Transfer of Mortgage

Geitonia v Westpac [2015] NSWSC 419

The second mortgagee wanted to force the first mortgagee to transfer its mortgage to the second mortgagee.  The second mortgagee sought to invoke of s 94(1) of the Conveyancing Act 1919 (NSW) which provides: Where a mortgagor is entitled to redeem the mortgagor shall by virtue of this Act have power to require the mortgagee instead of …

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Paino v MDN Mortgages [2009] NSWSC 898

In this case the borrower alleged that she took out a mortgage in order to pay for her mother’s medical costs. She then refinanced six times, each time to avoid enforcement by the outgoing lender. The music stopped with a loan from MDN Mortgages. Unable to refinance the borrower filed the customary Contracts Review Act …

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Queensland Premier Mines v French [2007] HCA 53

On 15 November 2007 the High Court, in Queensland Premier Mines Pty Ltd v French [2007] HCA 53, held that a registered transfer under Torrens System legislation did not operate to transfer anything more than the rights expressly set out in the mortgage. Where the mortgage secures obligations under extraneous documents (such as a deed …

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Aymban v Grove Park [2007] NSWSC 1089

In this case the lender held a second mortgage. When the mortgage went into default the director of the borrowing company, Mr Comer, procured a transfer of the first mortgage to himself. He then sold the property (pursuant to a power of sale) to his son. The lender sought a freezing order against the Mr …

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Starceavich v Swart [2006] NSWSC 960

Swart advanced sum of $45,000 to Starceavich on an unregistered mortgage. After Starceavich defaulted Swart seized possession and tried to sell. Starceavich sought an order that Swart return possession pending a decision on a defence raised under the Contracts Review Act and on the basis of unconscionable dealing. The court considered whether or not Swart …

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Graham v Aluma-Lite Products [2006] NSWSC 476

The borrower successfully defeated possession proceedings in the Appeal Court on the grounds that they were brought without a notice pursuant to the s 7 Credit (Home Finance Contracts) Act 1984 first being served one month prior to the institution of the proceedings. This was the lender’s second attempt to eject the borrower brought by …

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