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CLQ Vol35 No3 September-November 2021

Schlaepfer v Australian Securities & Investments Commission [2001] NSWCA 129
By Claire Roberts
 
A series of recent high-profile defamation cases have drawn attention to the way in which speech is regulated in Australia. But it is not just journalists and social media users who can find themselves grappling with complex and technical legal claims of this kind.
 
The recent decision of Schlaepfer v Australian Securities & Investments Commission [2021] NSWCA 129 (30 June 2021) saw the NSW Court of Appeal consider a case brought against the Australian Securities & Investments Commission (‘ASIC’) by the subject of a warning that the regulator had made.
 
This note comments briefly on the case: in particular, its implications for the way in which the ‘qualified privilege’ defence may be relied on in connection with regulatory action in future.
 
 
Mortgages: forgery, and the mortgagee’s duty on sale
By Lee Aitken
 
The law of mortgages involves a complex melange of common law, statutory, and equitable rights. The interplay between these doctrines in the case at the margin (where, for example, some misconduct has occurred) can make the ultimate result for the lender difficult to determine.
 
In exercising any vested right to dispose of the mortgaged property after default, the mortgagee must proceed advisedly and ensure that it does not wantonly dispose of the collateral, or engage in any other chicanery, say, by selling to a buyer ‘connected’ to it. (If the property has been sold, difficult questions may arise as to the remedy available to the disaffected, dispossessed mortgagor). An additional complication, remedially, will arise if the disaffected mortgagor seeks to an unwind a sale by the mortgagee which has already been registered under Torrens.
 
Two recent decisions of the NSW Court of Appeal now discussed are consonant with and explicate earlier authority: they are Ippin Textiles Pty Ltd v Winau Aust Pty Ltd and CEG Direct Securities Pty Ltd v Wang. Both cases illustrate the need to look carefully at the precise terms of the mortgage, and any document ‘collateral’ to it. Usually, the words of the mortgage imposing an obligation will not be consonant with the fiction involved in the fraud.
 
 
Price v Spoor: Contracting out of limitation periods in the High Court
By Jerry To
 
In Price v Spoor [2021] HCA 20, the High Court has confirmed that provisions to exclude the operation of limitation periods are not void for public policy, and parties are at liberty to ‘contract out’ of them. In so holding, the Court also provided guidance on the nature of limitation periods and several important principles surrounding both statutory and contractual interpretation.
 
The decision is good news for lenders. They may now be able to recover a loan previously thought to have ‘expired’ if there are contractual provisions that waive a limitation period. It also has potentially significant implications for future borrowing and lending agreements. It means that a loan agreement, potentially, could be drafted in a way that precludes it from ever lapsing.
 
 
  • Schlaepfer v Australian Securities & Investments Commission [2021] NSWCA 129
    By Claire Roberts
    page 3
  • Mortgages: forgery, and the mortgagee's duty on sale
    By Lee Aitken
    page 6
  • Price v Spoor: Contracting out of limitation periods in the High Court
    By Jerry To
    page 15
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    Non Member Price: $30.00
     
    Main File Type pdf
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