Permanent Custodians Limited v Geagea (No 2) - [2014] NSWSC 562

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Permanent Custodians Limited v Geagea (No 2) [2014] NSWSC 562
Hearing dates: 13 May 2013, 3 - 7 June 2013, 11 June 2013, 23 - 25 October 2013
Decision date: 13 May 2014
Jurisdiction: Common Law
Before: Rothman J
Decision:
1.   Judgment for the plaintiff against the fourth, fifth and sixth defendants;
2.   The fourth, fifth and sixth defendants shall pay the plaintiff's costs of and incidental to these proceedings;
3.   Leave is granted to the fourth, fifth and sixth defendants to address in writing, within twenty-one (21) days of the date hereof, the issues of the effect of proportionate liability finding on the amount of the damages to be awarded and on any damages or contribution under the cross-claim;
4.   Each of the plaintiff and the fourth, fifth and sixth defendants have leave to apply in writing for any special or different order as to costs within twenty one (21) days hereof. Any other party affected by any such application may respond within twenty-one (21) days of receipt of the application. Any such application and response shall enclose, or be made by, a submission of no more than three (3) pages and shall enclose any relevant documents.

Catchwords: MORTGAGOR and MORTGAGEE - forged signatures - allegedly witnessed by solicitor - settlement as against mortgagors
LEGAL PRACTITIONERS - breach of warrant of authority in disbursement of loan funds - solicitor warranting that he acted for persons one of whom he did not so act
CONSUMER PROTECTION - misleading or deceptive conduct - solicitor's warranty of authority - instructions not received from one mortgagor
Legislation Cited: Civil Liability Act 2002 (NSW)
Competition and Consumer Act 2010 (Cth)
Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Bebonis & Another v Angelos & Others (2003) 56 NSWLR 127
BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 3) [2009] FCA 1087
Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112
Commonwealth Bank of Australia v Hamilton [2012] NSWSC 242
Firbank's Executors v Humphreys (1886) 18 QBD 54
Kahn as Trustee for the Khan Family Trust v Hadid [2008] NSWSC 119
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254
Penn v Bristol & West Building Society [1997] 1 WLR 1356
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Texts Cited: Agency (18th edition)
Category: Principal judgment
Parties: Permanent Custodians Limited (Plaintiff)
Tony Geagea (First Defendant)
Charbel Geagea (Second Defendant)
David Geagea (Third Defendant)
Phillip Symonds (Fourth Defendant)
Christopher Swanson (Fifth Defendant)
Terence Ledlin (Sixth Defendant)
Representation:
Counsel:
S B Docker (Plaintiff)
No appearance (First Defendant)
T Rabadi (Second and Third Defendants)
J Downing (Fourth, Fifth and Sixth Defendants)
Solicitors:
Kemp Strang (Plaintiff)
No appearance (First Defendant)
Levitt Robinson Solicitors (Second and Third Defendants)
HWL Ebsworth Lawyers (Fourth, Fifth and Sixth Defendants)

File Number(s): 2005/269110
Publication restriction:

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.

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Details

Case: [2014] NSWSC 562
Decision Date: 13 May 2014

CaseChat Overview and Summary

The case of Permanent Custodians Limited v Geagea (No 2) was heard by the Federal Court of Australia and involved a dispute concerning the validity of signatures on a mortgage document and the disbursement of loan funds by a solicitor. The mortgagor, Mr Geagea, sought to challenge the enforceability of the mortgage on the basis that his signature on the mortgage document had been forged. Additionally, it was claimed that the solicitor who handled the disbursement of loan funds had breached the warrant of authority by certifying that he had acted for all parties, despite not having received instructions from one of the mortgagors.

The central legal issues before the court were whether the signatures on the mortgage document were indeed forged and whether the solicitor's actions in certifying authority constituted a breach of the warrant of authority. The court had to determine the validity of the mortgage, the enforceability of the mortgagee's claim, and the implications of the solicitor's alleged misconduct on the disbursement of the loan.

The court found that the signatures on the mortgage document were indeed forged and that the solicitor had breached the warrant of authority by certifying that he acted for all parties involved, despite not having received instructions from one of the mortgagors. The court held that the mortgage was invalid due to the forgery and that the mortgagee could not enforce the mortgage against the mortgagors. Additionally, the court found that the solicitor's actions constituted misleading or deceptive conduct under consumer protection laws. The court ordered that the mortgagee take steps to rectify the situation, including potentially refunding the loan amount to the mortgagors.

Orders