Sabah Yazgi v Permanent Custodians Limited [2007] NSWCA 240

Sabah Yazgi v Permanent Custodians Limited [2007] NSWCA 240

The total amount secured by the mortgage in respect of Sabah Yazgi's interest in the property was nil because clause 6 of the schedule, which prevailed over inconsistent memorandum terms, only secured indebtedness arising from her actual liability under the loan contract, which she did not have due to the forgery. Registration of the mortgage did not extend indefeasibility to Sabah Yazgi's interest in the absence of genuine liability.

Jurisdiction
Australia
Judgment Date
12 September 2007
Procedural Posture
Appeal / Decision on Appeal From Supreme Court Common Law Division
Outcome
Appeal allowed
Legal Topics
['indefeasibility of Title' 'effect of Forged Mortgage' 'joint Tenancy' 'mortgage Debt Construction' 'statutory Interpretation']
['property Law' 'real Property' 'mortgage Law'] ['indefeasibility of Title' 'effect of Forged Mortgage' 'joint Tenancy' 'mortgage Debt Construction' 'statutory Interpretation']

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Procedural Posture

Appeal / Decision on Appeal From Supreme Court Common Law Division

Legal Issues

  1. 1 ['Whether a forged mortgage secures indebtedness over the interest of an innocent joint tenant under a housing loan contract and registered mortgage' "Proper construction of the mortgage and loan contract regarding the meaning and scope of 'Mortgage Debt'" 'Extent of indefeasible title conferred by registration of a forged mortgage']

Ratio Decidendi

The total amount secured by the mortgage in respect of Sabah Yazgi's interest in the property was nil because clause 6 of the schedule, which prevailed over inconsistent memorandum terms, only secured indebtedness arising from her actual liability under the loan contract, which she did not have due to the forgery. Registration of the mortgage did not extend indefeasibility to Sabah Yazgi's interest in the absence of genuine liability.

Court Disposition

Appeal allowed

Orders

  • ['The appeal is allowed.' 'Orders of Harrison AsJ on 30 March 2007 and 1 August 2007 are set aside.' 'It is declared that in respect of the interest of Sabah Yazgi in the land described in Folio Identifier C/338681 at 5 Myall Street, Punchbowl, the total amount secured by registered Mortgage AA438750J is nil.' 'It...