Tycho Pty Ltd v Trustworthy Nominees Pty Ltd

Tycho Pty Ltd and Raymond Leslie Vincent, the sole director of Tycho, seek summary judgment against Trustworthy Nominees Pty Ltd and the Registrar of Titles over the registration of a mortgage over 21 of the 23 lots of land Tycho owns at Maryvale near Warwick. The mortgage, which Trustworthy claims is valid and enforceable, was executed on or around 10 May 2017. It purports to be signed by Mr Vincent, but he denies signing it and expert evidence supports his denial. The signature appears to be witnessed by a person purporting to be a Commissioner for taking affidavits in the Supreme Court of South Australia. The plaintiffs and defendants agree that the mortgage is a forgery. The plaintiffs seek orders for the Registrar to remove the mortgage from the register. In the alternative, they seek compensation from the State of Queensland. Two parties by counterclaim and two third parties seek orders that they not be bound by the judgment. The court must decide whether the purported mortgage is a forgery and, if so, whether Trustworthy breached s 11A(2) of the Land Title Act 1994.

The court found that the first defendant has no real prospect of successfully defending the claim that the mortgage is a forgery. The plaintiffs provided a solid body of evidence that the mortgage is a forgery, including the witness's statutory declaration, Mr Vincent's evidence that he did not sign the mortgage, and the expert handwriting opinion. The court also found that there is no need for a trial of the issue of whether the mortgage is a forgery. The plaintiffs and defendants have agreed that the mortgage is a forgery. The court also found that the plaintiffs and defendants have made tactical decisions that the witness's statutory declaration comes into evidence as between them. The court rejected the objections to the admission of the statutory declaration on the basis that the plaintiffs and defendants have made tactical decisions that the statement comes into evidence as between them. The court noted that the second and third defendants by counterclaim and the two third parties object to being bound by any determination as to the validity of the mortgage between Tycho and Trustworthy. The court found that neither the second and third defendants by counterclaim nor the two third parties are bound by the judgment given in favour of the plaintiffs against the first and second defendants.

The court made declarations that the documents pleaded in paragraphs 21(a) to (g) and (i) to (m) of the amended statement of claim filed on 3 April 2018 are void and of no force or effect. The court also declared that the signature on the mortgage having dealing number 718071834 purporting to be that of Mr Vincent is not his and was not signed by a person with the authority of Tycho or Mr Vincent to do so. The court ordered the Registrar to cancel the mortgage having dealing number 718071834 registered on the title to each of the following lots: lot 3 on Registered Plan 170920, Title Reference 16137223; and lots 1 to 22 on Group Titles Plan 2987, Title Reference 18327029 to 18327050 respectively. The court dismissed the claim against the third defendant. The court also ordered that neither the second and third defendants by counterclaim nor the two third parties are bound by the judgment given in favour of the plaintiffs against the first and second defendants. The court ordered the first defendant to pay the plaintiffs' costs, including any reserved costs, of the proceeding including the application. The court otherwise made no orders as to costs.