This case concerned a power of sale under an mortgage. The mortgage was unregistered when contracts were exchanged but registered prior to purchaser attempting to settle. Hodgson JA had this to say: Counsel provided a reference to Midland Montagu Australia Limited v. Cuthbertson (1989) 17 NSWLR 309, which decided that, where a mortgage relies on …
In this case the lender sought possession of the security for non-payment under the mortgage after having served s57(2)(b) notices. In her defense the borrower firstly alleged she was not party to the mortgage, secondly that the credit was predominantly provided for personal, domestic or household purposes and that therefore the Consumer Credit Code applied …
The plaintiff leased land from the Crown which was then transferred to the defendant and the Plaintiff took a mortgage back. The plaintiff served a s57(2)(b) notice to exercise its powers of sale prior to the mortgage being registered. It was held that it is not necessary for a mortgage to be registered at the …
Cliffshaw v Old Kiama Wharf Company [2007] NSWSC 276 Read More »
In this matter NAB sought judgment for possession. The borrower resisted on the grounds that the s57(2)(b) notice was incorrect. Deciding in the lender’s favour the court held that if there was an error it would make no difference as a s57(2)(b) notice was not required before a claim for possession is commenced. Bransgroves Lawyers …
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 …
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 »
The claim was a motion by the plaintiff seeking leave to rely upon a second further amended statement of claim (SFASC). The three defendants can be divided into two groups – the first defendant which is the Bank and the second and third defendants, the Receiver and his associate. The defendants opposed leave being given …
A lending facility was set up for a company owned and managed by the oldest brother of the family (“the borrowing company”). The purpose of the facility was to assist the company in the importation of air conditions for sale in Australia. Guarantees and mortgages (“the securities”) were obtained from the other members of the …
