Securities Enforcement

| Print |

HWL Ebsworth has a depth of experience in lending and non-lending loss recoveries and litigation driven by a national team of partners.

We work across a number of banking products including mortgages, unsecured loans, debtor finance and equipment finance.  We also work across a number of customer segments from retail to high end corporate and institutional customers. 

HWL Ebsworth’s national team regularly advises on all matters relating to securities enforcement, including:

  • complex security reviews;
  • drawing statutory and contractual notices;
  • enforcing securities without the need to obtain a court order;
  • acting in undefended and complicated defended proceedings; and
  • obtaining and defending urgent court applications involving the enforcement of the security, withdrawal of caveats or the rights of third parties.

An important aspect of our offering is identifying and advising on issues which arise from the enforcement of securities, such as enforcement of the bank’s rights to rent as mortgagee in possession and the ability of the bank to complete contracts of sale entered into by a mortgagor in certain circumstances.

We appear at Court in all interlocutory steps of a proceeding which minimises costs and ensures that the persons with the best knowledge of the case are representing the client in court.

We are proud to provide our services to a broad range of banks, including Australia & New Zealand Banking Group, Bank of Queensland, Commonwealth Bank of Australia, Macquarie Bank and Westpac Banking Corporation.

Expertise

Our relevant experience includes acting on the following matters.

  • We acted for a mortgagee in relation to a complex, ten party dispute involving allegations that a loan contract and mortgage were not enforceable as a result of being fraudulently executed and joining all possible defendants to the proceeding, including the mortgage originator, mortgage broker and solicitor involved in the preparation and execution of the documents.
  • We obtained judgment for possession and monetary judgment in contested NSW Supreme Court proceedings where the defendants argued the proceedings were invalid as the s80 Notice was not served, the Mortgage Memorandum did not secure the loan, and the Agreements were unjust under the Contracts Review Act and Consumer Credit Code.
  • We obtained judgment for possession and monetary judgment in contested hearing in NSW Supreme Court based on a guarantee supported by a mortgage where the guarantor defended his claim on the basis that the Bank's supporting security (a fixed and floating charge over the company's assets) was not enforceable thereby causing loss to him as guarantor.
  • We obtained a successful summary judgment application that carved out any triable claim regarding the Consumer Credit Code without having any negative effect on the lenders ability to enforce against all of its security.
  • We successfully obtained summary judgment in relation to five equipment finance contracts and related guarantees where there were allegations of fraud and successfully defended an application to appeal the judgment.

Insolvency and Securities Enforcement

View Our Team