CHANDRA & ANOR v PERPETUAL TRUSTEES VICTORIA LTD & ORS [2007] NSWSC 694

(2007) NSW Conv R 56-187 Reported Decision : (2007) ANZ Conv R 481 (2007) Aust Torts Reports 81-896

New South Wales Supreme Court

CITATION : CHANDRA & ANOR v PERPETUAL TRUSTEES VICTORIA LTD & ORS [2007] NSWSC 694

HEARING DATE(S) : 7-11/05/2007

JUDGMENT DATE : 6 July 2007

JURISDICTION : Equity

JUDGMENT OF : Bryson AJ at 1

DECISION : see para [160]

CATCHWORDS : NEGLIGENCE – Solicitor - TORRENS SYSTEM – claims for compensation - MORTGAGOR and MORTGAGEE – Construction of mortgage – mortgage forged by persons associated with Mr Pan, not associated with registered proprietors – Mr Miller solicitor obtained new CT on instructions of Mr Pan who falsely told Mr Miller he was authorised by registered proprietors on false claim that original CT was lost – Mr Pan used new CT and forged documents including mortgage and loan agreement to obtain loan from PTV and divert moneys advanced. On the construction of the mortgage and incorporated memorandum HELD that references to mortgage given by registered proprietors did not extend to forged mortgage and hence no debt was secured – registered proprietors obtained declaration that no debt was secured. Consideration of registered proprietors' claim of negligence against solicitor: HELD duty of care, negligence but no loss. Consideration of registered proprietors' claim against RG under ss 120 and 129 RPAct – HELD no loss and also RG protected by defence s 129(2)(b) (remedy available against insured solicitor). On claim by PTV against solicitor HELD no duty of care. Extensive consideration of circumstances in which there is a duty of care against economic loss. On claim by PTV against RG HELD PTV entitled to recover under s 120 and 129. On cross-claim by solicitor against JP who witnessed mortgage HELD – no breach of duty of care by JP who had information about identity of persons signing mortgage from apparently reliable source.