In this case the borrower filed a Contracts Review Act claim against Perpetual (the lender) claiming that a clause allowing the lender to recover enforcement expenses was unjust. As a basis for the claim the borrower gave evidence that he was an Italian immigrant and did not understand English very well. The Judge found it …
Bassanese v Perpetual Trustees Victoria [2007] NSWSC 1264 Read More »
The mortgage was subject to a successful Contracts Review Act defence by the borrower determined on 9 November 2006. That decision was reported on the front page of the Financial Review. This was an appeal by the borrower of some aspects of that decision. Commenting on the trial judges decision the Justice Giles (speaking for …
The borrower successfully defeated possession proceedings in the Appeal Court on the grounds that they were brought without a notice pursuant to the s 7 Credit (Home Finance Contracts) Act 1984 first being served one month prior to the institution of the proceedings. This was the lender’s second attempt to eject the borrower brought by …
In an earlier case the court ordered rectification of two mortgages. To give effect the orders required, among other things, the defendant to deliver to the plaintiff the original deeds. The title documents had been lodged with a bank in Tamworth. However, when the bank was asked for the documents, the reply was that it …
Kyabram Property Investments v Murray [2006] NSWSC 54 Read More »
This was a case in which the parents of a couple, the O’Hehirs, made two separate payments to their children during the marriage. After the marriage disintegrated the parents, the Brasher’s, sought to recover the payments made as loans. In this rather unique family arrangement, Mr Brasher was the father of Mrs O’Hehir and Mrs …
The developer mortgaged land to the defendants as security for a loan to carry out the development. The developer applied to the Court ‘at the eleventh hour’ seeking to restrain the lenders from selling the land. The developer said the injunction was justified for three reasons: Non-service of a s 52(2)(b) notice Estoppel by conduct …
E & P Developers v D J Capital Solutions [2005] NSWSC 1110 Read More »
ANZ terminated a finance facility and mortgage, called up its debt, appointed administrators to Pioneer, and exercised its power of sale as mortgagee. The guarantor of the mortgage, Mr Carpenter (“Mr C”), disputed the power of ANZ to do any and all of the above acts. ANZ made an application to the Court for Mr …
The plaintiffs borrowed money from the second defendant, Liberty Funding (“LF”), secured over their land by mortgage. The plaintiffs claimed that the loan agreements and the mortgages were procured by fraud or unconscionable conduct or other wrongdoing and should be set aside. The thrust of the Plaintiffs’ complaint was directed to alleged misconduct on the …
Steele-Smith v Liberty Financial [2005] NSWSC 398 Read More »
The defendant applied for costs on an indemnity basis in respect of the plaintiff’s unsuccessful application for an extension of a caveat. The caveat was lodged against property that was not owned by the defendant. In response to a submission that the Court had the power to amend the description of the interest described in …
This court of appeal decision considered the enforceability an indemnity costs clause in a mortgage. Through its review of the case law the following principles can be gleaned: An order for the payment of costs of proceedings by one party to another party is always a discretionary order: s.76(1)(a) of the Supreme Court Act; Where …
Kyabram Property Investments v Murray [2005] NSWCA 87 Read More »
