ANZ Banking Group Ltd v DG of the Department of Fair Trading

[1999] NSWCA 278

Reported Decision: 47 NSWLR 223

New South Wales

Court of Appeal

CITATION:	ANZ Banking Group Ltd v DG of the Department of Fair Trading & Anor [1999] NSWCA 278 revised - 04/08/99
FILE NUMBER(S):	CA 40422/97
HEARING DATE(S):	1 July 1999
JUDGMENT DATE:	29 July 1999
PARTIES :	Australia and New Zealand Banking Group Ltd v Director General of the Department of Fair Trading & Anor
JUDGMENT OF:	Beazley JA at 70; Stein JA at 71; Cole AJA at 1

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	ALD 30045/95
LOWER COURT JUDICIAL OFFICER:	Hamilton J

COUNSEL:	Mr A C Archibald & Mr D G Robertson Appellant Mr McDougall & Mr G R Waugh Respondent
SOLICITORS:	Mallesons Appellant State Crown 1st Respondent Registrar Commercial Tribunal 2nd Respondent
CATCHWORDS:	Credit Act 1984 - contravention of s36, 8586, 86A - minor error - jurisdiction of Tribunal; Custom Credit Corporation v Gray 1992 1 VR 840 not followed; Contrade Finance Ltd v Senes 1963) 63 SR(BNSW) 141 applied; Decisions in Avco Financial Services Ltd v Abschinski (1994) 2 VR 659; General Motors Acceptance Corp Australia v Morris & Ors (1995 ASC 56-316); Westpac Banking Corporation v Donald-Murrell (1992) 2 VR 417; Canham & Ors v Australian Guarantee Corporation Ltd (1993) 3`1 NSWLR 246; Australian Guarantee Corporation v Roberts & Anor (1989 asc 55-950) overruled.
ACTS CITED:	Credit Act 1984 Credit (Administration) Act 1984 Hire Purchase Agreements Act 1941-1957
CASES CITED:	Canham & Ors v Australian Guarantee Corporation Ltd & Ors (1990) ASC 55-984; Canham & Ors v Australian Guarantee Corporation Ltd & Anor (1993) 31 NSWLR Custom Credit Corporation v Gray (1992) 1 VLR 540 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR Contrade Finance Ltd v Senes (1992) ASC Avco Financial Services Ltd v Abschinski General Motors Acceptance Corp Australia Ltd v (1995) ASC Westpac Banking Corporation v Donald-Murrell (1992) 2 VRMorris & Ors
DECISION:	Orders of Hamilton J in application 30045/95 dated 1 July 1997 set aside; Orders of Commercial Tribunal of NSW in application 1047/94 dated 26 September 1995 set aside; Appellant to pay the respondents' costs of proceedings before the Tribunal and before Hamilton J and of the appeal; The matter to be remitted to the Commercial Tribunal of New South Wales for further consideration in accordance with these reasons

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40422/97

ALD 30045/95

BEAZLEY JA
STEIN JA COLE AJA

Thursday, 29 July 1999

AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD v
DIRECTOR GENERAL of the DEPARTMENT of FAIR TRADING & Anor

JUDGMENT

1    COLE AJA: This appeal brought by the Australia and New Zealand Banking Group Limited ("the Bank") challenges orders made by Hamilton J which amended findings by the Commercial Tribunal of New South Wales ("the Tribunal").

The background to the proceedings:

2 During 1994 the Bank filed, relevantly, application No 1027/94, being an application pursuant to ss.85, 86 and 86A of the Credit Act 1984 relating to regulated loan contracts entered into between the Bank and various debtors between 28 February 1985 and 20 August 1993. A regulated loan contract is one relating to a loan of $20,000 or less Credit Act 1984 s.30. Section 85(1) provides:

"85(1) Where, by reason of a contravention of or a failure to comply with this Act … by a credit provider, a debtor is not liable to pay to the credit provider under a regulated contract an amount that, but for the contravention or failure, he would have been liable to pay under the contract, the credit provider may apply to the Tribunal for an order increasing the liability of the debtor to the credit provider."

3 Section 42 of the Credit Act provides, relevantly:

"42(1) Subject to s.85, where:

…
(b) a loan contract is not in writing signed by the debtor or is not in accordance with s.36, …
the debtor is not liable to pay to the credit provider the credit charge under the contract."

4 Thus, if there was a contravention or failure to comply with s.36 of the Act, the Bank was deprived of its credit charge, and to avoid that consequence sought relief pursuant to ss.85, 86 and 86A.

5 Section 85 addresses the circumstance where a credit provider seeks relief against a single debtor from the discharge conferred by s.42 of the obligation to pay the credit charge. Section 86 addresses the circumstance where the contravention or failure to comply affects two or more regulated contracts. Where application is made pursuant to s.86, the Tribunal:

"(a) may make a determination under s.85 in relation to one or more specified regulated contracts, and

(b) may make a determination under s.85 in relation to all regulated contracts entered into by the credit provider during a specified period, and

(c) may make a determination under s.85 in relation to all regulated contracts of a specified class entered into by the credit provider during a specified period (for example, all regulated contracts entered into during a specified period which are affected by a specified contravention or failure)."

6 Where an application is made under s.86, affected debtors need not be identified in the application unless the Tribunal requires such identification s.86(2). The Tribunal may authorise notice of the application to be given by newspaper advertisement which, on compliance with certain provisions, is regarded as effective notice to each debtor s.86(3), (4) and (5).

7 Section 86A is in the following terms:

"86A(1) In this section, minor error means a contravention of or failure to comply with this Act which is unlikely to disadvantage the debtors concerned in any significant respect.

(2) If a credit provider makes an application to the Tribunal under s.86 and requests the Tribunal to deal with the application under this section, the following provisions have effect:

(a) notice of the application is required to be served on the Commissioner but (unless the Tribunal otherwise directs) is not required to be served on any other person,

(b) if the Tribunal is satisfied that all the contraventions or failures to which the application relates are minor errors and ought reasonably to be excused, the Tribunal may make a determination under s.85 that debtors under all regulated contracts entered into during the period concerned which are affected by those minor errors are liable to pay the whole of the credit charges under those contracts,

(c) if the Tribunal is not so satisfied, the Tribunal must direct that notice of the application be given to the debtors concerned, either personally or in accordance with s.86."

