La Trobe Capital & Mortgage Corporation [No 2] [2009] NSWSC 1372

This case involved a mortgage broker who was attempting to arrange a refinance. As part of his brokerage agreement he included a charging clause allowing him to place a caveat on the property and recover the fees from the property itself (a mortgage for securing his brokerage fees). The brokerage agreement provided that the fees would be payable even if the refinance did not proceed. The refinance did not proceed and the existing mortgagee, La Trobe, exercised its power of sale. There was a small surplus which La Trobe paid into court and the broker then sought to have paid to him. On the first attempt, brought on 8 October 2009, the broker was told to go away and gather more evidence to establish his claim. On this second attempt, brought 9 December 2009, the broker was told essentially the same thing.

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