Save(0) Please login to bookmark Username or Email Address Password Remember Me MyBudget has successfully fought off a class action brought by consumers who claimed […]
MyBudget, which in its closing submissions in May said that any interest earned was “trivial” anyway, contended that the Interest Provision explicitly permitted it to take and use interest earned on client money for its own purposes and there had been no breach of trust or fiduciary duty.
“[The] construction advanced by MyBudget is correct. Adopting that construction, I do not consider that the Interest Provision is an unfair term as pleaded. It follows that Mr Turner is not entitled to any of the relief he seeks and his individual claim should be dismissed,” Judge Lee wrote.
The contractual terms were “tolerably plain,” he said, with all interest going to MyBudget and none of the bank fees for MyBudget’s accounts burdening clients. These two items – the interest and the fees – were “roughly netted off,” the judge added.
“MyBudget obtains and suffers the pluses and minuses of the bank accounts necessary to discharge its obligations to provide the services. When read as a whole, a reasonable person in the position of Mr Turner would not conclude that the client is entitled to interest because, as the provision expressly states: ‘[i]nterest is not payable to clients’.”
Judge Lee also dismissed the class’ assertions that the contract was unfair because it did not “put the client on clear and certain notice” that any interest would be appropriated by MyBudget.
“It is not correct to characterise the Interest Provision as a ‘hidden fee’. Although … the Interest Provision could have been expressed more clearly, when it is read in the context of the Contract as a whole, it is sufficiently clear.”
The Provision did not cause an overall detriment, financial or otherwise, to clients, Judge Lee wrote.
Parties have now been given until September 25 to submit their orders for costs.
MyBudget was represented by Norton Rose Fulbright.
The case is Kelvin Turner v MyBudget Pty Ltd ACN 82 093 118 597.