Default Notices

BankWest v Wong [2012] SASC 124

The bank sought possession of property, which secured the obligations of the guarantor of a company borrower’s debt. The guarantor raised the following defences: that the notice of demand was ineffective because it was dated a year earlier, as was the subsequent statutory notice which referred to the earlier notice by the date it should …

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Khalid v Perpetual [2012] WCA 153

This Court of Appeal decision concerned the validity of a s57(2)(b) notice. Misstatement of the principal amount The borrower argued that the notice was invalid because it misstated the amount of the principal. The lead case on this question is the High Court decision in Bunbury Foods Pty Ltd v National Bank of Australasia Ltd …

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Prime Capital Securities v Laperecon [2012] NSWSC 386

The lender advertised the security property for sale before the s57(2)(b) notice expired. Thus it advertised the property prior to having a power of sale. However the judge noted this was acceptable: A lender is entitled to take steps towards sale of a property before the time when a power of sale has accrued: Farrar …

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Perpetual Trustees Victoria v Monas [2011] NSWSC 57

The lender sought possession. The borrower resisted on the grounds the s80 notice did not comply with the Code. In particular, the notice failed to use the words “without further notice” in specifying that proceedings could be commenced without another notice being served.  The Judge noted: It is prudent to use the exact words of …

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Bendigo and Adelaide Bank v Tombs [2010] NSWSC 1427

The borrower sought to defend on the basis of a failure to serve a s57(2)(b) notice and the lender responded by seeking summary judgement. The borrower’s wife had died and the court found that lender had served a section 57(2)(b) notice on both the borrower and the Public Trustee pursuant to s.61 Probate and Administration …

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Mahaffy v Mahaffy [2010] NSWSC 1358

A litigant in the District Court suffered a costs order on indemnity basis payable forthwith. In order to avoid his defence in those proceedings being struck out for failure to pay the costs the litigant granted a mortgage to secure those costs. The mortgagee immediately took steps to sell the property and the litigant made …

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Suncorp-Metway v Nam Property Holdings [2010] NSWSC 1078

The lender, who was represented by a large firm, pleaded the service and non-compliance with a s57(2)(b) notice (as large firms feel compelled to do). The borrower sought to raise a defence based on the invalidity of the notice as it claimed the principal (accelerated) when there was no existing power of sale. The judge …

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Bank of Queensland v Dutta [2010] NSWSC 574

The borrowers raised three defence to the lender’s claim for possession: failure to serve a s80 Notice; unjustness pursuant to the Contract Review Act and Consumer Credit Code; that the mortgage memorandum did not secure the loan. Was the loan code – regulated? The Bank obtained 2 signed Business Purpose Declarations however, as the Bank …

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Thambiappah v CBA [2010] NSWSC 520

The plaintiff borrowed money from the bank which was secured by mortgages over two properties. She defaulted and the bank sold the properties as mortgagee in possession, pursuant to its power of sale.  The bank disposed of certain goods located at one of the properties at the rubbish tip. The plaintiff alleged that the goods …

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