Conflicting bankers' obligations does not equal unconscionable conduct
One often misunderstood aspect of relationship banking is the implication that relationship bankers who share - or do not share - information internally about their customers are not acting in their own customers' best interests. There are many factors involved, such as confidentiality, credit risk and the need to identify and disclose any regulatory breaches - although such conflicting obligations may only come into focus if the bank is sued. This is the key point made by top-tier commercial law firms Ashurst and Herbert Smith Freehills in their respective commentary on the case of Commonwealth Bank of Australia v Kojic, handed down by the Full Federal Court earlier this year. In CBA v Kojic, the Court found that the collective knowledge of officers and employees could not be aggregated and attributed to the bank for the purpose of finding statutory unconscionability. This was so because no individual had acted unconscionably and the employees had no duty to inform each other about what they knew.The case arose as the Commonwealth Bank provided services separately to two parties involved in a property development that went sour: the property developer and another pair of investors who contributed funds towards the development both banked with the CBA. The two sets of CBA customers had different bank managers and different borrowing intentions, and no-one spoke to anyone else. The investors (Dragutin and Marijat Kojic )argued that, all the same, the bank should have known their investment was riskier in reality than it appeared.The relevant facts and findings were: companies associated with a property developer borrowed A$480,000 from CBA to buy a property costing $850,000 - this loan was secured by a first registered mortgage over the property; Dragutin and Marijat Kojic provided additional funds from their CBA account towards the purchase price, with a view to obtaining a 50 per cent interest in the property; the Kojics knew that the property was encumbered by the mortgage, but did not know that the mortgage secured not only the developer's $480,000 loan, but also other debts of the property developer to the bank (in particular, they did not know that the other borrowings of the property developer secured by the mortgage left no residual equity in the property); the Kojics' bank manager understood that their payment (which took the form of an unsecured loan since they undertook no steps to take security for the payment) would result in a 50 per cent equity in the property and that the bank was to finance half the purchase price, but not that this loan was secured by a mortgage which was also secured to the CBA by other borrowings of the property developer; and the property developer's bank manager also knew that the Kojics were proposing to take a half share in the property and he knew that his own customer's mortgage secured additional borrowings - but the two bank managers never spoke to one another. The property developer's companies defaulted in their repayment to CBA,