APPLYING GENERAL CONTRACT AND CONSUMER PROTECTION LAW TO CREDIT DISPUTES OUTSIDE OF THE UNIFORM CONSUMER CREDIT CODE

RESEARCH PAPER 2: WHEN ARE LENDERS TAINTED BY THE FRAUD OF A FINANCE BROKER?

SUMMARY

This research project investigates the role of general principles of contract law and consumer protection legislation in regulating the provision of credit to consumers. While many issues arising in respect to consumer credit contracts are covered by the Uniform Consumer Credit Code (UCCC) there are inevitably gaps in the legislation. General contract and legislative principles may supplement the specific provisions of the UCCC and thus promote a more effective system of consumer protection regulation through a multilayered, textured approach. The project aims to provide guidance to industry participants about alternative legal responses to credit disputes and also to identify relevant considerations in reforming the existing law.

This paper considers the circumstances in which lenders will be tainted by the fraud of the finance broker who arranged the transaction. Under general consumer law, because lenders will generally not have any direct dealings with the borrower, they will not normally be tainted by any fraud on the part of the broker who represented the borrower in the transaction. However, in some cases, there may be factors in the loan application and other documentation provided to the lender that may implicate the lender in the fraud of the broker.

1

The funding for this project was provided from the Consumer Credit Fund on the approval of the Minister for Consumer Affairs. Research assistance was provided by Alice Zhang and Sarah Mauriks. The author wishes to thank for their contributions the Consumer Law Action Centre, solicitors at Consumer Affairs Victoria, participants at the Monash Centre for Regulatory Studies Consumer Research Breakfast and the delegates at the Credit Law Conference 2007. All errors remain the author’s own.

2

WHEN IS A LOAN TRANSACTION TAINTED BY THE FRAUD OF A FINANCE BROKER? 1

Recent years have seen an increase in the use of financial brokers to mediate between borrowers and lenders.2 There are good reasons for a borrower to engage the services of a finance broker. Borrowers may find it difficult to select between a broad range of lenders and products. Borrowers may be daunted by the range of choices in the market. Borrowers may find it difficult to access finance. They may be limited in time or experience. They may be uncertain how best to complete a loan application or be unsure about dealing with loan documents. The role of the finance broker is to survey a range of lenders and finance products and recommend to the borrower the combination that would best suit the borrower’s needs. The broker may also be responsible for managing the transaction, including submitting the loan application, delivering the loan documents to the borrower, assisting the borrower in completing those documents and even answering questions about the loan. Credit providers may also see advantages in relying on the services of a finance broker. In particular, brokers allow lenders access to borrowers without the costs associated with a branch presence.3

Unfortunately, it appears that some brokers who are not properly promoting the interests of their consumer clients.4 Statutory regulation of brokers is minimal in most jurisdictions,5 although there are current proposals for reform.6 There may be little direct monitoring of brokers. Certainly, the consumers who engage brokers may be ill-equipped to fulfil this function. Some of those promoting themselves as able to provide brokering services may lack the necessarily skills properly to provide this service. Another problem

3

may be brokers recommending to borrowers the loan which will pay the highest commission to the broker7 rather than one which best suits the needs of their client.8 Yet another, often related, problem is fraud on the part of the broker.9 There are a number of cases in which a broker has mislead borrowers,10 ignored the disadvantageous situation of the borrower,11 falsified information in the borrower’s loan application and encouraged borrowers falsely to represent that their loan is for business purposes and hence not covered by the protective provisions of the Uniform Consumer Credit Code.12 This behaviour has typically lead borrowers into loans that they have no capacity to repay.13

Broker fraud may impact on lenders and not merely borrowers. If a loan is approved on the basis of false or incomplete information about a borrower, the risks of default by the borrower may be much greater than anticipated by the lender. There is also a risk that the contract between the lender and the borrower may be tainted by the fraud of the broker, and consequently liable to be set aside by a court. There are few cases in which a loan transaction has been set aside directly on this basis. Nonetheless, with the rise of broker facilitated transactions, and as the implications of the sub-prime mortgage crisis spread,14 it may only be a matter of time before such arguments become more common.

