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Perpetual Trustees Victoria Limited v Mason[2022] QDC 246

Perpetual Trustees Victoria Limited v Mason[2022] QDC 246

DISTRICT COURT OF QUEENSLAND

CITATION:

Perpetual Trustees Victoria Limited v Mason [2022] QDC 246

PARTIES:

PERPETUAL TRUSTEES VICTORIA LIMITED

ACN 004 027 258

(Plaintiff)

v

ELIZABETH LOUISE MASON

(Defendant)

FILE NO:

2610/18

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

11 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

26 July 2022

JUDGE:

Porter QC DCJ

ORDERS:

  1. The defendant pay the plaintiff $376,733.01.
  2. The defendant give possession of the land described as Lot 6 on Building Unit Plan 5632 being the whole of the land contained in Title Reference Number 164971157 to the plaintiff.
  3. The defendant pay the plaintiff’s costs of the application and the proceeding on a standard basis.

CATCHWORDS:

COURT PRACTICE AND PROCEDURE – QUEENSLAND CIVIL PROCEDURE – SUMMARY JUDGMENT – where the plaintiff applies for summary judgment under rule 292(1) of the Uniform Civil Procedure Rules 1999 – whether the defendant has any real prospect of defending the plaintiff’s claim – whether there is a need for a trial of the claim or part of the claim.

CONTRACTS – LOANS AND MORTGAGES – FORM AND EXECUTION – where the plaintiff seeks to recover amounts owing under a loans advanced to the defendant – where the advances were secured by a mortgage over a residential unit owned by the defendant – where the defendant alleges that the loan agreements and mortgage are not binding because of alleged anomalies on the terms and execution of the documents or because of unconscionable conduct by the defendant’s father – where there is no evidence that the plaintiff knew of or was involved in alleged unconscionable conduct – where the defendant does not deny signing the documents but alleges only that she has no recollection of doing so 

REAL PROPERTY – MORTGAGE – TORRENS SYSTEM – INDEFEASIBILITY OF TITLE – where the plaintiff claims possession of property based on default by the defendant under a registered mortgage – where the defendant claims the plaintiff does not have the benefit of indefeasible title because the mortgage was not validly executed – whether the alleged defects in proper execution affect the indefeasibility of the interest arising under the mortgage – where no fraud is alleged against the plaintiff arising out of the alleged invalid execution

LEGISLATION:

Land Title Act 1994 ss 15, 73, 78, 161, 162, 184 & 185

Uniform Civil Procedure Rules 1999 Rule 292

CASES:

Bahr v Nicolay (No 2) (1988) 164 CLR 604

Breskvar v Wall (1971) 126 CLR 376

Clark v Raymor (Brisbane) Pty Ltd [1982] Qd R 479

Deputy Commissioner of Taxation v Salcedo [2005] QCA 227

Frazer v Walker [1967] 1 AC 569

Gray v Morris [2004] 2 Qd R 118

Hutchinson v Lemon [1983] 1 Qd R 369

Rock v Todeschino [1983] 1 Qd R 356

COUNSEL:

M. May for the Plaintiff

S. Fisher for the Defendant

SOLICITORS:

Thomson Geer for the Plaintiff

Stolar Law for the Defendant

Table of Contents

The pleadings3

Perpetual’s amended statement of claim3

Ms Mason’s defences4

Perpetual’s reply7

The summary judgment application7

The evidence9

Purchase of the Toowong unit9

Acquisition of the Taylor Street house9

The first loan application9

The first loan agreement11

The advance under the first loan agreement13

The Mortgage13

Relevant provisions of the Mortgage14

Mr Mason’s role in the Taylor Street purchase16

The Second Facility16

Advances under the Second Facility20

The sale of the Taylor Street house20

Defaults21

AFCA proceedings22

Body corporate issues relating to the Toowong unit.23

Challenges to Perpetual’s statements of account24

Analysis25

The broad “anomalies and discrepancies”  contention25

The first loan agreement is binding26

Perpetual has indefeasible title to the Mortgage28

The second loan agreement is binding31

No unconscionability defence arises31

The alleged advances and default31

Irregularities in account statements contentions31

Need for a trial/discretionary considerations32

Conclusion32

  1. [1]
    This is an application for summary judgement by the plaintiff.  For the reasons which follow, the plaintiff (Perpetual) is entitled to judgment for the whole of its claim.  

The pleadings

Perpetual’s amended statement of claim

  1. [2]
    Perpetual is a company which provides trustee and financial services.  It alleges by its Amended Statement of Claim (ASOC) that:
    1. (a)
      By loan agreement dated on or about 2 March 2006 (the Loan Agreement in the ASOC), it agreed to lend $287,000 (the First Facility) to the defendant (Ms Mason) and took a registered mortgage (the Mortgage) to secure that advance over, inter alia, a residential unit owned by her located at 6/1 Delunga Street, Toowong (the Toowong unit);
    2. (b)
      The loan agreement was varied to add a further advance on or about 27 September 2012 of $22,500 (the Second Facility);
    3. (c)
      Perpetual advanced the money;
    4. (d)
      On 19 June 2017, Ms Mason defaulted by failing to repay the Facilities in accordance with the terms of the Loan Agreement and the Mortgage;
    5. (e)
      On 4 October 2017, Perpetual gave written notice of the default to Ms Mason;
    6. (f)
      Ms Mason has failed to pay the sums due and has refused to surrender possession of the Toowong unit;
    7. (g)
      On 20 April 2021, the Magistrates Court ordered Ms Mason to pay the body corporate responsible for the Toowong unit contributions and penalties totalling $23,294.36, along with costs to be assessed, which were assessed at $85,653.77;
    8. (h)
      As of 1 September 2021, Ms Mason owed the body corporate $112,523.98 made up of the judgment and costs along with some further levies totalling about $3500;
    9. (i)
      On 10 September 2021, Perpetual paid the body corporate debt and is entitled to recover it as an expense incurred in preserving or maintaining the Toowong unit under the terms of the Mortgage;
    10. (j)
      As of 31 January 2022, the total indebtedness of Ms Mason to Perpetual under the first facility was $333,666.46 and under the second was $31,214.51, and in each case accruing interest.
  2. [3]
    Perpetual claimed judgment for the sums claimed and possession of the Toowong unit for default under the Mortgage, along with costs on an indemnity basis.

Ms Mason’s defences

  1. [4]
    Ms Mason filed an Amended Defence, which she drafted herself, on 28 March 2022 (the Amended Defence).  The Amended Defence was defective in form and content.  So far as can be discerned, Ms Mason appeared to raise the following matters:
    1. (a)
      Perpetual had failed to comply with various identified consumer protection statutes, though no specific failure was identified;
    2. (b)
      She seemed to dispute the identification of the Toowong unit in the statement of claim and thereby disputed that the body corporate debts related to the secured property under the Mortgage.
    3. (c)
      She alleged that Perpetual had failed to provide her with copies of the facility documents pleaded and alleged that Perpetual falsely created those documents in some unspecified way. She also alleged that the dealings pleaded were not carried out with her knowledge and consent (paragraph 3);
    4. (d)
      Payment was made to address the default on 19 June 2017 and Perpetual took steps in the proceedings despite her complaint to the AFCA (amongst other things) (paragraph 4);
    5. (e)
      There were inconsistencies and irregularities in the calculations and amounts that were deducted by Perpetual without authority (paragraph 5).
  2. [5]
    On 5 July 2022, a Further Amended Defence (FAD) was filed which was settled by counsel.   It states that it is further to and in the alternative to the Amended Defence.  It thereafter incorporates some paragraphs of the Amended Defence by reference.   It is convenient to ignore those references and set out the specific allegations advanced in the FAD as those matters comprised the basis of the issues raised at the hearing by Ms Mason.
  3. [6]
    As to the loan agreement, the FAD alleges that:
    1. (a)
      The handwriting appearing in the body of the Loan Agreement document is not Ms Mason’s handwriting;
    2. (b)
      Ms Mason did not authorise anyone to complete the information contained in the Loan Agreement and has no knowledge as to how the data in the Loan Agreement or application form was populated;
    3. (c)
      As to the execution of the Loan Agreement, pleads:

3.6   In relation to the Loan Agreement:

  1. The purported agreement date expressed as “2 [sic] day of March 2006” is not in the Defendant’s handwriting.
  2. The Defendant did not authorise anyone to apply this date to the document.
  3. The Defendant has absolutely no recollection of signing the Loan Agreement.
  4. The Defendant did not give anyone authority to apply her signature to this document, or sign it on her behalf.
  5. The Loan Agreement Contains what appears to be an attestation from “Susan Kay Raatz” “C. Dec 82625 COMMISSIONER FOR DECLARATIONS” with a signature purporting to be from this person.
  6. The Defendant says that she has never met Susan Key Raatz, and that if this document was signed by her (about which she is not sure) it definitely was not witnessed by Susan Kay Raatz.
  7. By reason of the foregoing matters in this paragraph of this pleading, the Defendant says that the execution and attestation of the Loan Agreement is irregular and unauthorised.
  1. (d)
    There is no allegation that Ms Mason did not sign the Loan Agreement.  
  2. (e)
    Ms Mason appears to plead unconscionable conduct (or perhaps undue influence) as follows:

