r/AusLegal • u/ep__99 • 1d ago
QLD Please help! AFCA Decision needed today
Hello!
I have to make a decision about whether or not to accept the bank (NAB) settlement offer of $7,000 today or to proceed to determination. I need your opinions/advice. Quick summary - I paid a tradie over $24,000 for work/materials that were largely not delivered. I called up my bank NAB and reported the transaction. NAB explicitly assured me on a recorded call that my funds would definitely be recovered, either through NAB or the receiving bank. They have accepted this was their mistake.
I relied on that assurance and delayed independent debt recovery (8 months ago) because I was explicitly told by NAB that the funds would be recovered and I would not need to engage any one else to recover them. They were unable to recover them and now the tradie is no longer In the same state or locateable. A debt collection agency says it would previously have taken on the debt with high recovery prospects but cannot proceed now without a current address.
My claim is about the recovery opportunity lost through relying on NAB’s assurance. NAB has offered $7,000 as a final settlement, and AFCA’s case manager thinks a determination is unlikely to award more. The AFCA preliminary findings were in the bank’s favour.
Has anyone had a similar situation??
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u/Aggravating_Bad_5462 1d ago
Wow an actual estoppel question
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u/GiggletonBeastly 1d ago
I wouldn't have bothered with AFCA with a detrimental reliance argument. They're not trained to consider nuance - just settle.
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u/Leprichaun17 1d ago
The AFCA preliminary findings were in the bank's favour.
This is the most important piece here. It's exceedingly rare for the determination to differ from the preliminary finding. If you proceed to determination, I expect there's a very high chance that it will be exactly the same as the preliminary finding. If the 7k offer is better than the prelim, I'd take it.
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u/ep__99 1d ago
This is the main thing for me. I tried asking CHAtGpt for some stats on how many determinations differ from outcomes made in the preliminary findings.
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u/lordkane1 1d ago
Well there’s your problem.
ChatGPT, or even the raw and accurate stats, cannot determine the prospects of success in your case.
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u/potatogeem 1d ago
Will the offer of $7k be rescinded if you go further? I would want as much of the 24k back as possible but really can't say what way they lean in favour of tbh.
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u/link871 1d ago
I do not even understand why the bank involved itself in a dispute between a tradie and that tradie's customer.
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u/potatogeem 1d ago
Because I assume OP lodged a transaction dispute?
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u/link871 1d ago
OP paid by funds transfer, so chargeback was not an option. (Even if they had paid by card, the chargeback can fail at Mastercard/Visa's discretion)
Because OP willingly paid by funds transfer, the transaction cannot be reversed by any bank. OP's only option was always legal action against the tradie.
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u/potatogeem 1d ago
Which is what the Bank should have said, they can make every effort to recover the funds but there is no guarantee.
Since apparently the Bank said they would recover the funds on a recorded line is why they are with AFCA now.
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u/Geddpeart 1d ago
If the preliminary finding is siding with the bank then i don't believe the employee explicitly said they would definitely get the funds back
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u/Geddpeart 1d ago
Incorrect. We can attempt a recall but only if the receiving party agrees.
Given that he already done a runner that option is pretty much never going to happen
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u/link871 1d ago
That's not what the ePayments Code or NAB's T&Cs say. They will only attempt retrieval if it is a genuine "mistaken internet payment". Clause 16 of NAB's T&Cs: "mistaken internet payment ... funds are paid into the account of an unintended recipient ..."
OP did not make a mistaken payment: they intended to pay the tradie.
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u/ep__99 1d ago
My bank at the time NAB told me otherwise (and acknowledged after the fact that this was incorrect assurance and information to have provided) however I did believe it … because I guess why wouldn’t you believe what your bank is saying. In hindsight yes your comment makes complete sense
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u/mitccho_man 1d ago
Why would I believe what a low level person has to say?
Dude it wasn’t the CEO
You should always get financial advice before relying on one’s opinion5
u/_CodyB 1d ago
IT doesn't matter though
He was given poor advice by a representative of the bank who should be well trained enough to understand what kind of advice they can give.
If they told him that they could help him get his money back which in turn forced OP to change his debt recovery tactics - the bank should have at least some liability.
