Smith v Shortland [2007] NSWSC 1404

New South Wales Supreme Court

CITATION : Smith v Shortland [2007] NSWSC 1404

HEARING DATE(S) : 20/11/07

JUDGMENT DATE : 6 December 2007

JURISDICTION : Equity Division

JUDGMENT OF : Young CJ in Eq

DECISION : Plaintiffs are entitled to a lien over the defendants' property for $201,494. Defendants to pay the plaintiffs' costs of the proceedings.

CATCHWORDS : CONVEYANCING [175]- Torrens title- Instruments generally- Attestation and execution- Forgery- On facts, forgery proved- Orders made for restitution.

Frank John Smith (P1) Mark William Smith (P2) PARTIES : Steven Robert Smith (P3) Darren Robert Shortland (D1) Lynda Jane Smith (D2)

FILE NUMBER(S) : SC 6923/04

J S Drummond (P) COUNSEL : D1 in person D2 in person

Michael Atkinson & Associates (P) SOLICITORS : D1 in person D2 in person

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Thursday 6 December 2007

6923/04 – SMITH v SHORTLAND JUDGMENT 1 HIS HONOUR: These are essentially proceedings between three brothers and their sister over the property, 32 Elliott Street, Kingswood, formerly owned by their parents. 2 Prior to 13 October 1999, that property was owned, as tenants in common, by Frank William Smith and Shirley Mary Smith. On that day, a one-third interest as tenant in common was transferred to the second defendant, Lynda Jane Smith, the transfer showing a purchase price of $45,000. On the same day the property was mortgaged to Aussie Home Loans for $60,000, the $60,000 being a loan made to Lynda Jane Smith. 3 It would seem that the involvement of Lynda Jane Smith as a one-third owner of the Kingswood property was so she could borrow on the property (with the permission of her parents). 4 It would seem from the Aussie Home Loans documents, that Aussie Home Loans valued the Kingswood property at $150,000 in 1999. 5 The Aussie Home Loan application form suggests that the $60,000 borrowed by Lynda Smith was used as to at least $38,000 to pay her parents. 6 The probabilities, accordingly, are that Lynda Smith acquired her one-third share bona fide and for consideration. Furthermore, the signatures on all the relevant documents appear to be genuine. 7 In April/May 2000, Lynda Jane Smith and her de facto husband, the first defendant, Darren Robert Shortland, wished to purchase property at St Clair. The following transactions were effected: