• Removal of Caveats: Application Dismissed

    In a recent ruling, the Supreme Court of Queensland dismissed an application for the removal of caveats over a number of properties.

    In DT & MF Holdings v Ascendia Accountants [2017], the Applicants needed to establish that there existed no serious question to be tried. All attempts to do this failed.

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  • Assignment of Mortgage & Loan Agreement in Dispute

    The issue of an Assignment of Mortgage came under dispute in a recent Supreme Court of Western Australia ruling. Was the transfer of loans to a third party valid?

    In La Trobe v MDVest [2017], the borrowers disputed three prior judgments in favour of the lender. They contended that the lender was not entitled to judgment in each action. The borrowers presented a number of reasons for resisting judgment, including the issue of Assignment.

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  • Mortgagee Possession Increasingly Hindered by Mortgagors

    mortgagee possession

    In ordinary mortgagee possession cases the problem of mortgagors re-entering the property and being a hindrance, is on the rise. What is the way forward?

    A recent Supreme Court of Victoria ruling considers how to restrain a mortgagor from another re-entry of property under possession of the mortgagee. Does the Court have power to issue a restraining order?

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  • Lender’s Mortgage Insurance: Who Does it Protect?

    What exactly is lender’s mortgage insurance (LMI) and whose interests does it protect?

    According to a report released by two of Australia’s largest mortgage insurance providers, about 70% of borrowers believe LMI protects them in the event of a default. This is not correct. LMI is an insurance designed to protect the lender.

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  • Lender Seeks to Enforce Equitable Charges and Wins

    Equitable charges came under the spotlight in a recent NSW Supreme Court ruling. In Morris Finance Ltd v Free [2017] NSWSC the Court analysed the wording of a lease agreement. Did it contain language necessary to create an equitable charge?

    The Lender looked to enforce the charge by seeking orders for judicial sale of property and ancillary orders for possession.

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  • Doctrine of Marshalling Comes Under the Spotlight

    marshalling

    An England and Wales High Court decision ruled in favour of the creditor when considering the use of the equitable doctrine of marshalling debt. However, on appeal to the Supreme Court, the decision was overturned.

    The doctrine of marshalling operates in the same way in Australia, therefore lenders should be aware of the recent rulings.

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  • Bank Wins Despite Claims of Fraud & Unconscionable Conduct

    wins recovery of possession

    Attempts by Borrowers to dodge Bank’s recovery of possession claim with an unlikely counterclaim backfires.

    In Australian and New Zealand Bank Group Ltd v Beamond & Anor [2017] QSC 208 the Supreme Court of Queensland rules in favour of Bank’s right to recovery of possession of mortgaged properties. The Court also dismisses all counterclaims submitted by Borrowers.

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  • Don’t Let Mortgage Fraud Blindside You

    mortgage fraud

    Mortgage fraud is of growing concern within the context of the Australian economy.  

    UBS, the investment bank, warns that up to a third of Australians are lying on their loan applications. Surveys conducted in 2016 and 2017 confirm this concerning trend. What can lenders do to protect their interests?

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  • Lender Gets an Enforcement Warrant Despite Delay

    enforcement warrant despite delay

    In a District Court of Queensland decision, a lender gets an enforcement warrant even though more than two years have passed since obtaining judgment for possession of the security property.

    In the recent ruling in Westpac Banking Corporation v Keppel & Anor [2017] QDC 223 the Court takes a cautionary approach. But the lender, in due course, gains the upper hand.

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  • Mortgagor Wins Right to File Cross-Claim Against Mortgagee

    to win cross-claim

    In a recent judgment of the Supreme Court of NSW a mortgagor obtains the right to file a cross-claim, but with restrictions. To pursue further claims an additional security amount is payable to the mortgagee.

    Australian Securities Ltd v Borina Pty Ltd [2017] NSWSC 1073 considers whether a mortgagor’s claims are futile and doomed to failure.

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