Practice Areas

  • EDR disputes

    Matthew Bransgrove is an expert on the External Dispute Resolution regime which applies to Australian lenders. He was commissioned by lenders with combined loan books of $5.3 billion, to draft a petition addressed to the Parliamentary Joint Committee on Corporations entitled “Why the External Dispute Resolution regime is hurting capital availability in Australia”. The 2013 Lexis Nexis textbook The Essential Guide to Mortgage Law in Australia contains a chapter on External Dispute Resolution written by Mr Bransgrove.

    Every bank and every lender involved in consumer lending must hold an AFSL. Every holder of an AFSL must be a member of an External Dispute Resolution Scheme (“EDR”). There are two External Dispute Resolution schemes: the Financial Ombudsman Scheme (“FOS”) and the Credit Ombudsman Service Limited (“COSL”).

    In April 2011 ASIC brought out Regulatory Guide 139, entitled Approval and oversight of external dispute resolution schemes. In this document ASIC set out certain mandatory requirements for inclusion in the terms of reference of all EDR schemes. RG 139 introduces a revolutionary principle which amounts to a de facto mortgage moratorium. Paragraph 72 states:

    The Terms of Reference of an EDR scheme must require that legal proceedings by scheme members should not be commenced where a complaint or dispute has been lodged with the scheme.

    Paragraph 77 goes on to state:

    Where legal proceedings that relate to debt recovery proceedings have already commenced and a complainant or disputant takes their complaint or dispute to an EDR scheme, the Terms of Reference must require the member not to pursue the legal proceedings beyond the minimum necessary to preserve its legal rights.

    Bransgroves Lawyers can assist in resolving these complaints quickly and efficiently utilising our in-depth knowledge of EDR Terms of Reference and jurisdictional issues.

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  • Property disputes

    By virtue of our extensive involvement in mortgage enforcement over the last twelve years Bransgroves has acted in many of the leading cases in relation to property law. All our partners contribute extensively to the academic literature on property law through our College of Law papers and our article in the Law Society Journal.

    Whatever your property related dispute, Bransgroves will be able to identify the crux of the dispute and formulate a strategy to extricate you as efficiently and successfully as possible. Our legal expertise enables us to achieve outcomes for our client, in most cases through the use of interlocutory applications that effectively dispose of the dispute, avoiding the need for a full-blown trial.

    1. Caveats
    2. Compensation from the Torrens Assurance Fund
    3. Constructions loans
    4. Contracts for the Sale of Land
    5. Correction of the register
    6. Crown leases
    7. Easements
    8. Equitable mortgages
    9. Farm Debts Mediation Act
    10. Indefeasibility
    11. Injunctions to restrain sale
    12. Insolvent registered proprietors
    13. Joint tenancies
    14. Joint ventures
    15. Judicial sale
    16. Leases
    17. Life estates
    18. Marshalling
    19. Mortgages
    20. Negligent conveyances
    21. Negligent valuation
    22. Notices to Complete
    23. Purchaser's lien
    24. Rescission of contracts for sale
    25. Registration
    26. Restrictive covenants
    27. Right to possession
    28. s66(G) applications
    29. Stamp duty
    30. Strata title
    31. Sub-division
    32. Tenancies in common
    33. Transfers
    34. Vendor finance
    35. Writ of possession

     

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  • Construction finance

    We understand that construction disputes involve complex technical and factual issues, voluminous documents, and often many parties and a long project history. We understand that our clients cannot afford a legal free-for-all, with disastrous financial consequences for projects, firms and guarantors. To eliminate this we carefully balance theoretical legal rights with the realities of the situation and help our clients devise strategies to short-circuit potential disputes and bring about optimal settlements for our clients. Our construction documents recognised as the most flexible and meticulous in the industry are used by over 30 lenders for large and small construction loans. 

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  • National Credit Code

    Our solicitors have a commercial and practical understanding of the operational challenges facing lenders in an ever-changing regulatory environment. By combining our detailed knowledge of the regulatory environment with a strong understanding of your business our lawyers can help your business meet its regulatory and prudential challenges at minimum cost and with optimal commercial results. This allows us to reliably and efficiently advise our lender clients on documenting and underwriting coded loans, avoiding coded loans and enforcing coded and allegedly coded loans.
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  • Mortgage funds

    We are experts in the field of establishing and maintaining mortgage investment schemes. Our skills in drafting mortgage documentation dovetail with our skills in drafting constitutions, Product Disclosure Statements, Information Memorandums, lending manuals, compliance plans and other mortgage scheme documents to ensure that your mortgage scheme is efficient and compliant.

    Wholesale fund

    If an AFS licensee has a wholesale licence only, it can only raise money from wholesale investors.  The main categories of wholesale investors are:

    1. Those who invest $500,000 or more.
    2. Those who control $10m of assets or more.
    3. Those who can provide an accountant’s certificate stating that they meet one of the following:
    • They have net assets of $2.5m or more, or 
    • They have a gross income for the last 2 years of $250,000 or more.

    Note – in certain circumstances entities controlled by a person that meets the asset or income test can be aggregated together.

