Mortgage Case Notes

Dreger v Rural Valuations [2015] NSWSC 1338

A lender sued a valuer for negligence. The court held that the valuation was outside the range which could properly have been arrived at by a competent valuer. When the borrower went into default, the lender obtained possession and could only obtain a price significantly less than the valuation. The lender’s expert witness said that …

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Watson Superannuation Fund v Scott [2015] QCA 267

Clients lent superannuation money, unsecured, to their accountant which was never repaid. The client demanded repayment from the accountant and the accountant argued that the agreement did not contain a stand alone operative guarantee clause that made the accountant named as guarantor liable for the debts. Unknown to the clients, before they signed the agreement, …

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CBA v Maksacheff [2015] NSWSC 1860

The lender obtained possession and evicted the borrower. Between the taking of possession and changing the locks to ready the property for sale, the borrowers took up residence again. The court found that the owners had attempted to subvert the writ of possession and the lender’s access, and ordered a writ of restitution to restore …

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Provident Capital (in liquidation) v French [2015] NSWSC 1827

The borrower and lender agreed to settle proceedings and have consent judgment entered if the borrower did not obtain default judgment against his former business partner for breaching an alleged agreement between them by a certain date (which involved the partner paying off the borrower’s mortgage debt in return for a % interest in an …

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Ward v Smart So Hoe [2015] VSC 691

A lender sued for possession and judgment. The guarantor who mortgaged his property as collateral for the loan counterclaimed for redemption. The court found the lender’s default notice was invalid because it incorrectly identified the event of default, being the non-payment of interest because interest had been pre-paid. However the court found that the owners …

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Bay Bon Investments v Sultana [2015] NSWSC 1797

A wife allegedly forged her husband’s signature on a mortgage which was registered. The forgery was unknown to the lender. The husband and wife defaulted and the lender sued for possession. The issue was whether the lender was entitled to possession of the husband’s interest in the land. The court restated the principles relevant to …

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Cudgegong v Transport for NSW [2015] NSWLEC 185

This case was a priority dispute remitted by the Court of Appeal to the Court of Land and Environment between the purchaser and the previous owner of the land, a de-registered company. The land was subject to two mortgages and the lender exercised its power of sale. However before the sale contract completed, the Transport …

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Good to Go Loans v ASIC [2015] FCA 1350

Good to go operates a business of small amount lending and holds an Australian credit licence. When their key person left the business, the CEO applied to be the substitute responsible manager and ASIC refused to approve this. The business then put forward two others as responsible managers. One was rejected and further information was …

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