We were pleased to read a recent judgment which featured Kingston & Partners’ documentation. The Court considered our processes prior to mortgage registration involving virtual identification and negotiation of the commercial terms via email. Whilst the processes and commercial agreement was challenged and scrutinised in court, they were found to be robust and effective.
In PF 473 Pty Ltd v Qasim [2024] NSWSC 874, despite agreeing to and signing loan and mortgage documents, the parties continued to negotiate and sought further amendments to the documents. Our team member requested email confirmations from the borrower’s solicitor by highlighting the proposed changes at every stage and then confirming the proposed changes to be inserted by hand for mortgage registration.
The borrower then defaulted under the loan and challenged the indefeasibility of title by criticising the process and effectiveness of the amendments i.e. whether email communications were “in writing” in accordance with s23C of the Conveyancing Act 1919 (NSW) and whether reasonable steps were taken to identify the mortgagor as per s56C of the Real Property Act 1900 (NSW).
Justice Faulkner found that the Kingston & Partners solicitor “was thorough and diligent in her dealings with [the Borrower’s lawyer] to ensure that [the borrower] was consenting to the revision of the terms.” His Honour also clarified that s23C applies where an interest in land is created or disposed of, which the communications by email did neither, but rather, it constituted an agreement to register the mortgages which are indefeasible.
This decision will give lenders some comfort that the process and procedures we have are in place for specific reasons. In fact, care in ensuring the formalities are attended to is essential to make sure challenges such as this can be successfully defended.
For more information, contact Phil Hustler, Managing Partner, and Cindee Duong, Solicitor, Front End Loan Advance Team.
Kingston & Partners
Level 11
131 York Street, Sydney
02 9056 9998