We’re posting this up as it seems to have slipped under a lot of people’s radar. The essence of this huge recent case was relating to the doctrine of penalties under contract law. The Decision would seem to be very pertinent to many of the contract areas where members and friends of the Dignity Alliance are involved and may help develop new legal strategies out there. Please let us know how you get on…
Today the High Court handed down its decision in Andrews v ANZ, concerning the Court’s jurisdiction to relieve against penalties. The decision is likely to have an impact upon commercial arrangements and the drafting of commercial contracts.
In 2010 a representative action was commenced against Australia and New Zealand Banking Group Limited (“ANZ”) by some of its customers in respect of various fees imposed on them. As part of those proceedings, it was alleged that that the fees payable by the customers to ANZ were void or unenforceable as penalties. At first instance,
Justice Gordon held that the majority of those fees could not be penalties as the fees were not payable on breach of
contract. The question was removed to the High Court for consideration.
What is a penalty?
The position before today’s decision:
A fee payable under contract will be a penalty where it is imposed to secure the performance of another obligation of the party required to pay, and the quantum of the fee is out of all proportion with the damage suffered by that non-performance.
Recent authority on penalties (e.g. Interstar Wholesale Finance Pty Ltd v Integral Home Loans Pty Ltd (2008) 257 ALR 292) had established that relief against penalties was only available for fees payable on breach of contract (“Recent Authority”).
Many commercial contracts have been drafted on the basis of this Recent Authority. Rather than such contractual fees being payable on breach of contract, such contractual fees are drafted permissively. For example, a fee payable on breach would be as follows:
(a) A leases a shop to B for $100 p/w, on the condition that the shop is not used on weekends.
(b) If (a) is breached, B agrees to pay A $500 for each breach.
If the fee of $500 is not a genuine pre-estimate of the damage suffered by A by B’s breach, it will be unenforceable as a penalty.
Yet, the same position could be validly achieved if the contractual terms were drafted permissively, for example:
(a) A leases a shop to B for $100 p/w for use Monday to Friday.
(b) B agrees to pay A $500 each time the property is used on the weekend.
Today the High Court unanimously ruled that Recent Authority is incorrect on the basis that relief against penalties is potentially available even if a fee is not payable on breach of contract. The High Court decided that the correct approach to determining whether a fee is a penalty is to ask whether the purpose of the fee is to secure performance of a primary obligation by the party subject to the fee or whether the fee is truly a fee for further services or accommodation. If it is a fee for further services or accommodation, it will not constitute a penalty even where the fee payable is significant. If the fee is payable to secure performance of the party subject to the fee, it will only be
enforceable if it is a genuine pre-estimate of the damage suffered by reason of that party’s non-performance.
To emphasise the distinction between penalties and fees for services, the High Court outlined and approved of the
decision in Metro-Goldwyn-Mayer v Greenham  2 NSWLR 717. That case involved a contract for the hiring of films to exhibitors for public showing. The contract gave exhibitors the right to one screening of the film only. The contract provided that a sum four times the original contract fee was payable for each additional screening. It was
held that this fee was not a penalty, but merely a fee paid for the option to purchase the right to an additional screening.
It should be emphasised that although breach of contract is no longer a necessary ingredient for relief against penalties, where a fee is payable upon breach of contract, that will be a strong indication that its purpose is to secure performance of the obligation breached. Hence, unless such fees are a genuine pre-estimate of the damage suffered
by such breach, they will be unenforceable.
Consequence of the decision
As a result of today’s High Court decision, contractual fees drafted on the basis of the now overruled Recent Authority may be capable of constituting penalties and potentially unenforceable. Fees payable under a number of commercial contracts may now need to be considered, for example fees payable under contracts for services,
transport, shipping and construction, franchise agreements and leases (to name but a few).
The purpose of such fees may need to be evaluated to determine whether they are payable to secure the performance of a primary obligation. In that regard it will be relevant whether, for instance, some further accommodation is provided for the fee (such as an additional right to screen a film).
