Australian Regional Credit v Mula; Australian Regional Credit v Raphael [2009] NSWSC 325

New South Wales Supreme Court

CITATION : Australian Regional Credit v Mula; Australian Regional Credit v Raphael [2009] NSWSC 325

HEARING DATE(S) : 08/09/2008 - 12/09/2008

JUDGMENT DATE : 30 April 2009

JURISDICTION : Common Law

JUDGMENT OF : McCallum J

The orders I propose are: In proceedings 13750 of 2004: (1) A declaration that the amount secured by registered mortgage AA911031G is nil. DECISION : (2) That the plaintiff's claim be dismissed. (3) That the first cross-claim be dismissed. (4) That the second cross-claim be dismissed. In proceedings 20056 of 2008: That there be judgment for the plaintiff in an amount to be assessed.

CATCHWORDS : MORTGAGES - mortgage taken as part of security for payments due under three lease agreements - mortgage forged - lease agreements partly forged - lease agreements and mortgage executed for the benefit of mortgagor's de facto son-in-law - mortgagor had no knowledge of transaction - finance company seeking order for possession due to default under lease agreement - whether mortgage charged the land with debts owed under the three leases - MORTGAGES - defences of mortgagor - whether finance company had knowledge of forgery before registration of mortgage - MORTGAGES - defences of mortgagor - whether failure to deal directly with the mortgagor gave rise to a personal equity enforceable against the finance company - MORTGAGES - defences of mortgagor - Yerkey v Jones - whether Yerkey v Jones principles apply to relationships beyond that of husband and wife whether Yerkey v Jones principles apply outside the context of a surety - whether Yerkey v Jones can apply where documents have been forged - NEGLIGENCE - whether solicitor liable for negligent misstatement whether initials and signatures of solicitor were forged whether solicitor signed mortgage and left it in the possession of the probable fraudster - whether solicitor liable for loss suffered by finance company