Perpetual Limited v Barghachoun [2010] NSWSC 108

Perpetual Limited v Barghachoun [2010] NSWSC 108

Perpetual's registered mortgage was protected by indefeasibility of title, and the allegations concerning the mortgage broker or agent, even taken at their highest for arguability, did not amount to actual fraud brought home to Perpetual or its agent of the kind required to defeat that registered interest. It would therefore be pointless to allow Mr Barghachoun to agitate the writ of possession, although he could plead his case in relation to the monetary debt and was given a short stay to vacate.

Jurisdiction
Australia
Judgment Date
26 February 2010
Procedural Posture
Common Law Division Possession List; Procedural and Other Ruling Concerning Review of Registrar's Refusal to Set Aside Default Judgment for Possession / Review of Registrar's Interlocutory Order; Amended Notice of Motion to Set Aside Writ of Possession/default Judgment
Outcome
First defendant's amended notice of motion dismissed except for leave to plead the monetary debt and a temporary stay of execution of the writ of possession; first defendant ordered to pay costs.
Legal Topics
['torrens System' 'indefeasibility of Title' 'registered Mortgage' 'default Judgment' 'writ of Possession' 'fraud Exception to Indefeasibility' "review of Registrar's Order"]
['real Property' 'civil Procedure'] ['torrens System' 'indefeasibility of Title' 'registered Mortgage' 'default Judgment' 'writ of Possession' 'fraud Exception to Indefeasibility' "review of Registrar's Order"]

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Procedural Posture

Common Law Division Possession List; Procedural and Other Ruling Concerning Review of Registrar's Refusal to Set Aside Default Judgment for Possession / Review of Registrar's Interlocutory Order; Amended Notice of Motion to Set Aside Writ of Possession/default Judgment

Legal Issues

  1. 1 ["Whether the Registrar's refusal to set aside the writ of possession should be disturbed on review." "Whether alleged fraud or unfair conduct by a mortgage broker or agent of the mortgagee was arguable fraud sufficient to defeat the mortgagee's indefeasible registered mortgage interest." 'Whether the first defendant should be permitted to file an amended defence and cross-claim concerning the monetary debt.']

Ratio Decidendi

Perpetual's registered mortgage was protected by indefeasibility of title, and the allegations concerning the mortgage broker or agent, even taken at their highest for arguability, did not amount to actual fraud brought home to Perpetual or its agent of the kind required to defeat that registered interest. It would therefore be pointless to allow Mr Barghachoun to agitate the writ of possession, although he could plead his case in relation to the monetary debt and was given a short stay to vacate.

Court Disposition

First defendant's amended notice of motion dismissed except for leave to plead the monetary debt and a temporary stay of execution of the writ of possession; first defendant ordered to pay costs.

Orders

  • ["The first defendant's amended notice of motion filed on 18 September 2009 and/or 22 October 2009, except as hereinafter specified, be dismissed." 'The first defendant be granted leave to file an amended defence and cross-claim, as advised, pleading his case in relation to the monetary debt, within 14 days of the...