Acceleration Clause

Minumbra Lancewood v AM Lancewood Investment Nominees [2013] NSWSC 1929

In this case, the borrower sought orders to prevent the lender from enforcing a default notice under a loan agreement. A joint venture was set up by two companies to acquire and operate an accommodation village. The joint venture operated under a 50/50 unit trust between the parties. The borrower was trustee under the trust …

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Westpac v Parker [2012] NSWSC 514

The borrowers went into default but six months later, brought their mortgage arrears up to date. Pursuant to an acceleration clause in the mortgage, a default made the entire principal owing to the bank. Before the arrears were brought up to date, the bank reported their failure to pay the total amount due to a …

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Westpac v Tesoro [2012] VSC 182

The lender applied for summary judgment against the borrower, seeking possession and a sum of money. The loan and mortgage were Code regulated. The borrower argued that the default notice failed to comply with the Code. The borrower also sought to vary the terms of the loan and mortgage pursuant to section 74 of the …

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NAB v Menere [2010] NSWSC 381

The lender alleged the borrower defaulted under the mortgage and sought possession. The borrower filed a defence raising an estoppel argument which alleged that the loan was part of development finance arrangement (consisting of representations made by the bank) whereby the bank was to finance the construction of residential units and, in the meantime, allow …

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Perpetual v Treloar [2009] NSWSC 386

In this matter possession proceedings were defended on the basis on the s57(2)(b) notice had not been served. However the mortgage manager, Royal Guardian, kept computerised telephone records that proved the borrower had called and acknowledged receiving the notice.  Although a s57(2)(b) notice is not normally necessary to obtain possession it’s value as an acceleration …

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Perpetual Nominees v Aus Constructions [2005] NSWSC 1199

In this case a mortgage included a provision which made the lodging of a caveat over the security a breach of the loan. In the event of a default the mortgage had an acceleration clause. Both the borrower and the guarantors, in different cases, resisted the lender’s claim on the grounds that the caveats which …

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First Option Credit Union v Williams [2005] NSWSC 855

This was an application by the defendant to amend the defence and also to have the proceedings dismissed as frivolous or vexatious, or no reasonable cause of action was disclosed, or because the proceedings were an abuse of the process of the court: UCPR 13.4. The defendant was borrower, mortgagor and guarantor of a loan …

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