• Bank Wins Despite Claims of Fraud & Unconscionable Conduct

    wins recovery of possession

    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 [2017] 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.

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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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  • Guarantees Tagged Unconscionable: What Can Lenders Do?

    unconscionable

    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.

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  • Guarantee Provider Must Obtain Independent Legal Advice

    guarantee

    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 [2014] VSC 431.

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  • Unconscionable Conduct: Can a Lender Protect Itself?

    protection from unconscionable conduct

    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?

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  • Courts Won’t Assist Borrowers with Imprudent Transactions

    borrower

    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 [2014] 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.

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  • Court Reduces Amount Guaranteed by Volunteer Wife

    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 [2012] 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.

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