In the courts

If a bank suspects a breach of trust, can it refuse to carry out its customer's instructions?
The Court of Appeal has considered the duty of a banker faced with a customer's demand for payment of an account in credit when the bank had become aware that payment might constitute a breach of trust in relation to a third party.

When can a bank avoid paying under an irrevocable letter of credit?
The Australian Supreme Court has decided that there are at least three circumstances where a bank does not have to pay.

At what point is a mortgagor's right to redeem lost?
The High Court has considered a mortgagor's right to redeem, and when that right is extinguished.

Is it a guarantee or is it an indemnity?
A guarantor's arguments that the "Deed of indemnity and right to mortgage" that he had signed was a guarantee and not an indemnity and that a variation to the original contract relieved him of liability were rejected by the High Court.

A reminder of the distinctions between a guarantee and an indemnity is set out following the summary of this case.

Edgewater distinguished: GST is not payable to the IRD before repayment of a mortgage where the sale is not a mortgagee sale
The Court of Appeal distinguished the decision in Edgewater (referred to in the Winter 2003 issue of Financial Services Quarterly) on the basis that the sale in this case was made by the mortgagor, and not the mortgagee.

Ordinary resolution for sale of Fletcher Challenge Forests' forest estate
In December last year, the High Court ruled that Fletcher Challenge Forests Limited (FCF) only had to put an ordinary resolution to shareholders with a 50 per cent vote, rather than a special resolution with a 75 per cent vote, when forest assets owned by its subsidiaries are sold.

Enquiries and information

For more information on any of the cases, articles and features in Financial Services Quarterly, please email Rachel Gowing or call on 64 9 916 8825.