Perpetual Trustees Victoria Limited v Peter Van den Heuvel No 2 [2009] NSWSC 483

Perpetual Trustees Victoria Limited v Peter Van den Heuvel No 2 [2009] NSWSC 483

The judgment for possession of the whole property required the property to be dealt with inconsistently with continuance of the joint tenancy and therefore severed it. As no evidence showed unequal contributions or justified a different beneficial division, the cross-claimant was to be regarded as having a one-half beneficial interest. Her compensable loss under s 129 was not the whole amount needed to discharge the mortgage, but the difference between the value of her unencumbered one-half share and the amount she would actually receive, if any, after payment of the plaintiff's mortgage.

Jurisdiction
Australia
Judgment Date
04 June 2009
Procedural Posture
Proceedings for Compensation From the Torrens Assurance Fund and Consequential Orders Concerning Possession After Fraudulent Execution of a Mortgage / Consequential Orders; Determination of the Measure of Compensation Payable to the Second Defendant/cross Claimant and Orders on Cross Claims
Outcome
Judgment for the plaintiff for possession of the whole property; first cross-claim dismissed; second defendant/cross-claimant declared entitled to compensation from the Torrens Assurance Fund, with amount to be agreed or assessed by the Court; costs and indemnity orders made.
Legal Topics
['torrens Assurance Fund' 'fraudulent Mortgage' 'joint Tenancy' 'severance' 'indefeasibility of Registered Interests' 'judgment for Possession' 'measure of Compensation']
['real Property' 'torrens Title' 'equity' 'civil Procedure'] ['torrens Assurance Fund' 'fraudulent Mortgage' 'joint Tenancy' 'severance' 'indefeasibility of Registered Interests' 'judgment for Possession' 'measure of Compensation']

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Procedural Posture

Proceedings for Compensation From the Torrens Assurance Fund and Consequential Orders Concerning Possession After Fraudulent Execution of a Mortgage / Consequential Orders; Determination of the Measure of Compensation Payable to the Second Defendant/cross Claimant and Orders on Cross Claims

Legal Issues

  1. 1 ['What loss was suffered by the cross-claimant, a joint tenant, as a result of the fraudulent execution of the mortgage by the other joint tenant for which she is entitled to compensation from the Torrens Assurance Fund.' "Whether the cross-claimant's compensation should be the amount required to discharge the whole mortgage or only the loss affecting her one-half beneficial interest." 'Whether the judgment for possession would sever the joint tenancy.']

Ratio Decidendi

The judgment for possession of the whole property required the property to be dealt with inconsistently with continuance of the joint tenancy and therefore severed it. As no evidence showed unequal contributions or justified a different beneficial division, the cross-claimant was to be regarded as having a one-half beneficial interest. Her compensable loss under s 129 was not the whole amount needed to discharge the mortgage, but the difference between the value of her unencumbered one-half share and the amount she would actually receive, if any, after payment of the plaintiff's mortgage.

Court Disposition

Judgment for the plaintiff for possession of the whole property; first cross-claim dismissed; second defendant/cross-claimant declared entitled to compensation from the Torrens Assurance Fund, with amount to be agreed or assessed by the Court; costs and indemnity orders made.

Orders

  • ['That there be judgment for the plaintiff, as against the second defendant, for possession of the whole of the land in Certificate of Title folio identifier 24/12658 and known as 18 McIntosh Street Queanbeyan NSW.' 'That a writ of possession issue, such writ not to issue before 8 weeks from today.' 'That the first...