Van den Heuvel v Perpetual Trustees Victoria Limited

In *Van den Heuvel v Perpetual Trustees Victoria Limited*, the New South Wales Court of Appeal considered a dispute arising from a mortgage over jointly owned property where one co-owner, the husband, forged the signature of the other co-owner, the wife. The mortgagee sought possession of the property, while the wife sought to resist this claim and obtain compensation from the Torrens Assurance Fund for the loss of her interest.

The Court was required to determine several key legal issues. Firstly, it had to consider whether the mortgage was binding on the husband, despite the forged signature of his co-owner. Secondly, the Court needed to assess whether the wife was entitled to compensation from the Torrens Assurance Fund for the loss of her aliquot share in the property due to the mortgage. Finally, the Court considered the application of the Consumer Credit Code to the transaction, specifically whether an implied agreement secured by the mortgage constituted a "credit contract" for the purposes of relief available to a statutory mortgagor.

The majority of the Court held that the mortgage was binding on the husband. Regarding the wife's claim, the Court determined that she was entitled to compensation from the Torrens Assurance Fund under section 129 of the *Real Property Act 1900* for the loss of her aliquot share. The calculation of this compensation was to take into account her beneficial interest at the time of the mortgage registration. The Court also made a declaration that it would be within the discretion of the judge hearing further proceedings to permit the wife to lead evidence to demonstrate that her beneficial interest exceeded 50% at that time. The appeal concerning the husband was dismissed with costs, while the appeal concerning the wife was allowed in part.