C & M Duran Pty Ltd v Zhong Bao Liu & Ors [2007] NSWSC 893

New South Wales Supreme Court

CITATION : C & M Duran Pty Ltd v Zhong Bao Liu & Ors [2007] NSWSC 893

HEARING DATE(S) : 12 March 2007; 13 March 2007; 14 March 2007; 15 March 2007; 16 March 2007; 19 March 2007; 20 March 2007

JUDGMENT DATE : 15 August 2007

JURISDICTION : Common Law

JUDGMENT OF : Simpson J

DECISION : Orders to be made to achieve the following result: (1) As against the first defendant: Judgment for possession of his interest in the land at 43 Fairview Road, Canley Vale (Folio Identifier B/411192); (2) As against the second defendant: The Second Further Amended Statement of Claim is dismissed; (3) As against the third defendant: The Second Further Amended Statement of Claim is dismissed; (4) The first cross-claim is dismissed. It will be necessary to hear the parties with respect to the form of orders that will give effect to that intention. It will be necessary to hear submissions on the question of costs.

CATCHWORDS : Contract for sale and purchase of land and business – second mortgage security on real property – first and second defendants registered proprietors of security property – registration of mortgage – indefeasibility of title – default under mortgage by purchaser – plaintiff claims for possession of security property – forgery by first defendant of second defendant's signature on mortgage documents – whether plaintiff complicit in forgery – false attestations by third defendant on mortgage documents – false representations – duty of care – whether plaintiff entitled to succeed in respect of claim against second defendant in respect of forged mortgage documents – director of plaintiff aware of forgery – registration as regard second defendant procured by fraud – indefeasibility of title defeated – competing versions of facts – cross-claim by first defendant against plaintiff – onus of proof not discharged