A company loan was secured by mortgages and guarantees given by the company’s directors. The company directors filed a defence in which they claimed that the bank had represented that it would make a further advance and that this constituted:
- misleading and deceptive conduct under 12DA of the ASIC act; and
- unconscionable conduct under 12CB of the ASIC act;
The bank argued that only the company had standing to make such claims or defences.
The court found that the cause of action in sections 12DA and 12CC of the Act extended to persons who suffered damage, including a guarantor, since it was arguable that, as a result of the bank’s conduct, the company defaulted, thereby exposing the guarantors to liability under the guarantees. There was an arguable issue that the guarantor suffered loss by reason of the bank’s representations and/or breach of contract. The court refused to strike out the defence.