Charging Clauses

Danthanarayana v GR8 Constructions [2012] FCA 231

An owner charged his property with payments owed to his builder under a building contract. The contract was terminated owing to alleged defective work and the owner sued the builder for damages for the cost of remedying the defective work. The builder cross-claimed for what he was owed and lodged a caveat against the property. …

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Burrell Solicitors v Reavill Farm [2011] NSWSC 1615

A solicitor agreed to act for a client on the provision of security (second mortgages) for his fees totalling over $600,000. In earlier proceedings, the court ordered that proceeds of the sale of the client’s property to be paid into court. The solicitor lodged a caveat claiming an interest as equitable mortgagee, but the caveat …

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Fitzgerald v Watson [2011] NSWSC 736

A lender sought to enforce a judgment debt against other property owned by the borrower on the basis of a clause in the second mortgage which provided that the mortgagee shall be entitled by way of further security to lodge a caveat over any other real property of the borrower until the principal sum and …

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ACN 075 911 410 v Almaty [2011] NSWSC 333

The owner of land granted a charge over it to secure brokerage. The broker sought an extension of its caveat which was opposed by the owner’s co-developer of the land.  The law is that the court must determine whether the caveator’s claim “has or may have substance” under section 74K of the Real Property Act …

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Public Trustee of Queensland v Fortress Credit Corporation (Aus) 11 [2010] HCA 29

This High Court case concerned the validity of a registered charge. Initially two loans were guaranteed by Octaviar, however, only one of the loans was secured by way of a fixed and floating charge. The secured loan was repaid, but the lender did not release the charge, claiming that it now secured the previously unsecured …

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Manttan v Equititrust [2010] NSWSC 931

In this case, the lender placed a caveat over several properties owned by the guarantor. The guarantor sought orders to have the caveat removed to enable sales of the property to go ahead. The evidence showed that the sales proposed were undervalue and were made to acquaintances of the borrower.  The lender claimed a caveatable …

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Manttan v Equititrust [2010] NSWSC 534

This case concerned the interpretation of interlocutory orders made by Justice Gzell on 23 April 2010, in these terms: 1 Pursuant to s 74MA of the Real Property Act, caveat number AE 618082X, be withdrawn from the title of folio number 50/SP70527 and 65/SP70527 known as unit 50, 95 Annandale Street, Annandale and unit 65, …

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Fast Funds v Coppola [2010] NSWSC 470

In this case an elderly non-English speaking couple took out high interest loans so their daughter could pay her violent and abusive boyfriend and his associates $385,000. The judge was deeply moved by this commenting: The intimidation involved incidents of intensely ugly forms of humiliation. Most forms of objective language are ill equipped to convey …

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Peters v Lithgow Forge [2010] NSWSC 283

A solicitor and client fell out over unpaid fees and, after assessment, the solicitor entered judgment against his client in the sum of $180,000. The client was associated with a company called Lithgow Forge and after some negotiation between the solicitor and the client a caveat was placed on the title, a property owned by …

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Chateau Constructions v Zepinic [2010] NSWSC 265

Chateau a builder, is in dispute with the Zepinics, the owners of residential property. The building contract contains the equitable charge to secure the obligations Zepinic owed to Chateau. The charging clause contains a protective mechanism whereby the charge only arises in respect of moneys payable under the building contract “to the extent a court …

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