This paper considers three bases on which a loan transaction may be tainted by the fraud of a broker:

I the broker was the agent of the credit provider,

II unconscionable conduct on the basis of knowledge by the lender of a special disability on the part of a borrower or, similarly, the lender having notice of undue influence in the loan transaction,

4

III where the loan contract is an unjust contract under s 70 of the Uniform Consumer Credit Code or the Contract Review Act (NSW).

Parts I to III of this paper consider each of these possible bases of lender liability in turn. Part IV considers the steps that a credit provider might take to protect itself from liability.

I BROKER AS AGENT OF THE LENDER

A principal is liable for the acts of an agent acting within the scope of his authority. Thus, a lender may be liable for misrepresentation or fraud by a broker acting as its agent. A principal is also imputed with the knowledge of its agent.15 This means that a lender may be imputed with the knowledge of a broker who is its agent. Such knowledge may be relevant to establishing unconscionable dealing or involvement in a transaction induced by undue influence.16

Courts have consistently held that a broker is the agent of the borrower not the lender.17 Nonetheless, agency is a factual inquiry. Thus, it is possible that the facts of a particular case might establish an agency relationship between broker and lender.18 If a broker is found to be an agent of the finance provider, it will be on the basis of actual or apparent authority. A broker will have apparent authority where it is held out by the finance provider, the principal, as having such authority.19 In these circumstances, the representation operates as an estoppel and will preclude the principal from denying the agency relationship it has represented, where relied upon by the other party to the contract.20

5

Importantly, the person dealing with the company in these circumstances ‘cannot rely upon the agent's own representation as to his actual authority’.21 The relevant representation must be made by the principal, although this may be found in the conduct of the principal including ‘by a previous course of dealing or by putting the agent in a position or by allowing him to act in a position from which it can be inferred that his actual representation of authority in himself is in fact correct’.22 The holding out may also result ‘from

1 Dr Jeannie Marie Paterson, Senior Lecturer, Faculty of Law, Monash University.

The funding for this project was provided from the Consumer Credit Fund on the approval of the Minister for Consumer Affairs. Research assistance was provided by Alice Zhang and Sarah Mauriks. The author wishes to thank for their contributions the Consumer Law Action Centre, solicitors at Consumer Affairs Victoria, participants at the Monash Centre for Regulatory Studies Consumer Research Breakfast and the delegates at the Credit Law Conference 2007. All errors remain the author’s own2 The Ministerial Council on Consumer Affairs, National Finance Broking Legislation Regulatory Impact Statement (2004) p 7 reports that, while there are no precise figures on the value of loans facilitated by brokers, in 2003 brokers were said to account for account for 23% of home loans with banks, credit unions and building societies ($76 billion) in the Australian Prudential Regulation Authority (APRA), Report on Broker Originated Lending (2003). The Australian Government Treasury, Financial Services and Credit Reform (Green Paper, 2008) p 3 cites a report titled ‘Australian Mortgage Industry — Volume 7’ published by Fujitsu and JPMorgan in March 2008 stating that the proportion of broker originated home loans has risen to above 37 per cent in 2007.3 Ministerial Council on Consumer Affairs, National Finance Broking Scheme Consultation Package (2007) p 5.4 See the House Standing Committee on Economics, Finance and Public Administration, Inquiry into Home Loan Practices and Processes (2007) ch 4.5 In most Australian states, consumers may engage the services of a broker without being aware of the qualifications of the broker, the fee charged by the broker the commission offered to the broker or the range of financial products surveyed by the broker before making a recommendation: see the Ministerial Council on Consumer Affairs, National Finance Broking Legislation Regulatory Impact Statement (2004) pp 26-29.

