C2C Developments v CBA [2012] NSWSC 1162

The lender seized four properties before exercising their right to sale. Following the sale of all four properties, the borrower remained $500,000 indebted to the lender.

The borrower commenced proceedings seeking accounts.

In dismissing the proceedings, the court found that no surplus meant that there was no obligation to account. The lender’s duty to account “is dependent upon there being a surplus, in which case, they owe an obligation to account to all subsequent interest-holders” (Bofinger v Kingsway Group [2009] HCA 44) as they become a trustee to the surplus.

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