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Rule Against Tacking vs Expenditure Exercising Power of Sale
Rule Against Tacking vs Expenditure Incurred in Exercising Power of Sale.
In the matter of Matzner v Clyde Securities Ltd [1975] 2 NSWLR 293 the Supreme Court considered the issue of competing priorities between three successive mortgagees holding registered mortgages over a single property.
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Unfair Contract Terms Protections to Cover Small Businesses
Unfair Contract Terms Protections Extended to Small Businesses.
As of November 2016, the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015 extended the unfair contract terms protections to cover small businesses. Prior to this only consumers benefited.
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Guarantor Relieved of Obligation to Pay Due to Bank Error
Guarantor relieved of obligation to pay because Bank failed to adhere to a voluntary industry code.
In the matter of National Australia Bank Limited v John Albert Rose [2016] VSCA 169, the Victorian Supreme Court of Appeal held that a guarantor was not required to repay loans totalling more than $8 million because the bank failed to comply with the Code of Banking Practice.
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Statutory Demands and Genuine Dispute Regarding the Debt
What are the implications for those seeking to set aside a statutory demand?
In Plate Impressions Pty Ltd v JRL Consortium Group Pty Ltd [2016] QSC 274, the Supreme Court of Queensland considered both the requirements for the effective form of a statutory demand and the impact of a genuine dispute regarding the debt.
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Verification of Identity: Reasonable Steps in the VOI Standard
Verification of Identity: when do mortgagees need to make further enquiries?
Verification of Identity (VOI) is now an entrenched practice in property transactions across all Australian jurisdictions. The obligation imposed on mortgagees is to take “reasonable steps” to identify the person signing the land registry document and to establish their right to deal with the property. This article will aim to remove some of the confusion about the VOI process as well as raise some considerations for mortgagees as to when they may be required to make further enquiries as to a mortgagor’s identity.
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Loan Agreement Variation: Consent of Guarantors Essential
Lenders are reminded to ensure all guarantors consent to any variation of the terms of a loan agreement.
The Supreme Court of Queensland has highlighted the need for lenders to obtain the consent of guarantors prior to amending the principal loan agreement in a way that will impact the guarantor’s obligations.
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Courts Won’t Assist Borrowers with Imprudent Transactions
The courts will not intervene to assist borrowers who become the victim of their own imprudent transactions, even where they have not been advised to seek independent legal and financial advice.
In the matter of Donnelly v Australia and New Zealand Banking Group Ltd [2014] NSWCA 145 the court held that a borrower who voluntarily engages in risky business is not entitled to call upon equitable principles to be redeemed from the consequences inherent in taking those risks.
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Careless Drafting Exposes Lender to Unsecured Loan
Careless drafting and a failure to properly structure loan facility and variation documents leave a lender with an unsecured loan and significant costs exposure.
In the matter of Sibonna Nominees Pty Ltd v Evangelos Vouzas and Christina Vouzas [2013] VSCA 369, the Court of Appeal of Victoria affirmed the trial judge’s finding that a mortgage provided by the borrower’s parents secured no money and that the lender was not entitled to exercise any power of sale over 2 ‘mortgaged’ properties.
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Judicial Sale of a Mortgaged Property
The Court will not ordinarily make an order for judicial sale of a mortgaged property against the wishes of the mortgagee unless the mortgagee’s conduct would otherwise prejudice the mortgagor.
In the matter of Koovousis v Tony, trustee in bankruptcy of the Estate of Vrkic, Elliott May Lawyers convinced the court that the rights of its mortgagee client should prevail over the rights asserted by a purchaser seeking specific performance of a contract of sale over the mortgaged property. -
Analysis of a Mortgagor’s Fundamental Right to Redeem
A mortgagor retains the right to redeem the mortgage in equity even if it is in default of its obligations under the mortgage and loses the contractual right to redeem.
In the decision of Sun North Investments Pty Ltd as trustee v Dale & Anor [2013] QSC 44 the Supreme Court of Queensland provides a useful analysis of a mortgagor’s fundamental right of redemption.
