Stuart v Rabobank Australia Ltd

[2021] FCA 1388

FEDERAL COURT OF AUSTRALIA

Stuart v Rabobank Australia Ltd [2021] FCA 1388

File number:

NSD 471 of 2019

Judgment of:

HALLEY J

Date of judgment:

11 November 2021

Catchwords:

BANKING AND FINANCIAL INSTITUTIONS – misleading or deceptive conduct – financial products – loan facility – allegations that respondent misled applicants by making representations as to loan facility – whether representations were made – whether representations were false or misleading – whether representations contravened s 12DA of the Australian Securities and Investments Commission Act2001 (Cth) (ASIC Act) – whether representations were fraudulent – tort of deceit – whether provision of finance unconscionable – whether conduct contravened ss 12CB and 12CC of the ASIC Act – whether respondent’s conduct at mediation unconscionable – cross-claim by respondent for outstanding indebtedness

DAMAGES – ss 12GF and 12GM of the ASIC Act – tort of deceit – causation – identification of counterfactual – whether applicants’ loss was result of respondent’s conduct – whether respondents have suffered loss or damage by reason of applicants’ default

LIMITATION OF ACTIONS – ss 12GF and 12GM of the ASIC Act – applicants time barred – s 38 of Limitation of Actions Act 1974 (Qld) – whether applicants discovered the alleged fraud prior to the end of the limitation period – applicants time barred

CONSUMER LAW – whether respondent contravened s 76 in sch 1 to the National Consumer Credit Protection Act 2009 (Cth) (National Credit Code) – whether loan advanced by respondent was “carried over instrument” – whether loan facility was a credit contract – whether loan was for personal, domestic or household purposes – whether deed of forbearance was a credit contract – application made to issue notice pursuant to s 78B of the Judiciary Act 1903 (Cth) (78B notice) due to alleged conflicting interpretations of the National Credit Code – application to issue 78B notice dismissed

EVIDENCE – proposed tender of expert reports – s 79(1) of the Evidence Act 1995 (Cth) (Evidence Act) – whether expert witnesses had requisite specialised knowledge – whether opinions of expert witnesses based wholly or substantially on that knowledge – reports inadmissible – alleged delay by respondent to comply with discovery obligations – respondent’s delay in producing documents did not justify drawing of any adverse inferences – application to adduce tendency evidence – s 97 of the Evidence Act – whether reasonable notice provided – whether proposed evidence has significant probative value – application dismissed – admissibility of hardship evidence – efficient conduct of hearing

PRACTICE AND PROCEDURE – application to set aside deed of forbearance – whether equity will intervene to prevent unconscientious reliance on deed of forbearance

CONTRACTS – whether binding contract entered into regarding carbon farming project – whether any loss or damage flowed from alleged breach of contract

Legislation:

Constitution s 51

Australian Securities and Investments Commission Act 2001 (Cth) ss 12CB, 12CC, 12DA, 12GF, 12GM

Competition and Consumer Act 2010 (Cth) s 87

Competition and Consumer Act