Wilson v Fitzsimons [2006] NSWSC 1318

New South Wales Supreme Court

CITATION : Wilson v Fitzsimons [2006] NSWSC 1318

HEARING DATE(S) : 27/11/06 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 11/27/2006

DECISION : Mortgage rectified.

CATCHWORDS : EQUITY - Equitable Doctrines and Presumptions - Rectification - Agreement to grant a first mortgage over specified property to secure a loan - Mortgage instrument proffered with Torrens title identifier of other inferior property - Specified property already mortgaged - Whether rectification available for unilateral mistake induced by fraud - Whether rectification barred by inability to perform contract by a grant of a first mortgage

May v Platt [1900] 1 Ch 616 Commissioner for the New Towns v Cooper (Great Britain) Ltd [1995] Ch 259 CASES CITED : Trawl Industries of Australia Pty Ltd v Effem Pty Ltd (1999) 27 NSWLR 326 Alati v Kruger (1955) 94 CLR 216 Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102 Meagher, Gummow and Lehane's Equity Doctrines and Remedies, 4th ed, Butterworths LexisNexis, Australia, 2002

Robine Enid Wilson - Plaintiff PARTIES : Christopher Ronald Fitzsimons - 1st Defendant Maria Angela Fitzsimons - 2nd Defendant

FILE NUMBER(S) : SC 3458/06

COUNSEL : Mr P Beale - Plaintiff

SOLICITORS : McGrath Dicembre & Co - Plaintiff

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

GZELL J

MONDAY 27 NOVEMBER 2006

3458/06 ROBINE ENID WILSON v CHRISTOPHER RONALD FITZSIMONS & ORS EX TEMPORE JUDGMENT

1 There is before the Court an application for an order for rectification of a mortgage instrument. The proceedings are ex parte because the first and second defendants did not appear. The evidence reveals that they have left the country and their address is unknown. The third to fifth defendants have agreed to execute a deed of priority and they were not represented at the hearing. 2 The plaintiff, Robine Enid Wilson, is an elderly lady who retained the first defendant as her solicitor to attend to the sale of a property and the acquisition of an interest in a retirement village. The first defendant suggested to her cousin, John Boyden, known as Rex, that he was interested in borrowing funds at an attractive rate of interest and would Ms Wilson be interested in advancing funds to him from the surplus upon the settlement of the two transactions. 3 A letter was written by the first defendant to Rex Boyden in the following terms: "1 Security 1st mortgage on 13/22 Wylde Street Potts Point. Current value 2.2 M 2 Borrowers Christopher Ronald Fitzsimons and Maria Angela Fitzsimons of 13/22 Wylde Street Potts Point 3 Principal 550 K 4 Interest 7% pa penalty rate to be 10% for late payment. 5 Term Repayable on call from the lender on 90 days written notice. This gives me time to re-finance it for you. Repayable at any time by the borrower on repayment of the principal sum, interest due to the date of re-payment plus 3 months penalty interest for early repayment. So, if I win the lottery, you've got 3 months interest in hand while you consider an alternative investment. 6 Interest rate is to increase, effective from the date of announcement, by the Reserve Bank of increases in the official interest rate. Interest rate will not fall below the base rate of 7% but if the official rate increases above 7% then the increase applies immediately, but if the rate falls, a decrease applies but in no circumstances will the interest rate will be lower than the 7%."