Bay Bon Investments Pty Ltd v Sultana [2015] NSWSC 1797

Bay Bon Investments Pty Ltd v Sultana [2015] NSWSC 1797

The mortgage as registered and varied, through the incorporated memoranda, created a joint and several liability against both co-owners. Registration of the mortgage (including forgery) confers indefeasible interest enabling the mortgagee to seek possession of the whole property against both co-owners, despite one owner's lack of consent or signature. The 2009 variation created a new contract with express joint and several liability.

Jurisdiction
Australia
Judgment Date
03 December 2015
Procedural Posture
Civil / Summary Judgment
Outcome
Judgment for Plaintiff
Legal Topics
['torrens System' 'indefeasibility' 'mortgages' 'forgery' 'joint Liability' 'joint and Several Liability' 'variation of Mortgage']
['real Property'] ['torrens System' 'indefeasibility' 'mortgages' 'forgery' 'joint Liability' 'joint and Several Liability' 'variation of Mortgage']

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Procedural Posture

Civil / Summary Judgment

Legal Issues

  1. 1 ["Whether the registered mortgage confers an estate or interest over the whole property despite forgery of one co-owner's signature" 'Whether the liability of co-owners is joint or joint and several under the mortgage and its variations' 'Whether the Plaintiff is entitled to possession against both co-owners']

Ratio Decidendi

The mortgage as registered and varied, through the incorporated memoranda, created a joint and several liability against both co-owners. Registration of the mortgage (including forgery) confers indefeasible interest enabling the mortgagee to seek possession of the whole property against both co-owners, despite one owner's lack of consent or signature. The 2009 variation created a new contract with express joint and several liability.

Court Disposition

Judgment for Plaintiff

Orders

  • ['Judgment for the Plaintiff for possession of the whole of the land contained in Folio Identifier 5/584714 being the property situated at and known as 3777 Wallanbah Road, Nabiac in the State of New South Wales.']