ON 8 APRIL 2015, the Full Court of the Federal Court of Australia delivered Paciocco v Australia and New Zealand Banking Group Limited  FCAFC 50 (8 April 2015).
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  UKHL 1;  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  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  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.
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ON 11 FEBRUARY 2015, the High Court of Australia delivered Plaintiff S297-2013 v Minister for Immigration and Border Protection  HCA 3 (11 February 2015).
On 22 June 2014, the High Court of Australia delivered Plaintiff S297-2013 v Minister for Immigration and Border Protection  HCA 24 (20 June 2014), ordering that the Minister determine the plaintiff’s application for a permanent protection visa according to law.
In July 2014, the Minister refused to grant the plaintiff a permanent protection visa on that grounds that he was not satisfied that the grant of such a visa was “in the national interest” because the plaintiff was an unauthorised maritime arrival.
On 11 February 2015, in the most recent case, the High Court held that the Minister’s decision in July 2014 to not grant the visa was not according to law because under the Migration Act 1958 (Cth) the Minister could not refuse such an application just because the plaintiff was an unauthorised maritime arrival.
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ON 11 FEBRUARY 2015, the High Court of Australia delivered Lavin v Toppi  HCA 4 (11 February 2015).
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.
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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.
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