[1991] FCA 535; (1991) 32 FCR 344

Real Property Act 1886 (SA) - Joint tenants - registration of mortgage - signature of one mortgagor forged - whether mortgage void and of no effect against both joint tenants - whether party whose signature was forged is entitled to a mere declaration of rights - whether Court should order cancellation of the registration of the mortgage in the Register Book - whether the order should be made unconditionally.

Mortgage - Subrogation - payment off by third party - presumption that security kept alive - ignorance of mortgagor - whether third party entitled to the benefit of the mortgage paid off.

Federal Court of Australia Act 1976, s.21

Real Property Act 1886 (SA) s.64

Rogers v Resi-Statewide Corporation and Others (No.1) [1991] FCA 186; (1991) 101 ALR 377

Counsel for the Second Respondent: No Appearance at trial

Solicitors for the Second Respondent: Jamison and Associates

Counsel for the Registrar-General: No Appearance at trial

Solicitors for the Registrar-General: Crown Solicitor for South Australia

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The Court is hearing a number of related matters in which the main protagonists are the applicant (Mrs Rogers) and her former husband, the second respondent (Mr Rogers). At the outset, the principal proceeding was an application by Mrs Rogers under the Bankruptcy Act 1966 to annul the bankruptcy of Mr Rogers which occurred on the acceptance of a debtor's petition filed by him on 26 November 1990. Several applications under the Family Law Act 1975 between Mr and Mrs Rogers concerning property settlement and maintenance were then transferred to this Court under the cross-vesting legislation. When it became apparent that the outcome of these matters could depend on the value of interests held respectively by Mrs Rogers and the estate of Mr Rogers in the former matrimonial home, the present action was commenced by Mrs Rogers.

2. Initially Mrs Rogers sought, in these proceedings, orders against Resi-Statewide Corporation Limited ("Resi-Statewide") and the Registrar-General under the Real Property Act 1886 (S.A.) which would have the effect of expunging the registration of Memorandum of Mortgage No.6660856 in favour of Resi-Statewide ("the Resi-mortgage") from Certificate of Title Register Book Volume 3957 Folio 29. Mr Rogers was joined as a party but no order or relief was sought against him. At all material times Mr and Mrs Rogers have been registered as the proprietors as joint tenants of the land comprised in that Certificate of Title, being the former matrimonial home at Aberfoyle Park ("the Aberfoyle Park property"). Mrs Rogers asserted that her signature to the Resi-mortgage had been forged by Mr Rogers. Resi-Statewide contended that as it obtained the Resi-mortgage bona fide for valuable consideration, upon registration it obtained an indefeasible title as mortgagee and was immune from the claims of Mrs Rogers. That contention turned on a point of law arising under s.69 of the Real Property Act, and has been decided as a separate question ahead of other issues: Rogers v Resi-Statewide Corporation Ltd and Others [1991] FCA 186; (1991) 101 ALR 377. It was held that registration of the Resi-mortgage did not give Resi-Statewide a registered interest immune from the adverse claim of Mrs Rogers.

3. The questions now before the Court concern the consequential orders which should be made in light of that decision.

4. After Reasons for Judgment on the point of law were delivered Mrs Rogers sought to amend the proceedings so as to seek a declaration against Resi-Statewide, Mr Rogers, and his trustee in bankruptcy, to the effect that the Resi-mortgage is void and of no effect, and an order under s.64 of the Real Property Act directing the Registrar-General to cancel the memorial or entry of the purported Resi-mortgage on the Certificate of Title. To this end, applications were made under sub.s 58(3) of the Bankruptcy Act to continue with the proceedings against Mr Rogers, and to join the Official Trustee in bankruptcy. There being no objection by any party or the Official Trustee, the applications were granted. Leave was also given for Resi-Statewide to include Mr Rogers as a party to a cross-claim, details of which appear below.

5. Early in the proceedings the Registrar-General informed the Court that he would abide the order of the Court. Counsel on his behalf withdrew and has taken no active part thereafter in the proceedings. Counsel for Mr Rogers, and the Official Trustee, also informed the Court that neither party would be represented at the trial. No answering affidavit has been filed by either of them disputing the allegations of fact made by Mrs Rogers.

