Surplus of Sale Proceeds

Bendigo and Adelaide Bank v Gorczynski [2015] NSWSC 1345

The bank obtained an order to pay surplus funds into court and unilaterally determined to pay a smaller sum into court on the basis that it was entitled to deduct enforcement costs. The court found that the bank ought to have re-listed the proceedings to vary the order rather than deducting funds from the sum …

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Yuan v Xie [2015] NSWSC 492

Two parties entered into an agreement written in Mandarin. Under the terms one loaned the other money on security of two properties. The Commonwealth Bank took possession of one of the properties, exercised its power of sale, and paid the surplus proceeds into Court. The lender under the Mandarin loan agreement made an application for …

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Muir v Mid Murray Fire Protection [2014] VSC 547

A company in the business of fire protection owned the family home. It borrowed from the bank secured by a mortgage over the family home. The husband/father was the sole director and shareholder of the company and had also given a personal guarantee. The business suffered burnout and the company had to be wound-up. The …

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Westpac v Morris [2014] NSWSC 332

A husband and wife divorced and the husband’s family members joined the family court proceedings because there was a dispute about whether certain assets were assets of the marriage or of other family members. The wife obtained costs orders against her husband, his parents and the family company in the family court proceedings. Separately the …

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Bechara v Bechara [2014] NSWSC 25

The sister of the husband in divorce proceedings advanced money to him to pay his lawyers on the basis of an equitable mortgage over his half of the matrimonial home. The sister then sought an injunction restraining the first registered mortgagee from paying out the surplus proceeds to the husband. The sister was not a …

Bechara v Bechara [2014] NSWSC 25 Read More »

The application of Permanent Custodians [2013] NSWSC 1030

The Court was dealing with surplus funds paid into court after the sale of a property by the lender. The lender had repaid its debt and costs, and the surplus funds were given to the Court to divide amongst other parties with a beneficial interest in the fund paid into Court. The three relevant parties …

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Pepper Finance Corp v Maloney [2013] NSWSC 890

The lender sold the security property and paid the surplus into court. There were four competing claims for the surplus: The husband; The wife; The husband’s mother; The ex partner of the husband. The husband claimed his half of the surplus. His mother also claimed the surplus, on the basis that her son had borrowed …

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In the matter of Concrete Injector Bolts [2012] NSWSC 820

The bank enforced its mortgage against a company and the surplus proceeds were paid into court. The company then sought payment of the surplus out of court. To establish pay out, three elements must be proved: the registered proprietor must be properly indentified; the claimant must have a proprietary interest in the fund; other potential …

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Gazzana v Nadalan Enterprises [2012] NSWSC 676

The lender sold the property and paid the surplus proceeds into court. Two brothers applied for half each of the proceeds, being tenants in common in equal shares of the property. However a creditor of their deregistered company claimed an equitable charge over part of the proceeds of sale. The charge secured a guarantee the …

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Residential Housing Corporation v Esber [2011] NSWCA 25

The owners of two units granted a 1st registered mortgage, a 2nd registered mortgage and a 3rd unregistered mortgage. The first mortgagee sold the units, and released the balance to the 2nd mortgagee, who discharged the 2nd mortgage and held the surplus proceeds. A dispute arose between the owners and the 3rd mortgagee as to …

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