Leveraged Equities Limited v Goodridge [2011] FCAFC 3

FEDERAL COURT OF AUSTRALIA

Leveraged Equities Limited v Goodridge [2011] FCAFC 3 Citation: Leveraged Equities Limited v Goodridge [2011] FCAFC 3

Appeal from: Goodridge v Macquarie Bank Limited [2010] FCA 67

Parties: LEVERAGED EQUITIES LIMITED v ROSS IAN GOODRIDGE and MACQUARIE BANK LIMITED MACQUARIE BANK LIMITED v ROSS IAN GOODRIDGE and LEVERAGED EQUITIES LIMITED

File numbers: NSD 269 of 2010 NSD 270 of 2010

Judges: FINKELSTEIN, STONE & JACOBSON JJ

Date of judgment: 18 January 2011

Catchwords: CONTRACTS – construction of margin lending loan and security agreement – margin calls – whether validly made pursuant to agreement – whether failure to comply with margin call constituted an event of default under the agreement – whether sale of borrower's securities by lender valid under the agreement CONTRACTS – construction of margin lending loan and security agreement – whether prospective authorisation of novation by borrower when terms of agreement entered into - whether agreement validly novated unilaterally by lender without further consent of borrower CONTRACTS – assignment – margin lending loan and securities agreement – assignment of debt or chose in action to third party – whether rights capable of assignment - whether actual notice under s 12 Conveyancing Act 1919 (NSW) required – whether service of notice under s 170 of the Conveyancing Act sufficient notice BANKING AND FINANCIAL INSTITUTIONS - margin lending facility – margin lending loan and security agreement – whether margin calls valid – minimum period of notice for margin call under the agreement - right of lender to sell borrower's secured property after default by borrower BANKING AND FINANCIAL INSTITUTIONS – margin lending facility – margin lending loan and security agreement – whether agreement validly novated from one lender to another – whether agreement validly assigned from one lender to another BANKING AND FINANCIAL INSTITUTIONS – whether unconscionable conduct within the meaning of s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) – meaning of financial services – where lender enforces its legal rights to protect itself against a fall in value of its security EVIDENCE – whether primary judge's factual conclusion was erroneous – Fox v Percy (2003) 214 CLR 118 – presumption article sent by pre-paid post received under s 160 Evidence Act 1995 (Cth) – primary judge's preference for demeanour evidence