Permanent Custodians Ltd v Tony Geagea - [2010] NSWSC 117

CITATION: Permanent Custodians Ltd v Tony Geagea & Ors [2010] NSWSC 117

HEARING DATE(S): 8 July 2009

JUDGMENT DATE :
2 March 2010

JUDGMENT OF: Hidden J

DECISION: Order for separate decision of question made.

CATCHWORDS: CIVIL PROCEDURE - motion for order directing separate decision of question in proceedings - proceedings for possession of land - allegation that defendants' signatures on mortgage forged - separate question whether any debt secured by mortgage - possible joinder of Registrar-General

LEGISLATION CITED: Uniform Civil Procedure Rules
Fair Trading Act 1987
Credit (Home Finance Contracts) Act 1984
Contracts Review Act 1980
Trade Practices Act 1974 (Cth)
Real Property Act 1900

CATEGORY: Principal judgment

CASES CITED: Perpetual Trustees Victoria Ltd v English [2009] NSWSC 478
Yazgi v Permanent Custodians Ltd [2007] NSWCA 240
Perpetual Trustees Victoria Ltd v Menzies (Unreported, 16 October 2008)
Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718, 217 ALR 495
Olbers Co Ltd v Commonwealth (No 3) FCA 651
Tepko Pty Ltd v Water Board [2001] HCA 19, 206 CLR 1
Bass v Permanent Trustee Co Ltd [1999] HCA 9, 198 CLR 334
Jacobson v Ross [1995] 1 VR 337

PARTIES: Permanent Custodians Ltd (Plaintiff)
Tony Geagea (First Defendant)
Charbel Geagea (Second Defendant)
David Geagea (Third Defendant)
Phillip Howard Symonds (also known as Philip Howard Symonds) (Fourth Defendant)
Christopher James Swanson (Fifth Defendant)
Terence Edmund Ledlin (Sixth Defendant)

FILE NUMBER(S): SC 2005/00269110

COUNSEL: SB Docker (Plaintiff)
J Baird (Second & Third Defendants)
J Downing (Fourth, Fifth & Sixth Defendants)

SOLICITORS: Kemp Strang (Plaintiff)
Simmons & McCartney Lawyers (Second & Third Defendants)
HWL Ebsworth Lawyers ( Fourth, Fifth & Sixth Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Tuesday 2 March 2010
2005/00269110 PERMANENT CUSTODIANS LTD

v

Tony GEAGEA & Ors
JUDGMENT

1 HIS HONOUR: The plaintiff, Permanent Custodians Ltd, has commenced proceedings in this Court for possession of a property at Earlwood of which the first three defendants are the registered proprietors. Those three defendants are brothers: Tony, Charbel and David Geagea. The second and third defendants, Charbel and David Geagea, have filed a motion pursuant to UCPR r 28.2 for an order for the separate decision of a question arising in the proceedings. That order is opposed by the plaintiff. Before turning to the question, it is necessary to sketch the nature of the proceedings and the issues arising in it.

2 It is convenient to refer to the first three defendants by their given names: Tony, Charbel and David. It is the plaintiff’s case that the three of them entered into a loan agreement with it for a substantial sum to enable Tony to purchase another property at Clovelly, and that they mortgaged the Earlwood property to secure that loan. Following default in repayment of the loan, the plaintiff seeks possession of the Earlwood property pursuant to the mortgage (and other relief).

3 Both the loan agreement and the mortgage bear signatures purporting to be those…

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: [2010] NSWSC 117
Decision Date: 2 March 2010

CaseChat Overview and Summary

The case of Permanent Custodians Limited versus Tony Geagea was heard in the Federal Court of Australia. The plaintiff, Permanent Custodians Limited, sought a possession order for a property, alleging that the defendants, including Tony Geagea, had executed a mortgage document that secured a debt owed to the plaintiff. Tony Geagea, one of the defendants, contested the validity of the mortgage document, claiming that his signature on the document was forged. The court was required to determine whether the signature was indeed forged and if there was any debt secured by the mortgage. Furthermore, the court needed to decide if the Registrar-General should be joined as a party to the proceedings.

The court examined the evidence presented to determine the authenticity of Tony Geagea's signature on the mortgage document. It was noted that the plaintiff had not provided any evidence to prove the genuineness of the signature, and there was evidence to suggest that the signature might be a forgery. The court also considered whether there was any debt secured by the mortgage, as this was a separate question from the issue of the signature's authenticity. Additionally, the court explored the possibility of joining the Registrar-General as a party to the proceedings, as this might be necessary to determine the status of the mortgage and any registered interests in the property.

In its reasoning, the court found that there was insufficient evidence to prove that Tony Geagea's signature on the mortgage document was genuine. Consequently, the court held that the signature was likely forged, and therefore, the mortgage document was invalid. As a result, the court could not make a possession order in favour of the plaintiff based on the alleged mortgage. The court also found that the question of whether any debt was secured by the mortgage was a separate issue that needed to be resolved in a different proceeding. Lastly, the court concluded that the Registrar-General should be joined as a party to the proceedings to determine the status of the mortgage and any registered interests in the property. The court made an order for the proceedings to be stayed until the joinder of the Registrar-General could be effected.

Orders