Blurred Lines

Where does responsible lending end and unconscionability begin? Australian courts have come to vastly different conclusions. An overview of current case law.

Australian Courts Assess Loan Repayment

Andrew Kirby

August 31, 2021 02:20 PM

Following recent findings of misconduct in Australia’s Banking Royal Commission, the obligation of lenders to properly assess a prospective borrower’s ability to repay a loan has come under greater scrutiny. In Australian Securities and Investments Commission v. Westpac, the regulator suffered a defeat when it challenged Westpac Bank over its systems for assessing borrowers’ ability to repay home loans regulated under the National Consumer Credit Protection Act of 2009.

The unsuccessful guarantor in Jams 2 Pty Ltd v. Stubbings was recently granted special leave to appeal to the High Court from its Victorian Court of Appeal decision, which dealt squarely with the issue of asset based lending and whether it constitutes unconscionable conduct that should result in a guarantee and mortgage being set aside. This was all in the context of the “sub-tier” lending market, which encompasses borrowers who, unable to obtain a bank loan, go through private lenders for financing, which is unregulated and comes at a higher interest rate.

One key point at issue for the High Court is freedom of contract, and whether borrowers should be able to obtain short-term, high-interest loans if lower-interest bank financing is not available. As the Court of Appeal put it in Jams 2:

. . . the loans offered by [the lenders] . . . fulfil a legitimate demand by persons who, for whatever reason, cannot obtain finance from banks and other lending institutions at lower interest rates and choose to accept “third tier” loans of the kind offered. In that regard, they rely upon the decision of the High Court in Paciocco, where the High Court found that bank fees charged to customers on a “take it or leave it basis” were not unconscionable.

This case has had an intriguing procedural history. Stubbings, the guarantor and individual who sought the loan through his company as the borrower, lost a summary judgment against the lenders before an Associate Justice. He appealed this and won, and he then had a comprehensive victory at trial followed by a comprehensive loss in the Court of Appeal.

Jams 2 involved “asset-based lending,” which the Court of Appeal describes as follows:

Asset-based lending involves lending on the value of the assets securing the loan, without any consideration of the borrower’s ability to repay the loan from their own income or other assets. No credit-risk analysis other than the calculation of the loan amount to security value ratio is undertaken by the lender. Thus, the lender makes the loan without regard to the ability of the borrower to repay by instalments under the contract, in the knowledge that adequate security is available in the event of default.

The trial judge in Jams 2 held that the loan to a company owned and controlled by Stubbings was unconscionable, as he was unemployed and had no regular income. Stubbings sourced the loan through a series of intermediaries who regularly obtained financing from private lenders who were clients of a firm of solicitors. The signed documents included certificates of Independent Financial Advice and Independent Legal Advice provided to Stubbings.

One key point at issue for the high court is freedom of contract, and whether borrowers should be able to obtain short-term, high interest loans if lower interest bank financing is not available.”

At trial, Stubbings contended that the loan constituted asset[1]based lending in circumstances when the lenders’ solicitor knew that the lenders would have to rely on the secured properties for repayment, and no evidence had been sought or obtained as to the ability of Stubbings or his company to repay the loan. The trial judge accepted Stubbings’s unconscionability case and set aside the mortgage and guarantee as invalid. It was critical to this finding that the lenders’ solicitor was held to have acted unconscionably.

Between the trial judge’s decision and the Court of Appeal’s decision, the High Court handed down its decision in ASIC v. Kobelt, splitting 4-3 on the application of the facts to the relevant principles and not speaking with one voice regarding the content of the relevant principles. The case involved a man named Kobelt, who ran a store in outback Australia for remote indigenous communities and concerned whether his system of providing “book-up credit” to impoverished and often illiterate and innumerate Aboriginal customers involved unconscionable conduct in contravention of Section 12CB of the ASIC Act. “Book-up” credit involves the customer giving the storekeeper such as Kobelt their debit card with authority to withdraw funds from the customer’s account in reduction of the customer’s debt and in return for the supply of goods over the interval between the customer’s “pay days”.

