Federal Court of Australia

Saxena v National Australia Bank Limited [2026] FCA 796

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed

2.    There be no orders as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    The applicant, Mr Saxena, has been a customer of the respondent, National Australia Bank Limited (NAB), for a period exceeding 10 years. As at August 2022, Mr Saxena held two personal loan facilities with NAB, each with a credit limit of $15,000, and two credit card facilities, one with a credit limit of $6,000 and one with a credit limit of $5,000. In August 2022, Mr Saxena sought financial hardship assistance from NAB, which was refused by NAB. During October and November 2022, NAB formed the view that the applicant had failed to make payments due under those facilities in accordance with their terms and reported the overdue payments to relevant credit reporting agencies. Mr Saxena made a complaint to NAB about the adverse credit reporting and also lodged a complaint with the Australian Financial Complaints Authority (AFCA) (referred to as AFCA Case 946300). Those complaints were settled between Mr Saxena and NAB. Between February 2023 and August 2023 NAB formed the view that the applicant had again failed to make payments due under those facilities in accordance with their terms and again reported the overdue payments to relevant credit reporting agencies. Mr Saxena made a further complaint to NAB about the adverse credit reporting and also lodged a further complaint with AFCA (referred to as AFCA Case 12-25-186870). NAB’s offer to settle the complaint, and AFCA’s proposed determination of the complaint, were both rejected by Mr Saxena.

2    By statement of claim filed on 1 December 2025, Mr Saxena alleged that NAB unlawfully refused his request for financial hardship assistance made in August 2022 (the alleged hardship conduct) and, following the refusal, incorrectly reported Mr Saxena’s repayment history on his personal loan facilities and credit card facilities to credit reporting bodies between February and August 2023 (the alleged reporting conduct). Mr Saxena alleged that NAB’s conduct constituted:

(a)    unconscionable conduct under s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act);

(b)    breaches of the credit reporting obligations in Part IIIA of the Privacy Act 1988 (Cth) (Privacy Act); and

(c)    a breach of s 72 of the National Credit Code (NCC), being schedule 1 to the National Consumer Credit Protection Act 2009 (Cth) (NCCP Act).

3    By way of relief, Mr Saxena sought declarations of contravention, damages in the sum of $4 million (comprising economic, non-economic, aggravated and exemplary damages), permanent removal of all adverse credit listings from all credit reporting bodies, a written apology, interest and costs.

4    Mr Saxena does not have legal representation. On 30 January 2026, orders were made referring the proceeding to mediation by a Registrar of the Court and, in the event that the proceeding did not resolve at mediation, timetabling the filing of evidence and submissions and listing the proceeding for final hearing. I also referred Mr Saxena for assistance in obtaining pro bono representation. Unfortunately, pro bono representation was not forthcoming and the mediation was unsuccessful.

5    The hearing proceeded on 11 June 2026, at which Mr Saxena represented himself.

6    In accordance with the timetabling orders, Mr Saxena filed three affidavits made by himself dated 27 March 2026, 8 May 2026 and 19 May 2026. Each of the affidavits were read at the hearing without any formal evidentiary objection, and Mr Saxena was not required for cross-examination. However, one aspect of the evidence of Mr Saxena requires comment.

7    One of Mr Saxena’s affidavits exhibited a copy of AFCA’s Determination in Case 12-25-186870. Initially, in its defence, NAB objected to Mr Saxena making reference to the AFCA Determination on the basis of ‘without prejudice’ privilege (noting that Rule A.11.1 of AFCA's Complaint Resolution Scheme Rules stipulates that AFCA operates on a ‘without prejudice’ basis). By the time of trial, it was apparent that the objection was not pressed, as one of NAB’s witnesses, Peter Oliver, also exhibited a copy of the AFCA Determination to his affidavit. Nevertheless, the AFCA Determination is a hearsay document. The document is not admissible to prove the truth of statements made in the document and the findings made by AFCA are not binding on this Court. The document is admissible as part of the chronology of events that occurred in the course of the commercial relationship between Mr Saxena and NAB in so far as the fact of the complaint to AFCA, and NAB’s response to that complaint, is relevant to the unconscionable conduct claim.

8    Mr Saxena filed submissions in support of his claim on 22 May 2026.

9    NAB filed two affidavits. The affidavit dated 30 April 2026 of Mr Antonio Angelini, Financial Counsellor Support in the NAB Assist team, concerned the alleged hardship conduct. The affidavit dated 30 April 2026 of Mr Peter Oliver, Case Manager, External Dispute Resolution at NAB, concerned the alleged reporting conduct. Both affidavits were read at the hearing and each deponent was briefly cross-examined by Mr Saxena.

10    NAB also filed submissions on 29 May 2026. In its submissions, NAB submitted that the alleged breaches of the Privacy Act and the NCC do not found any viable cause of action against NAB for which Mr Saxena could obtain the relief sought in his statement of claim.