8 It is apparent that the combined effect of s.36, s.42 and ss.85, 86 and 86A(2)(b) is that any relief from the consequence of s.42 for a contravention or failure to comply with the provisions of s.36 granted pursuant to s.85 in consequence of the application of ss.86 and 86A relate only to the contravention or failure to comply which is the subject of the application by the credit provider. The reason why that is so is also plain: there may be one or more known contraventions or failures to comply which might be the subject of an application by the credit provider for relief, but there may exist, unknown at that time, other contraventions or failures to comply which, unexcused, may result in consequence of s.42 in the debtor being relieved of the obligation to pay the credit charge. The Act thus gives to the credit provider the facility to make multiple applications at various times in respect of known and established contraventions or failures to comply. The Act does not impose on the credit provider the obligation to make an application for relief pursuant to ss.85, 86 and 86A, nor does it impose an obligation to bring an application in respect of all contraventions or failures to comply known at the time of bringing a particular application. The Act does not, at least explicitly, address the circumstance of the credit provider being aware of two or more contraventions or failures to comply yet bringing an application only in respect of one. Presumably, that is because the credit provider is not obliged to bring any application at all in respect of a known contravention or failure to comply. The credit provider is given the option of not seeking relief. It could accept that the credit charge is not payable, but if it wishes to recover the credit charge, an application pursuant to ss.85, 86 and 86A would be necessary.

9 The debtor is placed in an invidious situation in reality. If the debtor becomes aware of a contravention or failure to comply with, for example, s.36, he has no right to bring an application for a declaration to that effect. Presumably, his course of action is either to continue to pay instalments as required by the loan agreement until all payments have been made excluding that which relates to the amount of the credit charge, and then decline to pay that sum. If sued, he could plead s.42 as a defence. Bearing in mind that the sum involved is less than $20,000, the reality of a debtor becoming so aware and adopting the course I have suggested, must be remote. Indeed, the prospect of a debtor in truth becoming aware of any application for relief, where application is made pursuant to s.86 and notification being by newspaper advertisement, must be equally remote. Be that as it may, it seems clear that the intent of ss.85, 86 and 86A is to confer upon the Tribunal, after actual notice to the debtor, deemed notice to the debtor, or notice to the Director General of the Department of Fair Trading (formerly the Commissioner), who intervenes in the applications in the public interest pursuant to s.43(1) of the Credit (Administration) Act 1984, mechanism whereby a credit provider who has departed from or contravened certain provisions of the Act may seek relief from the consequences of those departures which result from the operation of by s.42.

10    The subject application to the Tribunal did not admit a contravention or failure to comply with the Credit Act, but rather posed for determination the question whether certain circumstances constituted a contravention or failure to comply with the Act, thus conferring jurisdiction on the Tribunal to consider the matter of relief under ss.85, 86 or 86A.

11    The amended application addressed two circumstances of contravention or non-compliance with the Act. Those two circumstances were referred to as the "discharge amount" and "refinancings". The orders and determinations sought in the application were, in respect of the "discharge amount", as follows:

"1 (a) The contracts described in the Schedule to this Application be deemed to be contracts to which Section 86A of the Act applies.

(b) The debtors under the contracts described in the Schedule are liable to pay the whole of the credit charges under those contracts.

2 Alternatively to 1, the liability to the Applicant of each of the borrowers under the contracts described in the Schedule to this Application in respect of the credit charge specified in his or her contract, which the borrower was not, immediately prior to the making of this Application, liable to pay pursuant to Section 42 of the Act by reason that the contract, in breach or possible breach of Section 36(1)(b) and Schedule 4 of the Act did not:

(a) identify separately in the statement of the amount financed that part of the amount financed which was consideration (or part thereof) for the discharge of the liability of the borrower to the Applicant under an earlier contract, and/or

(b) identify separately in the statement of the amount financed the amount agreed to be lent (other than the items specified in paragraphs 1(b)-(f) inclusive of Schedule 4 to the Act),

be increased to the whole of the credit charge specified in the contract.

SCHEDULE


All regulated loan contracts entered into between the Applicant and the borrowers between 28 February 1985 and the date of this Application:

(a) which included in the amount financed an amount to discharge the liability of the borrower to the Applicant under a contract previously in force; and

(b) where that discharge amount was not separately identified in the section of the loan contract entitled "1 Amount Financed"; and/or

(c) which failed to identify separately in the section of the loan contract entitled "1 Amount Financed" the amount agreed to be lent excluding the discharge amount; and

(d) where the Applicant provided to the borrower at or before the time that the borrower entered into the Contract a Personal Loan Prepayment Record Form as set out in paragraph 18 of the Affidavit of John Henry Stevens sworn 21 June 1994 and filed in the Tribunal in Application No 1115 of 1993."

12    The orders and determinations sought in respect of "refinancings" were:

"3 (a) The contracts described in paragraph 4 to this Application be deemed to be contracts to which Section 86A of the Act applies.

(b) The debtors under the contracts described in paragraph 4 are liable to pay the whole of the credit charges under those contracts.

4 Alternatively to 3, the liability to the Applicant of each of the borrowers in respect of the credit charge specified under regulated contracts where:

there was included in the amount financed, in breach or possible breach of Section 36(2)(c) of the Act, an amount in respect of the discharge of the liability of the borrower to the Applicant on account of credit charges under a contract:

(a) falling within the Schedule to this Application, which amount was not or may not have been payable by the borrower for the reasons set out in the relevant paragraph of this Application; or

(b) which itself discharged the liability of the borrower to the Applicant under a contract falling within sub-paragraph (a) or this sub-paragraph (b), including in the latter case a contract falling within this sub-paragraph by another application or applications of this sub-paragraph,

which, by reason thereof, the borrower was or may not have been, immediately prior to the making of this Application liable to pay pursuant to Section 42 of the Act be increased to the whole of the credit charges specified in his or her contract."

13    The application specified as the grounds for the orders and determination sought the following:

"The orders and determinations above are sought on the following grounds:

(a) the error described is a minor error and ought reasonably be excused pursuant to Section 86A of the Act.

(b) there was no mis-statement of the annual percentage rate in the contracts.

(c) The contracts did not involve an error in specifying the amount payable by the borrowers to the Applicant in terms of:

(i) the amount financed;

(ii) the credit charge;

(iii) the total amount financed and credit charge;

(iv) the instalments.

(d) the Applicant's procedures at all relevant times required that upon a refinancing of an existing loan the borrower was required to be given a statement of the net balance due setting out the amount to discharge the liability of the borrower to the Applicant under that previous loan.

