Subrogation

Bofinger v Kingsway Group [2009] HCA 44

In this case the guarantors sold their house (which was mortgaged) and used the proceeds to pay down the first mortgage on the construction site. This meant that when the construction site was sold by the first mortgagee there was a surplus. The first mortgagee proposed to pay the surplus money to the second mortgagee. …

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Spendright v Classfact [2009] NSWSC 317

In this case the security property was encumbered by a first and second registered mortgage. The mortgagor was placed into administration and the administrator sold the property for a figure apparently above its market value. The administrator obtained consent from the first mortgagee, ING, for the sale but not the second mortgagee. In earlier proceedings …

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Bofinger v Kingsway Group [2008] NSWCA 332

In this appeal court case first and second mortgages over the development property were bolstered by first and second mortgages over the guarantors’ home. When the development went bad the guarantors voluntarily sold their home and the whole proceeds were paid to the first mortgagee. The first mortgagee sold the development property and after it …

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Indian Pacific Interiors v Nichols [2008] NSWSC 911

In this case the wife gave a guarantee and her property was used to payout the bank’s mortgage. She then appointed a receiver over her husband’s company using the bank’s charge (she maintained she stood in the banks shoes by virtue of subrogation). The court agreed noting: Where guarantors, out of their own property, procure …

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Westpac v Victor Warren Ollis [2008] NSWSC 824

In this case a large a sum of money was stolen from Westpac. Some of that money was used by the fraudster to pay out another lender’s mortgages. In previous proceedings Westpac had successfully obtained orders that it had a charge (similar to a mortgage) over the property by virtue of having supplied the discharge …

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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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Higgs v Thompson [2006] NSWSC 920

The borrower/mortgagor was an elderly man suffering from dementia born in 1914. His daughter guaranteed the loan but the court found she was in substance the borrower. The court also found she had provided false information to obtain the loan. The borrower/mortgagor sought relief against under the Contracts Review Act. The judgement makes no mention …

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Westpac v Adelaide Bank [2005] NSWSC 517

Westpac, who held a second (unregistered) mortgage over the land, claimed priority over a first mortgage held by Adelaide Bank, to secure an advance of $233,195 and interest. Alternatively Westpac claimed to be subrogated to the first mortgagee’s rights over the land. Westpac refinanced a loan from Adelaide Bank in the sum of $233,195 and …

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