Summary Judgment

Statewide Secured Investments v Hillington Valley [2015] NSWSC 681

A lender and borrower agreed to settle possession proceedings on the basis that the secured properties would be sold in an orderly fashion and the proceeds applied as between two loans in a sequential fashion. However the lender applied the proceeds in a different order and then sought summary judgment for the amount outstanding. The …

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HSBC v Mavaddat [2015] WASC 153

The mortgage over the family home secured the home loan and a business loan. The wife raised the wife’s equity defence. She was found to have no possibility of success in relation to the home loan (but did have an arguable defence in relation to the business loan). The bank then argued possession should be given so that …

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CBA v SA Lending Centre [2014] SASC 178

The borrower claimed he intended to sell an exisiting property to fund the purchase and development of an additional property. However, the bank’s loan officer advised him: the lender would be in a position to fund both the acquisition and redevelopment of the additional property and the construction planned for an exisiting security. the facility …

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Bank of Queensland v Fitzgerald [2014] NSWSC 1599

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 …

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Australian Executor Trustees v Prodap Services [2014] QCA 142

This case concerned a loan secured by mortgages and a guarantee which went into default. The borrower argued that the loan provision, which permitted interest rate changes by the lender without the borrower’s consent was void. The lender sought summary judgment. The lender argued that a term could be implied that interest rates were to be fair …

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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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