FRL 326 Quiz: 2-207 Additional Terms in Acceptance or Confirmation

PART A

Jasper is a furniture manufacturer who runs a successful business in Caroline Springs as a sole trader. He owns the land on which his existing factory is built together with plant and equipment including two motor vehicles. He wants to take on partners to help put into effect his grand plans for expansion including the setting up of several more factories. Obviously, he says to himself, I need an injection of funds to finance these great plans.

So Jasper goes to a branch of the Very Accommodating Bank (‘VA Bank’) that has just opened up in his area.

On 31 August he sees the local manager of the VA Bank, a lady called Gloria. He discusses with Gloria the amount of borrowed funds Jasper thinks he will need for his business. They agree that a loan of $750,000.00 would meet Jasper’s immediate needs.

They discuss different types of loans and Gloria says: ‘Well, Jasper that is all very interesting. Based upon my experience with similar businesses to yours, I can say that the Bank would be very interested in lending you what you need. Of course we would require security. We would certainly require a mortgage over your real property together with a fixed/floating charge over your other assets.’

Jasper says that he doesn’t want to pay high fees and requires an interest rate of no more than 7% payable quarterly for the loan. Gloria says: ‘As to interest, I can only tell you that our current rate is 7.25%. What do you think about all of this? ‘Jasper says to her: ‘I will think about it and get back to you.’ Gloria says: ‘Well, don’t take too long about it.’

Jasper is getting a little fed up with Gloria’s over bearing manner and thinks he can get a better deal elsewhere. Unfortunately, he finds that in fact no one else will lend to him. So two weeks later on 14 September Jasper emails Gloria, in which email he states: ‘I accept your offer of 31 August.’

A week later Jasper phones Gloria to ask when he can access the loan. Gloria says to him: ‘Sorry, Jasper, but there has been a downturn in the Bank’s shares and the interest rate for loans such as yours is now 8.5%.’

(a) Ignoring legislation or Codes of Conduct, advise Jasper as to whether or not VA Bank is obliged to provide him with a loan of $750,000.00 at 7.25%. Give reasons for your answer.​ [5 marks]

Although he is dismayed at the Bank’s attitude, Jasper is desperate to get his plans under way and phones Gloria saying: ‘We agree to your terms but I have one question of importance to me - Can I have the option of repaying the loan on an interest only basis instead of repaying principal and interest should my circumstances make such a change necessary?’ To which Gloria replied: ‘I am fairly certain you can have that facility.’

Jasper receives the Bank’s standard contract documents for the loan, signs them and returns the documents to Gloria. Unfortunately Jasper was pressed for time and did not actually read the contracts before signing. On reading them the next day he is dismayed to find that they contain the usual obligations to repay regular instalments of principal and interest but there is no reference to an option to pay interest only.

(b) Advise Jasper if he can insist upon the Bank including an option clause in the loan agreement.​​ [3 marks]

Finally, Jasper had previously banked at the ​Westfall Bank. In the course of discussions between Gloria and Joe, the Manager of Westfall Bank, Joe tells Gloria that Jasper needs to be kept an eye on as he was always writing cheques in favour of the local casino. Gloria passes this information on to Jasper, who is appalled at this slight on his reputation.

(c) Advise Jasper what rights he has against Westfall Bank. [2 marks]​

PART B

Chameleon Ltd is a customer of the Caring and Wealthy Bank. It is a very large company and employs more than 100 people and therefore the Code of Banking Practice does not apply to it. When it opened its account with the Caring and Wealthy Bank, Chameleon Ltd agreed to be bound by this Bank’s terms and conditions as notified to it from time to time. Six months after the account is opened Caring and Wealthy Bank sends its statement to Chameleon Ltd together with the following letter:

PLEASE READ THIS LETTER. IT CONTAINS EXCITING NEW INFORMATION ABOUT YOUR ACCOUNT.

Dear Customer (‘you’),

The Caring and Wealthy Bank (‘us’) is always trying to find new ways to service you.

To enable us to do this, however, we have decided to introduce a new term of the contract between you and us. This is to enable us to reduce costs in one area so we can provide you with exciting new services. The new clause 12 of the contract between you and us is as follows:

The customer (‘you’) must read each bank statement sent to you. If there are any inconsistencies in the statement you must notify the bank of the inconsistencies within 10 business days. Failure to notify us of such inconsistencies means the amount of the balance contained in the incorrect statement represents what you owe us or what we owe you, as the case may be.

The managing director of Chameleon Ltd receives the bank statement and letter. She doesn’t read the bank statement. She starts to read the letter but throws it in the bin after she reads the first sentence thinking the bank is trying to sell new products to the company. ‘Just another publicity stunt,’ she remarks to the office cat.

The bank statement shows that between 1 February and 1 April $1 million has been fraudulently withdrawn from the company’s bank account. Chameleon Ltd does not notify the bank of the fraudulent withdrawal within 10 business days of receiving the statement. It is later discovered by the bank that an employee of Chameleon Ltd, called Cynthia, had fraudulently withdrawn the $1 million and then proceeded to lose the whole sum at the casino. The bank was then informed.

Two months later on 1 June the managing director becomes aware that on 15 May, Colin, the company’s accounts clerk, had fraudulently stolen $2,000 from the company’s current bank account at The Caring and Wealthy Bank by forging company cheques. Colin’s wife had just died and the managing director does not tell the bank about the forgeries. On 30 July, Colin steals a further $1,000 from the company account in the same manner.

After discovering on 30 July what Colin has done, the managing director comes to you and asks you to advise Chameleon Ltd what to do and whether The Caring and Wealthy Bank is entitled to debit the company’s account for

1. the $1million stolen by Cynthia and

2. the $3,000 in total stolen by Colin.

Advise Chameleon Ltd giving reasons with relevant cases. Consider what effect, if any, the letter from the Bank purporting to introduce a ‘NEW TERM’ has on the situation? What Duties of the Banker and Customer ,if any,are involved here? ​ [7 marks]

PART C

Martin Pty Ltd has an account with the Caring and Wealthy Bank named ‘Wages Account’ used (as Martin’s CEO explained to the Bank’s Manager ) for payment of wages to staff. The balance in credit was $25,000.The company also had a current account in debit to the extent of $10,000 and a loan account so designated in debit to the extent of $15,000.

Can the Bank combine any of these accounts? Explain the concept of Combination of Accounts using case law to illustrate your answer. [3 marks]