    Any investor that is not wholesale is retail. As noted above, a holder of a wholesale AFS licence can only raise money from wholesale investors.  But the NTA requirements for the licence are low (a mere surplus of assets over liabilities only is required).  The only other real solvency test is that the licensee shows it has necessary cash flow to meet its business needs over the next 6 months at all times.

    A wholesale licensee cannot issue a PDS or Prospectus.  It can only issue information memoranda.

    Retail fund

    A full retail licence is usually referred to as a ‘responsible entity’ licence.  It’s still a form of AFS licence. This licence allows:

    • The licensee to be the responsible entity (trustee) of a registered managed investment scheme.
    • Raise unlimited $ amounts from both retail and wholesale investors via Product Disclosure Statements.

    It carries with it onerous NTA requirements, which are the greater of:

    • $150,000,
    • 0.5% of the average value of scheme property of the registered schemes it operates (up to $5 million), and
    • 10% of the average responsible entity revenue (as defined) (with no maximum).

    Also, registered managed investment schemes are higher cost than unregistered ones – they need a compliance committee and a full annual audit and potentially a six month audit review.

    Hybrid fund

    There is an AFS licence for clients that is basically wholesale but with limited ability to raise money from retail investors.

    Sections 708/1012E of the Corporations Act allow a licensee to raise up to $2m every 12 months from up to 20 retail investors by way of ‘personal offers’ to retail investors (the 20/12/$2m rule).  Unlimited personal offers can be made but only 20 acceptances every 12 months.

    The benefit of such a licence is that it does not carry the NTA requirements of a responsible entity AFS licence.  The downside is that the licence does not permit PDS’s or Prospectuses to be issued, only information memoranda.

     

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  • Trail disputes

    We specialise in acting for brokers and originators whose trail has been cut of or is threatended.

    Many clauses in origination and aggregation deeds that claim to give the right to seize trail are unenforcable, including onerous indemnity clauses. We have also developed various effective defences based on contractual arguments derived from the wording of the deeds themselves as well as the practices and waivers adopted by the parties themselves.

    We have run several cases for those who have had their trail commission stopped and seized by funders. Our extensive experience in the mortgage industry means that we are familiar with all the issues surrounding these claims. This includes the structure of the relationships between brokers, aggregators, lenders' mortgage insurers, originator-funders, and lenders. Our extensive experience suing valuers gives us unique insight into the potential proportionate liability of valuers, solicitors, brokers, and borrowers.

    Most contracts allowing for the seizure of trail are void as penalties and in all cases we have been able to negotiate settlements-sometimes, if the aggregator is stubborn and poorly advised, only after commencing proceedings.

     

    Click here to see what brokers think of us.


     

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  • Mortgage due diligence

    Anyone can lend money out, but the test of diligence is in recovering it undiminished. Mortgage enforcement is one of the primary focuses of our practice, our daily exposure to the twists and turns of contested mortgages constantly hones our skills and provides us with a knowledge-base for advising clients on mortgage due diligence procedures.

    Recent decisions under the Contracts Review Act and the National Credit Code cases have found that failure of a lender to adhere to its own procedures can result in the loan being found unjust. Moreover, recent valuation decisions have found that lenders will be punished severely in the calculation of contributory negligence if they breach their own procedures. Bransgroves can help identify what procedures will genuinely assist in loss prevention while at the same time ensuring the lender is not set up to lose a challenge mounted under the Contracts Review Act and the National Credit Code or s137B Competition and Consumer Act 2010 or in proceedings against valuers.

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  • Mortgage advances

    For over twelve years we have led the field in acting for lenders on mortgage advances in NSW. Since 2012 we have been acting on advances in all states and territories.

    From the multi-million dollar complex constructions loans to straight forward advances and caveat loans our service is always superlative. Our pricing is extremely competitive and our work careful and precise. Our specialisation and our automated document production allow us to be lightning fast in our turn around for producing documents and performing due diligence. 

    Our rigorous systems, procedures and constantly tweaked checklists ensure the highest quality service. Our expertise in suing other solicitors who have negligently performed mortgage advances, serves to keep us constantly on our toes.

    Loans involving multiple securities, multiple tranches, multiple states, multiple guarantors, multiple borrowers, multiple trusts with multiple beneficiaries, and multiple charges over encumbered companies by syndicated lenders are par for our course. We are particularly skilled in documenting construction loans.

    Many of our clients are mortgage funds run by solicitors or ex-solicitors or institutions with in-house lawyers. Despite having the qualifications to act for themselves, they know that when a matter is complex, or high value, it is quicker and safer to use our services.

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  • Banking and finance

    Bransgroves has led the field in acting for lenders on advances, enforcement and priority disputes for over ten years. More recently the firm has become well known for taking the side of mortgage originators and aggregators in their disputes with wholesale funders.

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  • Personal Property Securities

    The Personal Property Securities Act 2009, which commenced at the beginning of 2012, change the way in which interests in personal property were dealt with, including the fixed and floating charge. Many business have found that interacting with the new regime is complex and have sought our skills and expertise.

    Our mortgage documents grant an interest in all personal property and further, provide for charges over specific personal property. We act to ensure our clients' security interests are properly perfected and registered under the regime.

    We have also helped lenders understand the changes to the regime and implemented to changes in practice to accommodate the Personal Property Securities Act.

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