3.7  In and around Mach 2006, the Defendant was:

  1. 25 years of age (having been born on 25 June 1981 in Portland, Oregon, United Stated of America).
  2. Completely inexperienced in business or financial affairs.
  3. Had no knowledge of how loans and mortgages operated.
  4. Heavily reliant on her late father Wayne Sydney Mason (who died on 15 June 2022) for advice.
  5. Received no explanation from her late father Wayne Sydney Mason about any transaction or borrowing or mortgage relating to the Plaintiff.
  6. Manipulated by her late father in all of her financial dealings relating to any property or mortgage or loan.
  7. Received no explanation from my late father Wayne Sydney Mason about any transaction or borrowing or mortgage relating to the Plaintiff.
  8. Received no independent legal advice, commercial advice or financial advice about the wisdom of entering into any financing arrangements with the Plaintiff.
  9. Working as an international flight attendant for Virgin Australia, or backpacking and travelling overseas (intermittently).
    1. (f)
      By reason of the matters in 3.6 and 3.7, Ms Mason alleges that she is either not bound by the Loan Agreement or that its enforcement would be unconscionable. Notably, though, there is no allegation of any knowledge or involvement by Perpetual in this alleged conduct.
  1. [7]
    As to the Mortgage, the FAD pleads:

4.3 The Defendant denies that the Mortgage was purportedly executed by her on 2 March 2006 in circumstances where:

  1. The signature block of this Mortgage document expresses the “Witnessing Officer” to be “Susan Kay Raatz” “C. Dec 82625 COMMISSIONER FOR DECLARATIONS” with a signature purporting to be from this person.
  2. The Defendant says that she has never met Susan Kay Raatz, and that if this document was signed by her (about which she is not sure) it definitely was not witnessed by Susan Kay Raatz.
  3. By reason of the foregoing matters in this paragraph of this pleading, the Defendant says that the execution and attestation of the Loan Agreement is irregular and unauthorised.
  1. [8]
    Again, Ms Mason does not plead that she did not sign the Mortgage. In fact, paragraph 4.3a seems to admit that possibility.  Ms Mason also relies on unconscionability and the other matters in paragraph 3 of the FAD to allege she is not bound by the Mortgage.[1] 
  2. [9]
    The FAD does not admit that funds were advanced under the two facilities seemingly because, by paragraph 7, Ms Mason pleads she “does not know and cannot admit how the funds” pursuant to the two Facilities were disbursed by the plaintiff.  
  3. [10]
    The FAD does not admit the default, the default notice and the failure to remedy the default.  It does admit Ms Mason remains in possession of the Toowong unit but denies any obligation to give possession.
  4. [11]
    The FAD fails to plead to the specific allegations about the body corporate debts made by Perpetual and makes the following general response:
    1. In reply to paragraphs 11A – 11E of the ASOC, the Defendant:
  1. 12.1
    Says that the costs assessment referred to in paragraph 11B of the ASOC ($85,653.77) is excessive or exorbitant or unconscionable.
  2. 12.2
    Says that the Body Corporate Debt of $112,523.93 pleaded in paragraph 11C of the ASOC is excessive or exorbitant or unconscionable.
  3. 12.3
    Denies these allegations because it was not necessary for the Body Corporate Debt to be paid by the Plaintiff as it was not an expense reasonably incurred by the plaintiff in preserving or maintaining the Security Property (as defined in the Loan Agreement).
  1. [12]
    The FAD pleads a rolled-up plea to all the allegations in the ASOC of current indebtedness and entitlement to possession and interest by reference to paragraphs 3, 4 and 6 of the Amended Defence, (each of which comprise defective allegations).  The FAD also (impermissibility) includes a prayer for relief, seeking various declarations.
  2. [13]
    Ms Mason’s defences, together and apart, fail to meet the minimum requirements for a proper defence under the Uniform Civil Procedure Rules 1999 (‘UCPR’).  Perpetual is entitled to have both pleadings struck out and sought that relief in the alternative.  However, Perpetual pressed its claim for summary judgment.  

Perpetual’s reply

  1. [14]
    Perpetual’s reply is understandably brief.  In summary, it does not admit the allegations in 3.6, 3.7 and 4.3 and alleges that in any event, those allegations provide no answer to the allegations in the ASOC to which they respond.  The reply also deals with the complaints about the assessed costs and the body corporate costs claimed on the basis that the sum claimed primarily comprise the amount of a judgment of the Magistrates Court.

The summary judgment application

  1. [15]
    Perpetual’s application was initially listed for hearing on 8 February 2022.  Ms Mason filed her first affidavit on 1 February 2022 (the February affidavit).  The application was adjourned to 8 May 2022 at Perpetual’s request.  The current ASOC was filed on 16 February 2022 and the Amended Defence on 28 March 2022.  By consent, the application was adjourned to 14 June 2022.  On 25 May 2022, Ms Mason filed her second affidavit (the May affidavit).  Shortly before the 14 June hearing, Ms Mason obtained legal representation, and Perpetual consented to a further adjournment to 26 July for Ms Mason’s solicitors to have an opportunity to advise.  The result was the FAD and Ms Mason’s third affidavit, filed in early July (the July affidavit).   As can be seen, Ms Mason has had a number of opportunities to put forward pleadings, evidence and submissions to make good her defence. 
  2. [16]
    At the eventual hearing, Ms Mason’s counsel conceded that Ms Mason had received the benefit of the advance of $287,000 under the First Facility.[2]  Further, while he did not concede that there was no defence to the claim arising from the alleged unconscionability or influence of Ms Mason’s father or to the claim relating to payment of the body corporate amounts, he made no positive submission in support of the defences to those claims.
  3. [17]
    Ms Mason’s counsel rather placed primary emphasis on the contention that Ms Mason was not bound by either the Loan Agreement (as defined in the pleadings) or the Mortgage because on her evidence, there were irregularities in the execution of those documents which had the consequence that they were not binding on her.  In respect of the Mortgage, his argument had to confront the particular difficulty that the Mortgage was registered. 
  4. [18]
    Rule 292 UCPR provides:
    1. (1)
      A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant if the court is satisfied that—
  1. (a)
    the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and
  1. (b)
    there is no need for a trial of the claim or the part of the claim;
  1. (2)
    The court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.
  1. [19]
    Rule 292(1) is familiar and the applicable principles well-settled. If it is shown that there is no real, as opposed to fanciful, prospect of success on the defence, and there is no need for a trial of claim, summary judgment on the claim may be granted.[3] The discretion to order summary judgment must be exercised with great care to ensure that, under the guise of achieving expeditious finality, a party is not improperly deprived of its opportunity for trial of its case.[4]   However, it is not sufficient to resist an application for summary judgment to adduce voluminous evidence, or to raise numerous issues or to make vague complaints about the plaintiff or its conduct.  The appropriate caution of a Court in ordering summary judgment must be informed by the whether a defence with a real prospect of success is shown and whether there is a good reason shown for a trial where no prospect of defence is made out at the time of the application. 

The evidence

Purchase of the Toowong unit

  1. [20]
    The genesis of the dealings between the parties is the purchase of the Toowong unit by Ms Mason.  She was 19 at the time.  Initially the purchase was funded by St George Bank. She says her father insisted “on personally handling all arrangements of the purchase”.   She describes the process of documenting the purchase in this way[5]:
    1. It was around this time, I remember meeting my father at his unit on Ascog Tce in Toowong and a man and a women I had not met before were there with us also to discuss the purchase. I was reluctant to sign any documents as information being shared was very vague and I knew my father to be a bully but it is impossible to avoid my father’s intentions and I felt forced to sign.
    2. Obtaining finance for the purchase was carried out by a mortgage broker friend of my father’s, Noel Laird and a loan in my name was arrange with St George Bank.
    3. I resided at the (Unit) until early 2003 when I moved overseas after accepting a tennis coaching position in the UK and it was around this time my father organised a further advance of funds on my loan with St George Bank through his broker friend, Noel Laird.
  2. [21]
    A title search for the Toowong unit shows it was registered in Ms Mason’s name as registered proprietor on 8 February 2001 with St George Bank as registered mortgagee.  That title search also shows Perpetual’s Mortgage as registered on 21 March 2006 and never cancelled.  Ms Mason challenges the description of the Toowong unit by its lot on plan description[6], however this reflects a lack of understanding of the status of a lot on plan description of the interest in land and the Community Titles Scheme.  In any event, the CTS is recorded on the title as CTS 9571. 

Acquisition of the Taylor Street house

The first loan application

  1. [22]
    On 21 March 2006, Ms Mason became the registered proprietor of a house located at 284 Taylor Street, Grenville in Toowoomba (the Taylor Street house).[7]  The first formal step in the purchase process was the submission of a loan application form (the first loan application).[8]
  2. [23]
    The first loan application was completed by handwritten entries.  It identified Ms Mason as the borrower and her occupation as tennis coach.  It identified St George Bank as her bank contact. The “Details of the Loan” section of the application provided that a loan amount of $287,000 was required for an investment purchase and to pay out St George Bank.
  3. [24]
    It offered the Toowong unit and the Taylor Street house as security and estimated the value of those properties at $245,000 and $196,000 respectively.  It contained a statement of assets and liabilities which disclosed the Toowong unit as her principal asset and the remaining debt on that unit of $88,300 as her only liability.
  4. [25]
    The application was not to any particular bank.  It appears to have been managed by a Mr Hambly, a friend of her father’s, working for (or as) a mortgage broker called Mortgage Mart of Australia (MMA).  
  5. [26]
    The document tendered as the first loan application is irregular in form. As tendered it comprised 7 pages, not in proper order.  The first loan application was plainly a 6 page document but only pages 1, 2, 4 and 5 appear.  Other documents are interleaved including a 2 page Privacy Act consent, and a loan purpose checklist showing the purpose was to pay out the St George debt on the Toowong unit and to buy the Taylor Street house.  Importantly, though the application as tendered was irregular, the fax header stamps show that four of the six pages had been sent by fax from “Tennis Mason” on 6 February 2006.  Each of the faxed pages contained an apparent signature from Ms Mason.  The strong inference is that the pages requiring signature (at least) were sent by fax from “Tennis Mason”.        
  6. [27]
    The circumstances of the creation of the first loan application are explained at length by Ms Mason.  She says that her father conceived the idea of her buying Taylor Street and told her that Mr Hambly of MMA would arrange finance with her father.[9]
  7. [28]
    In respect of that idea, and its execution, she repeats her complaint that her father had manipulated control over her financial affairs her whole life (she was at that time about 25) and it was impossible to prevent him doing so.  She said in her February affidavit that she did “NOT [capitals in affidavit] recall signing and signing any loan contract or agreements in an entirety during this time”.[10]  She expands on this in respect of the first loan application in her July affidavit.  She says the handwriting in the body of the application is not hers.
  8. [29]
    She also notes the same points I have made about the irregular form of the first loan application and swears:
    1. (a)
      “I did not produce or sign a document in that format or authorise it at that time (2006)”;
    2. (b)
      “I did not authorise anyone to complete the information contained in the” loan application and that she had no knowledge of how the data was obtained; and
    3. (c)
      Although the signatures are similar to her usual signature, she cannot recall executing the documents bearing her signature.
    4. (d)
      Oddly, the exception is the signature on the applicant’s declaration which she says she believes that the signature is a copy of her signature used in the purchase of the Toowong unit in 2001. 
  9. [30]
    Her evidence on the first loan application is an example of a recurring feature of her sworn statements, which are carefully formulated and confined, leaving obvious questions unaddressed.  In this case, for example, she does not ever swear that the signatures are not hers nor that she did not sign the pages bearing her signature (even the evidence about the alleged copy is not unequivocal).  She also notes the fax header but says nothing about whether she would have been sending facsimiles from a fax number recorded as “Tennis Mason” in early 2006, despite her evidence she went to English to coach tennis coach in 2003. 
  10. [31]
    Her July affidavit also reiterates her complaints about her father’s role.  She wrote[11]:

At the time this Application document was purportedly signed by me, my late father Wayne Sydney Mason (who died on 15 June 2022) simply took it on himself to do things supposedly on my behalf and he overwrote my will and did not give me any proper advice about financing transactions or dealings and nor did he explain anything to me. Because of my father’s quite recent death, I have not been able to obtain from him an affidavit relating to the circumstances under which he purported to advise me in dealing with Mortgage Mart Australia.

The first loan agreement

  1. [32]
    Perpetual’s deponent exhibits a first loan agreement hand dated 2 March 2006 (the first loan agreement) and incorporating a Schedule which relevantly provided for an advance of $287,000, repayable by monthly interest only instalments for 10 years, with a default rate of 11.29% and a non-default rate of 7.29%.  It also identifies the Toowong unit and the Taylor Street house as security and incorporates a standard terms document.  It is apparently signed by Ms Mason as follows:

Perpetual Trustees Victoria Limited v Mason [2022] QDC 246

  1. [33]
    The standard terms are in evidence (though they were overtaken by the standard terms incorporated into the second loan agreement, upon which Perpetual sues). 
  2. [34]
    In her February affidavit, Ms Mason deals with the first loan agreement only by her plenary statement of lack of recall of sighting and signing any relevant documents at the time.  She goes further in her July affidavit.  She says the dating is not her writing, and that the document appears to have an impression of her signature but that she has no recollection of signing the document.  That is not a denial that she signed the document.
  3. [35]
    However, there is a direct denial of one matter.  Ms Mason swears[12]:

The document contains at Nasr Affidavit # 1, p 17, what appears to be an attestation from “Susan Kay Raatz” “C. Dec 82625 COMMISSIONER FOR DECLARATIONS” with a signature purporting to be from this person. I say that I have never met Susan Kay Raatz, and that if this document was signed by me (about which I am not sure) it definitely was not witnessed by Susan Kay Raatz. I have researched my personal and business records, and I do not have any documentary evidence which states that I have interacted with Susan Ray Raatz at any time. For example, I do not have any emails or business cards from this person or referring to her.

  1. [36]
    However, Ms Mason still does not swear she did not sign the first loan agreement.  She does swear, however, that it was definitely not witnessed by Ms Raatz.  The subsequent observations suggest this definite view is merely an inference based on the lack of particulars in Ms Mason’s records which she later describes.  If so, that is not an inference which rationally follows.  Commissioners of Declarations normally witness documents without having any previous dealings with the signing party.  Indeed, previous dealings are uncommon.  A Court would be entitled to view this denial with deep scepticism. 
  2. [37]
    There is also another consideration.  In the course of argument, I asked Ms Mason’s counsel whether there was any evidence that Ms Raatz, Commissioner of Declarations 80625, did not exist.  Mr Fisher said on his instructions, Ms Mason had looked for Ms Raatz and found out that she did exist and had retired.   This is confirmed by the search of the JP Register in evidence.
  3. [38]
    As a Commissioner of Declarations, Ms Raatz had the obligations in witnessing an instrument under the Land Title Act 1994 (Land Title Act) which are set out in s. 162(1):

162  Obligations of witness for individual

  1. (1)
    A person who witnesses an instrument executed by an individual must—
    1. first take reasonable steps to verify the identity of the individual and ensure the individual is the person entitled to sign the instrument; and
    2. have the individual execute the instrument in the presence of the person; and
    3. not be a party to the instrument..
  1. [39]
    It would be most odd if Ms Raatz, having had no dealings with Ms Mason nor any interest in her affairs (as Ms Mason swears), failed to comply with basic obligations of her role, though such things have happened.
  2. [40]
    Ms Mason’s evidence about Ms Raatz not having witnessed her signature is highly improbable on the evidence before the Court, including in some respects, on Ms Mason’s own evidence.  However, on a summary judgment application, I cannot reject that part of her evidence.   That is not to say that I accept that evidence nor that Ms Raatz, (if she becomes aware of these reasons), should think any assumption is made that in fact she failed to do her duty in respect of Ms Mason’s documents.

The advance under the first loan agreement

  1. [41]
    Perpetual alleges it advanced $287,000 under the first loan agreement on 16 March 2006.  Ms Mason swears that she does not know how the amount “said to be advanced to me...was actually drawn down and advanced”.[13]  This is not in terms a statement that the money was not advanced, just that Ms Mason did not know how the amount was actually drawn down: i.e., it seems to be referring to the mechanism for the advance, rather than the fact of it being made. Further, Ms Mason accepts that her father was arranging the purchase of the Taylor Street house and that she moved into that house.  Further:
    1. (a)
      The evidence of Perpetual shows the expected suite of documents to give effect to the discharge of the St George mortgage over the Toowong unit and the purchase of the Taylor Street house with both transactions requiring a total sum of funds equal to the advance alleged by Perpetual;
    2. (b)
      The title searches for both properties show entries consistent with those events;
    3. (c)
      Perpetual’s statements confirm the advance; and
    4. (d)
      Ms Mason’s loan application for the Second Facility confirms the fact and amount of the advance (I say more about that document below.  It is sufficient to note here that Ms Mason does not give evidence which impugns its authenticity and content).
  2. [42]
    Ultimately, as I have noted, Ms Mason’s counsel did not maintain a submission that Ms Mason was not paid the $287,000.  Even without that concession, I would have found that Ms Mason had no real prospect of establishing that the advance under the First Facility was not made by Perpetual.

The Mortgage

  1. [43]
    Perpetual obtained a Form 2 mortgage in registerable form to secure advances to Ms Mason.  The Mortgage is stamped and registered.[14]   It provides for a mortgage of both the Toowong unit and the Taylor Street house.  (It is stamped, incidentally, to $287,000.)  It is apparently signed by Ms Mason and witnessed again by Ms Raatz on the same day that Ms Raatz appeared to have witnessed the first loan agreement.
  2. [44]
    Again, in her February affidavit, Ms Mason deals with the Mortgage only by her plenary statement of lack of recall of sighting and signing any relevant documents at the time.  Unlike the first loan agreement, however, Ms Mason does not make any comment about the signature on the Mortgage specifically in her July affidavit when giving more detailed evidence about the Mortgage.  Notably, in the July affidavit she does not allege she does not recall signing the Mortgage, much less that she did not sign it.  
  3. [45]
    She does however repeat the allegation that the signature block of the Mortgage identifies Ms Raatz as the witnessing officer with “a signature purporting to be from this person” and swears again, “I have never met [Ms Raatz] and if this Mortgage document was signed by me (about which I am not sure) it definitely was not witnessed by Ms Raatz”.[15] She then repeats that she has no records of her own identifying Ms Raatz.  I repeat my comments in paragraphs [36] to [39] above in relation to this evidence.
  4. [46]
    Further, Ms Mason gives no evidence that Perpetual knew anything about the alleged irregular execution of the Mortgage (if it was irregular) until it was raised by Ms Mason in her July affidavit on this application.  Nor is there evidence that Perpetual had any part in the irregular execution alleged, nor was any suggestion made to that effect in submissions.  As we will see, the argument advanced is that if a registered Mortgage is irregularly executed, Perpetual is denied the benefits of indefeasibility by virtue of that fact alone, and further, that Ms Mason is not bound by the Mortgage at all.

Relevant provisions of the Mortgage

  1. [47]
    The Mortgage terms relevantly provide:
    1. (a)
      By clause 1.1:

…

“Default Notice” means a notice informing You of your default and given by Us in accordance with clause 7.2.

“Event of Default” means any of the events set forth in clause 7.1.

“Expenses” means all amounts that We incur in relation to:

…

  • Seeking possession of the Property or taking any other action to enforce the Mortgage after an Event of Default,
  • In preserving or maintaining the Property (including paying insurance, rates and taxes), and 

…

“Land” means the land describes as the Land in the Mortgage Form or so much of that Land as remains subject to the Mortgage.

“Mortgage” means the Mortgage Form including all schedules and annexures and this document

“Mortgage Form” means the form of mortgage that You have executed that refers to and incorporates this document.

“Property” means the Land and all rights relating to the Land and included the Improvements.

“Secured Agreement” means

  • Any present or future agreement between Us and You, or any of You, and
  • An agreement that varies such as agreement.