(e) in the case of the contracts specified in paragraphs 3 and 4:

(i) the contracts specified in those paragraphs ("refinancing contracts") refinanced regulated contracts and were entered into prior to the Applicant becoming aware that credit charges were not payable under the earlier contracts. The refinancing contracts thus contained consequential errors regarding the liability of the borrowers under the earlier contracts.

(ii) each of the refinancing contracts involved an inadvertent error in the statement of the amount financed and consequential errors in the other item disclosed where, at the time of refinancing, the credit charge specified in the earlier contract was not payable.

(iii) the amount financed and the consequential statements in the refinancing contracts will not require variation if the Tribunal reinstate[s] the whole of the credit charge specified in the earlier contracts.

(iv) the Application will rely on further grounds appearing in an affidavit or affidavits to be filed in support of its Application."

14 Section 36(1)(b), referred to in paragraph 2 of the application, and s.36(2)(c), referred to in paragraph 4, provide as follows:

"36(1) A loan contract shall include:

…

(b) a statement of the amount financed in accordance with Schedule 4, … .

(2) A credit provider shall not include in the amount financed under a loan contract:

…

(c) an amount in respect of the discharge of the liability of the debtor to the credit provider under a regulated contract that exceeds the amount of the net balance due to the credit provider calculated in accordance with s.103 immediately before the discharge of the liability."

15    Schedule 4 is entitled "Statement of amount financed in relation to loan contract". The relevant portions are as follows:

"1 A statement of the amount financed shall state:

(a) the amount agreed under the contract to be lent (other than amounts referred to in paragraphs (d)-(f));

and shall include statements showing separately such amounts as, under the contract, are payable by the debtor to the credit provider (otherwise than as part of the credit charge) whether or not the credit provider pays, or has paid, those amounts to another person and are:

(b) amounts payable in respect of contracts of insurance (if any) entered into in relation to the contract showing separately in respect of each contract the name of the insurer and;

[certain particulars]

(c) amounts payable in respect of:

(i) stamp duty payable in respect of or in relation to the contract,

(ii) stamp duty payable in respect of or in relation to any mortgage relating to the contract entered into on or before the relevant date, or

(iii) fees payable to a duly qualified legal practitioner (not being the credit provider or an employee of the credit provider) authorised to prepare documents for the contract or for a mortgage relating to the contract entered into at or before the time of the making of the contract,

(d) amounts that are prescribed charges for the purposes of this paragraph,

(e) amounts that are the consideration, or part of the consideration, for the discharge of the liability of the debtor to the creditor provider under a contract in force before the relevant date, other than consideration referred to in a preceding paragraph, and

(f) amounts payable in respect of the value of any consideration provided by the credit provider to the debtor, being consideration of a kind prescribed for the purposes of this paragraph, other than consideration referred to in a preceding paragraph,

and shall state the amount financed, being the sum of the amounts referred to in the preceding paragraphs."

The relevant date is the date the loan contract is entered into.

16    Thus, the loan contract was required to show the amount being the consideration for the discharge of the liability of the debtor to the credit provider under a contract in force before the relevant date.

17    The category of the contracts in the class affected by the "discharge amount" point did not show the discharge amount. The written loan contract, in standard form used by the Bank, contained no provision for the insertion of that sum. That had at least two consequences. The first was that the provisions of Schedule 4 clause 1(e) were not complied with. The second was that the agreement did not "state the amount financed" correctly because the sum required to discharge the liability of the debtor to the credit provider under a contract in force before the relevant date was excluded from the total shown in the document as being the amount financed.

18 However, the Bank's procedures provided that, at the time when such a second loan agreement was entered into or offer made, the debtor was handed in respect of his earlier contract with the credit provider which was to be discharged by the new loan contract, a document entitled "Personal Loan Prepayment Record" ("PLP record"). That did show the amount referred to in Schedule 4 clause 1(e). The contention of the Bank was thus that, although the sum required to be shown in the loan agreement by Schedule 4 clause 1(e) was not so shown, it was shown in the PLP record provided to the debtor at the same time as the loan agreement was made. Thus, so the argument ran, the failure to comply with s.36(1)(b) because of non-compliance with Schedule 4 clause 1(e) was to be regarded as a "minor error" within the meaning of s.86A; the debtors were unlikely to be disadvantaged in any significant respect, and accordingly the Tribunal should make orders not only that the failures to which the application related were minor errors but that they ought reasonably to be excused, thus negating the effect of s.42. The consequential failure to comply with the requirement in Schedule 4 that there be a statement of the "amount financed" should be similarly treated.

19 Regarding the "Refinancings" category in the application, the Bank's position was that if the contravention or failure of compliance with s.36(1)(b), the subject of the "discharge amount" claim for relief, was not granted, then the credit charges in respect of those loans were not payable by the debtor in consequence of s.42. Accordingly, when any such loan was refinanced, the sum shown in the new refinancing loan contract disclosing the amount required to discharge the prior loan ought to have excluded the credit charge under the first agreement. However, it did not. Accordingly, there would have been a breach of s.36(2)(c) because the amount shown in respect of the discharge of the liability under that prior regulated contract exceeded the net balance due to the credit provider calculated in accordance with s.103. If, however, relief was granted as requested in relation to the "discharge amount" category of loan, the credit charge under the earlier loan would be reinstated and the amount shown as the discharge sum in the second refinancing agreement would be the appropriate sum. Thus, the relief sought in relation to the "refinancing" category of loans was consequential upon and dependent upon whether relief was granted in relation to the "discharge amount" loans.

20 Before the Tribunal it was accepted by the Director General that, in considering the "discharge amount" loans, and in determining whether the contravention or failure to comply with s.36(1)(b) was a "minor error" within s.86A, regard could be had to the fact of provision of the PLP records. However, in considering whether the departures and the provision of PLP records was a minor error, the Director General contended that there should also be taken into account the asserted fact that the actual figure shown in the PLP record was itself incorrect. It was asserted to be incorrect because of some miscalculation in relation to an insurance rebate. The Tribunal was asked to consider the alleged errors in at least some of the PLP records which were said to be an overstatement of the amount required to discharge the prior loan because of the failure to deduct an insurance rebate in calculating that sum. This the Tribunal declined to do. It said:

"The Commissioner submitted that on the evidence the chances are that the amounts stated in the Bank's Personal Loan Prepayment Record forms in order to discharge the earlier loans are (a) incorrect amounts and (b) exceed the amounts which can be lawfully charged; because insurance rebates were not credited.