Kudos to our friends at Banksterbusters for their hard work. If anyone has updates or further info on the subject of mortgage deeds please do share. We shall be keeping a close eye on developments with this one…
Apologies for the lack of posts of late but there has been a lot happening behind the scenes and lots of brand new sensible people joining the Alliance. All good stuff! It’ll be another couple of weeks till we start posting regular posts and info to keep you guys informed, inspired and up to date.
We’ve picked up an eviction that we will be working with as the conduct of the bailiffs and police was dreadful. The Dignity Alliance had an Observer present on each occasion and there were community press officers also reporting on events. The alleged Warrants were highly questionable too and we’ve passed these to Alpa Forensics for analysis and report. A separate link will be posted where we will put up all paperwork and videos and news so you can keep track of progress. Our aim is to investigate and raise complaints so we can help the MoJ, HMCTS and the Police to regain some of the public confidence they admit is now getting scarce on the ground.
Ditto with the Council Tax scam. Lots going on there too with our members that we’ll post up when we get the chance. There is one issue that is worth bring to your attention for now. The ‘BILLING AUTHORITY’ collects Council Tax, not ‘the Council’ or ‘Local Authority’. Do not confuse these. One District Judge has commented that they are essentially the same thing and frankly he is talking out his bum. In every case you are asked to do business with a party, YOU have a personal obligation to check the legal identity and legal capacity of that other party, otherwise you are liable for anything that happens. You CAN and SHOULD refuse to do business with a party that either can’t or won’t identify itself and its legal capacity. This is very much the case with one ‘Council’ we are having fun with. The Billing Authority and the Local Authority and Council have quite different functions and may even be, from area to area, different corporate entities. You need to check for yourself in your own area who is who and what is what as it is not uniform across the country.
This freedom of information response from the Valuation Office Agency (they who rate properties and work for HMRC with respect to the alleged Council Tax) is worth reading through. Refused on the basis that the Billing Authority is a person under the Data Protection Act and that person’s right to privacy has been protected. Yet more bullshit and officials working in a public capacity colluding to cover their backsides and scam the good ol’ trusting peasants. Complaint is with Information Commissioner and response will be posted here.
Here’s another tasty FOI response….
If you ask a mechanic what a spanner is and what its for and he/she will be able to answer you. Ask a nurse what a thermometer is and what its for and he/she will be able to answer you. Ask the judiciary what the law is and what its for and…..well….look for yourself…
I thought this was an easy question. Obviously not. In the Royal Courts of Justice they claim not to have one single piece of written information advising them what the law is and what it is for?! Hmmm. I have my own views on the answers, which revolve around tax and tax collection but I’m open to your views. This should be interesting. Sometimes we get buried so deep in the game that we forget to ask the simple questions. See if you can do better by writing around and sharing responses for posting on here. Send to email@example.com
Guy’s interview starts at 19.42 minutes. Judge Cadbury suggests Guy speak to the press about it!
Seriously, what the f*** is going on in our justice system? Bloke goes up to a Judge showing him a fraudulent Writ of Posssession that was used to steal a very expensive country manor and involved a tac team of police and an army of private bailiffs and a police helicopter – and he’s told to go talk to the press! And this, as Guy states, is happening at a massive scale.
If you have examples of fraudulent documents you would like forensically examined then send them to us at firstname.lastname@example.org and we will take the necessary steps. Our plan is to collate a thick, overwhelming pile of these documents and commence with a formal police complaint. We do have willing Senior Police Officers waiting for this to empower them to act. Nothing can be done without the evidence; and you guys coming forward.
You don’t have to be a member of the Dignity Alliance to submit documents but obviously we will be looking for people to get involved and join us to get maximum publicity and impact on this campaign.
The case is particularly interesting from at least one angle: Sasfin Bank pioneered securitisation in South Africa, and Greville claims that his loan has been securitised, thereby removing the bank’s legal standing to bring any action against him.
