagor as Wayville Residential Investments Pty Ltd and the mortgagee as Perebo Pty Ltd. The mortgage records that the mortgagor mortgages the estate and / or interest in the land specified in this mortgage to the mortgagee as security for the debt or liability described in the terms and conditions set out or referred to in the mortgage, and covenants with the mortgagee to comply with those terms and conditions. The terms and conditions of the mortgage recite that the principal loan amount is $160,000; the term of the loan is six months commencing 4 August 2017 and expiring 5 February 2018; that the repayment of principal and interest is on interest only terms of five per cent per calendar month compounded and capitalised for the term of the loan and reduced to three per cent if the repayment is made on or before the scheduled date for repayment of principal and interest by the mortgagor to the mortgagee in full by the end of the term. The mortgage is dated the third day of August 2017. There is a certification in the following terms:
The Prescribed Person has taken reasonable steps to verify the identity of the mortgagee.
The Prescribed Person holds a properly completed Client Authorisation for the Conveyancing Transaction including this Registry Instrument or Document.
The Prescribed Person has retained the evidence to support this Registry Instrument or Document.
The Prescribed Person has taken reasonable steps to ensure that the Registry Instrument or Document is correct and compliant with relevant legislation and any Prescribed Requirement.
The Mortgagee, or the Prescribed Person, is reasonably satisfied that the Mortgagee it represents:
(a) Has taken reasonable steps to verify the identity of the mortgagor; and
(b) Holds a mortgage granted by the mortgagor on the same terms as this Registry Instrument or Document.
The certification is signed by the plaintiff’s solicitor, Bede Anthony Elliott on behalf of the mortgagee.
The mortgage was not signed by the mortgagor. The mortgagee’s certification is inaccurate to the extent it certified that the mortgagee held a mortgage granted by the mortgagor in the same terms as the registered mortgage.
Section 128 of the RPA provides:
128—Mortgage of land
(1) If land is to be charged or made security in favour of a person, a mortgage must be executed by the registered proprietor and the person.
(2) A mortgage lodged for registration in the Lands Titles Registration Office must be in the appropriate form.
(3) Certification required under section 273(1) in relation to a mortgage lodged for registration in the Lands Titles Registration Office must be provided by the mortgagee.
(4) If certification under section 273(1) is provided by a mortgagee in relation to a mortgage lodged for registration in the Lands Titles Registration Office, the mortgage will be taken, for the purposes of this section, to have been executed by the mortgagee.
(5) The Registrar-General may register a mortgage lodged for registration in the Lands Titles Registration Office that is executed solely by the mortgagee—
(a)     if the Registrar-General is satisfied that a mortgage on the same terms as the mortgage lodged for registration (the corresponding mortgage) has been executed by the mortgagor and the mortgagee as required under subsection (1) and retained by the mortgagee; and
(b) in a case where the mortgagee is not an ADI—if certification required under section 273(1) in relation to the mortgage has been provided—
(i) by a legal practitioner or a registered conveyancer; or
(ii) if the Registrar-General has given written approval for another person to provide the certification—by that person.
(6) If the Registrar-General registers a mortgage that is executed solely by the mortgagee, the corresponding mortgage—
(a)     must be retained by the mortgagee until he or she ceases to be mortgagee; and
(b)     if the mortgage is transferred under section 150—must be given to the transferee.
Maximum penalty: $5 000.
(7) If a mortgage is transferred under section 150, the corresponding mortgage must be retained by the transferee until he or she ceases to be mortgagee.
Maximum penalty: $5,000.
(8) This section only applies to land intended to be charged or made security under this Act by the registration of a mortgage.

The plaintiff concedes that as a result it did not comply with s 128(1), (2), (5) and (6)(a) of the RPA. Nonetheless, the Registrar General registered the mortgage notwithstanding non-compliance with s 273(1) of the RPA.
Section 273(1) provides:
(1) Subject to subsection (2), the Registrar-General must not register or record an instrument purporting to deal with or affect land (including an instrument lodged electronically under the Electronic Conveyancing National Law (South Australia)) unless a prescribed person has, on behalf of each person required to execute the instrument under this Act, provided certification in the appropriate form—
(a)     in relation to compliance with relevant legislation; and
(b)     that the requirements of this Act in relation to verification of identity, verification of authority and execution of documents have been complied with in respect of the instrument; and
(c)     that any document relevant to certification of the instrument that is required to be retained under this Act has been so retained; and
(d)     that there has been compliance with any other requirements prescribed by regulation for the purposes of this section.
