Stuart v Rabobank Australia Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 11 November 2021
• Neutral Citation: [2021] FCA 1388
• Date: 11 November 2021

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 Act 2001 (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 2010 (Cth) sch 2, The Australian Consumer Law s 238 Corporations Act 2001 (Cth) s 912A Evidence Act 1995 (Cth) ss 55, 76, 79, 97 Federal Court of Australia Act 1976 (Cth) s 37AF Judiciary Act 1903 (Cth) s 78B National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth) s 4, sch 1 s 3 National Consumer Credit Protection Act 2009 (Cth) sch 1, National Credit Code s 76 National Consumer Credit Protection Act 2009 (Cth) ss 128, 130 Trade Practices Act 1974 (Cth) ss 52, 87 Corporations Regulations 2001 (Cth) reg 7.6.02 Consumer Credit (Queensland) Act 1994 (Qld) app, Consumer Credit Code ss 6, 11 Credit (Commonwealth Powers) Act 2010 (Qld) ss 4, 11 Fair Trading Act 1989 (Qld) s 38 Limitations of Actions Act 1974 (Qld) ss 10, 38 Chancery Amendment Act 1858 (UK) s 2
Cases cited:	Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd (2021) 388 ALR 577; [2021] FCAFC 40 Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2018] FCA 155 Australian Securities and Investments Commission v Citrofresh International Ltd (2007) 164 FCR 333; [2007] FCA 1873 Australian Securities and Investments Commission v Dover Financial Advisers Pty Ltd (2019) 140 ACSR 561; [2019] FCA 1932 Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1; [2019] HCA 18 Australian Securities and Investments Commission v Narain (2008) 169 FCR 211; [2008] FCAFC 120 Australian Securities and Investments Commission v National Exchange Pty Ltd (2005) 148 FCR 132; [2005] FCAFC 226 Australian Securities and Investments Commission v The Cash Store Pty Ltd (in liquidation) (No 2) [2015] FCA 93 Australian Securities and Investments Commission v Westpac Banking Corporation (No 2) (2018) 266 FCR 147; [2018] FCA 751 Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80 Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205 Canavan v Wright [1957] NZLR 790 Commonwealth Bank of Australia v Quade (1991) 178 CLR 134; [1991] HCA 61 Connor v Blacktown District Hospital [1971] 1 NSWLR 713 Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Derry v Peek (1889) 14 App Cas 337; [1886-90] All ER Rep 1 Domain Names Australia Pty Ltd v .au Domain Administration Ltd (2004) 139 FCR 215; [2004] FCAFC 247 Dorfler v Australia and New Zealand Banking Group Limited (1991) 103 ALR 699; [1991] FCA 545 Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158; [1969] 2 All ER 119 Eckford v Six Mile Creek Pty Ltd (No 2) [2019] FCA 1307 Edgington v Fitzmaurice (1885) 29 Ch D 459; [1881-5] All ER Rep 856 Fuge v Commonwealth Bank of...