Surplus of Sale Proceeds

CBA v Estate of the Late Mahmoud Slieman [2010] NSWSC 661

The borrower defaulted under the mortgage form the lender. The lender exercised its power of sale and sold two secured properties. The proceeds were paid into Court pursuant to the Trustee Act 1925 (NSW). The borrower was missing, presumed dead. The administrator of the borrower’s estate sought payment of the funds out of Court for …

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Performance Capital Mortgage v Motive Finance & Leasing [2010] NSWSC 429

The security property was sold by the first registered mortgagee. There was sufficient funds to pay out the 1st registered mortgage and the 2nd registered mortgages and to create a surplus which was paid into court pursuant to s 95 Trustee Act 1925. This case was a priority fight over who was entitled to that …

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La Trobe Capital & Mortgage Corporation [No 2] [2009] NSWSC 1372

This case involved a mortgage broker who was attempting to arrange a refinance. As part of his brokerage agreement he included a charging clause allowing him to place a caveat on the property and recover the fees from the property itself (a mortgage for securing his brokerage fees). The brokerage agreement provided that the fees …

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Guardian Loans v FTFS Holdings [2009] NSWSC 1163

This case involved a development site. Guardian Loans was the mezzanine funder (second mortgagee). Suncorp, the first mortgagee, took possession and wrote to them indicating that the property had been sold and there would be no surplus proceeds. The second mortgagee was asked to remove its caveat but refused, indicating it would only do so …

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Bofinger v Kingsway Group [2009] HCA 44

In this case the guarantors sold their house (which was mortgaged) and used the proceeds to pay down the first mortgage on the construction site. This meant that when the construction site was sold by the first mortgagee there was a surplus. The first mortgagee proposed to pay the surplus money to the second mortgagee. …

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