Equitable Mortgages

FTFS Holdings v Business Acquisitions Australia [2006] NSWSC 846

In this case a broker’s mandate (commission agreement) contained a charging clause purporting to charge the land for payment of the unpaid brokerage. The broker lodged a caveat and the borrower attempted to remove the caveat. The caveat did not specify the amount that was owing under the charge however Palmer J held: It seems …

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Hypec Electronics v Registrar-General [2005] NSWSC 1213

The plaintiff sought an order pursuant to s 96 of the Conveyancing Act 1919 to allow a property to be transferred. Section 96 had, up until this case was decided, been used by unregistered second mortgagees to force the production of the certificate of title by registered first mortgagees to allow the registration of the …

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Brasher v O’Hehir [2005] NSWSC 1194

This was a case in which the parents of a couple, the O’Hehirs, made two separate payments to their children during the marriage. After the marriage disintegrated the parents, the Brasher’s, sought to recover the payments made as loans. In this rather unique family arrangement, Mr Brasher was the father of Mrs O’Hehir and Mrs …

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GE Capital Finance v Sunset Investments [2005] NSWSC 1205

The lender and borrower entered into mortgage which was never registered. Then a settlement was reached whereby the lender executed a deed of release. Subsequently the lender incurred significant costs complying with a subpoena by ASIC. To secure these costs the lender placed a caveat over the old security which the borrower sought to lapse. …

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King Investment Solutions v Hussain [2005] NSWSC 1076

This was an appeal by the Hussains from an order made by an Associate Justice for sale of the land subject to the lender’s second mortgage. The Hussains granted a second mortgage to the plaintiff to secure a loan of $95,000 for a period of two months. Interest was payable at $118.8% per annum, reducing …

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Pacific Premium Funding v Sierra Holdings [2004] NSWSC 713

The Plaintiff (Pacific) was owed money by a company associated with Mr David Fairfull (IOF). Pacific had served a statutory demand on that company and was in a position to wind it up. Mr Fairfull did not want that to happen. He negotiated an agreement with Pacific that, in exchange for security to be given …

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McCormack v Graham [2004] NSWSC 707

The first defendant, Christine Graham, and the second defendant, Bruce Graham, her husband, purchased a house in Narrabeen in 1975 for $35,000. They paid a deposit of $16,000 and raised the balance by mortgage. The $16,000 was provided by the plaintiff, the first defendant’s mother, Beryl McCormack. The house was registered in the names of …

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Porter v Computer Based Technology [2004] NSWSC 476

This was a case concerning whether a valid equitable mortgage had been created; and an analysis of whether the conduct of the secured creditor’s conduct was such that he could be found to have surrendered his security.Mr Porter, the liquidator of Imperial Plantations Pty Ltd (“Plantations”) sought a declaration that an unregistered mortgage over an …

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Pelenoy v Donovan Oates Hannaford Mortgage Corp [2004] NSWSC 4

These proceedings concerned competing claims to a sum of $385k paid into court by the first defendant. Those moneys were the balance of the proceeds of the sale of a property effected by the first defendant as lender. The property was held under the provisions of the Real Property Act 1900. The first defendant held …

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