Perpetual Trustee Company Ltd v Moussa [2013] NSWSC 131

Supreme Court New South Wales

Medium Neutral Citation: Perpetual Trustee Company Ltd v Moussa [2013] NSWSC 131 Hearing dates: 1 July 2011, 25 August 2011, 16 March 2012 Decision date: 28 February 2013 Before: McCallum J Decision: Pursuant to r 28.2 of the UCPR, the following question ordered to be decided separately (on the assumption that the mortgage and loan agreement were forged without the defendant's knowledge or consent): are some or all of the PTCL Amounts paid by Perpetual on or about 16 September 2005 capable of being amounts owing as defined in the Perpetual Mortgage Memorandum with the consequence that each or all of them are secured by the Perpetual mortgage? Separate question answered "no". Catchwords: MORTGAGES - mortgage allegedly forged - whether indefeasibility extends to obligation to pay amount owing MORTGAGES - construction - construing all moneys clause - objective contemplation of the parties - whether "amount owing" includes liability to make restitution PROCEDURE - separate question - Uniform Civil Procedure Rules r 28.2 - whether determination of separate question should be ordered Legislation Cited: Civil Procedure Act 2005 Consumer Credit Code Real Property Act 1901 Uniform Civil Procedure Act 2005 Uniform Civil Procedure Rules Cases Cited: Breskvar v Wall (1971) 126 CLR 376 Cuzeno RVM Pty Ltd v Overton Investments Pty Ltd [2002] NSWSC 88; (2002) 10 BPR 19,425 Estoril Investments Pty Ltd v Westpac Banking Corporation (1993) 6 BPR 13,146 Hills Industries Ltd v Australian Financial Services & Leasing Pty Ltd [2012] NSWCA 380 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 Perpetual Trustees Victoria Ltd v English [2010] NSWCA 32; (2010) 14 BPR 27,339 PT Ltd v Maradona (1992) 25 NSWLR 643 Southwell v Bennett [2010] NSWSC 1372 Thomas v Silvia (1994) 35 NSWLR 96 Yazgi v Permanent Custodians Ltd [2007] NSWCA 240; (2007) 13 BPR 24,567 Texts Cited: Mason, Carter and Tolhurst, Mason & Carter's Restitution in Australia (2nd Ed, 2008) Category: Principal judgment Parties: Perpetual Trustee Company Ltd (plaintiff) Mariam Mohamad Moussa (defendant) Leslie Abboud (first cross-defendant) Registrar General (second cross-defendant) Representation: Counsel: Mr JT Svehla (plaintiff) Mr A Crossland (defendant) Mr A Rogers (second cross-defendant) Solicitors: File Number(s): 2010/58208