Permanent Trustee Company Limited v Frazis [1999] NSWSC 319

Permanent Trustee Company Limited v Frazis [1999] NSWSC 319

The evidence does not support a prima facie defence on the merits as there is no evidence of fraud or unconscionable conduct attributable to the plaintiff or its agent. The Contracts Review Act 1980 does not apply since the applicants deny having entered the contract at all. The registered mortgage is thus indefeasible and the plaintiff is entitled to possession.

Parties
Plaintiff: Permanent Trustee Company Limited; First Defendant/applicant: Gorgios Frazis; Second Defendant/applicant: Athoula Frazis; Third Defendant: Mike Frazis
Jurisdiction
Australia
Judgment Date
09 April 1999
Procedural Posture
Application to Set Aside Default Judgment / Judgment on Application
Outcome
Application dismissed; execution of writ of possession stayed for six weeks
Legal Topics
Application to Set Aside Default Judgment, Torrens Title, Indefeasibility of Title, Forged Mortgage, Contracts Review Act 1980, Unconscionable Conduct, Fraud
Procedure Real Property Contracts Application to Set Aside Default Judgment Torrens Title Indefeasibility of Title Forged Mortgage Contracts Review Act 1980 +2 more

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Parties

Permanent Trustee Company Limited

Plaintiff

Gorgios Frazis

First Defendant/applicant

Athoula Frazis

Second Defendant/applicant

Mike Frazis

Third Defendant

Procedural Posture

Application to Set Aside Default Judgment / Judgment on Application

Legal Issues

  1. 1 Whether the applicants have a bona fide defence on the merits to set aside a default judgment for possession where the mortgage was allegedly forged
  2. 2 Whether the Contracts Review Act 1980 applies to set aside a registered mortgage procured by forgery
  3. 3 Whether fraud by a third party defeats the indefeasibility of a registered mortgage under the Real Property Act 1900

Ratio Decidendi

The evidence does not support a prima facie defence on the merits as there is no evidence of fraud or unconscionable conduct attributable to the plaintiff or its agent. The Contracts Review Act 1980 does not apply since the applicants deny having entered the contract at all. The registered mortgage is thus indefeasible and the plaintiff is entitled to possession.

Court Disposition

Application dismissed; execution of writ of possession stayed for six weeks

Orders

  • Application to set aside default judgment dismissed with costs
  • Execution of writ of possession stayed for six weeks