Charging Clauses

Yuan v Xie [2015] NSWSC 492

Two parties entered into an agreement written in Mandarin. Under the terms one loaned the other money on security of two properties. The Commonwealth Bank took possession of one of the properties, exercised its power of sale, and paid the surplus proceeds into Court. The lender under the Mandarin loan agreement made an application for …

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Sydney Markets Credit Services v Taylor (No. 2) [2015] NSWSC 499

Two brothers executed a business guarantee which contained the following charging clause: The Guarantors each hereby charges their respective interests in any land now or hereafter held by them for all monies guaranteed pursuant to this Deed. Some years later they purchased a property in their own name as trustees of their superannuation fund. Some …

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Leonard v Bristrol Custodians [2013] NSWSC 1734

A solicitor included the following general charging clause in his costs agreement: .. upon acceptance of our offer, you hereby charge in favour of us all your right, title and interest over your assets, land, realty or otherwise, and hereby authorise us to lodge a mortgage or caveat over those assets to secure payment of …

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Brava Trading v Leybourne Nominees [2012] QSC 328

A lender obtained a registered fixed and floating charge to secure monies lent. Another creditor then obtained default judgment and an enforcement warrant to empty the borrower’s bank account. The question for the court was whether the lender’s floating charge over the debt gave it priority to the moneys in the solicitor’s trust account over …

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Statewide Developments (in liq) v Azure Property [2012] NSWSC 616 08 June 2012

A property developer built 300 apartments and townhouses. It appointed a real estate agent to sell them. After a large number of the apartments were sold, the lender appointed a receiver. The receiver sought to complete the sales introduced by the real estate agent without paying commission. The real estate agent thwarted the settlements by …

Statewide Developments (in liq) v Azure Property [2012] NSWSC 616 08 June 2012 Read More »

Statewide Developments (in liq) v Azure Property [2012] NSWSC 616

A property developer built 300 apartments and townhouses. It appointed a real estate agent to sell them. After a large number of the apartments were sold, the lender appointed a receiver. The receiver sought to complete the sales introduced by the real estate agent without paying commission. The real estate agent thwarted the settlements by …

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GE Commercial v Bankrupt Estate of Lymn [2012] NSWSC 562

A guarantee signed by a party who was subsequently made bankrupt contained the following charging clause: The Guarantor will grant to GE a legal mortgage in registrable form (containing such terms and conditions as GE may require) of any land held by the guarantor now or in the future, which mortgage must secure the amount …

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Australian Property Custodian Holdings v Capital Finance Australia [2012] VSC 124

In this case the liquidators and the lender were fighting over the right to sue a third party. The liquidator argued that a charging clause the lender was relying on could not extend to a future right but this was rejected by the court: There is no reason why a charge (if its proper construction …

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Aged Care Services v Macedonian Aged Care [2012] NSWSC 531

This was a priority dispute. The sequence of event was: ANZ took a registered first mortgage; A creditor took a charge and lodged a caveat; A developer paid out the ANZ mortgage and a discharge was registered. The developer claimed he was subrogated (substituted) to the priority of the ANZ mortgage because he paid it …

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Oakland Property Holdings v Allfinance Funding [2012] NSWSC 335

Allco Managed Investments took a mortgage and a fixed and floating charge. The mortgaged property was sold for a shortfall so the lender then moved against five other properties owned by the borrower. The borrower argued that the fixed and floating charge was so drafted that it was limited to the mortgaged property. The letter …

Oakland Property Holdings v Allfinance Funding [2012] NSWSC 335 Read More »

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