• Created by: Edward
  • Created on: 29-02-16 11:40
First National Bank v Thompson (1996)
The mortgages of a beneficial interest under a trust of land is thus an equitable mortgage
1 of 47
Dutton v Davies (2006)
The agreement was in SUBSTANCE a mortgage transaction
2 of 47
Jones v Morgan (2001)
An option to purchase contained in a ortgage deed is void even if it relates t part only of the mortgaged land
3 of 47
Samuel v Jarrah Timber (1904)
An option to purchase contradicts the equitable right to redeem
4 of 47
Reeve v Lisel (1902)
If an option to purchase is granted by the borrower in a separate and independent transaction, it can be upheld
5 of 47
Fairclough v Swan Brewery (1912)
A provision postponing the date of redemption may be valid provided that it does not make the equitable right to redeem void
6 of 47
Knightsbridge Estates v Byrne (1939)
Clause postponing redemption of mortgage re freehold estate for 40 years was valid – sig that parties were large commercial enterprises that had entered into mutually enforceable agreement after being professionally advised
7 of 47
Bradley v Carritt (1903)
General rule= any collateral adv must cease when the mortgage is redeemed
8 of 47
Kreglinger v New Patagonia Meat (1914)
HL upheld mortgage term preventing mortgagor from selling to anyone other than mortgagee for 5 yr period – although the mortgage was paid off in 3 years, the collateral adv was viewed as a distinct and ind agreement and thus was capable of continuing
9 of 47
Noakes v Rice (1902)
Collateral adv was void because it was oppressive as it was to continue after redemption of the mortgage
10 of 47
Biggs v Hoddinott (1898)
Collateral adv was upheld as it was reasonable and fair
11 of 47
Cityland Holdings v Dabrah (1968)
A provn which entailed that the int rate was to rise to 57% on any default in repayment was regarded as an unconscionable collateral adv and held to be void
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Esso Petroleum v Harper’s Garage (1968)
Agreement which tied borrower to selling only products of lender (a solus agreement) for period of 21 years was invalid (long period) – whereas tie in period for 5yrs was upheld
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Ropaigealach (1999)
A court order for possn is not ne if the premises are unoccupied or the borrower has left willingly
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RBS v Miller (2001)
The time for determining whether there is a dwelling house on the landis when possn is sought and not the time the mortgage was granted
15 of 47
Four Maids v Dudley Marshall (1957)
Mortgagor’s right to take possn arises automatically at common law and is exercisable even if the mortgagor is not in default
16 of 47
Bristol & West v Bartlett (2003)
Rights and remedies of the mortgage lender are in general cumulative – e.g. if sale realises less than the mortgage debt, then the mortgagee may sue on the personal covt
17 of 47
White v City of London Brewery (1889)
If the mortgagee leases the prop, the lender must get the best possible rent
18 of 47
State Bank of New South Wales v Harrison (200)
If there is no likelihood that mortgagor will be able to pay any sums due in reasonable time, then there is NO jurisdiction to stay the execution of a warrant for possn
19 of 47
Norgan (1996)
Lender’s position was secure thus court was generous; guidleines re s 36: reasonable time = remaining years on mortgage; borrower burden to convince court that they can repay arrears and meet future payments; no 2nd chance
20 of 47
Realkredit v Brookfield (2000)
Norgan did not apply here as the lender’s interests were in real jeopardy
21 of 47
Ropaigealach (1999)
Mortgagor does not have power to sell under s 101 if excluded in the mortgage deed – although this is rare
22 of 47
Swift 1st v Collin (2011)
An equitable mortgage made by deed falls within scope of s 101
23 of 47
Michael v Miller (2004)
Reasonably obtained price means ‘proper price’ and ‘the true market value of the mortgaged’
24 of 47
Cuckmere Brick v Mutual Finance (1971)
The lender’s oblign is to obtain the best price reasonably obtainable for the property in the condition it is when sold
25 of 47
Nash v Eads (1880)
The lender is not a trustee of the power of sale
26 of 47
China v Tan (1990)
There is no duty to sell as quickly as possible
27 of 47
Silven Props v RBS (2003)
The lender need not delay sale until planning permission is obtained or leases granted in order to obtain a better price
28 of 47
Kennedy v De Trafford (1897)
The lender must act in good faith
29 of 47
Farrars v Farrars (1888)
The lender cannot sell the prop to itself
30 of 47
Tse Kwong Lam (1983)
The lender cannot sell to a family member of a business associate
31 of 47
Palk (1993)
A lender cannot sell it quickly at a knock down price
32 of 47
Cuckmere Brick (1971)
If the sale is achieved at an undervalue, the court will interfere only when there is fraud, neg or bad faith on lender’s part
33 of 47
Mercantile Credit (1997)
A borrower can specifically agree to a sale at a lower price, and if so, will be estopped from asserting a claim against the lender
34 of 47
Tse Kwong Lam (1983)
The mortgagee must make an informed judgment in exercising the power of sale and this will involve the taking of advice from a qualified agent
35 of 47
Michael v Miller (2004)
In calculating the market value the court will adopt a ‘bracket concept’
36 of 47
Silven Props v RBS (2004)
The mortgagee need not advertise the prop or attempt to sell it otherwise than by auction
37 of 47
Downsview v First City (1993)
The mortgagee can choose when to sell and does not have to wait for an increase in prop values before doing so
38 of 47
Bishop v Blake (2006)
The lender must expose the prop to the market to obtain the best price, which means that there has to be some element of competitive bidding
39 of 47
Palk (1993)
Court is reluctant to order foreclosure, and wil almost inevitably grant sale instead
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Twentieth Century Banking (1977)
Judidical sale may be used by the court as alt to foreclosure
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Polonski v Lloyds Bank (1993)
In exercising its discretion to order a sale, the court is NOT limited to considering financial matters, but can also take into account social considerations, e.g. reasons why the borrower seeks to sell
42 of 47
Toor v State Bank of India (2010)
Court will not exercise sale where to do so would cause manifest unfairness to the lender
43 of 47
Sliven Props v RBS (2003)
The mortgagor does NOT appoint the receiver, cannot give him instructinos and cannot sack him
44 of 47
Medforth v Blake (199)
Where a receiver manages prop, his duty to the mortgagor and anyone else interested in the equity of redemption was NOT necessarily confined to a duty of good faith
45 of 47
Wilkinson v west Bromwich (2004)
Re right to sue on personal cov’t to pay, the limitation period begins to run from date of the lender’s initial written demand for the arrears
46 of 47
Ashley Guarantee v Zacaria (1993)
The equitable mortgagee has NO right at law to possn because he holds NO legal estate
47 of 47

Other cards in this set

Card 2


The agreement was in SUBSTANCE a mortgage transaction


Dutton v Davies (2006)

Card 3


An option to purchase contained in a ortgage deed is void even if it relates t part only of the mortgaged land


Preview of the back of card 3

Card 4


An option to purchase contradicts the equitable right to redeem


Preview of the back of card 4

Card 5


If an option to purchase is granted by the borrower in a separate and independent transaction, it can be upheld


Preview of the back of card 5
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