Wassell v Ken Carr Bobcat & Tipper Hire Pty Ltd [2021] NSWSC 1415

Supreme Court New South Wales

Medium Neutral Citation: Wassell v Ken Carr Bobcat & Tipper Hire Pty Ltd [2021] NSWSC 1415 Hearing dates: 6 and 7 September 2021 Decision date: 03 November 2021 Jurisdiction: Equity Before: Robb J Decision: The plaintiffs' claims are dismissed. See pars [203], [222], [227], [233] and [283]. The parties should consider this judgment and provide appropriate short minutes of order to the Associate to Robb J to give effect to the reasons herein. Catchwords: CORPORATIONS — Contracts — Formalities — Statutory assumptions — Whether documents were properly executed to bind the defendant company — Where the plaintiffs argued that they were entitled to rely upon the assumptions in s 129 of the Corporations Act with respect to the purported proper execution of documents by two directors of the defendant — Where the apparent signatures of the two directors had been forged and every apparent communication between the plaintiffs, their agent and the defendant had been fraudulently undertaken by a person who had no authority to act in any way on behalf of the defendant — Whether the plaintiffs had dealings with the defendant for the purpose of s 128 of the Act — Where the Court found that the plaintiffs were not entitled to rely on the assumptions in s 129 because the plaintiffs had no dealings with the defendant — Where the Court held that the plaintiffs have failed to establish that the defendant is precluded from denying that it is bound by the documents EQUITY — Equitable interests in property — Priority disputes — Earlier legal interest — Where the plaintiffs claimed that they had an equitable interest in property in circumstances where their registered mortgage did not on its proper construction and in the events which had happened secure the advance made by the plaintiffs — Where the plaintiffs' interest in the defendant's property was created by the fraud of a third party — Where the plaintiffs argued that the defendant's conduct disentitled it from asserting its priority as the registered proprietor of the property over the plaintiffs' equitable interest — Whether the earlier legal interest of the defendant would lose its priority to the later equitable interest of the plaintiffs — Where the Court found that the plaintiffs have not established that the defendant lost its entitlement to priority as the registered proprietor LAND LAW — Torrens title — Compensation for loss of interest in land — Torrens assurance fund — Where the plaintiffs claimed that, in the event the Court found that the registered mortgage was not effective to secure the amount advanced and that their later equitable interest did not have priority over the defendant's legal interest, they are entitled to be paid compensation from the Torrens assurance fund on the basis of s 129(1)(e) of the Real Property Act — Whether the loss or damage that the plaintiffs would suffer would be as a result of the operation of the Act — Where the Registrar-General submitted that the plaintiffs are not entitled to compensation because the loss or damage would arise from the plaintiffs conduct rather than as a result of the operation of the Act — Where the plaintiffs argued that the Court should conclude that the plaintiffs will suffer loss as a result of fraud in that they will be deprived of an estate or interest in the property as a consequence of fraud — Where the Court found that the loss or damage that the plaintiffs will suffer is not as a result of the Act — Where the Court held that the plaintiffs' claim for compensation from the Torrens assurance fund must be dismissed LAND LAW — Torrens title — Exceptions to indefeasibility — Fraud — Where the plaintiffs claimed that they had a registered mortgage over the defendant's property — Where the registered mortgage was procured by the fraud of a third party — Whether the plaintiffs' registered mortgage was indefeasible — Where the Court found that the mortgage in effect did not secure any money — Where the Court held that the plaintiffs' registered mortgage was indefeasible but that because it secured nothing, the defendant is entitled to an order that the mortgage be discharged Legislation Cited: Corporations Act 2001 (Cth) Electronic Conveyancing (Adoption of National Law) Act 2012 (NSW) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Law Reform (Miscellaneous Provisions) Act 1965 (NSW) Real Property Act 1900 (NSW) Cases Cited: Abigail v Lapin (1934) 51 CLR 58 Australia and New Zealand Banking Group Ltd v Frenmast Pty Ltd [2013] NSWCA 459; (2013) 282 FLR 351 Australia Capital Finance Management Pty Ltd v Linfield Developments Pty Ltd; Guan v Linfield Developments Pty Ltd [2017] NSWCA 99 Barry v Heider (1914) 19 CLR 197 Brocklesby v The Temperance Permanent Building Society [1895] AC 173 CEG Direct Securities Pty Ltd v Wang [2021] NSWCA 76 Chandra v Perpetual Trustees Victoria Ltd [2007] NSWSC 694; (2007) 13 BPR 24,675 Derry v Peek (1889) 14 App Cas 337 Farrand v Yorkshire Banking Company (1888) 40 Ch D 182 Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326 Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 Kumar v Registrar-General of New South Wales [2021] NSWSC 1103 Lapin v Abigail (1930) 44 CLR 166 Northern Counties of England Fire Insurance Co v Whipp (1884) 26 Ch D 482 Perry Herrick v Attwood (1857) 2 De G & J 21; 44 ER 895 PT Ltd v Maradona Pty Ltd (1992) 25 NSWLR 643 Saltoon v Lake [1978] 1 NSWLR 52 Texts Cited: J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane's Equity Doctrines & Remedies (5th ed, 2015, LexisNexis Butterworths) Category: Principal judgment Parties: David Ian Wassell (first plaintiff/ cross-defendant on the first cross-claim/ cross-claimant on the second cross-claim) Ya Jun Jiang Wassell (second plaintiff/ cross-defendant on the first cross-claim/ cross-claimant on the second cross-claim) Ken Carr Bobcat & Tipper Hire Pty Ltd (defendant/ cross-claimant on the first cross-claim) Registrar-General of New South Wales (third cross-defendant on the first cross-claim/ first cross-defendant on the second cross-claim) Representation: Counsel: J Baird (first and second plaintiffs/ cross-defendants on the first cross-claim/ cross-claimants on the second cross-claim) D Weinberger (defendant/ cross-claimant on the first cross-claim) L A Walsh (third cross-defendant on the first cross-claim/ first cross-defendant on the second cross-claim)