11    At the commencement of the hearing, Mr Saxena withdrew his claims under the Privacy Act and the NCC and his claims relating to the alleged hardship conduct. The only claim that he maintained was that NAB had engaged in unconscionable conduct under the ASIC Act in making, and then refusing to withdraw, the adverse repayment history information (RHI) report for August 2023 in relation to Mr Saxena’s personal loan with NAB (account number ending 364) (PL 364).

12    Although Mr Saxena’s case at trial was vastly reduced from the claims made in his statement of claim, it remains relevant to refer to the course of dealings between Mr Saxena and NAB throughout the period 2022 and 2023, as that course of dealings bears upon the question whether NAB’s conduct was unconscionable.

13    For the reasons that follow, Mr Saxena’s claim is wholly without merit and must be dismissed.

Factual Findings

Credit facilities held by Mr Saxena

14    Mr Saxena has been a customer of NAB for a period exceeding 10 years. As at 9 August 2022, Mr Saxena held the following loan facilities and credit card facilities with the respondent:

(a)    a personal loan facility, being PL 364, which had a credit limit of $15,000 and a loan balance owing of $6,524.53;

(b)    a personal loan facility (account number ending 688) (PL 688), which had a credit limit of $15,000 and a loan balance owing of $11,231.12;

(c)    a credit card facility (card number ending 889) (CC 889), which had a credit limit of $6,000 and a balance owing of $6,420.99; and

(d)    a credit card facility (card number ending 119) (CC 119), which had a credit limit of $5,000 and a balance owing of $5,001.34,

(together, the accounts).

15    PL 364 was provided by NAB to Mr Saxena pursuant to a letter of offer dated 27 May 2019, incorporating NAB’s Credit Contract General Terms for Personal Loans as varied from time to time (PL 364 Contract). Pursuant to the terms of the PL 364 Contract:

(a)    the amount of credit provided by NAB to Mr Saxena was $15,000;

(b)    the interest rate applicable to PL 364 was NAB’s indicator rate (12.69% p.a. at the time of entry into the PL 364 Contract);

(c)    Mr Saxena was required to make 59 monthly repayments of principal and interest in the amount of $349.03 and one final instalment of $365.39; and

(d)    the first repayment was due one month after the settlement date, and each subsequent monthly instalment was due on the same date in each following month or, alternatively, the last day of that month.

16    Settlement of PL 364 occurred on 27 May 2019 and thereafter the monthly repayments of $349.03 fell due on the 27th day of each month.

17    PL 688 was provided by NAB to Mr Saxena pursuant to a letter of offer dated 19 November 2020, incorporating NAB’s Credit Contract General Terms for Personal Loans as varied from time to time (PL 688 Contract). Pursuant to the terms of the PL 688 Contract:

(a)    the amount of credit provided by NAB to Mr Saxena was $15,000;

(b)    the interest rate applicable to PL 688 was a fixed rate of 15.69% p.a.;

(c)    Mr Saxena was required to make 59 monthly repayments of principal and interest in the amount of $372.43 and one final instalment of $367.94; and

(d)    the first repayment was due one month after the settlement date, and each subsequent monthly instalment was due on the same date in each following month or, alternatively, the last day of that month.

18    Settlement of PL 688 occurred on 20 November 2020 and thereafter the monthly repayments of $372.43 fell due on the 20th of each month.

19    CC 889 was provided by NAB to Mr Saxena pursuant to a letter of offer dated 3 February 2016 incorporating NAB’s Credit Card Terms and Conditions as varied from time to time (CC 889 Contract). Pursuant to the terms and conditions of the CC 889 Contract, the credit limit available to Mr Saxena was $6,000 and, each month, Mr Saxena was required to pay a monthly payment calculated under those terms and conditions.

20    CC 119 was provided by NAB to Mr Saxena pursuant to a letter of offer dated 1 March 2016 incorporating NAB’s Credit Card Terms and Conditions as varied from time to time (CC 119 Contract). Pursuant to the terms and conditions of the CC 119 Contract, the credit limit available to Mr Saxena was $5,000 and, each month, Mr Saxena was required to pay a monthly payment calculated under those terms and conditions.

The alleged hardship conduct

21    On 27 July 2022, Safe Debt Management (SDM), as agent for Mr Saxena, sent an email to NAB which attached a “Pay-in-One Informal Debt Agreement Proposal – 1762598”. In the proposal, SDM stated that Mr Saxena owed a total of 20 separate debts to 13 different creditors totalling $79,276.98 in aggregate and that Mr Saxena was in ‘financial hardship’ and needed ‘assistance’. Pursuant to the proposal:

(a)    Mr Saxena proposed to make 36 fortnightly payments totalling $2,261.00 to be split among his creditors (including NAB) to repay the outstanding amount, plus a weekly administration fee of $22 to be paid to SDM; and

(b)    the monthly repayments to NAB would be as follows:

(i)    PL 364: $405.83;

(ii)    PL 688: $661.71;

(iii)    CC 889: $382.58; and

(iv)    CC 119: $298.69.

