Mortgages
Use this comprehensive and practical guide to prepare loan agreements, mortgages and guarantees for most of the transactions required in general practice.
The detailed commentary includes information on the formal requirements for identification of parties, execution, registration and enforcement.
Recent updates can be viewed at Obiter - News & Updates, via the link above.
Some of the most popular precedents in this publication include:
- Notice to owners corporation section 22 notice
- Letter to discharging mortgagee requesting discharge
- Mortgage linked loan agreement
- Standard terms document - Registered memorandum AJ843928
- Acknowledgement of receipt of memorandum
- Authority to complete documents and satisfy requisitions
- Direction to pay
- No security loan agreement
- Letter to mortgagor's solicitor submitting documents
MATTER PLAN
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“ Commentaries ”
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“ In the legal profession the term ‘costs’ refers to the fees and other expenses a solicitor charges a client for their professional services and other payments that arise out of the provision of legal services, including disbursements such as court fees. Costs are one of the most heavily regulated ... ”
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“ Nature of disclosure1 Timing of disclosure2 ”
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“ Costs disclosure is not required in relation to certain clients, described in the legislation as ‘sophisticated clients’ or ‘government or commercial clients’ as defined by the relevant legislation to include clients such as lawyers, law firms, public companies, liquidators and government entities. ... ”
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“ Cost agreements are not always required although clearly as between the practitioner and their client there will be disclosure but without the need for formal compliance with the regulation. The limits are: ”
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“ In NSW & VIC there is a standard costs disclosure for fees under $3,000 which is included in the precedents. If the total legal costs in a matter (excluding GST and disbursements) are not likely to exceed $3,000 (the higher threshold), a law practice may, instead of making a disclosure under ... ”
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“ Knowing that clients are disinclined to read, sign and return cost agreements, the letter sending them usually provides that unless heard to the contrary the practice will assume agreement. There will almost always be a later opportunity to have the agreement signed. Of course, many practitioners ... ”
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“ Costs are remuneration for professional work when acting in the capacity of a barrister or solicitor. Payments to a practitioner for work which is not professional work, are not costs. Disbursements are payments made, or liabilities incurred in the course of practice and which the practitioner is ... ”
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“ Firms are required to provide an estimate of the total of costs, excluding GST and disbursements, and information on the impact of any significant change to these costs. A law practice must take all reasonable steps to satisfy itself that the client has understood and consented to the proposed ... ”
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“ What is a disbursement Disbursements are payments made, or liabilities incurred in the course of practice, and which the practitioner is bound to pay whether put in funds by the client or not; or payments which, by established custom and practice of the profession, the practitioner is bound to pay. ... ”
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“ A lawyer may request money on account of fees be paid into a trust account before the commencement of work. This is particularly so in criminal and other court matters where the inclination to pay may wane with an unwanted outcome. The funds may cover legal fees as well as disbursements and the ... ”
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“ The costs agreement will set out the billing cycle. Commonly a regular monthly billing cycle is adopted covering work undertaken during the previous month. ”
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“ A lump sum invoice is one which sets out a recital describing the legal service provided and a total amount. An itemised invoice is one which sets out in detail each of the legal services provided, the date they were provided, and the cost for each service. An itemised invoice allows for an invoice ... ”
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“ A law practice cannot charge for the time spent in preparing an invoice. A law practice cannot charge for the time spent in preparing an itemised invoice for a client who has already received a lump sum invoice. ”
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“ All bills should be accompanied by a written statement setting out the avenues that are open to the client in the event of a dispute and any time limits that apply to the taking of such action. Under the uniform law in NSW and VIC each bill or covering letter must be signed by a principal of the ... ”
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“ In 1991 the Australian Competition and Consumer Commission released guidelines to assist businesses in the withdrawal on one and two cent pieces. In the purchase of goods or services for cash, businesses were advised to round the final payment: ”
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“ – When to charge and how to charge Goods and Services Tax (GST) is a broad-based tax of 10% applied to most goods and services, including legal services. Businesses are required to register for GST if their turnover exceeds the $75,000 threshold. If turnover is less than $75,000 than registration ... ”
