ANZ v RQA Accountants [2013] NSWSC 165

The lender sought summary judgment for possession against husband and wife accountants. The mortgages provided that the borrowers will pay without deduction, withholding for tax and without any set-off or counterclaim. The borrowers argued a fiduciary duty on the part of the bank, as long-standing customers, not to lend them money, or having done so, to lend them more when they needed it. They claimed damages due to the major social embarrassment and stress.

The court found that the bank owed no fiduciary duty to the borrowers. The relationship between banker and customer is principally a contractual one between debtor and creditor. The court found that the borrowers had no arguable defence to the bank’s claim for possession.. The court found no arguable defence based on unconscionable conduct, noting that the husband described himself as having substantial commercial savoir-faire and did not suffer from any special disability. The court noted that even if any of the claims had been arguable, the set-off clause prevented such matters being raised as a defence to the bank’s claim.

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