22    At the time NAB received the proposal:

(a)    the balance owing under PL 364 was $6,524.53 and the required monthly payment of principal and interest was $349.03;

(b)    the balance owing under PL 688 was $11,231.12 and the required monthly payment of principal and interest was $372.43;

(c)    the balance owing under CC 889 was $6,420.99 and the average monthly payment (calculated by reference to the previous six months’ statements of account) was approximately $130.00; and

(d)    the balance owing under the CC 119 was $5,001.34 and the average monthly payment (calculated by reference to the previous six months’ statements of account) was approximately $100.00.

23    The proposal was forwarded internally to Mr Angelini on 9 August 2022 for consideration. On 19 August 2022, having considered the proposal, Mr Angelini determined that the proposal required Mr Saxena to make monthly payments to NAB that were higher than the minimum contractual repayments for each account. In the case of the credit cards, the payments proposed were nearly three times the minimum required monthly repayments. At the time the proposal was made, Mr Saxena’s accounts were up to date. Mr Angelini deposed that, whilst the credit cards were slightly over their limit, the proposal was received before the statement of account had been issued for the relevant month and, technically, there was no amount due. In those circumstances, Mr Angelini formed the view that the proposal put forward by SDM on behalf of Mr Saxena was not appropriate for hardship assistance. By letters dated 19 August 2022, NAB informed SDM that, based on the information provided, NAB was unable to offer financial hardship assistance at that time.

Mandatory credit reporting

24    Part 3-2CA of the NCCP Act imposes obligations on holders of Australian credit licences that are large authorised deposit-taking institutions (which includes NAB) to supply certain information to eligible credit reporting bodies about all of the open credit accounts held with the licensee. Licensees must then supply updated information to those credit reporting bodies on an ongoing basis. This legislative scheme is known as ‘Mandatory Comprehensive Credit Reporting’. Part IIIA of the Privacy Act deals with the privacy of information relating to credit reporting and contemplates the registration under Part IIIB of the Privacy Act of a credit report code (CR code) binding upon credit providers and credit reporting bodies with respect to credit reporting. As part of the legislative scheme, the Privacy (Credit Reporting) Code was registered for the purposes of Part IIIB.

25    Mr Oliver deposed that, under Mandatory Comprehensive Credit Reporting, NAB must report certain data to credit reporting bodies (for example, Equifax, Experian and Illion). The required data consists of general information about an account (for example, type, open / close dates, limit, etc) and 24 months of RHI and 12 months of Financial Hardship Information. Mr Oliver further deposed that the Privacy (Credit Reporting) Code 2014 (Version 2.3), which commenced on 1 July 2022, contained the following stipulations (emphasis added):

8.2 Where a CP [credit provider] discloses repayment history information about consumer credit provided to an individual, the CP must take reasonable steps to ensure that:

a.     it does not disclose repayment history information about that credit more frequently than once each month; and

b.    for each month, as defined in paragraph 1.2 of this CR code, after any payments made during that month are taken into account, it only discloses whichever of the following is applicable:

i.     that the consumer credit was not overdue for that month; or

ii.     that there was an amount overdue in relation to the consumer credit for that month; and

c.     the disclosure is expressed as a code representing the following:

i.     where the consumer credit is not overdue – “Current up to and including the grace period”; or

ii.     where there is an amount overdue in relation to the consumer credit, the age of the oldest outstanding payment:

1.     15 – 29 days overdue (this disclosure may only be made at day 15, as this allows for expiry of the 14-day grace period)

2.     30 – 59 days overdue

3.     60 – 89 days overdue

4.     90 – 119 days overdue

5.     120 – 149 days overdue

6.     150 – 179 days overdue

X.     180 + days overdue

The alleged reporting conduct

2022 reporting conduct

26    NAB formed the view that Mr Saxena failed to make the payments that fell due on the following dates:

(a)    PL 364: 27 October 2022, 27 November 2022; and

(b)    CC 889: 3 October 2022, 31 October 2022,

(together, the 2022 Overdue Payments) and, in accordance with its mandatory reporting obligations under the NCCP Act, reported the 2022 Overdue Payments to the relevant credit reporting bodies.

27    In November 2022, Mr Saxena contacted NAB to raise a complaint regarding the credit reporting of the 2022 Overdue Payments (COM-479318). Mr Saxena also lodged a complaint with AFCA (AFCA Case 946300).

28    Following an investigation, NAB identified that the required repayments had been made by SDM on behalf of Mr Saxena into the NAB Bankruptcy Team’s central account, rather than to Mr Saxena’s personal accounts. Mr Oliver deposed that the Bankruptcy Team’s central account is only monitored if there is a bankruptcy arrangement in place for a customer. Because Mr Saxena was not subject to any bankruptcy arrangement, the payments made by SDM were not identified or allocated by NAB to Mr Saxena’s personal accounts, which resulted in NAB determining that Mr Saxena had failed to make monthly repayments due under the accounts.

29    On 9 December 2022, NAB sent an email to SDM explaining that the required repayments had been made into an incorrect account. NAB also confirmed that it had initiated transfers to move the funds from the Bankruptcy Team’s central account to each of the relevant accounts in Mr Saxena’s name.

