Young v Hoger

[2000] QSC 455

SUPREME COURT OF QUEENSLAND

CITATION:

Young and Ors v Hoger and Ors [2000] QSC 455

PARTIES:

WILLIAM IAN YOUNG, DELICE YOUNG, GARY ALAN GRANT, EVELYN JEAN GRANT and LAKE MAPLE PTY LTD
(plaintiffs)
v
ELVIN JOHN HOGER
(first defendant)
MERLE EDITH HOGER
(second defendant)
STATE OF QUEENSLAND
(third party)

FILE NO/S:

S 8689 of 2000

DIVISION:

Trial

PROCEEDING:

Action for recovery of possession of land

DELIVERED ON:

6 December 2000

DELIVERED AT:

Brisbane

HEARING DATE:

19 July 2000 – 27 July 2000

JUDGE:

Douglas J

ORDER:

a) The plaintiff’s action for recovery of possession of land be dismissed;
b) The Registrar of titles be directed to remove the plaintiff’s mortgage from the freehold land registrar and to cancel the mortgage;and
c) The plaintiff’s pay the first defendant damages in the sum of $42,250.

CATCHWORDS:

CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – INDEFEASIBILITY OF TITLE – EXCEPTIONS – FRAUD OR FORGERY – husband and wife joint tenants of certain land – wife and daughter complicit in forging security documents and procuring mortgage  – whether conduct of the mortgagees’ solicitor in registering the mortgage amounted to fraud – whether equitable mortgage survives in relation to complicit joint tenant.

Property Law Act 1974
Land Title Act 1994
Trade Practices Act 1974 (Commonwealth)

Assets Co Ltd v Mere Roihi [1905] AC 176
Breskvar v Wall (1971) 126 CLR 376
Frazer v Walker [1967] 1 AC 569
Flourentzou v Commonwealth Bank of Australia (1997) NSWConvR 55-281
Immer (No 45) Pty Ltd v Uniting Church in Australian Property Trust (NSW) (1993) 182 CLR 26
Koorootang Nominees Pty Ltd v Australia and New Zealand Banking Group Ltd [1998] 3 VR 16
National Commercial Banking Corporation of Australia Ltd v Headley (1984) NSWConvR 55-211
Russo v Bendigo Bank Limited [1999] VSCA 108
Sargent v ASL Developments Ltd (1974) 131 CLR 634.
Schultz v Corwall Properties [1969] 2 NSWR 576

COUNSEL:

J A Griffin QC with him B G Cronin for plaintiffs
D J Campbell for first defendant
R J Douglas SC with him B J Clarke for third party

SOLICITORS:

Walsh & Partners Litigation Lawyers for plaintiffs
J J Riba & Company Solicitors for first defendant
C W Lohe, Crown Solicitor, for third party

1. DOUGLAS J:   The plaintiffs are the registered mortgagees under Mortgage No 702569150 registered on 19 March 1998 over the land described as Lot 2 on RP 152209 in the County of Canning, Parish of Mooloolah.

1. There is no doubt that the mortgagors on the face of the mortgage, the first and second defendants, are in default.

1. The Bill of Mortgage entitles the mortgagee to take possession if the mortgagor is in default.  Default has occurred through the non payment of interest on the first day of each month pursuant to Clause 2 thereof, and the non payment of the principal at the expiration of 12 months pursuant to Clause 1.

1. Demand for possession was made, and because some uncertainty arises as to whether the demand was actually received as required by…