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AA PROP 203 > security - 1+2 > Flashcards

security - 1+2 Flashcards

1
Q

what is security

A

security is a property right over another asset to protect creditors

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2
Q

mortagee

A

lender

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3
Q

mortgagor

A

borrower

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4
Q

security interest

A

claim interest in personal property that can be used as collateral

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5
Q

what is an example of security interest

A
  • loan for car
  • if mor doesn’t pay back they can take possession of car
  • sell to get back what they owed
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6
Q

s5 LTA

A

mtg creates interest in the land

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7
Q

explain s5 LTA

A

interest can secure not only payment but also the performance of obliagations e.g. contractual

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8
Q

registered mtg

A

under the Alta, priority and legal protection under the system of land title reg

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9
Q

unregistered mtg

A

still creates equitable mtg, recognised by equity but may not have the same priority/protection as a reg mtg

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10
Q

general reg for agreement involving land

A

-consideration (something of val exchanged)
-a written+signed document to comply w PLA

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11
Q

general reg for agreement involving land - MAORI FREEHOLD

A
  • additional steps are required to validate alienation (transfer of mtg)
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12
Q

what do unsecured creditors get

A

to share the surplus of the assets

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13
Q

s4 PLA

A

formal requirements for land agreements including written and signature to ensure enforceability

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14
Q

what is a secured creditor

A

first claim over specific assets (e.g. land) reducing the risk of non recovery

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15
Q

lta mortgage

A
  • creates a statutory charge
  • give mee certain rights e.g. power of sale
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16
Q

mortgage under CL

A

a mtg transfers ownership of land to lender who holds until the $ is paid

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17
Q

mtg under equity

A

mortgage is a SI only with borrower retaining ownership and lender w/ charge over property

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18
Q

s99 lta

A

consider SI rather than transferring of property

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19
Q

s99 lta - estanda finance corp

A

confirm mtg holds direct interest in the land

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20
Q

s99 lta - re forrest

A
  • statutory mtg confer groups of powers (like power of sale) rather than ownership of the land itself
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21
Q

agreement to mtg

A

-contract to create mtg in the future
- can give rise to equitable mtg if other necessary elements are satisfied e.g consideration

22
Q

acceleration clauses

A

turns a loan with a specific time period into an upon demand loa under certain conditions

23
Q

automatic clause

A

trigger acceleration of repayment when a specific condition is breached

24
Q

call up clause

A

lender must specifically/explicitly demand repayment

25
Q

function of acceleration clauses

A

breach allows for the conversion from term to upon demand

26
Q

the mtg document 2 verisons

A

short form and full version

27
Q

full version document mtg

A

detailed and outlining all t and c

28
Q

short form document mtg

A

specific terms to this particular mtg and the standard terms from a registered memorandum

29
Q

memorandum

A

pre reg doc including std terms being powers, obligation to secure prop and acceleration clauses, registration number and short form references

30
Q

business - upon demand loan

A

payed at anytime or demand to be payed at anytime
- bank has power of call for repayment at anytime
-allows for flexible repayment

31
Q

e.g of a upon demand loan

A

ANZ banking group v Gibson

32
Q

ANZ banking group v Gibson question

A
  • was 1hr 30 a reasonable time between demand and repayment
33
Q

ANZ banking group v Gibson ruling

A

that upon demand was immediate repayment
- there was no specific period organised
- cannot use time to bargain with a third party for another loan

34
Q

a + i form

A

authorise the solicitor to register the electronic version of the mtg so legally records the mtg against the property title
-VERY IMPORTANT

35
Q

mtg with companies

A

reciever appointed by the security holder

36
Q

what does a receiver do

A

appoint and replace the board of directors and decide if company have be salvaged or not

37
Q

test of oppression

A

whether the terms breach reasonable commercial standards, not just unfair

38
Q

opr - taylor v westpac

A

-fairness not test for oppression
- oppression requires the lenders to conduct breach of reasonable commercial standards
- need to show more than just the usual consequences of exercising the power of sale

39
Q

op - ge custodians v bartle

A
  • looking at the borrower and lenders knowledge of circumstances
  • contract should not be seen as as oppressive unless the lender has a basis for knowing
  • courts set the standard, objective, rather than the industry
40
Q

op - raptorial holdings

A

lender of last resort so charged high interest rate
- was clearly oppressive and inconsistent w/ reasonable common practice on lending fees

41
Q

all obligation/all monies mtg

A
  • covers future loans of debts, allows for the extension/add to debt without needing to create a new security act each time
42
Q

fixed amt mtg

A

new lion would make there a need to create a seperate security agt

43
Q

signed loan document

A
  • contains agt to mtg
  • specify term or on demand
  • incl obligation to mtg prop as security for the lion
44
Q

s118 cccfa

A

defines oppressive conduct in the context of credit contact
- harsh, unjustly burden, unconscionable, in breach of reasonable commercial standards

45
Q

s120 cccfa

A
  • court has the power to reopen credit contracts, consumer leases and buy back transactions if oppressive, unjust, harsh
46
Q

s117 cccfa

A

applies to credit contracts, consumer leases and buy back transactions

47
Q

greenbank v haas

A

no oppression as he borrower had ability to seek legal advice and know of potential risks
-need to be in contravention of reasonable standards of practice

48
Q

italia holdings v Lonsdale holdings

A
  • oppressive should mean real detriment of hardship involved
    -injustice must be shown to exist
  • was a business developer so knew what he was doing and had legal advice
49
Q

mtg on future acquired property

A

-extend beyond the current property owned by the borrower and also covers property buyer acquires in the future

50
Q

mtg on future acquired property case

A

Holroyd v marshall

51
Q

Holroyd v marshall

A

agt to mtg can cover current and future prop
- implied condition that when borrower acquires prop, security over that prop
- equity regard mtg as extending to the newly acquired prop once borrower actually OBTAINS

AA PROP 203 (59 decks)

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