30    Mr Oliver deposed, and I accept, that NAB formed the view that Mr Saxena had failed to make the 2022 Overdue Payments, and reported the 2022 Overdue Payments to the relevant credit reporting bodies, by reason that SDM, acting for Mr Saxena, had mistakenly paid the amounts into an account that was not Mr Saxena’s account. This was an error on the part of SDM. Nevertheless, without any admission of liability, on 21 July 2023 NAB offered to pay Mr Saxena (and Mr Saxena ultimately accepted) a goodwill payment of $5,500 in full and final settlement of COM-479318 and AFCA Case 946300. On 24 July 2023, NAB paid $5,500 to Mr Saxena.

31    As discussed further below, as part of the resolution of this complaint, the parties also agreed (at Mr Saxena’s request) that the due dates for payment under each of Mr Saxena’s personal loans would be changed to the 7th of each month.

32    NAB Complaint COM-479318 and AFCA Case 946300 were closed by NAB and AFCA respectively on or around 1 August 2023.

2023 reporting conduct

33    While AFCA Case 946300 was ongoing, Mr Saxena failed to make payments on his personal loan and credit card facilities with NAB on the due dates between February and June 2023. The fact that AFCA Case 946300 was ongoing did not cease or pause Mr Saxena’s obligations to make repayments under the terms of either the personal loans or the credit card contracts. Mr Saxena failed to make the required monthly repayments in accordance with the terms of the credit facilities in full as and when due on the following dates:

(a)    PL 364: 27 February 2023, 27 March 2023, 27 April 2023, 27 May 2023 and 27 June 2023;

(b)    CC 889: 2 May 2023, 31 May 2023 and 30 June 2023; and

(c)    CC 119: 9 May 2023 and 9 June 2023.

(together, the February to June 2023 Overdue Payments). NAB reported the February to June 2023 Overdue Payments to the relevant credit reporting agencies.

34    In this proceeding, Mr Saxena makes no complaint about those adverse credit reports.

35    As noted above, on 24 July 2023 NAB paid $5,500 to Mr Saxena in settlement of AFCA Case 946300. The payment enabled Mr Saxena to regularise the outstanding amounts on some of his credit facilities with NAB.

36    In the course of resolving AFCA Case 946300, Mr Saxena requested that his monthly payment obligations on his personal loans be altered to the 7th of every month. That request was communicated to NAB by AFCA on 19 July 2023 by email. On 21 July 2023, NAB sent an email to Mr Saxena advising that NAB would send a further email when the due dates for monthly payments had been changed to the 7th of each month. On 25 July 2023, Mr Saxena sent an email to NAB asking it to confirm that the due dates for monthly payments for his personal loans had been changed to the 7th of each month. NAB replied the same day, advising that the change was in progress and confirmation would be given once the change was completed. On 27 July 2023, NAB sent an email to Mr Saxena confirming that the due date for the monthly payments due under the personal loans (PL 364 and PL 688) had been changed to the 7th of each month. The email stated (emphasis in original):

From 7th of August 2023, the minimum payment for account x7699 is $372.43 and for account x8364 is $378.66.

37    The reference to “account x7699” appears to be a typographical error, as Mr Saxena’s personal loan account numbers ended in ‘8364’ and ‘7688’.

38    Despite that email, Mr Saxena did not make payments into PL 364 or PL 688 in August 2023, but made payments in September 2023. As a consequence NAB reported those overdue payments to the relevant credit reporting agencies.

39    The account statement for the credit card account CC 119 issued to Mr Saxena for the period 16 June 2023 to 14 July 2023 required a minimum stipulated payment by 8 August 2023. Mr Oliver deposed that Mr Saxena did not make that payment by the due date and NAB reported an overdue payment on the account to the relevant credit reporting agencies for August 2023.

40    Accordingly, NAB reported overdue payments in August 2023 on each of PL 364, PL 688 and CC 119 (together, the August 2023 Overdue Payments).

41    Mr Saxena’s claim in this proceeding concerns the August 2023 overdue payment in respect of PL 364. Mr Saxena alleges that NAB engaged in unconscionable conduct under the ASIC Act in making, and then refusing to withdraw, the adverse RHI report in relation to that account for August 2023.

Further complaint

42    On 16 December 2024, Mr Saxena lodged a further complaint with NAB (COM-1432919) regarding NAB’s decision to decline Mr Saxena’s hardship assistance request in August 2022. On 30 December 2024, NAB provided its response to COM-1432919 stating, amongst other things:

We had assessed that the accounts were up to date at the time and were able to be serviced with the proposed payments. This meant that the accounts would remain up to date with these payments, as such the hardship assistance was declined given the accounts would not fall behind with the proposed payment arrangement.