6

permitting an agent to act in a certain manner, or by equipping or arming the agent, or by a failure to take proper safeguards against misrepresentation by the agent’.23

A high standard of evidence will be required to establish that a broker is the agent of a lender.24 The remarks of the High Court in Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur

6 Current proposals for reform include prescribed educational standards, requiring brokers to provide more information about their services and requiring brokers to have a reasonable basis for any credit recommendation. See further the Ministerial Council on Consumer Affairs, National Finance Broking Scheme Consultation Package (2007).7. Most brokers are paid a commission by the lender based on the value, and in some cases, the number of loans placed with the lender: The Ministerial Council on Consumer Affairs, National Finance Broking Legislation Regulatory Impact Statement (2004) p 11.8 The Ministerial Council on Consumer Affairs, National Finance Broking Legislation Regulatory Impact Statement (2004) pp 20-1. See also the Australian Government Treasury, Financial Services and Credit Reform (Green Paper, 2008) p 6 reporting that ‘there has been evidence in the United States that increased broker commissions for selling sub-prime loans played a role in the recent sub-prime crisis’.9 Fraud in the equitable sense is not confined to deceit but may include ‘victimisation which can consist either of the active extortion of a benefit or the passive acceptance of a benefit in unconscionable circumstances’: Hart v O’Connor [1985] AC 1000, 1024 per Lord Brightman. 10 See eg Commissioner for Fair Trading v Rowland Thomas & Ors [2004] NSWSC 479; Australian Securities and Investments Commission v Skeers [2007] FCA 1551. 11 See eg Perpetual Trustees Victoria Limited v Ford [2008] NSWSC 29.12 See Neuendorf v Rengay Nominees P/L & Anor [2003] VCAT 1732; Benjamin v Ashikian [2007] NSWSC 735.13 See Permanent Mortgages Pty Ltd v Michael Robert Cook and Karen Cook [2006] NSWSC 1104; Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 4.

7

Insurance (Australia) Ltd, made in relation to insurance brokers, are applicable in the broker /lender relationship, namely:

There will be rare circumstances in which a broker may also be an agent of the insurer, but the courts will not readily infer such a relationship because a broker so placed faces a clear conflict of interest between his duty to the assured on the one hand and to the insurer on the other.25

14 R Foreman, ‘Subprime mortgage crisis: a legal perspective’ (2007) 45 Law Society Journal 55. 15 Permanent Trustee Australia Co Ltd v FAI General Insurance Co Ltd (2001) 50 NSWLR 679, 696-98 (Handley JA), not affected on this point by the decision of the High Court (2003) 214 CLR 514.16 See further below. 17 See eg Octapon Pty Ltd v Esanda Finance Corporation Ltd (unreported, NSW Supreme Court, 3 February 1989, 27-8 (Coles J); Custom Credit Corporation Ltd v Lynch [1993] 2 VR 469; Esanda Finance Corporation Ltd v Spence Financial Group Pty Ltd [2006] WASC 177; Perpetual Trustees Victoria Limited v Ford [2008] NSWSC 29.

Similarly, a dealer of cars or equipment has been held not to be the general agent of a hire purchase company: see eg Branwhite v Worcester Works Finance Ltd [1969] 1 AC 552, 577-578 (Lord Upjohn); Morelend Finance v Westendorp [1993] 2 VR 284; Custom Credit Corporation Ltd v Lynch [1993] 2 VR 469.18 David Benson Nominees Pty Ltd v Dicksons Ltd and Anor [2005] SASC 97.19 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451, 463 (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ). Also Crabtree Vickers (1975) 133 CLR 72; Flexirent Capital Pty Ltd v EBS Consulting Pty Ltd [2007] VSC 158.20 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451, 463 (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ). 21 Freeman and Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480, 505 per Diplock LJ 22 Crabtree Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd (1975) 133 CLR 72, 78 (Gibbs, Mason and Jacobs JJ). 23 Flexirent Capital Pty Ltd v EBS Consulting Pty Ltd [2007] VSC 158, [203] per Whelan J. 24 Branwhite v Worcester Works Finance Ltd [1969] 1 AC 552, 573, 587 per Willmer, Danckwerts and Russell L.JJ.

