Attempts by Borrowers to dodge Bank’s recovery of possession claim with an unlikely counterclaim backfires.
In Australian and New Zealand Bank Group Ltd v Beamond & Anor  QSC 208 the Supreme Court of Queensland rules in favour of Bank’s right to recovery of possession of mortgaged properties. The Court also dismisses all counterclaims submitted by Borrowers.
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  NSWSC 1073 considers whether a mortgagor’s claims are futile and doomed to failure.
Claims of unconscionable conduct are a constant threat for lenders. Lenders may feel confident that a guarantor secures the debt repayment, only to find the guarantees struck out as unconscionable.
Therefore, many lenders now structure their facilities to avoid guarantees by listing parties as co-borrowers. However, a new line of cases may have extended the principles of unconscionable conduct to parties other than guarantors.
How important is independent legal advice when a guarantee is provided?
Importance of lenders requiring borrowers and guarantors to obtain independent legal advice once again confirmed by the courts in National Australia Bank Limited v Wehbeh & Anor  VSC 431.
Can a lender do anything to protect itself from allegations of unconscionable conduct?
Too often commercial lenders have to contend with allegations made by defaulting borrowers that they are guilty of unconscionable conduct. An easy phrase to include in a letter or a pleading; but what does it really mean? And is there anything a lender can do to protect itself from these allegations?
The courts will not intervene to assist borrowers who become the victim of their own imprudent transactions, even where they have not been advised to seek independent legal and financial advice.
In the matter of Donnelly v Australia and New Zealand Banking Group Ltd  NSWCA 145 the court held that a borrower who voluntarily engages in risky business is not entitled to call upon equitable principles to be redeemed from the consequences inherent in taking those risks.
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  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.