Bank told to compensate for selling shares in low market

30-November-2010 Fraud and Insolvency By Mark Streeter

Macquarie Bank’s sale of loan book creates problems for clients

The facts behind the case

Mr Goodridge (the Borrower) entered into a margin lending loan arrangement with Macquarie Bank in May 2003.  On 8 January 2009 Macquarie Bank sold their “loan book” (which included Mr Goodridge’s margin lending account) to a subsidiary of Bendigo and Adelaide Banks – Leveraged Equities Ltd (the Second Defendant in these proceedings).  Notices were issued on 19 January 2009 purporting to notify all customers of the Bank of the transfer and the new “ownership” of the Banking arrangements.

The Bank (either Macquarie Bank or Leveraged Equities) made a “calls and demands” under the loan on 5 February 2009 and 23 February 2009.
The evidence was accepted (form the Bank’s recording of a telephone conversation) that there was a negotiated arrangement between the Bank and the Borrower and the 5 February 2009 margin call was fully satisfied by the Borrower.

The enquiry then focused on whether or not a “call” under the margin loan by the Bank on 23 February 2009 expired unsatisfied which justifying the Bank selling the securities to pay down the margin loan.

The Borrower had purchased units in a listed units in Macquarie Country Wide Trust (MCW Trust).  The market price of these units on 11 November 2008 was 31 cents.  The discounted cashflow valuation that Macquarie Equities Ltd had placed on these Units was $1.15.  The price of these Units came under a degree of stress and by 23 February 2009 the price had fallen to 14.5 cents per Unit and during the day had dropped to 13 cents.  On the afternoon of 23 February 2009 an email was despatched from Leveraged Equities to the Borrower requiring payment of the margin call of $190,000.  The Borrower was given 24 hours to pay this amount to maintain the Loan Valuation Ratio (LVR) at 70%.  The “margin call” was not met within this timeframe and the Bank sold the Units for prices that went down to 10.5 cents per Unit.  All 5.6 million units were sold and because of the depressed price (in part caused by the fact that the market could not absorb the sale of 5.6 million units in a 24 hour period!)  There was still an amount outstanding to the Bank.  It remained in debit of over $58,000.00.

What’s the Story?

The relationship between a Lender and the Borrower under a margin loan facility is one of substantial interdependence.  Unlike real estate which could take somewhere between three and six months for the Bank to take possession and sell, listed securities can be sold quite quickly.
The relevant clause of the margin lending loan required the Bank to give three business days notice for compliance with a margin call.  Other clauses in the agreement provided for the ability, at the discretion of the Bank, to modify the terms of the agreement.  However, His Honour Justice Rares found that this three days notice as an expressed term offered the Borrower a substantial contractual right and any alternative construction would lead to a very unreasonable and uncommercial result!

His Honour Justice Rares noted that the liability to meet a margin call remained contingent up until the time of the compliance and only matures into an actual liability if at the time of the application of the formula (to ascertain the LVR) the loan balance and the valuation of the securities is in breach of the required ratio.  His Honour Justice Rares delivered a lengthy 57 page judgement which dealt with many legal and factual complexities in a rational and well reasoned judgment.  The judgment will provide essential reading in construing any contracts relating to margin lending accounts.

His Honour found that the margin call was in breach of the terms of the margin loan agreement and accordingly invalid. There was no right on the part of the Bank (either of the two defendants) entitling them to sell.  Accordingly the sale of the units was unlawful and damages were payable.

If that was not enough, the judge also found that in the event that it was validly assigned that the “shortening” of the time for meeting the margin call from 3 to 1 days was a breach of section 12CB of the ASIC Act.  His Honour found that in all the factual circumstances, there had been a misuse of the power of sale and that the second defendant had required the Borrower to comply with conditions that were not reasonably necessary to protect his legitimate interest in breach of section 12CB(2)(b) ASIC Act in that it required him to pay money in accordance with a timetable and a series of demands that were not valid and secondly threatened, and then proceeded to, sell his property without a legitimate interest that it was entitled to protect.

Accordingly this misuse of the power of sale was unconscionable.

The Borrower sought relief and an order that 5,603,562 in the MCW Trust be restored to him.

Since 23 February 2009 these units have increased in price substantially.  Additionally the units paid dividend (which also part of his damages claim) together with interest on the dividends.  As at 26 February 2010 they are 56.5 cents / Unit.  (That is his units would be worth over $3,000,000 plus dividend, plus interest on the lost dividend).

Another important issue – Invalid Assignment

Another significant legal issue to be determined was the question of whether or not a Bank can assign and “sell” a loan portfolio.  In the second paragraph of the judgement His Honour notes that:
“It was common ground that contractual obligations are generally incapable of assignment and that these can only be transferred by novation of the original contract.”

His Honour found against the Banks on multiple counts. He found that they had not been a valid assignment of the entitlement under the loan to the second defendant which entitled them to make the call on the margin loan.

Comment from Mark Streeter – Sydney Lawyer

Inevitably this court decision will be appealed. Macquarie Bank sold a $1.5 billion loan portfolio to Leveraged Equities Ltd. They certainly would not want to see some sort of class action by other Borrowers seeking compensation for margin calls that were unlawfully made!

The saga will continue in the meantime – Happy investing!

The first margin loan in this particular case also involved the use of a phone recording as evidence. Read the full story on the blogsite

David beats Goliath using a recorded phone call

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Written by Mark Streeter

Mark Streeter

The Director of Streeterlaw, Mark has been practicing Law since 1994. He has attained his Masters of Law in 1999 and in 2006 was awarded his Specialist Accreditation in Commercial Litigation. Mark is a member of ARITA, a graduate of the AICD and a member of AICM. A member of STEP, Mark enjoys working in the area of Wills and Estates. In 2020 Mark is the Chair of STEP NSW.

Call us on 02 8197 0105 to book an appointment with Mark Streeter!

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