Bidmonta Pty Ltd v Georgiou [2011] NSWSC 227

Bidmonta Pty Ltd v Georgiou [2011] NSWSC 227

The signatures attributed to Niki Georgiou on the Bidmonta mortgage and deed of amendment were forgeries, most likely perpetrated by Angelo Georgiou, and Niki Georgiou did not execute those documents. Accordingly Bidmonta's claims that the mortgage and deed were valid and binding, its claim for possession, and its restitution claim against Niki Georgiou failed. Angelo Georgiou had the unique opportunity to forge the signatures, admitted doing so to Mr Soos, and filed an unverified defence that raised no real defence; the absence of a defence was clearly demonstrated, warranting summary termination and judgment against him.

Jurisdiction
Australia
Judgment Date
01 April 2011
Procedural Posture
Mortgage Proceedings Concerning Unregistered Mortgages and Related Claims for Possession, Restitution, Damages and Repayment of Loans / Principal Judgment After Hearing; Plaintiff's Notice of Motion for Striking Out the Second Defendant's Defence and Entry of Judgment
Outcome
Amended Statement of Claim dismissed as against Niki Georgiou with judgment entered in her favour; Angelo Georgiou's defence struck out and judgment to be entered for Bidmonta for damages and unpaid loans plus interest, with costs and precise terms of orders to be heard.
Legal Topics
['unregistered Mortgage' 'mortgagee Remedies' 'possession of Land' 'alleged Forged Signature' 'summary Termination of Defence' 'standard of Proof for Fraud' 'restitutionary Claim for Loan Moneys']
['mortgages' 'civil Procedure' 'evidence' 'restitution' 'fraud'] ['unregistered Mortgage' 'mortgagee Remedies' 'possession of Land' 'alleged Forged Signature' 'summary Termination of Defence' 'standard of Proof for Fraud' 'restitutionary Claim for Loan Moneys']

Case Brief

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Procedural Posture

Mortgage Proceedings Concerning Unregistered Mortgages and Related Claims for Possession, Restitution, Damages and Repayment of Loans / Principal Judgment After Hearing; Plaintiff's Notice of Motion for Striking Out the Second Defendant's Defence and Entry of Judgment

Legal Issues

  1. 1 ['Whether Niki Georgiou signed the Bidmonta mortgage and deed of amendment or whether her signature was forged.' "Whether the unregistered mortgage and deed of amendment were valid and binding on Niki Georgiou so as to support Bidmonta's claim for possession of her land." "Whether Bidmonta's alternative restitution claim against Niki Georgiou should succeed." "Whether Angelo Georgiou's defence should be struck out and judgment entered against him for damages and unpaid loans."]

Ratio Decidendi

The signatures attributed to Niki Georgiou on the Bidmonta mortgage and deed of amendment were forgeries, most likely perpetrated by Angelo Georgiou, and Niki Georgiou did not execute those documents. Accordingly Bidmonta's claims that the mortgage and deed were valid and binding, its claim for possession, and its restitution claim against Niki Georgiou failed. Angelo Georgiou had the unique opportunity to forge the signatures, admitted doing so to Mr Soos, and filed an unverified defence that raised no real defence; the absence of a defence was clearly demonstrated, warranting summary termination and judgment against him.

Court Disposition

Amended Statement of Claim dismissed as against Niki Georgiou with judgment entered in her favour; Angelo Georgiou's defence struck out and judgment to be entered for Bidmonta for damages and unpaid loans plus interest, with costs and precise terms of orders to be heard.

Orders

  • ['The amended statement of claim should be dismissed as against Mrs Georgiou and judgment should be entered in her favour.' 'Leave was granted for the filing of a notice of ceasing to act for Angelo Georgiou.' "Angelo Georgiou's defence should be struck out." 'Judgment should be entered for Bidmonta against Angelo...