Australia: Financial Services Recovery Update

Last Updated: 13 November 2007
Article by Simon Duke


  • Can a lender recover a debt it has written off?

  • Can a current mortgagee recover all of its enforcement expenses against a legally assisted mortgagor?

Can a lender recover a debt it has written off?

Pursuing complex recovery actions such as claims against valuers and brokers can be a lengthy process. If the loan accounts in question are kept active, lenders frequently encounter reporting and compliance issues because of the age of the debts. In responding to these issues, for accounting purposes, many lenders have adopted a practice of internally writing off delinquent loans once recoveries action reaches a certain stage.

In CBA v Greyson [2005] FMCA 852 the Federal Magistrates Court of Australia rejected an argument by a borrower that a lender's debt was no longer owing because it had been written off by the lender for accounting purposes. The judgment provides a degree of comfort for lenders who write off debts for reporting purposes whilst maintaining actions against the borrowers or other parties in complex recoveries actions.

Other potential problems caused by delinquent accounts

The potential problems caused by debts which become seriously delinquent are not limited to compliance and reporting issues. For example, another potential problem is that loan intermediaries may be penalised under their contractual arrangements with the lender because of the age of the debts. In cases where the loan intermediary is not at fault this may cause relationship issues for lenders and their intermediaries.

The borrower's argument in CBA v Greyson

The borrower in CBA v Greyson submitted that a bank statement issued by the bank during the course of its recovery proceedings showed a zero balance. The borrower submitted that the lender had "appropriated a credit to the bank account", and was bound by that appropriation.

The Court rejected this argument, and held that: "Where the applicant creditor has for accounting purposes written off the debt, that does not of itself provide any or any proper basis upon which the Court can conclude that the debt in no longer owing. It does not provide any or any proper basis of evidence of forgiveness of debt or other compromise."

Practical issues

From time to time during the course of recovery proceedings, it is often necessary for the lender to swear an updated affidavit of debt. There may also be a need to provide updated debt figures to other parties in the context of settlement negotiations.

For that reason, we recommend that lenders retain the capacity to track interest and enforcement expenses on their systems even though the debt in question has been written back to minimise reporting and compliance obligations.

FSR update - november 2007

Can a current mortgagee recover all of its enforcement expenses against a legally assisted mortgagor?

Yes. However:

  • in cases where a legally assisted borrower sues a former mortgagee, the amount of costs recoverable by the former mortgagee may be capped at $5,000 because of section 47 of the Legal Aid Commission Act

  • if a borrower challenges any enforcement expenses then careful consideration should be given to the terms of the mortgage covenants to ensure that costs of any court proceedings are costs which the mortgagor has an obligation to pay.

The statutory 'cap' on legal costs

Section 47(1) of the Legal Aid Commission Act provides that where a court or tribunal makes a costs order against a legally assisted person:

  • the amount of costs payable by that person is nil

  • the amount of costs payable by the Legal Aid Commission is capped at $5,000.

In Maher v Network Finance Limited (1986) 4 NSWLR 694, the NSW Court of Appeal held that, despite section 47, a mortgagee could look to the legally assisted borrower for the full amount of costs it had incurred in connection with the borrower's unsuccessful court action.

The basis for the Court's decision was that the $5,000 cap specified in the Act only applied to costs orders made by a court or tribunal. The cap did not apply to expenses recoverable according to the terms of the borrower's contractual obligations under the mortgage.

However, the other side of the Maher coin is that, where a borrower's contractual obligation to pay the mortgagee's costs ceases (such as, for example, where the debt has been refinanced or where there is a surplus after a mortgagee sale), it is likely that the costs recoverable by a former mortgagee in any proceedings will be capped at $5,000 by virtue of section 47.

This is will be of concern in cases where a mortgagor sues a number of former mortgagees as well as the current mortgagee. The present legal position in that scenario is that the present mortgagee can recover all of its costs whereas a former mortgagee is limited to $5,000.

It remains to be seen whether the law will develop so as to cure this anomalous situation.

Watch this space....

For more information, please contact:


Campbell Hudson

t (02) 9931 4957


Simon Duke

t (02) 9931 4765



Rob Hinton

t (03) 9252 2531


David Reichenberg

t (03) 9252 2581



Susan Forrest

t (07) 3231 1586


The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.