Amos v Silva

[2000] QCA 227

[2000] QCA 227

COURT OF APPEAL

de JERSEY CJ
McMURDO P
THOMAS JA

Appeal No 5991 of 1998

EDWARD AMOS  Appellant (Plaintiff) 

and

ALTHEA HARDING SILVA               Respondent (Defendant)

and

IAN DUNCAN and
LINDA ROBERTA SWANSTON           Third Party (Respondent)

No 5991 of 1998

EDWARD AMOS  Applicant (Plaintiff) 

and

ALTHEA HARDING SILVA               Respondent (Defendant)

BRISBANE

..DATE 08/06/2000

JUDGMENT

THE CHIEF JUSTICE:  The applicant commenced this appeal without first seeking leave but now does so.  Leave is necessary because the amount involved in the proceedings fell below the Magistrate's Court's jurisdictional limit.

I do not consider that leave should be given. One observes first that the amount involved in comparatively small. At the most, less than $4,000. If the applicants' constructions are correct, contrary to what the learned Judge found, then the credit charges would not automatically necessarily be excluded, because of the possible success of the respondent's cross-claim under section 86 of the Credit Act and there seemed reasonable grounds for assuming that that would succeed to a substantial extent indeed.

That aside, Mr Hampson, however, contended that it is important to secure a definitive interpretation of the language of the Credit Act in these provisions. But it must be said that the meaning of phrases very similar to "in the course of a business carried on" has already been elucidated in many helpful and authoritative decisions. That this learned Judge referred to decisions on those terms in the context of investment or money lending, does not to my mind suggest that he necessarily erred.

I do not think in the end that there is sufficient reason here why leave should be given.  I would refuse the application and dismiss the appeal with costs to be assessed.

THE PRESIDENT:  Yes, I agree.  It is not a proper case for the granting of leave to appeal for the reasons given by the Chief Justice and I agree with the orders proposed.

THOMAS JA: In my view, the second bound contract is plainly not covered by the Credit Act. The respondent's entitlement against the applicant would only be affected to a very small extent if the arguments which are sought to be made on behalf of the applicant were all correct. The practical effect of permitting further litigation which would apparently require further contests below after allowance of the appeal, we were told, would be something less than $4,000. It may well be less than that if and when further litigation proceeded under section 86.

It is true as Mr Hampson submitted that the definition of "loan contract" does not require that credit be granted in the course of a business of money lending.  My reading of the learned Judge's reasons do not suggest error in that respect.  Whether his Honour was correct or not in his determination that the loan was not made in the course of carrying on a business is a question of fact.  I do not see that the case raises or that the state of the law requires this Court to grant leave for the purpose of giving a definitive determination of the definition of "loan contract" in section 7 of the Act.  Accordingly, I am not persuaded that leave should be granted to bring the present appeal.  I therefore agree with the order proposed by the Chief Justice.

...

THE CHIEF JUSTICE:  I take the view that the costs should be ordered to be assessed on a solicitor and own client basis.  I consider, adopting the language of clause 6 of the mortgage, that the costs incurred by the respondent in resisting the application and the appeal amount to costs which are incidental to its attempted exercise of its rights under the mortgage or on account of a default in performance or observance of a covenant in the mortgage on the part of the mortgagor.  I would, therefore, order that the costs be assessed on a solicitor and own client basis.

THE PRESIDENT:  Yes, I agree.

THOMAS JA:  I agree.  The clause is not as clear as it might be, but after some initial hesitation I assent to the view expressed by the Chief Justice.

THE CHIEF JUSTICE:  Well, the orders then will take effect as I have indicated.

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