• All Monies Mortgages Still in Use Despite Exposing Lenders

    all monies mortgages

    All monies mortgages still in use despite repeated warnings about exposure to the lender.

    In Hunt & Hunt Lawyers (a firm) v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10 the High Court was required to consider whether the liability for damage suffered by a lender was solely attributable to the negligent conduct of the lender’s solicitor or whether a proportion of this liability could be attributed to the fraudulent conduct of other parties.

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  • Guarantees: Must Guarantor Receive Benefit?


    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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  • Summary Judgment Against Borrowers for Residual Debt

    residual debt

    Lender obtains summary judgment against borrowers for residual debt remaining after security property sold as mortgagee in possession.

    If exercised with caution, applications for summary judgement can be a cost effective way for lenders to resolve proceedings against borrowers. This without the cost of having to run the matter to trial.

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  • Obligations Imposed on Mortgagees Exercising Power of Sale.

    power of sale

    Queensland Supreme Court case involving former CEO of ABC Learning highlights the obligations imposed on mortgagees exercising power of sale.

    In the recent matter of Westpac Banking Corporation v Helicopters Brisbane Pty Ltd & Ors [2012] QSC 263 the Supreme Court of Queensland was asked by Eddy Groves, former CEO of ABC Learning, to dismiss an application for summary judgment. The court was required to consider the operation of s85 Property Law Act 1974 dealing with the obligations imposed on a mortgagee exercising power of sale over secured property.

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  • High Court Clarifies the Operation of the Penalties Doctrine

    penalties doctrine

    High Court clarifies the operation of the penalties doctrine in Australia.

    In Andrews v Australia and New Zealand Banking Group Limited [2012] HCA 30 the High Court of Australia held that a fee could be characterised as a penalty even though it was payable without there being any breach of agreement.

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  • Farm Debt Mediation Act: Mortgage Lenders Must Adhere

    farm debt mediation act

    Farm Debt Mediation Act.

    In Waller v Hargraves Secured Investments the High Court warned mortgage lenders of the need to adhere to the Farm Debt Mediation Act prior to taking enforcement action under a defaulting mortgage or loan agreement

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