6. Before setting out the contentions of Mrs Rogers and Resi-Statewide I make the following findings of fact. At all material times Mr and Mrs Rogers have been registered as proprietors as joint tenants of the Aberfoyle Park property. In May 1986 they executed a Memorandum of Mortgage to Westpac Savings Bank Limited which was registered and numbered 6204820A (the Westpac first mortgage), securing a home loan. In July 1987 they executed a further Memorandum of Mortgage to Westpac Banking Corporation which was registered and numbered 6383710 (the Westpac second mortgage), to secure a personal loan advance.

7. In December 1988 the Resi-mortgage, purporting to be a memorandum of mortgage of the Aberfoyle Park property executed by Mr and Mrs Rogers, was proffered to Resi-Statewide by Mr Rogers as security for a loan for which he had made application. The loan was to be for $83,000. The Resi-mortgage was accompanied by forms of authority addressed to Westpac Savings Bank Limited and Westpac Banking Corporation requesting those companies to hand discharges of the first and second Westpac mortgages to the agents of Resi-Statewide at settlement, and a form of authority addressed to Resi-Statewide authorising payments to discharge the Westpac first and second mortgages from the advance. The forms of authority purported to be signed by Mr and Mrs Rogers. Resi-Statewide received the documents bona fide believing that they had been regularly executed by Mr and Mrs Rogers. In truth however each of Mrs Rogers' signatures was a forgery. She was unaware of the Resi-Statewide loan transaction which was negotiated without her knowledge or consent.

8. In reliance upon the apparent validity of the Resi-mortgage, and the accompanying authorities, Resi-Statewide on 22 December 1988 advanced the sum of $83,000, disbursing it in accordance with the forms of authority as follows:-

a) to Westpac Savings Bank Limited to discharge the first

mortgage - the sum of $49,772.12

b) to Westpac Banking Corporation to discharge the second

mortgage - the sum of $13,603.65.

c) to Mr Rogers - the sum of $19,624.23 (from which bank fees and

legal expenses, registration and stamp duty relating to the

refinancing transaction were, presumably, deducted).

9. Discharges of the Westpac first and second mortgages, handed to Resi-Statewide in exchange for the first two of the above payments, together with the Resi-mortgage, were lodged for registration at the Lands Titles Office on 22 December 1988. On 13 February 1989 the Registrar-General entered memorials in the Register Book, and recorded the same on the duplicate Certificate of Title, to the effect that the Westpac first and second mortgages were discharged, and Resi-Statewide was, by mortgage 6660856, the registered proprietor of an estate as first mortgagee.

10. Mr and Mrs Rogers separated in about January 1989. Resi-Statewide sought to tender in evidence part of an affidavit by Mr Rogers sworn on 21 February 1991 in the Family Court proceedings explaining the circumstances surrounding the execution of the Resi-mortgage, and certain repayments of the loan which he made to Resi-Statewide during 1989 and 1990. Objection was taken on Mrs Rogers behalf on the grounds both of relevance and surprise. Rather than hold up the trial whilst Mrs Rogers and her advisers sought to verify Mr Rogers explanation, a decision on the admission into evidence of his explanations was reserved. In light of the conclusions I have reached, an explanation of the repayments made by Mr Rogers will be relevant to the ultimate orders of the Court. It will be necessary to hear the parties further on this topic. It was however common ground between Mrs Rogers and Resi-Statewide that the following repayments were made to Resi-Statewide in reduction of the loan:

Dates Payments

27. 2.1989 $ 691.87

22. 2.1989 $14,000.00

15. 5.1989 $ 691.87

2. 7.1989 $ 20.56

27.12.1989 $ 800.00

18. 4.1990 $ 1,000.00

31. 7.1990 $ 1,000.00

3. 9.1990 $ 1,000.00

24. 9.1990 $ 1,000.00

With accrued interest, the balance outstanding on the Resi-Statewide loan now exceeds $98,000.

The contentions of Mrs Rogers are as follows:

a) that the forgery of her signature on the Resi-mortgage renders it

void and of no effect whatsoever;

b) that she is entitled to a mere declaration to this effect pursuant

to s.21 of the Federal Court of Australia Act 1976;

c) that the making of the declaration by this Court in turn entitles

the applicant, as a matter of statutory right, to an order under

s.64 of the Real Property Act directing the Registrar-General to

cancel the memorial of the purported Resi-mortgage;

d) that in exercise of these rights the applicant is not seeking

equitable relief, and the rule that a party seeking equity must do

equity has no application;

e) that in the result Mrs Rogers is entitled to orders which would

have the effect of cancelling the registration of the Resi

mortgage from the Register Book and leaving the Aberfoyle Park

property free from any encumbrance.