8

Courts have ruled out a number of factors as sufficient to establish an agency relationship between broker and finance provider. These include: that the broker may be paid a commission by the finance provider26, that the broker may have possession of the lender’s forms27, that the broker may fill in the particulars on the forms28 and that the broker conducted all the dealings in relation to the applications.29

One of the few cases where an agency argument has been successful is Woodchester Leasing Equipment v RM Clayton and DM Clayton (t/a Sudbury Sports).30 The plaintiff, Woodchester Leasing Equipment, was the owner and finance company, and the defendants, RM Clayton and DM Clayton, were the hirers, who entered into a consumer hire agreement for a facsimile machine. Prior to the defendants entering into the agreement, the supplier had made a number of representations to the defendants, on which the defendant relied in entering the agreement. The agreement did not contain a cancellation notice. The defendant argued that the supplier was the agent for the owner. Initially, the hirer had wanted to purchase the machine outright. The hirer was persuaded by the

25 (1986) 160 CLR 226, 234 per Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ. 26 Octapon Pty Ltd v Esanda Finance Corporation Ltd (unreported, NSW Supreme Court, 3 February 1989, 27-8 per Cole J); Custom Credit Corporation Ltd v Lynch [1993] 2 VR 469.27 Branwhite v Worcester Works Finance Ltd [1969] 1 AC 552, 575 587 per Willmer, Danckwerts and Russell L.JJ.; Custom Credit Corporation Ltd v Lynch [1993] 2 VR 469; NMFM Property Pty Ltd and Ors v Citibank Ltd (No 10) (2000) 107 FCR 270, 396; Perpetual Trustees Victoria Limited v Ford [2008] NSWSC 29.28 Branwhite v Worcester Works Finance Ltd [1969] 1 AC 552, 575 (Willmer, Danckwers and Russell L.JJ_; Custom Credit Corporation Ltd v Lynch [1993] 2 VR 469.29 Steele-Smith v Liberty Financial Pty Ltd [2005] NSWSC 398, [104] (Palmer J).30 [1994] CCLR 87.

9

supplier that leasing would be advantageous. The arrangement between the finance company and the supplier meant that the greater the monthly rental negotiated by the supplier, the greater the price paid by the finance company to the supplier for the goods. If the defendant had purchased the goods outright, the supplier would have received around £995. On the basis of the monthly rental negotiated by the supplier with the hirer, the supplier would receive from the finance company the sum of around £1715.51. Accordingly, it was to the supplier's advantage to persuade the defendant to lease, rather than to purchase outright. The County Court held that at the time the representations were made, the supplier was acting as an agent for the finance company. This finding was based on the fact that the whole thrust of the supplier's sales talk was directed not to the virtues of the goods but to the dubious, from the hirer’s point of view, virtues of leasing.31

It appears that the supplier was treated as the agent for the finance company on the ground that it had clearly promoted the interests of itself and the finance company over those of the hirer. In these circumstances, the supplier might be said to have assumed the role of the agent of the finance company. However, it might be questioned whether this conduct should have been be enough to constitute the supplier as an agent of the financier on the basis of apparent authority. While the supplier undeniably preferred the interests of itself and the financier, there was no holding out by the financier that the supplier was acting on its behalf as its agent.

For an agency relationship to be securely established between a broker and a lender it is suggested that more will be required. Evidence will be needed of conduct by the lender holding the broker out as acting on behalf of the lender. Such holding out might occur

31 [1994] CCLR 87.

10

through representations, perhaps in material provided to the borrower, to the effect that the broker represents the lender or conduct by the lender indicating that the broker has authority to negotiate and/or approve the loan on the lender’s behalf.

II KNOWLEDGE OF UNCONSCIONABLE DEALING/UNDUE INFLUENCE

The equitable doctrine of unconscionable dealing operates where:

(1) a party to a transaction was under a special disability in dealing with the other party with the consequence that there was an absence of any reasonable degree of equality between them; and

(2) the disability was sufficiently evident to the stronger party to make it prima facie unfair or `unconscientious' that he procure, or accept, the weaker party's assent to the impugned transaction in the circumstances in which he procured or accepted it.

Where such circumstances are shown to have existed, an onus is cast upon the stronger party to show that the transaction was fair, just and reasonable.32

There are also statutory prohibitions on unconscionable conduct. A primary source for these prohibitions is in Part IVA of the Trade Practices Act 1974, under ss 51AA, 51AB and 51 AC.33

In so far as they rest on a notion of conscience, both the equitable and statutory doctrines require that before a transaction is set aside 32 Commercial Bank of Australia v Amadio (1983) 151 CLR 447, 474 per Deane J.33 See further G Pearson, ‘The ambit of unconscionable conduct in relation to Financial Services’ (2005) 23 Companies and Securities Law Journal 105.

