Rebutted if the agent goes on a frolic of his own for

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Rebutted if the agent goes on a frolic of his own for his own benefit then the principal will not be imputed with knowledge of the fraud. False Attestation Cases – (you are a witness to the signature) AGC v Diaga Facts: Proprietors of land. Mr Diaga wanted to borrow money from AGC. Mrs Diaga refused to co-sign the mortgage over their house. Somebody forged her signature. French (employee of AGC) signed to say that he had witnessed both Mr and Mrs Diaga sign. He only saw Mr D sign. AGC advanced the money. There was default. They sought to enforce the mortgage by an action for possession. SC: This falls within fraud under S 42 in so far as the wife’s interest in the land. Due to the fact that AGC employees had falsely attested to having witnessed their signature and had presented the mortgage to the registrar with knowledge/suspicion. The fact that it was forged was unknown to anyone at AGC. The false attestation itself can be fraud because they knew about it. The false attestation can be brought home to AGC. Relies on the 2 types of fraud in Schultz . They were acting within the scope of their employment. AGC knew that attestation was a necessary pre-requisite before the registrar would register the document. When AGC presented the registrar with the document you are making a representation that the document is a genuine document. In fact AGC knew that Mrs D was not present. V ANZ Facts: Mr B was impersonated by son and daughter in-law. Bank officer signed the attestation. Bank witnessed the forged signature and the mortgage was witnessed in favour of ANZ. Although statutory fraud in generally narrower Latec. Held: While the bank was less meticulous than it might have been. They had not been dishonest. There was no evidence that the bank took advantage of the situation to acquire some sort of benefit. 29
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Russo (1999) Vic Facts: Mrs R was the RP. Daughter and son-in law obtained a loan secured by a mortgage over her land. The bank engaged a solicitor to organise the mortgage documentation. Mrs R’s forged signature was attested to by a law clerk despite a strict instruction by her boss that she should only attest where she sees the person sign. Held: Ormiston J: He emphasised that you must show that suspicions were aroused and that you abstained from making further inquiries for fear of learning the truth. (1) personal dishonesty (2) moral turpitude (3) wickedness Found that she was not guilty of fraud because he did not think that she had been dishonest or wicked. Took into account her youth, inexperience and lack of training. Did not hold that she had been dishonest because she did not understand how the path to registration worked. She could not understand that she was making a representation to the land titles office. She thought it was a mere formality. She did not appreciate its significance or its consequences. Found that the solicitor was not dishonest. Ormiston J does not consider whether there should be some sort of imputation of knowledge.
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