Category Archives: COURTS LEGAL

Commonwealth Bank of Australia loses out to having royal commission secrets kept from public

The CBA has lost its attempt to have its secret, commercially sensitive information kept from the public in its evidence given to the banking royal commission.

CBA had asked for a ream of information included in the statement provided by its executive general manager, retail products, Clive Richard van Hore, to the royal commission not to be published.

Commonwealth Bank has lost its bid to have its secrets not published by the royal commission.

The information included the bank’s correspondence with the Australian Securities and Investments Commission, internal documents, and details of its remediation scheme.

The application related to the evidence presented regarding the bank’s credit card-plus product.

It is understood other major banks were planning to ask for similar non-disclosures or had already asked ahead of the decision made by Commissioner Kenneth Hayne.

“Apart from the one case where a particular customer’s name and policy number
would otherwise have been revealed, none of the particular information in respect of
which CBA sought directions was shown to be of a kind that should not be published,” Commissioner Hayne said.

“CBA identified no damage to itself or any other person that would follow from
publication of the material. Subject to the direction described above, the application
is otherwise refused.”

Commissioner Hayne said he encouraged the approach of the CBA to make such a request while the statement was still in draft form.

A spokesman for the bank said it appreciated the decision from the royal commission.

The royal commission will have its first round of hearings from March 13. The first fortnight will look at case studies about areas including home loans, car loans, credit cards, add-on insurance, credit offers and account admin.

Henry Sapiecha

Palmer notches $200m court win against Chinese state-owned enterprise Citic Pacific

Clive Palmer has described his victory in the long-running royalties battle in the Pilbara against Chinese state-owned enterprise Citic Pacific as a “win for all Australians”.

Palmer was awarded around $200 million in damages and a further $200 million to be paid annually for the next 30 years by the Western Australian Supreme Court last week in the dispute over royalty payments.

The dispute stems back to dealings between the two parties in 2006. Citic had paid Palmer $US415 million as part of takeover agreement, which included two separate royalties, for the Sino Iron project.

However, Citic refused to pay the second royalty, causing Minerlogy to make the claim in court.

WA Supreme Court Justice Kenneth Martin ruled that Citic’s wholly-owned subsidiaries Sino Iron and Korean Steel pay Palmer’s Mineralogy the damages.

“This is a win for Australian law over Chinese Communist Government powerhouses who have wasted precious court time, resources and energy,” Palmer said.

“Many Australian companies have lost these battles because they haven’t been able to afford to fight them.

“For too long they have used their power to try and crush Australian enterprise and thankfully today justice has been served.”

Another hearing will take place this week to address remaining issues in the dispute.

Henry Sapiecha

Westpac refunds $65m to 200,000 customers over discount errors

Westpac is refunding $65 million to about 200,000 customers after it failed to pass on benefits they should have received under package deals offered by the bank.

The bank on Thursday said an internal review had detected problems whereby it failed to automatically pay consumers all the benefits they were entitled to under packages sold through Westpac, St George, BankSA and Bank of Melbourne.

“When we identified these issues, we started the process of putting things right for customers. We also notified ASIC [regulator the Australian Securities and Investments Commission],” Mr Frazis said in a statement.

“Westpac apologises unreservedly for a process that did not suit customers. By automating the discounts, we have ensured that our customers will not be affected in this way again.”

Under the packages, customers were meant to get discounts on products including home loans, credit cards and transaction accounts, but the bank said it had not given the discounts on “ancillary” products including home and contents insurance.

The chief executive of Westpac’s consumer bank, George Frazis, apologised and said all affected customers would receive refunds.

The refunds are expected to total $65 million, or $45 million after tax, and will be included in its upcoming full-year results.

The refunds being paid by Westpac are for customers who took out “Premier Advantage” or “Advantage” packages with the bank from 2010.

Earlier this month, Mr Frazis said Westpac would also scrap “outdated” rules that resulted in customers being charged fees if they made more than a certain number of transactions each month, and it put a $5 cap on personal account-keeping fees.

News of the refund comes as National Australia Bank and Commonwealth Bank will appear before the federal government’s banking inquiry on Friday, following last week’s questioning of Westpac chief executive Brian Hartzer and ANZ Bank chief Shayne Elliott.

Henry Sapiecha

Crystal Car Wash boss Anthony Sahade in a lather over council fine

Crystal Carwash boss Anthony Sahade is used to courtroom soap operas.

Mr Sahade, a Point Piper millionaire who has been in and out of Sydney courts for years over neighbourhood disputes on Australia’s wealthiest street, has most recently been in a lather about a fine from Randwick Council..He was expanding his wash facilites to cater for dogs

The council found an unauthorised dog washing set-up, including a basin and a fence, had been installed at a Crystal Car Wash site in Coogee in March 2015, and ordered its removal.

Mr Sahade then sought and was granted council approval for the dog grooming facility, and refused to pay a $1500 fine for the initial unapproved installation.

The matter went to court and his company Lenjade was convicted and fined $12,000, with $8000 legal costs.

Mr Sahade appealed the decision and last week the Land and Environment Court acquitted Lenjade, ruling there was not enough evidence to prove Mr Sahade directly authorised the development.

During the hearings, Mr Sahade likened managing franchisees to fatherhood.

“I tell my son, ‘You have to be home by 10 o’clock’ but he comes home at 11 o’clock and he uses his discretion and he’s sensible then it’s not a punishable sin. It’s no different to the franchisee having a go at putting a dog wash in to enhance his business,” Mr Sahade said.

