ASIC appeals Westpac’s success in the responsible consumer lending test case

In Australian Securities and Investments Commission v Westpac Banking Corporation (Liability Trial) [2019] FCA 1244, the Australian Securities and Investments Commission (ASIC) has brought a ‘test case’ considering alleged breaches of responsible lending obligations against Westpac Banking Corporation (Westpac). In particular, ASIC alleged Westpac breached the National Consumer Credit Protection Act 2009 (Cth) (the Act) through the use of its […]

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Lender’s minor omissions have major impact in summary judgment application

In Secure Funding v West [2017] QDC 169, the District Court of Queensland provides a helpful reminder of the importance of complying with contractual and legislative notice requirements.  As this case demonstrates, it is important for lenders to be able to demonstrate service of default notices so as to avoid minor omissions which can be costly.   […]

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Marshalling – what is it and how can it help a second registered mortgagee?

Marshalling is an equitable doctrine designed to protect second registered mortgagees from not being paid because of the arbitrary or capricious realisation of a security property by a prior mortgagee. In certain circumstances, a second registered mortgagee may be able to access surplus proceeds of sale from a property which it did not hold a mortgage […]

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Economic duress – what it is, and what it is not

Customers in disputes with their lender often raise economic duress in circumstances where a lender attempts to take enforcement action. The potential ramifications are significant because a successful claim of economic duress can render the relevant agreement voidable. However economic duress is not simply the application of economic pressure applied by one contracting party over […]

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Borrowers punished for behaving unconscionably in taking advantage of a lender’s mistake

The New South Wales Supreme Court decision of Citigroup v Wernhard [2019] NSWSC 132 considers whether certain conduct by the borrowers was unconscionable (as against a lender). Borrowers sold one of three properties that was held as security for loans to them, but the lender mistakenly released mortgages over all three. The borrowers noticed the mistake, subsequently sold […]

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Joint and several liability: effect of compromising the debt against one debtor

If a lender agrees to compromise its debt with one debtor who is jointly and severally liable for the debt with another debtor, does this compromise the whole debt? Not if the compromise is appropriately documented.   What is joint and several liability? Joint and several liability is where each debtor to a common debt […]

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