Plaintiff v Defendant

Plaintiff v Defendant - [2009] VSC 614 - VSC 2009 case summary — Zoe

[30]

PARTICULARS

At all material times the Bank by its employee Dean Gillespie in Melbourne dealt with Gamel Kheir of Kheir Financial Services Pty Ltd in Sydney. At the time the mortgage was executed the Bank knew that:

(a) the plaintiff resided in Melbourne;

(b) Kheir had supplied to him by fax a 42 page home loan application purportedly signed by the plaintiff;

(c) the 100 point signatory identification form contained in the home loan application referred to identification documents being a passport and a driver's licence but did not indicate whether either or both of those documents were sighted by Kheir;

(d) provision in the 100 point signatory identification form for Kheir to indicate whether or not verification had been achieved as a result of the check was left blank and no signature of the "checking officer" was affixed as required;

(e) the Bank did not receive copies of the relevant identifying documents despite the fact that a part of the form was completed which was to be completed only if copies of the documents were to be forwarded to the Bank;

(f) both parts of the form were completed, one to be completed if copies of the documents were to be forwarded to the Bank, the other to be completed if copies of the documents were not to be forwarded to the Bank;

(g) as a consequence of the matters referred to in paragraphs (c) - (f) above, the 100 point signatory identification form was defective on its face, was incomplete and could not be relied upon as a verification of the plaintiff as the signatory thereto;

(h) Kheir's dealing with the plaintiff was "remote" in the sense that it was not "face to face" and yet, when afforded the opportunity to do so, Gillespie did not indicate to Kheir or otherwise question how identification of the customer would be made;

(i) the Bank then left it to the signatory to the mortgage to arrange for a person to witness his signature and return a completed identification certificate to the Bank.

(ii) To the third party statement of claim

[32]

5A. If it is established at the trial of the proceeding that:

(a) the plaintiff did not execute the mortgage of his interest in the land in favour of Bank West; and

(b) persons unknown to the plaintiff obtained without the plaintiff's knowledge and consent a loan of $560,000 secured by a mortgage over the land; and

(c) such persons forged the signature on the mortgage and any antecedent agreement and loan application form

(none of which is admitted) then the Registrar will say that:

(d) the plaintiff is not liable to pay any money to Bank West under the mortgage because, on its proper construction, the registered mortgage does not secure the payment to Bank West of monies payable under the antecedent Home Loan Agreement dated 16 March 2006 purportedly entered into between the plaintiff and Bank West;

PARTICULARS

The Registrar refers to the matters in dispute in proceeding number 2007 of 2008 in this Court before Pagone J. and to his Honour's judgment dated 17 March 2009.

(e) even if (which is denied) the registered mortgage does purport to secure the payment to Bank West of monies payable under the antecedent Home Loan Agreement, the registered mortgage is void as a consequence of the fact that it was procured by fraud on the part of Bank West in that it acted with reckless indifference as to whether the plaintiff was or was not the actual signatory to the mortgage.

PARTICULARS

The Registrar refers to and repeats paragraph 12 of the Further Amended Defence herein and the particulars subjoined thereto.

(f) even if (which is denied) the registered mortgage does purport to secure the payment to Bank West of monies payable under the antecedent Home Loan Agreement and even if (which is denied) the registered mortgage is not void as a consequence of any fraud on the part of Bank West, the mortgage is unenforceable by Bank West against the plaintiff as a consequence of the operation of the Consumer Credit (Victoria) Code.

PARTICULARS

The Registrar refers to sections 11 and 38 of the Code.

At a glance

Court

Decision date

Before

Source

Judgment (110 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (8)