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Lender’s Claim to Surplus Funds Paid into Court Fails
In the recent case of Secure Loan Solutions Pty Ltd v Smith [2018], the Victorian Court of Appeal heard a lender’s application for leave to appeal a decision concerning surplus funds paid into court following a mortgagee sale.
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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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Don’t Let Mortgage Fraud Blindside You
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
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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Personal Property Securities Register: Perfecting Registration
The Personal Property Securities Register (PPSR) is a national online register. It protects parties purchasing personal property from either an individual or an entity. How can a lender perfect its registration so as to ensure protection?
OneSteel Manufacturing Pty Limited (administrators appointed) [2017] NSWSC 21 highlights the importance of correctly registering a security interest on the Personal Property Securities Register.
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To Imply or Not to Imply: Examining the 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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Guarantees Tagged Unconscionable: What Can Lenders Do?
Claims of unconscionable conduct are a constant threat for lenders. Lenders may feel confident that a guarantor secures the debt repayment, only to find the guarantees struck out as unconscionable.
Therefore, many lenders now structure their facilities to avoid guarantees by listing parties as co-borrowers. However, a new line of cases may have extended the principles of unconscionable conduct to parties other than guarantors.
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Late Payment Fee Escapes the Penalty Tag
In a recent NZ Court of Appeal decision a late payment fee of over $30 million on a $37 million loan dodged the penalty tag. The Court held the fee to be proportionate to the lender’s interests and so enforceable.
What are the effects of this key judgment? It certainly issues a warning to commercial borrowers. Escaping late payment fees may not be as simple or clear cut.
