Commentary and case law from the Commercial Bar Association's finest.
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.
By a 2-1 majority the Court of Appeal held that a loan establishment fee of $26,625 was a penalty, arguably bucking the trend of decisions since the High Court’s judgment in Paciocco.
This article provides a comprehensive summary of the three Practice Guidelines that have been published by the Financial Services Royal Commission.
This article will give some practical guidance to the Financial Services Royal Commission, its powers, processes and procedures. The next article (Part 2) provides a comprehensive summary of the three Practice Guidelines that have been published by the Financial Services Royal Commission.
This recent decision illustrates how a broad approach to the slip rule allowed the bank to amend its order for possession, despite the same error appearing in the description of the security property on a notice sent under the mortgage, and also in the bank’s statement of claim.
Section 1305 of the Corporations Act is an important tool for practitioners in debt and loan recovery. The section provides that books and records of a company are (1) admissible, and (2) prima facie proof of any matter recorded therein (eg a loan). However, a recent NSW case is a reminder the presumption is rebuttable.
Where one has a purported deed or a ‘heads of agreement’ type of document, when might that document be binding and when might it fall short? And when might someone who has not signed the document still be a ‘party’ to it?