Blakeley v National Australia Bank [2018] FCA 796

FEDERAL COURT OF AUSTRALIA

Blakeley v National Australia Bank [2018] FCA 796 Appeal from: Application for leave to appeal: Blakeley v National Australia Bank [2017] FCA 835

File number: WAD 417 of 2017

Judge: MCKERRACHER J

Date of judgment: 31 May 2018

Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal from a decision of a judge of this Court granting summary dismissal – where the primary judge held there to be no reasonable prospect of the applicant successfully prosecuting the proceeding – whether the respondent's objection to competency and application for summary judgment ought to be granted – whether there is an appellable error CONSUMER LAW – where the applicant sought to raise new claims not before the primary judge asserting unconscionable conduct under the Australian Securities and Investments Commission Act 2001 (Cth) and/or the Banking Code of Practice – whether there was 'unconscionable conduct' pursuant to s 12CC of the ASIC Act – where the forebearance deed was not an 'unfair contract'- where the forebearance deed was not a 'small business contract' -where the statutory provisions relied upon by the applicant had not commenced application Held: application for leave to appeal dismissed with costs

Legislation: Australian Securities and Investments Commission Act 2001 (Cth) ss 12BF(3), 12BF(4), 12BG, 12CB, 12CC Bankruptcy Act 1966 (Cth) ss 58(1), 116(2)(g)(i) Corporations Act 2001 (Cth) ss 127, 127(4), 129, 198E(1), 601AD(1A), 601AD(2) Federal Court of Australia Act 1976 (Cth) ss 25(2B)(aa), 31A(2) Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015 (Cth) s 290A Federal Court Rules 1979 (Cth) r 20.1 Federal Court Rules 2011 (Cth) r 26.01