This case was a priority dispute remitted by the Court of Appeal to the Court of Land and Environment between the purchaser and the previous owner of the land, a de-registered company. The land was subject to two mortgages and the lender exercised its power of sale. However before the sale contract completed, the Transport …
This was a case where the borrower alleged the lender breached it duties in exercising power of sale. The Court of Appeal held that if a lender can be shown to breach its duty in some way, the borrower then has free scope to draw a picture of an alternative universe in which a lender …
Receivers were appointed to a slipway business by Investec Bank. The receivers sold a 50% shareholding in another company owned by the debtor to the debtors former partner for $1 and also asssigned to him debts of $671k for $500k. The debtor sued alleged breach of s 420A(1) of the Corporations Act 2001 which provides: In exercising …
Mortgaged land was compulsorily aquired by the state (resumed) for the North West Rail Link. At the time of the resumption negotiations began the property had just been sold by a lender, exercising power of sale, however the sale was not completed. The resumption price exceeded the contract price and the lender and purchaser renegotiated. …
Golden Mile Property Investments v Cudgegong Australia [2015] NSWCA 100 Read More »
The bank sought possession. The wife initially sought to argue unjustness under the Contracts Review Act and unconscionability. These claims were abandoned and the bank was granted possession. The bank then sought monetary judgement so it could pursue the borrowers for any shortfall. In response, the wife then sought to reinstate her previous defences and …
The borrowers claimed that the lender sold his property at under value. The property was sold by public auction. The lender sold the property ‘as is’ rather than subdivide it, on the basis that the costs of doing so were not such as to justify any higher price that might be obtained. The court held …
Kautto v La Trobe Capital & Mortgage [2015] WASC 58 Read More »
The lender was accused of selling the property at undervalue. The judge noted that a mortgagee has a duty to act in good faith and also a statutory duty to take reasonable care to ensure property is sold at market value. The land was put to auction and sold and the marketing campaign was not …
We previously reported on the first instance decision. This is a case note on the appeal. Breach of duty in exercising power of sale The borrower alleged negligence in the way the bank had sold the property. The trial judge applied the now obsolete common law test of good faith. The correct action these days, is …
A company in the business of fire protection owned the family home. It borrowed from the bank secured by a mortgage over the family home. The husband/father was the sole director and shareholder of the company and had also given a personal guarantee. The business suffered burnout and the company had to be wound-up. The …
Muir v Mid Murray Fire Protection [2014] VSC 547 Read More »
The bank initially sued for possession of the guarantors’ property. The guarantors argued that their liability was limited to less than that claimed and that their guarantee and mortgage was void because the bank had breached its obligation to act in good faith. They also argued that the receivers appointed by the bank had breached …
