| Paciocco
v Australia and New Zealand Banking Group Ltd (FCAFC)
– banking - consumer protection - Exception Fees were not penalties - no unconscionable
conduct by bank, unjust transactions or unfair terms - bank’s appeal allowed |
| Jaswil
Properties Pty Ltd ATF Jaswil Unit Trust v Barrak Corporation Pty Ltd (NSWSC)
– contract for sale of land - vendor contributed to purchaser’s breach of
essential time condition - relief granted against termination of contract |
| Meldov
Pty Ltd v Bank of Queensland (NSWSC) – mortgage - “all moneys” clause - bank
entitled to full proceeds of sale under first mortgage |
| Young v Smith (NSWSC)
- real property - voidable transactions - transfer of property with intent to
defraud creditors - relief granted |
| Ridgway
v Sporting Shooters’ Association of Australia Hunting & Conservation Branch
(SA) Inc (No 2) (SASC) - costs - successful plaintiff’s case was
“substantial failure” - plaintiff to pay 60% of defendant’s costs |
| AGL
Sales (Qld) Pty Ltd v Westside Corporation Ltd; Westside Corporation Ltd v AGL
Sales (Qld) Pty Ltd (QSC) - contract - liquidated damages clause of
gas sales agreement did not apply to breach of obligation to supply deferred
gas |
| Summaries With Link (Five Minute Read) |
Paciocco v Australia and New
Zealand Banking Group Ltd
[2015] FCAFC 50
Full
Court of the Federal Court of Australia
Allsop
CJ; Besanko & Middleton JJ
Banking
- consumer protection - representative proceedings - plaintiffs sought to set
aside “Exception Fees” on basis they were penalties, or were product of unconscionable
conduct by bank, or were unjust under National Credit Code, or were unfair
contract terms - ss12BG, 12CA, 12CB, 12CC, 12GF & 12GM Australian Securities and Investments Commission Act 2001 (Cth) - Contracts Review Act 1980 (NSW) - Fair Trading Act 1999 (Vic) - held: it
was not proven that late payment fee was extravagant or unconscionable - no unconscionable conduct by bank - fees were
not penalties - transactions not unjust or terms unfair - statutory claims dismissed
- bank’s appeal allowed.
Paccioco
|
Jaswil Properties Pty Ltd
ATF Jaswil Unit Trust v Barrak Corporation Pty Ltd [2015] NSWSC 391
Supreme
Court of New South Wales
Bergin
CJ in Eq
Contract
for sale of land - equity - plaintiff
purchaser sought declaration that contract between it and vendor had not been
terminated - plaintiff also sought specific performance or return of deposit - plaintiff
also sought order that if contract validly terminated it should be granted
relief against forfeiture - held: plaintiff was in breach of essential time
stipulation but vendor’s failure to execute transfer properly was significant
contribution to plaintiff being in breach of the essential time stipulation -
appropriate to grant relief on terms - plaintiff granted relief against
termination of contract for the sale of land.
Jaswil
|
Meldov Pty Ltd v Bank of
Queensland
[2015] NSWSC 378
Supreme
Court of New South Wales
Slattery
J
Mortgage
- bank mistakenly advanced more money than it intended to advance to borrowers -
borrowers drew down on additional credit - bank exercised its powers of sale as
first mortgagee over mortgagors’ two properties - bank applied all proceeds of
sale of second property in discharge of borrowers’ obligations - plaintiff
company held second mortgage over second of two properties - company claimed portion
of proceeds of sale - whether bank’s mistaken advance to mortgagors was secured
under “all moneys” clause of bank’s first mortgage over property - held: borrowers’ restitutionary
obligation to repay Bank money mistakenly overpaid by bank was secured by bank’s
first mortgage - company’s claim failed - bank entitled to full proceeds of
sale under first mortgage.
Meldov
|
Young v Smith [2015] NSWSC 400
Supreme
Court of New South Wales
Sackar
J
Real
property - voidable transactions - plaintiff alleged transfer of property to
defendant pursuant to power of attorney executed by plaintiff’s ex-husband (Mr
Young) was alienation of property with intent to Mr Young’s creditors including
plaintiff - defendant claimed transfer was legitimate and made on basis of 2001
agreement she entered into with Mr Young -- plaintiff sought to restrain
defendant from dealing with the property, to have the transfer voided pursuant
to s37A Conveyancing Act 1919 (NSW), that
the transfer of the Property be set aside, and that Mr Young’s interest in the
property should vest in his trustee in bankruptcy - held: transfer facilitated
by Mr Young was done with intent to defraud creditors within meaning of s37A -
same conclusion applied to 2001 agreement - plaintiff entitled to relief
sought.
Young
|
Ridgway v Sporting Shooters’
Association of Australia Hunting & Conservation Branch (SA) Inc (No 2) [2015] SASC 56
Supreme
Court of South Australia
Nicholson
J
Costs
- plaintiff succeeded in claim but much of trial and preparation consumed with
issues on which plaintiff was unsuccessful - plaintiff sought that defendant
pay costs on a party and party basis or that defendant pay a proportion of costs
or, that each party bears own costs - defendant sought that plaintiff pay its
costs on a party and party basis or, that the plaintiff pay a substantial
proportion of its costs or that there be no order as to costs - held: case
brought by plaintiff was a “substantial failure” - realistic approach was to
see defendant as successful party - to deprive defendant of all its costs would
be substantial injustice - just outcome was that plaintiff pay 60% of defendant’s
costs.
Ridgway
|
AGL Sales (Qld) Pty Ltd v
Westside Corporation Ltd; Westside Corporation Ltd v AGL Sales (Qld) Pty Ltd [2015] QSC 70
Supreme
Court of Queensland
P
McMurdo J
Contract
- proceedings concerning proper interpretation of gas sales agreement between
parties - AGL sought declaration that liquidated damages clause did not apply to a breach of obligation to supply
Deferred Gas during current period of 12
months - seller sought declaration clause would apply in respect of any
delivery of Deferred Gas during period - held: AGL’s argument accepted - on proper construction of agreement liquidated damages clause did not
apply to breach of an obligation to supply Deferred Gas pursuant to agreement -
declaration made.
AGL
|
