The Court of Appeal on penalties – orthodoxy strikes back?
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.
Category: Banking and Finance
The Financial Services Royal Commission – What you need to know (Part 2)
This article provides a comprehensive summary of the three Practice Guidelines that have been published by the Financial Services Royal Commission.
The Financial Services Royal Commission – What you need to know (Part 1)
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.
Slip sliding away: application of the ‘slip rule’ to correct bank’s order for possession
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.
Evidence of matters in company books and records under s 1305 – displacing the presumption
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.
What have I signed up for? A recent exercise by the Court of Appeal in contractual interpretation
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?
Contract: Amendment or replacement?
Parties to a contract enter into a further contract by which they vary the original contract terms. Is the effect of the second contract to bring the first contract to an end and to replace it with the second, or to leave the first contract standing, subject to alteration?
Balanced Securities Limited v Dumayne Property Group Pty Ltd [2017] VSCA 61
Lender’s power to seek summary dismissal of a claim not straightforward in the case of alleged penalties
The Supreme Court of Victoria has partly granted an application by a financier, Equity-One, for summary dismissal of a claim brought against it by a borrower/guarantor. The decision considers the principles applicable to summary dismissal of a claim where allegations of Anshun estoppel and the doctrine of penalties are raised.
The High Court on penalties: bank fees and beyond
For the second time in four years the High Court has considered penalties, but the law remains somewhat fragmented and challenges remain for practitioners seeking to apply it in practice.
Divergence in summary disposal of cases shown by contrasting recent decisions by the Courts of Appeal in Victoria and New South Wales
The decision of the New South Wales Court of Appeal demonstrates how a strict approach to granting summary judgment still prevails in that jurisdiction. There is in pronounced contrast to the post – Civil Procedure Act landscape in Victoria, where novel claims (unknown to Australian law in its current state) need to be supported by compelling submissions in order to survive the ‘no real prospects of success test’.
Characterising interests in funds paid into Court – PPSA security interests or not?
While courts have long wrestled with the proper characterisation of parties’ interests in money paid into court, the journey of judicial interpretation of the PPSA has only just begun. In Dura the Victorian Court of Appeal considered whether payments into court gave rise to security interests for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA).
Court of Appeal confirms Banking Code obligation to exercise care skill and diligence
The decision of the Victorian Court of Appeal confirms that the Banking Code obligation to exercise care skill and diligence in assessing credit can (and will often) be incorporated as a contractual term into guarantees. This finding is likely to affect lenders’ risk assessments when considering ‘riskier’ loans
Final decisions of the Financial Ombudsman Service are difficult to review in the courts.
Final decisions of the Financial Ombudsman Service (FOS) made on the basis of its opinion as to what is fair in all the circumstances are rarely reviewable by the courts, even if it makes errors in the decision-making process.
The requirement of leave to appeal in respect of civil appeals
The Victorian Court of Appeal has considered the test applicable to applications for leave to appeal in respect of civil appeals. Leave to appeal will be granted if an appeal has a ‘real’ as opposed to a ‘fanciful’ prospect of success.