In this case an elderly non-English speaking couple took out high interest loans so their daughter could pay her violent and abusive boyfriend and his associates $385,000. The judge was deeply moved by this commenting: The intimidation involved incidents of intensely ugly forms of humiliation. Most forms of objective language are ill equipped to convey …
The lender alleged the borrower defaulted under the mortgage and sought possession. The borrower filed a defence raising an estoppel argument which alleged that the loan was part of development finance arrangement (consisting of representations made by the bank) whereby the bank was to finance the construction of residential units and, in the meantime, allow …
In this matter possession proceedings were defended on the basis on the s57(2)(b) notice had not been served. However the mortgage manager, Royal Guardian, kept computerised telephone records that proved the borrower had called and acknowledged receiving the notice. Although a s57(2)(b) notice is not normally necessary to obtain possession it’s value as an acceleration …
In this case the CBA refinanced a loan and by oversight left the old loan account open. The borrowers drew down on that account and used the money to buy a property in Perth. The bank sought possession on the basis of a default under the mortgage and later amended to plead mistake. The borrower …
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 the borrower sought to restrain the lender from completing the sale of the security on the grounds that: The purported power of sale was non-existent due to defects in the s57(2)(b) notice The sale of the land was so reckless as to justify the court in preventing the completion of the sale. …
A recent decision of the NSW Supreme Court is a reminder of the obscure rule that no notice pursuant to s57(2)(b) is required when the default relied upon is non-monetary.
In this matter the borrower sough to restrain the lender from exercising power of sale. The evidence showed the borrower had received a winding up notice and had not sought to set it aside. That was an act of default under the mortgage. Moreover the court determined it was a non-monetary default for the purposes …
Elite Apartments v Arab Bank Australia [2007] NSWSC 521 Read More »
These proceedings before Justice Price involved a protracted dispute under the Farm Debts Mediation Act. The debt in question had been incurred refinancing a earlier debt to the Commonwealth Bank which also involved a protracted dispute under the Farm Debt Mediation Act. The borrowers alleged the lender breached Heads of Agreement reached pursuant to the …
Hargraves Secured Investments v Ryan [2007] NSWSC 404 Read More »
In this case the borrower sought an urgent injunction to prevent a sale due to take place that very afternoon. A stay was granted for three days upon the grounds that the Judge did not have time to absorb the material before him and because the borrower denied receiving the s57(2)(b) notice. His Honour noted: …
