Priorities

Champion Homes Sales v JKAM Investments [2014] NSWSC 952

Three different parties claimed competing equitable interests in land, namely a builder, a lender and a purchaser, which arose in that order and all three lodged caveats but in the order of the lender, the purchaser and the builder. All three sought declarations as to validity and primacy of their interests. The registered mortgagee obtained …

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WK Marble & Granite v Elia [2014] NSWSC 898

The lender obtained money judgment against the owner of a property and then sued for possession. The owner’s son, occupying the property pursuant to a 20 year lease, sought to be joined on the basis of having purchased the property from the owner, his mother. The money owing by the mother for alleged building works …

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Terranova v Secure Funding [2014] WASC 208

A commercial lender provided finance on the security of property already mortgaged to the owner’s family on the basis that its security would rank first, ahead of the owner’s parent’s security. The owner defaulted and the commercial lender was granted possession. The parents then sought to exercise their rights to possession and a dispute arose …

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Salta Constructions v St George [2013] VSC 685

This case involved the application of the rule in Hopkinson v Rolt. The rule prevents a first mortgagee (in this case St George) from obtaining priority for advances it makes after it becomes aware of the existence of a second mortgagee. The second mortgagee wrote to the first and alerted it to the existence of …

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Settlement Group v Purcell Partners [2013] VSCA 370

There were several properties being refinanced. The solicitor for the incoming lender did not obtain a payout figure for the entirety of the properties. The solicitor prepared a cheque for this lower sum. At settlement, the outgoing lender handed over discharges of mortgage for all properties and accepted the cheque. Immediately following settlement, the outgoing …

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Aged Care Services v Kanning Services [2013] NSWCA 393

This case concerned a priority dispute between an unpaid supplier to the owner of land and a subsequent joint venturer with the owner to develop certain land for the building of a retirement village. The owner acknowledged the supplier’s debt and agreed that the supplier would be entitled to lodge caveats over the property until …

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Military Road No 158 v Lion Pacific Projects [2013] NSWSC 1545

The owner of a medical practice took out a mortgage to the bank and granted an option to its tenants who run a medical practice at the premises to buy the property. The bank consented ot the option. The mortgagor defaulted and the bank sought possession and exchanged contracts with a purchaser. The medical practice …

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Hancock v Impresario Enterprises [2013] NSWSC 558

The court had previously made an order in this matter that a previous owner of a security property provide a withdrawal of caveat to the bank. This was in circumstances where the bank had taken possession of the security property after the borrower defaulted on his mortgage, but the previous owner (who had sold the …

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AET SPV Management v Wildfire Amusements [2012] QSC 402

This case concerned a priority dispute between a first registered mortgage and a caveat. The caveat was registered pursuant to a tripartite deed to which the lender was a party. The deed stated that the caveator’s rights were subordinate to the lender’s, but gave the lender’s the option to terminate the vendor’s interest in the …

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