A number of matters were ventilated at the hearing by the defendants. I do not think it necessary to deal with all of those matters. Some of them proceeded from a misconception of the plaintiff’s case. Most of them proceeded from the proposition that the mortgage had not been properly executed by the mortgagor and that the mortgagee’s certificate was misleading and that as a result the Registrar-General should not have registered the mortgage.
A valid demand for payment under the loan agreements?
The defence pleads that the notices of intention to sell dated 7 February 2018 and 22 March 2018 were not served upon the first and third defendants as borrowers pursuant to the terms of the loan agreements.
At the trial, counsel for the defendants did not press this submission. In any event, from the way in which the trial was conducted I consider the contention is untenable given the evidence of the process server, Mr Francesco Carbone, in his affidavits sworn 9 May 2018 and 16 November 2018. In his affidavits Mr Carbone deposes to attending at the registered office of Wayville Residential Investments Pty Ltd at 27 Charles Street, Norwood, on 8 February 2018, and serving notices of default and intention to sell dated 7 February 2018. A receptionist accepted service. He further deposes that on 26 March 2018 he attended at the offices of R P Dunk & Co at 22 Bridge Street, Salisbury, being the registered office of ACN 110962126 Pty Ltd and served the notices of default and intention to sell dated 22 March 2018 upon a receptionist named Jo who, after confirming that was the company’s registered office, accepted service. He further deposes that on the same day he again attended at the registered office of Wayville Residential Investments Pty Ltd at 27 Charles Street, Norwood, and served the notices of default and intention to sell and a notice to vacate dated 22 March 2018 upon a man named Andrew who confirmed that was the registered office of Wayville Residential Investments Pty Ltd and that he would accept service. Mr Carbone further deposes that later the same day he attended at 134 Esplanade, Brighton, and affixed a copy of the notice of default and intention to sell of 22 March 2018 to the front door of Unit 3 being the address for Robert David Moore, the third defendant. He also placed a copy in the letterbox to that unit.
Mr Carbone was not cross-examined by the defendant. I accept this evidence.
I also reject the defendants’ plea that the notice of intention to sell dated 7 February 2018 was superseded by the notice of intention to sell dated 22 March 2018 and was therefore not a valid notice in writing for the purposes of s 132 of the RPA. The notice of 7 February 2018 was referable to the default under the first loan agreement and was not superseded by the subsequent notice which combined the outstanding principal and interest payable under both facilities when the second loan fell into default.
Is the registered mortgage valid and effective given the non-compliance with the requirements of the RPA?
The essential proposition upon which the defendants rely is that contrary to the requirements of the RPA and the certification made by the plaintiff’s solicitor on its behalf as mortgagee, the plaintiff did not hold a mortgage granted by the first defendant as mortgagor lodged for registration and executed by the mortgagor. So much is admitted by the plaintiff. Nonetheless, the plaintiff submits that notwithstanding these defects, which should have prevented the registration of the plaintiff’s mortgage, the Registrar-General registered the mortgage on the title of the Brighton properties. As a result the plaintiff submits that, subject to the statutory exception enshrined in s 69 of the RPA, its interest as mortgagee under the mortgage is indefeasible.
This submission requires consideration of the effects of registration of a mortgagee’s interest under the Torrens title system.
The Torrens system of title by registration was established in South Australia in 1858, replacing the system adopted from the English upon settlement in Australia. The system which was replaced required parties to establish their title by tracing through an uninterrupted series of events and documents. In contrast, title under the Torrens system only requires production of the Certificate of Title for the particular parcel of land. The effectiveness of the Torrens system in South Australia caused it to be adopted interstate and in many foreign countries. Under the Torrens system, registered interests are recorded by the Registrar-General on the Certificate of Title. The Certificates of Title are stored in a Register which can be viewed by the public upon request. The object of the Torrens system has been described in the following terms:
The object is to save persons dealing with registered proprietors from the trouble and expense of going behind the register, in order to investigate the history of their author’s title, and to satisfy themselves of its validity. That end is accomplished by providing that everyone who purchases, in bona fide and for value, from a registered proprietor, and enters his deed of transfer of mortgage on the register, shall thereby acquire an indefeasible right, notwithstanding the infirmity of his author’s title.
The fundamental principle of the Torrens system is that the title created by registration is indefeasible. Indefeasibility is subject to limited exceptions including fraud, forgery, short term leases and specific overriding statutes.[1]
[1] Epworth Group Holdings Pty Ltd & Anor v Permanent Custodians Ltd [2011] SASCFC 32 at [39]-[41].