43    On 30 December 2024, Mr Saxena sent an email to members of NAB’s executive team, in which he:

(a)    repeated his concerns regarding NAB’s decision to decline his request for hardship assistance in August 2022 and requested a review of NAB’s response to COM-1432919;

(b)    asserted that NAB had incorrectly reported the RHI pertaining to his accounts;

(c)    requested that NAB remove “all RHI reports”; and

(d)    requested compensation from NAB of $1 million per account.

44    On 6 January 2025, following an investigation, NAB advised Mr Saxena that:

(a)    it considered that Mr Saxena's hardship request in August 2022 was appropriately assessed and an appropriate outcome was provided; and

(b)    in relation to the RHI reports made in 2023:

(i)    Mr Saxena was still required to make payments due on the accounts even though there was an active complaint in relation to the accounts (being AFCA Case 946300);

(ii)    whilst NAB worked closely with Mr Saxena and AFCA to determine a fair outcome, NAB acknowledged that it could have done more to clarify to Mr Saxena his obligations to make payments while AFCA Case 946300 was ongoing;

(iii)    in the circumstances, NAB had submitted a correction request for investigation and response by NAB’s Enterprise Corrections team in relation to the RHIs reported on Mr Saxena’s credit file for the accounts during the period February to August 2023; and

(iv)    NAB offered to pay Mr Saxena the sum of $1,000 in recognition of its acknowledgement that it could have done more to clarify his obligations to maintain repayments while AFCA Case 946300 was ongoing.

45    By letters dated 6 January 2025, NAB notified Mr Saxena that it had amended his RHI for all of the 2023 overdue payments, save for the RHI reported in respect of PL 364 for August 2023.

46    On 7 January 2025 Mr Saxena rejected NAB’s offer of $1,000 and made a further complaint to AFCA, being AFCA Case 12-25-186870.

47    On 13 January 2025, Mr Saxena sent an email to NAB’s then CEO (Andrew Irvine) and other members of the executive team demanding compensation of $5 million.

AFCA Determination in Case 12-25-186870

48    On 30 October 2025, AFCA determined AFCA Case 12-25-186870. As noted earlier, the findings of fact made by AFCA are not admissible in this proceeding in proof of those facts, and the conclusions reached by AFCA are not binding on this Court. The Determination is only relevant in so far as it provides context for the dealings between Mr Saxena and NAB.

49    In relation to Mr Saxena’s hardship proposal in August 2022, AFCA concluded that NAB’s reasons for declining the proposal were sufficient to meet its hardship obligations with respect to the personal loan contracts. AFCA noted, however, that at the time of declining the proposal, both of the credit cards were over their limits and, on this basis, AFCA expressed the view that NAB should have engaged further on the hardship proposal in relation to the credit card contracts. Nonetheless, AFCA was not satisfied that NAB’s failure to engage with respect to the credit card contracts caused substantial detriment such that it was appropriate to award compensation to Mr Saxena.

50    In relation to the adverse RHI reports, the AFCA determination commented only on the August 2023 RHI reports as earlier RHI reports had been addressed in previous AFCA cases (which were not the subject of evidence in the proceeding).

51    The AFCA determination made no adverse findings with respect to the August 2023 RHI reports for PL 688 and CC 119, and noted that NAB had removed the reported RHIs on the basis it could have done more to clarify Mr Saxena’s obligations while AFCA Case 946300 was ongoing.

52    In respect of the August 2023 RHI report for PL 364 (the subject of the claim in this proceeding), AFCA determined that the report was incorrect for the following reasons:

(a)    as a result of the payment made by NAB to Mr Saxena in July 2023 in settlement of AFCA Case 946300, PL 364 had been brought up to date as at the end of July 2023;

(b)    following Mr Saxena’s request for the monthly payment date to be the 7th of each month, NAB brought forward the due date for payment from 27 August 2023 to 7 August 2023, rather than deferring it to 7 September 2023;

(c)    a contact note dated 11 August 2023 indicated that NAB contacted Mr Saxena on that date stating that the account was $378.66 overdue and Mr Saxena promised to pay this amount by 2 September 2023;

(d)    Mr Saxena paid $372.43 into the account on 5 September 2023 and a further $378.66 on 7 September 2023;

(e)    the account remained in order after that date and was repaid on maturity in March 2024.

53    In relation to NAB’s decision to not remove the August 2023 RHI, the AFCA Determination set out NAB’s submission in this regard:

The bank says it did not agree to amend August 2023 RHI for the personal loan ending 364 because it had contacted the complainant on 11 August 2023 about the overdue account, prior to the contractual payment date of the 27th of the month. The bank says the complainant was therefore aware the account was in arrears by $378.66 and payment was required. The contact notes show the complainant made a promise to pay the overdue amount by 2 September 2023.

54    AFCA made the following findings with respect to the August 2023 RHI report for PL 364:

Had the repayment due date remained the 27th of each month, the complainant’s repayments on 5 and 7 September 2023 would have been within the 14-day grace period for the purposes of RHI reporting, meaning RHI of ‘0’ would have been reported. The most reasonable explanation based on the material I have as to why adverse RHI was reported for the month of August 2023 is that when actioning the complainant’s request to make the repayment due dates the 7th of each month, the bank brought the repayment due 27 August 2023 forward to 7 August 2023, rather than deferring it to 7 September 2023. This also explains the collections call on 11 August 2023 stating there was an overdue amount.

