Mortgage Drafting

Perpetual Trustees Victoria v Cox [2014] NSWCA 328

The evidence, although inconclusive, strongly suggested that the broker forged a drawdown request sent to the lender’s solicitor. The money was transferred, as per the direction, to a bank account under the broker’s control. As the borrowers did not obtain the benefit of the loan, the bank was not granted possession. On appeal the bank …

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Perpetual Trustees Victoria v Cox [2014] NSWCA 328

The evidence, although inconclusive, strongly suggested that the broker forged a drawdown request sent to the lender’s solicitor. The money was transferred, as per the direction, to a bank account under the broker’s control. As the borrowers did not obtain the benefit of the loan, the bank was not granted possession. On appeal the bank …

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Capital One Securities v Soda Kids Holdings [2014] VSC 168

In this case the security documents and enforcement pleadings were sloppily drafted. The court found that that the debts were not secured by the mortgage because they were not ‘secured money’ as defined in the Memoranda forming part of the mortgage, owing to the lenders having mistakenly annexed the MCP for consumer not business loans. …

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Eliana Construction and Developing Group v Assad [2014] VSC 143

A builder and developer, both friends purchased land as tenants in common in equal shares and built a block of units financed by the bank and also from their own funds in the amount of $400,000 and $1.3m respectively. Incomplete transfer of land forms and contracts of sale were signed by the builder, reflecting the …

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Van der Kooij v Mystate Financial [2014] FCA 350

The borrower purported to discharge the mortgage by tendering a promissory note. The lender refused the tender and sold the security. The borrower sued alleging the lender should have accepted the promissory note and failed to obtain “the best price reasonably obtainable” when selling the property. Promissory note The court rejected the promissory note argument, …

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Investec Bank v Naude [2014] NSWSC 165

The bank sued a guarantor. By way of defence, the guarantor alleged that his guarantee was induced by the bank’s misleading conduct as to future second stage development finance, the first stage was for acquisition of the properties. The bank did not call the officer who allegedly made the representation. The judge noted the bank …

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Minumbra Lancewood v AM Lancewood Investment Nominees [2013] NSWSC 1929

In this case, the borrower sought orders to prevent the lender from enforcing a default notice under a loan agreement. A joint venture was set up by two companies to acquire and operate an accommodation village. The joint venture operated under a 50/50 unit trust between the parties. The borrower was trustee under the trust …

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Sibonna Nominees v Vouzas [2013] VSCA 369

The parents came to the rescue of their son who needed security for a loan by mortgaging two homes they owned. The son defaulted on the loan causing the sale of the two properties. The mortgage was expressed to secure all monies owing by the parents to the lender but no monies had been lent …

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Wilde v Morgan [2013] VSCA 250

A defaulting borrower was served with a default notice at the property’s address rather than his PO Box used for previous communications and he challenged the validity of the default notice and the lender’s subsequent entry into possession. The mortgage provided for a number of alternative methods of service, including service at the property’s address. …

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