CBA V Nabi [2010] NSWSC 1425

The borrower needed the loan to buy her mothers home. The loan and mortgage along with the transfer were all executed and the money advanced and paid to the borrower’s mother and the bank received the certificate of title.

Unfortunately, before the Bank registered the transfer, together with the certificate of title and the mortgage was lost. The borrower defaulted on the loan and the bank sought to sell the property.

The judge found that the mortgage signed by the borrower contained a perfection clause and a power of attorney. This coupled with the characterisation of the mother as a bare trustee for the daughter meant that the bank was entitled to a vesting order making it trustee for the sale of the property. The orders made were in conformity with the usually judicial sale orders for Equitable mortgages.

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