John Khoury & Ors v Fouad El Khoury & Ors [2013] NSWSC 14

John Khoury & Ors v Fouad El Khoury & Ors [2013] NSWSC 14

The Court accepted the evidence of NAB and DIB witnesses, particularly Ms Kennedy and Ms Iatrou, that on 8 December 2005 Hanna signed the Wentworthville mortgage before Ms Kennedy and that Hanna and Zabad signed the related documentation. The Court rejected Hanna's denials and found his and Zabad's evidence unreliable and inconsistent with documentary material, including later solicitor correspondence acknowledging the mortgage and sale. Because Hanna failed to prove that he did not sign the relevant mortgage documentation, his claim against NAB failed; NAB's contingent second cross-claim also failed.

Jurisdiction
Australia
Judgment Date
31 January 2013
Procedural Posture
Real Property Mortgage Proceedings / Principal Judgment After Final Hearing
Outcome
Statement of claim dismissed; second cross-claim dismissed.
Legal Topics
['mortgagee Sale' 'execution of Mortgage Documentation' 'alleged Forged Signature' 'witness Credibility' 'registered Mortgage' 'cross Claim Contingent on Primary Claim']
['real Property' 'mortgage Law' 'evidence'] ['mortgagee Sale' 'execution of Mortgage Documentation' 'alleged Forged Signature' 'witness Credibility' 'registered Mortgage' 'cross Claim Contingent on Primary Claim']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Real Property Mortgage Proceedings / Principal Judgment After Final Hearing

Legal Issues

  1. 1 ['Whether Hanna signed the Wentworthville mortgage dated 8 December 2005 and related loan documentation.' "Whether NAB's mortgage over the Wentworthville property secured the loan advanced to Hanna and Zabad." 'Whether Hanna was entitled to recover from NAB money had and received from the mortgagee sale proceeds.' "Whether NAB's second cross-claim against Fouad and Sandra should be dismissed if Hanna's claim failed."]

Ratio Decidendi

The Court accepted the evidence of NAB and DIB witnesses, particularly Ms Kennedy and Ms Iatrou, that on 8 December 2005 Hanna signed the Wentworthville mortgage before Ms Kennedy and that Hanna and Zabad signed the related documentation. The Court rejected Hanna's denials and found his and Zabad's evidence unreliable and inconsistent with documentary material, including later solicitor correspondence acknowledging the mortgage and sale. Because Hanna failed to prove that he did not sign the relevant mortgage documentation, his claim against NAB failed; NAB's contingent second cross-claim also failed.

Court Disposition

Statement of claim dismissed; second cross-claim dismissed.

Orders

  • ['The statement of claim is dismissed.' 'The second cross claim is dismissed.']