Australian and New Zealand Banking Group v RQA Accountants Pty Ltd and ors

The Australian and New Zealand Banking Group sought summary judgment for possession of property from RQA Accountants Pty Ltd and others. The dispute centred around the effect of a clause in the mortgage agreement which excluded reliance on a defence, counter-claim, or set-off in response to a claim for possession of secured property. The court had to determine whether this clause was valid and enforceable, and if so, whether it precluded the defendants from raising any defences or counter-claims.

The primary legal issues were whether the bank owed a fiduciary duty to the customer and if there was unconscionability due to the bank's superior bargaining position. Additionally, the court had to decide if the bank guarantee was equivalent to cash. The court examined the nature of the bank guarantee and its enforceability in the context of the mortgage agreement. The defendants argued that the bank's reliance on the exclusion clause was unconscionable given their unequal bargaining positions.

The court found that the clause in the mortgage agreement was valid and enforceable, thereby precluding the defendants from raising any defences or counter-claims. The court held that the bank did not owe a fiduciary duty to the customer, and there was no unconscionability in the transaction. Regarding the bank guarantee, the court determined that it was not equivalent to cash but rather a promise by the bank to honour the debt if the primary borrower defaulted. Consequently, the court granted the bank's application for summary judgment and ordered possession of the secured property.

The final orders included a declaration that the bank was entitled to possession of the property, and the defendants were required to vacate and deliver up possession within a specified timeframe. The court also ordered the defendants to pay the bank's costs of the application.