25 November 2015


The lender obtained defaults judgment and the borrower sought to set them aside over 3 years later. The borrower argued at first instance and on appeal that:

  1. The lender was not the creditor because the benefit of the loans had been assigned to another entity and so the mortgages which remained registered in the name of the lender secured nothing; and
  2. The lender was guilty of misleading and unconscionable conduct in making representations that repayments were in some way available for redrawing and were paid on the understanding that steps would not be taken to sell the properties.

The Court of Appeal agreed with the trial judge and found no legal assignment and also agreed with the trial judge that given the lengthy delay, the borrower should commence fresh proceedings in relation to the second claim. The court also said:

[The borrower] was well aware of all the factors now sought to be relied upon in the proposed defence and cross-claim before the properties were sold.

The appeal was dismissed.

Click here to read the full judgement

Matthew Bransgrove, Partner

Matthew Bransgrove has practised exclusively in the field of mortgage law and mortgage related litigation since 1998. He is author of Avoiding Mortgage Fraud in Australia (2015) Lexis Nexis. He is co-author of The Essential Guide to Mortgage Law in NSW (2008) Lexis Nexis and its successor The Essential Guide to Mortgage Law in Australia (2013) Lexis Nexis.

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