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“ Reducing fees can create good will but needs to be handled with care as some take offence to the implication that they cannot afford to pay for the work they have retained. It is also a hard won reality that comes from experience that people are inclined not to value any advice given for free. ”
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“ Credit terms are quite common and need to be clearly documented and administered. ”
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“ Notification of rights is a requirement in all states and is found in all example invoice precedents. If the client has not been advised of their rights in a costs agreement, then practitioners must advise the client of their rights at the time of issuing the invoice. ”
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“ Monthly accounting for work in progress is recommended in order to achieve target lockup days. If debtors are not followed up promptly cash flow reduces making it imperative to adopt a debtor’s policy for effective debtor control. All overdue accounts must be followed up promptly and repeatedly. ”
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“ When a retainer is terminated before completion, a practitioner may claim costs for the work done to the date of termination on a quantum meruit basis if: The client terminates the entire retainer; ”
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“ When there are costs owing to the practitioner from the client, the lawyer may retain possession of the client’s documents which are legitimately in the practitioner’s possession. However, the Australian Solicitors’ Rules specify that when a practitioner claims to exercise a lien for unpaid legal ... ”
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“ If a practitioner has an equitable charge over the client’s property incorporated into the costs agreement, ordinarily the practitioner could exercise that power in seeking payment of costs. However, general charges such as a charge over ‘all my estate, rights, title and interest in and to any real ... ”
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“ Sound financial management is absolutely critical to the success of the law practice. There is a high correlation between practices with poor financial management and increased probability of experiencing professional negligence claims. The link is clear. Principals, who do not manage their ... ”
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“ Methods of payment include: Credit card; ”
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“ All By Lawyers cost agreements include the following authority to transfer money to pay their invoices: Trust money ”
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“ Lawcover recommends that practitioners use the costs assessment scheme to recover costs. Instituting proceedings against a disgruntled client who refuses to pay an outstanding bill exposes practitioners to the risk of a cross-claim in negligence being filed. The advantage of the cost assessment ... ”
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“ The following outline of costs assessment was written for NSW but the procedure is similar in the other states. This publication will be expanded to cover cost assessment in the other states in due course. In the interim refer to the relevant State Supreme Court. NSW Procedure ”
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“ A client may be entitled to complain to the Legal Services Commissioner about a costs dispute. If the complaint is made after the law practice or client has already applied for assessment of such costs, the assessment will ordinarily be stayed until the complaint has been determined. Similarly, if ... ”
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“ Loans and mortgages page - Land Services and Lands Titles Office South Australia Personal Property Securities Register ”
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“ Personal Property Securities Papers and Articles – Conveyancing and Property ”
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“ The parties to a real estate mortgage are called the 'mortgagor' and 'mortgagee'. The mortgagor, or borrower, is the party who mortgages the property as security for the mortgage debt. The mortgagee, or lender, of the mortgage debt, is the person to whom the secured property is mortgaged. The ... ”
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“ Taking good instructions The use of precedent Retainer Instructions ensures that all important issues are considered, instructions which cannot be contradicted later are recorded, costs discussed and the scope of the retainer clearly defined. ”
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“ Legal representatives are required to identify their clients in a number of circumstances. Although there are no formal requirements as a matter of good practice new clients should be identified, for example by sighting a driver licence or other common document. South Australia introduced a ... ”
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“ The National Mortgage Form is a national initiative that standardises the content and presentation of mortgages lodged for registration through all lodgement channels with land registries in participating Australian states and territories. Mortgagees and practitioners across all jurisdictions must ... ”
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“ A copy of a mortgagee’s standard terms and conditions containing the covenants and conditions relating to the mortgage may be deposited with the Registrar-General and incorporated into a mortgage by reference: s 129A of the Act. Although the Registrar must approve the form of mortgage used, he has ... ”
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“ A second or subsequent mortgage has the same form as a first mortgage. Any number of mortgages may be granted over a property if the mortgagee is either satisfied that the mortgagor still retains sufficient equity in the property to support another mortgage or is prepared to take another mortgage ... ”
