There had been an order for a taking of account between a lender and borrower as part of more complex proceedings. An issue arose in that taking of account as to whether there had been an overpayment to the borrower under the mortgage of monies not intended to be paid to her. There were competing …
The lenders advanced money to a school secured by mortgage over the school grounds. The school was in liquidation and there was a dispute as to the amount owed. Court orders had been made for a taking of account between the school and the lender. After the hearing and delivery of reasons for judgment the …
The bank lent US$27m to Garuda to purchase an aircraft. Garuda repaid US$10m of the principal early. The bank charged Garuda a break cost fee which Garuda paid. Garuda later went into default and the aircraft was sold with a shortfall. The bank sued the guarantor who argued that the bank was not entitled to …
The rule in Hopkinson v Rolt The second mortgagee in this case invoked the rule the famous rule in Hopkinson v Rolt. The rule states that the priority of a first mortgagee whose mortgage secures all moneys owing by the mortgagor, is relegated to third priority for any further advances made after the first mortgagee …
The lender seized four properties before exercising their right to sale. Following the sale of all four properties, the borrower remained $500,000 indebted to the lender. The borrower commenced proceedings seeking accounts. In dismissing the proceedings, the court found that no surplus meant that there was no obligation to account. The lender’s duty to account …
The security was sold by the Commonwealth Bank as first mortgagee. The surplus proceeds, after the Bank’s mortgage had been satisfied, were paid into court. The second mortgagee and the liquidator then approached the court to get the money out. This required a “taking of accounts” to determine what was owing to the second mortgagee. …
The lender obtained judgment for a monetary sum against the borrowers. It then pursued a professional negligence claim against the valuer who initially valued the property. The valuation proceedings were settled. The lender sought to bankrupt the borrower. The borrowers argued the lender could not claim the full amount from them as it had the …
The plaintiff borrowed money from the bank which was secured by mortgages over two properties. She defaulted and the bank sold the properties as mortgagee in possession, pursuant to its power of sale. The bank disposed of certain goods located at one of the properties at the rubbish tip. The plaintiff alleged that the goods …
In this case the lender obtained default judgment in April 2009, which the borrower filed a notice of motion to set aside in May 2009. The matter came before the court a number of times and in November 2009 an agreement was reached whereby the terms of the mortgage would be varied so the interest …
This case involved an obscure equitable remedy known as ‘an equity of exoneration’. Burch borrowed money on a mortgage and 38% of the proceeds she kept for herself while 62% she gave to Cone. The equity of exoneration was applied and Cone was ordered to pay 62% of the costs of the mortgage. The court …
