security - 1+2

Question 1

what is security

Answer 1

security is a property right over another asset to protect creditors

Question 2

mortagee

Answer 2

lender

Question 3

mortgagor

Answer 3

borrower

Question 4

security interest

Answer 4

claim interest in personal property that can be used as collateral

Question 5

what is an example of security interest

Answer 5

• loan for car
• if mor doesn’t pay back they can take possession of car
• sell to get back what they owed

Question 6

s5 LTA

Answer 6

mtg creates interest in the land

Question 7

explain s5 LTA

Answer 7

interest can secure not only payment but also the performance of obliagations e.g. contractual

Question 8

registered mtg

Answer 8

under the Alta, priority and legal protection under the system of land title reg

Question 9

unregistered mtg

Answer 9

still creates equitable mtg, recognised by equity but may not have the same priority/protection as a reg mtg

Question 10

general reg for agreement involving land

Answer 10

-consideration (something of val exchanged)
-a written+signed document to comply w PLA

Question 11

general reg for agreement involving land - MAORI FREEHOLD

Answer 11

• additional steps are required to validate alienation (transfer of mtg)

Question 12

what do unsecured creditors get

Answer 12

to share the surplus of the assets

Question 13

s4 PLA

Answer 13

formal requirements for land agreements including written and signature to ensure enforceability

Question 14

what is a secured creditor

Answer 14

first claim over specific assets (e.g. land) reducing the risk of non recovery

Question 15

lta mortgage

Answer 15

• creates a statutory charge
• give mee certain rights e.g. power of sale

Question 16

mortgage under CL

Answer 16

a mtg transfers ownership of land to lender who holds until the $ is paid

Question 17

mtg under equity

Answer 17

mortgage is a SI only with borrower retaining ownership and lender w/ charge over property

Question 18

s99 lta

Answer 18

consider SI rather than transferring of property

Question 19

s99 lta - estanda finance corp

Answer 19

confirm mtg holds direct interest in the land

Question 20

s99 lta - re forrest

Answer 20

• statutory mtg confer groups of powers (like power of sale) rather than ownership of the land itself

Question 21

agreement to mtg

Answer 21

-contract to create mtg in the future
- can give rise to equitable mtg if other necessary elements are satisfied e.g consideration

Question 22

acceleration clauses

Answer 22

turns a loan with a specific time period into an upon demand loa under certain conditions

Question 23

automatic clause

Answer 23

trigger acceleration of repayment when a specific condition is breached

Question 24

call up clause

Answer 24

lender must specifically/explicitly demand repayment

Question 25

function of acceleration clauses

Answer 25

breach allows for the conversion from term to upon demand

Question 26

the mtg document 2 verisons

Answer 26

short form and full version

Question 27

full version document mtg

Answer 27

detailed and outlining all t and c

Question 28

short form document mtg

Answer 28

specific terms to this particular mtg and the standard terms from a registered memorandum

Question 29

memorandum

Answer 29

pre reg doc including std terms being powers, obligation to secure prop and acceleration clauses, registration number and short form references

Question 30

business - upon demand loan

Answer 30

payed at anytime or demand to be payed at anytime - bank has power of call for repayment at anytime -allows for flexible repayment

Question 31

e.g of a upon demand loan

Answer 31

ANZ banking group v Gibson

Question 32

ANZ banking group v Gibson question

Answer 32

- was 1hr 30 a reasonable time between demand and repayment

Question 33

ANZ banking group v Gibson ruling

Answer 33

that upon demand was immediate repayment - there was no specific period organised - cannot use time to bargain with a third party for another loan

Question 34

a + i form

Answer 34

authorise the solicitor to register the electronic version of the mtg so legally records the mtg against the property title -VERY IMPORTANT

Question 35

mtg with companies

Answer 35

reciever appointed by the security holder

Question 36

what does a receiver do

Answer 36

appoint and replace the board of directors and decide if company have be salvaged or not

Question 37

test of oppression

Answer 37

whether the terms breach reasonable commercial standards, not just unfair

Question 38

opr - taylor v westpac

Answer 38

-fairness not test for oppression - oppression requires the lenders to conduct breach of reasonable commercial standards - need to show more than just the usual consequences of exercising the power of sale

Question 39

op - ge custodians v bartle

Answer 39

- looking at the borrower and lenders knowledge of circumstances - contract should not be seen as as oppressive unless the lender has a basis for knowing - courts set the standard, objective, rather than the industry

Question 40

op - raptorial holdings

Answer 40

lender of last resort so charged high interest rate - was clearly oppressive and inconsistent w/ reasonable common practice on lending fees

Question 41

all obligation/all monies mtg

Answer 41

- covers future loans of debts, allows for the extension/add to debt without needing to create a new security act each time

Question 42

fixed amt mtg

Answer 42

new lion would make there a need to create a seperate security agt

Question 43

signed loan document

Answer 43

- contains agt to mtg - specify term or on demand - incl obligation to mtg prop as security for the lion

Question 44

s118 cccfa

Answer 44

defines oppressive conduct in the context of credit contact - harsh, unjustly burden, unconscionable, in breach of reasonable commercial standards

Question 45

s120 cccfa

Answer 45

- court has the power to reopen credit contracts, consumer leases and buy back transactions if oppressive, unjust, harsh

Question 46

s117 cccfa

Answer 46

applies to credit contracts, consumer leases and buy back transactions

Question 47

greenbank v haas

Answer 47

no oppression as he borrower had ability to seek legal advice and know of potential risks -need to be in contravention of reasonable standards of practice

Question 48

italia holdings v Lonsdale holdings

Answer 48

- oppressive should mean real detriment of hardship involved -injustice must be shown to exist - was a business developer so knew what he was doing and had legal advice

Question 49

mtg on future acquired property

Answer 49

-extend beyond the current property owned by the borrower and also covers property buyer acquires in the future

Question 50

mtg on future acquired property case

Answer 50

Holroyd v marshall

Question 51

Holroyd v marshall

Answer 51

agt to mtg can cover current and future prop - implied condition that when borrower acquires prop, security over that prop - equity regard mtg as extending to the newly acquired prop once borrower actually OBTAINS