The principle is well illustrated by Breskvar v Wall.[2] In that matter the appellants, Mr and Mrs Breskvar, being the registered proprietors of land, as a means of securing a loan made to them by the second respondent, executed a memorandum of transfer of the land. When the transfer was executed the name of the purchaser was not inserted in the memorandum of transfer, contrary to s 53(5) of the Stamp Act 1894 (Qld) which provided:
No instrument of conveyance or transfer executed on or after the first day of November, 1918 of any estate or interest in any property whatsoever … shall be valid either at law or in equity unless the name of the purchaser or transferee is written therein in ink at the time of the execution thereof. Any such instrument so made shall be absolutely void and inoperative, and shall in no case be made available by the insertion of a name or any other particulars afterwards.
[2] [1971] HCA 70, (1971) 126 CLR 376.
Later, a Mr Petrie, acting as agent for his grandson, Mr Wall, fraudulently inserted Wall’s name in the transfer and caused it to be registered. On Wall’s behalf, Mr Petrie then entered into a contract to sell the land to an innocent third party and executed a transfer to it. The third party was a bona fide purchaser for value without notice of the Breskvars’ claim and bought the land in reliance upon the state of the register. The High Court held that upon Mr Wall’s registration as proprietor of the land, the legal title on the land was divested from the Breskvars and vested in him. The Breskvars thereafter had either an equitable interest in the land or an equity against Wall to have the land retransferred to them. Barwick CJ said:[3]
The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration. That which the Certificate of Title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor. Consequently, a registration which results from a void instrument is effective according to the terms of the registration. It matters not what the cause or reason for which the instrument is void. The affirmation by the Privy Council in Frazer v Walker of the decision of the Supreme Court of New Zealand in Boyd v Mayor & c. of Wellington now places that conclusion beyond question. Thus the effect of the Stamp Act upon the memorandum of transfer in this case is irrelevant to the question whether the Certificate of Title is conclusive of its particulars.
[3] [1971] HCA 70 at [15], (1971) 126 CLR 376 at 385-386.
This principle was applied in Pyramid Building Society (In Liq) v Scorpion Hotels Pty Ltd.[4]In that matter a mortgagee sued the mortgagor for possession of the mortgaged property and recovery of the mortgage debt. The mortgagor alleged the mortgage instrument had not been validly executed as the affixation of its company seal was attested by a person who was not a director. It further alleged that the mortgagee had been fraudulent in procuring the registration of the mortgage because of its (or its solicitor’s) wilful blindness or reckless indifference to the truth or falsity of the mortgage. The trial judge held that the mortgage had not been validly executed and that the mortgagee had been fraudulent in procuring the registration of the mortgage. He declared the mortgage void but gave judgment for the mortgagee for the mortgage debt. The mortgagee appealed and the mortgagor cross-appealed. The Court of Appeal allowed the appeal and dismissed the cross-appeal. Applying Breskvar v Wall Hayne JA (as he then was), with whom Brooking and Tadgell JJA agreed, held that the registration of the mortgage, even if it was not executed by the mortgagor, did not affect the title which the mortgagee acquired on registration of the mortgage. Hayne JA said it is clear that speaking generally, registration under the equivalent of the RPA will ordinarily give the person registered an indefeasible title at once and is not limited to protecting only those who deal with the land in good faith and for value in reliance upon the register.[5] Accordingly, subject to s 69 of the RPA, once the plaintiff obtained registration of its mortgage, the Brighton properties became encumbered in favour of the plaintiff irrespective of whether the mortgage document was a void instrument. The defects do not invalidate the registered mortgage or render it unenforceable unless it falls within one of the statutory exceptions to indefeasibility.
[4] [1998] 1 VR 188.
[5] [1998] 1 VR 188 at 191.
Is the mortgage indefeasible for the purpose of s 69 of the RPA?
