CITATION: PROVIDENT CAPITAL LTD v PRINTY [2008] NSWCA 131 This decision has been amended. Please see the end of the judgment for a list of the amendments.
FILE NUMBER(S): 40255/07
HEARING DATE(S): 22 May 2008
JUDGMENT DATE: 5 June 2008
PARTIES: Provident Capital Ltd (Appellant/First Cross-Respondent) James Richard Printy (First Respondent/Cross-Appellant) Registrar-General of New South Wales (Second Respondent/Second Cross-Respondent)
JUDGMENT OF: Tobias JA McColl JA Basten JA
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): SC 20430/05
LOWER COURT JUDICIAL OFFICER: Studdert J
LOWER COURT DATE OF DECISION: 30 March 2007
LOWER COURT MEDIUM NEUTRAL CITATION: [<i>Printy v Provident Capital Limited</i>] [2007] NSWSC 287
COUNSEL: C E Adamson SC/V E Whittaker (Appellant) M Ashhurst SC/S O'Brien (First Respondent) P Walsh (Second Respondent)
SOLICITORS: Tiernan & Associates, Cronulla (Appellant) Lyndon Sayer-Jones & Associates (First Respondent) Department of Lands (Second Respondent)
CATCHWORDS: CONVEYANCING – indefeasibility of title – effect of registration of forged mortgage – whether indefeasibility attaches to payment covenant in deed of loan – [<i>Real Property Act</i>] 1900 (NSW) ss 41, 42, 57 CONTRACTS – interaction between principles of contractual interpretation and the [<i>Real Property Act</i>] 1900 (NSW) – application of doctrine of incorporation to registered mortgage and deed of loan MORTGAGES – power of sale – whether power of sale activated – identification of default – effect of exercise of power of sale – [<i>Real Property Act</i>] 1900 (NSW) s 57(2)
LEGISLATION CITED: [<i>Land Title Act</i>] 1994 (Qld), s 62 [<i>Real Property Act</i>] 1900 (NSW), ss 3, 41, 42, 52, 57, 58, 65, 80A, 120, 134
[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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AGLC
Provident Capital Ltd v Printy [2008] NSWCA 131
Case
[2008] NSWCA 131
Decision Date
CaseChat Overview and Summary
Provident Capital Ltd appealed to the New South Wales Court of Appeal against a decision of the primary judge concerning a forged mortgage. The dispute involved the enforceability of a registered mortgage over land owned by the respondents, Mr. and Mrs. Printy, which had been executed by Mr. Printy using a forged signature of Mrs. Printy. Provident Capital sought to enforce the mortgage and exercise its power of sale.
The Court of Appeal was required to determine whether the indefeasibility of title provisions under the *Real Property Act 1900* (NSW) extended to the payment covenants contained within the registered mortgage, despite the forgery. It also had to consider the interaction between the principles of contractual interpretation and the *Real Property Act*, specifically whether a separate deed of loan, to which the mortgage referred, was incorporated into the registered mortgage in a way that affected the enforceability of the payment obligations. The court also considered whether a default had occurred that would activate the power of sale.
The Court of Appeal, by majority, held that the indefeasibility of title conferred by registration under section 42 of the *Real Property Act* extended to the personal covenants within the registered mortgage, including the covenant to repay the loan. The court reasoned that the mortgage, as a registered instrument, conferred an indefeasible title to the mortgagee, Provident Capital, in respect of the rights and obligations it created, notwithstanding the forgery of Mrs. Printy's signature. The court found that the deed of loan was incorporated by reference into the mortgage, and the terms of the deed, including the payment obligations, were therefore part of the registered mortgage. The court also found that a default had occurred, activating the power of sale.
Consequently, the Court of Appeal dismissed Provident Capital's appeal and also dismissed the cross-appeal filed by the first respondent.
Orders
Orders of the court
(1) Dismiss the appeal. (2) Dismiss the cross-appeal filed by the first respondent.