How can I have a mortgage discharged if the lender has been wound up?
Melbourne Property Law Blog
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5M ago
In an unusual case, the Supreme Court of Victoria was called upon to order the discharge of 2 mortgages in circumstances where one of the mortgagees had been liquidated, and subsequently deregistered. The other mortgagee had become a bank but did not have records dating back over 30 years ago.  Older readers will recall the demise of the Pyramid Building Society (and its related entities) in 1990. The group collapsed owing over $2 billion, a staggering sum at the time. The liquidation of the group took over 16 years to complete, with final dividend cheques being sent to its investors in 2 ..read more
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Are there any more recent cases about a mortgagee's duty of good faith in selling real estate?
Melbourne Property Law Blog
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5M ago
With interest rates continuing to rise in late 2023, it seems that we are likely to see more mortgagees taking steps to realise mortgaged property.  On 2 June 2021, I posted about a Queensland decision (HSBC Bank Australia Ltd v Wang & Ors [2021] QSC 58) rejecting criticism of a mortgagee's conduct of a sale during the pandemic (see: https://melbournepropertylaw.blogspot.com/2021/06/are-there-any-recent-cases-about.html).  On 17 January 2023, I posted about a Victorian Supreme Court decision (230V Harvest Home Road Pty Ltd v Joseph Salvo & Ors [2021] VSC 558)&n ..read more
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How does a party to a contract of sale of real estate in Victoria prove that they are ready, willing and able to perform the contract, in order to obtain an order for specific performance?
Melbourne Property Law Blog
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1y ago
On 15 March 2023, in Knight 34 Langdon Rd P/L and anor v Bell and others [2023] VSCA 54, the Court of Appeal of the Supreme Court of Victoria (Emerton P, WalkerJA and J Forrest AJA) considered an application by an unsuccessful defendant for leave to adduce further evidence.  The case concerned a dispute about a Contract for the Sale of a unit 'off the plan' in Toorak. The purchase price was $3,528,000 and a deposit of $350,000 had been paid. The purchasers had obtained an order from the Trial Judge that the vendor specifically perform the contract by settling the sale. The further ev ..read more
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Are there any recent cases about a mortgagee's duty under section 420A of the Corporations Act when exercising their power of sale during the pandemic?
Melbourne Property Law Blog
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1y ago
Readers will recall that I posted about a Queensland decision that dealt with a mortgagee exercising its power of sale during the pandemic (see here: https://melbournepropertylaw.blogspot.com/2021/06/are-there-any-recent-cases-about.html).  Yesterday, I posted about the Supreme Court of Victoria dealing with a similar scenario (see: https://melbournepropertylaw.blogspot.com/2023/01/are-there-any-recent-victorian-cases.html).  In Manda Capital Holdings Pty Ltd v PEC Portfolio Springvale Pty Ltd [2022] VSC 381, M Osborne J dealt with a dispute about whether the mort ..read more
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Are there any recent Victorian cases about a mortgagee's duty of good faith in selling in a pandemic?
Melbourne Property Law Blog
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1y ago
Further to my post (see: https://melbournepropertylaw.blogspot.com/2021/06/are-there-any-recent-cases-about.html) about a decision of the Supreme Court of Queensland about a mortgagee's duty of good faith in selling in a pandemic, the Supreme Court of Victoria has now had to deal with the same issue.  Matthews As J in 230V Harvest Home Road Pty Ltd v Joseph Salvo & Ors [2021] VSC 558 heard an application for summary judgment and concluded that the plaintiff had no real prospects of success on its statement of claim. As a result, summary judgment was granted in favour of the defen ..read more
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Can an Owners Corporation pass a rule that prevents a particular use of a lot in Victoria?
Melbourne Property Law Blog
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1y ago
It is relatively common for Owners Corporations to seek to restrict the use to which a lot in a building subject to a subdivision can be put.    Both the Supreme Court of Victoria and the Victorian Civil and Administrative Tribunal have found that an owners corporation rule seeking to prohibit a particular type of use of a lot is an invalid rule which is beyond the owners corporation’s rule making power provided for by the Owners Corporation Act 2006 (Vic) (Act). For example, in Lawandi v Owners Corporation 21842D (Owners Corporations) [2015] VCAT 1810 (20 October 201 ..read more
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Is it a good idea to use a template or precedent form of lease?
Melbourne Property Law Blog
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2y ago
The High Court decision in Gee Dee Nominees Pty Ltd v Ecosse Property Holdings Pty Ltd [2017] HCA 12; (1987) 261 CLR 544; 91 ALJR 486; 343 ALR 58 (29 March 2017) (Kiefel, Bell, Gageler and Gordon JJ with Nettle J dissenting) highlights the risks involved in poor drafting of legal documents and using template documents that are not suitable for the required purpose.  Here we have a transaction nominally within the jurisdiction of the Magistrates Court of Victoria that has had a Victorian Supreme Court trial, an appeal to the Court of Appeal of the Supreme Court of Victoria, an application ..read more
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Can parties to a mortgage agree to contract out of the statute of limitations?
Melbourne Property Law Blog
by
2y ago
1. In Price v Spoor, [2021] HCA 20, the High Court handed down a decision on 23 June 2021 about whether the parties to a mortgage could agree to contract out of the operation of the Queensland equivalent of the Limitation of Actions Act, 1958, and whether such an agreement was contrary to the public policy underpinning the Act. Background facts 2. On 2 July 1998, Law Partners Mortgages P/L loaned $320,000 to Alan Leslie Price, Allana Mercia Price, James Burns Price and Gladys Ethel Price.   3. To secure the loan, Alan Leslie Price and Allana Mercia Price mortgaged land that they owned at ..read more
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Who is responsible when external cladding fails in an apartment tower during a fire - Court of appeal?
Melbourne Property Law Blog
by
3y ago
Further to my post about the fall out from the Lacrosse Tower fire in VCAT (see:  https://melbournepropertylaw.blogspot.com/2020/01/who-is-responsible-when-external.html), the Court of Appeal recently handed down its decision on the appeal from VCAT.  In Tanah Merah Vic Pty Ltd v Owners' Corporation No 1 of PS631436T [2021] VSCA 72, Beach, Osborn JJA and Stynes AJA upheld most of the decision of Judge Woodward, sitting as a Vice President of VCAT.  The Court of Appeal has undertaken a very detailed analysis about the factual matrix and the obligations underta ..read more
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Are there any recent cases about a mortgagee's duty of good faith in selling secured property in pandemic times?
Melbourne Property Law Blog
by
3y ago
The Supreme Court of Queensland (Holmes CJ) has recently considered the duty of a mortgagee in selling a secured property in uncertain economic times (ie during a pandemic).  In HSBC Bank Australia Ltd v Wang & Ors [2021] QSC 58, the Court considered an application to remove a caveat lodged by the registered proprietors of a property on Hope Island on the Gold Coast in Queensland.  The caveator/registered proprietors had bought the property in 2009 for $9 million with loan funds ($4.5 million) obtained from the mortgagee, which were secured by a registered first mortgage. The mor ..read more
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