Priorities

Naxatu v Perpetual Trustee [2012] FCAFC 163

The rule in Hopkinson v Rolt The second mortgagee in this case invoked the rule the famous rule in Hopkinson v Rolt. The rule states that the priority of a first mortgagee whose mortgage secures all moneys owing by the mortgagor, is relegated to third priority for any further advances made after the first mortgagee …

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Raging Thunder v BankWest [2012] QSC 329

Bank West advances $37M on dodgy presales and ‘suffers major losses’, but that was not the end of the woes…  This was a dispute between Bank West who held the first mortgage and the former owner of the property who provided vendor finance in return for a second mortgage.   The development was a failure and …

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Rockcliffe v Wirrina [2012] SASC 200

This was a priority dispute. The security was a resort development gone wrong.  The second mortgagee has poured $657k since default into keeping the resort open. It now faced a complete loss of capital. Unable to bear the thought of losing everything, its director raised an ingenius argument to claim priority over the first mortgagee: …

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Brava Trading v Leybourne Nominees [2012] QSC 328

A lender obtained a registered fixed and floating charge to secure monies lent. Another creditor then obtained default judgment and an enforcement warrant to empty the borrower’s bank account. The question for the court was whether the lender’s floating charge over the debt gave it priority to the moneys in the solicitor’s trust account over …

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AFS v All Up [2012] NSWSC 1004

This was a priority dispute between two lenders. AFS financed business equipment based on forged receipts provided by the husband. After AFS discovered the fraud, the wife agreed to charge her property to secure the debt and a caveat was lodged. After the equipment finance fraud was committed but before the caveat was given All Up …

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Commissioner of Taxation v Park [2012] FCAFC 122

A borrower agreed to sell her property, to a purchaser. The total amount owed under the mortgage exceeded the purchase price. The lender agreed to release its mortgage in return for the full sale proceeds (presumably because the lender agreed the price being paid was top dollar). However between the time the contract was signed …

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Aged Care Services v Macedonian Aged Care [2012] NSWSC 531

This was a priority dispute. The sequence of event was: ANZ took a registered first mortgage; A creditor took a charge and lodged a caveat; A developer paid out the ANZ mortgage and a discharge was registered. The developer claimed he was subrogated (substituted) to the priority of the ANZ mortgage because he paid it …

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St George Bank – A Division of Westpac Banking Corporation, In the matter of [2011] NSWSC 730

St George was mortgagee of two properties owned by the mortgagor. Only one loan was repaid but St George mistakenly gave a discharge on both mortgages. St George then provided a loan facility to the mortgagor which the mortgagor used to pay off the second loan in relation to Mosman property. A condition of the …

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Taylor Property Group v Permanent Trustee Australia [2011] NSWSC 318

The administrator lodged a caveat for his fees. The lender wanted it removed so he could sell the property. The lender offered the administrator $20,000 to go away but it was refused. The law is that the caveator bears the onus of showing that it has a seriously arguable case for final relief, and, that …

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