“Secured Money” means:

  • All amounts that are payable at any time or are contingently owing or payable to Us under a Secured Agreement,
  • All amounts that are payment at any time by You, or any of You, to Us on any other accounts whatsoever,
  • All amounts that are advanced by Us on the security of the Mortgage, and
  • Expenses.
  1. (b)
    By clause 2.1:

You acknowledge that by the Mortgage You give Us security over:

  • the Property, and
  • your right to receive any money6 or compensation for the Property.
  1. (c)
    By clause 2.2:

The Mortgage is security for payment to Us of the Secured Money and for the performance of all of your obligations under the Mortgage. You agree to pay the Secured Money as and when the Secured Money becomes due and payable in accordance with the provisions of each Secured Agreement or the Mortgage, or in the absence of any agreement on demand.

  1. (d)
    By clause 2.3

You shall pay interest to Us on the balance outstanding from time to time of the Secured Money calculated on a daily basis and debited monthly on the last day of each Calendar Month. Interest shall be calculated at the rate or rates from time to time agreed between Us and You, or failing agreement, at the rate or rates from time to time charged by Us on comparable mortgage loans.

  1. (e)
    By clause 7.1

Each of the following is an Event of Default:

  • You do not pay any of the Secured Money on time,
  • You fail to comply on time with any of your obligations under the Mortgage,

…

  1. (f)
    By clause 7.2:

When an Event of Default occurs and We choose to exercise our rights under the Mortgage then We will give You a default notice requiring You to remedy the Event of Default. You must have been in default for one day or more before We may do this.

The default notice will allow the minimum period allowed by law (and having regard to clause 7.4) to remedy the default. Any default notice in accordance with this clause may include such information as is required by any statute law governing the exercise of our power of sale as mortgagee.

  1. (g)
    By clause 8.1:

In the event that You fail to rectify the Event of Default in compliance with any Default Notice under clause 7.2 We may then or at any later time exercise all of your powers as owner of the Property and all powers vested in mortgagees by any applicable law.

…

Mr Mason’s role in the Taylor Street purchase

  1. [48]
    I have already touched on some of Ms Mason’s evidence about her father’s role in the Taylor Street acquisition.  She explains further as follows:

3.7  In and around Mach 2006, I was:

  1. 25 years of age (having been born on 25 June 1981 in Portland, Oregon, United Stated of America).
  2. Completely inexperienced in business or financial affairs. I was working as a tennis coach, both abroad and in Australia.
  3. Had no knowledge of how loans and mortgages operated.
  4. Heavily reliant on my late father Wayne Sydney Mason for advice.
  5. Manipulated by my late father in all of my financial dealings relating to any property or mortgage or loan.
  6. My father took the rent from the Taylor Street property in Toowoomba without my consent and did not account to me about it.
  7. Received no explanation from my late father Wayne Sydney Mason about any transaction or borrowing or mortgage relating to the Plaintiff.
  8. Received no independent legal advice, commercial advice or financial advice about the wisdom of entering into any financing arrangements with the Plaintiff.
  9. Working as an international flight attendant for Virgin Australia, or backpacking and travelling overseas (intermittently).
  1. [49]
    Notably, neither this passage, nor any other part of Ms Mason’s evidence, lays any foundation for a contention that Perpetual knew of her father’s alleged control of Ms Mason’s affairs, much less that he acted on behalf of Perpetual in procuring her consent to any of the transactions or that Perpetual took unconscientious advantage of Ms Mason’s vulnerability.   

The Second Facility

  1. [50]
    The Taylor Street house was badly damaged by tenants in mid-2012 and required significant repairs.  Ms Mason swears that she applied for the Second Facility to fund that work, notwithstanding that some insurance would be available.  She decided to sell the house at that point.
  2. [51]
    In that context, she says she met Mr Hambly for the first time in mid-July 2012.  In her February affidavit she then says:

By the end of our phone conversation John (JH) convinced me a ‘Line of Credit’ was best course of action for accessing funds quickly to pay for the repair work and soon after I completed the request form as advised in order to obtain a ‘Line of Credit’ for $22,500 and attached it to a letter (dated 20 July 2012) explaining the reasons for requiring funds along with a copy of my Divers Licence, rates notice, 2 x pay slips and my 2012 tax return for verification purposes and posted it all to John (JH) at Mortgage Mart of Australia.

  1. [52]
    The application for a line of credit along with her covering letter dated 20 July 2012 appears in Perpetual’s material (the second loan application).[16]  It is evident from its contents that Ms Mason was referring to this document in her February affidavit as the “request form”.
  2. [53]
    Her July affidavit goes into more detail about the second loan application.  Properly analysed, her evidence is consistent with her earlier unconditional adoption of the second application in her February affidavit.  She swears that the initials on bottom of each page of the document are hers but that “I do not recollect that when I initialled this document that it had any data in it”.  Notwithstanding that, Ms Mason also swears that the handwriting on the first three pages is hers.  There are no other handwritten parts in the balance of the document except the insertion of $22,500 on page 5 of 11.  However, this is the same number as Ms Mason accepts she wrote on the second application as the loan amount on page 3 of 11. 
  3. [54]
    The upshot of this is that all the material handwriting on the second application is accepted by Ms Mason as being her handwriting.   Ms Mason’s own evidence demonstrates that she signed the second application in the form it is tendered, with the possible exception of the single entry on page $22,500, which merely repeated a figure she had already written. 
  4. [55]
    This conclusion is important.  Ms Mason’s evidence shows that the second loan application was produced by Ms Mason under her own hand at a time when she was an adult woman living an independent life.  It was prepared because of her own dealings with Mr Hambly.   It was prepared to obtain further finance, as Ms Mason knew.  It reflects matters which she accepted to be true at the time.  Those matters include that she had a debt of $287,000: see page 2 of 11.  In the circumstances, that is plainly the debt due to Perpetual, despite Ms Mason identifying MMA (her broker) as the lender.  I also note that Perpetual’s loan statement for the first facility shows that as at July 2012, Ms Mason owed some $289,000.[17]
  5. [56]
    Ms Mason’s correspondence between 8 and 14 August 2012 in respect of the second loan application also shows her personal involvement in that process.  It also shows that Ms Mason at this time was content to tell third parties (in this case her employer) that her father was handling her affairs while she was away.[18]  
  6. [57]
    On or about 27 September 2012, a second loan agreement was apparently executed by both parties for an advance of $22,500 (the second loan agreement).   Once again, Ms Mason makes complaints about this document which echo earlier complaints.  She swears[19]:
    1. (a)
      Although the signature looks like hers she does not recall signing the document;
    2. (b)
      She directly denies it was witnessed by the identified witnessing signatory and does not know and has never met that person;
    3. (c)
      That she had never seen the second loan agreement until late May 2017;
    4. (d)
      She says she never saw the loan terms incorporated by reference into that document until May 2017;
    5. (e)
      She was on holiday overseas in August 2017 and the document bears the date September 2017 (how that is relevant is unclear).
  7. [58]
    The second loan agreement has the following material characteristics.
  8. [59]
    First, it creates a new loan agreement regulating the First Facility from 2006 (designated Facility 1) and the (new) Second Facility for $22,500 (designated Facility 2), on new terms for both, including new specific terms in the text of the second loan agreement and new standard terms incorporated by reference into the second loan agreement.[20]   Perpetual alleges in paragraph 3(b) ASOC that there was a single loan agreement (the Loan Agreement as defined in the ASOC), originally entered in 2006 and varied in 2012.   I think the better view is that the second loan agreement involved a novation of the rights and obligations under the existing first loan agreement and their replacement entirely with the rights and obligations under the second loan agreement.  From the perspective of this application, however, this is a distinction without a difference.
  9. [60]
    Second, the Second Facility seemed to contemplate a fully drawn advance rather than a line of credit because it provides for repayments to be determined in accordance with the assumption that the facility was a fully drawn.  However, this is a matter of form not substance.  Section 7 of the second loan agreement provides for disbursement in accordance with the borrower’s direction.  It also provides an interest rate, a time for repayment and manner of calculation of repayment obligations and a date for final repayment as 15 October 2035.[21]  The terms are apt to apply where Ms Mason in fact treats the facility as a line of credit, subject to the ultimate repayment obligations.  And the evidence shows she did treat it in this way: see paragraph [64] below.
  10. [61]
    Third, the second loan agreement contains the terms relating to default pleaded in the ASOC.  It provides, relevantly:

15.1 Events of Default

Each of the following is an Event of Default:

  • You do not make a Payment on time,
  • You fail to comply on time with any of your obligations under the Loan Offer or these Terms and Conditions,
  • Any information supplied by You in connection with the Loan Offer or any Security or Security Property is false or, in our opinion, misleading,
  • You or a Guarantor breaches any term or condition of any Security or any other agreement with Us,
  • You or a Guarantor becomes insolvent (within the meaning of the Corporations Act),
  • You or a Guarantor dies or becomes mentally incapacitated or, if a corporation, is dissolved;
    1. (a)
      We may give You notice in writing, a statement or a demand for payment by delivering it to You personally or by leaving it at your residential or business address, or by sending it by post, facsimile or similar facility to your residential or business address. For this purpose We can use the address that We have recorded for you.
    2. (b)
      Subject to clause 14.8, We may communicate with You at your last known Electronic Address.
    3. (c)
      Service by post may be effected by properly addressing, preparing and posting the notice, statement or demand for payment as a letter.
    4. (d)
      Service by electronic communication is effected at the time when the electronic communication enters the information system of the addressee.
    5. (e)
      If the notice is a demand for payment, it can be signed by any officer of Us, or any solicitor of other agent authorised by an officer of Us. Any other form of notice of statement need not be signed, unless required by law.

If You change your name, address or Electronic Address You must notify Us in writing immediately specifying details of the change.

