The Commercial Bar Association of Victoria Inc. A0120851O
The Supreme Court of Victoria considered various claims including unconscionable conduct and claims under the NCC in respect of the plaintiff’s business and residential loans. The court dismissed the claims, finding the borrower had financial nous and the bank’s conduct was the ‘antithesis of unconscionable conduct’.
Litigation resulting from a vaguely-drafted deed of loan involving distressed borrowers tasked the NSWSC with a substantial exercise in characterisation of the deed’s operative provisions, resulting in a finding of a mortgage and revisiting of modern status of clogs on equity of redemption.
The National Credit Code has been interpreted to apply only to credit obtained for residential property purposes when the loan money is to be used directly by the borrower and not where the borrower’s intention was to pass on the loan funds to be used by another person.
In a decision with wide-reaching ramifications for the doctrine of unconscionability in Australia, the High Court in Stubbings v Jams 2 Pty Ltd [2022] HCA 6 comprehensively overturned the decision of the Court of Appeal, finding that lenders had engaged in both general law and statutory unconscionable conduct in their asset-based lending system, and were not redeemed by their ‘window dressing’ advice certificates.
In the last decade Courts have been concerned to assist self-represented litigants in banking and finance matters. But what happens when self-represented litigants push this approach to its limits? When will a self-represented litigant’s attempts to “have their day in Court” instead be found to be an abuse of process?
The case concerned whether personal financial advice was provided in the context of phone calls designed to encourage consolidation of super accounts. The High Court found that it was, and in the process shed light on the definitions of “financial advice” and “personal advice” in the Corporations Act.
The Court of Appeal’s decision in Jams 2 Pty Ltd v Stubbings provides much-needed clarification regarding the test for statutory unconscionability in the wake of the High Court’s split decision in ASIC v Kobelt.
A combination of years’ delay in enforcement and complex loan documentation created an evidentiary ‘perfect storm’ for the lender, which found itself saddled with documentation that did not tell a coherent story, leaving even the identity of the lender in dispute.
Financial services providers take note: the Full Court of the Federal Court has shifted the distinction between personal and general advice, and indicated that sharp practice that disadvantages consumers will not be tolerated.
On 17 October, APRA announced it would not be appealing the decision of Jagot J in its case against five IOOF group officials and two IOOF group entities. The present article sets out shortly the facts of the case, the outcome, and the potential for APRA to seek to reverse the judgment in whole or in part.
Allsop CJ has given helpful tips to practitioners tasked with the job of drafting a concise statement in a banking case concerning statutory claims having an equitable character.
Justice Perram has clarified the scope of a lender’s obligation in the approval of loans under the National Consumer Credit Protection Act 2009 (Cth).
The Banking Royal Commission was established by the Federal Government in December 2017. The Federal Government released the Commission’s Final Report on 4 February 2019. While the Commission has made a number of key recommendations that affect consumer lending, it has resisted making recommendations effecting wholesale change to the banking sector.
The decision of Queensland’s Court of Appeal provides a recent, practical example of the construction of performance securities and of the application of the strict compliance principle when dealing with issues of form.