Donnelly v Australia and New Zealand Banking Group Ltd [2014] NSWCA 145

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Donnelly v Australia and New Zealand Banking Group Ltd [2014] NSWCA 145 Hearing dates: 1 April 2014 Decision date: 09 May 2014 Before: McColl JA at [1]; Macfarlan JA at [2]; Leeming JA at [112] Decision: The appeal is dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: EQUITY - unconscionable conduct - bank granted dual currency loan facility to appellant and husband - bank exercised right to convert loan currency after deterioration in value of Australian Dollar against the Hong Kong Dollar - whether bank failed to take reasonable steps to ensure appellant aware of risk of loss in event of adverse currency movements - whether appellant aware of bank's unilateral right of conversion - relevance of evidence of usual practice of bank officer - whether bank's alleged failure to recommend that the appellant seek independent legal advice was unconscionable - whether bank agreed with appellant that loan would remain in Hong Kong Dollars - no basis for a finding of unconscionable conduct Legislation Cited: Australian Prudential Regulation Authority Act 1998 (Cth) Australian Securities and Investments Commission Act 2001 (Cth) Contracts Review Act 1980 (NSW) Cases Cited: Canon Australia Pty Ltd v Patton [2007] NSWCA 246; 244 ALR 759 Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1 Connor v Blacktown District Hospital [1971] 1 NSWLR 713 Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; 218 CLR 471 First Mortgage Managed Investments Pty Ltd v Pittman [2014] NSWCA 110 Fox v Percy [2003] HCA 22; 214 CLR 118 HCK China Investments Ltd v Solar Honest Ltd [1999] FCA 1156; 165 ALR 680 Kakavas v Crown Melbourne Ltd [2013] HCA 25; 87 ALJR 708 PT Ltd v Spuds Surf Chatswood Pty Ltd [2013] NSWCA 446 Tambree v Travel Compensation Fund [2004] NSWCA 24; Aust Contract Reports 90-195 Vadasz v Pioneer Concrete (SA) Pty Ltd [1995] HCA 14; 184 CLR 102 Vu v New South Wales Crime Commission [2013] NSWCA 282 Wigan v Edwards (1973) 47 ALJR 586 Category: Principal judgment Parties: Fiona Marie-Therese Donnelly (Appellant) Australia and New Zealand Banking Group Ltd (First Respondent) ANZ Asia Ltd (Second Respondent) Representation: Counsel: K J Ryan (Appellant) A J McInerney SC/C Ensor (Respondents) Solicitors: Appellant (Self-represented) Gadens Lawyers (Respondents) File Number(s): CA 2013/372887 Decision under appeal Jurisdiction: 9111 Citation: Australia and New Zealand Banking Group Ltd v Donnelly [2013] NSWSC 1760 Date of Decision: 2013-11-29 00:00:00 Before: Stevenson J File Number(s): SC 2011/305340