In my view, given the complainant’s account had been overdue and there were indications the complainant had been experiencing hardship, it would have been appropriate for the bank to query whether the complainant agreed to bring the dates forward when changing the due date. The complainant not making payments until 5 and 7 September 2023 suggests the complainant expected repayments would be deferred rather than brought forward.

I also note the bank had a role in determining the amount that needed to be paid into the loan ending 364 to clear the arrears and these discussions were occurring at the same time the complainant was asking repayment dates to be changed to the 7th of each month. Given this and the parties were looking to bring the accounts into a state where normal repayments could continue moving forward, I consider the bank should have had discussions with the complainant at the time of entering the resolution about whether bringing repayment dates forward suited the complainant, or instead should have deferred the repayment date rather than bringing it forward. I cannot see any information on case 946300 or the current case that this occurred.

As more than 2 years have passed since the August 2023 RHI was reported, it no longer appears on the complainant’s credit report. Accordingly, I do not need to consider whether it should be removed. However, due to the above factors, I consider the bank should have better managed the complainant’s expectations about how the repayment dates would change when entering into the arrangement with him, and had they done so the reporting of adverse RHI for August 2023 would likely have been avoided. This also takes into account the bank’s role in calculating the amounts that needed to be paid into the various accounts to clear the arrears.

55    AFCA determined that NAB should compensate Mr Saxena $1,000 for the stress and inconvenience he experienced as a result of the adverse RHIs reports on PL 364, PL 688 and CC 119 in August 2023, which would not have been reported had NAB better communicated with Mr Saxena.

56    Mr Saxena rejected the resolution proposed by AFCA and commenced this proceeding.

14 January 2025 telephone call

57    In this proceeding, Mr Saxena also alleged that NAB bullied him on a telephone call on 14 January 2025. Mr Saxena relies on that allegation in support of his claim that NAB engaged in unconscionable conduct.

58    Mr Saxena made the same allegation before AFCA in Case 12-25-186870. AFCA made the following findings with respect to that allegation:

The bank says there is no recording of the telephone call on 14 January 2025, however it has provided its contemporaneous notes of the call. The notes show the complainant said he believed the bank had acted unfairly and had reported RHI incorrectly. The bank’s notes indicate the complainant frequently spoke over the bank’s representative, suggesting a difficult conversation in which the complainant was not happy with what he was being told by the bank. However, the content of what the bank recorded itself as saying appears reasonable.

Based on my review of the material, I consider it was likely the call was difficult for both parties. However, I do not consider there is sufficient information to show the bank bullied or harassed the complainant or otherwise acted inappropriately.

59    In this proceeding, Mr Oliver gave evidence that there is no recording of the telephone call, and I accept that evidence. Mr Saxena exhibited to one of his affidavits a document he described as the NAB internal case note dated 14 January 2025 concerning the call. The document was illegible and for that reason was incapable of providing admissible evidence in support of Mr Saxena’s allegation concerning the telephone call. Mr Saxena did not otherwise give any evidence with respect to the content of the telephone call.

Unconscionable conduct claim

60    Mr Saxena claims that NAB’s conduct in making the adverse RHI reports on PL 364 in August 2023, and refusing to remove the report, was unconscionable and breached s 12CB(1) of the ASIC Act.

Applicable principles

61    Section 12CB(1) of the ASIC Act provides as follows:

12CB     Unconscionable conduct in connection with financial services

(1)    A person must not, in trade or commerce, in connection with:

(a)     the supply or possible supply of financial services to a person; or

(b)     the acquisition or possible acquisition of financial services from a person;

engage in conduct that is, in all the circumstances, unconscionable.

62    It was not in dispute between the parties that the relevant conduct was in relation to the supply of a financial service to Mr Saxena and that s 12CB(1)(a) was engaged.

63    What constitutes “unconscionable” conduct is not defined in the ASIC Act. Section 12CB(4)(a) states that the prohibition is not limited by the unwritten law of the States and Territories relating to unconscionable conduct. Section 12CC(1) stipulates matters the court may have regard to in assessing whether conduct in connection with the supply of financial services is unconscionable within the meaning of s 12CB. The section provides as follows:

Without limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier) has contravened section 12CB in connection with the supply or possible supply of financial services to a person (the service recipient), the court may have regard to:

(a)     the relative strengths of the bargaining positions of the supplier and the service recipient; and

(b)     whether, as a result of conduct engaged in by the supplier, the service recipient was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and

(c)     whether the service recipient was able to understand any documents relating to the supply or possible supply of the financial services; and

(d)     whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the service recipient or a person acting on behalf of the service recipient by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the financial services; and

(e)     the amount for which, and the circumstances under which, the service recipient could have acquired identical or equivalent financial services from a person other than the supplier; and