However, it was held by the Tribunal in Australian Guarantee Corp Ltd v Roberts & Ors (1989) ASC 55-950 that any failure by an applicant to calculate correctly the consideration which, according to law, was required to pay out a prior hire purchase agreement does not constitute a contravention of s.36(1)(b) of the Act in respect of a subsequent loan contract pursuant to which funds to pay out the hire purchase agreement were advanced.

The judgments on appeal in that case leave that finding intact: see Canham & Ors v Australian Guarantee Corporation Ltd & Ors (1990) ASC 55-984 Carruthers J, Canham & Ors v Australian Guarantee Corporation Ltd & Anor (1993) 31 NSWLR 246 Court of Appeal.

An incorrect amount is not an amount according to law; it is no different from an unlawful charge. Accordingly it falls within Roberts , supra .

The Tribunal follows and applies Roberts supra in determining the application. That means that the Bank does not have to prove that the amounts were correct amounts or that the amounts did not exceed the amounts which can be lawfully charged. What is required is the statement of the amount paid in discharge of the liability." Appeal book 22

21 In substance, it was this finding which the Director General challenged on appeal on a point of law to Hamilton J. It is to be noted that the Tribunal was not addressing all issues under s.86A because a notice of motion had been filed seeking preliminary determination of two questions, they being:

(1) Does the Tribunal have jurisdiction in relation to the contraventions or possible contraventions of s.36 of the Act the subject of the applications?

(2) If the Tribunal has jurisdiction, are the contraventions or possible contraventions of s.36 of the Act minor errors within the meaning of s.86A of the Act?

22    Thus the question whether, if the Tribunal had jurisdiction, and if contravention or failure to comply with the provisions of the Act was established, and if the Tribunal determined that such contraventions or failures constituted minor errors, the Bank "ought reasonably to be excused" was not at that time before it.

23 In light of the clear non-compliance with the provisions of s.36(1)(b), in that the loan agreement made no provision for insertion of a sum required by Schedule 4 clause 1(e), the question of jurisdiction was not seriously in dispute. But the question whether the Tribunal should have regard to asserted errors in the information provided in the PLP record in considering the question whether uncontested departures or contraventions constituted a "minor error" or errors was.

24    Hamilton J thought it unnecessary for him to decide whether Roberts was correctly decided. He noted that the portion of the decision in Roberts relied upon by the Tribunal "was not overruled on appeal to Carruthers J or the Court of Appeal, nor was it approved". That is correct: that portion was not addressed by either Court on appeal. However, his Honour felt bound by the decision of the Appeal Division of the Supreme Court of Victoria in Custom Credit Corporation v Gray. (1992) 1 VR 540. Hamilton J was correct to do so in light of the decision of the High Court in Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485. His Honour interpreted Gray as deciding that:

"The incorrectness of an amount stated in response to items (b) - (f) in Schedule 4 does not amount to a non-compliance with s.36(1)(b) provided that it correctly reflects the amount included in the debt in respect of that item."

By "debt", his Honour meant "loan contract". That is the substance of the decision in Gray . Hamilton J continued:

"However it does not appear to me to flow from Gray that the same applies where the 'incorrectness' is the result of disobedience of another provision of the Act itself. Disobedience of s.36(2)(c) itself may be "a contravention of or failure to comply with" the Act capable of determination as a minor error under s.86A in appropriate circumstances. But whether that is so or not, no such determination has been sought or made here. Here it has been decided that a consideration of the existence, size and significance of these non-compliances need not be embarked on and the matter has been disposed of on the basis that it does not matter whether the figure was correct or not. In my opinion, the principle in Gray's case does not extend to an incorrectness arising from disobedience of a discrete provision of the Act. The emphasis in the other Full Court decisions of the need for strict compliance with the Act tends against this result. See Canham v Australian Guarantee Corporation Ltd (1993) 31 NSWLR 246 and Custom Credit Corporation Ltd v Lynch (1993) 2 VR 469. It may also be significant that the repetition contained in the formula "amounts payable in respect of … stamp duty payable" thought significant by the Supreme Court of Victoria in Gray in relation to the interpretation of clause 1(c) of Schedule 4 is not found in s.36(1)(e). In any event, the approach is in my view wrong. Its wrongness proceeds from an incorrect interpretation of the statute. It therefore constitutes an error of law and the determination that the contraventions were minor which depends in part of that error of law cannot stand."

25    On the appeal to this Court, the reasoning of Hamilton J was challenged.

26    I have difficulty with the reasoning of Hamilton J. A sum of money stated in a loan agreement will be correct or incorrect depending upon whether it is an accurate statement of what the agreement says it reflects. Gray's case, and subsequent authority, it was submitted by the Bank, requires only that the figures required by s.36(1)(b) and Schedule 4 reflect the sums which the parties to the loan agreement have agreed are to be paid as part of the sum lent, and thus are within the loan agreement. It matters not, according to the Bank, whether in truth the sum stated, for instance for insurance or stamp duty or prescribed charges or discharge of a prior agreement, accurately reflects the amount payable for insurance, or stamp duty, or prescribed charges or discharge amount to those entitled. The alternate view is that the Act requires that the loan agreement accurately state the sums required for insurance or stamp duty or prescribed charges or discharge of a prior loan, such sums being payable under the loan contract by the debtor to the credit provider for disbursement by the credit provider to itself or others. There is no third category of "incorrectness arising from disobedience of a discrete provision of the Act".

27    It thus becomes necessary for this Court to consider the correctness of Gray's case and authorities which are said to adopt or endorse it.

28    Gray's case is a decision of a two judge bench of the Appeal Division of the Supreme Court of Victoria. It is thus to be accorded great respect. Particularly in relation to legislation being part of a uniform scheme of legislation throughout Australia, or most of it, as the Credit Act is, this Court should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong. Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492

29    After much consideration I have come to the view that the decision is plainly wrong and this Court should not follow it.

30    Before addressing the reasoning in Gray's case, it is important to note the background to the Credit Act which is comprehensively discussed by Kirby P in Canham (1993) 31 NSWLR 246 at 252 and following. His Honour said:

"The ultimate theory behind the philosophy of truth in lending in our credit legislation is that disclosure of critical elements in the consumer contract will help to ensure honesty and integrity in the relationship (where one party is normally disadvantaged or even vulnerable); promote informed choices by consumers; and allow the market for financial services to operate effectively. … The policy behind the philosophy must be kept in mind in approaching the application of particular provisions in the Act to particular facts. The modern approach to the interpretation of legislation is, so far as the language of the legislation permits, to ensure that it gives effect to, and does not frustrate the achievement of, the apparent purposes of Parliament as disclosed in that language. …
In Anderson v HCF Financial Services Ltd (1988) VR 251 at 255 the Victorian Full Court emphasised that the Victorian counterpart legislation to that which is here under consideration is 'primarily intended to protect borrowers [and] it should be given an interpretation beneficial to borrowers'. I agree with this approach."

