Mastronardo & Anor v Commonwealth Bank of Australia Ltd & Ors

[2018] NSWCA 136

NSW Court of Appeal

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Interrogate

Catchwords

1. Banking and Finance
2. › Loan facility agreements
3. › Release of securities
4. › Cross-collateralisation
5. › Whether bank's refusal to release securities was unconscionable
6. › Whether bank committed breach or anticipatory breach of contract by indicating it would not adhere to release provision
7. › Australian Securities and Investments Commission Act 2001 (Cth), ss 12CB, 12CC, 12GF
1. Banking and Finance
2. › Unconscionable conduct in business transactions
3. › Statutory unconscionability
4. › Whether conduct fell below acceptable norms and standards
5. › Relevance of contractual entitlements and commercial context
6. › Whether 'high level of moral obloquy' required
7. › Australian Securities and Investments Commission Act 2001 (Cth), s 12CC
1. Banking and Finance
2. › Loan facility agreements
3. › Events of default
4. › Whether loss or damage suffered by reason of bank's conduct
5. › Whether appellants could have met conditions for release of securities

Quick Take

A bank's refusal to release cross-collateralised securities and its request that all facilities be refinanced does not constitute unconscionable conduct under s 12CC of the ASIC Act where the bank is enforcing its contractual terms in a commercial context with experienced borrowers, particularly where the conditions for release of the securities (no event of default and maintenance of LVR) could not realistically be satisfied.