All Monies Clauses

ANZ Ltd v Kavia Holdings [2013] NSWSC 1532

The bank granted a mortgage to enable the purchase of a property. Some 19 years later, the bank by letter of offer made available a further $60m facility to the same mortgagor. The bank sought possession and the borrower argued that the all moneys mortgage did not secure the advances made pursuant to the letter …

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Ocvirk v Permanent Custodians [2013] NSWSC 1021

The parents allege the son and his wife forged their signatures on the mortgage. All monies mortgage The parents claim that the loan agreement is void and, because the mortgage secured amounts due under the loan agreement, the mortgage itself therefore secures nothing and it is liable to be set aside. This is the indefeasibility …

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Bank of Western Australia v Tannous [2012] NSWSC 559

A son allegedly forged his mother’s signature on mortgage given to Firstfolio. The Firstfolio mortgage was subsequently refinanced by a mortgage given to Bankwest. This time the mother’s signature was allegedly forged by the father. Bankwest claimed possession. The mother defended on the grounds of fraud and unjustness under the Contracts Review Act. Her circumstances …

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Xiao v Perpetual Trustees [2012] VSCA 85

A woman alleged that her signature had been forged on a mortgage and guarantee. She claimed that she was not aware of the loan and that she had been made a director and shareholder of the company without her knowledge. The woman had delayed proceedings for a myriad of reasons ranging from medical grounds, terminating …

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CBA v Hamilton [2012] NSWSC 242

This case involved sham contracts for inflated values designed to dupe the Commonwealth Bank. The wife’s signature was forged on the mortgage and loan. The court held that indefeasibility of the registered mortgage did not help the lender because it was an all monies mortgage. As an all monies mortgage it relied on the validity …

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Mitchell Morgan Nominees v Vella [2011] NSWCA 390

This Court of Appeal decision involved a forged mortgage. The lender’s solicitor chose to use an all monies mortgage which meant the mortgage was unenforceable. Had the solicitor used security documents which contained their vital covenants within the registered mortgage, then the mortgage would have been indefeasible and the mortgage would have been enforceable. The …

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ACN 075 911 410 v Almaty [2011] NSWSC 333

The owner of land granted a charge over it to secure brokerage. The broker sought an extension of its caveat which was opposed by the owner’s co-developer of the land.  The law is that the court must determine whether the caveator’s claim “has or may have substance” under section 74K of the Real Property Act …

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Capital Access Australia v Hraiki [2011] NSWSC 109

The funds were advanced to the nephew and used for his business. The borrowers claimed their signatures were forged by the nephew. However the nephew and the lender alleged that the borrowers had consented to the loan to the nephew. The mortgage was an all monies mortgage. Therefore, if the borrowers were not bound by …

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Perpetual Trustee v El-Bayeh [2010] NSWSC 1487

Half of the loan was used to discharge a previous mortgage and the other half was paid into an account in the borrower’s name. The borrower claimed his brother had engaged in fraud and taken the over borrowings. The brother claimed the property was held on trust for him and denied the fraud. The lender …

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