• Short Term Loan Transaction Fails: Is Borrower Liable?

    short term loan transaction

    Lender fails in attempt to have fees paid due to a short term loan transaction not proceeding. The Supreme Court of NSW dismissed the lender’s claim of fees and expenses.

    In Interim Finance v Bright Beginnings Learning Centre Glendenning [2018] the Court found the lender did not have a caveatable interest in the security property. Further, the Court ordered the removal of the caveat registered over the property.

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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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  • 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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  • 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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  • To Imply or Not to Imply: Examining the Duty of Good Faith

    duty of good faith

    Whether or not the elusive “duty to act in good faith” actually exists in commercial contracts is a matter of considerable debate.  The courts appear so uncertain in fact, that they explicitly accept the ambiguity and proceed “just in case” on the basis that such a duty does exist. 

    This occurred in Kosho Pty Ltd & Anor v Trilogy Funds Management Limited [2013] QSC 135. The Queensland Supreme Court acknowledged that there was little guidance around the existence and nature of a duty to act in good faith. And yet the Court proceeded on the assumption that such a duty existed regardless.

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  • 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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  • 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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