Power of Sale

AI Property Investments v National Funding Group [2014] VSC 315

The borrower defaulted and the lender took possession. However, it was then agreed by deed of settlement that the borrower would repay the loan by year end. The borrower did not repay and requested further time, the lender refused and sold the property to a third party. The borrower sought to restrain the sale and …

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Westpac v Robinson [2014] NSWSC 577

The bank claimed possession and the borrower raised a Contracts Review Act defence and claimed damages for unconscionable and misleading conduct by the bank. This case concerned a long term loan and two short term loans to be repaid from an inheritance and tax refund owed to the borrower. At around the time of the …

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Van der Kooij v Mystate Financial [2014] FCA 350

The borrower purported to discharge the mortgage by tendering a promissory note. The lender refused the tender and sold the security. The borrower sued alleging the lender should have accepted the promissory note and failed to obtain “the best price reasonably obtainable” when selling the property. Promissory note The court rejected the promissory note argument, …

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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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Westpac v Murray Riverside [2013] WASC 433

The lender sold the property for $13.5M. The borrower owed $25M. Prior to settlement the borrower lodged a caveat preventing settlement of the sale. The borrower held a valuation of the property at $47mill a year prior to the sale and thus claimed gross breach of the lenders duties noting that the property had not …

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CBA v ACES [2013] NSWSC 1184

The mortgagor defaulted and the bank sold the secured properties and sued for the balance outstanding. The mortgagor alleged a number of defences and claimed negligence and misleading and deceptive conduct on the part of the bank. The court rejected the negligence claim on the basis that the bank is not subject to a duty …

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