  1. [62]
    Fourth, in my view on the proper construction of the second loan agreement, the terms are to be read as applying severally to each of “Facility 1” and “Facility 2”.  This follows in my view from the distinction draw between them in the second loan agreement and the definition facility in the standard terms which provides:

“Facility” means the Loan set forth in the Loan Offer unless the Loan Offer provides for the Loan to be divided into separate component parts in which case Facility means each such designated part and “Facilities” has a corresponding meaning.

Advances under the Second Facility

  1. [63]
    It is a little difficult to work out from the two defences whether Ms Mason denies that funds were advanced to her under the Second Facility or merely does not admit that fact.  Her evidence is also ambiguous.  She swears that she has seen no evidence of the drawdown of the loan and does not know how the $22,500 sum was disbursed.[22]  That does not in terms deny the funds were advanced.  Of course, Ms Mason would have seen evidence of those matters if she had read Perpetual’s affidavits, particularly the loan statement for the Second Facility.[23]
  2. [64]
    Perpetual’s loan statement for the Second Facility shows an initial draw down of $10,937.50 in October 2012, perhaps two weeks after the repairs were completed, and prima facie explicable as referable to payment for that work.[24]  It then shows drawdowns of round figures of $3000, $8000, $2000, and $8000 on 21 December 2016, 23 January 2017, 12 May 2017, 9 May 2017 and 8 June 2017.  (There is also a repayment of $15,000 on 13 April 2022.)  Ms Mason does not examine or respond to these account entries.  Her evidence does not establish that, as between Perpetual and Ms Mason, she did not draw down that sum so as to leave a balance of $21,924.48 as of 8 June 2017[25], despite having every opportunity to put on evidence to dispute the statement for the Second Facility.  On the evidence  before the Court, she has no real prospect of showing the advances were not made as shown in that account.
  3. [65]
    Perpetual pleads by paragraph 7 of the ASOC, that Perpetual advanced the ‘Second Principal Sum’ (being $22,500) to Ms Mason; and by paragraph 8 ASOC, that Ms Mason defaulted in repaying that sum.  Perpetual does not particularise how that sum was advanced, nor does there seem to be a request for particulars about that issue.  Although the tenor of the pleading might be thought to be that the $22,500 was a fully drawn advance, it does not actually say that.  It seems to me that the evidence of how sums were advanced under the Second Facility falls within the scope of the unparticularised allegation that the Second Principal Sum was advanced, given that it had been advanced in the amount alleged (less about $570) by June 2017. 

The sale of the Taylor Street house

  1. [66]
    As noted already, Ms Mason swears that she conceived a plan to sell the Taylor Street house to escape her father’s alleged control of her affairs.  She appointed an agent on 21 September 2012 and entered a contract of sale dated 21 November 2012 to sell the property for $240,000.  She had solicitors acting for her in the sale. Settlement was due on 21 December 2012 and the transfer to the buyer was lodged on 31 January 2013.   Ms Mason does not dispute her signature on the sale contract (which is materially similar to all the other signatures on key documents relied upon by Perpetual). 
  2. [67]
    The title search demonstrates that the Taylor Street house was transferred to the buyer and the Mortgage partially released, leaving only the Toowong unit as subject to the Mortgage.  The account statement for the First Facility shows two credits totalling some $202,000 dated 25 January and 21 February 2013.  There is no rational explanation for the source of these funds on the whole of the evidence other than the proceeds of sale of Taylor Street, and Ms Mason gives no evidence on the point.  The Discharge Authority signed by Ms Mason supports that conclusion.[26]

Defaults

  1. [68]
    The statement for the First Facility shows a pattern of large drawdowns starting 18 February 2016 and January 2017. There are eight drawdowns totalling $65,000.  These drawdowns are not addressed in Ms Mason’s evidence.
  2. [69]
    On 4 October 2017, Perpetual sent a Default Notice alleging arrears of $3,252.56 in the First Facility.[27]  The Default Notice was apparently sent by post to the Toowong unit.  There is no suggestion that was not an address for service under the loan facilities.  She has sworn she was living at the Toowong unit at that time.[28]  Ms Mason responded by letter as follows:

To Kemp Strang Lawyers

(on behalf of someone who it seems is then on behalf of someone else)

I am writing in response to your apparent ‘notice of default’ mailed 6 October 2017 and letter received 13 October 2017 for status of apparent funds at 2 October 2017 (copy of first page is attached).

I am deeply disturbed and frustrated by this error you make in sending such notice for funds. I have tried endlessly to gain information on both its existence and how it came about for years now and am still without any clarification on these basic details which, by law, I am absolutely within my rights of knowing and entitled too.

As I have stated in discussions with staff from all involved parties, Mortgage Mart, Advantage and Perpetual Trustee on numerous occasions now, I have exhausted myself in trying to gather basic information in a fair and forgiving manor on details I am supposed to be supplied with that I am now certain only exist in more forged documents in a file of lies every one involved seems to continually offer me in some form or another. So proceed however you see to be fair as fairness is something I am yet to experience in any of my dealings with the above mentioned companies.

Sincerely,

Liz Mason

  1. [70]
    I note Ms Mason’s complaint that she had not received proper information about the loans.  Whatever might have been the position with documentation at the time that letter was written, Ms Mason has received Perpetual’s material during these proceedings and has had a full opportunity to consider and challenge them. 
  2. [71]
    Ms Mason’s Amended Defence alleges that there was no default, seemingly because “payment was debited successfully from the plaintiff’s bank account on 19th June, 2017”.[29]  This appears to be another case where Ms Mason has not understood Perpetual’s case or considered the account statements.  Those statements show that both Ms Mason and Perpetual are correct.  Perpetual is correct that there was a default on 19 June when a sum credited to Facility 1 was reversed on dishonour of the payment.  Ms Mason is correct that the payment ultimately was made for June 2017 on 27 June 2017.  That does not mean that there was no default in payment of the June 2017 payment for a period of days.  The point is moot however, because the Default Notice did not need to rely on, nor include, the June 2017 payment. So much is clear from the amount claimed read with the account statement for the First Facility. The statement for the First Facility shows exactly the default pattern articulated in the Default Notice.  The July, August and September 2017 repayments were each dishonoured, giving a total arrears exactly as stated in the Default Notice.
  3. [72]
    As to the Second Facility, two points should be made:
    1. (a)
      First, it looks to me like that Facility was not in default in October 2017.  So much appears from the statement.  However, it did go into default the next month and stayed in default.[30]
    2. (b)
      Second, the Default Notice was justified on the default in First Facility, which justified calling up all moneys owing, including the sum due under Facility 2.  The failure to pay the whole amount in response to the Default Notice was itself a default in Facility 2.

AFCA proceedings

  1. [73]
    Ms Mason pleaded that Perpetual commenced proceedings despite a complaint by her to the Credit Investments Ombudsman scheme (CIO) in about January 2018.  The CIO was replaced by the Australian Financial Complaints Authority (AFCA) in August 2018.  The proceedings were commenced July 2018.  It appears that the proceedings were commenced while the complaint was on foot but there is no submission before me to justify the conclusion that at the time proceedings were commenced, Perpetual was not entitled to do so.  Further, even if Perpetual was bound by some agreement either with CIO or AFCA or some contractual promise to stay proceedings pending a complaint, it would not amount to a defence to a claim in this Court.  A complaint to CIO or AFCA does not exclude the jurisdiction of this Court to hear and determine matters (though in a proper case it might justify a temporary stay).    In any case, the complaint was dismissed on September 2019.[31]  I will not further refer to this issue.

Body corporate issues relating to the Toowong unit.

  1. [74]
    Neither the Amended Defence nor the FAD plead properly to the allegations of fact about the body corporate sums alleged in paragraphs 11A to 11E of the ASOC.  All those facts are deemed admitted.  Only the FAD addresses those allegations at all, and only to cavil with the amount for assessed costs is exorbitant and that the total claim for amounts paid to the body corporate were exorbitant. 
  2. [75]
    Perpetual’s material includes:
    1. (a)
      The judgment of the Magistrates Court for the principal sum claimed in the amount of $23,294.36;
    2. (b)
      An order for costs under s. 79(1)(c) BCCM (Small Schemes Module) Regulation 2008, which provides to be assessed as ordered by the Court by Mr Short, a costs assessor; and
    3. (c)
      Mr Short’s assessment apparently under the authority of that order of costs at $85,653.77.
  3. [76]
    There has been no appeal or review of that assessment.  No evidence is put before the Court to sustain any challenge to it.   There is no basis to go behind it.
  4. [77]
    The FAD also alleges that the sum paid to the body corporate was not an expense reasonably incurred in preserving or maintaining the Property.    The inclusion of the “reasonably incurred” is not relevant to a claim based on the terms of the Mortgage, which speaks only of amounts incurred in preserving or maintaining the Property.  In any event, the issue raised by the FAD involves two issues: one of law (proper construction of the provisions involved) and one of fact, being the circumstances informing the need to pay the body corporate its claim to preserve or maintain the Property.
  5. [78]
    No facts are pleaded by the FAD to sustain the allegation that the body corporate amounts were not a cost of preserving or maintaining the Property.  Perpetual’s evidence contains correspondence from the solicitors for the body corporate first suggesting that Perpetual pay the sums due and then demanding that Perpetual do so to avoid execution against the Toowong unit.
  6. [79]
    The facts demonstrate that the amounts claimed are pursuant to a final judgment of the Magistrates Court and an unchallenged assessment of the costs order by that Court for costs payable to the body corporate.  They also demonstrate that the funds were paid in the face of a threat by the body corporate to execute its judgment. No argument was advanced that the payment was not within the scope of the definition of “Expenses” under the Mortgage.  But for Perpetual’s action, the body corporate would likely have sold the Property.  Preventing such action is plainly an expense incurred in preserving or maintaining the Property. 
  7. [80]
    If the Mortgage is enforceable against Ms Mason, then she has no real prospect of establishing that she has any defence to a claim for the sum paid to the body corporate as a sum secured by the Mortgage.

