Bay Bon Investments Pty Ltd v Sultana [2015] NSWSC 1797

Supreme Court New South Wales

Medium Neutral Citation: Bay Bon Investments Pty Ltd v Sultana [2015] NSWSC 1797 Hearing dates: 26 November 2015 Date of orders: 03 December 2015 Decision date: 03 December 2015 Jurisdiction: Common Law Before: Davies J Decision: Judgment for the Plaintiff for possession of the whole of the land contained in Folio Identifier 5/584714 being the property situated at and known as 3777 Wallanbah Road, Nabiac in the State of New South Wales. Catchwords: REAL PROPERTY – Torrens system – indefeasibility – mortgages – forgery of one co-owner's signature by other co-owner – no knowledge of fraud by mortgagee – whether mortgagee entitled to possession of land against both co-owners – whether liability of co-owners joint or joint and several – whether standard memorandum incorporated into mortgage – variation of mortgage – whether new contract – mortgagee entitled to possession Legislation Cited: Real Property Act 1900 (NSW) Cases Cited: Mulinglebar Pty Ltd v Wongala Holdings Pty Ltd [1995] ANZ Conv R 25; (1994) NSW Con R 55-697 Perpetual Trustees Victoria Limited v Cipri [2008] NSWSC 1128 Perpetual Trustees Victoria Limited v English [2010] NSWCA 32 Sabah Yazgi v Permanent Custodians Limited [2007] NSWCA 240 Scarel v City Loan and Credit Corporation Pty Ltd (1986) 4 BPR 9226 Torre v Jonamill [2002] NSWSC 152 Texts Cited: G Williams, "Joint Obligations" (1949), London, Butterworths & Co (Publishers) Ltd Category: Procedural and other rulings Parties: Bay Bon Investments Pty Ltd (Plaintiff) John Joseph Sultana (First Defendant) Carolyn Irene Sultana (Second Defendant) Representation: Counsel: L Young (Plaintiff) B Ilkovski (First Defendant) No appearance (Second Defendant)