The lender sought summary judgment for the shortfall on its debt. The guarantors claimed negligence on the part of the administrators/liquidators appointed by the lender to handle the sale. The court did not agree with the lender that the no setoff clause in the guarantee provided a complete answer to guarantors’ claims. The court said: …
Guarantors claimed the Bank was not entitled to appoint an administrator to the borrower and that the appointment, caused the company to cease trading. That resulted in the destruction of all of the value in the company. Consequently, the value of their shares was destroyed. In compensation they sought a reduction in the amount of …
The administrator lodged a caveat for his fees. The lender wanted it removed so he could sell the property. The lender offered the administrator $20,000 to go away but it was refused. The law is that the caveator bears the onus of showing that it has a seriously arguable case for final relief, and, that …
Taylor Property Group v Permanent Trustee Australia [2011] NSWSC 318 Read More »
The borrowers sued the lender for misleading and deceptive conduct. During the course of the proceedings the lender appointed an administrator to the borrowers following default under a charge. The borrowers sought to have the administrator restrained from taking further action until the outcome of the proceedings. Justice Barrett noted that the primary proceedings were …
N A Investments Holdings v Jonvana Enterprises [2011] NSWSC 125 Read More »
A debt factoring company took a mortgage over land as security for amounts it advanced to the merchant. The facility went into default and a receiver (appointed by the debt factorer moved to sell mortgaged land). The sale was called off when an amount was paid to the debt factorer which the borrower claimed was …
In late 2006 the Bank of Western Australia (the Bank) loaned over $32 million to Noble Growth Investment Limited to purchase the Fairmont resort in Leura. The loan was secured by a mortgage over the resort and a fixed and floating charge. In April 2009 Channel 9 program, A Current Affair, ran two “very critical” …
In this case the security property was encumbered by a first and second registered mortgage. The mortgagor was placed into administration and the administrator sold the property for a figure apparently above its market value. The administrator obtained consent from the first mortgagee, ING, for the sale but not the second mortgagee. In earlier proceedings …
This case involved a priority dispute between a voluntary administrator of the borrower and the lender pursuant to a registered mortgage. The administrator sought a declaration that it had a lien which ranked ahead of the registered mortgage. The court noted that an administrator undoubtedly had a statutory lien pursuant to s.443F of the Corporations …
Hamilton v Donovan Oates Hannaford [2007] NSWSC 10 Read More »
There was no element of unconscientiousness in the first mortgagee asserting its legal right, and in the circumstances no equitable lien arose. Equitable liens have been held to exist in a variety of circumstances to ensure that the costs of realisation are borne by the realised fund before any distribution to those otherwise entitled to …
