All Monies Clauses

Australian Regional Credit v Mula [2009] NSWSC 325

This case involved a forged mortgage. The owner of the mortgaged property discovered that his defacto son-in-law had mortgaged his house to secure several hire-purchase agreements. The hire-purchase agreements were for trucks and trailers for the defacto-son-in-law’s prime mover business. Claim by the lender for possession of the land The million dollar question was whether …

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Perpetual Trustees Victoria v Van den Heuvel [2009] NSWSC 57

In this case the husband left his wife the following note: “I’m very sorry what I have done but I have had a very bad gambling problem and I have borrowed money on the house and I can’t repay it. Now the (sic) are taking the house…” The lender had unfortunately used an “all monies” …

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HSBC Bank Australia v Chang [2009] NSWSC 69

In this case the mortgage secures a line of credit of $800,000. The loan has been fully drawn. The borrower alleges and the lender concedes that $578,000 was advanced pursuant to forged cheques. The mortgagor has now paid what was owing from unforged cheques but the lender seeks to enforce the mortgage to recover the …

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Perpetual Trustees Victoria v Cipri [2008] NSWSC 1128

In this case the wife forged the husband’s signature. The lender was using an all monies mortgage however the mortgage was drafted so as to secure all monies owing by either of the mortgagors. Thus because the wife owed the money (she did sign the loan agreement) the whole of the land was charged with …

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Across Australia Finance v Kalls [2008] NSWSC 783

In this case there was a priorities dispute, the situation before the loans went into default was as follows: Rose Bay 1st Mortgage – All monies to NAB 2nd Mortgage – Hill 3rd Mortgage – Across Australia Finance   Pyrmont 1st Mortgage – All monies to NAB 2nd Mortgage – Across Australia Finance  Rose Bay was …

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Perpetual Trustees Australia v Richards [2008] NSWSC 658

This case involved a forged mortgage using an all monies clause. The lender, Perpetual Trustees Australia, acknowledged its mortgage was a nullity due to the use of the all monies mortgage. However it sought to recover, via a restitutionary claim, from the previous mortgagee the amount paid to them on the basis that their mortgage …

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Provident Capital v Printy [2008] NSWCA 131

This involved a forged mortgage using an all monies clause. Bransgroves Lawyers continually warns lenders not to use all monies mortgages. Despite the raft of recent cases: Small v Tomasetti [2001] NSWSC 1112 Perpetual Trustees Victoria Ltd v Tsai [2004] NSWSC 745 Permanent Custodians v Yazgi [2007] NSWSC 279 Printy v Provident Capital Limited [2007] …

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Vella v Permanent Mortgages [2008] NSWSC 505

This case involved forged mortgages over properties owned by Alex Vella whom Justice Young euphemistically described as “national president of a group of motor bike enthusiasts known as the Rebels”. The mortgages were forged by a Tony Caradonna and fraudulently witnessed by his cousin – then registered solicitor Lorenzo Flammia. Despite the fraud the two …

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Perpetual Trustees Victoria v Van den Heuvel [2008] NSWSC 350

In this matter the wife’s signature was forged by the husband. The lender, represented by Gadens Lawyers, brought an application for summary judgement on the grounds its title was indefeasible regardless of the forgery. Associate Justice Malpass refused the application noting that the plaintiff’s prosecution of the matter had been “leisurely” and in any event …

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Perpetual Trustees Victoria v Ford [2008] NSWSC 29

In 2004 Interstar took a mortgage from a borrower who was so mentally impaired that the defence of non est factum (“not my deed”) was successfully made out. This is the same defence raised by victims of forgery because: ..mental incapacity preventing any understanding at all of the transaction will also mean that there was …

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