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Searching Content indexed under Charges, Mortgages, Indemnities by David Abernethy ordered by Published Date Descending.
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1
A commercial solution to a re-vesting problem
The Court considered the potential prejudice to creditors in extending the time for registration of security interests.
Australia
20 Jun 2017
2
Rethink again, when will a court adjust the liability of a co-guarantor?
The court held that unless a limited exception applies, it does not have power to adjust the liability of a co-guarantor.
Australia
22 May 2017
3
No pressure! Financial difficulties alone will not establish duress
Financial difficulties alone will not establish that a loan contract or a settlement deed was entered into under duress.
Australia
24 Apr 2017
4
Careless use of the power to sell has consequences, guaranteed!
The right to enforce a debt against a guarantor may be lost where the power to sell is not exercised appropriately.
Australia
5 Dec 2016
5
Not my guarantee! Trade creditor faces consequences for accepting electronic signature at face value
The company director was not liable as a guarantor when his electronic signature was affixed without his knowledge.
Australia
20 Oct 2016
6
When is a judgment debt not a judgment debt?
The Court used its power to go behind a judgment which a petitioning creditor relied on as proof of a debt that was owed.
Australia
7 Sep 2016
7
S440J(1) will not always protect director/guarantors where borrower is in administration
S440J(1) does not prevent a creditor from continuing to pursue a proceeding begun before the company administration.
Australia
2 Sep 2016
8
Principal loan contract varied, but guarantors fail in seeking to avoid liability to the bank under their guarantees
Guarantors may have a basis to avoid guarantees if the principal loan contract is varied without obtaining their consent.
Australia
22 Aug 2016
9
A "Prime" example of a mortgagee exercising its power of sale
We discuss CME Properties (Australia) Pty Ltd v Prime Capital Securities Pty Ltd.
Australia
14 Aug 2016
10
Banks beware – a prominent written notice may not be a prominent notice for the purposes of the Code of Banking Practice
Bankers should leave the documents with guarantors overnight or ensure that the written warning is read by the guarantor.
Australia
3 Aug 2016
11
Breaches of the Code of Banking Practice may result in a challenge to the enforcement of a guarantee
Provisions of the Code of Banking Practice may be incorporated into loan agreements, and guarantees given by individuals.
Australia
19 Jul 2016
12
Guarantors must - pay now, sue later
A properly drafted suspension clause will prevent guarantors from deferring payment, except in limited circumstances.
Australia
22 Jun 2016
13
WA Court of Appeal finds guarantor's liability rescinded by subsequent credit contract
The court considered a guarantee where a subsequent credit contract was entered into without the guarantor's consent.
Australia
22 Mar 2016
14
Guaranteed certainty: Creditors not required to exhaust remedies against a debtor before seeking to enforce a guarantee
It is the duty of the guarantor, not the creditor, to ensure that a debtor performs the principal obligation.
Australia
15 Mar 2016
15
Does a breach of clause 25.1 of the Code of Banking Practice render a guarantee void? It appears not
Any such alleged breach is likely to be a claim in damages only and is unlikely to render a guarantee void or voidable.
Australia
16 Feb 2016
16
Queensland Court of Appeal denies wife relief from guarantee
Although the guarantor wife failed in this case, the principles in Yerkey v Jones are still good law in Australia.
Australia
10 Jan 2016
17
The Code of Banking Practice and guarantees: are you a diligent and prudent banker?
The Court of Appeal clarified the scope of the duty to exercise the care and skill of a diligent and prudent banker.
Australia
22 Dec 2015
18
Application of the Code of Banking Practice to corporate guarantors
The WA Supreme Court confirmed that a corporate guarantor could not rely on a breach of the Code of Banking Practice.
Australia
8 Dec 2015
19
When can a guarantor rely on a right of subrogation?
This case considered if a guarantor had a right of subrogation enabling it to be repaid before a second ranking creditor.
Australia
4 Nov 2015
20
Not all legal advice is equal - Guarantee unenforceable due to deficiencies in legal advice
This NSW case considered the quality of the legal advice provided to a guarantor and the enforceability of the guarantee.
Australia
16 Sep 2015
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