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 …
Statewide Secured Investments v Hillington Valley [2015] NSWSC 681 Read More »
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 …
The lender sought summary judgment. The court noted that it is rare that summary judgment will be granted in a Contracts Review Act case but did so because the borrower failed to put forward any material supporting her case. The court also said: The type of evidence that could be put on to resist a …
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 …
The borrower raised a defence in respect of interest. However, had no defence to the lender’s claim for repayment of principal. The principal was greater than the value of the property. Accordingly, the judge held that as the property would need to be sold to satisfy the capital debt there was no point in staying …
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 lender sued for possession and the borrower denied signing the mortgage but did not give evidence. The lender was given possession and the borrower appealed. The Appeal Court noted that where fraud is alleged, it must usually be supported by an affidavit setting out details of the defence, which was not done when the …
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 …
Australian Executor Trustees v Prodap Services [2014] QCA 142 Read More »
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: …
The lender sought summary judgement for possession on the grounds the borrower’s defence was without substance. The court noted: The real issue is whether the defence has a real, not fanciful, prospect of success. The lender is required to demonstrate that the outcome of the litigation is so certain, that it would be an abuse …
