Mortgage Case Notes

McCarthy v NAB [2015] NSWCA 370

The borrower repeatedly attempted to have the bank’s default judgment for possession set aside but was turned away as having no arguable defence. The borrower appealed on the basis that he was denied procedural fairness. The Court of Appeal agreed the borrower had no defence because there was nothing to suggest that the borrower’s income …

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Frog Swamp v Statewide Secured Investments [2015] NSWCA 376

The lender obtained defaults judgment and the borrower sought to set them aside over 3 years later. The borrower argued at first instance and on appeal that: The lender was not the creditor because the benefit of the loans had been assigned to another entity and so the mortgages which remained registered in the name …

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Nichols Constructions v Elphick [2015] NSWSC 1732

The lender obtained default judgment which was set aside on the basis that the court found the borrower had an arguable case that her obligation to repay the loan only arise if and when the subdivided lots were sold and construction contracts entered into for the amounts in a spreadsheet attached to the loan agreement …

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WM Financial Trading Systems v Zamac Property Holdings [2015] VSC 639

A farm and business was sold on vendor finance terms and the purchaser borrower gave a second mortgage and director’s guarantee to secure the finance. The court found that the director gave a director’s and personal guarantee noting: There is no particular reason why [the director] could not be understood as acting in both capacities, …

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CBA v Clapham; Byron Bay Holdings v CBA [2015] NSWSC 1714

The bank financed the purchase of Macadamia farms secured over the farms, a beach property and personal guarantees by the husband and wife. The borrower was the trustee of a family trust. The borrower defaulted and receivers were appointed to the trust properties and sold. The beneficiaries of the trust were the husband and wife. …

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Terranova v Secure Funding [2015] WASCA 229

We have previously reported on this case. The trial judge found that the commercial lender’s security ranked ahead of the borrower’s parent’s security on the proper construction of the deed of priority. The parents appealed. The Court of Appeal agreed with the trial judge that the commercial lender was entitled to priority for the amount secured by …

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Woodman v Kudosa Pty Ltd [2015] VSC 675

A husband, pilot and property developer was made bankrupt and used his wife as a “dummy front’ for his business. His wife became the director and shareholder of his company, signed various documents without reading them and purchased two investment properties, at her husband’s insistence. The wife owned a previous home, in her own name, …

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NWC Finance v Borsellino [2015] NSWSC 1702

A lender sued a borrower, who cross-claimed against his solicitor and broker. The lender asked that the cross-claim against the broker be severed because it was peripheral. The borrower did not resist this and so the court ordered the claim against the broker to be heard separately and after the main claim by the lender …

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George 218 v BOQ [2015] WASC 434

A borrower was lent money on the security of a mortgage and “all moneys” guarantees. The loan was refinanced but the guarantees continued for any future lending. The lender’s rights under the guarantees were transferred to BOQ and before BOQ lent money to the borrower to refinance its existing facilities, the borrower and BOQ entered …

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