This case reminds us of the importance of conducting a proper due diligence before approving and releasing the loan amount to the borrower/mortgagor. If you use a company to hold land without a mortgage, you have to be careful not to let others know too much about your company and landholdings.

In this case, Mr. Francis Lim appeared as Counsel for a corporate landowner of 3 pieces of land in NSW (Winau Aust Pty Ltd). The unit holders of Winau Unit Trusts are Chinese from mainland China. Winau purchased the lands for $7.5 million in cash.

A fraudster highjacked Winau by:
a) forging the signatures of all its shareholders, directors and secretary;
b) lodging the form 484 with ASIC to register himself as its sole shareholder, sole director and sole secretary through an accounting firm;
c) applying for replacement titles and then applied for a $4 million loan from a private lender;
d) opening a new bank account in the name of Winau as its sole director/secretary;
e) signing a cheque directions to direct the loan amount be released to this new bank account,
f) withdrawing the entire loan amount and did not repay the loan.

The loan was approved and within a few days the loan amount was released to the bank account opened by the fraudster. The private lenders lodged a mortgage over each of the 3 pieces of land. The private lenders entered into a Contract of Sale to sell the Lands to a third party for $6.88 million. Winau could not stop the settlement of the sale because Winau engaged 3 firms of solicitors who merely wrote letters to the private lenders’ solicitors for about 5 to 6 months and they did not lodge a caveat over the lands. Fortunately for Winau, settlement had not been effected and the court ordered the deposit and balance of purchase price to be paid into court pending the outcome of the claim by Winau against the fraudster, the private lenders, the accountant that prepared and lodged the form 484 with ASIC and the Registrar of Titles. The fraudster has been charged by NSW Police with 27 offences which are still pending in court.

Representing Winau and its Unit Holders in Court, Mr. Francis Lim argued amongst others that:
a) the loan amount was not advanced in accordance with the terms of the Mortgages;
b) Winau did not receive any of the loan amount;
c) although the new bank account was opened in the name of Winau, it did not belong to Winau because it was opened without the knowledge and authority of the actual directors of Winau, and
d) the private lenders could not rely on the information recorded by ASIC because the Form 484 was not provided with the authority of the lawful directors of Winau.

The Court agreed with Mr Francis Lim’s submissions and determined that the mortgages, though indefeasible, secured nothing and ordered that the entire proceeds of sale held in court totalling $6.88 million be released to Winau. The private lenders are also ordered to pay the costs of Winau and the Registrar of Titles.

Winau will continue with its claim against the private lenders, the accountant and the Registrar General to recover the balance of its losses as a result of losing its lands because of fraud.

A full copy of the judgment can be found at: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2020/434.html

Francis represented the Defendant as Counsel in this civil case in the County Court of Victoria. The matter involved allegations of theft of personal information and the use of this information to obtain car finance. There were also allegations of forgery of car finance documents and the use of fictitious cars as the objects under the car finance agreements.

After a six-day hearing, the learned Judge took just over three months to deliver her decision. Her Honour Judge Marks determined that she was not satisfied that our client was liable as a guarantor under the car finance agreements. The Court also dismissed an application by the Plaintiff to re-open its case to provide further evidence after evidence was concluded and written submissions were filed.

A full copy of the judgment can be found at: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCC/2018/249.html

This case was subsequent to Xiao Hui Ying v. Perpetual Trustees Victoria Limited & Ors. [2012] VSCA 316.

This case dealt with the details of an “all moneys” mortgage where the landowner’s signature was forged by her husband. An “all moneys” mortgage involves securing all debt, including any additional borrowing(s), against the mortgage.

The case was brought by the Mortgagee seeking to sell the mortgaged property to recover the outstanding loans granted upon receipt of signed documents that were later discovered to contain forged signatures.

The Court found that the registered mortgage, although not subject to being set aside, secured nothing. The Court held further that the landowner’s husband did not act as her agent and forged loan agreements were not legally binding and incapable of ratification.

However, the Court held that our client, the landowner, held the property on a resulting trust in favour of her husband and the presumption of advancement was rebutted.

For our client, it meant that she was not liable for the loan obtained by fraudulent means by her husband. Unfortunately, she lost their family home because the Court found that she held the family home as trustee for her husband and he was liable to the mortgagee for the loan taken by him in her name.

A full transcript of this case and the judgment can be found at: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2015/21.html

Francis appeared as Counsel for a client in an appeal against a judgment given at an undefended trial in her absence.

The case involved a client who neither read nor spoke English, whose husband had forged her signature to secure a mortgage.

The Victorian Court of Appeal set aside the original judgment against our client, finding that she was, “to be considered as an innocent party whose signature may have been forged on a variety of documents.”

In summing up, the Court Appeal noted that “Mr Lim, the appellant’s solicitor who appeared as counsel on the appeal, in an earnest and competent submission…” and further, that “in our opinion, there is force in these submissions”.

A full transcript of this case and judgment is available at: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2012/316.html

This case involved the purchase of an “off the plan” investment property by the Plaintiff and the subsequent desire of our client, the vendor to rescind the contract on the grounds that a plan of subdivision was not registered within 15 months of the date of the parties entering into the contract.

Francis acted as Counsel for the Property Developer/Vendor, the Defendant in the case, the primary issue being whether the vendor’s (the Defendant) recession was valid.

Amongst several findings, a significant one was that an expert report was put aside because his independence was compromised as a result of material non-disclosure by him.

The court dismissed the Plaintiff’s claim and our client’s counterclaim.

A full transcript of this case and the judgment can be found at:

http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2010/586.html

Our client was the owner of a café and deli in leased premises, and the Plaintiff in this court action. His landlord had informed him that he had missed the deadline to renew his retail lease and so was required to cease conducting business and leave the premises.

We argued on his behalf that the word, “notification” in section 28(1) of the Retail Leases Act 2003 requires that the tenant has in fact received from the landlord notice in writing of the date after which an option to renew the Lease is no longer exercisable.

The question before the court: was our client’s purported exercise of the option under the Lease valid and enforceable or was it of no legal effect because he was out of time?

In a watershed decision for tenancy rights, His Honour Justice Vickery held for the first time that a landlord under a retail lease is obliged to “Notify” the tenant of the time for any option to renew to be exercised.

Before this decision, it was thought that it would be sufficient for the landlord to merely send the notice under section 28 of the Retail Leases Act 2003 by post. His Honour held that the word “notify” means that the tenant must have in fact received the section 28 Notice.

This decision is frequently mentioned in Section 28 Notices served by Landlords on their Tenants.

A full transcript of this case and the judgment can be found at: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2008/412.html

This case was a judicial review of a decision of the Migration Review Tribunal, refusing to grant our client a partner visa. Francis appeared as counsel for the Applicant, who was married to an Australian permanent resident.

The Federal Magistrate declared that the original decision made by the Tribunal was “unlawful, void and of no force and effect.”

Further, the Minister for Immigration & Citizenship was ordered to pay the costs of our client, in the order of $5,000.

The learned Federal Magistrate held that there was no “review’ of the delegate’s decision if such review by the Tribunal should involve evidentiary materials more limited than those available to the delegate.

A full transcript of this case and the judgment can be found at: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FMCA/2007/453.html