Wassell v Ken Carr Bobcat & Tipper Hire Pty Ltd [2021] NSWSC 1415

Wassell v Ken Carr Bobcat & Tipper Hire Pty Ltd [2021] NSWSC 1415

The plaintiffs are not entitled to enforce the mortgage or loan agreement, nor rely on statutory assumptions under s 129 Corporations Act, because all dealings were fraudulent and there was no actual or ostensible authority for the fraudster. The company’s actions were not disentitling within the meaning of equity and do not result in loss of priority of its title. The registered mortgage, though indefeasible, does not secure any money since the loan was never advanced to the company. Plaintiffs are not entitled to compensation from the Torrens Assurance Fund as their loss did not arise from the operation of the Act but from their own conduct in advancing funds to the fraudster. The...

Parties
First Plaintiff/cross Defendant on the First Cross Claim/cross Claimant on the Second Cross Claim: David Ian Wassell; Second Plaintiff/cross Defendant on the First Cross Claim/cross Claimant on the Second Cross Claim: Ya Jun Jiang Wassell; Defendant/cross Claimant on the First Cross Claim: Ken Carr Bobcat & Tipper Hire Pty Ltd; Third Cross Defendant on the First Cross Claim/first Cross Defendant on the Second Cross Claim: Registrar-General of New South Wales
Jurisdiction
Australia
Judgment Date
03 November 2021
Procedural Posture
Principal Judgment (civil) / Final Judgment
Outcome
Plaintiffs' claims dismissed.
Legal Topics
Statutory Assumptions Under Corporations Act S 129, Forgery of Documents, Priority Disputes in Equitable Interests, Indefeasibility Under Torrens System, Compensation From Torrens Assurance Fund
Corporations Equity Land Law Statutory Assumptions Under Corporations Act S 129 Forgery of Documents Priority Disputes in Equitable Interests Indefeasibility Under Torrens System Compensation From Torrens Assurance Fund

Case Brief

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Parties

David Ian Wassell

First Plaintiff/cross Defendant on the First Cross Claim/cross Claimant on the Second Cross Claim

Ya Jun Jiang Wassell

Second Plaintiff/cross Defendant on the First Cross Claim/cross Claimant on the Second Cross Claim

Ken Carr Bobcat & Tipper Hire Pty Ltd

Defendant/cross Claimant on the First Cross Claim

Registrar-General of New South Wales

Third Cross Defendant on the First Cross Claim/first Cross Defendant on the Second Cross Claim

Procedural Posture

Principal Judgment (civil) / Final Judgment

Legal Issues

  1. 1 Whether the plaintiffs can enforce a mortgage and loan agreement against the defendant company when documents were forged by a third party
  2. 2 Whether the plaintiffs are entitled to rely on statutory assumptions in s 129 Corporations Act when dealing was premised on fraud
  3. 3 Whether the legal owner’s conduct was 'disentitling' such as to subordinate its title under equitable doctrines

Ratio Decidendi

The plaintiffs are not entitled to enforce the mortgage or loan agreement, nor rely on statutory assumptions under s 129 Corporations Act, because all dealings were fraudulent and there was no actual or ostensible authority for the fraudster. The company’s actions were not disentitling within the meaning of equity and do not result in loss of priority of its title. The registered mortgage, though indefeasible, does not secure any money since the loan was never advanced to the company. Plaintiffs are not entitled to compensation from the Torrens Assurance Fund as their loss did not arise from the operation of the Act but from their own conduct in advancing funds to the fraudster. The...

Court Disposition

Plaintiffs' claims dismissed.

Orders

  • The plaintiffs' claims are dismissed. See pars [203], [222], [227], [233], and [283].
  • The parties are to consider the judgment and provide short minutes of order to give effect to these reasons.