ABSTRACT
Facts: The appellant is a company which was incorporated in 1965 for the purpose of holding certain land at French’s Forest near Sydney under the Real Property Act 1900 (N.S.W.). The appellant was at the relevant time the registered proprietor of that land. The first respondent is the Registrar-General. The second respondents, Robert Sturgess and Gerard Sturgess, were not represented at the hearing of the appeal. The appeal concerns an instrument purporting to be a mortgage of the land executed on 24 December 1979 by the appellant, under its common seal, in favour of Barclays Credit Corporation Holdings Pty Limited (‘Barclays’), to secure the payment of principal and interest under a loan amounting to approximately $1,400,000 made by Barclays to one or more companies owned and controlled by Robert Sturgess, a director of the appellant. The appellant had no interest of any kind in those companies. The mortgage was registered on 20 May 1980. Following default, Barclays sold the land by auction under the power of sale conferred by the instrument to a third party who became the registered proprietor of the land. The appellant sued the Registrar-General for damages under s 127 of the Act by way of compensation for the loss of its estate or interest in the land on the ground that it did not execute the mortgage instrument. Section 127 permits a person who has sustained loss or damages by the registration of any other person as the proprietor of land, and who is prevented by the Act from bringing proceedings for possession or recovery of the land, to bring an action against the Registrar-General as nominal defendant for recovery of damages. At all material times, the directors of the appellant were Robert Sturgess, John Lees and Robert Ellis. The shareholders were John Lees, Robert Ellis and Rogard Pty Limited which was controlled by Robert Sturgess. None of the money lent by Barclays in consideration of the execution of the mortgage was received by the appellant. The instrument of mortgage was executed under the common seal of the appellant by Mr Sturgess, who also attested the affixing of the seal. The document also bore the signature of his son, Gerard Sturgess, who purported to sign as ‘company secretary’.
