National Australia Bank v McCall

SUPREME COURT OF QUEENSLAND

CITATION:

National Australia Bank v McCall [2011] QSC 25

PARTIES:

NATIONAL AUSTRALIA BANK LIMITED
ACN 004 044 937

(Plaintiff/First Defendant by Counterclaim)

v

CAMERON HUGH McCALL

(Defendant/Plaintiff by Counterclaim)

and

CRAIG MAXWELL HACKETT

(Second Defendant by Counterclaim)

FILE NO:

BS 4762 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 February 2011

DELIVERED AT:

Brisbane

HEARING DATE:

17 December 2010

JUDGE:

McMurdo J

ORDER:

The plaintiff’s applications are dismissed.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – PARTICULAR CASES – BANKS OR FINANCIAL INSTITUTIONS – where the applicant bank made three loans to the respondent – where an employee of the bank told the respondent that the third loan would stand alone from the first and second loans – where the bank represented it assessed and approved the third loan on correct information of the respondent’s income and assets – where the bank represented the respondent satisfied its lending criteria – whether the bank engaged in misleading and deceptive conduct – whether the bank engaged in unconscionable conduct – whether the bank breached its obligations under the Code of Banking Practice – whether summary judgment in favour of the applicant should be granted

Australian Securities and Investments Commission Act 2001 (Cth)

Trade Practices Act 1974 (Cth)
Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349
Clairview Developments Pty Ltd v Law Mortgages Gold Coast Pty Ltd [2007] 2 Qd R 501
Commonwealth Bank of Australia v Renstel Nominees Pty Ltd [2001] VSC 167
Commonwealth Bank of Australia v Spira (2002) 174 FLR 274; [2002] NSWSC 905
Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151
Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161
Kendell v Sweeney & Ors [2005] QSC 064

Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234

COUNSEL:

A Pomerenke for the applicant

FL Harrison QC with J O’Regan for the respondent

SOLICITORS:

Allens Arthur Robinson for the applicant

Deacon & Milani for the respondent

[1]      The plaintiff bank lent money to the defendant, Mr McCall, under three contracts.  The first was described as the Home Loan Facility, under which $500,000 was advanced in 2006.  The second was the Portfolio Facility, under which money was first advanced in March 2007.  Under that agreement, Mr McCall was able to draw up to a limit of at first $2,220,000, which was increased in December 2007 to $2,460,000.  These loans were each secured by mortgages over properties owned by Mr McCall at St Lucia and the Gold Coast.

[2]      No complaint is made by Mr McCall about the terms of those two loan contracts or the circumstances under which they were made.  Clearly the amounts claimed by the bank under these contracts were lent.  According to the admitted terms of those contracts, the bank was entitled to call up the amounts owing…