A mortgagee who knows that a loan is improvident, that the mortgagor is elderly and a pensioner, that the entire loan proceeds go to a third party, and that the mortgagor's only asset is being mortgaged, may be required to make inquiry as to whether the mortgagor entered the transaction independently of influence by the third party. A solicitor's certificate as to the mortgagor's understanding does not necessarily discharge this obligation, particularly where the certificate is defective and the mortgagee has not ascertained whether the certifying solicitor was independent of the third-party beneficiary. Whether unconscionable conduct of this kind gives rise to an equity defeating indefeasibility under s 185(1)(a) of the Land Title Act 1994 (Qld) remains an open question.
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