When they repudiated it amounted to an equitable

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When they repudiated, it amounted to an equitable fraud. Gosper Facts: G had long relationships with the people at the bank. They trusted him when they gave him a forged mortgage variation and a letter from Mallesons. To enable registration to take place the bank produced the certificate of title which it was holding for safe keeping. You cannot ordinarily register a doc without the CoT and they sent it in and G got registered and enjoyed the loan. When G died, Mrs G found out about the whole affair. Mrs G wanted to tender the original amount borrowed and have it paid back. The bank resisted this on the basis that it wanted the entire amount (incl the amount due on variation of the mortgage). The bank’s CoT was held in safekeeping. In producing that certificate it was held that the bank breached its obligations to Mrs G. Held: In personam exception applied. Mrs G was entitled to have the register corrected to remove the variation of mortgage. Marnie J: A forged transfer alone is not sufficient in itself to lead to a personal equity. Did not answer whether this was strictly fiduciary or not. 31
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President Kirby: The bank never contacted her and treated her as a mere appendage of her husband and a mere extension of her husband’s property. The equity of redemption was unaltered. Kirby is not using the inpersonam exception. There is some criticism of this case for “unduly expanding” the in personum exception leading to a reduction of indefeasibility. Vassos v State Bank of South Australia Facts: Registered bank mortgage held over a property. Fee simple was held by P A and T. Mortgage was forged and was registered. Hayne J: Said that there had been fraud. Mere fact that they had not assented to that did not give them an in personum right to have it reversed. The bank is the RP of the mortgage. Hayne noted that the mortgagee bank had not acted unconscionably. Defrauded owners did not have an in personum exception against the mortgagee bank. Distinguishes Gosper . In Gosper there was a breach of agreement between Mrs G and the bank by using the CoT in an unauthorised way. Here there is merely the bear fact of the forgery. The defrauded owners could not have the mortgage discharged under the in personum exception. Grigitch (NSW COA) Facts: Impersonation with CoT. Bank attested to his signature. False attestation meant that fraud exception failed. Powell J: Impersonum exception will not arise because of false attestation per se. S52 of the TPA – misleading and deceptive conduct and also argued negligence. Mr G was owed a duty of care but the court held that the bank had discharged that duty because the impersonator had the old CoT etc. Court held that they could have been more prudent but they were not negligent. Bank had to make sure that they had the opportunity to seek independent legal advice. That opportunity was given. For the in personum exception to apply you must have an established cause of action. It may arise before or after registration. Here there was no action for G to take against the bank. So G failed.
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