31    Thus, the emphasis is on disclosure. Section 36 is headed "Disclosure in loan contracts". Schedule 4 requires in the statement of the amount financed, disclosure, indeed specification, of the constituent items making up that figure.

32    But disclosure of what? Is it disclosure of the sums actually to be paid, for instance for insurance premiums or stamp duty or prescribed charges, by the borrower to the credit provider for on-payment to those entitled, or by the borrower to the credit provider to be retained by the credit provider in discharge of a prior contract of loan? Or is disclosure only of those sums which the credit provider and the borrower have agreed are to be included in the loan contract in respect of such items.

33    I am not able to accept that it is the latter for to do so defeats the purpose of the legislation which was "primarily intended to protect borrowers". As Kirby P said Canham (1993) 31 NSWLR at 253:

"Disclosure and truth in lending was the very linchpin of the new Credit Act . To discourage non-disclosure, whether deliberate or accidental, drastic consequences were provided by s.42."

34    Disclosure of that which the parties to the loan contract had agreed should be paid to the credit provider, for insurance or stamp duty or prescribed charges or discharge of a prior loan, as distinct from the accurate sum actually to be paid by the credit provider for insurance or stamp duty or prescribed charges or retained by him in discharge of a prior loan, would not achieve the objects of the Act. It seems to me not possible to attribute to Parliament an intention that, in a dealing between a credit provider and a borrower in a loan contract involving not more than $20,000, and in circumstances where the borrower "is normally disadvantaged or even vulnerable", that the sum disclosed should be other than the sum actually to be paid for insurance, or stamp duty, or prescribed charges, or in discharge of a prior loan, when that sum is readily able to be determined. There could be no "truth in lending" or "disclosure" by the credit provider of the sum necessary for insurance, or stamp duty, or prescribed charges, or in discharge of a prior loan, if the disclosure required was not of the sums in truth so payable, and thus to be included in the loan, but merely of some sum undoubtedly asserted by the credit provider as being required as the amount for payment of those items and thus to be included in the sum lent and the loan contract.

35    A consideration of the reason for inclusion in a loan contract of sums, for example, in respect of insurance, stamp duty, prescribed charges or a discharge amount for a prior agreement, reinforces this approach. A sum is included in the loan amount because those sums are payable by the borrower. Administratively, payments to third parties may be made by the credit provider but, in truth, the amounts for those items are to be paid by the borrower. That is why they are included in the loan amount. The obligation is thus to disclose how much is payable, for example, for insurance or stamp duty, or prescribed charges. There is no point to an obligation to disclose being ancillary to a power in the credit provider and the borrower to agree upon how much the borrower should pay to the credit provider (for on-payment or retention) in respect of those sums. The obligation of disclosure is ancillary to the obligation of the borrower to pay the sums in fact payable in respect of those items.

36    The history of the legislation and the intention of Parliament, both as discussed by Kirby P, and the reasoning which informs why the sums are in the loan contract, and thus required to be disclosed, to my mind make plain that, unless the words of the Credit Act require a different interpretation, the disclosure required is of an accurate statement of the sums actually to be paid to those entitled in respect of the items referred to in s.36 and Schedule 4, rather than a statement of the amounts which the credit provider and the borrower may have agreed to be included within the loan contract for such items.

37    I find nothing in the Credit Act which requires such a different interpretation.

38 Section 36(1)(b) requires "a statement of the amount financed in accordance with Schedule 4". This simply means that the statement of the amount financed must show the sums for the various items in Schedule 4. It neither supports, nor denies, the approach outlined above that the elements constituting the statement of amount financed must accurately be stated as being in fact the amounts payable to those entitled for those items, as distinct from agreed to be paid. Of course, all items constituting the whole or part of an agreement for loan must be agreed between the credit provider and the borrower but that circumstance does not impact upon whether, in an act requiring disclosure of the ingredient parts, the disclosure is reflective only of the agreement rather than of the circumstance that the agreement is intended to be of moneys actually payable for particular items associated with the loan such as insurance, stamp duty, prescribed charges, or a discharge sum for a prior loan. Particularly is that so where s.36(2)(c) prohibits a credit provider including in the amount financed under a contract of loan a sum exceeding the net balance due to the credit provider calculated in accordance with s.103 in respect of a prior regulated contracted. What must be included in a loan contract - for any greater sum is prohibited - is the accurate calculation of the discharge sum. That means it is that sum which must be disclosed, not some other agreed sum..

39    In considering the interpretation of Schedule 4, it is convenient to address the reasoning which drove the decision in Gray. That case involved a claim by the credit provider for relief pursuant to s.85 from the consequences of s.42 of the corresponding Victorian Act, the departure or non-compliance being that the stated amount in the loan agreement for stamp duty was $28.30, whereas the actual amount to be paid to the revenue authority was $27.80. Further, the loan agreement stated that the amount payable for mortgage registration fee was $5.00 whereas the actual amount was $4.00. The Referee of the Small Claims Tribunal had decided that s.42 applied, there being a breach of s.36. The application by the credit provider under s.85 for reduction of the loss of the credit charge was adjourned pending Mr Gray's application for compensation which was awarded. The credit provider appealed against the decision that s.42 applied and the award of compensation.

40    It is convenient to set out again the relevant portions of clause 1 of Schedule 4 being considered in Gray:

"1 A statement of the amount financed shall state:

(a) the amount agreed under the contract to be lent (other than amounts referred to in paragraphs (d)-(f));

and shall include statements showing separately such amounts as, under the contract, are payable by the debtor to the credit provider (otherwise than as part of the credit charge) whether or not the credit provider pays, or has paid, those amounts to another person and are:

(b) …

(c) amounts payable in respect of:

(i) stamp duty payable in respect of or in relation to the contract,

(ii) stamp duty payable in respect of or in relation to any mortgage relating to the contract entered into on or before the relevant date, or

(iii) fees payable to a duly qualified legal practitioner (not being the credit provider or an employee of the credit provider) authorised to prepare documents for the contract or for a mortgage relating to the contract entered into at or before the time of the making of the contract,


(d) amounts that are prescribed charges for the purposes of this paragraph,

…
and shall state the amount financed, being the sum of the amounts referred to in the preceding paragraphs."

