Small & Ors v Tomassetti & Ors [2001] NSWSC 1112

Small & Ors v Tomassetti & Ors [2001] NSWSC 1112

On construction of the particular mortgages, the plaintiffs as mortgagees held indefeasible title by registration securing payment of principal and interest as specified by the mortgages, notwithstanding that the mortgagor’s signature was forged.

Jurisdiction
Australia
Judgment Date
26 November 2001
Procedural Posture
Application for Interlocutory Injunction / Ruling on Continuation of Injunction
Outcome
Injunction refused. Plaintiff entitled to costs of the application.
Legal Topics
['mortgages' 'indefeasibility of Title' 'forgery' 'registration of Interests' 'injunctions']
['property Law' 'equity' 'real Property'] ['mortgages' 'indefeasibility of Title' 'forgery' 'registration of Interests' 'injunctions']

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Procedural Posture

Application for Interlocutory Injunction / Ruling on Continuation of Injunction

Legal Issues

  1. 1 ['Whether mortgagee holds indefeasible title under the Real Property Act 1900 when mortgagor’s signature is forged and mortgage is registered' 'Extent of interest secured by such registered mortgage' 'Whether injunction restraining disposal of proceeds should be continued']

Ratio Decidendi

On construction of the particular mortgages, the plaintiffs as mortgagees held indefeasible title by registration securing payment of principal and interest as specified by the mortgages, notwithstanding that the mortgagor’s signature was forged.

Court Disposition

Injunction refused. Plaintiff entitled to costs of the application.

Orders

  • ['Injunction restraining plaintiffs from disposing of proceeds is not continued.' 'Second defendant to pay plaintiffs’ costs of the application for an injunction, including costs before Hamilton J on 5 November 2001 and before Campbell J.']