The case has been the subject of an earlier case note, where it was held that the wife’s signature was forged and while the fraud could not be sheeted home to the lender, the covenant to pay in the loan was not incorporated into the mortgage and so the mortgage secured nothing. The matter before …
The lender obtained possession and the borrower attempted to stay it on the basis of an appeal. The court refused because the bulk of the debt was used to refinance an earlier mortgage and no offer to pay such amount had been given, leaving aside the appeal prospects. Click here to read the full judgment.
A husband and wife mortgaged their pizza shop (registered) and home (unregistered) to secure a short term loan with interest at 8% per month (96% per annum) which they defaulted on. The lender obtained judgment against the husband but the wife claimed that her signature was forged. The court believed the wife that her signatures …
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 …
The borrower raised a Contract’s Review Act arguing the lender engaged in “asset lending”. The Bank conceded that this gave rise to a triable issue. However notwithstanding that triable issue, the bank argued it had an alternative basis for obtaining summary judgment, namely subrogation. This argument was, “even if the loan was unjust, you must …
Bank of Queensland v Fitzgerald [2014] NSWSC 1599 Read More »
The borrowers raised an unjustness defence. In response the lender sought to amend his claim to add a claim for subrogation to the rights of the prior mortgagee and an alternative claim as an equitable mortgagee by reason of the payout of the previous mortgage. The court permitted the additional claims for the following reasons: …
A loan went into default. The borrower and lender entered into a settlement agreement pursuant to which the borrower paid a substantial amount in exchange for discharges of mortgage. The guarantor later paid a large sum to reduce the balance of the debt. The guarantor did not know the mortgages had been discharged. The guarantor …
This case concerned a priority dispute between an unpaid supplier to the owner of land and a subsequent joint venturer with the owner to develop certain land for the building of a retirement village. The owner acknowledged the supplier’s debt and agreed that the supplier would be entitled to lodge caveats over the property until …
Aged Care Services v Kanning Services [2013] NSWCA 393 Read More »
The bank sought judgment for possession and the amount outstanding under its loan. The loan monies were secured by a mortgage and refinanced a previous loan. The borrower claimed the loan and mortgage were unjust and unconscionable under the Contracts Review Act and the general law. The bank claimed it was subrogated to the rights …
The parents allege the son and his wife forged their signatures on the mortgage. All monies mortgage The parents claim that the loan agreement is void and, because the mortgage secured amounts due under the loan agreement, the mortgage itself therefore secures nothing and it is liable to be set aside. This is the indefeasibility …
