Yazgi v Permanent Custodians Ltd

Case [2007] NSWCA 240


NEW SOUTH WALES COURT OF APPEAL

CITATION:      Sabah Yazgi v Permanent Custodians Limited [2007]  NSWCA 240

FILE NUMBER(S):
40232/07

HEARING DATE(S):               13 August 2007, 5 September 2007

JUDGMENT DATE: 12 September 2007

PARTIES:
Sabah Yazgi (Appellant)
Permanent Custodians Limited (Respondent)

JUDGMENT OF:       Beazley JA Ipp JA Tobias JA   

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):          SC 11886/2004

LOWER COURT JUDICIAL OFFICER:     Harrison AsJ

LOWER COURT DATE OF DECISION:    30 March 2007

LOWER COURT MEDIUM NEUTRAL CITATION:
Permanent Custodians v Yazgi & Anor [2007] NSWSC 279

COUNSEL:
PM Lane;  E Elbourne (Appellant)
RG Forster SC;  BJ Burke (Respondent)

SOLICITORS:
La Rosa Izzo & Co (Appellant)
Hicksons (Respondent)

CATCHWORDS:
MORTGAGE – estate and interest of mortgagor and mortgagee – registered proprietors of land were joint tenants – registered mortgage document and housing loan contract forged by one joint tenant – registration of mortgage gave indefeasible title in respect of mortgaged interest - whether any moneys owing under the loan contract or registered mortgage were secured upon innocent party’s interest in property
WORDS AND PHRASES – “means and includes”

LEGISLATION CITED:
Conveyancing Act 1919 (NSW) s 66G
Real Property Act 1900 (NSW) s 42

CASES CITED:
Breskvar v Wall (1971) 126 CLR 376; [1971] HCA 70
Chandra v Perpetual Trustees Victoria Ltd & Ors [2007] NSWSC 694
Grgic v Australian and New Zealand Banking Group Ltd (1994) 33 NSWLR 202
Hepples v Federal Commissioner of Taxation (1990) 22 FCR 1
Lillyman v Pinkerton (No 2) (1982) 71 FLR 135
Mayer v Coe [1968] 2 NSWR 747
Perpetual Trustees Victoria Limited & Anor v Tsai (2004) 12 BPR 22,281; [2004] NSWSC 745
Printy v Provident Capital Ltd (2007) NSW ConvR 56-180; [2007] NSWSC 287
PT Ltd & Anor v Maradona Pty Ltd & Ors (1992) 25 NSWLR 643
Small v Tomassetti (2001) 12 BPR 22,253; [2001] NSWSC 1112
Travinto Nominees Pty Limited v Vlattas & Anor (1973) 129 CLR 1; [1973] HCA 14
Vero Insurance v Baycorp Advantage (2005) 23 ACLC 199; [2004] NSWCA 390
G Williams, “Joint Obligations” (1949), London, Butterworths & Co (Publishers) Ltd

DECISION:
See para [39].

JUDGMENT:

- 17 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40232/07

BEAZLEY JA
IPP JA
TOBIAS JA

12 September 2007

Sabah Yazgi v Permanent Custodians Limited

Headnote

The appellant, Sabah Yazgi, was the registered proprietor, jointly with her husband, Yasin Yazgi, of property at 5 Myall Street, Punchbowl. On about 6 February 2004, a mortgage was registered over that property with the mortgage specifying Yasin Yazgi and Sabah Yazgi as the mortgagors and the respondent, Permanent Custodians Limited, as the mortgagee.

Sabah Yazgi’s signature was forged by Yasin Yazgi both on the mortgage and a housing loan contract that the mortgage was intended to secure.  There was no dispute that the registration of the mortgage gave Permanent Custodians Limited an indefeasible title in respect of the mortgaged interests. There was also no dispute that Yasin Yazgi was liable…

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Details
AGLC
Yazgi v Permanent Custodians Ltd [2007] NSWCA 240
Case
[2007] NSWCA 240
Decision Date

CaseChat Overview and Summary

The New South Wales Court of Appeal considered a dispute between Sabah Yazgi and Permanent Custodians Ltd concerning a registered mortgage over jointly owned land. Yasin Yazgi, the other joint tenant, had forged a mortgage document and housing loan contract with Permanent Custodians Ltd. The central issue was whether the indefeasible title acquired by the mortgagee through registration of the forged mortgage extended to secure moneys owing under the loan contract against the interest of the innocent joint tenant, Sabah Yazgi.

