Perpetual Trustees Victoria Limited v Menzies [2012] NSWSC 1066

Perpetual Trustees Victoria Limited v Menzies [2012] NSWSC 1066

Ms Menzies was not liable under the Perpetual mortgage or loan agreement because the Court was satisfied that she did not execute either document, did not authorise their execution, did not authorise use of her Certificate of Title, and was the victim of a complicated fraud involving forged signatures and a forged Certificate of Title. The evidence did not establish estoppel, actual authority, ostensible authority, ratification or adoption sufficient to bind her to the loan or mortgage.

Jurisdiction
Australia
Judgment Date
10 September 2012
Procedural Posture
Common Law Proceeding Concerning a Mortgage and Loan Agreement, Including a Claim for Possession and Monetary Judgment / Principal Judgment After Hearing
Outcome
Judgment for Ms Menzies on the action brought by Perpetual and Challenger; she is not liable under either the mortgage or the loan agreement; cross-claims were not considered.
Legal Topics
['mortgage Enforcement' 'forged Mortgage and Forged Certificate of Title' 'fraud' 'estoppel by Representation' 'actual Authority and Ostensible Authority' 'ratification' 'jones V Dunkel Inference']
['property Law' 'banking and Finance' 'equity' 'agency' 'evidence'] ['mortgage Enforcement' 'forged Mortgage and Forged Certificate of Title' 'fraud' 'estoppel by Representation' 'actual Authority and Ostensible Authority' 'ratification' 'jones V Dunkel Inference']

Case Brief

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Procedural Posture

Common Law Proceeding Concerning a Mortgage and Loan Agreement, Including a Claim for Possession and Monetary Judgment / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether Ms Menzies executed the Perpetual loan agreement or mortgage, or authorised their execution on her behalf.' 'Whether the Certificate of Title relied on for registration of the Perpetual mortgage was forged.' 'Whether Ms Menzies was liable under the mortgage or loan agreement despite forged signatures.' 'Whether Ms Menzies was estopped from denying the mortgage or loan agreement by silence or conduct.' 'Whether Mr Reddy had actual or ostensible authority to bind Ms Menzies to the loan agreement or mortgage.' 'Whether Ms Menzies ratified or adopted the Perpetual loan or mortgage.' "Whether it was necessary to determine Ms Menzies' cross-claims."]

Ratio Decidendi

Ms Menzies was not liable under the Perpetual mortgage or loan agreement because the Court was satisfied that she did not execute either document, did not authorise their execution, did not authorise use of her Certificate of Title, and was the victim of a complicated fraud involving forged signatures and a forged Certificate of Title. The evidence did not establish estoppel, actual authority, ostensible authority, ratification or adoption sufficient to bind her to the loan or mortgage.

Court Disposition

Judgment for Ms Menzies on the action brought by Perpetual and Challenger; she is not liable under either the mortgage or the loan agreement; cross-claims were not considered.

Orders

  • ['I give judgment for Ms Menzies on the action brought by Perpetual and Challenger against Ms Menzies.' 'She is not liable under either the mortgage or the loan agreement.' 'It may be that some ancillary orders need to be made, and I will give directions about this matter and as to costs after hearing from the...