Set Off

George 218 v BOQ [2015] WASC 434

A borrower was lent money on the security of a mortgage and “all moneys” guarantees. The loan was refinanced but the guarantees continued for any future lending. The lender’s rights under the guarantees were transferred to BOQ and before BOQ lent money to the borrower to refinance its existing facilities, the borrower and BOQ entered …

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CBA v MLD Financial Services & Management [2015] NSWSC 1476

The bank sought possession. The borrower and guarantor alleged equitable set-off on the basis that the bank by its negligence had impaired the ability of the business to earn income to pay what was due under the loan and mortgage. They argued that two potential clients declined to proceed because letters sent by the bank …

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National Australia Bank v Sayed (No. 3) [2015] NSWSC 1473

The bank obtained a money judgment and possession. The borrowers failed to pay and sought a stay the day before the writ was due for execution until his cross-claim could be heard.The cross-claim concerns a damages claim for sale at what is said to be an under value of other property sold by the bank. …

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Perpetual Nominees v McGoldrick [2014] VSC 152

The lender sought summary judgment for the shortfall on its debt. The guarantors claimed negligence on the part of the administrators/liquidators appointed by the lender to handle the sale. The court did not agree with the lender that the no setoff clause in the guarantee provided a complete answer to guarantors’ claims. The court said: …

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O’Brien v Bank of WA [2013] NSWCA 71

The bank lent money to a company secured by guarantees. Both the loan and the guarantee contained suspension clauses, requiring full payment with no deduction or set-off. The loan became due, the borrowers did not pay and the bank applied for summary judgment. The guarantors filed defences and brought a cross-claim, which the bank argued …

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ANZ v RQA Accountants [2013] NSWSC 165

The lender sought summary judgment for possession against husband and wife accountants. The mortgages provided that the borrowers will pay without deduction, withholding for tax and without any set-off or counterclaim. The borrowers argued a fiduciary duty on the part of the bank, as long-standing customers, not to lend them money, or having done so, …

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Westpac Banking Corporation v Helicopters Brisbane [2012] QSC 263

The owner of ABC Learning guaranteed the repayment of a bank loan for a expensive camera for his helicopter. A bill of sale was granted over the camera. The loan went into default and the bank took possession of the camera and sold it at auction and sued the guarantor for the residual debt. The …

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