The majority judges in Kobelt determined that the book-up system was not unconscionable because it did not entail Kobelt exploiting or otherwise taking advantage of customers’ lack of education or financial acumen, due to the long history of book-up credit as a legitimate source of finance in rural and remote indigenous communities.

In the Court of Appeal for Jams 2, the lenders argued that there was nothing unconscionable about the system employed by the lenders’ solicitors. It involved no more than making asset-based loans available on a take-it-or-leave-it basis to companies that lacked sufficient income (or financial records to demonstrate sufficient income) to service the loan—particularly a short-term loan pending asset sales and refinancing. In that regard, they contended that the loans offered fulfil a legitimate demand from persons who, for whatever reason, cannot obtain financing from banks or other lenders at lower interest rates and who therefore choose to accept “third-tier” loans of the kind offered.

The lenders relied upon the decision in Paciocco, in which the High Court found that bank fees charged to customers on a take-it-or-leave-it basis were not unconscionable. They also relied on Kobelt, in which the book-up credit the customers chose to accept—which would be patently unacceptable conduct elsewhere in modern Australian society— was held to be not unconscionable according to the circumstances of the case.

To support their contention that the lenders’ solicitor had not been put on inquiry as to Stubbings’s personal and financial circumstances, the lenders argued that there was no reason for their solicitor to think that Stubbings—with the benefit of advice from an independent solicitor and accountant—was not fully aware of the risks and did not have a plan to obtain sufficient money to repay the loan.

The trial judge had characterised the solicitor’s system of arranging asset-based loans as the agent for its clients as one involving deliberate intention to neither seek nor receive information about the personal and financial circumstances of the borrowers, and held that the purpose of the system was to protect or “immunise” the lenders from claims that the loans should be set aside as unconscionable.

The Victorian Court of Appeal took a very different view about the transaction, holding that the loan and securities were valid and that the lenders’ solicitor had not acted unconscionably. The High Court will now have the final say on this important financial law case.

Andrew Kirby is an experienced and successful trial advocate with particular expertise in banking and finance and property law. Andrew brings expert experience to his banking and finance and commercial cases having worked previously as an investment banker in London and Australia. He has successfully acted in many cases involving mortgage enforcement, negligent financial and legal advice, failed investments and loans and investment fraud.

Related Articles

Accessorial Liability in the Fissured Workplace

by Rohen Cullen and Caroline O’Connor

The wilfully blind beware.

Accessorial Liability

Australasian In the Law: Legal News From Our Recently Awarded Countries

by Gregory Sirico

Best Lawyers highlights the top legal stories out of Australia, New Zealand, Japan and Singapore, in conjunction with the 2024 Australasian launch.

Suited man sitting at table using a tablet

The Best Lawyers in Australia™ 2024 Launch

by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

Announcing The Best Lawyers in Australia™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from Australia.

The Best Lawyers in Australia™ 2023

Celebrating Lawyers From Around the World: Annabel West

by Rebecca Blackwell

We are honoring the achievements and career of Annabel West, lawyer and wife of South Australian Premier Peter Malinauskas.

Accomplished Australian Lawyer Annabel West

Checks and Balances

by Michael Sullivan

Ensuring probity and above-board behaviour in both the public and private sector is always important—and that importance can be particularly stark during a major crisis like the pandemic. An overview of a year’s worth of commissions and inquiries.

Australian Commission Governance Structure

The Partnership Opportunity

by David Harley, Shaun Whittaker, Tony Rutherford and Troy Lewis

Doing well and doing good need not be mutually exclusive. Housing developments that provide both solid long-term returns and positive social outcomes, often through public-private partnerships, are an idea whose time has come throughout Australia.

