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.
Author: Kieran Hickie
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.
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.
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.
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.
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 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.
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.
Branch franchisees fail in a class action against the Bank of Queensland – Andrew Kirby and Kieran Hickie
The Bank of Queensland (BOQ) has recently won a large class action proceeding in the New South Wales Supreme Court. The Bank successfully defended claims of misleading and deceptive conduct, unconscionable conduct and negligence brought by franchisees who claimed loss and damage caused by the failure of their franchise branches.