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
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Are there any more recent cases about a mortgagee's duty of good faith in selling real estate?
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…
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?
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…
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?
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…
Are there any recent Victorian cases about a mortgagee's duty of good faith in selling in a pandemic?
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…
Can an Owners Corporation pass a rule that prevents a particular use of a lot in Victoria?
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…
Are there any recent cases about Section 9AC of the Sale of Land Act and material changes to plans of subdivision before registration?
The property market for the sale of apartments in Victoria, Australia has become more challenging recently. Lockdowns and other restrictions resulting from COVID-19 such as density limits and mask wearing combined with absent foreign buyers, as well as general concern about the viability of some projects, caused banks to impose limits on off-the-plan lending. Further, stamp duty…
Is it a good idea to use a template or precedent form of lease?
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…
Can parties to a mortgage agree to contract out of the statute of limitations?
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…
Who is responsible when external cladding fails in an apartment tower during a fire – Court of appeal?
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…