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Banks and unfair protections

Tuesday, December 16, 2014

The Banks are opposing unfair contract protections for small business people. Here’s their submission. But NAB were recently found to have engaged in  "…misleading and deceptive conduct … through its bank officer…" and had a mortgage guarantee set aside.

Extracts from the case National Australia Bank Limited v Smith [2014] NSWSC 1605 (13 November 2014) appear below—

BANKING - a bank advanced money to a company for the purchase of a business and took mortgage security over the domestic residence of the company's principal and his wife to support their guarantees of the bank's advance to the company - the company defaulted on the loan - the guarantors sold their residence partially to satisfy the Bank's claims on the guarantees - whether the Bank engaged in misleading and deceptive conduct or unconscionable conduct in relation to the guarantees and the mortgage - whether these securities are unjust under …

Conclusion and Orders
363.    The Court's principal conclusions may be briefly stated. The Court has found that Craig and Denise Smith, the second cross-claimants are able to set aside the mortgages and guarantees they signed as part of the Statewide transaction which they entered in December 2004 on several grounds, including misleading and deceptive conduct by the Bank through its bank officer, Mr Shackleton, for breaches of fiduciary duty ...
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