Category Archives: Banking and finance

Paciocco v Australia and New Zealand Banking Group Limited [2015] FCAFC 50

ON 8 APRIL 2015, the Full Court of the Federal Court of Australia delivered Paciocco v Australia and New Zealand Banking Group Limited [2015] FCAFC 50 (8 April 2015).

http://www.austlii.edu.au/au/cases/cth/FCAFC/2015/50.html

BANKING AND FINANCIAL INSTITUTIONS – CONSUMER PROTECTION – whether various stipulations for fees are penalties at law or equity, or genuine pre-estimate of damage or compensation – whether the relevant stipulations were for breach of term of contract, collateral or accessory in the nature of security for, and in terrorem of the primary stipulations, or for a further contractual right or accommodation – the relevance of the “tests” in Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company Limited [1914] UKHL 1; [1915] AC 79 to the construction and characterisation of the provisions – whether the fees were extravagant or unconscionable – whether the charging of the fees constituted unconscionable conduct, unjust transactions or unfair contract terms under Australian Securities and Investments Commission Act 2001 (Cth), National Consumer Credit Protection Act 2009 (Cth), and Fair Trading Act 1999 (Vic)

LIMITATION OF ACTIONS – whether recovery statute-barred – construction of s 27(c) of the Limitation of Actions Act 1958 (Vic) – whether it applied to a mistake of law

The Full Court:

1.Dismissed an appeal by Paciocco against the decision of Gordon J of the Federal Court in Paciocco v Australia and New Zealand Banking Group Limited [2014] FCA 35.
2.Allowed an appeal by Australia and New Zealand Banking Group Limited against the decision of Gordon J of the Federal Court in Paciocco v Australia and New Zealand Banking Group Limited [2014] FCA 35.

The Full Court held that the bank fees in dispute were not penalties as it had not been proven that they were extravagant or unconscionable.

The Full Court also held that the fees were not unconscionable or unfair under the Commonwealth and State legislation concerning unconscionability, unjustness and unfairness.

Lawyers

1300 00 2088

tralia and New Zealand Banking Group Limited [2015] FCAFC 50 (8 April 2015).

http://www.austlii.edu.au/au/cases/cth/FCAFC/2015/50.html

BANKING AND FINANCIAL INSTITUTIONS – CONSUMER PROTECTION – whether various stipulations for fees are penalties at law or equity, or genuine pre-estimate of damage or compensation – whether the relevant stipulations were for breach of term of contract, collateral or accessory in the nature of security for, and in terrorem of the primary stipulations, or for a further contractual right or accommodation – the relevance of the “tests” in Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company Limited [1914] UKHL 1; [1915] AC 79 to the construction and characterisation of the provisions – whether the fees were extravagant or unconscionable – whether the charging of the fees constituted unconscionable conduct, unjust transactions or unfair contract terms under Australian Securities and Investments Commission Act 2001 (Cth), National Consumer Credit Protection Act 2009 (Cth), and Fair Trading Act 1999 (Vic)

LIMITATION OF ACTIONS – whether recovery statute-barred – construction of s 27(c) of the Limitation of Actions Act 1958 (Vic) – whether it applied to a mistake of law

The Full Court:

1.Dismissed an appeal by Paciocco against the decision of Gordon J of the Federal Court in Paciocco v Australia and New Zealand Banking Group Limited [2014] FCA 35.
2.Allowed an appeal by Australia and New Zealand Banking Group Limited against the decision of Gordon J of the Federal Court in Paciocco v Australia and New Zealand Banking Group Limited [2014] FCA 35.

The Full Court held that the bank fees in dispute were not penalties as it had not been proven that they were extravagant or unconscionable.

The Full Court also held that the fees were not unconscionable or unfair under the Commonwealth and State legislation concerning unconscionability, unjustness and unfairness.

Lawyers

1300 00 2088

Lavin v Toppi [2015] HCA 4

ON 11 FEBRUARY 2015, the High Court of Australia delivered Lavin v Toppi [2015] HCA 4 (11 February 2015).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/4.html

The appellants and respondents were sureties who had guaranteed a consolidated loan with the National Australia Bank.

In 2010, NAB demanded repayment of the balance of the loan debts and brought proceedings against all of the guarantors. In settlement of proceedings against the appellants, NAB covenanted not to sue them for the guaranteed debt in return for the payment of a minor portion of the debt. The respondents then paid the disproportionately high balance of the debt and then brought proceedings against the appellants seeking the recovery of the amount they paid to NAB in excess of their proportionate share.

The appellants resisted the appellants claim, arguing that the appellants and respondents no longer had “coordinate liabilities” by reason of the debt only being enforceable against the respondents due to NAB’s covenant not to sue the appellants.

The NSW Supreme Court found in favour of the respondents and the Court of Appeal dismissed an appeal, holding that the respondents could still recover from the appellants because the covenant not to sue did not alter the liabilities between the appellants and respondents under the guarantee and therefore they still had “coordinate liabilities”.

The High Court dismissed an appeal by the appellants, holding the Court of Appeal to be correct in holding (1) that the covenant not to sue did not extinguish the appellants’ liability under the guarantee and (2) that the respondents had an equitable entitlement to contribution which could not be defeated by the covenant not to sue.

Lawyers 1300 00 2088

The 24th Annual Credit Law Conference

The 24th Annual Credit Law Conference will be held this year on 1-3 October at the Sheraton Mirage & Spa at the Gold Coast.

The annual conference attracts representatives from major banks and lenders, regulatory bodies and the legal profession. Discussions will consider credit law regulatory perspectives, policy initiatives, and best practice compliance. This year there will  be particular discussions about recent privacy reforms concerning credit reporting.

Lawyers

Sydney, Australia

1300 00 2088

Perochinsky v Kirschner & Anor [2013] NSWSC 400

Perochinsky v Kirschner & Anor [2013] NSWSC 400 (24 April 2013).

Lawyers

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