Donnelly v ANZ [2014] NSWCA 145

This case concerned a dual currency HKD/AUD loan. The loan was converted to AUD by the bank when the value of the AUD fell. The wife’s claims of unconscionability, breach of agreement and estoppel were all rejected by the court and the bank obtained possession and judgment against the wife. The wife appealed.

The Court of Appeal found no error in the lower court’s findings that the bank had not acted unconscionably because the bank had explained the risks of the loan to the wife, albeit her understanding was imperfect, it was the wife’s choice not to seek legal advice and the wife was not in a position of special disadvantage. The Court of Appeal found no evidence that the bank knew or should have known that the wife did not understand the facility.

The bank’s evidence was in part based upon the bank officer’s usual practice. The Court of Appeal noted that evidence can be given of what was done on a particular day, even though the witness has no distinct recollection of the particular day, if it was part of their practice to do the act regularly.

The Court of Appeal also found that the wife was not allowed to argue a new point that it was unconscionable for the bank to rely on a disclaimer which indicated that the loan was not subject to Australian statutory regulation since it was not raised before the lower court and nothing indicated that the wife would have acted differently had she been aware of the disclaimer. The Court of Appeal also rejected the wife’s argument that the bank’s information sheet was misleading because it did not refer to exchange risks on the basis that the officer was found to have informed them of the exchange risks at their meeting.

The appeal was dismissed.

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