Alan L Tyree

Papers on the law of banking

Most of the following papers appeared in slightly altered form in the Journal of Banking and Finance Law and Practice:

PINS and Signatures - Bankers often compare the PIN to the signature on a cheque, but the law treats the two quite differently. It may be that the legal treatment of the PIN is more suitable to modern conditions.
Secrecy vs s52 - Tournier imposes a duty of secrecy on a banker. Under certain circumstances s52 of the Trade Practices Act imposes a duty to disclose. These two duties may conflict.
Crisp v ANZ: secrecy and s52 revisited - A specific example of conflicting duties.
Does Tournier apply to Builiding Societies? - The Code of Conduct drafted by the Building Societies does not contain sections obliging the society to account confidentiality. The reason appears to be that Societies do not believe that the Tournier case is applicable. This paper examines that proposition.
Southern Comfort - Rogers J takes a robust view of the obligations imposed under a letter of comfort.
When Rules Collide: Liggett Meets Simms - The reasoning in Liggett's case (the "equitable defence") conflicts with that in Simms (recovery of money paid on a stopped cheque).
Liability when following a valid mandate - It seems hard, but a banker has a duty to do more than merely follow a customer's mandate.
The Mercedes Benz Case: Bad Business makes Hard Law and Part II of the same case - What a mess! Have a look at a case where everybody did it wrong.
Payment under a mistake of law - The High Court finally removes the fact/law distinction for the recovery of money paid under a mistake of fact.
Virtual Cash: payment over the Internet - Secure payment of very small sums - can it be done?
Virtual Cash II - Part II of the above paper.
Virtual Cash III - Part III of the discussion of digital cash.
Computer Money - a paper presented at the First Australian Computer Money Day Conference, University of Newcastle, 28 March, 1996.
Robbed! In a bank! - Is a bank liable when its customers are robbed on its premises?
Smart Cards: some issues - Smart cards are coming: they are not governed by the EFT Code of Practice even though many of the issues seem distressingly familiar.
Legal Problems of Electronic Clearing and Settlement - Cheque Truncation in Australia, validity of netting arrangements and more - paper presented at the Australian Banking Law Association Converence, Surfers Paradise, 31 May, 1996.
Regulation of International Electronic Trading - paper presented at the Second Australian Computer Money Day Conference, March, 1997.
Performance bonds and s51AA TPA - Can it be unconscionable to call on a performance bond? Well, yes.
The Wallis Report - The Wallis Report has recommended substantial changes in the Australian financial system. Read about it here.
S74, TPA and the EFT Code of Conduct - The EFT Code of Conduct does not apply to some of the new electronic payment systems. Could it be that section 74 of the Trade Practices Act provides similar consumer protection?
Converting Bearer Cheques to Order cheques - Pressure from the banks has resulted in the repeal of section 23(1) of the Cheques Act 1986. Is this a great victory, or is it completely irrelevant?
Regulating the payment system - Part 1 - In a time when "deregulation" seems to be the order of the day, it may seem strange to find that payment systems are coming under increasing regulation.
Regulating the payment system - Part 2 - Consumer protection: consumers have not had much to say about the operation of the payment system - until recently.
Regulating the payment system - Part 3 - Financial Stability: without it, there is no payment system. But how do we get it?
Regulating the payment system - Part 4 - Regulating "Purchased Payment Facilities": PPF's are "regulated" by the Payment Systems (Regulation) Act 1998. Unfortunately, the statutory definition is hopelessly confused and the "regulation" does the wrong thing.
The Legal Nature of Electronic Money - The principal argument in this paper is that stored value cards and other forms of electronic money are "distributed accounting systems" and fit squarely in the mainstream of traditional banking and payment law.
Bankers' references and implied consent - Does the customer give implied consent for a banker to disclose information in a "bankers' reference"? The English Court of Appeal said "No".
CLERP6 and Payments - The February 2000 release of the draft Financial Services Reform Bill, affectionately known as CLERP6, includes "non-cash" payments as a form of "finacial product". Some consequences are discussed.
The "business of banking" - Confusion over the nature of Purchased Payment Facilities leads to an inept extension of an already poor definition.
The Privacy (Private Sector) Amendments - Australia finally gets privacy legislation. What does it mean for most organisations?
CMTs, FTRA, etc - Cash management trusts have considered themselves to be outside the scope of the Financial Transactions Reports Act 1988. The Australian Government Solicitor disagrees, although not always for the right reasons.
Conversion of altered cheques - Can an altered cheque be converted? The English Court of Appeal gets it dreadfully wrong.
CMTs revisited - The Australian Government Solicitor disagrees. I think the reasons are still wrong, but the end result may be the same. This article looks at the meaning of "signatory" and what it means to "collect cheques".
The Australian Payments System - A sometimes critical look at the payments system System and its regulation. This paper appeared in (2000) 17 Banking and Finance Law Review 39.
Riedell gets a credit card - the Riedell case taught us something about clearing house rules. What does it have to say about credit card payments?
Unauthorised deposits - What is the effect of a stranger making a deposit to an account?
Mistaken internet payments - Electronic payment systems that require consumers to enter numbers are inherently error-prone. The systems should be designed, both physically and legally, to minimise these problems and to resolve them equitably and inexpensively. This paper examines the legal position and recommends practical measures for consumer protection.
20+ years of NZ and Australian banking law - a lightweight paper presented at the 20th Anniversary conference of the Banking and Financial Services Law Association. At least I thought it was lightweight - it provoked complaints from some bankers.
Cheques obtained by fraud - the problem of determining the "true owner" of a cheque.
International funds transfers - What are the obligations of a bank when making an international transfer of funds? This paper examines a New Zealand case that might have had a different outcome in Australia.
Payment by credit card - An analysis of payment by credit card, arguing that Re Charge Card Services does not apply to most Australian credit card payments.
Account opening and s95 - How to follow all the requirements of the FTRA when opening an account and still do it wrong.
Simms revisited - Argues that payment on a stopped cheque should not be recoverable from the payee.
Smart Cards and unclaimed money - Smart card "residuals", the sums remaining on an "electronic purse" which are too small to be spent, should be treated as unclaimed money under the principle in Thomas Cook (New Zealand) Limited v. Inland Revenue (New Zealand) [2004] UKPC 53 (10 November 2004)
Informal funds transfer systems - Funds transfers which occur outside the "normal" banking system.
Personal liability on business cheques - a director signs a company cheque; a partner signs a cheque drawn on the firm's account. Under what conditions can the director or partner be held liable as drawer?
Electronic signatures - an English case considers the question of electronic signatures for the purposes of the Statute of Frauds.
Fraud by design - The practice of accepting cheques for investment accounts allows large scale fraud.
Standby Credits - Standby credits are often the ticking time bomb of a commercial relationship.
Final payment vs Mistaken payment - Some submissions to ASIC's review of the EFT Code of Conduct seemed to confuse the two notions.
How not to write a cheque - Can a bearer cheque be converted into an order cheque? Can a bank have a lien on a cheque where the cheque does not belong to the customer?
Mistake and qualified privilege - Can the banker's own mistake raise an occasion of qualified privilege?

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Please send inquiries & questions to alan@austlii.edu.au.

Last modified: Mon Aug 4 10:46:19 EST 2008