Permanent Custodians Limited v John Nobilo [2012] NSWSC 109

Permanent Custodians Limited v John Nobilo [2012] NSWSC 109

The Loan Agreement became binding when the plaintiff advanced monies on 11 May 2006, was supported by consideration and part performance, and imposed joint and several repayment and security obligations on the defendants. The registered Mortgage, properly construed, secured the debt over the whole Property notwithstanding the forged signatures, and registration made it enforceable. The defendants understood mortgages, willingly assisted their daughter, received adequate independent legal advice, and benefited from discharge of the La Trobe mortgage. The plaintiff did not engage in pure asset lending and the documentary irregularities and absence of independent financial advice did not...

Jurisdiction
Australia
Judgment Date
24 February 2012
Procedural Posture
Common Law Proceedings for Possession of Land and Judgment for a Debt Secured by Registered Mortgage / Principal Judgment After Hearing; First Cross Claim Against the Registrar General Resolved and Dismissed by Consent and Second Cross Claim Dismissed by Consent
Outcome
Judgment for the plaintiff for possession of the Property, leave to issue a writ of possession forthwith, judgment for $808,046.89 against the first, second and third defendants, and costs against those defendants.
Legal Topics
['unjust Contracts' 'contracts Review Act Relief' 'consumer Credit Code Relief' 'enforceability of Registered Mortgage Bearing Forged Signatures' 'indefeasibility of Title' 'mortgage Possession Proceedings' 'witness Credibility' 'jones V Dunkel Inference']
['contract Law' 'real Property' 'consumer Credit' 'civil Procedure' 'evidence'] ['unjust Contracts' 'contracts Review Act Relief' 'consumer Credit Code Relief' 'enforceability of Registered Mortgage Bearing Forged Signatures' 'indefeasibility of Title' 'mortgage Possession Proceedings' 'witness Credibility' 'jones V Dunkel Inference']

Case Brief

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Procedural Posture

Common Law Proceedings for Possession of Land and Judgment for a Debt Secured by Registered Mortgage / Principal Judgment After Hearing; First Cross Claim Against the Registrar General Resolved and Dismissed by Consent and Second Cross Claim Dismissed by Consent

Legal Issues

  1. 1 ['Whether the Loan Agreement was enforceable against the first and second defendants although the mortgage document bore forged signatures.' 'Whether the registered Mortgage was enforceable against the first and second defendants and encumbered the whole of the Property notwithstanding that they did not execute it.' 'Whether the Loan Agreement or Mortgage was unjust under the Contracts Review Act 1980 or the Consumer Credit Code.' 'Whether the plaintiff engaged in pure asset lending or failed to make sufficient enquiries about the ability to service the loan.' 'Whether any inference should be drawn from the failure to call Mrs Saad as a witness.']

Ratio Decidendi

The Loan Agreement became binding when the plaintiff advanced monies on 11 May 2006, was supported by consideration and part performance, and imposed joint and several repayment and security obligations on the defendants. The registered Mortgage, properly construed, secured the debt over the whole Property notwithstanding the forged signatures, and registration made it enforceable. The defendants understood mortgages, willingly assisted their daughter, received adequate independent legal advice, and benefited from discharge of the La Trobe mortgage. The plaintiff did not engage in pure asset lending and the documentary irregularities and absence of independent financial advice did not...

Court Disposition

Judgment for the plaintiff for possession of the Property, leave to issue a writ of possession forthwith, judgment for $808,046.89 against the first, second and third defendants, and costs against those defendants.

Orders

  • ['Judgment for possession of the land described in Folio [ID] of the Register known as [address].' 'Grant leave to the plaintiff to issue a writ of possession forthwith.' 'Judgment for the plaintiff against the first, second and third defendants in the sum of $808,046.89.' "Order the first, second and third...