Khan as Trustee for The Khan Family Trust v Hadid; Hadid v Khan as Trustee for The Khan Family Trust (No 2) [2008] NSWSC 119

Registration of the mortgage by Mrs Khan, knowing issues of forgery, contractual limitations, and denials from the mortgagors, amounted to fraud defeating her indefeasible title. The mortgage was void, and Mrs Khan had no right to possession. Solicitors Flammia and Hancock were liable for misleading and deceptive conduct and negligence, causing loss to Mrs Khan; damages to be calculated and apportioned 80% Hancock, 20% Flammia.

Parties: Plaintiff/defendant/first Cross Claimant/second Cross Claimant/first Cross Defendant: Abeeda Khan as Trustee for The Khan Family Trust; Defendant/plaintiff/fourth Cross Claimant/sixth Cross Defendant: Abdallah Hadid; Defendant/plaintiff: Sanaa Hadid; Second Defendant/second Cross Defendant: Response Finance Pty Ltd; Third Defendant: Peter Fisher & Co; Fourth Defendant/first Cross Defendant/third Cross Defendant/fourth Cross Claimant: Lorenzo Flammia; Fifth Defendant/first Cross Defendant/third Cross Claimant/third Cross Defendant: John Hancock; Sixth Defendant/fourth Cross Defendant: Anna Maria Palumbo; First Cross Defendant to Third Cross Claim: American Re-Insurance Company Limited; Fifth Cross Defendant to Fourth Cross Claim: Split Cycle International Pty Limited
Jurisdiction: Australia
Judgment Date: 22 February 2008
Procedural Posture: Principal Judgment (two Consolidated Actions) / Post Trial Judgment With Orders and Directions
Outcome: Mortgage void; Mrs Khan not entitled to possession; claims for damages against Hancock and Flammia upheld; calculation and orders for damages and costs reserved.
Legal Topics: Torrens System Indefeasibility of Title, Equitable and Registered Mortgage, Forgery and Fraud, Misleading and Deceptive Conduct, Solicitor's Attestation, Fair Trading Act Liability, Apportionment of Damages

Real Property Equity Trade Practices Civil Liability Torrens System Indefeasibility of Title Equitable and Registered Mortgage Forgery and Fraud Misleading and Deceptive Conduct +3 more

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Parties

Abeeda Khan as Trustee for The Khan Family Trust

Plaintiff/defendant/first Cross Claimant/second Cross Claimant/first Cross Defendant

Abdallah Hadid

Defendant/plaintiff/fourth Cross Claimant/sixth Cross Defendant

Sanaa Hadid

Defendant/plaintiff

Response Finance Pty Ltd

Second Defendant/second Cross Defendant

Peter Fisher & Co

Third Defendant

Lorenzo Flammia

Fourth Defendant/first Cross Defendant/third Cross Defendant/fourth Cross Claimant

John Hancock

Fifth Defendant/first Cross Defendant/third Cross Claimant/third Cross Defendant

Anna Maria Palumbo

Sixth Defendant/fourth Cross Defendant

American Re-Insurance Company Limited

First Cross Defendant to Third Cross Claim

Split Cycle International Pty Limited

Fifth Cross Defendant to Fourth Cross Claim

Procedural Posture

Principal Judgment (two Consolidated Actions) / Post Trial Judgment With Orders and Directions

Legal Issues

1 Validity and enforceability of mortgage registered by forgery
2 Whether Mrs Khan's registered mortgage is defeated by fraud
3 Liability of solicitor-witness and solicitor-representative for misleading and deceptive conduct

Ratio Decidendi

Court Disposition

Mortgage void; Mrs Khan not entitled to possession; claims for damages against Hancock and Flammia upheld; calculation and orders for damages and costs reserved.

Orders

Plaintiff in each proceeding to file orders reflecting reasons.
Right to address on calculation of damage and costs reserved.