John Hudak & Anor v Rhys Adams & Anor [2013] NSWSC 1464

Supreme Court New South Wales

Medium Neutral Citation: John Hudak & Anor v Rhys Adams & Anor [2013] NSWSC 1464 Hearing dates: 11 to 12 September Decision date: 27 September 2013 Jurisdiction: Equity Division - Expedition List Before: Rein J Decision: The first defendant has obtained registration as the owner of two properties formerly owned by the second plaintiff by means of a fraud practised upon the second plaintiff including the forgery of the first plaintiff's signature. The second plaintiff is entitled to a declaration that the transfers of the properties had been obtained by means of a forgery and a false statement concerning the status of the first plaintiff. The second plaintiff is entitled to damages from the first defendant equivalent to the amount of the mortgage obtained by the first defendant from the Westpac Banking Corporation and also to compensation out of the Torrens Fund and, to the extent that the second defendant has compensated the second plaintiff, the first defendant must indemnify the second defendant in respect of the amount paid out of the Fund. The first plaintiff is entitled to a declaration that a document described as a pre-testamentary disposition document and claimed by the first defendant to have been executed by the first plaintiff on his own behalf and on behalf of the second plaintiff, is a forgery and of no validity. Catchwords: FRAUD - whether the first defendant has committed fraud and forged the first plaintiff's signature on the transfers of real property, the pre-testamentary disposition document and on other documents - whether transfers of property were forged by the first defendant - whether the first plaintiff was complicit in the forgery or consented to the transfer REAL PROPERTY - claim for compensation out of Torrens Assurance Fund EVIDENCE - consideration given as to whether a Jones v Dunkel inference can be drawn in a civil case Legislation Cited: Corporations Act 2001 (Cth) Criminal Asset Recovery Act 1990 (NSW) Evidence Act 1995 (NSW) Real Property Act 1900 (NSW) Cases Cited: Adler v ASIC; Williams v ASIC [2003] NSWCA 131 Azzopardi v The Queen [2001] HCA 25, (2001) 205 CLR 50 Briginshaw v Briginshaw (1938) 60 CLR 336 Comptroller-General of Customs v Parker [2006] NSWSC 390 Cullen (Executor of Lascelles) v Welsbach Light Co of Australasia Ltd [1907] HCA 3, (1907) 4 CLR 990 Elfar v Registrar General of New South Wales [2010] NSWSC 539 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Manly Council v Byrne [2004] NSWCA 123 R v Mok [2003] NSWSC 424 Rejfek v McElroy (1965) 112 CLR 517 Rowell v Larter (1986) 6 NSWLR 21 SS Pharmaceuticals Co Ltd v Qantas Airways Co Ltd [1991] 1 Lloyd's Rep 288 Category: Principal judgment Parties: Mr John Hudak (first plaintiff) J.H. Enterprises Pty Ltd (second plaintiff) Mr Rhy Adams (first defendant/ cross defendant) Registrar General of NSW (second defendant/ cross claimant) Representation: Counsel: Mr J. Bartos (first and second plaintiff) Mr I. Lloyd QC and Mr D. Accoto (first defendant/ cross defendant) Mr H. Altan (second defendant/ cross claimant) Solicitors: Edita Berntsen Solicitor & Attorney (first and second plaintiff)) Kells The Lawyers (first defendant/ cross defendant) Lands and Property Management Authority (second defendant/ cross claimant) File Number(s): 2013/153338