41    The Full Court said:

"What s.36(1)(b) requires is a statement of the amount financed in accordance with Schedule 4. The schedule requires the statement of two different kinds of information identified by different features. The first, which does not include anything which is to be included in the second, is the amount agreed under the contract to be lent. It is to be noted that it is identified by reference to what the credit provider, not the debtor, agrees to do - that is, to lend the amount. The second kind of information is the statement of such of the amounts specified in paragraphs (b) to (f) as are payable by the debtor to the credit provider under the contract, other than as part of the credit charge, regardless of whether the credit provider pays or has paid the amounts to another person. These amounts are identified by reference to what the debtor agrees to do. The amounts are to be stated if they fall within the description of amounts which, under the contract, "are payable by a debtor to the credit provider … whether or not the credit provider pays, or has paid, those amounts to another person". The words commencing "whether or not" are descriptive of the word "payable". To find whether a particular amount is payable in that sense one looks at the contract. One does not look at whether the credit provider actually paid the amount.

For Schedule 4 to require an amount to be stated separately that amount must fall both within the description in paragraph (a) of clause 1, and within one of the descriptions in paragraphs (b) to (f). The view which we take is supported by the description relevant to stamp duty in paragraph (c). The words:

"(c) amounts payable in respect of:

(i) stamp duty payable in respect of or in relation to the contract"


would contain meaningless and unnecessary words if the "amounts payable" and the "stamp duty payable" both refer to what is paid to the stamp duty authorities.

In our opinion, s.36(1)(b), in respect of amounts specified in clause 1(b) to (f) of Schedule 4, is directed to ensuring that there is disclosure so that a debtor is able to know what amounts are payable by the debtor under the contract and in respect of what those amounts are payable. It is not directed to whether the amounts are appropriate monetary amounts."

42    The process of reasoning exhibited in this passage involves a number of steps. The first is to characterise all of the items in clause 1. The amount agreed to be lent in paragraph (a) is characterised as something which, "under the contract", the credit provider has agreed to do. The balance of the items under paragraph (b) to (f) are characterised, as "under the contract", things which the borrower agrees to do, namely to make payments. That characterisation may be an available characterisation but, with great respect, it seems to me to be not material to an interpretation of whether the sums so referred to are to be the true monetary sums payable to those entitled in respect of the obligations for stamp duty, insurance, prescribed charges or discharge of a prior loan, as distinct from agreed sums for those items. The words "under the contract" do no more than state that the parties have adopted contractual obligations in respect of the sums mentioned; it does not reflect upon whether the sums which the borrower has agreed to pay must be a true reflection of the amounts in truth payable to those entitled for the insurance charges, stamp duty, prescribed charges or discharge amounts.

43    Critical to the reasoning of the Full Court were the words "whether or not the credit provider pays, or has paid, those amounts to another person". The Court used the word "regardless" rather than the expression used in the Schedule "whether or not". Those words were held to be indicative that one was not concerned with whether, in truth, the credit provider, in discharging the insurance, stamp duty, statutory charges or discharge obligation, had paid or would pay or retain the sums stated. As the Court said:

"To find whether a particular amount is payable in that sense, one looks at the contract. One does not look at whether the credit provider actually paid the amount."

44    I am not able to accept that reasoning. The words "whether or not the credit provider pays, or has paid, those amounts to another person" reflect possibilities in regard to items (b) to (f) inclusive. Usually, the items in (b), (c), (d) would be paid to "another person", although it might be the case that a credit provider was also an insurance company and thus would retain moneys referred to in (b). The sums referred to in (e) and (f) are sums to be retained by the credit provider. Further, as regulated loans may be of more than one year's duration, sums for insurance may be stated which might become payable in the future. In my view, the words "whether or not the creditor provider pays, or has paid, those amounts to another person" are merely explanatory of the position that the amounts must be shown irrespective of to whom they are to be disbursed, irrespective of whether they are to be retained by the credit provider, and irrespective of whether the disbursement has occurred or will occur in the future. I can see no basis for interpreting those words as indicative of an absence of obligation on the credit provider, who undoubtedly prepares the loan contract which specifies amounts for insurance, stamp duty, prescribed charges and discharge amounts, stating other than the accurate sum required to discharge those obligations.

45    Nor can I accept that the abbreviated reference to subclause (c)(i) supports their Honours' interpretation. Their Honour's thought it did because otherwise there would be "meaningless and unnecessary words if the 'amounts payable' and the 'stamp duty payable' both refer to what is paid to the stamp duty authorities".

46    Subclause (c) addresses three categories of amounts payable. They are not the same. It was accordingly both sensible and necessary to introduce clause (c) by using the words "amounts payable". Subparagraphs (i), (ii) and (iii) then identify the three different items giving rise to an obligation in the borrower to make a payment. It is to be noted that each of the three items is capable of accurate determination so far as amount is concerned. If the stamp duty payable to the revenue authorities in respect of the contract was $27.80, it could hardly be thought to be an implementation of "disclosure" protective of the borrower, or indicative of "truth in lending", to show as the amount payable a greater sum, as occurred in Gray. In my view, the introductory words in clause (c), "amounts payable in respect of", are simply introductive of three categories of moneys required to be paid by the borrower and thus included in the contract. Those words say nothing regarding whether or not the moneys to be paid are to be those in truth payable to those entitled in respect of the three items, or some other sum. Those words do not negate the view that the figures stated in relation to (c)(i), (ii) and (iii) must be the true sums payable in respect of those items by the debtor.

47 It necessarily follows, in my view, that s.36(1)(b) is directed to a true disclosure by the credit provider of the sums in truth payable to those entitled in respect of the items referred to in Schedule 1, and not of some other sum which a person, likely to be in a position of disadvantage when compared with the credit provider, had agreed to.

48    In my view, this approach is strongly reinforced by the provisions of Schedule 4 clause 1(d). Underlying that clause is the concept that the legislature intended that certain charges would be prescribed by an authority. No doubt, those charges would be prescribed at a rate regarded by the authority as appropriate to be paid by a borrower. It cannot be thought that the legislature intended that, notwithstanding, the parties could agree that the loan agreement could state some different or greater charge.