Section 69 of the RPA provides:
69—Title of registered proprietor indefeasible
The title of every registered proprietor of land shall, subject to such encumbrances, liens, estates, or interests as may be notified on the certificate of title of such land, be absolute and indefeasible, subject only to the following qualifications:
(a)     Fraud
in the case of fraud, in which case any person defrauded shall have all rights and remedies that he would have had if the land were not under the provisions of this Act: Provided that nothing included in this subsection shall affect the title of a registered proprietor who has taken bona fide for valuable consideration, or any person bona fide claiming through or under him;
(b)     Forgery or disability
in the case of a certificate or other instrument of title obtained by forgery or by means of an insufficient power of attorney or from a person under some legal disability, in which case the certificate or other instrument of title shall be void: Provided that the title a registered proprietor who has taken bona fide for valuable consideration shall not be affected by reason that a certificate other instrument of title was obtained by any person through whom he claims title from a person under disability, or by any of the means aforesaid;
(c)     Erroneous inclusion of land
where any portion of land has been erroneously included, by wrong description of parcels or boundaries, in the certificate of title or other instrument evidencing the title of the registered proprietor: In which case the rights of the person who but for such error would be entitled to such land shall prevail, except as against a registered proprietor taking such land bona fide for valuable consideration, or any person bona fide claiming through or under the registered proprietor;
(d)     Omission of easement
where a right-of-way or other easement not barred or avoided by the provisions of the Rights-of-Way Act 1881, or of this Act, has been omitted or mis-described in any certificate, or other instrument of title: In which case such right-of-way or other easement shall prevail, but subject to the provisions of the said Rights-of-Way Act 1881 and of this Act;
(e)     Several certificates for the same land
where 2 or more certificates of title shall be registered under any of the Real Property Acts in respect of the same land: In which case the title originally first in time of registration shall prevail but without prejudice to the effect of anything done under Part 19A of this Act;
(f)Certificate of title to be void if any person is in possession and rightfully entitled adversely to the first registered proprietor
any certificate of title issued upon the first bringing of land under the provisions of any of the Real Property Acts, and every certificate of title issued in respect of the said land, or any part thereof, to any person claiming or deriving title under or through the first registered proprietor, shall be void, as against the title of any person adversely in actual occupation of, and rightfully entitled to, such land, or any part thereof at the time when such land was so brought under the provisions of the said Acts, and continuing in such occupation at the time of any subsequent certificate of title being issued in respect of the said land;
(g)     Wife's title to prevail
where a husband shall have been wrongly registered as co-proprietor of land belonging to his wife for her separate use or as her separate property, in which case the title of the wife shall prevail except as against a registered proprietor taking such land bona fide for valuable consideration, or any person bona fide claiming through or under him;
(h)     A lease or letting for not more than a year
where at the time when the proprietor becomes registered a tenant shall be in actual possession of the land under an unregistered lease or an agreement for a lease or for letting for a term not exceeding one year: In which case the title of the tenant under such lease or agreement shall prevail;
(i)    Failure of mortgagee to comply with verification requirement
if—
(i)    the person by or on whose behalf a mortgage was signed or executed as mortgagor (the purported mortgagor) is not the registered proprietor of land subject to the mortgage; and
(ii)     the mortgagee failed to comply with a requirement under this Act or the Electronic Conveyancing National Law (South Australia)—
(A) to verify the purported mortgagor's identity or authority to enter into the mortgage; or
(B)if the mortgage was transferred to the mortgagee—to establish that the transferor complied with an obligation imposed under this Act on the transferor, as mortgagee, to verify the identity of the purported mortgagor or to verify the purported mortgagor's authority to enter into the mortgage,
the mortgagee's interest under the mortgage is not indefeasible.
The defendants plead that the monies advanced pursuant to the loan agreements are not secured by any mortgage which is indefeasible for the purpose of s 69 of the RPA. The defendants plead that they did not execute or grant any mortgage to the plaintiffs; the plaintiffs did not execute any mortgage as mortgagee; there was no mortgage in writing lodged for registration at the Land Services and Lands Titles Office (LTO) for the purpose of s 128(1) and (2) of the RPA; there was no mortgage in writing executed by the plaintiff lodged for registration at the LTO in the appropriate form for the purpose of s 128(5) of the RPA; there was no corresponding mortgage for the purposes of s 128(6) of the RPA; and the certifications provided by Mr Elliott, the solicitor for the plaintiff, to the Registrar-General incorrectly represented that the mortgagee held a mortgage on the same terms as the document lodged. I have addressed these matters above. They do not lead to the invalidity or the unenforceability of the mortgage.
In addition, the defendants plead that the client authorisation dated 10 June 2017 contains a signature of Mr Franco M Quaini, which may or may not be that of Mr Quaini, and if not, the client authorisation may not be a valid client authorisation pursuant to s 240A and s 240F of the RPA; Mr Elliott was required to perform a verification of identity in respect of the plaintiff and the first and second defendants before lodging the registry instruments pursuant to s 273A of the RPA and to the knowledge of the defendants did not do so; Mr Elliott in lodging the registry instruments, as the purported attorney for the first and third defendants, acted inconsistently with the fiduciary duty owed to the first and second defendants not to act exclusively for the benefit of the plaintiff so as to deprive the first and third defendants of an interest in the Brighton properties and, as a result, the defendants claim they are entitled to the benefit of an in personam exception to the alleged indefeasibility of title for breach of fiduciary duty.
