We have previously reported on this case. The trial judge found that the commercial lender’s security ranked ahead of the borrower’s parent’s security on the proper construction of the deed of priority. The parents appealed. The Court of Appeal agreed with the trial judge that the commercial lender was entitled to priority for the amount secured by …
The bank paid surplus funds following the sale of mortgaged property into court and three competing claims were made on the fund – two alleged debtors and the owner of the property, now bankrupt. Each debtor disputed the other’s debt and priority. The first in time claim arose from the owner personally guaranteeing his company’s …
Application by Westpac – Charara v Konneh [2015] NSWSC 1084 Read More »
A developer borrowed money from the bank to develop some apartments and granted the bank a first mortgage. Towards the end the developer sold the builder one of the units at a large discount in lieu of payment. The sale price of the remaining units failed to discharge the debt to the bank and the …
Two brothers executed a business guarantee which contained the following charging clause: The Guarantors each hereby charges their respective interests in any land now or hereafter held by them for all monies guaranteed pursuant to this Deed. Some years later they purchased a property in their own name as trustees of their superannuation fund. Some …
Sydney Markets Credit Services v Taylor (No. 2) [2015] NSWSC 499 Read More »
The borrowers wife placed a caveat over the property claiming she had, many years prior to the mortgage being entered into, agreed to buy the property off her husband and had paid substantial amounts to him to that end. The Court found for the bank and ordered the caveat removed, commenting: However, even if the …
NAB v Waldron & Registrar of Titles [2015] VSC 141 Read More »
The Bank of Queensland advanced $760k more than it intended to advance to the borrower by mistake. Within 2 months the borrower drew down on the additional money. Later the bank exercised power of sale and applied the proceeds to the amounts owing to the bank (including the mistaken advance). The second mortgagee sued the …
In this case the first ranking mortgagee paid itself amounts which it was owed but which did not form part of its charge. This was objected to by the second ranking mortgagee. The court noted: NDP, as the prior ranking security holder, has a duty to account to Fingal as a subordinate security holder and …
We previously reported on the trial at first instance. This note is about the appeal. St George (as first ranking mortgagee) sold the property for $20 million and retained all the money against a debt it claimed was $54 million. Salta Constructions (as second ranking mortgagee) argued that the bulk of the money claimed by St …
Salta Constructions v St George Bank [2014] VSCA 289 Read More »
The borrower took out a loan to buy land in Victoria. The borrower later agreed that McDonald’s could rent and build a restaurant on the land. As the improvements would form part of the borrower’s land, they were required to contribute to the costs of construction. The arrangements requiring the borrower to pay McDonald’s were …
McDonald’s v Bendigo and Adelaide Bank [2014] VSCA 209 Read More »
A dentist owned a property in Lightning Ridge. Her receptionist entered into a payment plan to purchase the property in instalments. The dentist did not transfer title in the property, but allowed the receptionist to live in it subject to the instalment payments being made. Some time later, the dentist left the area and the …
