Summary Judgment

Papas v Westpac [2014] FCA 290

The bank bankrupted the borrower notwithstanding that the borrower had claimed he had a defence to the mortgage. The borrower appealed and argued the court ordering the bankruptcy failed to appreciate that he had raised a genuine dispute in respect of the debt. The borrower claimed that the lender engaged in misleading conduct in not …

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Ocvirk v Permanent Custodians [2013] NSWSC 1021

The parents allege the son and his wife forged their signatures on the mortgage. All monies mortgage The parents claim that the loan agreement is void and, because the mortgage secured amounts due under the loan agreement, the mortgage itself therefore secures nothing and it is liable to be set aside. This is the indefeasibility …

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Conridge v Flammia [2013] NSWSC 498

The lender had brought proceedings against two solicitors arising out of a loan and mortgage transaction. The borrower had defaulted on the loan, but the lender had not been able to enforce the mortgages as they had been forged. He had been unsuccessful in proceedings against the third party mortgagor and had then brought proceedings …

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ANZ v McKay [2013] NSWSC 683

The bank was claiming monies under guarantees, the guarantors were defending the claim on three grounds: that the guarantee and indemnity was deficient because the bank hadn’t advised about the need for independent legal advice; on the basis of a High Court decision (Garcia v NAB [1998]); and that the guarantee was unjust under the …

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The Trust Company v Romeo [2013] NSWSC 347

The bank loaned $5.5M of which $1.6M was used to discharge a previous mortgage. The borrower defaulted and when pressed filed a Contracts Review Act Defence. The bank sought summary judgment for the amount of $1.6 (the amount applied to the previous mortgage) and possession on the basis that no Contracts Review Act defence could …

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O’Brien v Bank of WA [2013] NSWCA 71

The bank lent money to a company secured by guarantees. Both the loan and the guarantee contained suspension clauses, requiring full payment with no deduction or set-off. The loan became due, the borrowers did not pay and the bank applied for summary judgment. The guarantors filed defences and brought a cross-claim, which the bank argued …

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ANZ v RQA Accountants [2013] NSWSC 165

The lender sought summary judgment for possession against husband and wife accountants. The mortgages provided that the borrowers will pay without deduction, withholding for tax and without any set-off or counterclaim. The borrowers argued a fiduciary duty on the part of the bank, as long-standing customers, not to lend them money, or having done so, …

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BankWest v Campbell [2013] NSWSC 133

Summary judgment was given for the bank and one of the guarantors then sought to have it set aside on the basis that she had received no notice of the hearing. Her proposed amended defence claimed she had no intention to give a guarantee and a Contracts Review Act defence. The court did not believe …

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Duckworth v CBA [2013] WASCA 24

The lender obtained summary judgment for $3 million and orders for possession. The borrower sought a stay. A stay requires proof of a reasonable prospect of successfully appealing from the judgment . In addition in a mortgage action, the general rule is that a stay will not be granted in circumstances where the mortgage debt …

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