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Australia and New Zealand Banking Group Limited v Ngo [2022] VSC 713

BANKING AND FINANCE, MISLEADING, DECEPTIVE AND UNCONSCIONABLE CONDUCT, CONSUMER LAW, CONSUMER CREDIT
Supreme Court of Victoria
Division: 
Commercial Court
Judge(s): 
M Osborne J
Parties: 

Australia and New Zealand Banking Group Ltd (ACN 005 357 522) v Ngo, Chuc Hong; Counterclaim: Ngo, Chuc Hong & Jessica's Public P/L (ACN 159 147 823) v Australia and New Zealand Banking Group Ltd (ACN 005 357 522)

Judgment Date: 
22 November 2022
Catchwords: 

BANKING AND FINANCE - Consumer and small business lending - Default under business and residential loan agreements - Whether defendant had 'financial nous' - Stubbings v Jams 2 Pty Ltd (2022) 96 ALJR 271 - Whether defendant was better off having had loan - Commonwealth Bank of Australia v Dinh [No 2] [2019] WASC 456 - Whether defendant entitled to damages, compensation, discharge of mortgages and legal costs by counterclaim - Whether the plaintiff's conduct fell short of the requisite care and skill of a diligent and prudent banker - Whether plaintiff met its responsible lending obligations - Application of Australian Bankers' Association Code of Banking Practice - Judgment entered for the plaintiff - Orders for possession of the properties.

MISLEADING, DECEPTIVE AND UNCONSCIONABLE CONDUCT - Whether plaintiff engaged in misleading, deceptive or unconscionable conduct - Unconscionable conduct required to be more than unfair or unreasonable - Whether plaintiff made a misleading representation about a future matter - Whether ss 4, 18, 20 and 21 of sch 2 of the Competition and Consumer Act 2010 (Cth) apply - Whether ss 12CB, 12CC and 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) instead apply.

CONSUMER LAW - Whether services were provided by plaintiff with due care and skill - Whether plaintiff upheld statutory guarantee of fitness for purpose - Whether ss 60 and 61 of sch 2 of the Competition and Consumer Act 2010 (Cth) apply - Whether defendant was a 'consumer' under the relevant legislation.

CONSUMER CREDIT - Whether the National Consumer Credit Protection Act 2009 (Cth), including sch 1, the National Credit Code, apply to both the business and residential loans - Whether assessment of borrower under residential loan was sufficient - Whether credit contract was suitable for residential loan - Use of borrower's declared living expenses in determining suitability for residential loan - Australian Securities and Investments Commission v Westpac Banking Corporation (2019) 139 ACSR 25 - Whether residential loan was provided in unjust circumstances - Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199 - Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392 - Mackintosh v Johnson (2013) 37 VR 301 - Director of Consumer Affairs Victoria v Scully (2013) 303 ALR 168.

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