An appellate court will overturn a trial judge's acceptance of oral evidence where contemporaneous documentary evidence is overwhelmingly inconsistent with that evidence, the oral account was not pleaded, was absent from prior affidavit material, and was unsupported by evidence from persons directly involved in the alleged transaction. An alteration of mortgage priorities between mortgagees is not 'lawfully achieved' for the purposes of s 88 of the Property Law Act 1974 (Qld) where it stems from the unlawful registration of a mortgage without the mortgagor's consent. The scope of s 63(2) of the Land Title Act 1994 (Qld) — whether it releases personal covenants when a mortgagee becomes registered owner — was left open but the Court's analysis suggests it does not.
The full text is available to signed-in members, including the 3 later cases that cite this judgment.