11

as unconscionable, the credit provider know of the borrower’s special disability. Something less than direct actual knowledge may sometimes suffice. In Commercial Bank of Australia v Amadio Deane J referred to the disability being ‘sufficiently evident to the stronger party.’34 Mason J described the requirement as being that the dominant party "knows or ought to know" of the existence of the innocent party's disabling condition or circumstance and of its effect on him or her.35 Mason J descried the knowledge requirement as follows:

... if A having actual knowledge that B occupies a situation of special disadvantage in relation to an intended transaction, so that B cannot make a judgment as to what is in his own interests, takes unfair advantage of his (A's) superior bargaining power or position by entering into that transaction, his conduct in so doing is unconscionable. And if, instead of having actual knowledge of that situation, A is aware of the possibility that that situation may exist or is aware of facts that would raise that possibility in the mind of any reasonable person, the result will be the same.36

Undue influence is concerned with the exploitation of a relationship of influence. Thus, a contract may be set aside where a third party exerted undue influence that affected the dependent party's mind and judgment in entering the contract.37 A lender will be tainted by the undue influence where the lender knew or had reason to believe

34 Commercial Bank of Australia v Amadio (1983) 151 CLR 447, 474 per Deane J.35 Australian Competition and Consumer Commission v Radio Rentals Limited [2005] FCA 1133, [21] (Finn J).36 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, 467 (Deane J). See also Australian Competition and Consumer Commission v Radio Rentals Limited [2005] FCA 1133, [18] (Finn J).

12

of the impropriety.38 The doctrine has most commonly been invoked in transactions involving a third party guarantee but could arise in a loan transaction.

In respect to all of these doctrines, the restriction on relief is likely to be that the lender lacked the requisite degree of knowledge. In cases involving brokers, the lender may not have had any actual contact with the borrower and hence may not have any direct knowledge of any special disadvantage on the part of the borrower or of any undue influence between the borrower and another party. The point is starkly illustrated by Perpetual Trustees Victoria Limited v Ford.39 In this case Ford (‘the borrower’) owned a house in Wollongong in New South Wales which had been inherited from his mother. In 2004 the borrower entered into a loan agreement for $200,000 secured by a mortgage over the house. At the time of the transaction the borrower was almost 58. He suffered from a congenital intellectual impairment and he was illiterate. The borrower was in receipt of a Disability Pension of $452.70 per fortnight. He had no capacity from his income or other resources to pay the interest on a loan of $200,000.

The loan was arranged by the borrower's son. The purpose of the loan was to purchase a cleaning business to be operated by the son. The business was purchased in the borrower's name although Ford did not plan to operate the business and did not have the skills to do so. The broker who facilitated the transaction never saw the

37 See further Anthony Duggan, ‘Undue Influence’ in Patrick Parkinson, The Principles of Equity (2nd ed, 2003); Rick Bigwood, ‘Undue Influence in the House of Lords: Principles and Proof’ (2002) 65 Modern Law Review 435. 38 Bank of New South Wales v Rogers (1941) 65 CLR 42; Royal Bank of Scotland v Etridge (no 2) [2002] 2 AC 773.39 [2008] NSWSC 29 (‘Ford’).

13

borrower without the son being present. The broker recommended that the father see a lawyer about the transaction but, to the knowledge of the broker, this was never done. Within twelve months of the date of the transaction the borrower had defaulted upon his obligations under the loan agreement and the lender sought to recover the principal sum and to take possession of the property. Harrison J found that the loan agreement was void on grounds of non est factum. 40

In Ford the borrower was clearly suffering from a special disadvantage for the purposes of unconscionable dealing. It is arguable that the broker ought to have known of this disadvantage. The borrower had such a severe intellectual impairment that he was found not to have understood the nature of the transaction he was entering into and was instead acting under the influence of his son. A conversation of any depth about the transaction would presumably have indicated to the broker the borrower's significant lack of understanding about the transaction. However, even if the broker did know of the borrower’s special disadvantage, the lender did not. The broker was not the agent of the lender. The lender had no direct dealing with the borrower.41

