Cases - Security Interests Flashcards
Italia Holdings
Underlying credit contracts
- Not oppressive term as borrower was a sophisticted commercial party
Greenbank v Haas
Underlying credit contracts
- Key question is contravention of reasonable standards of business practice
Raptorial Holdings
Underlying credit contracts
- Holistic inquiry
Taylor v Westpac
Underlying credit contracts
- Need more than unfairness
GE Custodian
Underlying credit contracts
- Oppressiveness is an objective test
ANZ Banking Group v Gibson
Mortgages
- 2 hours is enough to expect repayment for an on-demand loan
Duncan v Macdonald
Indefeasibility
- Borrows not personally liable as fraudster signed the loan
Westpac v Clarke
Indefeasibility
- Unable to claim against true RO as was fraud and not registered
Peace v Morris
Indefeasibility
- Future purchaser could buy the mortgage
- Deducted from settlement price
Tart v Tarn
Indefeasibility
- Fixed term tenant can buy mortgage
Coltart v Lepionka
Indefeasibility
- Holder of right to purchase could buy mortgage
Remedies for mortgagee
- Good faith duty when seeking remedies
Kreglinger v New Patagonia Meat
Clogs test:
1. Clause is unconscionable or oppressive
2. Clause is penal
3. Clause is repugnant and prevents rights to redeem!
Noakes v Rice
Clogs
Facts:
- Tenant signed clause to not sell any other liquor for term of lease
Held:
- This was a clog and only lasted term of the mortgage
Bradley v Carrit
Clogs
- Mortgage on condition to use voting power for shareholders benefit
Held:
- This was a clog and only lasted until mortgage repaid
Reeve v Lisle
Clogs
Facts:
- Mortgage
- 2 years later, Option agreement referring to Mortgage
Held:
- Not a clog, security was secondary to the agreement
Lewis v Frank Love
Clogs
Even when there are formally multiple transactions, they can be viewed as one
Lockwood buildings
Remedies for mortgagee
When MOR does not want to sue in trespass, the MEE may do this provided they have possession before suing
JS Brooksbank & Co v EXFTX
PPSA
- Mistaken delivery of wool
- Must look at the transaction in substance
King Robb Sleepyhead Manufacturing v Dunphy and Shepard
PPSA Attachment
- D&S were not third parties so could have SI enforced against them
New Zealand Bloodstock v Walker and Agnew
PPSA Attachment
- Perfected SI takes priority
Graham and Gibson v Portacom
PPSA Attachment
- Lease for more than a year create sufficient rights for SI to attach
Partners Finance and Lease v Richmond
PPSA Enforcing
- Bulldozer was classified as other not serial number good/motor vehicle = seriously misleading
Grey v Royal Bank of Canada
PPSA Enforcing
- Mere possession is enough for rights in
- SI could not be enforced against true owner but only third parties
Gibson v Stockco
PPSA
- Whether sale authorised by SP is a question of fact
- It is the ordinary course of business for that specific sellor that counts, not for the type of business generally
Orix v Milne
PPSA
- Two step test:
1. What is ordinary course of business?
2. Is it within this ordinary course of business?
Alberta Pacific Leasing v Petro
PPSA
- Even though highly irregular, was still within ordinary course of business
Estevan credit union v Dyer
PPSA
- Outside normal course of business
- Sold half of the stock to a friend who knew about financial troubles
Saskatchewan v Pettyjohn
PPSA
- Proceeds can go past overdrawn bank accounts if there is a close and substantial link between the old and new thing
- Canadian case