There are a number of answers to these contentions. First, a number of these contentions were not pressed at the hearing of the trial. Second, s 69 of the RPA in its terms exhaustively provides the limited qualifications to the principle of indefeasibility of title subject to the registration of other interests. The additional matters pleaded do not fall within those qualifications, with the possible exception of s 69(i) which I will address shortly. As the defendants’ counsel acknowledged, there is no plea of fraud. For the purposes of s 69 “fraud” means actual dishonesty or moral turpitude.[6] In any event, I find that the evidence in this matter rises no higher than demonstrating that the plaintiff’s solicitor failed to take due care in drafting and settling the mortgage document.[7]
[6] Butler v Fairclough (1917) 23 CLR 78 at 90 and 97; Stuart v Kingston (1923) 32 CLR 309 at 329 and 356; Bahr v Nicolay (No. 2) (1988) 164 CLR 604 at 614 and 631-632.
[7] Second Affidavit of Bede Anthony Elliott sworn 30 August 2018 paragraph 11 and following.
The defence does not expressly plead reliance upon s 69(i) of the RPA. At the conclusion of the trial an application was made to amend the defence to include a plea based on s 69(i). The application for amendment was opposed. I refused the application on the basis of prejudice and unfairness to the plaintiff.

In any event, the attempted reliance upon s 69(i) is misplaced. It can be seen that s 69(i) is a compound provision. In order to defeat the indefeasibility of the mortgagee’s interest, the mortgagor must prove the matters specified in placitum (i) and placitum (ii) of s 69(i). However, there are two limbs to s 69(i)(ii). Those limbs are disjunctive. So in order to defeat the indefeasibility of the mortgagee’s interest registered on the title, the mortgagor must prove the matter in s 69(i)(i) and either the matter in s 69(i)(ii)(A) or (B). In this case the defendants sought to rely upon (A).
The first difficulty the defendants confront is that s 69(i)(i) is premised upon the mortgagor having signed or executed the mortgage. It is common ground that the mortgage was not signed or executed by the mortgagor. The second difficulty confronting the defendants is that it has not proved that the mortgagee failed to comply with a requirement to verify the purported mortgagor’s identity or authority to enter into the mortgage. It is the defendants who bear the onus of proof pursuant to s 69(i). The only evidence before the Court is that on 2 August 2017 the plaintiff undertook an ASIC search of Wayville Residential Investments Pty Ltd which identified Robert David Moore of Unit 3, 134 Esplanade, Brighton, as a director and secretary of the company. Pursuant to s 270 of the RPA a corporation may execute instruments under the provisions of the RPA in any manner permitted by law. There is no issue that s 127(1)(c) of the Corporations Act permits the sole director of a proprietary company who is also the sole company secretary to execute a document for and on behalf of the company. In my view that was sufficient to verify the purported mortgagor’s identity or authority to enter into the mortgage. More importantly, the defendants have failed to prove to the contrary.
Further, the defendants’ plea calling into question whether Mr Elliott performed a verification of identity in respect of the plaintiff goes nowhere. The evidence establishes that Mr Elliott ensured the execution by the plaintiff of the client authorisation required by Part 20A of the RPA. As a result, there was no need for verification of identity pursuant to s 273A(1)(b) of the RPA.
I reject the other pleas raised in the defence in purported reliance upon s 128 of the RPA. The challenge to the client authorisation was not pressed in argument on the hearing of the trial. In any event, the onus was on the defendants to prove that the signature on the client authorisation of 10 June 2017 is not that of Mr Quaini. For the reasons set out above, the defendants have not proved that Mr Elliott failed to perform a verification of identity as required pursuant to s 273A of the RPA in respect of Wayville Residential Investments Pty Ltd or in respect of the plaintiff. Finally, I accept that an indefeasible title gained as mortgagee is subject to rights in personam between the parties to a mortgage.[8] However, in this case, the conduct of the mortgagee and its solicitor in relation to procuring the registration of the mortgage is not such as to give rise to a personal equity in the mortgagor sufficient to set the mortgage aside. In Grgic v Australian and New Zealand Banking Group Ltd[9] Powell JA said:[10]
… the expressions “personal equity” and “right in personam” encompass only known legal causes of action or equitable causes of action, albeit that the relevant conduct which may be relied upon to establish “a personal equity” or “right in personam” extends to include conduct not only of the registered proprietor but also of those for whose conduct he is responsible, which conduct might antedate or postdate the registration of the dealing which it has sought to have removed from the register.
