NAB v Swed [2015] NSWSC 1322

The bank obtained default judgment and the borrower sought a stay of eviction. The stay was granted and the default judgment set aside. The bank then sought possession. The borrower admitted the mortgage but denied default. Ultimately it came to light that his wife had accessed the home loan account money and gambled it away, unknown to him. The bank accused the borrower of extreme carelessness in failing to protect his PIN and password or disclosing them to his wife and claimed that the husband breached the terms and conditions of the use of the bank’s debit cards.

The court said:

There seem to me to be only two realistic scenarios. The first is that they are, generally speaking, telling the truth, that is, that the wife systematically defrauded the husband of the money in the Home Loan account and used it to feed her gambling habit and he knew nothing about it. The second is that they have conspired to provide an explanation for the home loan being in default and to avoid the property being re-possessed and a monetary judgment against the husband.

The court found that the wife had misappropriated the money to satisfy her gambling addiction and the husband had not disclosed his password or PIN to her at any time. The court found no conspiracy between the husband and wife. The court also refused to find that the husband acted with extreme carelessness in relation to his PIN and password and found that he did what he could to keep them secret. The court said:

The example given in the footnote to the Electronic Funds Transfer Code of Conduct (issued by ASIC) of what might constitute extreme carelessness shows that what husband did was in a different category altogether.

The example given in the Code was storing the user’s user name and password for internet banking in a diary or computer (not locked with a PIN) under the heading “Internet Banking codes”.

The court gave judgment for the husband.

Click here to read the full judgement

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