Qualified indefeasibility and the careless mortgagee

In recent years a great deal of case law has been generated in relation to mortgages where the mortgagee has not engaged in adequate identity verification of the mortgagor and the mortgage has subsequently been found to be forged. As a result, careless mortgagee provisions operate in Queensland as an exception to indefeasibility. Similar provisions are expected to commence soon in New South Wales. This article examines the mortgagee’s position with the benefit of indefeasibility and then considers the impact of the careless mortgagee provisions on the rights of a mortgagee under a forged mortgage, concluding that the provisions significantly change the dynamic between a registered mortgagee and registered owner who has not signed the mortgage. These provisions appear to give the mortgagee a conditional indefeasibility, with the intention of reducing the State’s exposure to the payment of compensation in the case of identity fraud. They are however, more successful in the case of forgery by a third party rather than forgery by a co-owner.