In short, Mrs Rogers is seeking to have undone that part of the Resi-Statewide transaction which purported to charge her interest on the property, but to retain the benefit of the transaction insofar as it discharged the Westpac first and second mortgages.

11. It is convenient to set out s.64 of the Real Property Act at this point as it also assumes importance in the contentions of Resi-Statewide. This section, which has been in substantially these terms since 1886, provides:

"64. In any proceeding in the Court respecting any land, or

any transaction, contract, or application relating thereto,

or any instrument, caveat, memorial, or other entry

affecting any such land, it shall be lawful for the Court to

direct the Registrar-General to cancel, correct, record,

substitute, issue, or make any certificate, or any memorial

or entry in the Register Book, notwithstanding that the

relevant duplicate certificate has not been produced to him,

or otherwise to do such acts and make such entries as may be

necessary to give effect to any judgment, decree, or order

of such Court given or made in such proceeding, and the

Registrar-General shall obey every such direction."

12. Resi-Statewide resists the orders sought by Mrs Rogers. Without formally conceding that the Resi-mortgage is void and of no effect, no argument to the contrary was addressed to the Court. The contentions pressed by counsel for Resi-Statewide assume that the Resi-mortgage is void even as against Mr Rogers' interest in the Aberfoyle Park property. It is contended that s.64 of the Real Property Act is merely a procedural power to enable cancellation, correction etc, and does not create any substantive right, not otherwise existing, which could be enforced by order of the Court; the orders sought by Mrs Rogers, in substance, amount to equitable relief in the nature of an order for delivery up and cancellation of the Resi-mortgage; and that as the relief sought is equitable relief it should be granted only on terms that she offers to do equity. It is pleaded that it would be -

"... unconscionable for the memorial of the Resi-mortgage

to be removed from the Certificate of Title to the property

without:

(a) The applicant being required to join with Rogers

in executing a Memorandum in registrable form of

a mortgage containing generally the terms of the

first mortgage to Westpac of the property

securing a sum which represents the current

value of the advance of $63,375.77 made on 22

December 1988 bearing interest at the rate of

13%, repayable by monthly instalments of $760,00

on the fifth day of each calendar month; and

(b) the said memorandum being presented for

registration at the Lands Titles Office

immediately after the discharge of the Resi-mortgage."

13. By cross-claim, Resi-Statewide seeks orders that Mr and Mrs Rogers execute such a mortgage, and that the Registrar-General register the same immediately after the discharge of the yesi mortgage. Although in the cross-claim this relief is sought not merely as a condition to the grant of an equitable remedy to the applicant but by way of independent relief, no ground for the relief is pleaded save for that set out in the defence, and none was developed in argument by counsel.

14. The cross-claim also seeks damages in a sum representing the difference between the principal sum of $83,000 lent by Resi-Statewide and the amount to be secured by the mortgage sought by order of the Court from Mr and Mrs Rogers. This damages claim was not pressed at trial and I shall say nothing more about it.

15. Resi-Statewide's contentions assume, correctly in my opinion, that the payment made by Resi-Statewide to Westpac Savings Bank Limited and Westpac Banking Corporation (together referred to as "Westpac") had the effect of discharging both Mr and Mrs Rogers from any further liability under the Westpac first and second mortgages. Although the payment was made without the knowledge or consent of Mrs Rogers, it was made at the request of Mr Rogers. The personal liability of Mr and Mrs Rogers under the mortgages was joint and several. Mr Rogers could pay off all the secured debt. In any event, Mrs Rogers has subsequently adopted the payment by asserting her entitlement to have the entries on the Register Book corrected to show that the Aberfoyle Park property is unencumbered.

16. The first issue is whether the Resi-mortgage is void for all purposes by reason of the forgery of Mrs Rogers' signature, or whether it has efficacy against the estate and interest of Mr Rogers in the property. A similar question was left open in Australian Guarantee Corporation Ltd. v De Jager and Another [1984] VicRp 40; (1984) VR 483 at 499. However in the Full Court of South Australia in Daniell and Others v Paradiso (Judgment 27 February 1991, as yet unreported) King C.J., with whom Cox and Olsson JJ. agreed, held that a document which purported to be a mortgage of the estate in fee simple in the whole of the land owned by two brothers as tenants in common, where one brother's signature was forged, was a nullity as against each of them even if the mortgage had been entered into by the duly authorised agent of the second brother. The argument in favour of a memorandum of mortgage being a nullity where the signature of one of two registered proprietors is forged is in my view even stronger where they are registered as the proprietors as joint tenants. Whilst it lies in the power of one joint tenant to mortgage his or her interest in land registered under the Real Property Act, and to do so without thereby severing the joint tenancy (Lyons v Lyons (1967) VR 169) that is not what the Resi-mortgage purports to do. In my opinion the Resi-mortgage cannot be treated, even in equity, as a mortgage of Mr Rogers' interest alone. The Resi-mortgage by reason of the forgery is null and void for all purposes.

