Perpetual Trustees Victoria Ltd v Cox

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Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Perpetual Trustees Victoria Ltd v Cox [2014] NSWCA 328
Hearing dates:15 August 2014
Decision date: 18 September 2014
Before: Macfarlan JA at [1];
Emmett JA at [2];
Leeming JA at [9]
Decision:

1. Appeal dismissed.

2. Cross-appeal dismissed.

3. Perpetual to pay the costs of Mr and Mrs Cox in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: APPEALS - challenge to primary judge's findings of fact - whether findings glaringly improbable - whether open to primary judge to determine allegation of forgery on onus
MORTGAGES - forged direction to disburse funds - whether obligation to repay extended to sums disbursed pursuant to forged direction
PRINCIPAL AND AGENT - ratification - whether ratification where no knowledge of forged direction
Legislation Cited: Contracts Review Act 1980 (NSW)
Evidence Act 1995 (NSW), s 140
Real Property Act 1900 (NSW), ss 3, 57(2)(b)
Trade Practices Act 1974 (Cth), ss 52, 87
Cases Cited: Beaufort Developments (NI) Ltd v Gilbert-Ash NI Ltd [1999] 1 AC 266
Briginshaw v Briginshaw (1938) 60 CLR 336
Bunnings Group Ltd v Borg [2014] NSWCA 240
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; 162 FCR 466
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 88 ALJR 447
English Scottish & Australian Bank Ltd v Phillips (1937) 57 CLR 302
Fast Fix Loans Pty Ltd v Samardzic [2011] NSWCA 260; 15 BPR 29,445
Fox v Percy [2003] HCA 22; 214 CLR 118
Jones v Dunkel (1959) 101 CLR 298
Leyborne v Permanent Custodians Ltd [2010] NSWCA 78
Minogue v Rudd [2013] NSWCA 345
Mitchell Morgan Nominees Pty Ltd v Vella [2011] NSWCA 390
Monie v Commonwealth of Australia [2005] NSWCA 25; 63 NSWLR 729
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Perpetual Trustees Victoria Ltd v English [2010] NSWCA 32
Printy v Provident Capital Limited [2007] NSWSC 287
Provident Capital Ltd v Papa [2013] NSWCA 36; 84 NSWLR 231
Provident Capital Ltd v Printy [2008] NSWCA 131
Puglia v RHG Mortgage Corporation Ltd [2013] WASCA 143
RPS v The Queen [2000] HCA 3; 199 CLR 620
Sargent v ASL Developments Ltd (1974) 131 CLR 634
Watson v Foxman (1995) 49 NSWLR 315
Texts Cited: J Stoljar, "Mortgages, indefeasibility and personal covenants to pay" (2008) 82 ALJ 28
Category:Principal judgment
Parties: Perpetual Trustees Victoria Ltd (Appellant)
Raymond Allan Cox (1st Respondent)
Susan Jane Cox (2nd Respondent)
Representation: Counsel:
S Docker / J…
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Details
Case
[2014] NSWCA 328
Decision Date

CaseChat Overview and Summary

Perpetual Trustees Victoria Ltd appealed to the Court of Appeal of New South Wales against findings of fact made by the primary judge in a dispute concerning a mortgage. The dispute centred on whether the mortgagor, Mr Cox, was liable to repay sums disbursed by the mortgagee, Perpetual Trustees, pursuant to a forged direction to disburse funds. Mrs Cox was also a party to the proceedings.

The Court of Appeal was required to determine whether the primary judge's findings of fact were so glaringly improbable as to be incapable of being supported by evidence, and whether it was open to the primary judge to determine the allegation of forgery based on the onus of proof. A further issue concerned whether the mortgagor had ratified the forged direction to disburse funds, notwithstanding a lack of knowledge of the forgery at the time of any purported ratification.

The Court of Appeal found that the primary judge's findings of fact were open to be made and were not so glaringly improbable as to warrant intervention on appeal. The Court affirmed the principle that the onus of proving a forgery rests on the party alleging it. Furthermore, the Court held that ratification requires knowledge of the act being ratified, and therefore, Mr Cox could not have ratified the forged direction to disburse funds without knowledge of the forgery.

Consequently, the appeal and cross-appeal were dismissed, and Perpetual Trustees Victoria Ltd was ordered to pay the costs of Mr and Mrs Cox in the Court of Appeal.

Orders

Orders of the court

1. Appeal dismissed.

2. Cross-appeal dismissed.

3. Perpetual to pay the costs of Mr and Mrs Cox in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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