Registered Second Mortgages

Raging Thunder v BankWest [2012] QSC 329

Bank West advances $37M on dodgy presales and ‘suffers major losses’, but that was not the end of the woes…  This was a dispute between Bank West who held the first mortgage and the former owner of the property who provided vendor finance in return for a second mortgage.   The development was a failure and …

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Australian Regional Credit v Mula [2009] NSWSC 325

This case involved a forged mortgage. The owner of the mortgaged property discovered that his defacto son-in-law had mortgaged his house to secure several hire-purchase agreements. The hire-purchase agreements were for trucks and trailers for the defacto-son-in-law’s prime mover business. Claim by the lender for possession of the land The million dollar question was whether …

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Spendright v Classfact [2009] NSWSC 317

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 …

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GE Commercial Corporation (Aust) v Lehane [2008] NSWSC 963

In this case GE obtained an order for specific performance against the borrower (who was bankrupt) that the borrower execute a mortgage able to be registered as a second mortgage. The trustee in bankruptcy executed the mortgage but refused to have himself registered as the proprietor of the land. The Registrar General declined to register …

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Dean-Willcocks v Nothintoohard [2006] NSWCA 311

There was no element of unconscientiousness in the first mortgagee asserting its legal right, and in the circumstances no equitable lien arose. Equitable liens have been held to exist in a variety of circumstances to ensure that the costs of realisation are borne by the realised fund before any distribution to those otherwise entitled to …

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Circuit Finance v Castagnet Property Group [2006] NSWSC 553

Default judgement was entered and then a stay was sought. The parties then entered into consent orders providing for the lifting of the stay. These were held in escrow while the borrower’s attempted a refinance. The refinance fell over and the borrowers claim it was because the Lender scared away the incoming mortgagee by providing …

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Circuit Finance v Wills [2006] NSWSC 35

This case involved a priority dispute over surplus proceeds after the first mortgagee had been paid out and the balance deposited with the court. Both Circuit Finance and the Wills obtained a charge over the land in question by virtue of charging clauses. These are clauses which “charge as security for the debt all land …

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Bridgecorp Finance v Judith Comer [2005] NSWSC 225

This was an application for summary judgement brought by the lender as second registered mortgagee. Neither the cause of action nor the facts which supported it were fully set out in the judgement. It appears that it was an action for sale of the mortgaged property by the second registered mortgagee which was opposed by …

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