The Court was required to determine the extent to which a registered mortgage, procured by fraud on the part of one joint tenant, could encumber the interest of the innocent joint tenant. Specifically, the court had to consider the effect of the Torrens system's provisions on indefeasibility of title in circumstances where a forged instrument was registered, and whether the moneys advanced under the loan contract were secured against Sabah Yazgi's interest in the property.

The Court of Appeal allowed the appeal, setting aside previous orders. It declared that no moneys were secured by the registered mortgage against Sabah Yazgi's interest in the property and that she was entitled to a discharge of the mortgage in relation to her interest. Conversely, the mortgage was declared to have full force and effect against Yasin Yazgi's interest, with judgment entered against him for the assessed amount. The Court also ordered the sale of the property and directed the distribution of proceeds, with a specific agreed deduction from Sabah Yazgi's share to be paid to Permanent Custodians Ltd.

Orders

Orders of the court

1. The appeal be allowed;

2. The Orders made by Harrison AsJ on 30 March 2007 and 1 August 2007 be set aside;

3. Declare that in respect of the interest of Sabah Yazgi in the land described in Folio Identifier C/338681 and located at 5 Myall Street, Punchbowl, New South Wales 2196, the total amount secured by registered Mortgage AA438750J is nil;

4. Declare that Sabah Yazgi is entitled to a discharge of that mortgage insofar as it affects her interest in the land described in Folio Identifier C/338681 and located at 5 Myall Street, Punchbowl, New South Wales 2196;

5. Order that Permanent Custodians Limited execute a discharge of the Mortgage AA438750J insofar as it affects the interest of Sabah Yazgi in the land described in Folio Identifier C/338681 and located at 5 Myall Street, Punchbowl, New South Wales 2196, and do all things necessary to register the discharge of the mortgage;

6. Declare that registered Mortgage AA438750J has full force and effect as against the interest of Yasin Yazgi in the land described in Folio Identifier C/338681 and located at 5 Myall Street, Punchbowl, New South Wales 2196, and that further interest, charges and costs will accrue and be payable under that mortgage by Yasin Yazgi alone;

7. Order that there be judgment for Permanent Custodians Limited against Yasin Yazgi in an amount to be assessed;

8. Declare that Permanent Custodians Limited is entitled to an order pursuant to s 66G of the Conveyancing Act 1919 (NSW) in respect of the appointment of trustees for sale of the land at 5 Myall St, Punchbowl, New South Wales 2196;

9. Order that the matter be remitted to Harrison AsJ for the appointment of trustees for sale and for the assessment of the amount of the judgment debt as against Yasin Yazgi;

10. Direct that Permanent Custodians Limited take all such steps as may be necessary for the appointment of trustees for sale as expeditiously as possible;

11. Order that the net proceeds of sale of the land comprised in Folio Identifier C/338681 known as 5 Myall Street, Punchbowl, New South Wales 2196 be distributed as to half thereof to Sabah Yazgi and the balance thereof to Permanent Custodians Limited, but note the agreement between the parties that an amount of $54,562.15 plus interest is to be deducted from Sabah Yazgi’s share and paid to Permanent Custodians Limited in accordance with the agreement of the parties referred to in [38] of the judgment;

12. Order that Permanent Custodians Limited pay Sabah Yazgi’s costs of the appeal and to have a certificate under the Suitors’ Fund Act 1951 (NSW) if so entitled;

13. Costs of the trial are reserved;

14. Direct Permanent Custodians Limited to file written submissions in respect of the costs of the trial strictly within seven days of today’s date. Direct Sabah Yazgi to file any submissions in response within seven days thereafter.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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