Gooley v NSW Rural Assistance Authority [2020] NSWCA 156

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Gooley v NSW Rural Assistance Authority [2020] NSWCA 156 Hearing dates: 1, 2 July 2020; further written submissions received on 21 July 2020 Date of orders: 24 July 2020 Decision date: 24 July 2020 Before: Macfarlan JA at [1] Meagher JA at [2] White JA at [99] Decision: Appeal dismissed with costs. Catchwords: CONTRACTS – variation – whether term of credit facility varied – whether variation supported by adequate consideration – where difference in obligations capable of benefiting either party – contract effectively varied – whether bank repudiated contract in maintaining that term varied. BANKING AND FINANCE – Australian Securities and Investments Commission Act 2001 (Cth), ss 12CB and 12DA – whether in varying term of credit facility bank engaged in misleading or deceptive or unconscionable conduct – whether in making loan bank engaged in unconscionable conduct – no question of principle. BANKING AND FINANCE – Code of Banking Practice, cll 2.2, 25.1 and 25.2 – whether breach of obligation to exercise care and skill of a diligent and prudent banker – whether breach of obligation to try to help borrower to overcome financial difficulties with a credit facility – no question of principle. BANKING AND FINANCE – National Credit Code – whether loan "unjust" credit contract within s 76(1) – whether bank failed to respond to hardship notices as required by s 72(4) – whether National Credit Code applied – where the predominant purpose for which credit was provided or was intended to be provided was not a Code purpose – no question of principle. PRIMARY INDUSTRY – Farm Debt Mediation Act 1994 (NSW) – whether enforcement action taken in contravention of Act – no question of principle. Legislation Cited: Australian Securities and Investment Commission Act 2001 (Cth), s 12CB, 12CC, 12DA Farm Debt Mediation Act 1994 (NSW), ss 4, 8, 9, 11 National Consumer Credit Protection Act 2009 (Cth), s 3 National Credit Code, ss 72, 76 Cases Cited: Australian Securities and Investments Commission v Kobelt [2019] HCA 18; (2019) 93 ALJR 743 Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd [2018] NSWCA 213 Doggett v Commonwealth Bank of Australia (2015) 47 VR 302 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gooley v NSW Rural Assistance Authority (No 2) [2018] NSWSC 1049 Paccioco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199 Perpetual Company v Khoshaba [2006] NSWCA 41; 14 BPR 26,369 Waller v Hargraves (2012) 245 CLR 311; [2012] HCA 4 Texts Cited: JD Heydon, Heydon on Contract (Lawbook Co, 2019) Category: Principal judgment Parties: Paul Gooley (First Appellant) Susan Gooley (Second Appellant)