Contributory Negligence

Bakovski v Lenehan [2014] NSWSC 671

A couple with limited English mistakenly believed they were guarantors to a mortgage to enable someone they trusted, a developer, to borrow money. In actual fact they were the borrowers. This mistaken belief was orchestrated by the developer. The couple obtained legal advice signed an acknowledgement to that effect. The couple sued the solicitor for …

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Provident Capital v Papa [2013] NSWCA 156

The borrower lost her Contracts Review Act claim against the lender and the lender was awarded possession of her property. However, the borrower was successful in seeking damages for negligence from the solicitor who provided her with independent legal advice about the loan contract. The court had held that the solicitor had failed to draw …

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Provident Capital v Naumovski [2013] NSWSC 40

A husband and wife mortgaged their home for the benefit of their daughter and later refinanced these loans twice. The parents did not receive any of the loan monies and claimed they were the victims of their daughter’s fraud. The lender sued to enforce its mortgage and the borrowers brought a number of defences, including …

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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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Valcorp Australia v Angas Securities [2012] FCAFC 22

The lender advanced $2.3m on a first mortgage on the basis of a $3.6m valuation. The lender ultimately the security for $1.7m. The first, second and third mortgagees all sued the valuer. The trial judge found the valuer was found guilty of misleading and deceptive conduct and negligent. The valuer had negligently treated another property …

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Angas Securities v Valcorp Australia [2011] FCA 190

This is a case of a negligent valuation of a property provided as security for a loan, where there were three contributory lenders. The court held the valuation contravened s52 of the Trade Practices Act 1974 (Cth) and s56 of the Fair Trading Act 1987 (SA). This made it unnecessary to consider the claims in …

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