Perpetual Trustees Victoria Ltd v Tsai [2004] NSWSC 745

Perpetual Trustees Victoria Ltd v Tsai [2004] NSWSC 745

Although the registered mortgage itself was indefeasible because it was registered without fraud by the mortgagee, the mortgage secured amounts payable under a separate secured agreement whose execution by the appellant was disputed and which did not attract indefeasibility. Because the first respondent had not produced evidence to the required standard on summary judgment that the loan agreement was signed by the appellant or that the loan was made to him, it had not shown that there was no arguable defence to the claims for possession and debt.

Jurisdiction
Australia
Judgment Date
05 August 2004
Procedural Posture
Appeal From Summary Judgment in Mortgagee's Possession and Debt Proceedings / Appeal From Master Harrison in the Supreme Court Possession List
Outcome
Appeal allowed with costs; the order of the learned Master was set aside.
Legal Topics
['indefeasibility of Registered Forged Mortgage' 'enforceability of Personal Covenant in Allegedly Forged Associated Loan Document' 'summary Judgment' 'possession by Mortgagee']
['conveyancing' 'mortgages' 'torrens System' 'real Property'] ['indefeasibility of Registered Forged Mortgage' 'enforceability of Personal Covenant in Allegedly Forged Associated Loan Document' 'summary Judgment' 'possession by Mortgagee']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal From Summary Judgment in Mortgagee's Possession and Debt Proceedings / Appeal From Master Harrison in the Supreme Court Possession List

Legal Issues

  1. 1 ['Whether a registered mortgage allegedly forged but registered without fraud of the mortgagee was indefeasible against the registered proprietor.' 'Whether the mortgagee was entitled to summary judgment for possession and debt where the associated loan agreement and covenant to repay were alleged to be forged and there was no evidence that the loan was made to the appellant.' 'Whether the learned Master erred in treating Ginelle Finance Pty Ltd v Diakakis [2004] NSW Conv R 56-064 as determinative.' 'Whether evidentiary material admitted before the Master supported summary judgment.']

Ratio Decidendi

Although the registered mortgage itself was indefeasible because it was registered without fraud by the mortgagee, the mortgage secured amounts payable under a separate secured agreement whose execution by the appellant was disputed and which did not attract indefeasibility. Because the first respondent had not produced evidence to the required standard on summary judgment that the loan agreement was signed by the appellant or that the loan was made to him, it had not shown that there was no arguable defence to the claims for possession and debt.

Court Disposition

Appeal allowed with costs; the order of the learned Master was set aside.

Orders

  • ['Appeal allowed with costs.' 'The order of the learned Master is set aside.' 'Stood over for further directions before the Registrar on Tuesday 10 August at 9 am.']