The Trust Company Ltd v Feiner

The Trust Company Limited, as trustee for the Mortgage Securities Issue Trust, sought a declaration of its rights and remedies against the defendant, Feiner, in relation to a forged mortgage over a property. The Trust Company also sought an assessment of damages and costs in relation to a default judgment obtained on cross-claims. The case was heard in the Supreme Court of New South Wales. The primary legal issue before the court was the assessment of damages to be awarded to the Trust Company in light of the forged mortgage over the property. The court was also required to determine whether the sum paid to settle the proceedings should be considered in assessing the damages, and whether interest should be awarded on that sum. Additionally, the court had to consider the costs associated with the default judgment and the subsequent settlement.

The court found that the damages should be assessed based on the value of the property at the time of the forged mortgage, rather than the settlement amount. The court held that the settlement amount should not be considered in the assessment of damages, as it did not represent the actual loss suffered by the Trust Company. The court also determined that interest should not be awarded on the settlement amount, as it was not a debt or liability of the Trust Company. Regarding the costs, the court held that the costs should follow the event, meaning that the party who obtained the default judgment should bear the costs. The court rejected the argument that the case raised a point of general principle, and thus no general principle costs were awarded.

The final orders of the court were that the Trust Company was entitled to damages in the amount of $500,000, plus interest from the date of the forged mortgage until the date of judgment. The court also ordered that the defendant bear the costs of the proceeding, including the costs of the default judgment and the subsequent settlement. The court's decision provides guidance on the assessment of damages in cases involving forged mortgages and the allocation of costs in relation to default judgments.