17. The principle that he who seeks equity must do equity is not in contention. Counsel referred to the statement of the rule by Wigram VC in Hanson v Keating [1844] EngR 836; (1884) 4 Hare 1 at 5-6 [1844] EngR 836; (67 ER 537 at 538-539) and to the application of the rule in money-lending cases, including the Lodge v National Union Investment Co Ltd. (1907) 1 Ch 300, and Automobile and General Finance Co. Ltd. and Anor v Hoskins Investment Ltd. and Anor [1934] NSWStRp 36; (1934) 34 SR NSW 375 where it was held that as a condition of obtaining equitable relief to recover from unregistered money-lenders securities rendered void by Money-Lenders legislation the borrowers would be required to do equity upon terms that the money advanced by the defendant lender be repaid. The question which arises in the present case is whether the applicant is seeking equitable relief so as to attract the application of that principal.

18. In Chapman v Michaelson (1908) 2 Ch 612 at first instance, and on appeal, reported at (1909) 1 Ch 238, it was held that the trustee of a borrower under a money-lending transaction rendered void by Money-Lenders legislation was entitled to obtain a declaration that the transaction was void without being required to do equity. In the Court of Appeal the jurisdiction of the Court to make a mere declaration was said to arise under Order XXV rule 5 of the Supreme Court Rules which provided that no action or proceeding should be open to objection on the ground that a merely declaratory judgment or order is sought, and which empowered the Court to make binding declarations of right whether any consequential relief was or could be claimed, or not. Lodge v National Union Investment Co was distinguished on the ground that it was a case where "true equitable relief" was asked for: per Fletcher Moulton L.J. at 242. Chapman v Michaelson was considered with apparent approval in Schnelle v Dent [1925] HCA 12; (1924-1925) 35 CLR 494 at 506 per Knox C.J. and Gavan Duffy J. Isaacs J. at 524 drew attention to the distinction between the jurisdiction of the High Court of Justice after the Judicature Act, and that of the Chief Judge in Equity in New South Wales exercising the jurisdiction of the Supreme Court, a distinction which he considered made Chapman v Michaelson wholly inapplicable to the appeal. That distinction was also fundamental to the decisions in David Jones Ltd. v Leventhal and Others [1927] HCA 53; (1927) 40 CLR 357 and Langman v Handover [1929] HCA 42; (1929) 43 CLR 334 where it was held that the Supreme Court of New South Wales in its equitable jurisdiction at that time had no jurisdiction to make a declaration of right except in proceedings for equitable relief or relating to equitable rights or titles. See also Mayfair Trading Co. Pty. Ltd. and Others v Dreyer and Others [1958] HCA 55; (1958) 101 CLR 428 per Dixon C.J. at 451-453. Thus, in Langman v Handover the High Court held that a suit in equity in the Supreme Court of New South Wales which claimed declarations that certain money-lending transactions were void and of no effect should be dismissed as the statement of claim contained no offer to repay the money obtained by the plaintiff through the transaction. As that decision turned on the particular jurisdiction of the New South Wales Supreme Court, it is not inconsistent with Chapman v Michaelson. The limitation in the equitable jurisdiction of the Supreme Court of New South Wales was removed by amendment in 1965 to s.10 of the Administration of Justice Act 1924 (NSW): see Forster v Jododex Aust Pty. Ltd. [1972] HCA 61; (1972) 127 CLR 421 at 434-435 per Gibbs J. The amendment was in substantially the terms which now appear in s.21 of the Federal Court of Australia Act 1977. Gibbs J. described the jurisdiction thereby given as a very wide one. Section 21 reads:

"21(1) The Court may, in relation to a matter in which it

has original jurisdiction, make binding declarations of

right, whether or not any consequential relief is or could

be claimed.

(2) A suit is not open to objection on the ground that a

declaratory order only is sought."

