In order to preserve our clients' confidentiality the case results on this website are limited to those in which there has been a reported decision. However, only a small portion of the cases we act on end up going to trial. In particular, cases involving professional negligence against valuers and solicitors are almost always settled with the insurers.
The nephew and the lender alleged that the borrowers had consented to the loan to the nephew.
The mortgage was an all monies mortgage. Therefore, if the borrowers were not bound by the loan agreement no money would be secured by the mortgage.
Justice Schmidt had difficulty accepting the borrowers’ evidence where it conflicted with the lender’s because the lender had supporting documents, such as file notes, in evidence. Further, His Honour noted:
The borrower’s confusion appeared finally to stem from a difficulty in keeping his story straight, given that the evidence which he was giving was not entirely truthful.
Accordingly, it was held that even though (on expert evidence) the loan agreement was forged, the borrowers were bound by it. This is because the nephew was authorised by them to obtain the loan. Further, the actions of the borrowers after the loan indicated they accepted they were bound by it.