PERPETUAL TRUSTEES VICTORIA LIMITED v CIPRI & ANOR [2008] NSWSC 1128

PERPETUAL TRUSTEES VICTORIA LIMITED v CIPRI & ANOR [2008] NSWSC 1128

The mortgage, although containing a forged signature, secures the obligations of Mrs Cipri under the loan agreement and is enforceable over the whole property (including Mr Cipriʼs interest) due to the effect of registration and the terms providing joint and several liability; Mr Cipri is not personally liable under the loan agreement and no personal equity or contract for the purpose of the Contracts Review Act arises in his favour to set aside the mortgage; accordingly, his appropriate remedy is compensation from the Torrens Assurance Fund, and Mrs Cipri is liable to indemnify the Registrar-General for amounts so paid.

Parties
Plaintiff: Perpetual Trustees Victoria Limited; First Defendant/cross Claimant: Domenico Cipri; Second Defendant/third Cross Defendant: Sandria Delores Cipri; Cross Defendant/third Cross Claimant: Registrar-General of New South Wales
Jurisdiction
Australia
Judgment Date
29 October 2008
Procedural Posture
Civil / Final Judgment After Contested Hearing With Cross Claims
Outcome
Orders for possession in favour of plaintiff; monetary judgment for cross-claimant against Registrar-General; specific orders for payment, costs, and indemnity as set out in orders (1)-(9); dismissal of first cross-claim.
Legal Topics
Indefeasibility of Title, Forged Mortgage, Personal Equity, Contracts Review Act, Torrens Assurance Fund, Co Ownership, Mortgage Enforcement, Remedies for Forgery, Indemnity
Property Law Real Property Equity Contract Law Remedies Indefeasibility of Title Forged Mortgage Personal Equity +6 more

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Parties

Perpetual Trustees Victoria Limited

Plaintiff

Domenico Cipri

First Defendant/cross Claimant

Sandria Delores Cipri

Second Defendant/third Cross Defendant

Registrar-General of New South Wales

Cross Defendant/third Cross Claimant

Procedural Posture

Civil / Final Judgment After Contested Hearing With Cross Claims

Legal Issues

  1. 1 Whether the mortgage secures moneys owing by the second defendant and if so, in what quantum
  2. 2 Whether the plaintiff may enforce the mortgage over the whole property, including the first defendant's interest
  3. 3 Whether a personal equity prevents enforcement of the mortgage over the first defendant’s interest

Ratio Decidendi

The mortgage, although containing a forged signature, secures the obligations of Mrs Cipri under the loan agreement and is enforceable over the whole property (including Mr Cipriʼs interest) due to the effect of registration and the terms providing joint and several liability; Mr Cipri is not personally liable under the loan agreement and no personal equity or contract for the purpose of the Contracts Review Act arises in his favour to set aside the mortgage; accordingly, his appropriate remedy is compensation from the Torrens Assurance Fund, and Mrs Cipri is liable to indemnify the Registrar-General for amounts so paid.

Court Disposition

Orders for possession in favour of plaintiff; monetary judgment for cross-claimant against Registrar-General; specific orders for payment, costs, and indemnity as set out in orders (1)-(9); dismissal of first cross-claim.

Orders

  • First and second defendants to give plaintiff possession of 48 Beechwood Avenue, Greystanes NSW 2145.
  • Writ of possession to issue after eight weeks from final orders.