• Removal of Caveat Application by Property Developer Succeeds

    removal of caveat property developer

    In Thompson DK Properties Pty Ltd as trustee for the Thompson DK Discretionary Trust No 7 v Brown, the Supreme Court of Queensland considered a removal of caveat application from a property developer. The builder had lodged the Caveat over the development property.

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  • Improper Conduct Results in Court Awarding Indemnity Costs

    indemnity costs

    In a recent case the Supreme Court of Victoria considered orders for indemnity costs following a debacle concerning a property settlement.

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  • Competing Equities Dispute: What Determines Priority?

    competing equities

    The recent WA Supreme Court case of Bunnings v Hanson Construction [2017] considers a competing equities dispute between two suppliers.

    The decision serves as an important reminder for businesses who supply goods or services on credit to be aware of the factors courts take into account in determining priorities between equitable interests should the debtor’s assets be insufficient to cover the debts of all creditors.

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  • 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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  • 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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  • Guarantees: Must Guarantor Receive Benefit?

    guarantees

    Guarantees – is there a requirement for a lender to ensure that a guarantor receives some form of personal benefit from the transaction? And, does a mortgagee’s failure to sell a security property at full value give rise to a caveatable interest?

    The Supreme Court of New South Wales confirms that there is nothing improper in lending to an elderly borrower even in circumstances where he obtained no personal benefit from the transaction.  We also revisit a decision of the Supreme Court of South Australia which considered the ability of a mortgagor to lodge a caveat to prevent the mortgagee exercising its power of sale.

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  • Construction of Contractual Terms & Priority Between Lenders

    contractual terms

    Construction of contractual terms and the concept of priority between secured lenders.

    In AET SPV Management Pty Limited v Wildfire Amusements Pty Ltd the court was required to construe an agreement to determine whether a mortgagee had agreed to postpone the priority of its first registered mortgage in favour of another lender.

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  • Competing Interests in Security Property

    security property

    Competing interests in security property – will the court allow the holder of a registered caveat to interfere with the rights of a prior registered mortgagee to sell the security property as mortgagee in possession?

    In Bateson v Jones [2013] WASC 8, Justice Pritchard of the Supreme Court of Western Australia was required to determine an application for the extension of a caveat filed by a lender in response to a lapsing notice issued by a prior registered mortgagee. The reasons for the Judge’s dismissal of the application are discussed below.

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  • Statutory Demand & Offsetting Claims

    The Supreme Court of Victoria considers the elements required to set aside a statutory demand where the company asserts an off-setting claim.

    In the matter of Innovision Developments Pty Ltd v Martorella & Anor [2012] VSC 390, the Supreme Court of Victoria set aside a creditor’s statutory demand for payment of a debt even though the debt was a money judgment entered by that court in favour of the creditor.

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  • Caveat Dispute: Mortgagee Unable to Transfer Land

    caveat dispute

    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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