Mortgages as Unfair Preferences

Gordon v Leon Plant Hire [2015] NSWSC 397

The operators of a formwork business borrowed money through their company secured by a mortgage.  The ATO issued a winding up notice against the compnay and they quickly established another company to carry on their business.  They arranged for the mortgage payments to be made by the new company.  They subsequently then entered into a …

Gordon v Leon Plant Hire [2015] NSWSC 397 Read More »

Super Art Australia v Foden [2014] FCA 1168

In this case the court found that loan and mortgage entered into between a company (which later went into liquidation) and its director was an unreasonable director related transactions pursuant to section 588FDA of the Corporations Act. The director, who was also the company’s accountant, claimed that the loan and mortgage was to secure accountancy fees owed …

Super Art Australia v Foden [2014] FCA 1168 Read More »

Maxton & Maxton v Port Village Accommodation [2014] WASC 93

A caveator sought an extension of its caveat which was opposed by the registered mortgagee. The caveator argued the fraud exception to indefeasibility. The caveator sought to infer dishonesty from the fact that the borrower knew of the existence of the charge, yet proceeded to grant the mortgage to secure a debt in excess of …

Maxton & Maxton v Port Village Accommodation [2014] WASC 93 Read More »

Vasudevan v Becon Const [2014] VSCA 14

A company gave a mortgage to a creditor of one of its directors so that the creditor would not sue that director on its guarantee. Liquidators were appointed and the proceeds of the sale of the mortgaged property were held in trust. The creditor claimed the proceeds. The liquidators sought to have the mortgage declared …

Vasudevan v Becon Const [2014] VSCA 14 Read More »

Johnson v Leader Computers [2014] SASCFC 14

A husband transferred his half interest in a house to his wife. His company was placed into administration the next day. Two creditors of the company had personal guarantees from the husband and sought to void the transfer to the wife under section 86 of the Law of Property Act 1936 (SA) [equivalent to section …

Johnson v Leader Computers [2014] SASCFC 14 Read More »

Campbell Street Theatre (in liq) v Commercial Mortgage Trade [2012] NSWSC 669

The liquidators of the borrower sought a declaration that a loan and charge was an uncommercial transaction and insolvent transaction and therefore liable to be set aside under the Corporations Act. Was it uncommercial? The judge noted a transaction is uncommercial under s 588FB: A transaction is an uncommercial transaction if it may be expected …

Campbell Street Theatre (in liq) v Commercial Mortgage Trade [2012] NSWSC 669 Read More »

Gusdote v North Queensland Land Development [2012] FCA 759

In this case evidence was brought before the court indicating that land belonging to a company in liquidation was mortgaged for the benefit of third parties. At the behest of a creditor of the company, an additional and dedicated liquidator was appointed for the purpose of pursuing relief under s 588FF of the Corporations Act …

Gusdote v North Queensland Land Development [2012] FCA 759 Read More »

Frost v Sheahan [2012] FCAFC 46

A mortgagor, who later became bankrupt, allegedly granted a mortgage over his property to his solicitor, the consideration being the provision of legal work to the bankrupt. The alleged mortgage was rejected by the trial judge on the basis of the evidence before him and the fact that the bankrupt and his solicitor were found …

Frost v Sheahan [2012] FCAFC 46 Read More »

JTS Property & Investments v Sadri [2010] NSWSC 1384

The company took out a mortgage and paid $520,000 of the proceeds to the sole shareholder’s brother-in-law to settle a debt owed by the shareholder to his brother-in-law. The company’s liquidator sued to recover the money as an uncommercial transaction pursuant to s 588FB of the Corporations Act 2001 (Cth) which reads: A transaction is …

JTS Property & Investments v Sadri [2010] NSWSC 1384 Read More »

Scroll to Top