Ippin Textiles Pty Ltd v Winau Aust Pty Ltd [2021] NSWCA 9

Ippin Textiles Pty Ltd v Winau Aust Pty Ltd [2021] NSWCA 9

The registered mortgage did not secure anything against the land or proceeds of sale because no advance was made to the registered proprietor due to fraud and because the registered instrument, as construed with its redacted Schedule A and special condition, does not extend to securing any debt of Mr Chan. Any acknowledgment of receipt in the registered mortgage is only prima facie evidence, which was rebutted by proved facts. The mortgage thus secures nothing, and the appeal must be dismissed.

Jurisdiction
Australia
Judgment Date
12 February 2021
Procedural Posture
Appeal / Leave to Appeal and Substantive Appeal in Court of Appeal From Judgment on a Separate Question in Supreme Court Equity Division
Outcome
Leave to appeal granted; appeal dismissed with costs.
Legal Topics
['torrens Title' 'indefeasibility of Title' 'mortgage Fraud' 'incorporation by Reference' 'interpretation of Registered Mortgage' 'acknowledgment of Receipt of Payment']
['land Law'] ['torrens Title' 'indefeasibility of Title' 'mortgage Fraud' 'incorporation by Reference' 'interpretation of Registered Mortgage' 'acknowledgment of Receipt of Payment']

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Procedural Posture

Appeal / Leave to Appeal and Substantive Appeal in Court of Appeal From Judgment on a Separate Question in Supreme Court Equity Division

Legal Issues

  1. 1 ['Whether a registered mortgage, executed and registered by a fraudster impersonating the mortgagor, secures anything for the mortgagees against the land and proceeds of sale' 'Whether unregistered documents can be incorporated by reference into a registered mortgage' 'Effect of acknowledgment of receipt of payment in a registered mortgage when no advance was actually made due to fraud']

Ratio Decidendi

The registered mortgage did not secure anything against the land or proceeds of sale because no advance was made to the registered proprietor due to fraud and because the registered instrument, as construed with its redacted Schedule A and special condition, does not extend to securing any debt of Mr Chan. Any acknowledgment of receipt in the registered mortgage is only prima facie evidence, which was rebutted by proved facts. The mortgage thus secures nothing, and the appeal must be dismissed.

Court Disposition

Leave to appeal granted; appeal dismissed with costs.

Orders

  • ['Grant leave to appeal.' 'Direct the applicants within 14 days to file and serve a Notice of Appeal in the form of the draft Notice of Appeal provided to the Court.' 'Dismiss the appeal with costs.']