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Sub-charge over registered lands did not interfere with chargee’s power of sale
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Court of Appeal dismisses appeal from High Court, and affirms refusal of declaratory relief by borrower concerning sale by lender of registered lands pursuant to a mortgage, where the borrower had consented to the lender taking vacant possession of lands, on the grounds, inter alia, that: (a) allegations of duress, fraud and deceit had not been raised at trial, and there was no basis for raising them on appeal; and (b) the lender's power of sale was not affected by the creation of sub-charges.
Faherty J (nem diss): Monies borrowed in 2009 - legal advice obtained - charge over registered land - arrears - security enforceable - consent to lender taking vacant possession of lands - sub-charges over property - borrower unsuccessful in attempts to sell land - auction - objections to auction - claim that land had been put in trust - disruption to auction - sale of land by lender - action commenced by borrower - registration of lis pendens - claim that transfer of land was null and void - claim that lender held lands for borrower in trust - counterclaim for trespass - whether lender had retained power of sale of lands at time of transfer by reason of transfer of charges - failure of lender to take possession of lands within seven days of written consent by borrower - Section 97(1) of the Land and Conveyancing Law Reform Act 2009 - whether actions of lender were in compliance with mortgage deed - arguments not advanced in the High Court - allegations of duress, fraud and deceit - whether mortgage deed represented an unconscionable bargain - contra proferentum - impact of sub-charge on transfer of lands.
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