19. The jurisdiction invested in the Federal Court by s.21 renders the decision of Chapman v Michaelson applicable to the present case. The relief expressly claimed by the applicant is for a mere declaration, pursuant to s.21, that the Resi-mortgage is a forgery, is void, and is of no effect. The facts established entitle the applicant to a declaration in those terms. If no additional relief in equity is granted, the occasion does not arise to impose terms on the applicant.

20. The next question is whether a mere declaration in the terms claimed is sufficient ground for the Court to direct the Registrar-General, pursuant to s.64 of the Real Property Act, to cancel the memorial of Resi-mortgage in the Register Book. In my opinion, the answer must be in the affirmative.

21. Section 64 is a statutory conferral of jurisdiction on "the Court" to entertain a proceeding respecting, among others, "any land, or any transaction... relating thereto, or any instrument... memorial, or other entry effecting any such land...." and gives statutory powers which include the power to cancel a memorial: Assets Co. Limited v Mere Roihi and Others (1905) AC 176 at 195. The power so granted is, however, carefully circumscribed. It is not a power exercisable at large but one limited to cases where such a proceeding is not expressly barred by s.69 of the Real Property Act. "The effect is that the power of the Court to cancel or correct does not extend beyond those cases in which adverse claims against registered proprietors are admitted by the Act": Frazer v Walker and Others (1967) AC 569 at 581. Before the power to correct or cancel will be exercised there must be a proceeding in the Court to determine that it is a proper case to admit an adverse claim against a registered proprietor. That is the effect of the early South Australian cases to which counsel for Resi-Statewide drew attention: see In Re Biggs [1877] SALawRp 11; (1877) 11 SALR 43, In Re Charles White [1887] SALawRp 3; (1887) 21 SALR 6 and In Re Mallen [1892] SALawRp 6; (1892) 25 SALR 34. Where there is a proceeding in the Court the power under s.64 may be exercised in that proceeding: Elder Trustee and Executor Co. Ltd.and Another v Bagots Executor Trustee Co. Ltd and Another (1964) SASR 306. In s.64, "the Court" refers to the Supreme Court of South Australia or a Judge or Master thereof. However under the provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (S.A.), s.4, this Court has and may exercise the jurisdiction of the Supreme Court of South Australia. In my opinion, the applicant in the present proceedings has established her adverse claims against the registered proprietor. The grant of the declaration sought will bear witness to that. She is entitled to an exercise of the statutory power under s.64 to cancel the memorial of the Resi-Statewide mortgage. A party seeking the exercise of a statutory power is entitled thereto without being put on terms to do equity to the other party against whom the relief is claimed: cf. Mayfair Trading Co. Pty. Ltd. v Dreyer at 453. The order under s.64 should be made unconditionally.

22. Whilst counsel for Resi-Statewide based his argument upon the principal that he who seeks equity must do equity, in my opinion there is another equitable principal which the circumstances of this case attract which entitles Resi-Statewide to relief on the counter-claim; that is the equitable principal of subrogation: see generally Meagher Gummow and Lehane "Equity, Doctrines and Remedies" Second Edition, chapter 9. By virtue of that principal I consider Resi-Statewide is entitled to stand in the shoes of Westpac whose mortgages were discharged as part of the Resi-mortgage transaction, and to obtain such consequential orders as are necessary to give effect to this right. In Ghana Commercial Bank v Chandiram and Anor (1960) AC 732 the appellant Bank had advanced money, part of which was to pay out a mortgage on the understanding that the mortgagor would, on the discharge of the prior mortgage, grant specific security over the asset. Specific security was in due course given by way of legal mortgage, but this was later held to be void against the judgment creditors. The Judicial Committee of the Privy Council held that by paying out the prior lender, the appellant became entitled to the benefit of the prior mortgage with the same priority for the amount thereby secured as had been enjoyed by the prior lender. The Board expressed the relevant principal in wide terms, at page 745:

"It is not open to doubt that where a third party pays off a

mortgage he is presumed, unless the contrary intention

appears, to intend that the mortgage shall be kept alive for

his benefit: See Butler v Rice (1910) 2 Ch 277 at 282-283."

23. That broad statement of principal was followed by Oliver J. as he then was in Paul v Speirway Ltd (In Liquidation) (1976) 1 Ch 220.