For similar reasons, the borrower failed in having the transaction set aside on grounds of undue influence. Harrison J accepted that the borrower entered into the transaction as a result of, and under the influence of, his son. The difficulty for the borrower was that there was 'no evidence that the lender had actual notice of the matters relied upon as demonstrating undue influence and constructive notice would be insufficient’.42 40 Cf Steele-Smith v Liberty Financial Pty Ltd [2005] NSWSC 398.41 [2008] NSWSC 29 [92] (Harrison J). 42 [2008] NSWSC 29 [95].

14

In these sorts of cases, knowledge of a special disability or of undue influence may only come to the lender, if at all, through information passed to the lender by the borrower or the broker. The primary form of information is likely to be the loan application and loan documentation. Where this documentation has been completed by the borrower with the assistance of the broker, it may commonly appear to be normal and the transaction in order. Nonetheless, it is possible that in some cases the loan documentation might reveal information that should alert the lender to the fact that the borrower was unable properly to conserve his or her own interests. Relevant factors in the loan documentation might include evidence of poor language skills, a disability perhaps through receipt of a disability pension or obvious misunderstanding of the nature of the transaction.

Would the sheer improvidence of the transaction be sufficient to attribute to the lender knowledge of a special disability on the part of the borrower or of undue influence in the transaction?43 The issue is unresolved. In Elkofairi v Permanent Trustee Co Ltd44 the borrower was illiterate, had no income, was on an invalid pension and the borrowing was secured over her only asset. The Court of Appeal of the NSW Supreme Court held that the borrower was in a position of a special disadvantage. Not all of the information relevant to the borrower’s position was known to the credit provider. However, the loan application form failed to disclose any income for either husband or wife. Thus, the court held that the lender did know that the borrower had no income and that a large borrowing was secured over the borrower’s only asset.45 The court held that ‘it was

15

unconscientious for the [lender] to lend a large sum of money to a person with no income with full knowledge that if the repayments under the loan were not met, it could sell that person's only asset.46

By contrast, in Ford the borrower was also on a disability pension and secured the loan over his only asset. Harrison J did not accept the borrower’s argument that while the lender did not have actual notice of the borrower's disability, it should be held culpable because it ‘failed to make enquiries that it should in the circumstances have made about the literacy of the defendant or his intellectual capacity to enter into it’.47 Harrison J suggested that the borrower’s arguments were stretching too far the notion of the knowledge required for unconscionable dealing.48 Given the borrower’s loan application was completed with the assistance of the broker and the borrower’s son, there was presumably nothing in the loan application and other documents which revealed the borrower’s impairment, such as obvious spelling or comprehension errors. However, the borrower had no income other than a disability pension and was mortgaging his home to support the loan. Perhaps the borrower might have argued that these facts should have raised the possibility of Ford not being able to conserve his own interests in the mind of a reasonable person.

43 On the issues raised by asset based lending and unconscionable conduct, see further Research Paper 3.44 [2002] NSWCA 413.45 [2002] NSWCA 413, [56] (Beazley JA). 46 [2002] NSWCA 413, [59] (Beazley JA). 47 [2008] NSWSC 29 [86]. 48 [2008] NSWSC 29 [92].

16

III SETTING ASIDE A CONTRACT AS UNJUST ON THE BASIS OF THE BROKER’S CONDUCT

Section 70 of the UCCC, and similarly the Contracts Review Act 1980 (NSW) provides that:

The court may if satisfied on the application of a debtor, mortgagor or guarantor that, in the circumstances relating to the relevant credit contract, mortgage or guarantee at the time it was entered into or changed (whether or not by agreement), the contract, mortgage or guarantee or change was unjust, reopen the transaction that gave rise to the contract, mortgage, guarantee or change.

Under s 70(7) of the UCCC unjust is defined to include conduct that is 'unconscionable, harsh or oppressive’.

Section 70(2) provides that in making a determination pursuant to s 70(1) the court must have regard to the public interest and all the circumstances of the case and may in addition have regard to the specified factors which include:

(j) whether the credit provider or any other person exerted or used unfair pressure, undue influence or unfair tactics on the debt, mortgagor or guarantor, and if so, the nature and extent of that unfair pressure, undue influence or unfair tactics.

