Australian Financial Services and Leasing Pty Limited v All Up Finance Pty Limited [2012] NSWSC 1004

Australian Financial Services and Leasing Pty Limited v All Up Finance Pty Limited [2012] NSWSC 1004

The court found, on the balance of probabilities, that the third defendant did not sign the security documents in favour of the first defendant and those documents were forged. The mortgage and related documents were held void and unenforceable. The funds paid into court from the sale of the Strathfield property were ordered paid to the plaintiff as partial satisfaction of the debt owed by the third defendant to the plaintiff.

Parties
Plaintiff: Australian Financial Services and Leasing Pty Limited; First Defendant: All Up Finance Pty Limited; Second Defendant: Areca Finance Pty Limited; Third Defendant: Gordana Skarzynski
Jurisdiction
Australia
Judgment Date
27 September 2012
Procedural Posture
Principal Judgment / Final Decision
Outcome
Plaintiff succeeded, first defendant's cross-claim dismissed, security documents in favour of first defendant declared void and unenforceable, funds paid into court to go to plaintiff; costs to be dealt with after further submissions.
Legal Topics
Forgery, Priority of Mortgages, Payment of Money Out of Court, Competing Claims, Caveats, Unregistered Mortgage, Inference From Failure to Call Witness, Expert Evidence
Equity Forgery Priority of Mortgages Payment of Money Out of Court Competing Claims Caveats Unregistered Mortgage Inference From Failure to Call Witness +1 more

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Parties

Australian Financial Services and Leasing Pty Limited

Plaintiff

All Up Finance Pty Limited

First Defendant

Areca Finance Pty Limited

Second Defendant

Gordana Skarzynski

Third Defendant

Procedural Posture

Principal Judgment / Final Decision

Legal Issues

  1. 1 Whether the third defendant signed the mortgage and related security documents in favour of the first defendant
  2. 2 Whether the security documents in favour of the first defendant are enforceable
  3. 3 Priority of competing mortgagees for money paid into court

Ratio Decidendi

The court found, on the balance of probabilities, that the third defendant did not sign the security documents in favour of the first defendant and those documents were forged. The mortgage and related documents were held void and unenforceable. The funds paid into court from the sale of the Strathfield property were ordered paid to the plaintiff as partial satisfaction of the debt owed by the third defendant to the plaintiff.

Court Disposition

Plaintiff succeeded, first defendant's cross-claim dismissed, security documents in favour of first defendant declared void and unenforceable, funds paid into court to go to plaintiff; costs to be dealt with after further submissions.

Orders

  • Dismiss the first defendant's cross-claim dated 27 July 2011.
  • Declare the mortgage over the Strathfield property dated 15 January 2010 void and unenforceable.