• Court Reduces Amount Guaranteed by Volunteer Wife

    Supreme Court of Queensland reduces amount guaranteed by a volunteer wife even though she obtained independent legal advice.

    In Dowdle v Pay Now For Business Pty Ltd & Anor [2012] QSC 272 the Supreme Court of Queensland considered the issue of misleading and deceptive conduct where a wife sought to have a guarantee and mortgage set aside even though she had received legal advice prior to executing a mortgage and guarantee to secure monies advanced to her husband.

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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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  • Priority Dispute: Mortgagee Lodging a Proof of Debt

    priority dispute

    Priority Dispute – whether a mortgagee surrenders its rights when lodging a proof of debt in respect of its entire claim.

    In Combis & Ors v The Trust Company Ltd [2011] QSC 388 the court was asked by the liquidator of a borrower to find that a mortgagee who had discharged its mortgage to allow the security property to be sold by a receiver became disentitled to any share of the surplus sale proceeds because the mortgagee lodged a proof of debt for all monies owed to it.

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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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  • Mortgage Fraud: Dangers Inherent in “All Monies” Clause

    mortgage fraud

    Mortgage Fraud. Lenders again warned of the dangers inherent in seeking to rely on an “all monies” clause contained in a mortgage.

    In the matter of Perpetual Trustees Victoria v English & Anor [2010] NSWCA 32, the Supreme Court of New South Wales was once again required to consider the enforceability of a registered mortgage that had been fraudulently executed by a co-owner.

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