Williams v Turner

[2008] QSC 327

SUPREME COURT OF QUEENSLAND

CITATION:

Williams v Turner [2008] QSC 327

PARTIES:

COLIN JOHN WILLIAMS AND GAIL CHRISTINE WILLIAMS AS ADMINISTRATORS OF THE ESTATE OF JOHN LEFRIC WILLIAMS
(applicants)
v
NOEL HENRY TURNER AND HELEN CYNTHIA TURNER
(respondents)

FILE NO:

9888/08

DIVISION:

Trial Division

PROCEEDING:

Originating application

DELIVERED ON:

10 December 2008

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

17 November 2008

JUDGE:

Wilson J

ORDERS:

1.  Declare that a mortgage entered on the Titles of Lots 1, 2 and 3 Crown Plan MCH810284 County of March Parish of Gympie being Mortgage number 702744944 in favour of the Respondents is void;

2. Pursuant to s 187 of the Land Title Act 1994 the Registrar is directed to cancel and remove from the current particulars of the freehold land register Mortgage number 702744944 on the Titles of Lots 1, 2 and 3 Crown Plan MCH810284 County of March Parish of Gympie;

3.  Order that the Respondents pay the Applicants half of their costs of and incidental to the Application on the standard basis.

CATCHWORDS:

CONTRACTS – PARTICULAR PARTIES - PRINCIPAL AND AGENT – AUTHORITY OF AGENTS – POWERS OF ATTORNEY – EXTENT OF AUTHORITY UNDER PARTICULAR POWERS – where s 169 of the Property Law Act 1974 provided that instrument creating power of attorney be signed and sealed by, or by direction and in the presence of, the donor of the power – exception where power of attorney created by and contained in instrument of mortgage -  where power of attorney was contained in an acknowledgement of debt not executed as a deed – where agreement to grant a mortgage – whether the power of attorney was valid

MORTGAGES – MORTGAGES AND CHARGES GENERALLY – THE MORTGAGE – FORM, VALIDITY AND EFFECT – where the mortgage was executed by the respondents pursuant to power of attorney – where agreement to grant mortgage to contain such terms as certain solicitors should set out not inconsistent with terms of acknowledgement of debt – where mortgage drawn by other solicitors - whether the respondents acted beyond their authority by inserting a default interest clause – where the mortgage was registered – whether an exception to indefeasibility applies – whether there was “fraud” by a “registered proprietor”

COUNSEL:

RW Morgan for the applicants

SJ English for the respondents

SOLICITORS:

Jeffery Cuddihy & Joyce for the applicants

Gregg Lawyers for the respondents

1. Wilson J: This is an application for a declaration that a power of attorney is invalid and unenforceable and for an order that it be removed from the register,[1] and for a declaration that a mortgage is invalid and unenforceable and that it be removed from the register.[2]

The facts

[1]I.e. the Power of Attorney Register under s 133 of the Land Title Act 1994.

[2]I.e. the Freehold Land Register under s 27 of the Land Title Act 1994.

1. The applicants are the administrators of the estate of John Lefric Williams ("Mr Williams"), who died on 7 August 2003.

1. By July 1989 Mr…