Under s 70(4) in determining whether a contract or a provision of a contract is unjust, the Court shall not have regard to any injustice arising from circumstances that were not reasonably foreseeable at the time the contract was entered into. A similar provision exists in the Contract Review Act 1980 (NSW) found under s 9(4).

17

It is uncertain whether this section precludes relief except in circumstances where the fraud of a broker would have been reasonably foreseeable to the lender at the time the contract was made. Duggan and Lanyon explain that there are two possible interpretations of the provisions;

It could be read as referring only to circumstances arising after the date of the contract and before the action is bought. Alternatively, it could be read as referring back to the circumstances mentioned in s 70(1) – in other words, to circumstances existing at the time the contract was made. If it is the first construction, the provision serves the function [consistent with the Peden Report on which the Contract Review Act is based], namely of allowing the courts to take account of developments after the contract was made, provided they were reasonably foreseeable by the credit provider at the retime.. If it is given the second construction, the provision serves the quite different function of limiting the Act to cases where the circumstances on which the complaining party relies were known to, or ‘reasonably foreseeable’ by, the credit provider at the time of contracting.49

Duggan and Lanyon explain that the New South Wales Court of Appeal50 has adopted the first construction in the context of the Contracts Review Act 1980 (NSW). The Victorian Supreme Court has

49 Anthony Duggan and Elizabeth Lanyon, Consumer Credit Law (1999) p 339, [9.2.7].50 West v AGC (Advances) Ltd (1986) 5 NSWLR 610; Antonovic v Volker (1986) 7 NSWLR 151; Beneficial Finance Corp Ltd v Karavas (1991) 23 NSWLR 256, 277 (Meagher JA); St George Bank Ltd v Trimarchi [2004] NSWCA 120, [36] (Mason P); Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41, [117] - [119] (Basten JA).

18

adopted the second construction in the context of the Credit Act 1984 (Vic).51

Duggan and Lanyon comment that:

The Victorian Supreme Court’s approach reflects a concern to avoid the reopening of transactions where the credit provider’s conscience was not affected. The trouble is that, however attractive this concern might be as a matter of principle, it appears to be inconsistent with legislature’s intention.52

If the view preferred by Duggan and Lanyon is adopted, then under the UCCC s 70 and the Contracts Review Act 1980 (NSW) a contract can be found unjust on the basis of the conduct of a finance broker even where the credit provider had no knowledge of that conduct.

The second step in assessing whether to grant relief under the UCCC or Contracts Review Act 1980 (NSW) is to consider whether the discretion should be exercised. Courts have held that the state of a lender’s knowledge will be relevant to the exercise of the courts discretion to grant relief under the relevant legislation,53 although absence of knowledge of the circumstances of injustice does not preclude a claim for relief.54

As already discussed in relation to unconscionable dealing, in some cases a lender may be treated as having knowledge of a broker’s fraud though information revealed about the transaction in the loan

51 Custom Credit Corporation Ltd v Lupi [1992] 1 VR 99; Morlend Finance Corporation (Vic) Pty Ltd v Westendorp [1993] 2 VR 284; Custom Credit Corporation Ltd v Lynch [1993] 2 VR 469. 52 Anthony Duggan and Elizabeth Lanyon, Consumer Credit Law (1999) p 340, [9.2.7].

19

application and other documents. Would this consideration preclude relief in respect to a loan contract being granted to a borrower affected by broker fraud in circumstances where the lender does not have knowledge of the fraud? On the one hand, it might be said that if the lender does not have knowledge of the broker’s fraud it would be unjust to visit the consequences of that fraud on the lenders, because as we have discussed, the conscience of the lender will not have been tainted. In Ford Harrison J considered the transaction was outside the scope of the Contracts Review Act as the loan was for business purposes. In terms of whether the contract was unfair, while the lender’s lack of knowledge of the borrower’s disability did not bar relief under the Contracts Review Act, Harrison J took the view that the contract was not relevantly unjust.55

