Registered fee simple v Registered mortgage

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Eu-Min Teng

NEDLANDS PROPERTY

Interests

Xena

Registered fee simple owner.

E Bank

Registered mortgage, August 2004.

Xena v E Bank

Registered fee simple v Registered mortgage

Although EB's mortgage document was forged by Albert, and thus void, EB's mortgage gains immediate indefeasibility upon registration, provided the mortgagee EB has not participated in the fraud, personally or through an agent: Frazer v Walker, Beatty v ANZ Banking Group

The question is whether Theo's conduct was fraudulent and if so, whether his fraud can be brought home to his employer, Jacksons Lawyers and in turn, to the Jacksons' principal, EB.

Does Theo's false witnessing of Xena's signature constitute fraud?

Beatty asserts that false attestation would be regarded as statutory fraud, even if the mortgagee's agent believed that the signature was genuine, with the result that the mortgage would be defeasible. However, in Russo v Bendigo an agent who knowingly made a false attestation was not regarded as fraudulent. Statutory fraud includes dishonesty, moral turpitude and a wilful and conscious seeking to defeat or disregard another's rights: per Ormiston JA in Russo. Theo had no reason to believe that Xena had