Financial services litigation—Australia—Q&A guide
Financial services litigation—Australia—Q&A guide

The following Dispute Resolution practice note provides comprehensive and up to date legal information covering:

  • Financial services litigation—Australia—Q&A guide
  • 1. What are the most common causes of action brought against banks and other financial services providers by their customers?
  • 2. In claims for the mis-selling of financial products, what types of non-contractual duties have been recognised by the court? In particular, is there scope to plead that duties owed by financial institutions to the relevant regulator in your jurisdiction are also owed directly by a financial institution to its customers?
  • 3. In claims for untrue or misleading statements or omissions in prospectuses, listing particulars and periodic financial disclosures, is there a statutory liability regime?
  • 4. Is there an implied duty of good faith in contracts concluded between financial institutions and their customers? What is the effect of this duty on financial services litigation?
  • 5. In what circumstances will a financial institution owe fiduciary duties to its customers? What is the effect of such duties on financial services litigation?
  • 6. How are standard form master agreements for particular financial transactions treated?
  • 7. Can a financial institution limit or exclude its liability? What statutory protections exist to protect the interests of consumers and private parties?
  • 8. What other restrictions apply to the freedom of financial institutions to contract?
  • 9. What remedies are available in financial services litigation?
  • More...

This Practice Note contains a jurisdiction-specific Q&A guide to financial services litigation in Australia published as part of the Lexology Getting the Deal Through series by Law Business Research (published: June 2020).

Authors: Gilbert + Tobin—Andrew Floro; Kasia Dziadosz-Findlay; Richard Harris; Adam Ahern

1. What are the most common causes of action brought against banks and other financial services providers by their customers?

Common causes of action commenced against banks and financial services providers by customers include:

  1. breach of contract—both express and implied terms;

  2. breaches of a statute—particularly concerning standards of conduct, such as engaging in misleading or deceptive conduct and unconscionable conduct, or concerning consumer credit; and

  3. activities or breaches of responsible lending legislation.

Statutory consumer protection provisions, such as unconscionable conduct and misleading or deceptive conduct, are generally mirrored in the Australian Securities and Investments Commission Act 2001 (the ASIC Act) for banks providing credit facilities and the Corporations Act 2001 (the Corporations Act) for other financial product and service providers. Although not applying to financial services, the Australian Consumer Law similarly reflects these provisions to protect consumers concerning other products and services. These Acts have largely superseded common law actions, although they are still available and sometimes raised in conjunction with statutory claims, or where they are the only claims available.

Additionally, for financial services providers other than banks, such as financial advisers, common causes of action

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