security - 3+4

Question 1

the amount secured can be

Answer 1

zero
- if lion fully repaid, the mtg can remain registered
- mee retains indefeasible title
- for ease when making new loans

Question 2

equity of redemption

Answer 2

• ability to get land back free of all obligations only when
• debt exceed land vlaue
• land is sold to a bona fide purchaser
• cannot be on a term loan, borrower must wait until term expires

Question 3

purchaser avenues to address the mtg

Answer 3

1. purchasing the mtg form the mee
2. equity of redemption - acquire the mtg eq of red, allowing them to redeem the mtg by paying the secured amount to mee b4 prop is sold

Question 4

coltart facts

Answer 4

-lepionka purchase first mtg from pac, become #1 mee w rights over land
- mr coltart lodge caveat from option to purchase

Question 5

coltart held

Answer 5

• confirms that if a purchaser can have an equitable interest to justify equity of redemption, so does mr coltart who has an option to purchase

Question 6

coltart side note

Answer 6

even if what is held is true won’t be that beneficial to mr col as redeeming to mtg will remove the first mee but he will indebted to GLW and AFI will have the first mtg, contract will still be bound by this

Question 7

forgery

Answer 7

under contract law, forged documents are void
- person being impersonated owes no debt as they didn’t sign so unenforceable

Question 8

however in forgery

Answer 8

indefeasibility protects the RM

Question 9

default under mtg purchaser

Answer 9

if there is a default under the mtg and the mee decides to exercise the power of sale the purchaser…
- Deemed to know of the rm
- Morgatee has indefsiailty of title
- Pur sole remedy is to sue for brecah of contract
- Purchase price reduced by the mortagge

Question 10

peirce v morris

Answer 10

court confirmed that a purchaser who party to an executory contract (settlement not yet occurred) still has the obligation to pay money and right to redeem the mtg

Question 11

leaser - tarn v turner

Answer 11

• tenant in a fixed term lease would be entitled to exercise the right to redeem if mor has granted a lease

Question 12

s51 pla

Answer 12

indefeasibly - a title that cannot be set aside
- protects the title however doesn’t validate or invalidate the loan agt if forged

Question 13

s97 pla
- who does it apply to

Answer 13

right to redeem
1. current mor
2. interest in mrtged prop
3. current or former mor/ covenanters

Question 14

s97 pla
-rule

Answer 14

redeem property at anytime b4 prop sold under Power of sale by mee or receiver
- mee must discharge the property upon payment of all amnts and all obligations

Question 15

s98 pla

Answer 15

if mtg term not yet expired and no steps to realise the security ( no possession and no receiver appt) the amounts owed include interest for the unexpired portion of the term

Question 16

s99 pla

Answer 16

after mtg expired
- mee has 60 working days written notice b4 redeeming
or
- pay 3 months interest at agreed rate

Question 17

s99 doesn’t apply if

Answer 17

-mee in possession
- had appt receivers
- taken steps to realize the security

Question 18

s4 pla

Answer 18

• person who is entitled to redeem is
• current mor
• former mee
• covenanter associated with the mtg

Question 19

unregistered mtg - forged

Answer 19

if the mtg is unregistered doesn’t get indefeasible title under s51 lta
- the forged loan agt unenforceable against true owner so is the mtg
- mee cannot seek repayment from the ro

Question 20

unregistered mtg - forged e.g

Answer 20

duncan v Mcdonald

Question 21

duncan v Mcdonald

Answer 21

• unregistered mtg provides no enforceable rights against the true owner, incl the inability to sell the land

Question 22

registered mtg - forged

Answer 22

• mee gains indefeasible title under the SI but personal liability for the RO still remain unaffected by reg. it validate the power of sale

Question 23

registered mtg - forged e.g

Answer 23

Frazer and walker

Question 24

Frazer and walker

Answer 24

even though the mtg forged, once registered the mee acquires indefeasible title
- mee was able to sell the property to walkers and sale was valid bc indefeasibility
- mee indefeasible title only apply to si not underlying forged contract

Question 25

fixed sum mtg e.g.

Answer 25

duncan v Mcdonald

Question 26

duncan v Mcdonald

Answer 26

if the proceeds from the sale are insufficient, mee cannot sue true owner to recover the funds
- forged = unenforceable
- mee seek compensation under lta for losses incurred to indefeasibility rule

Question 27

all obligations mtg e.g.

Answer 27

westpac v clark

Question 28

duncan v Mcdonald

Answer 28

• sc confirmed that promises to pay specific amounts in unregistered loan agt could be incorporated into registered short form and memorandum if within the definition
• but, loan agt forged so the ‘you’ in mtg documentation applied to the rogue and therefor the rogues promise to repay the loan agt not incorporated into a reg document