Equitable Mortgages

Chateau Constructions v Zepinic [2010] NSWSC 265

Chateau a builder, is in dispute with the Zepinics, the owners of residential property. The building contract contains the equitable charge to secure the obligations Zepinic owed to Chateau. The charging clause contains a protective mechanism whereby the charge only arises in respect of moneys payable under the building contract “to the extent a court …

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Express Business Finance v Monaco [2010] NSWSC 206

In this case a financier loaned monies to a borrower secured on property that he jointly owned with another person. The borrower forged the signature of his co-owner and so when the loan went into default the financier sought orders an order pursuant to s 66G of the Conveyancing Act 1919. This section allows for …

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Romiz Constructions v Byrnes [2010] NSWSC 26

In this case the lender obtained default judgment in April 2009, which the borrower filed a notice of motion to set aside in May 2009. The matter came before the court a number of times and in November 2009 an agreement was reached whereby the terms of the mortgage would be varied so the interest …

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Perpetual; Application of Caveat Lenders [2009] NSWSC 776

The first mortgagee sold the property and paid the surplus proceeds into Court in accordance with the provisions of the Trustee Act 1925. Under the Act persons holding money that does not belong to them such as surplus sale proceeds can wash their hands of it by paying it into court. A caveat lender (appropriately …

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Gippsreal v Hanna [2009] NSWSC 169

Perpetual Trustee held the first mortgage and exercised their power of sale. In the meantime Gippsreal who claimed a second ranking equitable mortgage placed a caveat on title. This was sought to be lapsed by Perpetual but was extended by court order. Gippsreal later provided a withdrawal but the LPI wanted proof the extension order …

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Sood v Christianos [2008] NSWSC 1087

In this matter a second ranking unregistered mortgagee sought judicial sale orders in circumstances where there was a power of attorney and contractual power of sale. His Honour Justice Brereton carefully reviewed the law in relation to making judicial sale orders and found that he had the power to order a sale in relation to …

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GE Commercial Corporation (Aust) v Lehane [2008] NSWSC 963

In this case GE obtained an order for specific performance against the borrower (who was bankrupt) that the borrower execute a mortgage able to be registered as a second mortgage. The trustee in bankruptcy executed the mortgage but refused to have himself registered as the proprietor of the land. The Registrar General declined to register …

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