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Obligations Imposed on Mortgagees Exercising Power of Sale.
Queensland Supreme Court case involving former CEO of ABC Learning highlights the obligations imposed on mortgagees exercising power of sale.
In the recent matter of Westpac Banking Corporation v Helicopters Brisbane Pty Ltd & Ors [2012] QSC 263 the Supreme Court of Queensland was asked by Eddy Groves, former CEO of ABC Learning, to dismiss an application for summary judgment. The court was required to consider the operation of s85 Property Law Act 1974 dealing with the obligations imposed on a mortgagee exercising power of sale over secured property.
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High Court Clarifies the Operation of the Penalties Doctrine
High Court clarifies the operation of the penalties doctrine in Australia.
In Andrews v Australia and New Zealand Banking Group Limited [2012] HCA 30 the High Court of Australia held that a fee could be characterised as a penalty even though it was payable without there being any breach of agreement.
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Caveat Dispute: Mortgagee Unable to Transfer Land
Caveat Dispute – where mortgagee exercising power of sale is unable to transfer the land due to a caveat lodged by the former director of the mortgagor.
In McElligott v Commonwealth Bank of Australia [2012] the Queensland Court of Appeal was asked to consider a registered owner’s caveat preventing the registration of a transfer and mortgage. And an order by the Supreme Court to remove this caveat under s 127 of the Land Title Act 1994 (Qld).
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Priority Dispute: Mortgagee Lodging a Proof of Debt
Priority Dispute – whether a mortgagee surrenders its rights when lodging a proof of debt in respect of its entire claim.
In Combis & Ors v The Trust Company Ltd [2011] QSC 388 the court was asked by the liquidator of a borrower to find that a mortgagee who had discharged its mortgage to allow the security property to be sold by a receiver became disentitled to any share of the surplus sale proceeds because the mortgagee lodged a proof of debt for all monies owed to it.
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Letter of Offer Dispute: Application Fee If Borrower Withdraws
Letter of Offer Dispute – charging an Application Fee when the borrower withdraws.
The Queensland Court of Appeal decision of Memery v Trilogy Funds Management Limited [2012] QCA 160 provides a useful analysis of when a lender may charge an application fee under a letter of offer agreement even if the loan does not proceed.
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Farm Debt Mediation Act: Mortgage Lenders Must Adhere
Farm Debt Mediation Act.
In Waller v Hargraves Secured Investments the High Court warned mortgage lenders of the need to adhere to the Farm Debt Mediation Act prior to taking enforcement action under a defaulting mortgage or loan agreement
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Mortgage Fraud: Dangers Inherent in “All Monies” Clause
Mortgage Fraud. Lenders again warned of the dangers inherent in seeking to rely on an “all monies” clause contained in a mortgage.
In the matter of Perpetual Trustees Victoria v English & Anor [2010] NSWCA 32, the Supreme Court of New South Wales was once again required to consider the enforceability of a registered mortgage that had been fraudulently executed by a co-owner.
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Service of Statutory Demands at Registered Office Invalid.
Service of Statutory Demands on a company at its registered office held invalid.
Recent Federal Court decisions highlight the dangers in serving creditors statutory demands on the registered office of corporate debtors.
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Guarantor Liable for Costs Incurred by Lender
Guarantor liable for costs incurred by lender after full discharge of facility.
In the matter of Balanced Securities Limited v David Thomas [2010] QDC 337, Elliott May was successful in obtaining judgment for its lender client against a guarantor for the costs incurred in defending proceedings brought by a borrower after the loan had been repaid in full.