[8] Mayer v Coe (1968) 88 WN (Pt 1) (NSW) 549 at 549; Public Trustee v Paradiso (1995) 64 SASR 387 at 388.
[9] (1994) 33 NSWLR 202.
[10] (1994) 33 NSWLR 202 at 222-223.
In this case the basis of the pleaded right in personam asserted by the first defendant is a claim for breach of a fiduciary duty. The basis of that claim is that Mr Elliott, in lodging the mortgage as the purported attorney for the first defendant, acted inconsistently with the fiduciary duty he owed to the first defendant not to act exclusively for the benefit of the plaintiff so as to deprive the first defendant of an interest in the Brighton properties. The plea is misconceived. Mr Elliott did not act as the purported attorney for the first defendant in obtaining registration of the mortgage over the Brighton properties. There was no reliance upon any power of attorney granted by the defendant. Mr Elliott was acting only for the plaintiff as mortgagee.
Do the interest rate provisions in the loan agreements render the agreements unenforceable on the grounds that they are unconscionable?
The defendants submit that the application of the contractual rates of interest provided for under the loan agreement is unconscionable for the purposes of common law and equity and pursuant to s 12CB of the ASIC Act. As a result, the defendants contend that the notice of intention to sell dated 22 March 2018 contained a significant overstatement of the alleged liability of the borrowers pursuant to the loan facilities and therefore was not a valid notice in writing for the purpose of s 132 of the RPA.
The loan agreements provided for a rate of interest on the loan facility of five per cent compounded and capitalised per month or a discounted rate of three per cent compounded and capitalised per month if payment was made on or before the due date for repayment.
In Australian Competition and Consumer Commission v Samton Holdings Pty Ltd[11] the Full Court of the Federal Court of Australia explained the equitable doctrine of unconscionable conduct in the following terms:[12]
[11] [2002] FCA 62, (2002) 117 FCR 301.
[12] [2002] FCA 62 at [46]-[48], (2002) 117 FCR 301 at 317-318.
Equity is directed to the prevention of unconscionable behaviour. The fundamental principle upon which equitable relief is granted is that a party having a legal right may not exercise it in such a way that the exercise amounts to unconscionable conduct - Legione v Hateley (Mason and Deane JJ). Those words may encompass duress, undue influence and "unconscionable dealing as such" - Hardingham "Unconscionable Dealing" in Finn (ed) Essays on Equity (1985) p 1. Professor Finn (as he then was) himself identified "four not altogether distinct ways" in which the language of unconscionable conduct has been used in the case law:
1.As an organising idea informing specific equitable rules and doctrines which do not in terms refer to, or require, an explicit finding of unconscionable conduct - eg rules on stipulations as to time and notices to complete.
2.In relation to specific equitable doctrines of which estoppel, unilateral mistake, relief against forfeiture and undue influence are examples. They are united by the idea that equity will prevent an unconscionable insistence on strict legal rights and are conditioned upon the explicit finding of unconscionable conduct in the persons against whom they are invoked - Waltons Stores (Interstate) Limited v Maher; Stern v McArthur and Taylor v Johnson.
3.In relation to the discrete doctrine of unconscionable dealing which concerns one species of unconscionable conduct - Commercial Bank of Australia Ltd v Amadio; Louth v Diprose.
4.In relation to unconscionable conduct founding a cause of action not mediated by any discrete doctrine - Baumgartner v Baumgartner.
Finn, Unconscionable Conduct (1994) 8 Journal of Contract Law 37 at 38-39.
Four classes of case attracting the application of the language of unconscionability are described in LBC, Laws of Australia, vol 35 (at 31 January 2002) Unfair Dealing 35.5 Notion of Unconscionability [1]-[38]:
(i)    Exploitation of vulnerability or weakness
(ii)    Abuse of position of trust or confidence
(iii)     Insistence upon rights in circumstances which make that harsh or oppressive
(iv)     Inequitable denial of legal obligations.
These are said to be supported by three broad standards:
(i)That those in positions of strength or influence should not take advantage of another's relative weakness.
(ii)That people should not, by appeal to strict legal rights, cause hardship to others by violating their reasonable expectations.
(iii)That those in fiduciary positions should act only in the interests of those to whom those fiduciary duties are owed.
