The decision in Issa v Owens & Ors [2023] QSC 004 was handed down by Crowley J on Friday 24 February 2023. Marino Law acted for the successful plaintiff. The decision is a fantastic result for our client after a four and a half year battle that has seen our client retain her much loved family home.
Brief Factual Background
The plaintiff’s signature was forged on a mortgage granted over a property she owned in Mermaid Beach in Queensland. The plaintiff’s forged signature on the mortgage was purportedly witnessed by a solicitor who had been engaged by the mortgagees to certify her identification. The solicitor admitted that he did not in fact witness the execution of the mortgage by the plaintiff. In purported exercise of their right of power of sale pursuant to the mortgage, the mortgagees sold that property to third parties. Prior to the registration of the purchaser’s transfer, the plaintiff and the Registrar of Titles lodged a caveat that prevented the registration of that transfer.
The Judgment
The Court found that, amongst other things, the mortgagees had failed to take reasonable steps to identify the plaintiff before the mortgage was registered as required pursuant to sections 11(A)(2) and 11B(2) of the Land Title Act 1994 (Qld) (the “LTA”). As a consequence, pursuant to section 185(1A) of the LTA, the Court determined that the mortgagees did not obtain an indefeasible interest in the property upon registration of the mortgage. In those circumstances the Court declared that the mortgage was null and void. The Court then ordered that, pursuant to section 187 of the LTA, the mortgage, the purchaser’s transfer and the Registrar’s caveat, amongst other instruments, be cancelled. The result of those cancellations is that the plaintiff has effectively retained her interest in the property.
In reaching his decision, Crowley J held that in circumstances where the solicitor that had purported to witness the plaintiff’s signature on the mortgage had not, despite declaring to the mortgagees that he had done so, in fact witnessed the execution of the mortgage, the mortgagees had not taken reasonable steps to identify the plaintiff before the mortgage was executed. Crowley J determined that it was not reasonable for the mortgagees to rely on the solicitor’s attestation and certifications as to the witnessing of the plaintiff’s signature on the mortgage in circumstances where many of the mortgagees’ own procedures for identity verification had not been properly complied with.
The decision comes on the back of the 2020 decision of the County Court of Victoria in C & F Nominees Mortgage Securities Ltd v Karbotli & Ors [2020] VCC 987. This decision arose from a further fraud perpetrated against our client where her signature was forged on a mortgage granted over a property she owned in Melbourne. Marino Law acted for the successful defendant in that case where the Court found that the mortgagees involved had also failed to take reasonable steps to identify our client as the mortgagor before the mortgage was registered.
Implications
The decision is a timely reminder to financiers of the importance of taking appropriate steps to verify the identity of parties entering into mortgage transactions in accordance with sections 11(A)(2) and 11B(2) of the LTA. This is particularly so given the significant financial consequences that can flow in circumstances where a mortgage is held to be void.
Marino Law has extensive experience in acting for financiers and borrowers with respect to the drafting and enforcement of mortgages and other securities.
Marino Law specialises in, litigation and dispute resolution, commercial and business law, property and real estate law, corporate law, personal and corporate insolvency, family law, migration law and estate and succession planning law.
