Perpetual Trustees Victoria Limited v Ann-Marie Menzies; Finance Express (Qld) Pty Limited (In liq) v Ann-Marie Menzies [2009] NSWSC 352

Perpetual Trustees Victoria Limited v Ann-Marie Menzies; Finance Express (Qld) Pty Limited (In liq) v Ann-Marie Menzies [2009] NSWSC 352

On the assumptions that Ms Menzies did not enter into the mortgages or loan agreements and obtained no benefit from the moneys advanced, the Perpetual mortgage secured no debt because there was no Secured Agreement between Perpetual and Ms Menzies, and the Finance Express mortgage secured no debt because there was no debt under the deed of loan for the mortgage to secure. The separate question in each proceeding therefore had to be answered "no".

Jurisdiction
Australia
Judgment Date
05 May 2009
Procedural Posture
Possession Proceedings With Cross Claims Concerning Registered Mortgages Alleged to Be Forged / Separate Questions Heard Together on Written Submissions
Outcome
In each of the proceedings numbered 15775/06 and 14635/07, the separate question was answered "no".
Legal Topics
['registered Forged Mortgage' 'indefeasibility' 'construction of Mortgage Security' 'separate Question' 'real Property Act 1900 Compensation']
['real Property' 'mortgage Law' 'civil Procedure'] ['registered Forged Mortgage' 'indefeasibility' 'construction of Mortgage Security' 'separate Question' 'real Property Act 1900 Compensation']

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Procedural Posture

Possession Proceedings With Cross Claims Concerning Registered Mortgages Alleged to Be Forged / Separate Questions Heard Together on Written Submissions

Legal Issues

  1. 1 ['Whether, on the proper construction of each registered mortgage and assuming the mortgage was not entered into by Ann-Marie Menzies or anyone acting with her knowledge or approval and that she obtained no benefit from the money advanced, any amount owing by her to the plaintiff was secured by the mortgage.' 'Whether the Perpetual mortgage secured any debt where the incorporated memorandum depended on there being a Secured Agreement between Perpetual and Ms Menzies.' 'Whether the Finance Express mortgage secured any debt where it was granted in consideration of and pursuant to a loan deed alleged to have been forged.']

Ratio Decidendi

On the assumptions that Ms Menzies did not enter into the mortgages or loan agreements and obtained no benefit from the moneys advanced, the Perpetual mortgage secured no debt because there was no Secured Agreement between Perpetual and Ms Menzies, and the Finance Express mortgage secured no debt because there was no debt under the deed of loan for the mortgage to secure. The separate question in each proceeding therefore had to be answered "no".

Court Disposition

In each of the proceedings numbered 15775/06 and 14635/07, the separate question was answered "no".

Orders

  • ['In proceedings 15775/06, that the separate question be answered "no".' 'In proceedings 14635/07, that the separate question be answered "no".']