Registrar Of Titles (WA) v Franzon [1975] HCA 41

High Court of Australia Barwick C.J. Mason and Jacobs JJ. Registrar Of Titles (WA) v Franzon [1975] HCA 41

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 9 Barwick C.J.

In this appeal I have had the advantage of reading the reasons for judgment prepared by my brother Mason. I agree with what he has written and find no need to add any observations on my own behalf. I agree that the appeal should be dismissed.

Mason J.

The first respondents to this appeal, Francesco and Alma Franzon, have been at all relevant times the registered proprietors of an estate in fee simple as tenants in common in equal shares of land contained in five certificates of title under the Transfer of Land Act, 1893 W.A., as amended. Before 15th July 1969 that land, together with other land owned by Alma Franzon's mother, was mortgaged to secure the sum of $45,000, approximately, owing to A.G.C. (General Finance) Ltd. ("AGC").

Charles Reginald Hopkins, a solicitor, who held certain money for the Franzons applied, without their authority, to the second respondent, Finance Corporation of Australia Ltd., for a loan of $30,000. When this loan was approved by the second respondent, Hopkins forged the Franzons' signatures to a mortgage over their land to secure that amount. With the Franzons' money which he already held and with $4,850.76 of the money advanced by the second respondent and paid by it to AGC he discharged the mortgage to AGC. Upon registration of the discharge of AGC's mortgage and of the forged mortgage he received $25,149.24, being the balance of the moneys advanced by the second respondent. He then misappropriated this money.

The Franzons were not aware of these developments until October 1970. Thereafter they made payments of interest falling due under the forged mortgage, amounting in all to $10,075. In January 1972 the second respondent demanded repayment of the principal due under this mortgage and an amount of interest then outstanding, $116.70. Subsequently the Franzons paid out the second respondent with moneys borrowed from another source and the forged mortgage was then discharged, the costs of discharge being $40.