HG & R Securities v Sayer [2009] NSWSC 427

Bransgroves acted in these proceedings for the lender which sold the property pursuant to a power of sale under a registered mortgage. The purchaser did not complete the sale within the time prescribed by the contract. The purchaser then sought to have the contract transferred into the name of a newly incorporated company. The lender agreed but required that the original purchaser to guarantee the completion of the sale. The purchaser refused and a series of notices to complete the issue and expired. The lender bought the proceedings seeking the deposit (which had been paid by the agent of the Court) and damages, being the difference between the agreed sale price and the price the property was ultimately sold for.

The purchaser defended the claim on the grounds: 1. the lender did not have power of sale (due to a defect in the s57(2)(b) notices); 2. that there was a binding agreement to transfer the contract to the newly incorporated company (without the guarantee); 3. that the notices to complete were invalid. On each of the three grounds the Court found for the lender on the facts.

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