Van den Heuvel v Perpetual Trustees Victoria Ltd; Registrar General of NSW v Van den Heuvel [2010] NSWCA 171

New South Wales Court of Appeal

CITATION: Van den Heuvel v Perpetual Trustees Victoria Ltd; Registrar General of NSW v Van den Heuvel [2010] NSWCA 171

HEARING DATE(S): 10 May 2010

JUDGMENT DATE: 23 July 2010

JUDGMENT OF: Hodgson JA at [1]; Basten JA at [34]; Young JA at [95]

(1) Stand the further hearing over for short minutes to be brought in within 14 days. (2) The stay ordered by consent at the hearing of the appeal extended until final orders are made. DECISION: Note: (3) The appeal in 2009/298449 is to be dismissed with costs. (4) The appeal in 2009/298460 is to be allowed in part. (5) Declaration to be made that it would be within the discretion of the judge hearing any further process to permit Elizabeth Van den Heuvel to lead evidence to show that her beneficial interest in the property at the time of registration of the mortgage exceeded 50%.

CATCHWORDS: Mortgages- Torrens System- husband and wife joint tenants- husband arranges mortgage from both but forges wife's signature- whether mortgage binding on husband (by majority, it is)- mortgagee entitled to possession as against wife- wife entitled to compensation under the Torrens Assurance Fund. Consumer Credit Code- where relief available for a statutory mortgagor- whether implied agreement secured by mortgage is a "credit contract". Torrens System- Assurance Fund- s 129 Real Property Act 1900- joint tenants- loss of aliquot share by mortgage by co-tenant- how compensation calculated.

Consumer Credit (New South Wales) Act 1995, ss 4, 5, 6, 7, 8, 11, 70, 71, Schedule 1 Contracts Review Act 1980 LEGISLATION CITED: Conveyancing Act 1919, s 66G Family Law Act 1975 (Cth) Real Property Act 1900, ss 41, 42, 57, 58, 80A, 129, 132 Uniform Civil Procedure Rules, r36.16(2)