UPDATE 87 APRIL 2013 THE LAW RELATING TO BANKER AND CUSTOMER IN AUSTRALIA
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1 UPDATE 87 APRIL 2013 THE LAW RELATING TO BANKER AND CUSTOMER IN AUSTRALIA GA Weaver, CR Craigie Gregory K Burton SC, PM Weaver Dr Alan L Tyree and GT Breen Highlights Corporations Regulations 2001 (Cth) updated. New Developments updated. ASIC Regulatory Guides updated. Material Code Print Post Approved PP255003/00356 Thomson Reuters (Professional) Australia Limited 2013 Looseleaf Support Service You can now access the current list of page numbers at If you have any questions or comments, or to order missing pages, please contact Customer Care LTA ANZ on Fax: LTA.Service@thomsonreuters.com
2 LEGISLATION Corporations Act 2001 (Cth) Cross-references at the following sections of the Corporations Act 2001 (Cth) have been updated: ss 912A, 912D, 916A and 916B. Corporations Regulations 2001 (Cth) Regulation of the Corporations Regulations 2001 (Cth) has been amended by the Professional Standards Scheme Legislation Amendment Regulation 2013 (No 1) (Cth) (SLI 25 of 2013), with effect from 1 March The Regulation amends the Australian Securities and Investments Commission Regulations 2001 (Cth) and Corporations Regulations 2001 (Cth) to prescribe the following professional standards schemes: New South Wales Bar Association Scheme; South Australian Bar Association Incorporated Scheme; Law Society of New South Wales Scheme; Queensland Law Society Scheme; and Law Society of South Australia Professional Standards Scheme. NEW DEVELOPMENTS Recent Cases Digests of the following cases have been included: The Australian financial system: law, practice, regulation, institutions [ND.1] BOQ Ltd v Chartis Aust Insurance Ltd; [ND.2] R v Wang; and [ND.3] Joffe v The Queen. Financial institution and customer: basic principles [ND.7] Mclean v Westpac Banking Corporation; [ND.8] Commonwealth Bank of Australia Ltd v Marsden; [ND.9] Commissioner of Taxation v Consolidated Media Holdings Ltd; [ND.10] Dolphin Quay Pty Ltd v Symbol Nominees Pty Ltd; [ND.11] McIvor v Westpac Banking Corporation; [ND.12] Tran v Perpetual Trustees Victoria Ltd; [ND.13] Joffe v The Queen; Banker & Customer in Australia 2
3 [ND.14] Citigroup Pty Ltd v National Australia Bank Ltd; [ND.15] Signorelli v M G South Pty Ltd; [ND.16] Re Tomic Industries Pty Ltd; [ND.17] Streetscape Projects (Australia) Pty Ltd v City of Sydney; [ND.18] V-Flow Pty Ltd v Holyoake Industries (Vic) Pty Ltd; [ND.19] Bank of Queensland Ltd v Tsakmakis; [ND.20] Commonwealth Bank of Australia v Thompson; [ND.21] Provident Capital Ltd v Papa; [ND.22] Oswal v Commonwealth Bank of Australia; [ND.23] Registrar, Aboriginal and Torres Strait Islander Corporations v Ponto; and [ND.24] Zomojo Pty Ltd v Hurd (No 2). Financial institution and customer: accounts and types of customer [ND.30] Mills v Federal Commissioner of Taxation; [ND.31] Re Jax Franchising Systems Pty Ltd; [ND.32] Commonwealth Bank of Australia v Oswal; [ND.33] Westgem Investments Pty Ltd v Saracen Project Management Pty Ltd [No 2]; [ND.34] Commissioner of Taxation v Consolidated Media Holdings Ltd; [ND.35] Nicholls v Michael Wilson Partners Ltd; [ND.36] Commonwealth Bank of Australia Ltd v Marsden; [ND.37] Australian Executor Trustees Ltd v Provident Capital Ltd (No 3); [ND.38] James v Woodgate; [ND.39] Lawrie v Hwang; [ND.40] Poumako (Bankrupt) v Poumako (No 3); [ND.41] Tapp v LawCover Insurance Pty Ltd; [ND.42] Re Neeeat Holdings (in liq); [ND.43] State Trustees Ltd v Hassett; [ND.44] Australian Securities and Investments Commission v GDK Financial Solutions Pty Ltd (No 13); [ND.45] Re Australia Seiwa Pty Ltd; [ND.46] Ballantyne Suites Pty Ltd v Ballantyne Chambers Pty Ltd; [ND.47] Quikfund (Australia) Pty Ltd v Prosperity Group International Pty Ltd (In Liq); and [ND.48] Westfield Management Ltd v AMP Capital Property Nominees Ltd. Banker & Customer in Australia 3
