Power of Sale

Arraf v Jonvana Enterprises [2006] NSWSC 1432

In this case the borrower made an urgent application to the court to restrain the lender from selling the land as the mortgagee exercising power of sale. The borrower claimed he was not in default as he had made arrangements for a third party to pay the mortgage. Justice Palmer dismissed the plaintiff’s application because …

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Regreen 2000 v Stephenson [2006] NSWSC 1313

This involved a property which was sold by a mortgagee exercising power of sale. After the sale various caveats were lodged against the title by parties associated with the old borrower (the former owner). In these proceedings the new owner sought declaratory relief that the caveators had no interest in the property and a permanent …

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Dean-Willcocks v Nothintoohard [2006] NSWCA 311

There was no element of unconscientiousness in the first mortgagee asserting its legal right, and in the circumstances no equitable lien arose. Equitable liens have been held to exist in a variety of circumstances to ensure that the costs of realisation are borne by the realised fund before any distribution to those otherwise entitled to …

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NAB v Grose [2006] NSWSC 979

In this case NAB was suing Grose on his guarantee. Grose claimed NAB only needed to call on the guarantee because it had negligently exercised its power of sale over the primary security being a shopping centre in Queensland. Naturally the extent of the losses thus claimed were enough to cancel out the amount claimed …

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Clarkson v State Bank of New South Wales [2006] NSWSC 903

The borrower alleged: the Bank represented an overdrawn cheque account in his name would be “frozen” for a sufficient period of time to allow him to complete a subdivision of his residential property; the Bank represented it would delay legal proceedings for the recovery of outstanding debt, and that it would advance to him, against …

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Parist Holdings v Perpetual Nominees [2006] NSWSC 599

In this case Hamilton J considered an injunction application by a mortgagor to prevent the mortgagee proceeding with a power of sale. Ground one – impending refinance His Honour noted that: As the matter has gone on, the possibility or immediacy of the plaintiff obtaining alternative finance has declined somewhat. The best that can now …

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Lets We Forget v Westpac [2005] NSWSC 1165

The plaintiff company (“Lets”) borrowed money from Westpac, with the loan secured by mortgages on two properties owned by Lets. The director of Lets was a guarantor of the loan. Lets applied to the Court for an injunction restraining Westpac and its agents from exercising its power of sale. Prior to exercising its power of …

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King Investment Solutions v Hussain [2005] NSWSC 1076

This was an appeal by the Hussains from an order made by an Associate Justice for sale of the land subject to the lender’s second mortgage. The Hussains granted a second mortgage to the plaintiff to secure a loan of $95,000 for a period of two months. Interest was payable at $118.8% per annum, reducing …

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E & P Developers v D J Capital Solutions [2005] NSWSC 1110

The developer mortgaged land to the defendants as security for a loan to carry out the development. The developer applied to the Court ‘at the eleventh hour’ seeking to restrain the lenders from selling the land.  The developer said the injunction was justified for three reasons: Non-service of a s 52(2)(b) notice Estoppel by conduct …

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