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u/green_pea_nut 1d ago
It did not.
OP asked the bank to reverse a transaction, the bank said they could, then did not.
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u/ep__99 1d ago
Yes! That’s why I’m really unsure … i could get $0
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u/Logical-Hamster8139 1h ago
You were meant to get 0 other than an incorrect advice from a staff, which now means you will be $7k ahead? And you still expect more? Sorry bro consider yourself lucky, as if he gave you the right advice $0 you would be in a worse off position?
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u/potatogeem 1d ago
I haven't seen a Bank go back on an offer, if final decision is in favour of the Bank you would likely get the 7K anyway. However every case is different, I really can't say.
Might be too late to ask AFCA the above
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u/ep__99 1d ago
Really! I assumed that once I proceed that $7,000 is no longer on offer. I assumed it was to settle it now and not proceed to determination
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u/Rusturion 1d ago
Yeah, I would think the same as you.
They are offering you $7k because determination will cost them more, even if they do win.
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u/Leprichaun17 1d ago
Precisely this. The cost at case management is approx $2,600 which they're already up for. At determination it's about $11,000. This is a purely economic decision for them. It costs them less to pay the 7k. No chance you're getting that 7k if they need to pay 11k for a determination.
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u/CryHavocAU 1d ago
Yeah it’s a simple business decision.
In this case the OP’s case is largely devoid of merit. They should take the 7k and thank all of us who pay bank fees or have mortgages for paying for their mistake.
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u/distractedcreativity 1d ago
The core argument is that NAB's admitted mistake directly robbed you of a realistic window of recovery. Did you actively follow up in those 8 months? Do you have the debt collection agency's assessment of the recoverability in writing?
Sure you might get $0. You most likely wont get all $24k. But you could get 50%.
But you could also see it that if 50% is what you think youd get thats only 5k more where as youd get a guaranteed 7k. I would personally see it through.
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u/PM-me-fancy-beer 1d ago
Why would you go via a debt collection agency - is there no way to purse through state regulator and/or QCAT for incomplete work?
Sorry you’ve been dealing with this, dodgy tradies can get in the bin.
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u/ep__99 1d ago
I have since been made aware of a number of QCAt claims against him - non of
Which have progressed to anything. I have also made one but am still waiting (it has been months). I was explicitly told by NAB on a recorded line not to peruse these avenues as it was not required. He had said if you are looking to achieve a quicker resolution you can because our process will take some time but the funds will be recovered. So I thought I would save myself the headache… clearly not the case🫠🥲
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u/link871 1d ago
Just a comment that I'm sure you have now realised: never pay a tradie in full before work begins. For small jobs (say, up to $1000), you usually pay after the work is done (but new-to-you tradies could ask for a deposit before they start)
For more substantial work, you should get a written quote and pay in stages. I just had some work on my house: tradie wanted 10% on acceptance of quote, 70% about a week after commencement and final 20% on completion.
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u/kronikal2112 15h ago
Very experienced with AFCA here. Personally recommend taking the 7k. It’s a goodwill / commercial offer, a determination will likely get you nothing and offer likely rescinded - a determination is rarely ever overturned. Bank won’t be liable. Pursue the remaining amounts externally.
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u/jodibrissett 1d ago
It is rare that the determination will differ from the preliminary finding. If the complaint progresses to determination the bill for NAB will be more than they have offered you. So really, either they pay you $7000 or pay AFCA a bit more. Take the $7000.
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u/Helpful_Year5996 12h ago
persue 100% just say my final offer is 13k if they have not accepted then please continue with the determination .
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u/Stronghammer21 1d ago
$7,000 is a good offer IMO. The money sounds like a civil dispute issue, not a bank one. The staff member who told you that they could recover the funds 100% told you the wrong thing, but I don’t see AFCA making you whole if you decide to continue
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u/Benjeeeeeeeeeeee 1d ago
Not an expert on banking complaints, but I presume afca would need to weigh the fact you may have not been able to recover anyway or recover a lesser amount. Also sounds like the offer is about the same as the additional fee they'll pay for a determination, so they may be confident of a determination in their favour and it's a commercial offer.
As another commenter said, rare for a det to deviate from a prelim unless there's a substantive error.
