Abdullah Hadid & Anor v Abeedah Khan (as trustee for the Khan Family Trust) [2004] NSWCA 362

Abdullah Hadid & Anor v Abeedah Khan (as trustee for the Khan Family Trust) [2004] NSWCA 362

The claimants had an arguable case that the opponent's agents were told before registration that the mortgage was forged, their suspicions were thereby aroused, and the ensuing concern and haste to register could negate honest belief and support fraud for the purposes of s 42(1). Because that question of fact and law should go to trial, summary judgment should not have been ordered.

Jurisdiction
Australia
Judgment Date
29 September 2004
Procedural Posture
Application for Leave to Appeal From Orders for Summary Judgment in Proceedings for Possession of Land / Court of Appeal Determination of Leave to Appeal and Appeal
Outcome
Leave to appeal granted; appeal allowed; summary judgment set aside; application for summary judgment dismissed.
Legal Topics
['forged Mortgage' 'torrens Indefeasibility' 'fraud Exception Under S 42(1) Real Property Act 1900' 'summary Judgment' 'possession of Land']
['real Property' 'civil Procedure'] ['forged Mortgage' 'torrens Indefeasibility' 'fraud Exception Under S 42(1) Real Property Act 1900' 'summary Judgment' 'possession of Land']

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Procedural Posture

Application for Leave to Appeal From Orders for Summary Judgment in Proceedings for Possession of Land / Court of Appeal Determination of Leave to Appeal and Appeal

Legal Issues

  1. 1 ["Whether there was an arguable case of fraud within s 42(1) of the Real Property Act 1900 where a mortgage was alleged to be forged and the mortgagee's agents were told of the alleged forgery before registration." 'Whether summary judgment should have been ordered in favour of the registered second mortgagee.']

Ratio Decidendi

The claimants had an arguable case that the opponent's agents were told before registration that the mortgage was forged, their suspicions were thereby aroused, and the ensuing concern and haste to register could negate honest belief and support fraud for the purposes of s 42(1). Because that question of fact and law should go to trial, summary judgment should not have been ordered.

Court Disposition

Leave to appeal granted; appeal allowed; summary judgment set aside; application for summary judgment dismissed.

Orders

  • ['Leave to appeal be granted.' 'Direct notice of appeal be filed within seven days.' 'Appeal allowed.' 'Orders made by Cripps AJ on 18 December 2003 be set aside and in lieu thereof order that the application for summary judgment be dismissed.' 'Grant liberty to the claimants to re-plead the fraud exception under s...