• Unregistered Mortgage vs Equitable Mortgage: How Does it Work?

    unregistered mortgage

    Can a lender enforce its rights with an unregistered mortgage?

    Let’s look at a scenario. A lender enters into a loan agreement which confers the right to register a mortgage, but only upon default. The borrower defaults but the mortgage is not registered. May the lender enforce the mortgage before registration?

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  • Standard Terms: How Binding are They?

    In what circumstances are standard terms binding?

    Changes to the Australian Consumer Law (ACL) have impacted the drafting and litigation of contracts. In this context, how binding are standard terms?

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  • Equitable Mortgage: Certificate of Title as Security Without Signing Agreement?

    service the loan

    Equitable mortgage: Can a lender rely on the certificate of title as security for a loan even though a borrower fails to sign any loan agreement?

    Hatala v Graglee Pastoral Company Pty Ltd [2017] NSWSC 155 provides insight into this.

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  • Application by Creditor to Remove Liquidators Dismissed by Court


    The Supreme Court of New South Wales dismisses an application by a creditor to remove the liquidators of a company. The liquidators had refused to conduct a public examination of the company’s director.

    The Court held that they had reasonably formed the view that they should not conduct the examination.

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  • Private Lenders: What is the Future of Small Business Loans?

    private lenders

    Private lenders get a glimpse into the possible future of the small business loan. What is it? And what is the best way forward?

    In February 2017, the Australian Small Business and Family Enterprise Ombudsman (ASBFEO) released its report “Inquiry into Small Business Loans” (the Report).  The Report targets the laws and practices of authorised deposit taking institutions (Banks) and their small business loan contracts. If implemented, will it also impact private lenders?

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  • Service the Loan: How Much is Enough When Assessing Borrower’s Ability?

    service the loan

    When assessing a borrower’s ability to service the loan, how much is enough?

    Mortgagees are generally required to take steps to ensure a borrower is able to service the loan. Whether by investigating an exit strategy or seeking assurances through a declaration. However, the steps required need to be determined on a case-by-case basis as potential red flags can put a mortgagee on notice that further inquiries need to be made.

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  • External Dispute Resolution: Limits to Disputing Decisions

    external dispute resolution

    Recent case law highlights the limited options open to Financial Service Providers (FSPs) when faced with adverse decisions made by external dispute resolution tribunals.

    What should Financial Service Providers know about external dispute resolution schemes?

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  • Guarantee Provider Must Obtain Independent Legal Advice


    How important is independent legal advice when a guarantee is provided?

    Importance of lenders requiring borrowers and guarantors to obtain independent legal advice once again confirmed by the courts in National Australia Bank Limited v Wehbeh & Anor [2014] VSC 431.

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  • Registering Security Interests on the PPSR: Precision is Key

    security interests

    Precision is key: Important reminder to get it right when registering security interests on the PPSR.

    The recent Supreme Court of New South Wales decision of In the matter of OneSteel Manufacturing Pty Ltd (administrators appointed)[2017] NSWSC 21 reaffirms the importance of ensuring the accuracy of grantor details when registering financial statements on the Personal Property Securities Register (PPSR).

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  • Unconscionable Conduct: Can a Lender Protect Itself?

    protection from unconscionable conduct

    Can a lender do anything to protect itself from allegations of unconscionable conduct?

    Too often commercial lenders have to contend with allegations made by defaulting borrowers that they are guilty of unconscionable conduct. An easy phrase to include in a letter or a pleading; but what does it really mean? And is there anything a lender can do to protect itself from these allegations?

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