24. The decision in Butler v Rice (1910) 2 Ch 277 cited in Ghana Commercial Bank v Chandiram is very much to the point in the present case. The husband of the owner of mortgaged property, without her knowledge, borrowed money from the plaintiff for the purpose of paying off the mortgage, on an undertaking to procure that part of the money borrowed would be secured by a new mortgage. The money was advanced to the husband who paid off the mortgage, but his wife refused to execute a new mortgage. It was held, on the facts, that it must be presumed that the plaintiff intended to keep the first charge alive in his own favour over property, the title deeds of which he received when the advance was made; the fact that the wife had not requested the plaintiff to make the payment and did not know of the transaction was immaterial; and that the plaintiff was entitled to a charge over the property and interest Warrington J. said at p 282:-

"The statement of claim proceeds on the well-known equitable

doctrine that if a stranger pays off a mortgage on an estate

he presumably does not intend to discharge that mortgage,

but to keep it alive for his own benefit. The statement of

claim asks for a declaration that the plaintiff is entitled

to a charge on the Manor Road property for 450l. and

interest at 5 per cent. The charge referred to is the

bank's charge, which the plaintiff says was kept on foot in

his favour, and the question is whether his position is well

founded. In the first place I find from the facts I have

stated that it was not the intention of the plaintiff, nor

indeed is it possible to suppose that any sensible man would

have such an intention, to discharge the property from the debt."

Pausing here, in the present case it could not be supposed that Resi-Statewide intended to discharge the property from the debt. On the contrary, the forms of authority which it obtained, ostensibly from Mr and Mrs Rogers, leave no doubt about this. It can be inferred from the documents before the Court that Resi-Statewide (by its solicitors) also received and held the Certificate of Title as a condition of advancing the loan.

25. The learned Judge then went on to say at p 283:-

"Then does the fact that the plaintiff intended, if the

transaction was carried out, to have a legal mortgage on the

Manor Road property only and a guarantee for the remaining

50l. prevent the application of the doctrine? Plainly not.

His meaning was that he should have a further security; but

that is no evidence that he intended in the meantime to give

up such security as a transfer of the deeds to him would

give him. The evidence which he gives, which I find to be

true, as to what he said at the second interview supports

this, namely, that the deeds were to be taken by the

solicitor and held by him for the plaintiff. Such security

as that gave would be superseded by the better security to

be given afterwards."

26. On the question whether it was material that the owner of the property had not requested the plaintiff's payment, Warrington J. said at pp 282-283:-

"... it should be observed that this is not a case in which

a person seeks to create a charge in his own favour. Here

there was an existing charge, and the only question is

whether it has been paid off or kept alive. On such a

question as that it appears to me that the concurrence of

the mortgagor is immaterial. Her position is not affected.

The only alteration in her position is that instead of owing

the money to A. she will in future owe it to B."

That the absence of consent by the owner of the property was not material was recognised as long ago as Smith v Green (1844) 1 Coll 555 at 563 (63 ER 541 at 545).

27. In my opinion, on the application of these principals Resi-Statewide became subrogated to the benefit of the security enjoyed by Westpac when the Westpac first and second mortgages were paid out at settlement. At para 915 of Meagher Gummow and Lehane, "Equity Doctrines and Remedies", there is a note of an unreported decision of Holland J. in Hecimovic v Schembri, 28 June 1974, when a similar conclusion was reached on analogous facts.

28. Subject to any adjustment on account of payments received by Resi-Statewide after 22 December 1988, if any of those payments should be treated as payments in reduction of the amounts secured by the Westpac mortgages, Resi-Statewide is entitled to a declaration that it has a right to a charge on the Aberfoyle Park property for an amount totalling $63,375.77 (being the amount paid to discharge the Westpac first and second mortgages) and interest thereon calculated according to the rates which would have applied from time to time under the Westpac first and second mortgages, or the Resi-mortgage, which ever is the less, and to have the security enforced by orders requiring the execution of mortgages in registrable form. The implementation of the last part of this relief is complicated by the bankruptcy of Mr Rogers which has had the effect of severing the joint tenancy in the Aberfoyle Park property: see Re Francis; Ex parte Official Receiver (1988) 19 FCR 149. In the circumstances I think this Court should order that Mrs Rogers, and the Official Trustee on behalf of Mr Rogers, should execute a Memorandum of Mortgage in registrable form over their respective shares as tenants in common to better secure so much of their joint and several liability as is found to be outstanding to Resi-Statewide as the party now entitled to the benefits of the Westpac first and second mortgages.

29. It will be necessary to hear the parties further as to adjustments which should be made for payments received by Resi-Statewide after the date of settlement, and to work out the terms of the appropriate orders.