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Jessup v Laghaifar

 

[2002] QSC 337

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

de JERSEY CJ

Application No 396 of 2002

IAN DAVID JESSUP AS LIQUIDATOR OF A RUNOUT MORTGAGE

Applicant

BUSINESS RUN BY MORTGAGES NORTH PTY LTD

 

and

 

SOHAIL LAGHAIFAR

Respondent

CAIRNS

DATE 03/10/2002

JUDGMENT

THE CHIEF JUSTICE: This is an application for removal of a caveat and for an order restraining the respondent from lodging further caveats over the land without first obtaining the Court's leave. It concerns a mortgage over a piece of vacant land, the mortgage having been given to secure the repayment of an advance of $65,000 which was made and in respect of which there has been default leading to the service of notices of default. There have been attempts to sell the land by the mortgagee and one recently has failed because of the presence of the caveat.

MR WRENN: Your Honour, sorry to interrupt you but - consent with my learned friend, but my understanding was that the purchaser withdrew, rather than-----

MR PHILP: Well no, your Honour, he terminated it on the basis of, as he was able to, because the caveat wasn't removed by a certain date.

THE CHIEF JUSTICE: There was a repudiation because the mortgagee could not sell because it could not get clear title when the time for completion came. The ground set out in the caveat is “fraudulent mortgage with misleading information contained in the title from the mortgage.”

I have, with Mr Wrenn pursued any basis upon which it might be argued that the mortgagee's title is tainted, but none has been advanced. The principal contention is that this advance was part of an overall very large transaction involving a promise to pay $2 million by way of advance from which the proposed lender withdrew unreasonably. But as this transaction is presented to me, stands on its own.

There may well be a claim for damages arising from a broader issue and there are proceedings on foot in respect of that, but there is no reason from those broader considerations, on the material before me, to query in any substantial way, the title which this mortgagee now seeks to pursue.

I mention in particular the suggestion that Bottoms English who acted as the respondent's solicitor in respect of this transaction or part of it, knew of a limitation on his capacities arising from their having acted on a personal injuries claim he had previously brought. There is a suggestion in the material that a case of unconscionability arises from that. The missing link is any basis for allying Bottoms English with the mortgagee, Mortgages North Pty Ltd.

I have read all of the material in this case and the outlines. I think there is no serious question to be tried as to the title of the mortgagee and I also consider that it is a case where there should be some limitation on any further attempt to lodge a caveat in light of the past history of the matter, so I will order that in terms of paragraphs 1, 2 and 3 of the originating application.

Close

Editorial Notes

  • Published Case Name:

    Ian David Jessup as Liquidator of a Runout Mortgage Business Run by Mortgages North Pty Ltd v Sohail Laghaifar

  • Shortened Case Name:

    Jessup v Laghaifar

  • MNC:

    [2002] QSC 337

  • Court:

    QSC

  • Judge(s):

    de Jersey CJ

  • Date:

    03 Oct 2002

Litigation History

No Litigation History

Appeal Status

No Status