NSW Caselaw
New South Wales Supreme Court
CITATION : Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505
HEARING DATE(S) : 3, 4, 5, 6, 7, 10, 12 and 13 March 2008
JUDGMENT DATE : 28 May 2008
JURISDICTION : Equity Division
JUDGMENT OF : Young CJ in Eq
DECISION : Orders to be made restoring the plaintiff to the title as holding his interest unencumbered by the mortgages of Permanent. Judgment for Permanent against Ms Palumbo for $1,151,500 plus interest. Other orders made in associated litigation.
CATCHWORDS : BANKING AND FINANCE [20]- Bank paid money by finance company because of customer's fraud- Whether bank "received" money to be liable to refund it on count for money had and received- Held "No". BANKING AND FINANCE [20]- Joint account with both customers to sign cheques- Bank paid out on one genuine signature- Whether other customer could recover whole or only half the money paid. CONVEYANCING [206]- Torrens system- Mortgage registered- Forged document- Secures money under loan agreement as defined- That agreement forged- Thus no money secured by indefeasible mortgage. MORTGAGES [4][5][6]- Forged mortgage- Registered- Refers to all monies owing under forged loan agreement- Mortgagor not liable despite indefeasibility. PROFESSIONS AND TRADES [67]- Solicitors- Forged mortgage- Solicitors relied on false statement by another solicitor- Problem could have been avoided if appropriate form used- Evidence of NSW practice- Whether could be practice widely accepted in Australia. TORTS [71]- Apportionment- Proportionality- Liability of fraudster and solicitor making false statement and solicitor drawing mortgage apportioned: 72.5%- 15%- 12.5%- Civil Liability Act 2002 (NSW) ss 34-35. -
Australian Securities and Investments Commission Act 2001 (Cth), s 12GF Cheques Act (1986) (Cth), s 32 Civil Liability Act 2002, ss 5B, 5C, 5 O, 34, 35 Consumer Credit (New South Wales) Act 1995, ss 5, 6, 11 LEGISLATION CITED : Contracts Review Act 1980, s 6 Fair Trading Act 1987, ss 42, 68, 72 Law Reform (Miscellaneous Provisions) Act 1946, s 5 Law Reform (Miscellaneous Provisions) Act 1965, s 9 Real Property Act 1900, s 80A
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