Injunction to Restrain Sale

Ciavarella v Hargraves Secured Investments [2015] NSWSC 865

The borrower sought a last minute injunction to restrain the mortgagee exercising its power of sale by auction. The court refused for the following reasons: The unexplained delay; The lack of evidence as to any refinance; The fact the borrowers had already breached a previous settlement agreement reached at a farm debt mediation by refusing …

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Pioneer Mortgage Services v Columbus Capital [2015] FCA 1067

A securitisation funder bought a loan book associated with mortgages originally funded by a bank and became subject to the bank’s obligations in its origination deeds. The originator’s employee stole money from borrowers by carrying out fraudulent redraws, which went undetected for 7 years because the originator had no system in place to cross-check redraws …

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Asset Core v Jarrett 1 Enterprises [2015] QSC 270

A borrower defaulted on both his mortgages. The second mortgagee obtained default judgment and the second mortgagee was in the process of obtaining default judgment. The owner entered into a contract of sale with a related party of the second mortgagee but failed to settle on the contract. The purchaser sought specific performance and the …

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Pearl Beach Property Administration v Wisewoulds Nominees [2014] VSC 113

The owner of property sought an injunction to restrain the lender in possession from auctioning the property on the day of the auction on the basis that he had a purchaser willing to pay an amount sufficient to discharge his secured debts. The owner claimed that there was a want of good faith or negligence …

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Perpetual Nominees v Salad Express [2013] NSWSC 1127

On the day of auction, the borrower asked the Court to delay because it had obtained refinance and argued that hardship would occur if the property were auctioned that day. This followed a string of earlier unsuccessful attempts by the borrower to refinance the loan.  The lender argued that the refinance offered was not unconditional …

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Hargraves Secured Investments v Sharpe [2013] NSWSC 1151

The borrower tried to get an injunction to stop the auction of the security properties on the basis that he had not been properly served. The borrower’s premises had two street addresses (there being two roads that bounded the property). Although the lender had always written to him at one address, it had served the …

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McMahon v Permanent Custodians [2013] NSWCA 201

The borrowers defaulted. The defaults were subject to the Farm Debt Mediation Act and there had been lengthy proceedings during which the borrowers agreed to consent orders giving possession to the lender. The borrower then attempted to set aside those consent orders on the basis that enforcement action had been prohibited because there was no …

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Bendigo and Adelaide Bank v Karamihos [2013] NSWCA 193

The borrower successfully defended the bank’s claim for possession on the basis of the Contracts Review Act. The bank was appealing the decision and asked the court to make an order that the borrowers could not sell, mortgage or otherwise deal with the property in the meantime. The bank argued that if the court did …

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