Estoppel

ANZ v Donnelly [2013] NSWSC 1760

An Australian expat couple in Hong Kong refinanced their mortgage in Australia with a dual currency HKD/AUD loan. The loan was converted to AUD when the value of the AUD fell. Upon conversion the couple could no longer afford the payments and the lender sued for possession. Default judgment for possession was entered against the …

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NAB v Clark [2013] NSWSC 1461

The borrowers claimed that the bank represented to them that their facilities would be renewed for a further three years based on express and implied representations. The borrowers pleaded waiver, estoppel, the formation of a new agreement, as well as misleading conduct and unconscionability. The court at first instance found that the borrowers had no …

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Hargraves Secured Investments v Slaven [2013] NSWSC 673

The matter had already been before the courts for many years, including having had an a determination by the High Court that the Farm Debt Mediation Act applied. The lender argued that the Farm Debt Mediation Act no longer applied because the borrower had become bankrupt. The borrower argued that the common law doctrine of …

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Westpac Banking Corporation v Munk [2012] NSWSC 1576

The borrowers argued that the bank employee’s representations that the facility would be automatically rolled over upon expiry amounted to promissory estoppel, which precluded enforcement until expiry of the rollover. The bank argued that even if an arguable defence were established, the loan required the borrowers to repay all amounts owed without set off, counterclaim …

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CBA v Marsden [2012] VSC 607

The bank’s advance was secured by guarantees, charges and mortgages, including those given by the husband and wife directors. Receivers were appointed by the bank but they were denied access to the security properties on the basis that the bank was estopped from calling in the loans and guarantees and appointing receivers. The borrowers claimed …

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Bank of Western Australia v Coppola [2012] NSWSC 1495

The wife argued that she signed a mortgage because of her daughter’s dishonesty and the husband argued that his daughter signed as his attorney without authority. Consent judgment was obtained against the wife. The husband and wife after considerable delay sought to bring a cross-claim seeking declarations that the mortgages were procured by fraud and …

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Nibar v Wallace [2012] NSWSC 1301

The guarantor raised the following defences: National Credit Code The guarantor claimed the code applied and that a notice under section 80 of the code ought to have been served before commencing enforcement proceedings. The judge was sceptical of the claim that the code applied because although the security was the guarantor’s home and the …

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Wolfe v Permanent Custodians [2012] VSC 275

The lender obtained judgment for possession against a borrower and days before the eviction, the borrower negotiated an agreement to stay the eviction. The agreement contained a term that if the borrower defaulted in any payment, the lender would enforce the judgment and warrant without notice. The borrower defaulted because the direct debit form was …

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