In this case a little old lady agreed to pay for a granny flat to be constructed above the garage of her daughter and her daughter’s husband’s property. There was a verbal contract to the following effect: that the little old lady would be entitled to reside in the granny flat free of charge other …
This involved a caveat lodged pursuant to charging clause. It had not been stamped by the Office of State Revenue and so the court held: I hold that the provisions of clause 9, insofar as they constitute a mortgage, are unenforceable. Being unenforceable it follows that the caveat is bad. Click here to read the …
In this case the lender loaned to a company owned by a self-described “property developer” on the strength of two leases, which the lender alleged were fraudulent. The property developer guaranteed the loans. At the time of the hearing the debt on the property was over $4 million and the value of the property was …
Perpetual Nominees v Springfield Retail [2009] NSWSC 188 Read More »
In this case Young CJ in Eq delved back through the mists of time to rely on the writing of Edward Coke, appointed Chief Justice of the King’s Bench, 1616, in order to determine that a charging clause used to justify a caveat over the interest of one co-owner could give a valid mortgage of …
In this appeal court case the borrower claimed the loan was unjust under the Contracts Review Act. Quite surprisingly the appeal court held the higher rate of interest was impermissible on the grounds that it was a penalty. For hundreds of years lenders have been able to charge a higher rate, without it being struck …
In this matter the Lender sought orders for judicial sale and the third party mortgagor sought to resist on the basis of non-service of s57(2)(b) notice. The court held where judicial sale is sought a s57(2)(b) notice is not needed. The mortgagor who had difficulty with English also raised a Contracts review Act / unconscionability …
Across Australia Finance v Bassenger [2008] NSWSC 799 Read More »
In this case four guarantors signed a deed in which they promised the lender that in the event of default by the borrower they would execute a mortgage over any land they owned now or in the future. The Lender (GE) successfully sought mortgages over properties in Haberfield and Hunters Hill. Click to read the …
GE Commercial Corp (Aust) v Murdica [2007] NSWSC 1228 Read More »
In this case the broker induced the borrower to sign a document entitled “Exclusive Mandate to Act”. In it the broker undertook to procure a loan of $1,550,000, with an interest rate 60% of per annum, a term of six months, brokerage of $60,000 and the application fee of a further $60,000 (plus GST). The …
In this case the broker Star Financial Group placed a caveat on the property to secure brokerage pursuant to a charging clause in the mandate. The broker failed because the mandate promised to obtain a loan for $300,000 but the broker only obtained a letter of offer for $276,000. Click here to read the full …
Star Financial Group v Quintano [2007] NSWSC 1113 Read More »
In this case Bransgroves acted for the lender. The borrower filed a Contracts Review Act defence and lost. The lender then commenced marketing the security. The borrower filed an appeal and sought an injunction stopping the auction until after the appeal had been determined. Justice Campbell of the Appeal Court granted the injunction noting the …
