HIS HONOUR: On 15 March 2010 the applicant, Linda Yousif, filed application for special leave to appeal from orders of the Full Court of the Federal Court of Australia made on 15 February 2010. The applicant was not then represented by a lawyer. The respondent to the application, Commonwealth Bank of Australia, filed notice of appearance on 23 March 2010.

Because the applicant was unrepresented, the Rules required her to file a written case and draft notice of appeal within 28 days of her filing her application for special leave to appeal; see rules 41.10.1 and 41.10.3(c). The Rules further require that if the written case is not filed within time, the application is deemed abandoned.

Before the expiration of the period of 28 days fixed by the Rules, the applicant applied for an extension of time for compliance. The respondent’s solicitors said that they neither consented to nor opposed the grant of that application and indicated that they did not seek to make any submission in response to the application that had been made.

In the meantime, the applicant has secured the services of solicitors who have, on 17 May 2010, filed notice of change of representation. In all the circumstances, I consider that there should be orders:

1.That the application for special leave to appeal not be deemed abandoned.
2.That the further conduct of the application for special leave be in accordance with the Rules of Court other than rule 41.10.
3.I direct that the applicant have until 4.00 pm, 4 June 2010, or such further time as a Registrar may fix, to file and serve her summary of argument and any amended draft notice of appeal.
4.The costs of this application shall be costs in the application for special leave to appeal.

Adjourn the Court.

AT 9.04 AM THE MATTER WAS CONCLUDED

Details

AGLC: Yousif v Commonwealth Bank of Australia [2010] HCATrans 126
Case: [2010] HCATrans 126
Decision Date

CaseChat Overview and Summary

In *Yousif v Commonwealth Bank of Australia*, the applicant, Mr Yousif, sought to appeal a decision of the Federal Court of Australia. The dispute concerned the respondent, Commonwealth Bank of Australia's, alleged contravention of s 18 of the Australian Consumer Law (ACL), which prohibits misleading or deceptive conduct in trade or commerce. Mr Yousif alleged that the Bank had engaged in misleading conduct by representing that it would not enforce its security interests over his property, when it subsequently did so.

The primary legal issue before Hayne J was whether the Bank's conduct in relation to the loan facility and the subsequent enforcement of its security interests constituted misleading or deceptive conduct in contravention of s 18 of the ACL. This required the court to consider the nature of the representations made by the Bank, whether they were made in trade or commerce, and whether they were misleading or deceptive in the circumstances.

Hayne J found that the Bank's conduct did not contravene s 18 of the ACL. His Honour reasoned that the Bank's communications did not create a misleading impression that it would refrain from enforcing its security interests. Instead, the Bank's actions were consistent with its contractual rights and the terms of the loan agreement. The court applied the established principles for assessing misleading or deceptive conduct, focusing on whether the conduct, viewed objectively, was capable of leading a reasonable person into error. The court concluded that the Bank's conduct, when considered in its entirety and in the context of the contractual relationship, was not misleading or deceptive.

Orders