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Authors

Scott Grattan

Abstract

In 2007 and 2008 there were a series of cases in New South Wales, and two cases in Queensland, dealing with the enforceability of registered mortgages where the mortgagor’s (purported) execution of the instrument had been forged. In none of these cases was the mortgagee found to have been guilty of fraud, which meant that the mortgagee obtained an indefeasible interest in the relevant land. However, as Campbell J has pointed out, ‘[n]otwithstanding that registration confers indefeasibility on a mortgagee, there is still a question “indefeasibility for what?”’. This article examines the consequences for the mortgagor and the mortgagee following the registration, without fraud on the part of the mortgagee, of a mortgage where the mortgagor’s execution has been forged.

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