Perpetual Trustee Company Ltd v Ishak

Perpetual Trustee Company Ltd sued Ishak, along with other defendants, over misrepresentations made during a mortgage transaction. The dispute involved allegations of misleading and deceptive conduct under the Fair Trading Act 1987, concerning the status of contracts and interests in land. The court was tasked with determining whether the conduct of the conveyancer and others constituted misleading or deceptive actions, and whether these actions breached specific provisions of the Act.

The court examined several legal issues, including whether the conveyancer's representations to the incoming mortgagee and the title insurer about exchanged contracts were misleading or deceptive. It also assessed whether the conveyancer's conduct misled the title insurer and the incoming mortgagee, and whether these actions constituted misrepresentations under the Act. Additionally, the court considered whether there was a duty of care owed by the conveyancer to the lender and if the conveyancer breached this duty by making misrepresentations.

The court concluded that the conveyancer's conduct was misleading or deceptive as it falsely represented the status of contracts and the borrower's interest in the property. It found that the conveyancer's actions constituted misleading or deceptive conduct under the Fair Trading Act 1987. The court further determined that the conveyancer, the lender's solicitor, and the fraudster were all concurrent wrongdoers in causing the lender to advance loan funds. It apportioned liability for the loss, attributing 50% to the fraudster, 25% to the conveyancer, and 25% to the solicitor.

The court ordered that the fraudster, Ishak, was liable for 50% of the lender's loss, the conveyancer was liable for 25%, and the solicitor was liable for 25%. This apportionment reflected the contribution of each party to the misleading or deceptive conduct that caused the lender's loss.