(f)     the extent to which the supplier’s conduct towards the service recipient was consistent with the supplier’s conduct in similar transactions between the supplier and other like service recipients; and

(g)     if the supplier is a corporation—the requirements of any applicable industry code (see subsection (3)); and

(h)     the requirements of any other industry code (see subsection (3)), if the service recipient acted on the reasonable belief that the supplier would comply with that code; and

(i)     the extent to which the supplier unreasonably failed to disclose to the service recipient:

(i)     any intended conduct of the supplier that might affect the interests of the service recipient; and

(ii)     any risks to the service recipient arising from the supplier’s intended conduct (being risks that the supplier should have foreseen would not be apparent to the service recipient); and

(j)     if there is a contract between the supplier and the service recipient for the supply of the financial services:

(i)     the extent to which the supplier was willing to negotiate the terms and conditions of the contract with the service recipient; and

(ii)     the terms and conditions of the contract; and

(iii)     the conduct of the supplier and the service recipient in complying with the terms and conditions of the contract; and

(iv)     any conduct that the supplier or the service recipient engaged in, in connection with their commercial relationship, after they entered into the contract; and

(k)     without limiting paragraph (j), whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the service recipient for the supply of the financial services; and

(l)     the extent to which the supplier and the service recipient acted in good faith.

64    The meaning of the proscription of unconscionable conduct in s 12CB of the ASIC Act, and its analogue in s 21 of the Australian Consumer Law, has been the subject of considerable explication in the decided cases over the years. The following principles emerge from those cases:

(a)    The statutory prohibition of unconscionable conduct is not confined to conduct that is unconscionable within the meaning of the general law and remediable on that basis by a court exercising jurisdiction in equity: Australian Securities & Investments Commission v Kobelt (2019) 267 CLR 1 (Kobelt) at [83] (Gageler J), [119] (Keane J), [144] (Nettle and Gordon JJ) and [311] (Edelman J); Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd (2021) 285 FCR 133 (Quantum) at [83] (Allsop CJ, Besanko and McKerracher JJ); Productivity Partners Pty Ltd (t/as Captain Cook College) v Australian Competition and Consumer Commission (2024) 281 CLR 338 (Productivity Partners) at [60] (Gageler CJ and Jagot J), [97] (Gordon J), [230] (Edelman J), [315] and [318]-[321] (Gleeson J).

(b)    The statutory prohibition of unconscionable conduct operates to prescribe a normative standard of conduct which the statutory provisions mark out. That must be done in the totality of the circumstances taking account of each of the considerations identified in the statutory provisions if and to the extent that those considerations are applicable in the circumstances: Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90 (Lux) at [23], [41] (Allsop CJ); Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525 at [189] (Gageler J); Kobelt at [87] (Gageler J); Productivity Partners at [56]-[60] (Gageler CJ and Jagot J), [99]-[105] (Gordon J), [235] (Edelman J), [282] (Steward J), [217] and [331] (Gleeson J).

(c)    The word “unconscionable” is to be understood as bearing its ordinary meaning, being conduct that objectively answers the description of being against conscience: Kobelt at [14] (Kiefel CJ and Bell J), [92] (Gageler J) and [119] (Keane J); Quantum at [87]; Productivity Partners at [232] (Edelman J).

(d)    The values that inform the standard of conscience fixed by the statutory prohibition include those identified in Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199 (Paciocco FCAFC) at [296] (Allsop CJ), being certainty in commercial transactions, honesty, the absence of trickery or sharp practice, fairness when dealing with customers, the faithful performance of bargains and promises freely made, and the protection of those whose vulnerability as to the protection of their own interests places them in a position that calls for a just legal system to respond for their protection, especially from those who would victimise, predate or take advantage: affirmed in Kobelt at [14] (Kiefel CJ and Bell J) and at [234] (Nettle and Gordon JJ); see also Productivity Partners at [100] (Gordon J), [231]-[232] (Edelman J), [282] (Steward J), [323] (Gleeson J).

(e)    The approach to the application of the prohibition is analogous to the approach of a court of equity which takes a “more comprehensive view, and looks to every connected circumstance that ought to influence its determination upon the real justice of the case”: The Juliana (1822) 2 Dods 504 at 521; 165 ER 1560 at 1567 (Lord Stowell) and Jenyns v Public Curator (Qld) (1953) 90 CLR 113 at 118-119 (Dixon CJ, McTiernan and Kitto JJ), referred to by Allsop CJ in Paciocco FCAFC at [271], in Kobelt by Keane J at [120] and Nettle and Gordon JJ at [150], and in Productivity Partners at [105] by Gordon J.

(f)    The task is an evaluation of the impugned conduct to assess whether it is to be characterised as a sufficient departure from the norms of acceptable commercial behaviour as to be against conscience or to offend conscience and so be characterised as unconscionable: Kobelt at [47] (Kiefel CJ and Bell J), [120] (Keane J) and [153] (Nettle and Gordon JJ); Quantum at [92]; Productivity Partners at [105] (Gordon J), [315] (Gleeson J).

