Australia Capital Financial Management Pty Ltd v Australian Financial Complaints Authority Limited [2022] NSWCA 204

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Australia Capital Financial Management Pty Ltd v Australian Financial Complaints Authority Limited [2022] NSWCA 204 Hearing dates: 22 August 2022 Date of orders: 12 October 2022 Decision date: 12 October 2022 Before: Bell CJ and Meagher JA at [1]; Basten AJA at [126] Decision: 1. Appeal dismissed. 2. Appellant to pay costs of Second and Third Respondents. Catchwords: CONTRACTS – breach of contract – financial services external dispute resolution scheme – review of determinations made by Australian Financial Complaints Authority (AFCA) – where tripartite contract provided that, under certain circumstances, AFCA may determine complaints by making determinations which are binding on two parties to the complaint – judicial review of determinations made pursuant to contractual dispute resolution schemes – whether AFCA had contractual authority, jurisdiction or power to determine complaint – whether complaint involved a claim to set aside a guarantee supported by security over the guarantor's primary place of residence – whether interest to be included in calculating value of claim – whether AFCA afforded procedural fairness to the parties to the complaint – whether AFCA's determination was unreasonable in the Wednesbury sense CORPORATIONS – financial services – external dispute resolution scheme – review of determinations made by Australian Financial Complaints Authority (AFCA) – where tripartite contract provided that, under certain circumstances, AFCA may determine complaints by making determinations which are binding on two parties to the complaint – judicial review of determinations made pursuant to contractual dispute resolution schemes – whether AFCA had contractual authority, jurisdiction or power to determine complaint – whether complaint involved a claim to set aside a guarantee supported by security over the guarantor's primary place of residence – whether interest to be included in calculating value of claim – whether AFCA afforded procedural fairness to the parties to the complaint – whether AFCA's determination was unreasonable in the Wednesbury sense Legislation Cited: Corporations Act 2001 (Cth), ss 912A, 1050, 1051, 1053 Contracts Review Act 1980 (NSW) Cases Cited: Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; [1977] UKPCHCA 1 Castlemaine Tooheys Ltd v Carlton & United Breweries Ltd (1987) 10 NSWLR 468 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24 Cromwell Property Securities Ltd v Financial Ombudsman Service Ltd (2014) 288 FLR 374; [2014] VSCA 179 Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd [2013] VSCA 179 Karger v Paul [1984] VR 161 Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 Mickovski v Financial Ombudsman Service Ltd (2012) 36 VR 456; [2012] VSCA 185 Patersons Securities Ltd v Financial Ombudsman Service Pty Ltd [2015] WASC 321; (2015) 108 ACSR 483 Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 WMC Resources Ltd v Leighton Contractors Pty Ltd (1999) 20 WAR 489; [1999] WASCA 10 Texts Cited: AFCA Complaint Resolution Scheme Rules M Leeming, Authority to Decide – the Law of Jurisdiction in Australia (2nd ed, 2020, The Federation Press) H K Lücke, "Ad Hoc Implications in Written Contracts" (1973-76) 5 Adel Law Rev 32 Category: Principal judgment Parties: Australia Capital Financial Management Pty Ltd (Appellant) Australian Financial Complaints Authority Limited (First Respondent) Mr Benyu Bai (Second Respondent) Ms Wenhua Yang (Third Respondent) Representation: Counsel: