Co-owners

Titles Strata Management v Nirta [2015] VSC 187

A husband and wife mortgaged their pizza shop (registered) and home (unregistered) to secure a short term loan with interest at 8% per month (96% per annum) which they defaulted on. The lender obtained judgment against the husband but the wife claimed that her signature was forged. The court believed the wife that her signatures …

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Noble Solutions v Young [2013] NSWSC 1371

This case concerned an equitable mortgage which provided for an exceptionally high interest rate of 130% p/a but somewhat surprisingly the borrowers failed to plead that this rate was unconscionable in their defence. Instead the husband pleaded a defence of non est factum and the wife filed no defence. There was no evidence of the …

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Ly v Ly [2012] NSWSC 643

A brother and sister purchased property as tenants in common in shares 30:70. The sister paid the bulk of the mortgage repayments and costs. The sister claims that her brother holds his 30% interest as constructive trustee for her by virtue of her having carried the burden of the mortgage repayments and costs given his …

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Bendigo and Adelaide Bank v Tombs [2010] NSWSC 1427

The borrower sought to defend on the basis of a failure to serve a s57(2)(b) notice and the lender responded by seeking summary judgement. The borrower’s wife had died and the court found that lender had served a section 57(2)(b) notice on both the borrower and the Public Trustee pursuant to s.61 Probate and Administration …

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Perpetual Trustees Victoria v English [2010] NSWCA 32

The Court of Appeal has provided welcome clarification of the principles to be applied where one co-owner of a property forges the signature of the other on a mortgage. There has been a degree of confusion in the recent caselaw, and injustice in the results, which Justice Sackville decision, with whom Allsopp P and Campbell …

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Permanent Custodians v Tony Geagea [2010] NSWSC 117

In this case the borrowers were three brothers who mortgaged their jointly-owned property. Two of the brothers alleged that the third brother (who is bankrupt) forged their signature. One of them had a very convincing alibi. He pointed out that at the time the document was executed he was in custody in Lebanon in respect …

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Express Business Finance v Monaco [2010] NSWSC 206

In this case a financier loaned monies to a borrower secured on property that he jointly owned with another person. The borrower forged the signature of his co-owner and so when the loan went into default the financier sought orders an order pursuant to s 66G of the Conveyancing Act 1919. This section allows for …

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Perpetual Trustees Victoria v Van den Heuval No 2 [2009] NSWSC 483

In this case the husband left his wife the following note: “I’m very sorry what I have done but I have had a very bad gambling problem and I have borrowed money on the house and I can’t repay it. Now they are taking the house…” The drafting of the mortgage meant that it was …

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Perpetual Trustees Victoria v English [2009] NSWSC 478

The husband forged the wife’s signature. The Court had to decide whether or not the lender would succeed by virtue of the indefeasibility of title or fail completely. Justice Simpson undertook a very thorough examination of the law, which will be very useful in future cases. In summary, he noted that there were two tests. …

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