C & M Duran Pty Ltd v Zhong Bao Liu & Ors [2007] NSWSC 893

C & M Duran Pty Ltd v Zhong Bao Liu & Ors [2007] NSWSC 893

The plaintiff proved the Canley Vale mortgage, registration and default, and the first defendant had no answer apart from a cross-claim that he failed to prove; judgment for possession of his interest was therefore warranted. As against the second defendant, her signatures on the mortgage and Deed of Guarantee and Indemnity were forged by the first defendant, and on the balance of probabilities Mr Duran, acting for the plaintiff, knew of and initiated or encouraged the forgeries, so the plaintiff could not rely on indefeasibility under s 42 of the Real Property Act 1900 against her interest. As against the third defendant, although his attestations were false, the plaintiff failed to...

Jurisdiction
Australia
Judgment Date
15 August 2007
Procedural Posture
Common Law Division Possession List Proceedings Concerning Possession Under a Registered Mortgage and Related Claims / Judgment After Hearing
Outcome
Judgment for possession against the first defendant's interest in the Canley Vale property; plaintiff's claims against the second and third defendants dismissed; first cross-claim dismissed; further submissions required on the form of orders and costs.
Legal Topics
['registered Mortgage' 'indefeasibility of Title' 'fraud Exception to Indefeasibility' 'forgery of Mortgage Documents' 'false Attestation by Solicitor' 'possession of Land' 'guarantee and Indemnity' 'contracts Review Act Claim' 'fair Trading Act Claim' 'cross Claims']
['real Property' 'mortgage Law' 'contract' 'guarantees and Indemnities' 'misleading or Deceptive Conduct' 'negligence' 'fraud'] ['registered Mortgage' 'indefeasibility of Title' 'fraud Exception to Indefeasibility' 'forgery of Mortgage Documents' 'false Attestation by Solicitor' 'possession of Land' 'guarantee and Indemnity' 'contracts Review Act Claim' 'fair Trading Act Claim' 'cross Claims']

Case Brief

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Procedural Posture

Common Law Division Possession List Proceedings Concerning Possession Under a Registered Mortgage and Related Claims / Judgment After Hearing

Legal Issues

  1. 1 ["Whether the plaintiff was entitled to possession of the first defendant's interest in the Canley Vale property under the registered mortgage after default." 'Whether the plaintiff could rely on indefeasibility of title under s 42 of the Real Property Act 1900 against the second defendant where her signature on the mortgage and guarantee was forged by the first defendant.' "Whether the plaintiff's director was complicit in, knew of, initiated or encouraged the forgery of the second defendant's signatures." 'Whether the plaintiff established reliance, causation and loss against the third defendant arising from his false attestations and representations as solicitor.' "Whether the first defendant proved his cross-claim that alleged representations about the plaintiff's purchase price of the Wyangala Trout Farm were false or misleading and induced the transaction."]

Ratio Decidendi

The plaintiff proved the Canley Vale mortgage, registration and default, and the first defendant had no answer apart from a cross-claim that he failed to prove; judgment for possession of his interest was therefore warranted. As against the second defendant, her signatures on the mortgage and Deed of Guarantee and Indemnity were forged by the first defendant, and on the balance of probabilities Mr Duran, acting for the plaintiff, knew of and initiated or encouraged the forgeries, so the plaintiff could not rely on indefeasibility under s 42 of the Real Property Act 1900 against her interest. As against the third defendant, although his attestations were false, the plaintiff failed to...

Court Disposition

Judgment for possession against the first defendant's interest in the Canley Vale property; plaintiff's claims against the second and third defendants dismissed; first cross-claim dismissed; further submissions required on the form of orders and costs.

Orders

  • ['As against the first defendant: Judgment for possession of his interest in the land at 43 Fairview Road, Canley Vale (Folio Identifier B/411192).' 'As against the second defendant: The Second Further Amended Statement of Claim is dismissed.' 'As against the third defendant: The Second Further Amended Statement of...