Permanent Custodians Ltd v Tony Geagea & Ors [2010] NSWSC 117

Permanent Custodians Ltd v Tony Geagea & Ors [2010] NSWSC 117

Although the proposed separate question was contingent on factual assumptions and would not itself finally determine the proceedings, the possible joinder of the Registrar-General was determinative. If the question were resolved in favour of Charbel and David Geagea, there would be no occasion to join the Registrar-General, producing a significant saving of time and cost. Weighing the competing considerations, it was in the interests of justice to determine the separate question in advance of trial.

Jurisdiction
Australia
Judgment Date
02 March 2010
Procedural Posture
Proceedings for Possession of Land and Other Relief Pursuant to a Mortgage, With Claims Against Solicitors for Misleading and Deceptive Conduct or Breach of Duty of Care. / Motion by the Second and Third Defendants Pursuant to UCPR R 28.2 for an Order for the Separate Decision of a Question in the Proceedings.
Outcome
Order for separate decision of question made.
Legal Topics
['separate Decision of Question' 'possession of Land' 'alleged Forged Signatures on Mortgage' 'indefeasibility on Registration' 'torrens Assurance Fund' 'possible Joinder of Registrar General']
['civil Procedure' 'real Property' 'mortgage Law' 'torrens Title' 'consumer and Fair Trading Law'] ['separate Decision of Question' 'possession of Land' 'alleged Forged Signatures on Mortgage' 'indefeasibility on Registration' 'torrens Assurance Fund' 'possible Joinder of Registrar General']

Case Brief

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Procedural Posture

Proceedings for Possession of Land and Other Relief Pursuant to a Mortgage, With Claims Against Solicitors for Misleading and Deceptive Conduct or Breach of Duty of Care. / Motion by the Second and Third Defendants Pursuant to UCPR R 28.2 for an Order for the Separate Decision of a Question in the Proceedings.

Legal Issues

  1. 1 ['Whether the Court should order the separate decision of the question proposed by the second and third defendants.' 'Whether, on the assumed facts that the second and third defendants did not enter into the mortgage, did not authorise anyone to do so and obtained no benefit from the monies advanced, any amount owing to the plaintiff by them is secured by the mortgage.' 'Whether separate determination would be appropriate given its contingent character, potential appeal difficulties, delay and costs, and the possible need to join the Registrar-General.']

Ratio Decidendi

Although the proposed separate question was contingent on factual assumptions and would not itself finally determine the proceedings, the possible joinder of the Registrar-General was determinative. If the question were resolved in favour of Charbel and David Geagea, there would be no occasion to join the Registrar-General, producing a significant saving of time and cost. Weighing the competing considerations, it was in the interests of justice to determine the separate question in advance of trial.

Court Disposition

Order for separate decision of question made.

Orders

  • ['The order sought in the motion for the separate decision of a question was made.' 'The Court would consult the parties as to whether any directions should be made and, if necessary, hear them on costs.']