All Monies Clauses

Perpetual v Costa [2007] NSWSC 1093

In this case the lender relied upon a cheque direction signed by the originator, Streetwise Home and Equity Loans (run by fraudster Kovelan Bangaru), to pay the surplus proceeds of the loan to a third party Berkshire Enterprises (run by Bangaru). The borrowers admitted signing the mortgage and the deed of loan but denied they …

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Yazgi v Permanent Custodians [2007] NSWCA 240

This Court of Appeal decision removed any lingering uncertainty regarding the law on forged mortgages and so called all monies mortgages. All monies clauses are where the registered mortgage states that it secures all monies owed by the borrower to the lender. This then allows the active provisions (the term, the amount, the interest rate …

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Bakarich v CBA [2007] NSWCA 169

This case was a decision by the Court of Appeal in relation to a defence raised by mortgagor/guarantors under the Trade Practices Act, Contracts Review Act and Unconscionability. One significant pronouncement made in the course of the decision by Hodgson JA that has since been quoted was: I will focus on questions arising under the …

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Chandra v Perpetual Trustees Victoria [2007] NSWSC 694

In this case Interstar loaned $750,000 on a forged mortgage. The fraudster was apprehended and was sent to jail. The mortgage had been registered so Interstar should have been able to rely on the fact that under the Torrens system title is guaranteed by the state. However Interstar were using an all monies mortgage. This …

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Vista Capital v Hussain [2007] NSWSC 344

This case before Justice Studdert involved a very poorly drafted mortgage. It had no “all monies clause” but it also failed to specify the loan that it secured. The Court determined that the parties intended the loans to be secured by the mortgage because they referred to the security. Moreover because the loan and the …

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Printy v Provident Capital [2007] NSWSC 287

In this case the owner of the security travelled overseas while allowing friends to reside at the property during which time an unidentified fraudster obtained a new CT and entered into a series of mortgage dealings which then fell into default. The lender obtained default judgement for possession and sold the property. The former owner …

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Permanent Custodians v Yazgi [2007] NSWSC 279

In this case there was a mortgage and loan agreement provided by Permanent Custodian, signed by Mr and Mrs Yazgi as borrowers. The mortgage was registered. The Yazgis defaulted on payments. Mrs Yazgi claimed her husband had forged her signature on the mortgage and loan agreement and the court agreed. Nevertheless Associate Justice Harrison gave …

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