Priorities

Bofinger v Rekley [2007] NSWSC 1138

In this matter Bransgroves Lawyers acted for the second mortgagee Rekley. The Bofingers gave a guarantee and mortgage over their house to secure the obligations of their development company B&B. The loan to B&B was secured by a mortgage over a development site owned by B&B. The project got into financial trouble and the Bofingers …

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New Beach Apartments v Epic Hotels [2007] NSWSC 474

In this case the land in question was a development site at 44 New Beach Road, Darling Point. The site had approval for the construction of three two levels apartments. The land has been excavated and the ground-floor concrete slab had been laid but then the borrower had run out of money. The first mortgagee …

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Hamilton v Donovan Oates Hannaford [2007] NSWSC 10

This case involved a priority dispute between a voluntary administrator of the borrower and the lender pursuant to a registered mortgage. The administrator sought a declaration that it had a lien which ranked ahead of the registered mortgage. The court noted that an administrator undoubtedly had a statutory lien pursuant to s.443F of the Corporations …

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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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Circuit Finance v Wills [2006] NSWSC 35

This case involved a priority dispute over surplus proceeds after the first mortgagee had been paid out and the balance deposited with the court. Both Circuit Finance and the Wills obtained a charge over the land in question by virtue of charging clauses. These are clauses which “charge as security for the debt all land …

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Garnock v Black (No. 2) [2005] NSWSC 1218

In this case the new purchasers of a property were unable to register their title because a writ for the levy of the property was recorded on the Register. The purchasers sought a declaration that they were entitled to priority over any interest in the land the creditors held, an injunction to prevent the Sheriff …

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