Right to Possession

Hanshaw v NAB [2012] NSWCA 100

The borrower fought a tough rearguard action against possession proceedings commenced in November 2009. This included an approach to the bank’s External Dispute Resolution provider, Financial Ombudsmen’s Service which, according the judge, “put the proceedings to sleep” for five months. During the FOS episode the borrower was bankrupted by another creditor and a trustee appointed. The …

Hanshaw v NAB [2012] NSWCA 100 Read More »

Balanced Securities v Owston Nominees [2011] NSWSC 1230

A mortgagee lent monies to a company and the company defaulted. The company is in liquidation and the former director of the company is bankrupt. The lender seeks orders for possession of land. The court was satisfied that the persons occupying the property were served with the requisite notice of these proceedings, any tenancy agreement …

Balanced Securities v Owston Nominees [2011] NSWSC 1230 Read More »

Singh v Ginelle [2010] NSWCA 310

The borrowers filed a defence claiming the loan was unjust under the Consumer Credit Code however they ultimately consented to judgment. The borrowers later sought to set aside the consent judgment, which was refused. They then appealed but the appeal was dismissed because: Although judgment was entered in their absence it was entered by consent …

Singh v Ginelle [2010] NSWCA 310 Read More »

MDN Mortgages v Caradonna [2010] NSWSC 1298

The guarantor claimed she had not signed the mortgage or guarantee. The lender retorted that if the mortgage was forged, the guarantor had nonetheless obtained the benefit of the money through the discharge of an earlier mortgage. The guarantor claimed that that earlier mortgage had also been forged.  Ultimately the Court concluded both mortgages had …

MDN Mortgages v Caradonna [2010] NSWSC 1298 Read More »

Capital Finance Aust v Pella Properties [2010] NSWSC 1262

This was a construction loan. The developer was placed into liquidation when the property market turned. There was a default under the mortgage. The claim for possession as against the developer was undefended however an investor sought to be joined to the proceedings claiming a prior interest in one of the units. All other units have …

Capital Finance Aust v Pella Properties [2010] NSWSC 1262 Read More »

GKQ Mortgages v Pedersen [2010] NSWSC 230

In this case the lender obtained default judgement, took possession and sold the mortgaged property. On the day the sale was due to settle the borrower approached the Duty Judge seeking to set aside a default judgment so she could defend the matter and to obtain an injunction preventing the settlement of the sale. The …

GKQ Mortgages v Pedersen [2010] NSWSC 230 Read More »

Starceavich v Swart [2006] NSWSC 960

Swart advanced sum of $45,000 to Starceavich on an unregistered mortgage. After Starceavich defaulted Swart seized possession and tried to sell. Starceavich sought an order that Swart return possession pending a decision on a defence raised under the Contracts Review Act and on the basis of unconscionable dealing. The court considered whether or not Swart …

Starceavich v Swart [2006] NSWSC 960 Read More »

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 …

King Investment Solutions v Hussain [2005] NSWSC 1076 Read More »

Permanent Trustee Australia v Andreas Kolozos [2005] NSWSC 420

Permanent Trustee (“PT”) as lender sought orders for possession of the defendants’ land which was secured by mortgage, upon default in making repayments. The appropriate notices were issued under the Real Property Act (1900). The defendants alleged that PT had misapplied funds from the sale of a different property pursuant to another mortgage. Instead of …

Permanent Trustee Australia v Andreas Kolozos [2005] NSWSC 420 Read More »

Scroll to Top