Under the rubric of unconscionable conduct, equity will:
(i)Set aside a contract or disposition resulting from the knowing exploitation by one party of the special disadvantage of another. The special disadvantage may be constitutional, deriving from age, illness, poverty, inexperience or lack of education - Commercial Bank of Australia Ltd v Amadio. Or it may be situational, deriving from particular features of a relationship between actors in the transaction such as the emotional dependence of one on the other - Louth v Diprose; Bridgewater v Leahy.
(ii)Set aside as against third parties a transaction entered into as the result of the defective comprehension by a party to the transaction, the influence of another and the want of any independent explanation to the complaining party - Garcia v National Australia Bank Ltd.
(iii)Prevent a party from exercising a legal right in a way that involves unconscionable departure from a representation relied upon by another to his or her detriment - Waltons Stores (Interstate) Limited v Maher; The Commonwealth v Verwayen.
(iv)Relieve against forfeiture and penalty - Legione v Hateley; Stern v McArthur.
(v)Rescind contracts entered into under the influence of unilateral mistake - Taylor v Johnson.
Each of these categories of case (the list may not be exhaustive) involves the identification of unconscionable conduct, albeit its content and degree will vary according to the category. It is a term which has various shades of meaning according to its context. There are different thresholds of conduct in various categories, all of which may be described as unconscionable - G Dal Pont, Varying Shades of "Unconscionable Conduct" - Conduct - Same Term, Different Meaning (2000) 19 Aust Bar Rev 135 at 165.
[Citations omitted].
Section 12CB of the ASIC Act provides:
12CB Unconscionable conduct in connection with financial services
(1) A person must not, in trade or commerce, in connection with:
(a)     the supply or possible supply of financial services to a person (other than a listed public company); or
(b)     the acquisition or possible acquisition of financial services from a person (other than a listed public company);
engage in conduct that is, in all the circumstances, unconscionable.
(2) This section does not apply to conduct that is engaged in only because the person engaging in the conduct:
(a)     institutes legal proceedings in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition; or
(b)     refers to arbitration a dispute or claim in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition.
(3) For the purpose of determining whether a person has contravened subsection (1):
(a)     the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and
(b)     the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.
(4) It is the intention of the Parliament that:
(a)     this section is not limited by the unwritten law of the States and Territories relating to unconscionable conduct; and
(b)     this section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour; and
(c)     in considering whether conduct to which a contract relates is unconscionable, a court’s consideration of the contract may include consideration of:
(i) the terms of the contract; and
(ii) the manner in which and the extent to which the contract is carried out; and is not limited to consideration of the circumstances relating to formation of the contract.
Section 12CB of the ASIC Act is in substantially the same terms as s 51AB(1) of the Trade Practices Act 1974 (Cth) (the TPA), except the subject matter is the supply of goods or services rather than financial services.
Relevantly, in Australian Competition and Consumer Commission v Radio Rentals Ltd[13] Finn J explained the operation of s 51AB of the TPA in the following terms:[14]
Section 51AB(1) provides that a corporation shall not, in trade or commerce, in connection with the supply or possible supply of goods or services to a person, engage in conduct that is, in all the circumstances, unconscionable. The term “unconscionable” is undefined. However, s 51AB does refer to a non-exhaustive list of matters to which the Court may have regard in determining whether a corporation has contravened s 51AB(1).
Unlike s 51AA, s 51AB does not limit unconscionable conduct to conduct that is unconscionable within the meaning of the unwritten law. As others have pointed out, there is no reason when construing the section to import such a limitation into it: see Australian Competition and Consumer Commission v Simply No-Knead (Franchising) Pty Ltd; Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (No 2). Indeed the section on its face in referring to a “possible supply” travels beyond the unwritten law as I understand it. There is, in my view, no reason not to give the term its ordinary possible meanings in the context of a supply or possible supply of goods or services. These have been expressed, variously, as “serious misconduct [or] something clearly unfair or unreasonable”: Cameron v Qantas Airways Ltd; “showing no regard for conscience; irreconcilable with what is right or reasonable”: Australian Competition and Consumer Commission v Samton Holdings Pty Ltd; see also Hurley v McDonald’s Australia Pty Ltd; or, simply, conduct that is “unfair”: Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd; and see generally Australian Competition and Consumer Commission v Keshow.
[Citations omitted].
[13] [2005] FCA 1133, (2005) 146 FCR 292.
[14] [2005] FCA 1133 at [23]-[24], (2005) 146 FCR 292 at 299.
