Subrogation

Barlin Investments v Westpac [2012] NSWSC 699

Westpac went to lodge their mortgage only to find that a caveat lodged after they settled blocked registration. The caveat protected a mortgage created before the Westpac mortgage was advanced. The court considered the rules applying to priority competition between equitable interests: To determine priority between competing equitable interests, where the merits are equal, the …

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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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Pedulla v Fernando Panetta (No 2) [2011] NSWSC 1386

This case concerns costs awarded as part of compensation from the Torrens Assurance Fund. The history of the substantive proceedings are as follows. A brother fraudulently transferred his sister’s valuable northern beaches property to himself for $1, assisted by a fraudulent solicitor. The sister was in Italy with an order of nuns when this occurred. …

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Padovan v MGG Group [2011] NSWSC 1080

Two purchasers provided scaffolding in consideration of the purchase price of units but completion did not occur and a refund was claimed from the developer but not made. An arrangement was then agreed whereby the amount owing by the developer would be offset by other property being conveyed to the purchasers provided the existing mortgage …

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Helena Hu v PS Securities as trustee of the Joseph Family Trust [2011] NSWSC 98

Ms Helena Hu lent money to a trust and obtained a judgement debt against the former trustee. The principal of the former trustee attempted to avoid paying the debt by appointing a new trustee and winding up the old trustee. The only valuable asset of the trust, land valued at $6m, was transferred from the …

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Bofinger v Kingsway [2011] NSWSC 64

The lender sought a review of the Registrar’s decision to grant leave to permit the plaintiff husband and wife real estate developers to file a second further amended statement of claim. The lender provided construction finance to a development company. As security the lender took first mortgages over the development units and the guarantors’ home. …

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CBA v Delacy [2010] NSWSC 1449

The borrower bought a unit and a car space, each with separate titles. The bank financed the purchase but only registered its mortgage over the unit forgetting about the car space by oversight. The outgoing mortgagee’s title to the car space remained on the title during this time. Then along came a second mortgagee who …

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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 …

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Ron Medich Properties v McGurk [2010] NSWSC 552

This was an application by the plaintiff (“RMP”) to extend a caveat lodged against land owned by Mrs McGurk, or alternatively an order pursuant to s 74O of the Real Property Act granting leave to RMP to lodge a further caveat in relation to the property, as well as an order restraining McGurk from discharging a …

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