Reference no: EM133545159

Case Study: You are still working for DK law firm which specialises in property and tenancy law. Kate(the new Partner of the firm) has come to you with another legal problem for her client MsEidra Park, a client you've assisted in the past and has come back with more legal issues toSandsmere Park, the rural property she inherited from her grandmother.

Sandsmere Park

As you recall from your previous notes, Ms Eidra Park (DOB 18 June 1980) inherited twoplots of land from her grandmother, Mrs Soo-Ryun Park, who passed away in an aged carefacility at Mildura in January 2022 at the age of 105. Eidra's late father was the only childwho died along with her mother in a tragic car accident in 2005.After some negotiation with the local indigenous tribes, Eidra was able to secure theirpermission to transform Sandsmere Park and the area around it into a wildlife sanctuary. Youalso discovered, to everyone's pleasant surprise, the title on the land had been converted toTorrens Title back in the 1990s when Mrs Soo-Ryun Park wanted to borrow some money forrenovation. There are currently no encumbrances noted in the Certificate of Title.Shortly after Eidra became registered owner of Sandsmere, she received communication froma former school friend of her, Cecilia Dennison. In her email, Cecilia wrote about how shebecame friends with Mrs Soo-Ryun Park and stayed at Sandsmere to look after both Mr andMrs Park. She moved to Melbourne when Mrs Park moved to a retirement village andcontinued to visit her several times a week. Attached with the email was a voice recordingfile of a women's voice saying 'My name is Soo-Ryun Park, I am grateful of all the helpCecilia has given us over the years and I intend to gift her Sandsmere to show my gratitude'.Eidra has admitted to you that the voice on the file sound like her grandmother's voice. Eidraclaim to have no knowledge of the gift, but admitted to have had conversation with Mrs Parkabout the helpful Cecilia. According to Eidra, when she asked at the time (Mrs Park wasalready living in the retirement village by then), Mrs Park told her that she planned to giftCecilia a 'big gift' as token of her gratitude. Eidra has since received communication fromCecilia's lawyer advising her that they plan to launch a civil action to claim title toSandsmere.1. Eidra wants to know if she needs to honour this gift, and can Cecilia really take hertitle away based on a recording? (30 Marks)

Hawthorn House

You have just finished interviewing Louise, who has come to your firm for urgent help:Louise and her brother Neil are on the title as registered proprietors of a heritage listed houseas Torrens title land in the suburb of Hawthorn. The three-bedroom house is worth about $2million and is subject to an unregistered mortgage in favour of FairLend Financial for theamount of $800,000. The loan was taken out in 2018 for extensive renovation work on theproperty as well as to contribute to their joint business venture.Due to the global pandemic, FairLend Financial experienced a significant increase inmortgage default, which in turn created a substantial cashflow problem for the company. TheCEO of FairLend, Derek Fairlend, decided to gather up some of the unregistered mortgages,where they kept the paper certificate of title, and requested a cash loan from Forward Bank.Derek forged the signature of Louise and Neil and secured a two-year loan of $1 million fromForward Bank. Derek did the same with five other properties on FairLend's book.In 2021, Neil decided to move out of the Hawthorn House and move in with his partner Max.Neil decided to execute a transfer purporting to transfer his interests in the Hawthorn Houseto Max. This transfer was transmitted to FairLend with instruction form them to release theCertificate of Title so the title can be transferred to Max. FairLend responded by letter to saythat because the mortgage remained outstanding, they could not release the Certificate ofTitle. Unfortunately, this letter was never passed on to Neil.Neil tragically passed away in early 2022 in a car accident. Louise subsequently receivednoticed from Forward bank that the Hawthorn House has been sold in a Mortgagee Auctionto Jack. Louise quickly lodged a caveat asserting her interest so Jack has not been able tobecome registered on the title.In the mean time, Max, through his lawyer has produced the transfer document, as well asNeil's last Will bequeathing his share in the Hawthorn house to Max.

Questions:

1. Can Louise have the mortgage with Forward Bank set aside?

2. Can Louise stop Jack from getting registered?

3. What was the most likely form of co-ownership held between Louise and Neil?

4. What rights, if any does Max have to the house?