• 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

    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

    genuine dispute

    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

    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

    loan agreement

    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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  • Enforcement Warrants & Property in Queensland

    What does a mortgagee of property in Queensland need to do to ensure persons in occupation of the property other than the mortgagor comply with orders for possession?

    In Bank of Queensland Limited v Bottomley [2015] QSC 329 the Supreme Court of Queensland considered the requirements surrounding enforcement warrants where a mortgaged property is occupied by tenants.

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  • Equitable Interest in Land

    equitable interest

    Does an application under s 99(2) Property Law Act 1974 create an equitable interest in the land?

    In the matter of Asset Core Pty Ltd & Anor v Jarrett 1 Enterprises Pty Ltd & Anor [2015] QSC 270 the court refused to make an order for the sale of a mortgaged property despite an application under section 99(2) of the Property Law Act 1974 (Qld)

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  • Short-Term Loans Clamp Down: Rejected.

    short-term loans

    Federal Court of Australia Rejects ASIC’s Effort to Clamp Down On Access to Short-Term Loans.

    In the matter of Australian Securities and Investments Commission v Teleloans Pty Ltd [2015] FCA 648, the Federal Court of Australia has dismissed a bid by ASIC to shut down the short-term lending business of a Gold Coast-based lender represented by Elliott May Lawyers.

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  • Transfer of Mortgage: 2nd Mortgagee vs Borrower?

    transfer of mortgage

    Can a borrower rely on s.94 Conveyancing Act 1919 to compel a transfer of a prior mortgage to itself when a subsequent mortgagee has also sought to compel a transfer of that prior mortgage?

    In Geitonia Pty Ltd t/as Trustee for the Annandale Unit Trust v Westpac Banking Corporation [2015] NSWSC 419 the court was required to decide whether the 1st mortgagee was required to transfer its mortgage to the borrower or to the 2nd mortgagee.

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