Daily Banking: Wednesday, 5 August 2015 View in browser
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Banking

Executive Summary (One Minute Read)
Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd (FCAFC) - competition - ANZ and mortgage broker did not compete in market for supply of loan arrangement services - ACCC’s appeal dismissed - ANZ’s cross-appeal allowed
Papantoniou v Brown (No 2) (NSWCA) - costs - offer of settlement - rejection of offer not unreasonable - indemnity costs refused
Charitou v The Owners of Strata Plan 10394 (NSWSC) - contract - deed not void for common, mutual or unilateral mistake - declarations that deed of no force and effect refused
Re Thomson (VSC) - evidence - application of presumption of regularity - unsigned copy of updated trust deed was operative deed of superannuation fund
Summaries With Link (Five Minute Read)
Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd [2015] FCAFC 103
Full Court of the Federal Court
Allsop CJ, Davies & Wigney JJ
Competition - Australian Competition and Consumer Commission commenced proceedings against ANZ alleging it contravened ss45(2)(a)(ii) & 45(2)(b)(ii) Trade Practices Act 1974 (Cth) - ACCC alleged ANZ entered agreement with mortgage broker which contained provision substantially lessening competition in market for supply of loan arrangement services to members of public by loan providers, franchisees and brokers - primary judge found that ANZ did not participate in any market in which brokers provided loan arrangement services to potential borrowers - ACCC appealed - ANZ cross-appealed against finding refunds paid by mortgage broker to borrowers that were subject of agreement with ANZ were “rebates” within the meaning of s45A - held: ACCC failed to demonstrate any error by primary judge - appeal dismissed - cross-appeal allowed.
Papantoniou v Brown (No 2) [2015] NSWCA 220
Court of Appeal of New South Wales
Beazley P, Macfarlan JA & Sackville AJA
Costs - Court allowed appeal and dismissed first and third cross-claims - appellant sought that respondents pay her costs of first, second and third cross-claims as from 9 May 2011 on indemnity basis and otherwise on ordinary basis, and pay her costs of appeal on ordinary basis - claim for indemnity costs based on offer of settlement - held: on its face offer seemed to give respondents better result than they obtained - however offer contemplated that most of money would be paid by monthly instalments over period of three years - no interest to be payable and offer did not incorporate agreement to submit to judgment for amount offered - in circumstances and in absence of offer to provide security for agreement to pay by instalments, not unreasonable for respondents to reject offer - indemnity costs refused - orders made.
Charitou v The Owners of Strata Plan 10394 [2015] NSWSC 1059
Supreme Court of New South Wales
Slattery J
Contract - plaintiff sought declarations that deed executed by plaintiff and defendant was of no force and effect - plaintiff also sought orders that defendant execute a deed in the form annexed to motion - sufficiency of evidence for common, mutual or unilateral mistake - held: Court not satisfied it should make declarations on the basis of doctrines of common mistake, mutual mistake or unilateral mistake - motion dismissed.
Re Thomson [2015] VSC 370
Supreme Court of Victoria
McMillan J
Evidence - trusts and trustees - superannuation find created by deed (1986 Deed) updated by supplementary deed (1990 Deed) which was apparently lost - deed then updated (2000 Deed) - only copy of 2000 Deed in plaintiff’s possession was unsigned - plaintiff was executor of the deceased’s estate - plaintiff sought that 2000 Deed be declared operative deed of fund or that 1986 Deed be declared operative deed - plaintiff also sought that property of fund be vested in plaintiff and that fund be wound up with associated costs to come out of deceased’s estate - held: Court held that the presumption of regularity ought be applied to render 2000 Deed operative - circumstances were unusual and specific enough that no general policy concerns prevented presumption’s application - application of test in Kingham v Sutton [2002] FCA 506 supported conclusion that presumption ought to be applied - if validity of 2000 Deed were not established then reliance on 1986 Deed would most probably lead to same result - application of presumption would remove need for plaintiff to re-assess financial materials while achieving very same outcome - orders made.