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ARTICLE · 11 JANUARY 2011

When can a mortgage be varied or set aside?

Gadens Lawyers
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In Permanent Mortgages Pty Limited v Van Den Bergh [2010] WASC 10, the Supreme Court of Western Australia made many useful comments on the factors which may lead a court or tribunal to vary or set aside a mortgage. This summary reminds us of some key legal principles.

AustraliaReal Estate and Construction
Jon Denovan
Jon Denovan

In Permanent Mortgages Pty Limited v Van Den Bergh [2010] WASC 10, the Supreme Court of Western Australia made many useful comments on the factors which may lead a court or tribunal to vary or set aside a mortgage.

The case related to a loan made on the security of a home in a senior's village occupied by 'the mother'. Most of the money was used by 'the son' to pay creditors and settle divorce proceedings with approximately $43,000 used to discharge an existing mortgage to a bank.

The mother was 86 years when the loan was taken out and she had little business experience. The mother and son were joint registered proprietors of the property. The son was required by the bank to be put on the title to demonstrate serviceability of the loan.

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