• 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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  • 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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  • Equitable Mortgage: Certificate of Title as Security Without Signing Agreement?

    service the loan

    Equitable mortgage: Can a lender rely on the certificate of title as security for a loan even though a borrower fails to sign any loan agreement?

    Hatala v Graglee Pastoral Company Pty Ltd [2017] NSWSC 155 provides insight into this.

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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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  • 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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  • Courts Won’t Assist Borrowers with Imprudent Transactions

    borrower

    The courts will not intervene to assist borrowers who become the victim of their own imprudent transactions, even where they have not been advised to seek independent legal and financial advice.

    In the matter of Donnelly v Australia and New Zealand Banking Group Ltd [2014] NSWCA 145 the court held that a borrower who voluntarily engages in risky business is not entitled to call upon equitable principles to be redeemed from the consequences inherent in taking those risks.

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  • Charging Clauses Not Void for Uncertainty

    mortgage

    Charging clauses in loan agreements and guarantees entitling a lender to call for a mortgage on terms and conditions yet to be determined are not void for uncertainty.

    In GE Commercial Corporation (Australia) Pty Ltd v Future Network (Albury) Pty Ltd [2013] NSWSC 1228 the Supreme Court of New South Wales rejected a guarantor’s attempt to have a guarantee provision declared void because of uncertainty

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  • Lender Fails to Insist on Independent Legal Advice

    independent legal advice

    Another lender fails to insist on its borrower obtaining independent legal advice.

    In Paccar Financial Pty Ltd v Menzies[2013] NSWSC 772 the critical issue before the court was whether certain loan documents had been signed and/or sufficiently explained to the borrower by the lender. None of which would have been required had the lender insisted on independent legal advice.

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Solutions. Not just advice