The judgment handed down by the court could be a major victory for the “securitisation defence” as it has come to be known. Securitisation is the practice of bundling loans together and on-selling them to investors, though the banks continue to act as collection agents for the new owners, which is expressly forbidden in terms of Section 78 of the Banks Act.
Once securitisation has occurred, the banks – in theory – lose all legal title to these loans and cannot proceed against borrowers. This has been validated by case law overseas, but the courts in South Africa have tended to give the banks a free pass on this shadowy practice. This latest judgment is therefore a major victory for those arguing the securitisation defence.
If anyone can provide Case Law relevant to the UK to share it would be appreciated.
Dignity Alliance would remind everyone of our friends at Albien Law Advocates Ltd. The tireless work by these volunteers cannot be commended highly enough as an essential service to the community. They receive no public funding and rely on private funding and people volunteering their time to learn the law and go on to help other people. The work they do in defending victims and the innocent, almost entirely on a pro bono basis, has earned them a reputation that few law firms enjoy. They are driven by passion and a desire to help others. If you have time to offer to help them please, please do so….
Please visit their website and facebook site and if you have knowledge of the law or are eager to learn, get in touch with them. The more good people they have helping, the more struggling people they can help.
A central campaign of the Dignity Alliance is to end the current multi-tier application of law where parties, because of privilege, or power, or money, or other elevated status seem to have little to fear if they do something criminal. We also have endless cases coming before the courts where one party is quietly granted court privilege thereby preventing the other party (generally the rest of us scrotes!) from getting a fair and impartial hearing. I’m sure most of us have experience of this institutional courtroom ‘impartiality’? We at the Dignity Alliance have termed this conduct as Judicial Apartheid. When you get past the populist descriptions of apartheid and go behind the racism front, the nuts and bolts of what it means is simply that someone or something is legally recognised as having higher or lower legal standing in a court. Isn’t blind lady justice about giving us all equal legal standing at law? The video presentations posted below add substance to this argument that justice is not blind and decisions may be more about abusing lawful process to impose political policy than actually delivering fairness or just reward.
This is not socialism or any other -ism. Let’s clear that up. Our community campaign has no party political motives! We seek only that the courts, to function correctly and deliver blind justice for all, must confer on litigant/prosecution and the respondent/defendant absolutely equal status and standing at all times without fear or favour. Granting one side or another elevated legal privilege because of some attribute is a very dangerous path to be following and sad to say that this nonsense is endemic in our current justice system and is gradually tearing it apart. The very political Human Rights Act 1998 can be included in this analysis of where our law has gone wrong but that subject WILL be discussed here another day, as will legal privilege for banks, local authorities, and every other ragtag outfit that seems to have the courts kissing their backsides.
We applaud the work of Albien Law Advocates as it helps to level the unbalanced playing field that is our current court system. We need groups like this all over the country doing the same to ensure justice is seen and to bring Judicial Apartheid to an end. If it means more bankers and public officials and heads of large multi-nationals tasting prison food then so be it. Protecting the economic well-being of the State may be the main function of government but at what expense? Justice?
You may not have heard of the European Charter of Local Self-Government, or the Localism Act 2011. You should! If you haven’t read these you haven’t got a clue what is happening. These are instruments were decided by our mates over in Brussels and Strasbourg that affect every one of us, every day. The Localism Act 2011 was slipped into our statute books with nary a bleat of protest by our elected representatives. We will leave it to you to draw your own conclusion but a common view held by many of our members is that these create a new form of 21st century fiefdom, where an appointed elite are given far, far too much power to wield with very little oversight or accountability in the new city-regions. We may return to a fuller discussion of this new troubling form of local self-government and why the political classes love them, but to return to the main subject of this post, is all this power exchange and special purpose government being imposed on us at the expense of equal justice? Who benefits the most when Judges have to also now consider economic well-being in their judgements? Nearest answer gets a prize!