49    As appears from Australian Guarantee Corp Ltd v Faint & Anor (1992) ASC 56-153 at 57,489 and following, the charges prescribed by clause 27(1) of the Credit Regulations 1984 for the purposes of Schedule 4 clause 1(d) are "fees payable for registration of a registrable interest …" and "fees payable for a certificate …". Any registration of a registrable interest is for the benefit of the credit provider, not the borrower. It cannot be thought that the legislature intended that a credit provider could require payment of a fee for such registration greater than the fee actually payable as prescribed. I respectfully adopt the reasoning of Deputy Chairman SW Cavanagh sitting in the Commercial Tribunal of New South Wales in Faint.

50    In Gray, the Full Court distinguished the decision of the Full Court of the Supreme Court of New South Wales in Contrade Finance Ltd v Senes (1963) 63 SR (NSW) 141. Their Honours said:

"We do not regard the decision in Contrade Finance Ltd v Senes … as inconsistent with our conclusion. The legislative scheme which led the Court to conclude that within the meaning of the Hire Purchase Agreements Act 1941-1957 'an amount for insurance' meant the sum properly paid or payable for insurance was quite different from that now being considered."

51    I do not think that a sufficient distinction of Contrade Finance. It is true that the Hire Purchase Agreements Act and the Credit Act are different legislative schemes. However, each was intended to be protective of either the hirer or the borrower. Contrade Finance was concerned with a provision which permitted to be added to hiring charges "an amount for insurance". The Full Court held that "an amount for insurance" meant such sum or sums as was or were properly paid or payable in respect of the insurance of the goods comprised in the agreement, and not merely such sum as might be shown, for insurance in the agreement as part of the purchase price. I see no difference of import in the words "amounts payable in respect of contracts of insurance" and the words "an amount for insurance". Both are meant to refer to the amount actually payable to the recipient for that item. Similarly for stamp duty and legal fees referred to in subclause (c). And in subclause (d), "amounts that are prescribed charges" means the same as "amounts for prescribed charges", and in relation to subclause (e) "amounts that are the consideration for the discharge of the liability of the debtor" means the same as "amounts for the discharge of the liability of the debtor".

52    Apart from this, the notions which inform the judgment in Gray were the same notions which were advanced but explicitly rejected in Contrade Finance Ltd. That case involved an overstatement of 4s.4d (about $0.44) in the hire purchase agreement of the amount which was in fact paid by the hire purchase company by way of premium. Manning J said 1963 63 SR (NSW) 142-3:

"If the amount which the Act permits to be added to the cash price for the purpose of ascertaining the hiring charges was the amount actually paid by way of insurance premium, then it is not disputed that the hiring charges exceeded the permissible limit. I pause to point out that if the hiring charges did exceed the permissible limit, the sanction imposed by the section is absolute and the section applies irrespective of whether the excess is large or small. It is also to be noted that if indeed there is an excess, this would, of itself, represent a hiring charge and the consequence would be that the financier would be charging interest upon interest. However this may be, it is quite clear that the whole question turns upon the meaning of the words 'an amount for insurance' where they appear in the section."

53    His Honour then addressed four permissible categories of charge and continued:

"The language used in describing these four items is by no means satisfactory and the mode prescribed for ascertaining the amount of these items is expressed in language which differs. However, Mr Staff, Queen's Counsel for the appellant, in a most ingenious argument, contended that it was not necessary that any amount be paid or payable in respect of insurance in order that this section be complied with. He ultimately was compelled to assert that the words 'an amount for insurance' should be read as meaning 'the sum shown for insurance in the hire purchase agreement as part of the purchase price'. In effect, he said that there would be many cases in which it would not be possible to actually have a policy issued at the relevant time and that the amount of the insurance premium might not be ascertainable with certainty and that, when one views the section in the light of the practical situation which arises in cases of this type, all the parties were really able to do was to include in the agreement their estimate as the 'amount for insurance'. He contended that these words should be construed in what he said was their literal sense, namely, the amount to be paid for insurance pursuant to the hire purchase agreement. There are two reasons which induce me to think that the contrary view is the correct one.
Firstly, the expression used in this section is, as I have said, 'amount for insurance'. The use of this proposition seems to me to tend to connote a sum actually paid or payable, rather than an estimate made by the parties. If 'paid or payable' is the test, I think this answers Mr Staff's subsequent submission, which was made with considerable force, that difficulties would arise in ascertaining whether the agreement complied with the Act as at the time at which it was made.
But even if the true construction of these words is not as I have stated, it seems to me that the general intendment of this Act is to limit in a most rigorous fashion the right of a financier to charge more than the permissible 'hiring charges', under penalty that the agreement shall, if a breach be made, become void. The particular words in the particular subsection should not be read in isolation; they must be viewed in the context found in the section in which they appear and in relation to the whole scheme of the Act. The four classes of items which are permitted to be included as part of the price (and their inclusion is primarily permitted to allow interest at the prescribed rate to be charged thereon, such sums having been in reality advanced to the hirer) are all in the nature of outgoings or disbursements. If the provisions of s.26C(1)(a) are to be read as permitting estimates to be made which might be found to exceed the actual sums involved, then a greater sum, in the ultimate result, would be achieved by the financier for 'hiring charges' than the Act states as being the permissible maximum sum.
In the result, I am of the opinion that the expression 'an amount for insurance' must be construed in such a way that it is confined to such sum or sums as is or are properly paid or payable in respect of the insurance of the subject goods."

54    The Credit Act 1984 and the Hire Purchase Agreements Act 1941-1957 both impose restrictions on lenders and are protective of borrowers. The consequences of departure from limiting provisions under each are different: under the Credit Act the whole transaction is not avoided but only the credit charge is lost, and relief from that loss may be obtained by application pursuant to ss.85, 86 and 86A.

55    I am unable to distinguish the principles underlying Contrade Finance Ltd from those applicable in Gray.

56    The decision in Gray was referred to by the Victorian Court of Appeal in Avco Financial Services Ltd v Abschinski (1994) 2 VR 659. There, a credit provider included in the amount financed valuation fees paid by it for valuations of properties mortgaged to secure the loans. The payment of the fees was disclosed to the borrowers. Inclusion of such fees constituted a breach of s.36(1)(b) of the Credit Act with s.42 consequences which were sought to be relieved by application pursuant to ss.85 and 86. Fullager J did not address Gray but agreed in part with Southwell's J analysis of failure to comply with s.36(1)(h) regarding commission charges. Southwell J set out the passage in Gray which I have quoted, found it unnecessary to consider the correctness of the paragraph which dealt with subparagraph (c)(i), or whether such passage was obiter. His Honour found the passage quoted not supportive of a submission which had been advanced but otherwise made no comment regarding Gray.

