Buy Now Pay Later: ‘Walks like a duck’ regulation announced
On 22 May 2023, the Treasury announced that the Buy Now Pay Later (BNPL) industry will be regulated under the National Consumer Credit Protection Act 2009 (Credit Act). The move was announced by the financial services minister and assistant treasurer, Stephen Jones MP, at the Responsible Lending & Borrowing Summit. The announcement confirms that the […]
ReadmoreBuy Now Pay Later Options Paper: The reforms start to take shape
On 21 November 2022, the Buy Now Pay Later (BNPL) options paper was released by Treasury for public consultation (Options Paper). The Options Paper examines the regulatory challenges of emerging financial products, particularly BNPL, and the appropriate regulatory approach to maintain the advantages of accessing credit while sufficiently protecting consumers. With the closing date for […]
ReadmoreAFCA has the final word: Courts will only disturb AFCA determinations in limited circumstances
Australia Capital Financial Management Pty Ltd v Australian Financial Complaints Authority Limited [2022] NSWCA 204 The NSW Court of Appeal has upheld a decision that AFCA had jurisdiction to decide that a lender engaged in unconscionable conduct by taking a guarantee such that it was unenforceable and compensation had to be paid, despite the lender […]
ReadmoreWhat goes up, must come down – Declining property values, rising interest rates, mortgage distress and assisting through financial difficulty
Partner Sonia Apikian and Senior Associate Susan Verginis discuss trends on Australian housing values, interest rates and their impact upon mortgage distress, with a focus on how lenders can assist their customers through financial difficulty. Click below to read the full article. If you found this insight article useful and you would like to subscribe […]
ReadmoreDisclosure obligations for financial service providers in NSW: One-year on from reforms to the Fair Trading Act 1987 (NSW)
It has been over a year since reforms were introduced under the Fair Trading Act 1987 (NSW) (the Act) requiring suppliers (including of financial services) to take reasonable steps to disclose to their customers prejudicial contract terms and for intermediaries to disclose the arrangement under which they are acting, including referral commissions. The disclosure requirements […]
ReadmoreHow to avoid contaminating an insolvency appointment: when a disclaimer of land may be set aside
In March 2019, Liquidators were appointed to The Australian Sawmilling Company Pty Ltd (TASCO) by way of a creditors’ voluntary winding up. TASCO owned a large lot of contaminated land – there were stockpiles of construction and demolition waste resulting from a former licensee conducting a materials recycling business. Close to a year before this, […]
ReadmoreUnconscionable conduct in asset based lending: Stubbings v Jams 2 Pty Ltd [2022] HCA 6
Recently, the High Court of Australia found unconscionable conduct on the part of a lender on an asset based loan and held that the lender could not rely on the certificates of independent legal and financial advice procured from the borrower to immunise the transaction against unconscionable conduct laws. The loan was made to a […]
ReadmoreCOVID-19 | Victorian Commercial Tenancy Relief 3.0 – Victoria introduces extended rent relief for small business
In response to the ongoing impact of COVID-19, the Victorian Government has now released the Commercial Tenancy Relief Scheme Regulations 2022 (Vic) (2022 Regulations) which extends the entitlement to rent relief and related protections for certain small businesses. What has changed? Our previous publication on the Commercial Tenancy Relief Scheme Regulations 2021 (2021 Regulations) can be found […]
ReadmoreGroup costs orders – The way of the future?
The Victorian Supreme Court’s decision in Fox v Westpac Banking Corporation; Crawford v Australia and New Zealand Banking Group Limited[1] was the first determination of an application seeking a group costs order in Australia. Whilst the Plaintiffs’ applications were ultimately unsuccessful, the Court decided to adjourn the applications (rather than dismiss them altogether) in order […]
ReadmoreIs a Mortgagee’s 60% default interest rate just a collateral advantage? Or is it unfair and unconscionable?
Mortgagees should not only consider the content of a mortgage term, but the effect of its operation. If the effect of the mortgage terms could be seen to operate unfairly or unconscionably to a mortgagor, as discussed in the recent decision of the New South Wales Supreme Court in First Mortgage Capital Pty Ltd v […]
ReadmoreGadens Connect | 2021 Edition Four
In this edition of Gadens Connect, our team provides an overview of key performance indicators as we move into Christmas; an update on the new Financial Difficulty Guideline; an insight into legislative changes in relation to witnessing of affidavits (South Australia); a summary of FAQs regarding mortgagee in possession liability; and an overview of smoke […]
ReadmoreHolman v Brisbane Roar: Court confirms player entitled to recover insurance payments made to club
Brett Holman is a household name for all Australian football fans. He spent most of his professional football career overseas playing in the Dutch Eredivisie, Premier League and UAE Pro League before returning to Australia in 2016 for a final swansong in the A-League with Brisbane Roar FC. He also made 63 appearances for the […]
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