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All monies clause - where is it?

Discussion in 'Property Finance' started by Matty77, 11th Oct, 2015.

  1. Matty77

    Matty77 Active Member

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    Can someone post up word for word what the clause "generally" looks like? in particular from ANZ, as I cant see it on my home loan documents....

    Also has anyone ever had a bank use this clause against them?

    (no im not cross collateral, just curious)
     
  2. D.T.

    D.T. Adelaide Property Manager Business Member

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    It'll be in the loan contract somewhere no doubt.

    I've never seen it be used on myself, anyone i know, or any forums I've visited.
     
  3. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    I was in the process of writing a legal tip on this

    See a recent case Meldov Pty Ltd v Bank of Queensland [2015] NSWSC 378
    https://www.caselaw.nsw.gov.au/decision/5523721ce4b0fc828c99531f

    These all moneys (all monies) clauses stretch over several clauses.
    eg. in the above case

    Clause 4.1 of this memorandum to the First Mortgage (“the Memorandum”) provides that:
    “For the purpose of securing to us [the Bank] payment of the total amount owing, you [the Di Pietros] mortgage the property to us”.

    The phrase “total amount owing” used in clause 4.1 is defined in Memorandum, cl 1 as meaning:

    “at any time, all money which one or more of you owe us, or will or may owe us in the future, including under this mortgage or any agreement covered by this mortgage

    This definition applies:

    (a) irrespective of the capacity in which you or we became entitled to the amount concerned;

    (b) irrespective of the capacity in which you or we became liable in respect of the amount concerned;

    (c) whether you or we are liable as principal debtor, as surety or otherwise;

    (d) […]”.

    This definition of total amount owing contains general words followed by words commencing “including”. Memorandum, cl 1 also provides that the term ‘including’ when used in the Memorandum is to be read so that the word:

    “when introducing an example does not limit the meaning of words to which the example relates to that example or examples of a similar kind”.
    Memorandum, cl 1 also provides that “any agreement covered by this mortgage” means:“an agreement or other arrangement (including a deed) under which one or more of you incurs or owes obligations to us or under which we have rights against you, including any such agreement or arrangement which all of you acknowledge in writing to be an ‘agreement covered by this mortgage’. It includes any agreement or security assigned to us”.
     
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  4. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    Formatting didn't really work - see paragraphs 19 to 23 of the judgment.
     
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  5. Matty77

    Matty77 Active Member

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    Thanks very interesting! ;)
     
  6. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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