Charging Clauses

Mango Media v Garner Transport & Haulage [2007] NSWSC 712

The lender refused to proceed with a loan because the valuation came in too low. The lender placed a caveat on the property for fees and the borrower sought to have it removed. The Court held in favour of the lender deciding that the following clauses were effective in granting a caveatable interest: “To secure …

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Re Regis Towers Real Estate [2006] NSWSC 852

In this case there was a deed which stated: You will provide a mortgage to Meriton to secure this contract.The mortgage will be a first registered mortgage and will be over property known as:” The deed then on the five following lines uses the words address, suburb, lot, strata plan and folio identifier, but none …

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FTFS Holdings v Business Acquisitions Australia [2006] NSWSC 846

In this case a broker’s mandate (commission agreement) contained a charging clause purporting to charge the land for payment of the unpaid brokerage. The broker lodged a caveat and the borrower attempted to remove the caveat. The caveat did not specify the amount that was owing under the charge however Palmer J held: It seems …

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Coast Reo v O’Brien [2006] NSWSC 613

This involved a supply agreement with a charging clause in it. Pursuant to the charging clause a caveat was lodged over two properties partly owned by the debtor. A lapsing notice was served and these proceedings were brought to extend the operation of the caveat. Various technical arguments were raised as to why the charging …

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Gippsreal v Boyle [2006] NSWSC 601

In this case the borrower had paid an application fee and signed the lenders letter of offer. The lender then incurred costs instructing agents (valuers, solicitors and surveyors) and inspecting the property. The lender withdrew the offer when it came to their attention the sale was by the mortgagee in possession. The lender put a …

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Circuit Finance v Wills [2006] NSWSC 35

This case involved a priority dispute over surplus proceeds after the first mortgagee had been paid out and the balance deposited with the court. Both Circuit Finance and the Wills obtained a charge over the land in question by virtue of charging clauses. These are clauses which “charge as security for the debt all land …

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Albarran v Theodorou [2006] NSWSC 9

This case was brought by a caveator to extend the operation of a caveat threatened by a lapsing notice. The caveatable interest arose pursuant to a charging clause in a deed of guarantee and indemnity. On 11 January 2006 the plaintiffs’ solicitors wrote a letter before action requesting that the lapsing notice be removed. It …

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