Mortgage Case Notes

Golden J Wealth Pty Ltd v AC Holdings Co Pty Ltd [2019] NSWSC 1342

The lender advanced $7.21M to the borrower to assist with the purchase of two unrelated properties. Two months after the loan settled, a third party obtained freezing orders against both properties. The lender formed the opinion that the borrower had suffered a material degradation in its ability to comply with the terms of the mortgage. …

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Ciavarella v Hargraves Secured Investments [2015] NSWSC 865

The borrower sought a last minute injunction to restrain the mortgagee exercising its power of sale by auction. The court refused for the following reasons: The unexplained delay; The lack of evidence as to any refinance; The fact the borrowers had already breached a previous settlement agreement reached at a farm debt mediation by refusing …

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Home Loan Experts v Nassif Isaac [2017] NSWSC 1077

Mortgage originators / brokerage companies can rest assured that their client lists can be safeguarded through restraint of trade clauses after the decision in Dargan Financial Pty Ltd ATF the Dargan Financial Discretionary Trust (trading under “Home Loan Experts”) v Nassif Isaac(1). They must, however, make provision for who owns the client information in their agreement, …

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Simic v New South Wales Land and Housing Corporation [2016] HCA 47

The New South Wales Land and Housing Corporation entered into a contract with Nebax Constructions Australia P/L for the demolition of existing buildings and the construction of unit blocks in Bomaderry. A special condition of the Contract required Nebax to provide two performance bonds. Nebax approached ANZ to issue the performance bonds but erroneously named …

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Sutherland v GHR Accounting [2015] NSWSC 1946

A corporate borrower defaulted on a loan secured over all his properties including his home, was de-registered and its guarantor sued the accountants for allegedly negligent advice as well as misleading and deceptive. The case against the bank was dismissed however the borrower was allowed to re-plead against his accountants to identify the scope of …

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LM Investment Management (in liq) v BMT [2015] NSWSC 1902

The lender in liquidation (previously the RE for the LM First Mortgage Income Fund) advanced $23m to a developer secured over the land purchased and sued its surveyors for an alleged negligent valuation of works and also sued for misleading and deceptive conduct. The surveyor raised various defences, namely that its conduct did not cause …

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RHG Mortgage Corporation v Ianni [2015] NSWSC 1911

We have previously reported on this case. Parents were duped into giving a guarantee and mortgage for their son in circumstances where they believed that had given a limited guarantee. The parents succeeded in their unjustness and unconscionability defences at first instance but the lender appealed and the court agreed that two errors had been …

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