Printy v Provident Capital Limited & Anor [2007] NSWSC 287

Printy v Provident Capital Limited & Anor [2007] NSWSC 287

The first mortgage, although registered, secured nothing against the plaintiff because the forged deed of loan was not incorporated in the mortgage, the plaintiff had no obligations under that deed, and the incorporated memorandum did not clearly impose on the plaintiff liability for money advanced to a fraudster. The second mortgage was different because its incorporated memorandum identified the principal sum and covenant to pay it with interest, so registration gave the mortgagee an indefeasible security and the plaintiff was entitled to compensation from the Torrens Assurance Fund. Costs followed the event and no Bullock order was justified because the first defendant's conduct did...

Jurisdiction
Australia
Judgment Date
30 March 2007
Procedural Posture
Supreme Court of New South Wales Common Law Division Proceedings for Recovery of Money and Compensation From the Torrens Assurance Fund After Mortgagee Sale of Land / Final Judgment After Hearing
Outcome
Judgment for the plaintiff against the first defendant on the first mortgage claim; alternative claim against the second defendant on the first mortgage refused; judgment for the plaintiff against the second defendant on the second mortgage claim; costs ordered to follow the event; short minutes directed.
Legal Topics
['indefeasibility of Registered Mortgages' 'forged Mortgage and Forged Loan Deed' 'construction of Mortgage Memorandum' 'torrens Assurance Fund Compensation' 'bullock Orders' 'costs Following the Event']
['real Property' 'torrens Title' 'mortgage Law' 'civil Procedure' 'costs'] ['indefeasibility of Registered Mortgages' 'forged Mortgage and Forged Loan Deed' 'construction of Mortgage Memorandum' 'torrens Assurance Fund Compensation' 'bullock Orders' 'costs Following the Event']

Case Brief

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Procedural Posture

Supreme Court of New South Wales Common Law Division Proceedings for Recovery of Money and Compensation From the Torrens Assurance Fund After Mortgagee Sale of Land / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether the registered first mortgage secured any indebtedness of the plaintiff where the mortgage incorporated a memorandum but the deed of loan was forged and not incorporated.' 'Whether the plaintiff was entitled to compensation from the Torrens Assurance Fund in relation to amounts recovered under the registered second mortgage.' "Whether the plaintiff should receive a Bullock order requiring the unsuccessful first defendant to bear the second defendant's costs on the alternative claim concerning the first mortgage."]

Ratio Decidendi

The first mortgage, although registered, secured nothing against the plaintiff because the forged deed of loan was not incorporated in the mortgage, the plaintiff had no obligations under that deed, and the incorporated memorandum did not clearly impose on the plaintiff liability for money advanced to a fraudster. The second mortgage was different because its incorporated memorandum identified the principal sum and covenant to pay it with interest, so registration gave the mortgagee an indefeasible security and the plaintiff was entitled to compensation from the Torrens Assurance Fund. Costs followed the event and no Bullock order was justified because the first defendant's conduct did...

Court Disposition

Judgment for the plaintiff against the first defendant on the first mortgage claim; alternative claim against the second defendant on the first mortgage refused; judgment for the plaintiff against the second defendant on the second mortgage claim; costs ordered to follow the event; short minutes directed.

Orders

  • ['Order as sought against the first defendant in para 1 of the relief claimed in the statement of claim filed on 12 December 2005.' "Order that the first defendant pay the plaintiff's costs of the proceedings in respect of this claim." 'Order refusing the relief claimed in the alternative against the second...