Abdullah Hadid & Anor v Abeedah Khan (as trustee for the Khan Family Trust) [2004] NSWCA 362

New South Wales Court of Appeal

CITATION : Abdullah Hadid & Anor v Abeedah Khan (as trustee for the Khan Family Trust) [2004] NSWCA 362 HEARING DATE(S) : 29 September 2004 JUDGMENT DATE : 29 September 2004

JUDGMENT OF : Giles JA at 1; Ipp JA at 25; Tobias JA at 26 DECISION : (1) Leave to appeal be granted; (2) Direct notice of appeal be filed within seven days; (3) Appeal allowed; (4) Orders made by Cripps AJ on 18 December 2003 be set aside and in lieu thereof order that the application for summary judgment be dismissed; (5) Grant liberty to the claimants to re-plead the fraud exception under s 42(1) in their defence and if so advised by way of cross-claim and note that will be the sole issue on which the mater will go to trial; (6) Order the opponent to pay the claimant's costs of the application for leave to appeal and the appeal and that she have a certificate under the Suitors Fund Act if qualified; (7) Costs of the application before Cripps AJ be costs in the proceedings.

CATCHWORDS : Real property - forged mortgage - purported mortgagor told mortgagee prior to registration that it was forgery - made mortgagee anxious to register as soon as possible - mortgage registered - whether arguable case for fraud exception in s 42(1) Real Property Act - held arguable case. ND Dey v Victorian Railways Commissioners (1949) 78 CLR 62; CASES CITED : General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Webster v Lampard (1993) 177 CLR 598. Abdullah Hadid - First Claimant PARTIES : Sanaa Hadid - Second Claimant Abeedah Khan (as trustee for the Khan Family Trust) - Opponent Abeeda Khan (as trustee for The Khan Family Trust) - Opponent FILE NUMBER(S) : CA 40119/04 COUNSEL : A Rogers - Claimants C R C Newlands SC & P T Newton - Opponent SOLICITORS : Equity Lawyers, Greenacre - Claimants Heidtman & Co - Opponent