Perpetual Trustee Company Limited v El-Bayeh (No. 2) [2011] NSWSC 1049

Perpetual Trustee Company Limited v El-Bayeh (No. 2) [2011] NSWSC 1049

Because no restitutionary amount had yet been ordered and its quantification was disputed, there could be no default under the mortgage justifying immediate possession; the proper course was judgment for the restitutionary amount and time to pay, with Perpetual able to seek possession if payment was not made. Perpetual was entitled to interest because its payment discharged a mortgage secured over David El-Bayeh's land, but interest should run only from when he became aware of the fraud and only to the date of his adequate settlement offer, at the loan agreement rates as evidence of the interest the mistaken payment might have earned. Costs were determined by the ordinary rule as modified...

Jurisdiction
Australia
Judgment Date
09 September 2011
Procedural Posture
Mortgage Enforcement Proceedings Involving a Forged Mortgage, Restitution Claims and Cross Claims / Consequential Orders After Principal Judgment
Outcome
Consequential orders made: Perpetual obtained restitutionary judgment against David El-Bayeh and judgment against Youssef El-Bayeh; Perpetual's claims against CTC and Mr Saadie were dismissed; costs and cross-claim orders were made.
Legal Topics
['forged Mortgage' 'registered Mortgage as Security for Restitutionary Amount' 'judgment for Possession' 'section 100 Interest' 'calderbank Offers' 'indemnity Costs' 'bullock Orders' 'cross Claims']
['mortgages' 'restitution' 'costs' 'interest' 'civil Procedure'] ['forged Mortgage' 'registered Mortgage as Security for Restitutionary Amount' 'judgment for Possession' 'section 100 Interest' 'calderbank Offers' 'indemnity Costs' 'bullock Orders' 'cross Claims']

Case Brief

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Procedural Posture

Mortgage Enforcement Proceedings Involving a Forged Mortgage, Restitution Claims and Cross Claims / Consequential Orders After Principal Judgment

Legal Issues

  1. 1 ['Whether Perpetual was presently entitled to judgment for possession based on failure to pay a restitutionary amount not yet ordered by the Court.' 'Whether interest should be awarded on the restitutionary amount of $181,982.87, at what rate and for what period.' "Whether David El-Bayeh's settlement offers should affect the award of interest or costs." "Whether Perpetual should pay David El-Bayeh's costs, and on what basis." 'Whether CTC was entitled to indemnity costs based on its Calderbank offer.' "Whether Youssef El-Bayeh should pay Perpetual's costs, including costs Perpetual was ordered to pay to David El-Bayeh." 'What orders should be made on the cross-claims.']

Ratio Decidendi

Because no restitutionary amount had yet been ordered and its quantification was disputed, there could be no default under the mortgage justifying immediate possession; the proper course was judgment for the restitutionary amount and time to pay, with Perpetual able to seek possession if payment was not made. Perpetual was entitled to interest because its payment discharged a mortgage secured over David El-Bayeh's land, but interest should run only from when he became aware of the fraud and only to the date of his adequate settlement offer, at the loan agreement rates as evidence of the interest the mistaken payment might have earned. Costs were determined by the ordinary rule as modified...

Court Disposition

Consequential orders made: Perpetual obtained restitutionary judgment against David El-Bayeh and judgment against Youssef El-Bayeh; Perpetual's claims against CTC and Mr Saadie were dismissed; costs and cross-claim orders were made.

Orders

  • ['Judgment for Perpetual against David El-Bayeh for $181,982.87 plus interest at the loan agreement rates from 1 September 2006 to 17 February 2010.' 'David El-Bayeh to pay that amount within 28 days of its quantification as agreed or determined by the Court.' "Perpetual to pay half of David El-Bayeh's costs of that...