Question Three (20 marks)

Irene conducts a fish wholesaling business. Her primary market is restaurants in Melbourne's CBD. The business had prospered for some years, earning approximately $1,000,000 in annual profits, but deteriorated when Irene began gambling at the casino. Irene lost $10,000,000 gambling. She approached her bank, Second National, but it refused to extend her any more credit because of her poor financial position, and gambling problem. Irene could think of no one to turn to other than her elder sister Effie. Effie was a retired successful entrepreneur, and had approximately $15,000,000 in her bank account, also with Second National. Irene managed to persuade Effie to help her out of what she described as a `temporary cash shortage of about $500,000 caused by the corona virus,' which was a lie. So, Effie loaned her sister $500,000, and said that whilst no interest would be charged, the loan must be repaid within 5 years. If not, then Effie would take ownership and control of the business completely, and Irene would be expelled from operating the business. Irene's business continued to deteriorate. She defaulted in payments under the loan. Effie seeks your advice as to the following:

(a) Does the National Credit Code and the NCCP Act apply to the loan between Effie and Irene? (2 marks)

(b) Is the term: "the loan must be repaid within 5 years. If not, then Effie would take ownership and control of the business completely, and Irene would be expelled from operating the business" unfair? Assuming that it is unfair can Irene ask the court to delete the term? (8 marks)

(c) When the business fails, Effie argues that the Second National Bank failed to advise her of Irene's gambling problem, thus they engaged in misleading and deceptive conduct. She argues that they should pay her damages equal to the value of the loan, plus all additional outstanding bills and debts owed by the business - totaling some $75,000. The Representative from Second National argued that they were bound by the bank's duty of confidentiality. Who is correct? (10 Marks)