Perpetual Trustees Victoria Ltd v Cox

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.