Jams 2 Pty Ltd v Stubbings

[2020] VSCA 200

Victorian Court of Appeal

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Interrogate

Catchwords

1. Equity
2. › Unconscionable conduct
3. › Asset-based lending
4. › Lending organised by firm of solicitors
5. › Lending secured on borrower's only significant assets
6. › No evidence of ability to repay sought or received
7. › Whether asset-based lending unconscionable
8. › Whether lenders put on inquiry
9. › Whether lenders entitled to rely on certificates of independent legal and financial advice
1. Equity
2. › Unconscionable conduct
3. › Statutory unconscionability
4. › Normative standard under s 12CB of ASIC Act
5. › Whether 'moral obloquy' required
6. › Whether conduct so far outside societal norms of acceptable commercial behaviour as to warrant condemnation
7. › Australian Securities and Investments Commission Act 2001 (Cth), ss 12CB, 12CC
1. Equity
2. › Unconscionable conduct
3. › Knowledge of special disadvantage
4. › Categories of knowledge
5. › Wilful blindness
6. › Whether solicitor wilfully and recklessly failed to make inquiries
7. › Whether knowledge of borrower's circumstances should be imputed to lender

Quick Take

Practitioners advising lenders engaged in asset-based lending should note that obtaining certificates of independent legal and financial advice from the borrower may relieve the lender of obligations to make further inquiries about the borrower's financial circumstances, even where the lender suspects the borrower may lack income to service the loan.