Housing Developments in Australia

A Climate Duty

by Lara Douvartzidis and Samantha Daly

Converging trends in Australia and the Netherlands: reasonable foreseeability in climate change law and other novel developments.

Climate Change Law in Australia

The Great Debate Between Agriculture, Mining and Environment

by Rebecca Hoare

Can we really have it all?  The pursuit of the harmonious intersection of Australia’s agricultural and resources industries and the environment.

Australia Agriculture, Mining & Environment

Announcing the 2022 Best Lawyers™ in Australia

by Best Lawyers

The results include an elite field of top lawyers and firms.

Announcing the 2022 Best Lawyers™ in Australi

Hey, Big Lender

by Catherine M. Brennan and Latif Zaman

A contentious proposed federal rule would establish “true lender” guidelines for banks and third parties. Does Colorado show the way forward?

Financial Institution

What Does It Take to Join The Best Lawyers in Australia?

by Best Lawyers

We asked The Best Lawyers in Australia: What advice would you give your younger self?

Nominate a Lawyer in Australia

Working With Changes

by Best Lawyers

Carolyn Pugsley, the Joint Global Head of Practice for Corporate, Australia at Herbert Smith and Freehills, discusses policy changes affecting the M&A market in Australia as well as the impact of the pandemic on the practice.

An Interview With Herbert Smith and Freehills

A Legal Guide for Businesses During COVID-19

by Roy D. Oppenheim

Oppenheim Law creates a useful guide for problems small to medium-sized businesses may face during this time of uncertainty.

COVID-19 Legal Information for Businesses

Can Your Option to Purchase Get Lost in a Franchise Agreement?

by Alicia Hill and Benjamin Caddaye

With the changing of a contract in a franchise agreement, certain rights you thought you were entitled to might get lost in translation.

Franchise Agreements and Purchase Options

Trending Articles

Best Lawyers: Ones to Watch in America for 2023

by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

The Best Lawyers in New Zealand™ 2024 Awards

by Best Lawyers

The Best Lawyers in New Zealand 2024 awards include an elite field of top lawyers and law firms.

Auckland, New Zealand Skyline at twilight

Announcing the 2023 The Best Lawyers in America Honorees

by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Presenting The Best Lawyers in Singapore™ 2024

by Best Lawyers

Best Lawyers offers the most prestigious awards for lawyers and law firms in Singapore for 2024.

Singapore skyline at night

The Best Lawyers in Australia™ 2024 Launch

by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

Announcing The Best Lawyers in Japan™ 2024

by Best Lawyers

We are proud to present the 2024 edition of Best Lawyers awards for Japan which include the top lawyers and law firms in the country.

Mt. Fuji in the background with fall leaves and structure in front


Paulson & Nace, PLLC: A Pioneer in Personal Injury Law

by Best Lawyers

Since its inception more than 40 years ago, Paulson & Nace, PLLC, a Washington D.C., Maryland and West Virginia-based personal injury firm, has always led with compassion first. Here are some key insights from the firm on how to go about filing a personal injury claim.

Group of lawyers meet around a conference table

Could Reign Supreme End with the Queen?

by Sara Collin

Canada is revisiting the notion of abolishing the monarchy after Queen Elizabeth II’s passing, but many Canadians and lawmakers are questioning if Canada could, should and would follow through.

Teacup on saucer over image of Queen's eye

The Best Lawyers in South Africa™ 2023

by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag

What the Courts Say About Recording in the Classroom

by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Announcing The Best Lawyers in Germany™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from Germany.

Black, red and yellow stripes

Choosing a Title Company: What a Seller Should Expect

by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

Announcing The Best Lawyers in Australia™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from Australia.

The Best Lawyers in Australia™ 2023

Famous Songs Unprotected by Copyright Could Mean Royalties for Some

by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

Wage and Overtime Laws for Truck Drivers

by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

Announcing the 2023 The Best Lawyers in Canada Honorees

by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots