Certificate clause

ANZ v Fink [2015] NSWSC 506

This case involved a businessman’s dream home that went pear-shaped due to cost overruns. When the bank sought possession the borrower sought to blame the bank. Improvidence / Non-English speaking The borrower argued the bank should never have made the loan as it was improvident and they were vulnerable people:  There was no reason for …

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Perpetual Trustee v CTC [2015] NSWSC 131

This has been a long running saga. The registered proprietor’s brother forged the mortgage. When the registered proprietor raised the forgery as a defence, the lender cross-claimed against the mortgage orginator, claiming under the indemnity in the mortgage origination deed. The lender’s claim failed against the mortgage originator due to a lack of evidence and …

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Bank of Queensland v Fitzgerald [2014] NSWSC 1599

The borrower raised a Contract’s Review Act arguing the lender engaged in “asset lending”.  The Bank conceded that this gave rise to a triable issue. However notwithstanding that triable issue, the bank argued it had an alternative basis for obtaining summary judgment, namely subrogation. This argument was, “even if the loan was unjust, you must …

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