Equitable Mortgages

NAB v Clowes [2013] NSWCA 179

The bank took a mortgage over a company title unit. Usually a mortgage of company title is achieved by the borrower signing and depositing with the lender a transfer of shares. The security documents signed by the borrowers indicated that they would do this. However for reasons unknown the bank failed to obtain a signed …

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Barlin Investments v Westpac [2012] NSWSC 699

Westpac went to lodge their mortgage only to find that a caveat lodged after they settled blocked registration. The caveat protected a mortgage created before the Westpac mortgage was advanced. The court considered the rules applying to priority competition between equitable interests: To determine priority between competing equitable interests, where the merits are equal, the …

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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 …

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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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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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Danthanarayana v GR8 Constructions [2012] FCA 231

An owner charged his property with payments owed to his builder under a building contract. The contract was terminated owing to alleged defective work and the owner sued the builder for damages for the cost of remedying the defective work. The builder cross-claimed for what he was owed and lodged a caveat against the property. …

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St George Bank – A Division of Westpac Banking Corporation, In the matter of [2011] NSWSC 730

St George was mortgagee of two properties owned by the mortgagor. Only one loan was repaid but St George mistakenly gave a discharge on both mortgages. St George then provided a loan facility to the mortgagor which the mortgagor used to pay off the second loan in relation to Mosman property. A condition of the …

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