Challenges to Perpetual’s statements of account

  1. [81]
    Ms Mason disputes the amount owing on the two Facilities in the Amended Defence (see paragraph [4](e) above).   The allegation is vague.  The evidence I could find which might support that allegation is as follows.
  2. [82]
    Ms Mason alleges “inconsistencies provided in loan statements” and refers to the whole of the exhibits to the two affidavits of the bank officer sworn in these proceedings.[32] Those exhibits cover hundreds of pages.  Of itself this allegation is too general to be given any weight.  She refers to an exhibit to her affidavit which exhibits an indicative payout figure on the two facilities dated 12 April 2017.  These documents do not assist.  The figures shown are consistent with the statements for the two Facilities in evidence, bearing in mind that they are described as indicative payout figures.[33]
  3. [83]
    Ms Mason makes three other specific complaints that I could locate.
  4. [84]
    First, she alleges that the amounts charged for dishonour fees are “inconsistent with loan statements and also between information advised in Agreements and Statements”.   No particulars are given of this allegation and no submission was made in support of it by Ms Mason’s counsel.  The statements consistently show dishonour fees of $10 for dishonoured transfers being charged around the period of the defaults the subject of these proceedings.  The Second Facility provides for a dishonour fee of $20 for dishonour of direct debit authority payments.[34]   The dishonours in the statements from June 2017 are plainly direct debit dishonours, being repetitive monthly transfers for exact amounts.  It is no defence to Perpetual’s claims that they have not charged as much as they could have.
  5. [85]
    Second, Ms Mason alleges that money was debited from her loan account without proper authority and without explanation, particularly in respect of money from the sale of the Taylor Street house.  She relies on the contract for the sale of Taylor Steet. 
  6. [86]
    This allegation does not assist Ms Mason to defend the claim at all.  As I explain in paragraphs [66] and [67] above, the evidence demonstrates that a substantial component of the settlement sum was credited to the First Facility.  In the circumstances explained there, the possibility that there were net proceeds not credited to that account (if indeed that is what occurred) is not a defence to the claim on the balance of that facility.  Ms Mason’s evidence goes no higher than to say she wonders what happened to the balance, if any, of the sale proceeds.  In the absence of some evidence suggesting payments made to Perpetual were not reflected in the loan accounts, that is a matter for her, not Perpetual.  Perhaps she could inquire with the solicitors who acted for her on the conveyance.
  7. [87]
    Third, Ms Mason alleges that money was debited from her loan account without proper authority in respect of direct debits made to her other account/s to meet periodic repayment obligations under the two Facilities.  This issue is explained in paragraphs [34] to [38] of the July affidavit.   The gravamen of this complaint is that the direct debit request signed by Ms Mason identified a Perpetual loan account for which debits were authorised which had a loan number which differed (by three digits) from the one identified in the form.  The direct debit form referred to loan number MN350353001427322602 but the loan account for the First Facility was loan number MN350353999427322602 (and in respect of the Second Facility, the same number with “B” added).
  8. [88]
    This is a specious argument to raise by way of defence to Perpetual’s claim:
    1. (a)
      If there has been an unlawful debiting of her account, the issue is one she should take up with St George Bank, the paying bank, not Perpetual;
    2. (b)
      It is highly likely that the loan number was a simple typographical error, given in the context in which it was prepared, the plain purpose of the direct debit was plainly to meet repayment obligations to Perpetual under the second loan agreement;
    3. (c)
      Quite apart from those two considerations, the account statements show the direct debits in fact went to repaying the Facilities.  They reduced a liability which Ms Mason had to Perpetual; and
    4. (d)
      Ms Mason’s position cannot be relevant at all unless her position is also that she did not ratify the payments to the Facilities.  As they were monthly payments of substantial sums that occurred for at least 6 years, one must not conclude, absent evidence to the contrary, that she ratified the payments from her St George account to Perpetual.
  9. [89]
    This contention provides no real prospect of defending the claims of Perpetual.   

Analysis

The broad “anomalies and discrepancies”  contention

  1. [90]
    Ms Mason’s counsel advanced what might be called a global claim based on the various “anomalies and discrepancies” in the pre-loan processes, the loan processes and the Mortgage itself, which meant that there was a need for a trial.[35]  The difficulty with that submission is that it fails to identify what defence arises, if any, from any specific anomaly or discrepancy.  That difficulty is increased where many of the alleged anomalies and discrepancies are shown not to be material and/or shown to be irrelevant or wrong. 
  2. [91]
    Examples include:
    1. (a)
      The internally inconsistent evidence about Ms Mason’s involvement in preparing the second application (see paragraph [30] above);
    2. (b)
      The irrelevant evidence querying the making of the advance under the Second Facility (paragraphs [63]and [64]) and the default (paragraph [71]);
    3. (c)
      The unhelpful argument based on the dishonour fees (at paragraph [84] above); and
    4. (d)
      The arguments based on the difference in the loan account description in the direct debit form (at paragraphs [87] and [88] above).
  3. [92]
    For there to be a real prospect of defending the case arising from factual challenge to Perpetual’s claims, it must be specifically identified as to why a disputed fact provides an answer to Perpetual’s claims.  Apart from the contentions in respect to whether the loan agreements and Mortgage are binding, this has not been done.

The first loan agreement is binding

  1. [93]
    Perpetual relies on two loan agreements.  As observed [59] above, I think the better view is that the second loan agreement replaced the first loan agreement, though I think nothing of substance turns on this.
  2. [94]
    Ms Mason’s case is that she is not bound by the first loan agreement because of, in effect, “anomalies and discrepancies” affecting that agreement and the unconscionability issue.  If Perpetual is not so bound, it does not necessarily mean that it cannot succeed on its claim, though as currently pleaded, the claim is articulated by reference to that agreement in part.
  3. [95]
    The questions that arise are these: Does Ms Mason have a real prospect of establishing that she is not bound by the first loan agreement? And if so, does that provide a defence to Perpetual’s claim?
  4. [96]
    I refer to paragraphs [32] to [36].  Given those matters, in the context of the whole of the evidence, does Ms Mason have a real prospect of defending the claim to the extent it relies on her being bound by the first loan agreement? In my view, the answer to that question is no for the following reasons.
  5. [97]
    I am willing to proceed on that basis that, despite the seeming improbability of Ms Mason’s denial that her signature was ever witnessed by Ms Raatz, I should assume that she can make that out at trial.   However, the first loan agreement is a simple contract and does not require witnessing to be binding.  All that is required is that Ms Mason signed it.   If she did, she is bound by its terms.[36]  It is strictly irrelevant whether it was witnessed by Ms Raatz in the presence of Ms Mason or not.
  6. [98]
    The real question is therefore whether Ms Mason has a real prospect of establishing that she did not sign the first loan agreement.  In my view, she does not.
  7. [99]
    First, Perpetual has led evidence of a signed copy of the first loan agreement.  That signature is remarkably similar to Ms Mason’s genuine signature and appears to me to be her signature. [37]  The question then is whether it was applied by Ms Mason herself or applied in some other way.
  8. [100]
    Second, it is important that Ms Mason does not swear she did not sign the first loan agreement.  She only swears that she does not remember signing it.  This does not seem to me to be infelicitous language, given the clear distinction she draws between her evidence on that matter and her definite evidence about witnessing by Ms Raatz definitely not occurring.    The non-admission of signing might give me more cause for concern if it related to a signature seemingly applied recently.  But it does not.  It relates to a signature applied some 14 years ago, when Ms Mason was 19 years old and, on her version, subject to the firm guidance and control of her father in financial matters.  In that context, it would be remarkable if she did remember signing the document.
  9. [101]
    Third, the effect of the suggestion that the signature was not applied by Ms Mason (or perhaps with her authority if it is a facsimile signature, though there is no reason to think it is), is that some person or persons unknown (or perhaps her father) applied her signature improperly and possibly illegally.  This is the real significance, if any, of the evidence about Ms Raatz.  It might be said that if Ms Raatz did not witnesser her signature, that might support the inference that something improper or unlawful occurred.  However, there is an evidential onus which comes with suggesting improper or unlawful forging or application of a person’s signature to binding legal documents where the signature appears to be authentic. [38]  There is no evidence of such improper or unlawful conduct and Ms Mason’s counsel did submit there was.  Ms Mason does not suggest her father was in the habit of forging her signature or putting it on documents without her consent.
  10. [102]
    Fourth, the advance provided for in the first loan agreement and the key terms upon which it was made are reflected in subsequent dealings in real property of which Ms Mason was clearly aware (see paragraphs [41] and [42] above), and of which she took the benefit.     
  11. [103]
    Fifth, this is not a case where the summary judgment application was brought without the borrower having a full opportunity to consider the key documents and seek to investigate and obtain evidence which might be relevant to answering the plaintiff’s case.  The history of this summary judgment application is quite the contrary.  Further, to the extent Ms Mason complained about not having copies of the key documents, they have been in her possession since the material was filed in this application.  Further, she has had legal representation in the hearing of the application and indeed the matter was adjourned to permit her to take legal advice.  If there was evidence which could assist on this point, it was not put before the Court despite full opportunity to do so.