Also - a bird in the hand. Not my money but I'm not a gambling man and I'd be inclined to accept.
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u/ep__99 1d ago
This is all super helpful! I agree and believe it’s a commercial offer.
I also unfortunately don’t believe determination will change from prelim assessment, I guess just wishful thinking🤔 I don’t particularly understand the process with final determination…
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u/Benjeeeeeeeeeeee 1d ago
If it goes to determination , the case manager who prepares the prelim drafts it and sends all relevant details to an adjudicator or ombudsman. They review and provide a decision - same format as prelim basically. The difference is the decision maker, and that a financial firm cannot reject a determination. If accepted by customer it is binding regardless of whether they accept.
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u/DrSpeckles 1d ago
I think there is more to this story. What does “largely not delivered” mean? Were they unable to recover them because the other party disputed your claim? If so this is not a bank issue, but a civil dispute.
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u/ep__99 1d ago
NAB recorded the recovery as unsuccessful due to “no response”, rather than the recipient disputing my claim. I agree the original issue with the tradie is a civil dispute. My complaint against NAB concerns what happened afterwards: they explicitly assured me the funds would definitely be recovered, whether through NAB or the receiving bank. I relied on that assurance and delayed independent recovery action.
I previously had the tradies address, however he is no longer in QLd. A recovery agency has confirmed it would have taken the matter on at the time but cannot proceed now without a current address. My argument is that NAB’s incorrect assurance caused me to lose that recovery opportunity.
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u/GiggletonBeastly 1d ago
Correct this: your argument isn't that their assurance was incorrect - but that you relied on it to your own detriment. It isn't up to you to have to prove whether they had the actual capacity to deliver on their assurance: just that they made it and you relied on it.
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u/Uberazza 1d ago
Debt collectors wouldn’t have been able to get the money back. They would have just moved anyway and unless they update their address the electoral role how would they be able to find them. Honestly I would cut your losses and take the 7k. Better than zero. And nothing stopping you from still chasing them.
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u/GiggletonBeastly 1d ago
Did you make it clear to NAB that you would not be pursuing debt recovery against the tradie, based on their representations - when they made those representations? Your position would be a lot stronger if you had written to them at the time of their promise, outlining you were relying on it to your own potential detriment...
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u/No-Bus-3213 1d ago
One thing to point out the further it goes through the AFCA process the more money it costs the bank is between $3k & $9k determination. Given afcas prelim was in the banks favour and the bank is making you an offer to try and stop them having to pay for determination. I think I'd take it and persue it as a civil matter, they gave wrong information yes but aren't responsible for the loss really.
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u/Rhath223 1d ago
Did they say why they weren't able to recover funds from tradies account? I mean couldn't you report him to th police for theft?
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u/GusPolinskiPolka 1d ago
I mean... there's no guarantee you would have seen ANY of the $24k. It's hard to prove what loss you're encountering here from the bank.
You can still seek action against the tradie. But 8 months is a very long time to take the banks word and not follow up.
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u/SweetJeannie_ 7h ago
I work in banking and see lots of garnishees issued for tradies with zero money in the bank no point commencing legal action against a trade that’s got zero funds which sounds like this guy. Would I would take the 7K and be thankful that NAB stuffed up because the 7K is probably a lot more than what you would be able to recover otherwise.
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u/theoriginalzads 1d ago
If they said this over calls, calls are generally recorded. So I’d go for the judgement personally.
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u/Quirky-Extension348 1d ago
Look at it from their point of view. They know they are going to have to pay you 7k. If you take it further they are going to have to pay 13k as well (assuming what others have posted here is correct - I don’t know) to be told to pay you 7k. They should be willing to pay you another 6.5k, say, not to take it further.
I’d tell them, without prejudice, that you think they’re liable for all of it but you’ll accept 13k (a little over half your loss) to not take it any further if they agree today.
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u/ep__99 1d ago
I actually went back with a counter of $13k and the AfCa rep said the bank was unwilling to increase its offer any further. So basically $7k was the max
My understanding is if it goes to determination that $7k offer is off the table tho?
