Latest Case Notes
De van der Schueren v Perpetual Trustee [2012] VSCA 86
08 May 2012
The borrower sought to set aside default judgment. The defence she wished to raise was that the loan agreement had not been signed by the lender and that, accordingly, there was no contract. The Court of Appeal was scathing:It is indisputable that...
Xiao v Perpetual Trustees [2012] VSCA 85
03 May 2012
Subjects: Fraud, Set aside judgment
A woman alleged that her signature had been forged on a mortgage and guarantee. She claimed that she was not aware of the loan and that she had been made a director and shareholder of the company without her knowledge.The woman had delayed...
Capital One Securities v Soda Kids Holdings [2012] VSC 163
27 April 2012
Subjects: Summary judgment
The lender obtained summary judgment and an order for possession of the security. The borrower appealed. The test for summary judgment is that the claim or defence has no real prospects of success – section 63(1) Civil Procedure Act.The Appeal...
CBA v Oswal [2012] WASC 128
26 April 2012
CBA loaned Garuda money to purchase an aircraft. CBA took a chattel mortgage over the airplane. Garurda defaulted and CBA appointed a receiver which seized the airplane and sold it. There was a shortfall and CBA sued the guarantor.The guarantor...
Friendly Inn Holdings v St George Bank [2012] NSWSC 441
17 April 2012
Subjects: Security for costs
A costs order was sought by the bank against the sole shareholder and funder of the borrower. The court found that the shareholder concealed information so that the borrower could remain in occupation of the property for as long as possible.The court...
NAB v Amed [2012] NSWSC 362
13 April 2012
The guarantors wanted to raise a defence that the property was sold at undervalue.The court noted that no action lay in negligence:
There is no common law duty in negligence which makes a mortgagee liable for common law damages if it fails to obtain...
CBA v Perrin (No 2) [2012] QSC 78
30 March 2012
Subjects: Indemnity Costs
This case involved the forged mortgage by Matthew Perrin, the former Billabong millionaire. The CBA conceded that as it could not enforce its mortgage against his wife it would have to pay her costs. However she wanted them paid on an indemnity basis...
Saward v J & A Developments [2012] FCA 404
30 March 2012
Subjects: Injunction to restrain sale, Receivers
The borrower sought an injunction to stop the sale of three blocks of land in a larger aggregation of properties all securing the same debt. They wanted the other properties sold first.The application was made pursuant to s 1321 of the Corporations...
Equititrust v RM Walsh Land Holdings [2012] NSWSC 427
29 March 2012
Subjects: Security for costs
The trustee of a mortgage fund sued the borrower on their defaulting loans. The borrower sought security for costs against the trustee of the fund.The rules empower the court to make a security for costs if there is reason to believe that the...
CBA v Hocknell [2012] SASC 52
29 March 2012
Subjects: National Credit Code
A mortgagor defaulted on his two mortgages following his accident and sought orders under section 74 of the National Credit Code for the arrears on both his mortgages to be capitalised on the grounds of hardship.Section 74 of the National Credit Code...
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