Provident Capital Ltd v Printy

Case [2008] NSWCA 131


NEW SOUTH WALES COURT OF APPEAL

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

CATEGORY:
Principal judgment

CASES CITED:
[<i>Barry v Heider</i>] [1914] HCA 79; 19 CLR 197
[<i>Chandra v Perpetual Trustees Victoria Ltd</i>] [2007] NSWSC 694; NSW ConvR 56-187
[<i>Consolidated Trust Company Limited v Naylor</i>] [1936] HCA 33; 55 CLR 423
[<i>English Scottish and Australian Bank Limited v Phillips</i>] [1937] HCA 6; 57 CLR 302
[<i>French v Queensland Premier Mines Pty Ltd</i>] [2006] VSCA 287
[<i>Grgic v Australian and New Zealand Banking Group Ltd</i>] (1994) 33 NSWLR 202
[<i>Groongal Pastoral Company Ltd (In liq) v Falkiner</i>] [1924] HCA 54; 35 CLR 157
[<i>Grundy v Ley</i>] [1984] 2 NSWLR 467
[<i>Karacominakis v Big Country Developments Pty Ltd</i>] [2000] NSWCA 313; 10 BPR 9784
[<i>Lansen v Olney</i>] [1999] FCA 1745; 100 FCR 7
[<i>Measures v McFadyen</i>] [1910] HCA 74; 11 CLR 723
[<i>McVeigh (in the matter of Piccolo) v National Australia Bank Ltd</i>] [2000] FCA 187
[<i>Partridge v McIntosh and Sons Ltd</i>] [1933] HCA 38; 49 CLR 453
[<i>Perpetual Trustees Victoria Ltd v Tsai</i>] [2004] NSWSC 745; 12 BPR 22,281
[<i>PT Ltd v Maradona Pty Ltd</i>] (1992) 25 NSWLR 643
[<i>Pyramid Building Society (In liq) v Scorpion Hotels Pty Ltd</i>] [1998] 1 VR 188
[<i>Queensland Premier Mines Ltd v French</i>] [2007] HCA 53; 82 ALJR 115
[<i>Small v Tomassetti</i>] [2001] NSWSC 1112; [2002] NSW ConvR 56-011
[<i>Smith v Chadwick</i>] (1882) 20 Ch D 27
[<i>Travinto Nominees Pty Ltd…

Continue reading Provident Capital Ltd v Printy

Sign in free to access the full text

Details
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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.