• Lender’s Claim to Surplus Funds Paid into Court Fails

    surplus funds

    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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  • Mortgagee Possession Increasingly Hindered by Mortgagors

    mortgagee possession

    In ordinary mortgagee possession cases the problem of mortgagors re-entering the property and being a hindrance, is on the rise. What is the way forward?

    A recent Supreme Court of Victoria ruling considers how to restrain a mortgagor from another re-entry of property under possession of the mortgagee. Does the Court have power to issue a restraining order?

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  • Equitable Charge Prevails But Needless Costs Deducted

    In a recent judgment a plaintiff with an equitable charge gains the upper hand in a priority dispute. However, due to raising avoidable issues, the Court deducts the unnecessary legal fees.

    Morris Finance Pty Ltd v Commonwealth Bank of Australia & Ors [2017] VSC 260 (18 May 2017) highlights the need for a clear legal strategy.  Due to not having one the plaintiff had its costs reduced by 25%.

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  • Mortgagee Delays in Selling Security Property Impacts Rights

    Delays by the mortgagee in selling a security property may impact its rights against the borrower and guarantor.

    Is a lender precluded from enforcing its rights against a guarantor if there is a period of inactivity after it takes possession of a security property? The Supreme Court of News South Wales was recently required to consider this issue in the matter of Commonwealth Bank of Australia v Thompson [2013] NSWSC 149.

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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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  • 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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  • Finance Brokers are the Agent of the Borrower Not the Lender

    finance brokers

    Supreme Court confirms that finance brokers are the agent of the borrower not the lender.

    In Secure Funding Pty Ltd v Moon & Anor Justice Lyons of the Supreme Court of Queensland upheld the general principle that a finance broker is not the agent of the lender even if the lender pays a fee to the broker.

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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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Solutions. Not just advice