The defendants sought to rely upon a decision of the Queensland Supreme Court in PSAL Ltd v Kellas-Sharpe & Ors[15] to establish that the provisions of the loan agreements and the deed of variation relating to interest payments are unconscionable either in accordance with the unwritten law or pursuant to s 12CB of the ASIC Act. I do not accept this submission.
[15] [2012] QSC 31.
In PSAL the Court found the lender’s conduct enforcing interest rate provisions in a loan agreement constituted unconscionable conduct in circumstances where the lender was entitled to charge a default rate of interest of 7.5 per cent and to capitalise such interest for years following the default. At the same time, the lender charged the borrowers for costs and expenses associated with the default and the administration of the loan default and interest accrued on those amounts at the default rate. The Court found that this was not reasonably necessary to protect the lender’s legitimate interests. However, the Court did not find that the rate of interest of 7.5 per cent per month was unconscionable for the original term of the loan and it would not have been unjust for the higher or default rate to be charged for a period of a few months during which time the borrowers were given a reasonable opportunity to refinance. In PSAL the loan was made in 2009 for a lending period of two months. When the borrower failed to repay the loan at the conclusion of its terms and fell into default, the lender continued to charge the penalty rate of interest throughout 2010 and 2011 without taking steps to enforce its security. As a result, the borrowers’ indebtedness rapidly escalated. The capitalisation of interest over a number of years at interest rates that were negotiated in the context of a short term loan placed the borrowers and the guarantor in a position of great disadvantage. At a certain point the borrowers lost any realistic prospect of being able to refinance the mortgage debt.
I do not accept that the conduct of the plaintiff in this matter in enforcing the interest rate provisions of the loan agreements is unconscionable. There is no evidence that the defendants were in a position of special, or indeed any, vulnerability which would attract intervention on this ground in accordance with the unwritten law. There is no evidence of any obvious difference in bargaining power, let alone one which placed the defendants in a position of special disadvantage affecting their capacity to take appropriate steps to protect their interests.
The second loan agreement was executed by Mr Moore for and on behalf of the first defendant and was witnessed by a solicitor. Apparently the defendants had access to legal advice in relation to that loan agreement. It is not clear whether they had access to legal advice in respect of the first loan agreement and the deed of variation but there is no reason to infer to the contrary. Further, the loan agreements were for loans for a period of six months, 12 months and approximately nine months. Interest was not payable until the expiry of the loan term. As the defendants accept, this was not long-term lending.[16]
[16] Sub-paragraph 8.2 of the Defence.
The only evidence of the purpose of the borrowings is that the loans were described in the loan documents as being for the purpose of “commercial business purposes” and the “discharge of other business loan”. There was no delay on the part of the plaintiff in acting upon the defendants’ default and seeking to enforce its securities.
Accordingly, I reject the submission that the conduct of the plaintiff was unconscionable either in accordance with the unwritten law or pursuant to s 12CB. There is nothing inequitable or even unfair, in keeping the defendants to the bargain that they struck. The defendants have taken the full benefit of the moneys lent to them and made no complaint of any aspect of the loan moneys or the loan facilities until they defaulted on the terms and conditions of the loans. It follows that the defendants’ submission that the notice of intention to sell was invalid for the purpose of s 132 of the RPA must be rejected. The defendants have failed to prove that there was a significant overstatement of their liability in the notice of intention to sell.
In any event, had I come to the contrary conclusion, the consequence would have been that the interest rate provisions of the loan agreements would have been unenforceable. Such a finding, however, would not have resulted in the invalidity or unenforceability of the plaintiff’s securities.
Relief
In the circumstances the plaintiff is entitled to the orders it has sought. The defendants submit that pursuant to SCR 204 the Court is not to give judgment in an action for possession unless satisfied that appropriate notice of action has been given to those presently in occupation of the land. I do not accept this submission. SCR 204 applies to an action for possession in which the plaintiff seeks an order enforceable against anyone who may happen to be in possession of, or physically present on, the land. The plaintiff only seeks orders against the defendants. I am satisfied that appropriate notice of the action has been given to the defendants.
In addition, the plaintiff seeks a declaration that the yacht, Librarian, is mortgaged security. By the second loan agreement the defendants agreed to provide the yacht as mortgaged property for the purpose of securing the advance made pursuant to that agreement. On 27 September 2017 the plaintiff registered its security interest in the yacht on the Personal Property Security Register.[17] In my view the plaintiff is entitled to a declaration accordingly.
[17] Registration No. 201709270011198.

The plaintiff is to bring into Court minutes of order that reflect these reasons.