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Goodridge decision restores certainty to margin lending

14 June 2011 4:40PM
The High Court's refusal to re-open the Goodridge margin-lending case has restored certainty to margin lenders and will also come as a welcome relief to the securitisation industry. On Friday, the High Court ruled that it would not reconsider the verdict handed down by the full bench of the Federal Court in Goodridge v Leveraged Equities Limited in February. Ross Goodridge, the plaintiff, had sought to argue that Leveraged Equities had acted unconscionably and was in breach of contract when it closed out his margin loans in 2009 with just one day's notice. The decision cost Goodridge more than A$3 million, the court had heard. Goodridge  also argued that Macquarie's decision to transfer his margin-lending contracts to Leveraged Equities, a division of Bendigo & Adelaide Bank, in 2009 was handled incorrectly and should be overturned. When the matter first went to the Federal Court, in February 2010, Judge Steven Rares ruled that the transfer of Macquarie's margin loan book was not conducted properly and that Bendigo had no authority to make a margin call on the client Ross Goodridge's account. The decision meant that only the initial party to the contract — Macquarie — would be able to make margin calls on its former margin lending accounts. To exercise margin calls on the accounts, Bendigo would first have to gain consent from the clients in question. The decision cast a cloud over 18,500 accounts that were transferred to LE when Macquarie sold its A$1.5 billion margin-lending book to Bendigo for just A$52 million following the global financial crisis.In an appeal earlier this year, however, the full bench of the Federal Court of Australia overturned Justice Rares' decision. It ruled that the disputed 5.6 million units in Macquarie CountryWide Trust, worth around A$4.8 million, should be returned to Bendigo & Adelaide Bank.Lawyers said that the appeal had returned certainty to entities that — like Leveraged Equities — had purchased a book of margin loans. Andrew Jinks, partner at Clayton Utz, said the Federal Court's earlier decision was well reasoned and gave full consideration to the actual contract that Goodridge had signed with Macquarie Bank, the original lender. When Macquarie sold its interests to LE, it had transferred the parcel of margin loans to a securitisation trust; following the transfer, the original trustee was then replaced by Leveraged Equities.According to Diccon Loxton, of Allens Arthur Robinson, the closure of the Goodridge case means there is nothing to prevent a novation such as this taking place without the further consent or agreement of the other party — provided the novation is clearly spelled out in the original contract. This, in turn, supports the standard practice in securitisation and sales of financial assets in the Australian market, he said. For margin lenders, the case also underscores the importance of documenting clearly the procedure for any margin calls. Lenders need to ensure that their operational procedures are aligned with their documents. "A telephone conversation followed up by an email in friendly and informal terms may

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