In the courts

Beware: an unexpected outcome from common subordination wording
The High Court has determined that a payment made to a subordinated creditor by a third party need not be turned over to the senior creditor, notwithstanding a clause in the deed of subordination intending to achieve that outcome.

Vendor PMSI holder entitlement to be reconsidered
A decision determining how to quantify amounts owed to a PMSI holder when the purchaser goes into receivership (summarised in the Winter 2008 issue of Financial Services Quarterly) is to be reconsidered.

Official Assignee's application to have trust declared a sham fails
This case was an appeal made by the Official Assignee against the High Court's decision to decline its application to have a family trust declared a sham.

Guarantee need not be a deed, so one director can sign
This case concerned an application by a guarantor to set aside a statutory demand under section 290 of the Companies Act.

Debtor's forgery attributed to lender
A debtor who forged his mother's signature on a mortgage over her property was found to have acted as the lender's agent in doing so.

Guarantor's argument that lender's conduct misleading and deceptive fails
A guarantor unsuccessfully argued that the lender's conduct was misleading and deceptive when it entered into the loan documents, and that it ought not to have advanced a third loan to the borrower.

All obligations mortgages unlikely to incorporate terms of separate loan agreements
In a case brought by a lender against a solicitor who failed to register a mortgage signed by a fraudster, the Court of Appeal has decided that the terms of the separate loan agreement were not incorporated into the all obligations mortgage.

Enquiries and information

For more information on any of the cases, articles and features in Financial Services Quarterly, please email Rachel Gowing or call on 64 9 916 8825.