Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505

Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505

Registered mortgages forged in the Plaintiff's name, but securing only 'all moneys owing' under purported loan agreements not entered into by the Plaintiff, are indefeasible in form but secure nothing. The Plaintiff, not being a party to or recipient of any advance, owes the mortgagee, Permanent, nothing under the mortgages and is entitled to have them set aside and his title restored. The mortgagees' mere carelessness in checking identity or the Plaintiff's careless custody of title deeds is not sufficient to raise a personal equity, and statutory defences (Consumer Credit Code, Contracts Review Act) did not apply. Hunt & Hunt was negligent in not drafting a fixed sum mortgage in these...

Jurisdiction
Australia
Judgment Date
28 May 2008
Procedural Posture
Consolidated Equity/civil Proceedings / Principal Judgment After Trial
Outcome
Plaintiff successful; mortgages set aside; damages/apportionment ordered; Permanent awarded judgment against Ms Palumbo.
Legal Topics
['forged Mortgages Under Torrens System' 'indefeasibility of Title' 'liability for Money Had and Received' 'negligence of Solicitors' 'apportionment of Liability Under Civil Liability Act 2002 (nsw)' 'contracts Review Act Issues' 'consumer Credit Code' 'misleading Conduct Under Fair Trading Act' "bank's Mandate and Forged Cheques" 'personal Equities in Torrens Title']
['banking and Finance' 'conveyancing' 'mortgages' 'professional Negligence' 'torts' 'contracts'] ['forged Mortgages Under Torrens System' 'indefeasibility of Title' 'liability for Money Had and Received' 'negligence of Solicitors' 'apportionment of Liability Under Civil Liability Act 2002 (nsw)' 'contracts Review Act Issues' 'consumer Credit Code' 'misleading Conduct Under Fair Trading Act' "bank's Mandate and Forged Cheques" 'personal Equities in Torrens Title']

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Procedural Posture

Consolidated Equity/civil Proceedings / Principal Judgment After Trial

Legal Issues

  1. 1 ["Whether the registered mortgages over the plaintiff's land were forged and, if so, whether indefeasibility applies and what is secured by the mortgages" 'Whether the plaintiff is liable to the mortgagee, Permanent, under mortgages registered as a result of forgery' "Whether statutory regimes (Consumer Credit Code; Contracts Review Act) or personal equities render the mortgagees' security unenforceable" 'Apportionment of damages between concurrent wrongdoers under Civil Liability Act 2002 (NSW)' 'Liability of a solicitor (Hunt & Hunt) for drafting mortgage documentation' "Bank's liability for paying out on forged cheques absent a valid mandate"]

Ratio Decidendi

Registered mortgages forged in the Plaintiff's name, but securing only 'all moneys owing' under purported loan agreements not entered into by the Plaintiff, are indefeasible in form but secure nothing. The Plaintiff, not being a party to or recipient of any advance, owes the mortgagee, Permanent, nothing under the mortgages and is entitled to have them set aside and his title restored. The mortgagees' mere carelessness in checking identity or the Plaintiff's careless custody of title deeds is not sufficient to raise a personal equity, and statutory defences (Consumer Credit Code, Contracts Review Act) did not apply. Hunt & Hunt was negligent in not drafting a fixed sum mortgage in these...

Court Disposition

Plaintiff successful; mortgages set aside; damages/apportionment ordered; Permanent awarded judgment against Ms Palumbo.

Orders

  • ["Plaintiff's title to land restored unencumbered by the Permanent mortgages." 'Judgment for Permanent Mortgages Pty Ltd against Maria Anna Palumbo for $1,151,500 plus interest.' "Permanent's and Mitchell Morgan's claims under the mortgages dismissed as nothing is owing by Plaintiff." 'Hunt & Hunt found liable to...