4 Derivatives [ND.55] Joffe v The Queen. Consumer payment and finance [ND.56] Westpac Banking Corporation v Chadha; and [ND.57] Andrews v Australia and New Zealand Banking Group Ltd. Negotiable instruments: bills and notes; trade and finance applications [ND.58] Perpetual Trustee Company Ltd v HIH Holdings (NZ) Ltd (In Liq). Mistaken transactions [ND.59] Hills Industries Ltd v Australian Financial Services and Leasing Pty Ltd; and [ND.60] Citigroup Pty Ltd v National Australia Bank Ltd. Business finance facilities [ND.61] Signorelli v M G South Pty Ltd. Guarantees [ND.62] Commonwealth Bank of Australia v Starrs; [ND.63] Westpac Banking Corporation v Chadha; [ND.64] Lean v Clarence Property Corporation Ltd; [ND.65] Commonwealth Bank of Australia Ltd v Chamos; [ND.66] Australia and New Zealand Banking Group Ltd v Lee; [ND.67] Commonwealth Bank of Australia v Thompson; and [ND.68] McIvor v Westpac Banking Corporation. Mortgages and Charges [ND.70] Stoker v Picken; Banker & Customer in Australia 4
5 [ND.71] Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd; [ND.72] Conlan v Stone; [ND.73] Gibbons v Pozzan; [ND.74] Primary Yield Finance Pty Ltd v Meyer; [ND.75] Commonwealth Bank of Australia Ltd v Marsden; [ND.76] McIvor v Westpac Banking Corporation; [ND.77] Commonwealth Bank of Australia v Starrs; [ND.78] Bank of Western Australia Ltd v Coppola (No 2); [ND.79] First Mortgage Managed Investments Ltd v Pittman; [ND.80] Phoenician Holdings Pty Ltd t/as Cadmus Lawyers v Rahme; [ND.81] Australia and New Zealand Banking Group Ltd v Mishra; [ND.82] Verge v Fazio; [ND.83] GE Mortgage Solutions Ltd v Fassos; [ND.84] Windemac Pte Ltd v Jada Ex Beverages Pty Ltd; [ND.85] Bateson v Jones; [ND.86] Khoury v El Khoury; [ND.87] ING Bank (Australia) Ltd v Wilson; [ND.88] Quikfund (Australia) Pty Ltd v Prosperity Group International Pty Ltd (In Liq); [ND.89] Juric-Kacunic v Vaupotic; [ND.90] Provident Capital Ltd v Naumovski; [ND.91] State Trustees Ltd v Hassett; [ND.92] Sun North Investments Pty Ltd v Dale; [ND.93] Perpetual Trustee Company Ltd v Moussa; [ND.94] Hargraves Secured Investments Ltd v Sharpe; [ND.95] Re Barclays Bank PLC; [ND.96] Australian Securities and Investments Commission v Letten (No 20); [ND.97] ABN Amro Clearing Sydney Pty Ltd v Primebroker Securities Ltd; [ND.98] Australian Securities and Investments Commission v GDK Financial Solutions Pty Ltd (No 13); [ND.99] Re Cardinia Nominees Pty Ltd; and [ND.100] McGarry v 14 Hiscock Street Pty Ltd. Securities: enforcement and relief [ND.107] McGarry v 14 Hiscock Street Pty Ltd; [ND.108] Commonwealth Bank of Australia v Duckworth; Banker & Customer in Australia 5
6 [ND.109] Erol v Cavus; [ND.110] Westpac Banking Corporation v Chadha; [ND.111] Cassegrain v Gerard Cassegrain & Co Pty Ltd (in liq); [ND.112] Re Auzhair Supplies Pty Ltd (in liq); [ND.113] Mclean v Westpac Banking Corporation; [ND.114] MK Builders Pty Ltd v CGU Insurance Ltd; [ND.115] Oswal v Commonwealth Bank of Australia; [ND.116] Indigo Financial Money Pty Ltd v Bolivar Road Pty Ltd (in liq); [ND.117] Holbrook v Professional Services Of Australia Pty Ltd; and [ND.118] Re Australia Seiwa Pty Ltd. Related Reading Abstracts of the following journal articles have been included: [ND.500] The consumer and the Personal Property Securities Act 2009: Does the regime protect consumers?; [ND.505] Causation in securities litigation; [ND.540] Covered bonds: Their introduction and regulation in Australia; [ND.545] Imposing proprietary interests in insolvencies; [ND.550] The persistence of equitable doctrines with respect to the law relating to personal property securities: Assessing the impact of the Personal Property Securities Act 2009 (Cth); [ND.555] Case note: Wingecarribee Shire Council v Lehman Brothers Australia Ltd (in liq) [2012] FCA 1028; [ND.560] If it waddles and quacks, it s probably a duck: The New Zealand Supreme Court's decision in Hickman v Turner and Waverley Ltd; [ND.565] The doctrine of merger and post-judgment contractual interest; [ND.570] The CAMAC Report on managed investment schemes: Another opportunity missed?; [ND.625] Crowd funding: Regulating the new phenomenon; [ND.630] Directors duties to creditors: Walker v Wimborne revisited; [ND.680] Debts incurred by receivers, administrators and liquidators: The case for a harmonised construction of ss 419, 443A and 556(1)(a) of the Corporations Act; [ND.685] The nature of corporate insolvency practitioner liens; and [ND.690] Receivership and the Personal Property Securities Act 2009 (Cth): Why distinctions remain relevant. Banker & Customer in Australia 6
7 ASIC MATERIAL ASIC Regulatory Guide 204: Applying for and varying a credit licence has been updated at [RG 204]. ASIC Regulatory Guide 209: Credit licensing: Responsible lending conduct has been updated at [RG 209]. Banker & Customer in Australia 7
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