On the other hand, it might be argued that such a result is not unfair because lenders will usually be better placed than borrowers to monitor the conduct of the finance brokers with whom they deal. Borrowers will commonly have approached a broker because they are inexperienced in the credit market. By contrast, lenders may have an ongoing working relationship with the brokers with whom they deal, experience in the market and, through the payment of commission, some power to impose standards of acceptable conduct on brokers. The lender has greater expertise and market power than the borrower. Accordingly, it might be argued that the lender should, in fairness, have responsibilities for monitoring the conduct of the brokers on which it relies or at least take active steps 53 Collier v Morelend Finance (Vic) Corporation Pty Ltd (1989) ASC 55-716; Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256; Nguyen v Taylor (1992) 27 NSWLR 48; Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41, [77], [119].54 Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41, [77] (Spigelman CJ) and [119] (Basten JA); Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413.55 [2008] NSWSC 29 [102].

20

to assess the genuine suitability for the borrowers of the finance product recommended by the broker. If this second perspective is accepted, then factors relevant to the courts’ discretion to grant relief might include whether the lender had put in place procedures either to monitor brokers or to take some steps to verify information given in applications submitted through a broker.

Whatever the attractions of this approach, it does not sit altogether easily with the jurisdiction to relieve against an unfair contract. It effectively places a duty of care on a lender to assess the suitability of a loan for a borrower, a task for which the borrower has engaged a broker. To the extent that lenders are well placed to monitor the conduct of brokers, any requirement to do so should be imposed directly rather than through the device of an unjust contract.

IV WHAT STEPS MIGHT A FINANCE PROVIDER TAKE TO AVOID BEING TAINTED BY THE FRAUD OF A BROKER?

Given the risks associated with broker fraud, both financial and legal, it may be prudent for lenders to put into place processes for monitoring brokers and loan applications submitted by them. For example, lenders might take steps to identify the factors which indicate either broker fraud, or the presence of a borrower who is unable to conserve his or her own interests. Lenders might insist borrowers have independent advice about the transaction and /or that the loan documents be signed in the presence of the solicitor and returned to the solicitor by the solicitor not the broker. Lenders might require some independent verification of the borrower’s assertions of income and assets.

21

Lenders might also try to protect themselves against being tainted by the fraud of a broker by attempting to contract out of any such liability. For example, a lender might include in the loan documentation signed by the borrower an assertion that the borrower has not relied on any statements about the loan provided by the broker or a statement by the borrower acknowledging that the broker is not the agent of the lender. While much will depend on the circumstances, it seems doubtful that such statements would be successful. If the broker has in fact been held out as the agent of the lender then a contractual disclaimer will not negate that holding out. Similarly, if the broker is the primary source of information about the loan then it may be difficult for a lender to distance itself from information, provided by the broker.56

It might further be argued that attempts by a lender to disclaim responsibility for fraud by a broker may be void as an unfair term under s 32W of the Fair Trading Act (Vic). This legislation does not apply to contracts regulated by the UCCC but might apply to credit contracts outside such legislation. Of relevance is, s 32X(g) provides that a term which has the object or effect of ‘limiting the consumer’s right to sue’ may be unfair because of that fact.

CONCLUSION

The cases of broker fraud raise the need for care on the part of lenders who rely on brokers to facilitate loan transactions. Broker fraud may lead a lender into a transaction that is significantly more risky than the lender originally realised in a financial sense and also possibly in a legal sense. Generally, a lender will not have any

56 See also Bowler v Hilda Pty Ltd (1998) 153 ALR 95, 109.

22

knowledge of the broker fraud so as to be tainted by that conduct. However, in some cases there may be sufficient information in the documents provided to a lender by the broker or borrower to implicate the lender in the wrongdoing. Lenders may therefore be well-advised to develop procedures for monitoring broker facilitated transactions and verifying the information presented in relation to such dealings. There is also clearly a case for stronger regulation to protect borrowers in their dealings with brokers. However, the inexperience of borrowers who may use the services of brokers suggests that they may not be in a good position to monitor the conduct of brokers to ensure compliance with regulatory requirements. Legislative incentives, should also be provided to lenders engage in this process of monitoring.

23