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“ Duty on mortgages and discharges of mortgages executed on and after 1 July 2009 has been abolished. Up to 30 June 2009, a stamp duty was payable on a mortgage before the transaction instrument could be registered. Now, unstamped non-dutiable mortgages are accepted for registration at the Lands ... ”
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“ A collateral security is one given in addition to the principal security and is independent of, but subordinate to, the principal security. A collateral mortgage, therefore, is a mortgage relating to the same debt as the principal security, often referred to as a primary instrument. The mortgage ... ”
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“ Under the Torrens system there can be no legal mortgage without its registration. However, once executed by the parties, an equitable mortgage comes into existence pending registration. There are variants of the equitable mortgage but in essence there are two types: ”
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“ The National Credit Code replaced the existing state and territory based consumer credit codes with effect from 1 July 2010. It is found in Schedule 1 to the National Consumer Credit Protection Act. The National Credit Code has a broad effect on mortgages. Section 7 of the National Credit Code ... ”
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“ If one joint proprietor forges the signature of another joint proprietor, the lender's interest will gain the benefit of indefeasibility upon registration. However the mortgage will only be enforceable against the innocent party to the extent of the mortgage debt and so reference must be made to ... ”
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“ As from 30 January 2012 the PPSA legislation governs the priorities between competing interests. Security interests, formerly known as charges, are registered with the Personal Property Securities Register under the Personal Property Securities Act. Charges registered at ASIC before 30 January 2012 ... ”
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“ Where a third party is to provide the security for a loan, the lender usually requires evidence that the mortgagors have received independent legal advice about the transaction. This has the dual function of simultaneously overcoming any special disability on the part of the borrower and any ... ”
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“ The Torrens system of land ownership is based on registration of interests on a certificate of title that confers absolute proof of ownership. As some interests in land are not capable of being registered the caveat system enables such interests to be endorsed on title so that, while caveat ... ”
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“ Once the principal or secured sum has been repaid, and any other obligations fulfilled, the mortgagor has the right to have the mortgagee’s interest in the secured property discharged. If there are two or more mortgagees entitled jointly, the discharge may be signed by one on behalf of them all: s ... ”
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“ Sections 96 and 97 of the Real Property Act contemplate that land subject to a mortgage or other encumbrances may be transferred. Timely notice of the transfer should be given to the mortgagor so that payments due under the mortgage are made to the correct person. ”
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“ Once a mortgage has been registered, it can be varied. A variation of mortgage requires the endorsed consent of any subsequent mortgagees and/or chargees to its registration on title. The certificate of title is required to be produced for registration. A mortgage can be varied as to the principal ... ”
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“ Every mortgage contains a power in the mortgagee to sell the mortgaged premises on the mortgagor’s default. This is the most important remedy enabling the mortgagee to ensure repayment of an advance. The default usually, but not always, relates to a default in payment of the principal sum secured ... ”
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“ Unless the terms of the notice are complied with, the mortgagee’s power of sale is exercisable after the expiration of the notice period. In this regard the Real Property Act allows the mortgagor one month in which to remedy the breach. This period can be, and often is, varied in the mortgage, but ... ”
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“ Section 137 of the Act gives the mortgagee the power to take possession of the secured property. See Part 17 Ejectment for the procedure. The mortgagor may vacate the property voluntarily. If not, the mortgagee will have to obtain the issue of a warrant for possession from the Supreme Court. This ... ”
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“ Foreclosure is the process by which the mortgagee seeks to extinguish the equity of redemption and vest the mortgaged property absolutely in the mortgagee. This means that, as absolute owner, the mortgagee can deal with the property beneficially and not as mortgagee exercising a power of sale under ... ”
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“ A Farm Financial Strategy agreed between the South Australian Farmers’ Federation, Australian Bankers’ Association, Primary Industries and Regions South Australia, Rural Financial Counselling Service SA Inc. and the Law Society of South Australia allows for a voluntary mediation process to resolve ... ”
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“ It is not intended here to provide precedents for use in institutional lending or lending by organisations in the business of lending, but rather to provide straightforward documentation for those many one-off occasions that money is either borrowed from or lent to clients. Various statutory and ... ”
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