Mr Saxena’s submissions

65    Mr Saxena submitted that the following considerations, drawn from s 12CC, are relevant to the assessment of NAB’s conduct and bear in his favour:

(a)    First, Mr Saxena referred to the relative bargaining positions of the parties (s 12CC(1)(a)), submitting that NAB is a major financial institution whereas Mr Saxena is a customer who was experiencing financial hardship and a family breakdown.

(b)    Second, Mr Saxena referred (in general terms) to industry codes of practice (s 12CC(1)(g)) submitting that clause 157 of the Banking Code of Practice defines ‘financial difficulty’.

(c)    Third, Mr Saxena referred to his credit contract with NAB (s 12CC(1)(j)), submitting that NAB did not engage with him about how the due date change would operate.

(d)    Fourth, relying upon s 12CC(1)(l), Mr Saxena submitted that bringing forward the due date for payment without consultation fell below the standard of good faith expected of a major credit provider.

66    In his oral submissions, Mr Saxena submitted that NAB’s conduct was unconscionable because NAB was the party in control of the due date for repayments on account PL 364 and chose to bring the date forward (rather than defer it). NAB failed to clarify this with Mr Saxena and then refused to remove the adverse RHI report in August 2023 when NAB was made aware of this.

Consideration

67    Mr Saxena’s claim that NAB has engaged in unconscionable conduct is not remotely supported by the evidence. To the contrary, the course of dealings between NAB and Mr Saxena, set out earlier, demonstrates that NAB has acted reasonably and generously towards Mr Saxena at all times.

68    Mr Saxena’s complaint principally concerns the alteration made to the due date for monthly payments on account PL 364. The evidence shows that Mr Saxena requested that change and NAB agreed to make the change. NAB’s email to Mr Saxena on 27 July 2023 indicated that the change would take effect on 7 August 2023, although it can be accepted that the email had some potential to be ambiguous. The email stated “From 7th of August 2023, the minimum payment for account x7699 is $372.43 and for account x8364 is $378.66”. It is tolerably clear that NAB sought to communicate that the next payment on each personal loan account would be due on 7 August 2023, but it is conceivable that Mr Saxena understood the email to communicate that the revised payment date would commence after 7 August 2023. Having regard to the correspondence between the parties, it is understandable that NAB believed that the payment date had been changed to 7 August 2023 and reported overdue payments on PL 364 and PL 688 accordingly. NAB acted reasonably in doing so.

69    In relation to NAB’s refusal to remove the August 2023 RHI report in respect of PL 364 following Mr Saxena’s complaint, the evidence indicates that NAB considered it would not be appropriate to do so in circumstances where NAB had reminded Mr Saxena about the payment on 11 August 2023. I am not satisfied that the refusal was unreasonable, far less that it was unconscionable. As noted earlier, NAB is required to comply with the Mandatory Comprehensive Credit Reporting obligations in the NCCP Act.

70    Turning to the factors listed in s 12CC, I accept that the bargaining positions of the parties are unequal. However this is the only factor in s 12CC that weighs against NAB. Throughout the course of its dealings with Mr Saxena, NAB’s conduct was fair and reasonable. NAB did not attempt to deceive or trick Mr Saxena. When settling AFCA Case 946300 and agreeing to change the due date, NAB acted reasonably and in good faith. There is no evidence that indicates that NAB’s conduct breached the Banking Code of Practice. To the extent the consideration in s 12CC(1)(i)(i) is relevant, NAB did not fail to disclose the new due date for payments to Mr Saxena, and its decision to move the date forward (rather than backwards) was not unreasonable.

71    Taking into account the totality of circumstances, Mr Saxena’s allegation that NAB’s conduct was unconscionable is wholly lacking in merit and is rejected.

72    Given the above conclusion, it is unnecessary to address Mr Saxena’s claim for damages. However, two observation should be made. First, Mr Saxena’s claim for aggravated and exemplary damages is misconceived, as those categories of damages are not available under s 12GF of the ASIC Act for contravention of s 12CB. An action for damages under s 12GF is for recovery of the amount of loss or damage suffered by the applicant by reason of the contravening conduct: see Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 at 501 (Gaudron J) with respect to the analogous s 82 of the Trade Practices Act 1974 (Cth); see also the general discussion of loss and damage recoverable under s 82 in Wardley Australia Ltd v Western Australia (1992) 175 CLR 514. Second, Mr Saxena failed to adduce any evidence that he suffered loss or damage by reason of the August 2023 RHI report in respect of PL 364.

Conclusion

73    In conclusion, Mr Saxena’s claim against NAB based upon alleged unconscionable conduct is wholly without merit and must be dismissed.

74    As Mr Saxena’s proceeding was unsuccessful, ordinarily an order would be made for Mr Saxena to pay NAB’s costs. However, at the hearing, NAB informed the Court that, if it were successful in the proceeding, it would not seek an order for costs against Mr Saxena. In those circumstances, there will be no order as to costs.

Associate:

Dated:    23 June 2026