Charging Clauses

Boral Recycling v Wake [2009] NSWSC 712

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 …

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Perpetual Nominees v Springfield Retail [2009] NSWSC 188

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 …

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Kowalczuk v Accom Finance [2008] NSWCA 343

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 …

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Across Australia Finance v Bassenger [2008] NSWSC 799

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 …

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GE Commercial Corp (Aust) v Murdica [2007] NSWSC 1228

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 …

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Star Financial Group v Quintano [2007] NSWSC 1113

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 …

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Kowalczuk v Accom Finance [2007] NSWCA 225

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 …

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