• 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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  • Enforcement Warrants & Property in Queensland

    What does a mortgagee of property in Queensland need to do to ensure persons in occupation of the property other than the mortgagor comply with orders for possession?

    In Bank of Queensland Limited v Bottomley [2015] QSC 329 the Supreme Court of Queensland considered the requirements surrounding enforcement warrants where a mortgaged property is occupied by tenants.

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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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  • Careless Drafting Exposes Lender to Unsecured Loan

    careless drafting

    Careless drafting and a failure to properly structure loan facility and variation documents leave a lender with an unsecured loan and significant costs exposure.

    In the matter of Sibonna Nominees Pty Ltd v Evangelos Vouzas and Christina Vouzas [2013] VSCA 369, the Court of Appeal of Victoria affirmed the trial judge’s finding that a mortgage provided by the borrower’s parents secured no money and that the lender was not entitled to exercise any power of sale over 2 ‘mortgaged’ properties.

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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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  • 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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  • 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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