Abeeda Khan (as Trustee for the Khan Family Trust) v Abdallah Hadid & Anor [2003] NSWSC 1191

New South Wales Supreme Court

CITATION : Abeeda Khan (as Trustee for the Khan Family Trust) v Abdallah Hadid & Anor [2003] NSWSC 1191 HEARING DATE(S) : 02/12/03 JUDGMENT DATE : 18 December 2003

JUDGMENT OF : Cripps AJ DECISION : (i) Plaintiff's appeal is successful; (ii). Judgment made for possession; (iii) The plaintiff has leave to issue a writ of possession 28 days from today; (iv) Defendants are to pay the plaintiff's costs of the motion

CATCHWORDS : possession - mortgage - registration indefeasible by title despite alleged fraud Contracts Review Act 1980 (NSW) LEGISLATION CITED : Real Property Act 1900 (NSW) Supreme Court Rules Assets Co v Mere Roihi [1905] AC 176. CASES CITED : Breskvar v Wall (1971) 126 CLR 376 Frazer v Walker [1967] 1 AC 569 J A Westaway & Sons v Registrar General & Ors (NSWSC unreported, 15 August 1996) PARTIES : Abeeda Khan (as Trustee for Khan Family Trust) - Plaintiff Abdallah Hadid & Sanaa Hadid - 1st & 2nd Defendants FILE NUMBER(S) : SC 10537/03 COUNSEL : P Newton - Plaintiff A Rogers - 1st & 2nd Defendants SOLICITORS : Heidtman & Co - Plaintiff Equity Lawyers - 1st & 2nd Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

CRIPPS AJ

18 December 2003

10537/03 - Abeeda Khan as Trustee for the Khan Family Trust v Abdallah Hadid & Anor

JUDGMENT 1 HIS HONOUR: This is an application pursuant to Part 13 of the Supreme Court Rules for summary judgment in favour of the plaintiff Abeeda Khan as trustee for the Khan Family Trust against the defendants Abdallah Hadid and Sanaa Hadid in ejectment and for an order for possession and that a writ of possession issue forthwith. The plaintiff also seeks an order that the cross claim of the defendants be summarily dismissed. 2 The defendants are the registered proprietors in fee simple of a property known as 662 Punchbowl Road Punchbowl being the whole of the land comprised in C/T Folio Identifier 17/12834. The plaintiff is the second mortgagee claiming an estate or interest in the land by reason of the registration of a Real Property Mortgage 9253502J over the subject property on 31 December 2002. 3 The statement of claim was filed on 4 March 2003. The plaintiff recited the mortgage dated 25 November 2002 and its registration on 31 December 2002 pursuant to which the plaintiff claimed to have advanced the sum of $130,000 to the defendants. It was alleged that in breach of their obligations the defendants had defaulted in repayment and in consequence thereof the plaintiff was entitled to possession. 4 By their amended defence the defendants deny the plaintiff's right to possession. They assert they never received any monies from the plaintiff and deny they executed any documents in connection with the mortgage. They also pleaded non est factum to all documents relied on by the plaintiff in support of the validity of the mortgage and any loan agreement. The non est factum claim was abandoned during the hearing for the reason, one supposes, that the defendants are not alleging they signed documents in the belief that what they signed was radically different from what the document contained – rather it was that they never signed any documents. The defendants have also pleaded clause 7 of the Contracts Review Act 1980 (NSW). 5 In their amended statement of defence the defendants deny that they personally or through their agents executed, authorised the execution or ratified the execution of the mortgage document or any documents in support of it and deny they received any monies from the mortgagee. They allege the mortgage was procured by the fraud of Anna Maria Palumbo and that at all relevant times prior to registration the plaintiff was on notice by her servants or agents that the mortgage had been procured by fraud. The particulars of defence are included and they refer to conversations between the first named defendant and an unnamed person from the plaintiff's solicitors Heidtman & Co on or about 27 November 2002 and a conversation between the first defendant and the plaintiff's mortgage manager Response Finance Pty Ltd on or about the same day. It is alleged that the plaintiff by her servants and agents (Heidtman & Co and Response Finance Pty Ltd) and after being told that the mortgage had been executed by fraud procured the registration of the mortgage under the provision of the Real Property Act 1900 on 31 December 2002. 6 By their cross-claim the defendants deny any knowledge of the transactions relied on by the plaintiff and allege that the plaintiff's agent Response Finance Pty Ltd was a party to the fraudulent conduct of the forgers and for that reason the mortgage was unenforceable and should be set aside. 7 Although the defence originally appeared to be asserting fraudulent conduct by the plaintiff and her agents with respect to the execution of the mortgage the claim pressed before me was that the plaintiff by her agents (her solicitors Heidtman & Co and mortgage manager Response Finance Pty Ltd) were guilty of fraud by registering the mortgage after they had been told by the first named defendant that the defendants were the victims of fraudulent conduct. 8 Mr Newton on behalf of the plaintiff and Mr Rogers on behalf of the defendants accept that for the purpose of determining whether the defendant's defence should be struck out and summary judgment entered, the party seeking the orders bears the onus of satisfying the court that there is, in effect, no real question to be tried. This means, as I would understand the authorities, that the defendants do not have to affirmatively establish the correctness of their defence - summary judgment is not appropriate if the claim raises a triable issue of fact. 9 For the purpose of dealing with this application I have assumed facts asserted by the defendants and set out below to be arguable questions of fact: