Equitable Mortgages

Mueller v Que Capital [2015] WASCA 155

A lender took an unregistered second mortgage over 3 properties of the borrower and the borrower defaulted on his loan. The lender then purported to assign the debt to a second lender but overlooked this when he refinanced that loan to the borrower to aid a refinance. The borrower defaulted on the second loan and …

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Application by Westpac – Charara v Konneh [2015] NSWSC 1084

The bank paid surplus funds following the sale of mortgaged property into court and three competing claims were made on the fund – two alleged debtors and the owner of the property, now bankrupt. Each debtor disputed the other’s debt and priority. The first in time claim arose from the owner personally guaranteeing his company’s …

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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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Cheetham v 805 Archer Road [2015] VSC 96

A joint venture partner lent $200,000 secured by a mortgage. The mortgage was never executed or registered and when the borrower went into liquidation, the liquidators tried to claim that the joint venture partner had lost his security either as a result of voting in favour of the deed of company arrangement or because he …

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Champion Homes Sales v JKAM Investments [2014] NSWSC 952

Three different parties claimed competing equitable interests in land, namely a builder, a lender and a purchaser, which arose in that order and all three lodged caveats but in the order of the lender, the purchaser and the builder. All three sought declarations as to validity and primacy of their interests. The registered mortgagee obtained …

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Bechara v Bechara [2014] NSWSC 25

The sister of the husband in divorce proceedings advanced money to him to pay his lawyers on the basis of an equitable mortgage over his half of the matrimonial home. The sister then sought an injunction restraining the first registered mortgagee from paying out the surplus proceeds to the husband. The sister was not a …

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