A lender settled with his borrower and obtained consent orders. The borrower defaulted in payment of the last instalment. The lender sought judgment for the amount of the judgment debt and the borrower sought an extension of time to pay the final instalment and argued that the clause in the deed which provided for payment …
This is the decision in the big litigation-funded class action over bank late fees. We previously reported that the litigation funder won at first instance. This report concerns the appeal (which was won by the bank). ANZ made an admission that it did not determine the quantum of each Exception Fee by reference to a …
The bank sought possession and a monetary judgment for $31m. The borrower admitted the debt but claimed that the bank represented to him that it would ‘lend to him forever’ and that his financial problems were as a result of the bank withholding development funds it had promised. The court was not satisfied that the …
Neale v Bank of Western Australia [2014] NSWSC 315 Read More »
This is the decision in the big litigation-funded class action over bank late fees. The court held that the late payment fees constituted a penalty because they were properly characterised as payable upon breach and not for further credit since credit had already been extended. The court further found that the fees were extravagant, exorbitant …
The borrower defaulted as a result of the lender failing to upload new account details onto its computer system. The lender took possession and sold one of the mortgaged properties to a third party. The borrower brought an application before the tribunal claiming that the default notice was defective because at the time of issue, …
A property developer found himself in dire financial straits. He approached a lender who loaned him the money in return for a fixed charge over shares and granted an option to buy the developer’s shares in the development company as security for the loan. The borrower defaulted and the lender exercised the option. The loan …
It has been long established (hundreds of years) that if you say the higher rate of interest is the official rate and the lower rate is a concessionary rate, then the clause will not be struck down as a penalty (whereas the other way around and it will be). This old rule was once criticised …
The borrower sought a stay eviction citing arguing that a stay should be granted because they have an appeal with arguable prospects, success in which will be rendered nugatory without a stay. The borrower proposed to appeal on the grounds that the following clause was a penalty: The standard rate of 7.50 per cent per …
Background This case was the first important milestone of a class action brought against the banks by litigation funder IMF seeking to claw back various account fees on the grounds they are void as penalties. A penalty is clause that punishes a breach of the contract with payment of a predetermined sum which is out …
This is the first of the interlocutory skirmishes in the much awaited class action by customers of the ANZ bank. The customers seek repayment of a variety of fees for unauthorised overdrafts, overdrawn accounts, dishonour fees and over limit credit card accounts (“Exception Fees”). The fees are charged pursuant to contracts between the customers and …
