• 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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  • 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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  • Mortgagor Wins Right to File Cross-Claim Against Mortgagee

    to win cross-claim

    In a recent judgment of the Supreme Court of NSW a mortgagor obtains the right to file a cross-claim, but with restrictions. To pursue further claims an additional security amount is payable to the mortgagee.

    Australian Securities Ltd v Borina Pty Ltd [2017] NSWSC 1073 considers whether a mortgagor’s claims are futile and doomed to failure.

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  • Service the Loan: How Much is Enough When Assessing Borrower’s Ability?

    service the loan

    When assessing a borrower’s ability to service the loan, how much is enough?

    Mortgagees are generally required to take steps to ensure a borrower is able to service the loan. Whether by investigating an exit strategy or seeking assurances through a declaration. However, the steps required need to be determined on a case-by-case basis as potential red flags can put a mortgagee on notice that further inquiries need to be made.

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  • Rule Against Tacking vs Expenditure Exercising Power of Sale

    Rule Against Tacking vs Expenditure Incurred in Exercising Power of Sale.

    In the matter of Matzner v Clyde Securities Ltd [1975] 2 NSWLR 293 the Supreme Court considered the issue of competing priorities between three successive mortgagees holding registered mortgages over a single property.

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  • Verification of Identity: Reasonable Steps in the VOI Standard

    verification of identity

    Verification of Identity: when do mortgagees need to make further enquiries?

    Verification of Identity (VOI) is now an entrenched practice in property transactions across all Australian jurisdictions. The obligation imposed on mortgagees is to take “reasonable steps” to identify the person signing the land registry document and to establish their right to deal with the property. This article will aim to remove some of the confusion about the VOI process as well as raise some considerations for mortgagees as to when they may be required to make further enquiries as to a mortgagor’s identity.

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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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  • Transfer of Mortgage: 2nd Mortgagee vs Borrower?

    transfer of mortgage

    Can a borrower rely on s.94 Conveyancing Act 1919 to compel a transfer of a prior mortgage to itself when a subsequent mortgagee has also sought to compel a transfer of that prior mortgage?

    In Geitonia Pty Ltd t/as Trustee for the Annandale Unit Trust v Westpac Banking Corporation [2015] NSWSC 419 the court was required to decide whether the 1st mortgagee was required to transfer its mortgage to the borrower or to the 2nd mortgagee.

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  • Judicial Sale of a Mortgaged Property

    judicial sale

    The Court will not ordinarily make an order for judicial sale of a mortgaged property against the wishes of the mortgagee unless the mortgagee’s conduct would otherwise prejudice the mortgagor.

    In the matter of Koovousis v Tony, trustee in bankruptcy of the Estate of Vrkic, Elliott May Lawyers convinced the court that the rights of its mortgagee client should prevail over the rights asserted by a purchaser seeking specific performance of a contract of sale over the mortgaged property.

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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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