• 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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  • 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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  • Analysis of a Mortgagor’s Fundamental Right to Redeem

    right to redeem

    A mortgagor retains the right to redeem the mortgage in equity even if it is in default of its obligations under the mortgage and loses the contractual right to redeem.

    In the decision of Sun North Investments Pty Ltd as trustee v Dale & Anor [2013] QSC 44 the Supreme Court of Queensland provides a useful analysis of a mortgagor’s fundamental right of redemption.

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  • Mortgagor Unlawfully Takes Possession of Security Property

    security property mortgagor

    What happens when a mortgagor unlawfully re-takes possession of a security property?

    In J P Morgan Trust Australia Limited v Anthony Robert Bridge [2013] NSWSC 668, the Court was required to consider the rights and standing of a mortgagor who re-enters possession of a property after execution of a writ by the sheriff.

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