“Even though it’s prohibited within the lease it’s not something that’s worth punishing him [for] because he’s doing what’s best for his business and what’s best for his business ultimately profits the whole Crystal Carwash chain.”

It is the latest in a string of legal proceedings involving Mr Sahade.

In 2014, the NSW Civil and Administrative Tribunal ordered Mr Sahade and his son Victor not to “threaten or act in an aggressive manner” towards their neighbours on a battleaxe block on Wolseley Road.

Senior member Richard Buckley said that, since May 2005, Mr Sahade’s conduct had been “characterised by a lack of civility, arrogance, threatening behaviour, a disdain for the rights of other lot owners and a disregard for the obligations imposed” by strata laws.

The same year, the Federal Court fined Crystal Carwash for underpaying workers by almost $180,000.

In 2012, Woollahra Council took Mr Sahade to court over a staircase at his mansion, which was built without permission.

Two months later, as Mr Sahade and a carpenter demolished the steps, a physical fight broke out with a neighbour.

CCTV footage of the fight captured Mr Sahade telling the neighbour: “You’re a goner”, various courts heard.

A magistrate dismissed assault charges against the car wash boss.

Henry Sapiecha

Consumer fears raised as Veda credit reporting agency converts from Financial Ombudsman Service to the Credit and Investments Ombudsman

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Experts fear the chances of consumers and business owners having their disputes with credit reporting agency Veda swiftly resolved will be reduced after it switched from the “gold standard” ombudsman to another.

Veda moved from the Financial Ombudsman Service (FOS) to the Credit and Investments Ombudsman (CIO) in November last year.


It has the right to choose between  the external dispute resolution schemes, but FOS has five times as many full-time employees, half the staff turnover rate, and a better standing amongst financial counsellors, compared to that of CIO.

A Sydney-based credit repair company, that asked not to be named, said it was concerned that business owners wanting to dispute a commercial default listing on their credit files would lose out.

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An incorrect listing can reduce the credit score, lowering the chances of getting a loan at a good rate.

“In our experience of making … complaints, FOS is the gold standard in external dispute resolutions schemes,” she said

“The FOS holds credit providers accountable for their actions beyond the Privacy Act, and includes other relevant codes and rules, [whereas] the CIO limits complaints to the Privacy Act, thereby lessening the scope for accepting disputes.”

Veda said other credit reporting bodies – Dun & Bradstreet and Experian – were with CIO.

Veda is Australia's biggest credit reporting agency image

“The best outcome is to have a body that understands the complexities of the Privacy Act, the differences between a [credit reporting bureau] and a financial service provider, and arrives at fair and lawful decisions,” Veda’s spokeswoman said.

“Veda now has a number of commercial disputes before [CIO and] we are confident based on their experience … they will arrive at decisions that are both fair and lawful.”

But the credit repair company raising concerns claimed Veda was driven by its bottom line because CIO was likely to accept fewer disputes, saving Veda money.

It claimed that unlike FOS, which accepted disputes based on Veda’s own subscriber rules, CIO was unlikely to accept complaints about commercial credit (for business, not personal purposes) because this did not fall under the Privacy Act.

“This means a vital protection for commercial borrowers has been lost, and commercial credit providers can literally slap on a default notice of any amount over $100 with no notice, no contact, no delay, and no Ombudsman service to hold Veda accountable,” she said.

Credit repair agents charge a fee to resolve default listings, and fewer opportunities to lodge a dispute would also hurt their bottom line.

Veda has previously complained that credit repair groups were misusing FOS’ services by automatically disputing every entry on their client’s credit report without regard to whether or not the information was accurate.

The independent Ramsay Review is currently examining dispute resolution and complaints bodies in the financial sector and it recently made a draft recommendation that FOS and CIO be merged.

FOS wants to merge, while CIO believes two schemes allow price competition and service quality comparison.

In 2015-16, FOS had about 13,600 members, including the big four banks and insurers. Seventy-eight per cent were “small” or “very small” businesses.

In the same period, CIO had about 23,000 members, 97 per cent of which were sole traders, partnerships or small businesses. Most are brokers.

Raj Venga, CIO’s chief executive, said its funding model better allowed credit reporting members to respond to the threat of “unscrupulous” operators lodging baseless claims that attack the validity of default listings.

He denied claims that CIO would accept fewer complaints because of a smaller scope.

“We consider complaints by reference not only to the law, but also to applicable industry codes, good industry practice and fairness,” he said. “We can, and do, deal with complaints from commercial borrowers and business owners.”

A joint submission by consumer groups supported the idea of a single scheme. It said there were concerns about delays at CIO, its “hands off approach”, and “at times, poor quality decision-making”.

“These problems undermine its effectiveness and cause consumer detriment,” the joint submission reads.

“Consumer Action reports that, in some disputes, clients achieve a faster and better outcome by taking their dispute to court instead of CIO.”

However, it also listed problems about FOS.

A survey by Financial Counselling Australia found more counsellors had positive experiences with FOS than CIO, and rated their experiences with FOS more highly than CIO.

Alexandra Kelly from the Financial Rights Legal Centre said her main concern about the move was FOS published every decision on their website while CIO published a few.

Fiona Guthrie of Financial Counselling Australia said she hoped there will be no differences in the way in which FOS and CIO determine disputes.


Henry Sapiecha