Perpetual Trustees Victoria Ltd v Cipri - [2008] NSWSC 1128

CITATION: PERPETUAL TRUSTEES VICTORIA LIMITED v CIPRI & ANOR [2008] NSWSC 1128

HEARING DATE(S): Wednesday 30 July 2008

JUDGMENT DATE :
29 October 2008

JURISDICTION: Common Law

JUDGMENT OF: Hall J at 1

DECISION: (1) An order that the first and second defendants give the plaintiff possession of the whole of the land comprised in Certificate of Title Folio Identifier Lot 120 in Deposited Plan 255678 and known as 48 Beechwood Avenue, Greystanes NSW 2145. (2) That a writ of possession issue, such writ not to issue before eight weeks from the making of final orders. (3) An order that the second defendant pay to the plaintiff the amount of outstanding loan monies together with fees, charges, expenses and interest calculated in accordance with the Loan Contract dated 17 June 2004 from 20 November 2006 to the date of making final orders. (4) An order that the first cross-claim be dismissed. (5) An order that the first defendant/cross-claimant is entitled to payment of compensation from the Torrens Assurance Fund in respect of loss arising from the conduct of Mrs Sandria Delores Cipri and from an act of the Registrar-General as specified in s.129(1) of the Real Property Act 1900. (6) Judgment for the cross-claimant on the second cross-claim (“Domenico Cipri”) against the cross-defendant to the second cross-claim (“Registrar- General”) for $280,000 plus costs. (7) The Registrar-General to pay the costs of Domenico Cipri of the second cross-claim. (8) An order that the third cross-claimant, the Registrar-General, is entitled to be indemnified by the third cross-defendant, Sandria Delores Cipri in respect of compensation to which the first defendant, Mr Domenico Cipri, is entitled from the Torrens Assurance Fund. (9) An order that the third cross-defendant, Sandria Delores Cipri, pay the Registrar-General’s costs of the third cross-claim.

CATCHWORDS: MORTGAGE – mortgagees right to order for possession under mortgage where signature of one joint tenant forged by the other joint tenant - estate and interest of mortgagors secured by the mortgage – registered proprietors of land were joint tenants – registered mortgage and loan agreement – both forged by one joint tenant – loan agreement provided for joint and several liability – REAL PROPERTY – effect of registration of forged mortgage – whether any moneys owing under the loan contract secured upon innocent party’s interest in property – whether personal equity in favour of the innocent mortgagor arose – whether relief under Contracts Review Act available depended upon establishing that a contract existed between the mortgagee and joint proprietor whose signature was forged on the agreement and mortgage – s.36(11) Real Property Act 1900 – that upon registration a dealing has “the effect of a deed duly executed by the parties who signed it” did not apply as the mortgage was not signed by the first defendant mortgagor

LEGISLATION CITED: Contracts Review Act 1980
Real Property Act 1990
Sydney Water Act 1994
Uniform Civil Procedure Rules 2005

CASES CITED: Atwood v Ernest (1853) 138 ER 1449
Bahr v Nicolay (No 2) (1988) 164…

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: [2008] NSWSC 1128
Decision Date: 29 October 2008

CaseChat Overview and Summary

Perpetual Trustees Victoria Limited, as the mortgagee of certain property, sought possession of the property against Cipri, a joint tenant of the property, following the default of the other joint tenant. The property was subject to a mortgage and loan agreement that had been signed by Cipri, but the other joint tenant had forged Cipri's signature. The dispute centred on whether the mortgagee could order possession despite the forgery, and whether any moneys owing under the loan contract were secured upon Cipri's interest in the property. The case required the court to determine the effect of the registration of the forged mortgage, whether a personal equity arose in favour of the innocent mortgagor, and whether relief under the Contracts Review Act was available.
The court considered the provisions of the Real Property Act 1900, which state that a registered dealing has the effect of a deed duly executed by the parties who signed it. However, as the mortgage was not signed by Cipri, this provision did not apply. The court held that the innocent party's interest in the property was not secured by the forged mortgage, and that no personal equity arose in favour of Cipri. The court also found that relief under the Contracts Review Act was not available as there was no contract between the mortgagee and the joint proprietor whose signature was forged on the agreement and mortgage. The court ordered that the mortgagee's application for possession be dismissed.

Orders