A mortgagor sold his property to a purchaser and then went bankrupt. The purchaser sought an order specific performance of its contract and an order for judicial sale, which would have the effect of leaving a shortfall to the mortgagee. The law is that a court in exceptional circumstances can order judicial sale over the …
Koovousis v Tony trustee in bankruptcy of the Estate of Vrkic [2014] NSWSC 218 Read More »
This case concerned an equitable mortgage which provided for an exceptionally high interest rate of 130% p/a but somewhat surprisingly the borrowers failed to plead that this rate was unconscionable in their defence. Instead the husband pleaded a defence of non est factum and the wife filed no defence. There was no evidence of the …
A former trustee transferred trust property, in respect of which its creditor had lodged a writ to secure a judgment debt, to a new trustee. Before the transfer took place, the writ lapsed and the new trustee became the registered proprietor of the property. The new trustee then sought to remove the notation on the …
The borrower needed the loan to buy her mothers home. The loan and mortgage along with the transfer were all executed and the money advanced and paid to the borrower’s mother and the bank received the certificate of title. Unfortunately, before the Bank registered the transfer, together with the certificate of title and the mortgage …
In this case the CBA had a first mortgage and the NAB had a fixed and floating charge. The administrators of the borrower sought orders for judicial sale and the NAB cross claimed seeking orders for judicial sale outside of court. The evidence showed that there would be very little money after the CBA was …
Chateau a builder, is in dispute with the Zepinics, the owners of residential property. The building contract contains the equitable charge to secure the obligations Zepinic owed to Chateau. The charging clause contains a protective mechanism whereby the charge only arises in respect of moneys payable under the building contract “to the extent a court …
Chateau Constructions v Zepinic [2010] NSWSC 265 Read More »
In this case the borrowers went bankrupt and the trustee in bankruptcy executed a disclaimer of the bankrupts’ property in their land pursuant to s 133 of the Bankruptcy Act. The Registrar-General considered that the land escheated to the Crown and recorded the State of New South Wales as proprietor in borrower’s place. The question …
In this case the security property was encumbered by a first and second registered mortgage. The mortgagor was placed into administration and the administrator sold the property for a figure apparently above its market value. The administrator obtained consent from the first mortgagee, ING, for the sale but not the second mortgagee. In earlier proceedings …
In this matter a second ranking unregistered mortgagee sought judicial sale orders in circumstances where there was a power of attorney and contractual power of sale. His Honour Justice Brereton carefully reviewed the law in relation to making judicial sale orders and found that he had the power to order a sale in relation to …
In this matter the Lender sought orders for judicial sale and the third party mortgagor sought to resist on the basis of non-service of s57(2)(b) notice. The court held where judicial sale is sought a s57(2)(b) notice is not needed. The mortgagor who had difficulty with English also raised a Contracts review Act / unconscionability …
Across Australia Finance v Bassenger [2008] NSWSC 799 Read More »