Perpetual has indefeasible title to the Mortgage

  1. [104]
    The Mortgage provides the foundation of Perpetual’s claim to possession.  If the Mortgage is not binding on Ms Mason, then there will be no pleaded basis for Perpetual to obtained possession.
  2. [105]
    I should first deal with the factual basis upon which I approach this issue.  As with the first loan agreement, I do not think there is a real prospect of Ms Mason establishing that she did not sign the Mortgage.  The considerations in paragraphs [99] to [103] apply mutatis mutandis to the Mortgage, reading references to the first loan agreement as references to the Mortgage, and bearing in mind the lack of any specific allegation of not recalling signing the Mortgage. Also as to the fourth point, it is relevant that the Mortgage remained on Ms Mason’s title to both properties for the next 6 years and was dealt with by her personally (on her evidence) as part of the sale of Taylor Street and the partial discharge of the Mortgage, without any complaint from her at the time about the existence of the Mortgage on the title.  I do not think she has any real prospect of establishing that she did not apply her signature to the Mortgage.
  3. [106]
    As to Ms Raatz’s witnessing of her signature on the Mortgage, consistently with the position on the first loan agreement, I am willing to proceed for the purposes of this application the basis that, despite the seeming improbability of Ms Mason’s denial that her signature was ever witnessed by Ms Raatz, I should assume that Ms Mason can make out at trial that the Mortgage was not properly witnessed.  
  4. [107]
    It is the lack of proper witnessing of the Form 2 which is the foundation of Ms Mason’s primary argument in response to the claims on the Mortgage.  The argument is sufficiently articulated in her counsel’s outline of submissions as follows:
    1. In Fordyce v. Kordamentha Real Estate Pty Ltd & Ors [2017] QSC 289 at [55(b)], Bond J pithily described the effect of a mortgage under the Land Title Act 1994 in these terms:

55(b) Once a mortgage has been validly executed, the registrar then registers it by recording in the register the particulars necessary to identify the instrument: ss 173 and 174. On registration of the mortgage, the interest which the mortgage is expressed to create is (i) created, (ii) registered, and (iii) vests in the mortgagee: s 182. The mortgage does not create any legal interest in the lot until it is registered: s 181. The registered mortgage takes effect as a deed: s 176. The mortgage itself forms part of the register: s 31.

  1. The key integer is the opening words from this passage, “once a mortgage has been validly executed…”. The Defendant submits, based on the affidavit evidence summarised above, that the Mortgage [HB 177 – 178] has not been validly executed, for the following reasons:
  • The Mortgage was not witnessed, as required by section 161(2)(b) of the Land Title Act 1994.
  • The chapeau to section 161(2) makes it abundantly clear that “an instrument is validly executed if …”. It follows inexorably that if a mortgage is not witnessed, then it is not validly executed, and therefore it is not binding on the Defendant.
  • There is no evidence that the supposed attesting witness (Kraatz) satisfied section 162 of the Land Title Act 1994 in connection with the Defendant qua mortgagor.
    1. Sections 44 and 45 of the Property Law Act 1974 do not advance the position in favour of the Plaintiff is any respect whatsoever.
    2. The consequence of this state of affairs is that the Mortgage is not binding on the Defendant: compare Bendigo and Adelaide Bank Limited v Boothbuck International Pty Ltd & Ors; Bendigo and Adelaide Bank Limited v Irongrow Corporation Pty Ltd (in liq) & Ors [2019] QSC 153 at [26] per Bradley J and Wright Enterprises Pty Ltd v Port Ballidu Pty Ltd [2008] QSC 78.
  1. [108]
    The problem with this argument is that it is inconsistent with the principle of indefeasibility on registration of instruments creating an interest in land.  The position is summarised sufficiently in Butt’s Land Law[39] as follows (footnotes omitted):

[12.450] The Torrens legislation as it exists across Australia today retains the essential elements of Torrens’ South Australian precedent, albeit embellished by amendments and linguistically contorted for computer compatibility. Its fundamental premise is the conclusiveness of the register: “The cardinal principle of the statute is that the register is everything.” The register is both conclusive and exhaustive. Searches and investigations beyond the register should be unnecessary. The Privy Council in an early appeal under the Torrens system described the legislation in these terms:

The object is to save persons dealing with registered proprietors from the trouble and expense of going behind the register, in order to investigate the history of their author’s title, and to satisfy themselves of its validity. That end is accomplished by providing that everyone who purchases, in bona fide and for value, from a registered proprietor and enters his deed of transfer or mortgage on the register, shall thereby acquire an indefeasible right, notwithstanding the infirmity of his author’s title.

More succinctly, the Torrens system is a system of “title by registration”, as distinct from the system of “registration of title” under the old system. Title under the Torrens system derives from the Registrar-General’s act in registering an instrument – the act in executing the instrument. In doing so, the Torrens system substitutes “conveyance by registration for conveyance by deed”. Registration is the source of title – it confers on the person registered as proprietor a title that did not previously exist. Indeed, it is said that on registration the previous title is extinguished and a new title certified as if there has been a new Crown grant.

  1. [109]
    The interest of a registered proprietor will not be defeated by a defect in the process of registration or in the transaction or instrument which lead to the creation of the interest: Breskvar v Wall (1971) 126 CLR 376.   Further, it has been authoritatively determined in Queensland that the quality of indefeasibility attaches to the registered proprietor's estate or interest immediately upon registration (i.e., there is no doctrine of deferred indefeasibility in Queensland), regardless of whether the instrument by which he or she obtained registration is void or defective for some reason, such as fraud. Frazer v Walker [1967] 1 AC 569 and Breskvar v Wall (1971) 126 CLR 376.  This principle has been applied in numerous cases, including Rock v Todeschino [1983] 1 Qd R 356; Hutchinson v Lemon [1983] 1 Qd R 369; Bahr v Nicolay (No 2) (1988) 164 CLR 604; 62 ALJR 268 at 279; Clark v Raymor (Brisbane) Pty Ltd [1982] Qd R 479 and many others. 
  2. [110]
    Ms Mason’s submission at [26] confuses the statutory requirements for the form of an instrument of mortgage identified in s. 73 Land Title Act with the consequence for a registered proprietor of mortgage over a lot where the mortgage fails to comply with those requirements but in any event is registered.  In Fordyce, Justice Bond was dealing with the former matter, not the latter.   That case is of no assistance to Ms Mason.
  3. [111]
    The reliance on Justice Bradley’s decision in Bendigo and Adelaide Bank cited in [29] of the submissions is also mistaken.  In that case, his Honour was called upon to declare that the registrar could correct the register under s. 15 of the Land Title Act where it recorded as registered a mortgage which had not been lawfully executed by the mortgagor company.  Importantly, s. 15(8) Land Title Act provided:
    1. (8)
      For subsection (1)(b), the rights of the holder of an interest recorded in the register are not prejudiced if the holder acquired or has dealt with the interest with actual or constructive knowledge that the register was incorrect and how it was incorrect.
  4. [112]
    In that case, his Honour found that the holder of the interest represented by the mortgage had actual knowledge of the defective execution: see paragraphs [30] and [36] to [40].  There is no allegation that Perpetual knew of the alleged defective witnessing of the mortgage by Ms Mason nor is there any evidence to suggest Ms Mason would have a real prospect of demonstrating such knowledge. 
  5. [113]
    And this is to ignore entirely the consideration that she cannot rely on s. 15 Land Title Act in any event.  The section confers power on the registrar to correct the register, not on the Court, as was explained by Justice Bradley at [1].  No declaration of the kind sought in that case is before the Court.
  6. [114]
    It would be open to Ms Mason to raise the fraud exception to indefeasibility by way of defence in these proceedings (s. 184(3)(b) Land Title Act).  However, again, there is no basis to conclude that Ms Mason could defend Perpetual’s claims on this basis because there is no basis to conclude Perpetual was guilty of any fraud (even if it was proved that Ms Raatz did not validly witness the document and that was shown to have involved some form of fraud by a person or persons unknown). 
  7. [115]
    For the sake of completeness, I observe that if defective execution without fraud is the only issue which arises in relation to the validity of the Mortgage, it does not appear that any of the exceptions to indefeasibility in s. 185 Land Title Act arise.[40]    
  8. [116]
    Ms Mason has no real prospect of defending the case on the basis that Perpetual does not have the benefit of an indefeasible title to the Mortgage, even if it was not validly executed because Ms Raatz did not execute it in her presence as required by s. 161(2)(b) Land Title Act.

The second loan agreement is binding

  1. [117]
    I refer to paragraphs [52] to [57] above.  The considerations in paragraph [57] do not sustain the conclusion that Ms Mason has a real prospect of establishing that she did not sign the second loan agreement.  I explain the reasons.
  2. [118]
    First, even assuming the second loan agreement was not witnessed as shown on the face of the document (and that seems an unlikely allegation given that it seems to be based on the idea that Ms Mason has no record of the witnessing officer), the second loan agreement is binding without a witness if it is in fact signed by Ms Mason.
  3. [119]
    Second, the signature is very like Ms Mason’s signature, as she herself accepts.
  4. [120]
    Third, Ms Mason does not deny signing the second loan agreement, she just says she does not recall doing so.  Even though the document is not as ancient as the first loan agreement and Ms Mason was somewhat older at the time, there is nothing remarkable about not recalling the event of signing 10 years later.
  5. [121]
    Fourth, again there is nothing to suggest that there was any fraud involved in this case to explain how her signature came to be applied if not by her act or authority.  This point is particularly compelling where the second loan agreement is consistent with the loan application which she accepts in effect that she filled out and signed.  There is also the consideration that the Second Facility was made available and drawn down on by Ms Mason over the following years.
  6. [122]
    Fifth, I repeat the point in paragraph [103] above.

No unconscionability defence arises

  1. [123]
    Having found that Ms Mason has no real prospect of establishing that she is not bound by the loan agreements and the Mortgage, I turn to the question of whether she is entitled to be relieved in equity from the obligations in any of those documents.  This point can be dealt with shortly.  Ms Mason’s counsel advanced no oral submission at the hearing that Ms Mason had a real prospect of defending any of the claims against her based on unconscionable conduct or undue influence.  In my respectful view, he was right not to do so.   Whatever complaints Ms Mason might have about her father’s involvement in her financial affairs, there is no evidence at all that Perpetual was involved in such conduct.  Ms Mason’s sense of grievance against her father, of itself, is no defence to Perpetual’s claim. 

