The bank lent money to a toy manufacturer. The debt was guaranteed by its directors and secured over various properties. The borrower defaulted and the guarantors lodged a dispute with FOS. FOS refused to consider the dispute for a number of reasons including the complexity and commercial nature of the loans and the borrowers sought …
Between April 2012 until May 2014, the borrowers lodged seven disputes with Financial Ombudsman Service which prevented the bank obtaining possession for those two years. When the bank finally sought summary judgement the borrowers argued the FOS complaints were still on foot. The judge adjourned to allow the bank to have FOS email them and …
The borrowers defaulted on their mortgage to the CBA. The borrowers lodged a complaint with FOS. The complaint was terminated by an agreement between the borrowers and the Bank under which the borrowers were required to make certain payments. The bank sent a notice of default. The borrowers did not respond in time to prevent …
The borrowers in this case were mother and daughter. The sought a stay of possession pending appeal of a summary judgment against them for possession. The question arose at the time of the summary judgment application as to whether several FOS disputes which had been lodged by the borrower were still on foot. A FOS …
The borrower defaulted and the bank sued the guarantor. At a very late stage (two years later) the guarantor sought to amend her defence and cross-claim to plead that she had no knowledge of executing the guarantee, and a Contracts Review Act defence. The court’s power to permit a defence to be amended is qualified …
FOS determined that the certain debts were unenforceable. The lender argued that there is an implied term in its contract with FOS that FOS must correctly decide questions of law. The judge held this was not the case: The Membership Contract only requires FOS to have regard to applicable legal principles. They are only one …
FOS v Pioneer Credit Acquisition Services [2014] VSC 172 Read More »
A lender in possession sold the debtor’s property and then the body corporate sought its unpaid levies and costs of recovery from the lender. The lender paid the unpaid levies but not the costs of recovery. The court held that under s 143(3) of the Body Corporate and Community Management Regulation 2008 (Qld), Westpac as …
Westpac v Body Corporate for the Wave Community [2014] QCA 73 Read More »
Borrowers obtained two loans to finance the purchase of a motel. One permitted deferral of interest and principal for max of 12 months. The other required repayment in 6 months. The borrowers defaulted and complained to the Australian Banking Ombudsman. An agreement was entered into providing for monthly instalments and repayment of the loan in …
A financial planner took FOS to court to dispute a determination. The financial planner did not seek judicial review of the decision but rather argued that the FOS determination was in breach of contract (the contract being the FOS terms of reference). The judge emphasised that a party signs up to an EDR it is throwing itself …
Utopia Financial Services v Financial Ombudsman Service [2012] WASC 279 Read More »
At the hearing on that day, the borrower informed the Master that he had lodged a complaint with the Financial Ombudsman. Acting on that assertion, the judge adjourned the hearing so as to allow the Financial Ombudsman to address the dispute. However, ANZ filed an affidavit which recorded communications between its lawyers, on the one …
