Author: Kieran Hickie

Review of ‘competence’ decisions under s 16(9) of the CAA by Courts – hearing de novo

Arbitral tribunals have the ‘competence’ to make rulings on their own jurisdiction under s 16 of the CAA (and Model Law).  However, within 30 days after the ruling, a party can seek a review of that decision by asking the Court to decide the matter (s 16(9)).  The Supreme Court of Victoria has held, by reference to international authorities, that such a review is by way of hearing de novo. 

Attempted challenge by a financial services provider to a determination by the Financial Ombudsman Service under its terms of reference

The decision of the Victorian Court of Appeal in favour of the Financial Ombudsman Service Ltd (FOS) highlights the difficulties for financial services providers in trying to challenge decisions of FOS and the dispute resolution process under the terms of reference (TOR). The TOR operate as a binding contract with a finality clause in favour of FOS’ decisions and determinations.

Non compliance of terms of settlement by a borrower in relation to repossession proceedings commenced by a lender

Co-authored by Kieran Hickie and Andrew Kirby. The decision of the Victorian Court of Appeal in favour of the NAB highlights some difficulties that might arise between lenders and recalcitrant borrowers in relation to terms of settlement for the compromise of repossession proceedings. The Court of Appeal’s decision demonstrates that borrowers who enter terms of settlement must comply with the conditions of the terms of settlement.

Solicitors acting for financers and lenders in financing transactions must take care to avoid nasty surprises after settlement

Co-authored by Andrew Kirby and Kieran Hickie: The Court of Appeal has affirmed the importance of solicitors acting for mortgagees to ensure payout figures and settlement instructions provided to settlement agents are accurate. Following settlements of refinancing transactions, an outgoing mortgagee will not necessarily be prevented from asserting that settlement funds are insufficient to finalise settlement. Rather, they may demand the return of a discharge of mortgage handed over at settlement on the basis the borrower has not complied with its obligation to pay out the registered mortgagee in full.

Guarantors as ‘privies’ of a principal debtor – can they be bound by a decision of a Court in circumstances where they are not a party to litigation?

Co-authored by Andrew Kirby and Kieran Hickie: Guarantors commonly have some association or relationship with a principal debtor. If proceedings are taken against a principal debtor, but not a guarantor, resulting in a binding judgment, the Victorian Supreme Court has recently held that in subsequent proceedings against a guarantor, the guarantor is not a ‘privy’ of the principal debtor and therefore is not bound by the determination of issues in the earlier proceeding.