The alleged advances and default

  1. [124]
    I have concluded that Perpetual has established it made the advances it alleges in paragraphs [41] and [64]above, and that it has established that Ms Mason defaulted as alleged. 

Irregularities in account statements contentions

  1. [125]
    Ms Mason has no real prospect of defending some or all of Perpetual’s claims based on the prospect that the sums claimed are inaccurate.  
  2. [126]
    At paragraphs [81] to [89], I conclude that none of the specific complaints about the sums said to be due have a real prospect of succeeding,
  3. [127]
    At paragraphs [74] to [80], I explain why there is no basis to defend the amounts claimed in respect of the body corporate payments. 

Need for a trial/discretionary considerations

  1. [128]
    Ms Mason contends that in any event, the Court ought to refuse summary judgment because there is a demonstrated need for a trial or that the residual discretion favours the refusal of summary judgment. I disagree.
  2. [129]
    Beyond the factors said by Ms Mason to demonstrate that there is a real prospect of defending the case, I could not discern any specific reason advanced as to why, if those arguments failed, the matter should in any event go to trial.  For the reasons given in paragraph [103], I consider Ms Mason has had every opportunity to advance a case which might cast doubt on Perpetual’s prospects at trial.

Conclusion

  1. [130]
    Perpetual has established that Ms Mason has no real prospect of defending the case on any of the bases expressly or impliedly raised in Ms Mason’s material.  There remain a few matters to deal with.
  2. [131]
    First, Perpetual seeks summary judgment for possession of the Toowong unit. There is a right to possession both under s. 78(2)(c)(1) Land Title Act and pursuant to the right under the Mortgage in clause 8.1 on default under the Mortgage.  Default has been established.  Perpetual is entitled to possession.
  3. [132]
    Second, Perpetual has established its entitlement to judgment for the sums alleged to be due under each of the Facilities.  It is entitled to judgment for the sums claimed as calculated at the date of the hearing plus interest to the date of judgment calculated under the Mortgage and the second loan agreement as claimed in paragraphs 13 and 15 ASOC.  I note those rates are modest.
  4. [133]
    Based on Perpetual’s written submissions on the hearing, including the calculation of interest accruing per day[41], I find Perpetual is entitled to:
    1. (a)
      Judgment for $340,368.96 plus interest at $38.30 per day for 108 days to 11 November 2022 being $4136.40, giving a total of $344505.36 on the First Facility; and
    2. (b)
      Judgment for $31841.01 plus interest at $3.58 per day for 108 days to 11 November 2022 being $386.64, giving a total of $32,227.65 on the Second Facility.
  5. [134]
    The total money judgment including interest to the date of judgment is $376,733.01.
  6. [135]
    Third, Perpetual seeks costs on an indemnity basis based on the provision for indemnity costs to be recoverable under the terms of the loan agreements and the Mortgage.  Although those clauses were pleaded, the costs were not proved in the hearing.  Even though the claim for costs under the contractual provisions were pleaded, it does not seem to me that that basis was made out on the evidence such that it could be included in a judgment.  However, such clauses are also relevant in the exercise of the Court’s discretion on costs.  

Footnotes

[1] See FAD at 4.4

[2] TS1-36.15

[3] DCT v Salcedo [2005] 1 Qd R 232 at 235

[4] QUT v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259, 264 (CA) (approving observations of Barwick CJ in General Steel Industries Inc v Commr for Railways (NSW) (1964) 112 CLR 125 at 130), affirmed again, Shaw v DCT [2016] QCA 275 at [31]

[5] The February affidavit at paragraphs 10 to 12

[6] Amended Defence paragraph 2

[7] Affidavit of Nasr [CD 10] exhibit page 217

[8] Affidavit of Nasr [CD 10] at exhibit page 3 to 9

[9] The February affidavit at page 3 

[10] The February affidavit at paragraph 15

[11] The July affidavit at pages 4 to 5

[12] The July affidavit at page 6

[13] The July affidavit at paragraph 27

[14] Affidavit of Nasr [CD 10] at exhibit page 92

[15] The July affidavit at paragraphs 24 and 26

[16] Affidavit of Nasr [CD 19] at exhibit page 1 to 21

[17] Affidavit of Nasr [CD 19] at exhibit page 100

[18] Affidavit of Nasr [CD 10] at exhibit page 108 to 110

[19] The July affidavit at paragraph 32

[20] Affidavit of Nasr [CD 10] at exhibit page 113 to 114

[21] Affidavit of Nasr [CD 10] at exhibit page 113

[22] The July affidavit at paragraph 28

[23] Affidavit of Nasr [CD 19] at exhibit page 111 to 119

[24] Ibid at page 111

[25] Ibid at page 113 to 114

[26] Affidavit of Nasr [CD 10] at exhibit page 215

[27] Ibid at page 271

[28] The February affidavit at page 6

[29] Amended Defence paragraph 4

[30] Affidavit of Nasr [CD 19] at exhibit page 114

[31] Affidavit of Nasr [CD 19] at paragraph 43

[32] The July affidavit at paragraph 13

[33] Affidavit of Nasr [CD 19] at exhibit pages 104 and 113

[34] Ibid at page 97

[35] Defendant’s outline of submissions at paragraph 32

[36] L’Estrange v E. Graucob Ltd [1934] 2 KB 394; approved in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165

[37] See s. 59(2) Evidence Act 1977 (Qld)

[38] Damjanovic v York Agencies Pty Ltd [2003] NSWCA 222 at [25] and [80]; Groves v Groves & Ors [2013] QSC 277 see [122]; Jeans v Cleary [2006] NSWSC 647; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at [170] to [171]

[39] Edgeworth Butt’s Land Law (7th Edn LBC) at [12.450]

[40] Note the exception in s. 184(1A) Land Title Act is not concerned with whether the mortgage was not validly executed because of failure to ensure it was witnessed in accordance with the Land Title Act.

[41] Plaintiff’s outline of submissions at paragraph 57

Close

Editorial Notes

  • Published Case Name:

    Perpetual Trustees Victoria Limited v Mason

  • Shortened Case Name:

    Perpetual Trustees Victoria Limited v Mason

  • MNC:

    [2022] QDC 246

  • Court:

    QDC

  • Judge(s):

    Porter QC DCJ

  • Date:

    11 Nov 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Bahr v Nicolay (1988) 164 CLR 604
2 citations
Jump To
Cite 1 - (1988) 164 CLR 604
Cite 2 - (1988) 164 CLR 604
Bahr v Nicolay (No.2) (1988) 62 ALJR 268
1 citation
Jump To
Cite 1 - (1988) 62 ALJR 268
Bendigo and Adelaide Bank Ltd v Boothbuck International Pty Ltd [2019] QSC 153
1 citation
Jump To
Cite 1 - [2019] QSC 153
Breskvar v Wall (1971) 126 CLR 376
3 citations
Jump To
Cite 1 - (1971) 126 CLR 376
Cite 2 - (1971) 126 CLR 376
Cite 3 - (1971) 126 CLR 376
Capuano v Q-Comp[2005] 1 Qd R 232; [2004] QSC 333
1 citation
Jump To
Cite 1 - [2005] 1 Qd R 232
Clark v Raymor (Brisbane) Pty Ltd [1982] Qd R 479
2 citations
Jump To
Cite 1 - [1982] Qd R 479
Cite 2 - [1982] Qd R 479
Damjanovic v York Agencies Pty Ltd [2003] NSWCA 222
1 citation
Jump To
Cite 1 - [2003] NSWCA 222
Deputy Commissioner of Taxation v Salcedo[2005] 2 Qd R 232; [2005] QCA 227
1 citation
Jump To
Cite 1 - [2005] QCA 227
Fordyce v Kordamentha Real Estate Pty Ltd [2017] QSC 289
1 citation
Jump To
Cite 1 - [2017] QSC 289
Frazer v Walker (1967) 1 AC 569
2 citations
Jump To
Cite 1 - (1967) 1 AC 569
Cite 2 - (1967) 1 AC 569
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
1 citation
Jump To
Cite 1 - (1964) 112 CLR 125
Gray v Morris[2004] 2 Qd R 118; [2004] QCA 5
1 citation
Jump To
Cite 1 - [2004] 2 Qd R 118
Groves v Groves [2013] QSC 277
1 citation
Jump To
Cite 1 - [2013] QSC 277
Hutchinson v Lemon [1983] 1 Qd R 369
2 citations
Jump To
Cite 1 - [1983] 1 Qd R 369
Cite 2 - [1983] 1 Qd R 369
Jeans v Cleary [2006] NSWSC 647
1 citation
Jump To
Cite 1 - [2006] NSWSC 647
L'Estrange v Graucob (F.), Ltd. (1934) 2 KB 394
1 citation
Jump To
Cite 1 - (1934) 2 KB 394
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
1 citation
Jump To
Cite 1 - (1992) 67 ALJR 170
Queensland University of Technology v Project Constructions (Aust) Pty Ltd (In Liq)[2003] 1 Qd R 259; [2002] QCA 224
1 citation
Jump To
Cite 1 - [2003] 1 Qd R 259
Rock v Todeschino [1983] 1 Qd R 356
2 citations
Jump To
Cite 1 - [1983] 1 Qd R 356
Cite 2 - [1983] 1 Qd R 356
Shaw v Deputy Commissioner of Taxation [2016] QCA 275
1 citation
Jump To
Cite 1 - [2016] QCA 275
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
1 citation
Jump To
Cite 1 - (2004) 219 CLR 165
Wright Enterprises Pty Ltd v Port Ballidu Pty Ltd [2008] QSC 78
1 citation
Jump To
Cite 1 - [2008] QSC 78

Cases Citing

Case NameFull CitationFrequency
Perpetual Trustees Victoria Limited v Mason [2022] QDC 2621 citation
1

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