Gooley v NSW Rural Assistance Authority [2020] NSWCA 156

CONTRACTS – variation – whether term of credit facility varied – whether variation supported by adequate consideration – where difference in obligations capable of benefiting either party – contract effectively varied – whether bank repudiated contract in maintaining that term varied.

BANKING AND FINANCE – Australian Securities and Investments Commission Act 2001 (Cth), ss 12CB and 12DA – whether in varying term of credit facility bank engaged in misleading or deceptive or unconscionable conduct – whether in making loan bank engaged in unconscionable conduct – no question of principle.

BANKING AND FINANCE – Code of Banking Practice, cll 2.2, 25.1 and 25.2 – whether breach of obligation to exercise care and skill of a diligent and prudent banker – whether breach of obligation to try to help borrower to overcome financial difficulties with a credit facility – no question of principle.

BANKING AND FINANCE – National Credit Code – whether loan “unjust” credit contract within s 76(1) – whether bank failed to respond to hardship notices as required by s 72(4) – whether National Credit Code applied – where the predominant purpose for which credit was provided or was intended to be provided was not a Code purpose – no question of principle.

PRIMARY INDUSTRY – Farm Debt Mediation Act 1994 (NSW) – whether enforcement action taken in contravention of Act – no question of principle.

Tim Castle SC represented the Second and Third Respondents.

Reasons for the decision can be found here.

Gooley v NSW Rural Assistance Authority (No 3) [2019] NSWSC 1314

EVIDENCE — records of prior communications concerning FOS complaint – admissibility – hearsay – prior consistent statement.

EVIDENCE — Opinion evidence — Expert opinion – economist’s opinion about conduct of bank towards customers – admissibility – Makita principles.

CONTRACTS – Performance – Variation of Terms – variation of loan repayment terms – need for consideration – assumption of risk that variation may benefit either party.

CONTRACTS — Misleading conduct under statute — variation of loan terms purportedly without customer’s knowledge and approval – misleading or deceptive conduct - unconscionable conduct - estoppel.

BANKING AND FINANCE — Banks – Statutory unconscionability – two year commercial loan – “asset lending” – breach of term of contract incorporating Banking Code of Practice.

BANKING AND FINANCE — Banks – breach of term of contract incorporating Banking Code of Practice cll 25.2 and 2.2 – requirement under term for co-operation between the customer and Bank – no breach by fixing final date for repayment after period of forbearance.

BANKING AND FINANCE — Banks — Bank accounts — Interest – entitlement to charge interest at contractual rates following expiry of loan – entitlement to interest on amounts paid and set aside for costs – repudiation – termination.

Tim Castle represented the Defendant.

Reasons for the judgement can be found here.