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u/Badger6019 1d ago
If it goes to determination you get nothing, they are offering you $7k as it will cost them more costs to AFCA to pay for the determination. If the AFCA assessment is in the Banks favour it means your argument holds little weight. I'm assuming AFCA have told you it's because the Banks error did not cause the loss and there is no guarantee the funds would be recoverable and therefore are not responsible for the loss. Take the money and try other means to recover the rest.
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u/ep__99 1d ago
Really appreciate this! And suggestions on what means I should peruse? Thankyou!!
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u/justanothadumbcunt 16h ago
You’ll likely need a skip tracer or whatever they are called here to find the tradies current address
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u/Substantial_Horror71 1d ago
Yes you're right, you cant go back and accept it once you decide to proceed to determination.
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u/Pickled_Beef 1d ago
But think about the shareholders! They can’t afford to lose $13k!!!! (sarcasm btw)
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u/No_Journalist6156 1d ago
Don’t look at this as an opportunity to make money, just be glad that you can get your money back in full. Take it!
I had a case with AFCA when Up Bank randomly locked my account and wouldn’t verify my ID. I was only awarded $500 in damages, so nothing of great substance. Took almost 6 months.
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u/Penultimatum- 1d ago
Huh?
OP paid a tradesperson $24,000
NAB offering to settle their fuck up about assured recovery of all OP money for $7,000.
Id say a 70/30 split of liability favouring the bank is a bit egregious, and OP is losing $17,000 of their hard earned.
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u/link871 1d ago
You aren't factoring in the OP's tenuous argument that they could have gotten all their money back from the tradie had they not relied on NABs promises.
There is no guarantee that OP would have gotten anything back from the tradie - as the tradie could have disappeared at that point.
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u/No_Journalist6156 1d ago
I am so sorry. I misread that only $7k was under delivered, hence the rest being paid and supplied for.
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u/relentless_geek 1d ago
Why is it they can only offer $7k not the full amount?
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u/Trick-Introduction44 1d ago
I'd say their legal team have suggested this is the lowest amount that they could offer to hopefully make it go away. I can't comment on the rest as it seems AFCA side with the banks more often than not.
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u/donaldsonp054 1d ago
The AFCA is funded entirely by the banks isn't it?
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u/ep__99 1d ago
I was under the impression AFCA was funded by the banks too….
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u/Platform_Independent 1d ago
AFCA is funded by membership fees of every financial institution that provides financial services to retail clients (it’s a legal obligation to be a member) and case fees (up to $11k for a determination). The funding source doesn’t mean AFCA’s not independent, if that’s the implication.
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u/ep__99 1d ago
Because they do not believe they are financially responsible. I authorised the transaction. But the recover options I had available at the time are no longer available. In my view it’s the loss of the financial recovery opportunity as a result of NABS incorrect assurance
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u/tichris15 1d ago
Surely a debt recovery company would have paid you only a small amount of the original 24k debt to take it over?
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u/blah10035 1d ago
What recovery options do you say you lost because of any delay relying on the bank's advice?
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u/mitccho_man 1d ago
What do the T&Cs of banking with Nab say?
That’s the final determination as you agreed upon setting a account up
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u/Sensitive_Block6269 1d ago edited 1d ago
I’ve been through the AFCA process and as crazy as it sounds AFCA have limits as to what they can award you for each breach. The amount of the loss is independent of what they can afford you. A determination won’t get you more than $7k unless they had multiple infringements. Ask your case officer they should be able to give you an idea of what limits they can pay you. If you want the whole amount you need to go to court.
I would take the $7k unless you wanted to take this to court.
What’s crazy is that AFCA is setup and funded by the banks.
I might add the bank in my case lied all the way through the AFCA hearing and couldn’t provide any evidence. AFCA kept asking me these questions about what the bank said happened and I kept telling AFCA these were lies and they had to ask the bank to prove what they were saying was true. The bank couldn’t prove it and I asked what AFCA was going to do about the lying and they should not tolerate this behaviour and AFCA said they can’t make a judgement on this. So if you have no moral compass you can lie all you want to strengthen your position and there will be no penalty
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u/lordkane1 1d ago
Surely accepting the settlement offer does not preclude you from taking action against the tradie either now or in the future?