Power of Sale

C2C Investments v CBA [2013] NSWSC 256

The parties agreed to consent judgment for possession of the security properties and for the money owing.  The bank then went away and sold the properties but realised a shortfall. The guarantors brought proceedings alleging the bank breached its duties under section 420A of the Corporations Act when selling and sought to stay the bank’s consent judgment for the …

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Poole v Hargraves Secured Investments [2013] NSWCA 69

The lender obtained possession and consent judgment in relation to properties, now the subject of proposed auctions. The borrowers seeks leave to appeal that decision and a stay of the auctions pending that appeal.  The court noted there was no dispute as to the right of the lender to sell the properties, only its manner of exercise, namely …

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Reynolds v Medway [2013] NSWSC 206

Two parties entered into partnership to purchase property and explore its commercial opportunities and following its breakdown, one partner sought an order for statutory sale. The court found no agreement to undertake any specific work in relation to the property and no specified term preventing the dissolution of the partnership by notice. The court found …

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CBA v Thompson [2013] NSWSC 149

The bank took possession of a failed residential development. The bank then proceeded against one of the guarantors. The guarantor claimed that the bank had to first sell the units before enforcing the guarantee and that the bank had engaged in unconscionable conduct in taking preliminary steps to market and then doing nothing for over …

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CBA v Hadfield (2001) NSWCA 440

The borrower defaulted on his mortgage with the lender taking possession of the rural property to exercise its power of sale. The purchaser refused to consent to the borrowers request that the secured land be subdivided in order to possibly achieve a better sale. The lender sold the property as one lot for a short …

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Deutsch v Rodkin & Ors [2012] VSC 450

Two brothers lodged caveats against the property of one of their wives. At trial the caveators conceded they had no interest capable of supporting the caveats. The court found that all of the caveats were lodged pursuant to a joint conspiracy for the dominant purpose of injuring the wife by preventing her from accessing the …

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Bailey v Woondella Pty Ltd [2012] VSC

A borrower sold property ahead of an auction by the lender but the lender refused to withdraw the property from auction unless the mortgage debt was repaid before auction. The borrower’s purchaser bid at the auction but was unsuccessful and the borrower’s purchaser sued the borrower claiming $5m in lost profits from the proposed development …

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Westpac Banking Corporation v Helicopters Brisbane [2012] QSC 263

The owner of ABC Learning guaranteed the repayment of a bank loan for a expensive camera for his helicopter. A bill of sale was granted over the camera. The loan went into default and the bank took possession of the camera and sold it at auction and sued the guarantor for the residual debt. The …

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Prime Capital Securities v Laperecon [2012] NSWSC 386

The lender advertised the security property for sale before the s57(2)(b) notice expired. Thus it advertised the property prior to having a power of sale. However the judge noted this was acceptable: A lender is entitled to take steps towards sale of a property before the time when a power of sale has accrued: Farrar …

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