57 Ormiston J at (1994) 2 VR 695) quoted the last passage I have quoted from Gray and said:

"The purpose of these provisions being disclosure … ."

58    His Honour did not address what it was which was required to be disclosed, although later in his judgment (at 698) his Honour said:

"It is to be noted that the requirements for disclosure in Schedule 4 relate only to amounts payable by the borrower to the credit provider under the contract, which may be contrasted with the terms of s.75 (set out below) relating to unauthorised costs, fees and charges which prohibits such charges whether payable under the loan contract or under any other agreement to that end and further prohibits not merely those fees payable to the credit provider but also those which are said to be payable 'on behalf of' a credit provider. That there should be such differences is not surprising as s.75 is directed generally to agreements for the payment of costs, fees or charges, whereas s.36 and Schedule 4 are directed to the disclosure requirements relating to regulated contracts. It is sufficient to say at this stage that paragraphs (b) to (f) in Schedule 4 concentrate upon sums payable to the credit provider because they are treated as having been, or will have been, lent by the credit provider in order to satisfy some obligation of the debtor. If there is no obligation 'under the [loan] contract' imposed on the debtor then the amounts paid of that kind do not come within the schedule because they do not satisfy the requirements of the covering words."

59    Ormiston J was critical of another aspect of Gray's case (1994) 2 VR 713. Although Gray's case was referred to in Abschinski, there was no detailed consideration of whether it was correctly decided or of the reasoning underlying it.

60    General Motors Acceptance Corp Australia Ltd v Morris & Ors (1995) ASC 56-316 was a decision of the Court of Appeal in Queensland involving consideration of certain provisions of the Credit Act 1987 (Qld). Fitzgerald P and Lee J did not discuss Gray's case. Pincus JA said:

"The purpose of clause 1 (Schedule 4) surely is to enable the debtor to have a record of the elements of which the amount to be repaid is made up - so much lent, so much for mortgage insurance, so much for stamp duty and so forth; see Custom Credit Corp Ltd v Gray (1992) 1 VR 540 at 553."

61    It is interesting, and instructive, that Pincus JA has transposed "amounts payable in respect of", being the words used in Schedule 4 and addressed in Gray, to the words "so much for", being the words considered by the Full Court of the Supreme Court of New South Wales in Contrade Finance. It reflects the reality that there is no distinction between those words in the present context. I would read the words of Pincus JA as supportive of the approach adopted in these reasons.

62    Brooking J, in Westpac Banking Corporation v Donald-Murrell (1992) 2 VR 417 at 429 referred to Gray's case. His Honour said:

"The basis of the decision is that paragraphs (b) to (f) of clause 1 of the Schedule are concerned with what the contract provides: they are not concerned with matters dehors the contract. One looks only at the contract and asked whether it sufficiently identifies the amount payable by the debtor and in respect of what it is payable."

His Honour then said:

"My obligation is to apply the decision in Gray's case. It requires me to hold that the error in the present case in relation to stamp duty does not have the consequence that the statement is not in accordance with Schedule 4."

His Honour was obliged to follow Gray's case but his remarks are not to be regarded as an endorsement of the reasoning process in that case.

63    Gray's case was not considered by the NSW Court of Appeal in Canham & Ors v Australian Guarantee Corp Ltd (1993) 31 NSWLR 246. This is thus the first occasion in which the correctness of the decision in Gray has arisen for consideration by an intermediate appellate court. For the reasons given, I am of the view that the reasoning underlying Gray cannot be supported and is clearly wrong. In those circumstances, this Court should not follow that decision.

64 It follows that where a loan contract inaccurately states the amount payable for insurance, for stamp duty, for prescribed charges or for discharge of liability under a pre-existing contract, in the sense that it does not correctly state the amount payable to the insurer, the revenue authority, the body entitled to the prescribed charges, or the correctly calculated amount to discharge a prior contract with the credit provider, there is a contravention or failure to comply with s.36(1)(b), having the consequence that s.42 negates the liability, on the debtor to pay to the credit provider under the contract, unless relief is sought and obtained pursuant to ss.85, 86 or 86A. This necessarily means that the decision by the Tribunal in Australian Guarantee Corporation v Roberts & Ors (1989) ASC 55-950 AT 58,695 was wrongly decided. The amount required to be stated in respect of the items in Schedule 4 clause 1 are the amounts correctly calculated for insurance, stamp duty, prescribed charges and discharge amounts.

65 It necessarily follows that the Tribunal was in error, in making its determination in relation to the "discharge amount" cases, that the error established, namely failure to include in the loan contract a discharge amount as required by Schedule 4 clause 1(e) was a minor error because it was irrelevant whether the sum which ought to have been so included was correctly or incorrectly calculated. The effect of a finding that provision of a PLP record substantially cured the contravention or failure to comply arising FROM the omission from the loan agreement necessarily involves a consideration of whether the PLP record conveyed to the debtor the information which ought to have been conveyed by the loan contract. If the information in the PLP record was itself incorrect, that is a matter material to the consideration whether the established contravention or failure to comply should be regarded as a minor error as defined by s.86A.

66 This resolves against the Bank the submission advanced by it that s.86A(2)(b) resulted in it being open to the Tribunal only to consider the contraventions or failures "to which the application relates" in considering whether such contraventions or failures are minor errors, as a preliminary consideration to whether, if they are, they ought be excused. The contention was that regard could not be had to the suggested overstatement of the sum stated in the PLP record of the amount required to discharge the prior loan as required by Schedule 4 clause 1(e) because that overstatement was not a "contravention or failure to which the application relates", the Bank not having made any application for relief in respect of that asserted overstatement. If the Bank claims that the provision of the PLP record so cured the contravention or failure to comply breached by the non-provision of the amount required to discharge the prior loan in the new loan contract, it must rely upon the terms of the PLP record. If that record is itself erroneous, that is a factor to be considered by the Tribunal in determining whether the contravention or failure to comply is properly classified and to be regarded as a minor error. It follows that the determinations of the Tribunal in which it was decided, as a preliminary question, that each of the contraventions referred to in the amended application and concerned with each of the "discharge amount" loans and the "refinancing" loans were minor errors within s.86A, were wrongly made and must be set aside.

67    The reasoning of Hamilton J cannot be sustained nor, in my view, should the orders that his Honour made qualifying the orders made by the Tribunal be upheld. In substance, his Honour's reasoning may result in the determination of a class of loan contract which requires further consideration by the Tribunal to determine whether the contraventions or failures to comply with the provisions of s.36 are properly to be regarded as minor errors. But, it seems to me that the total determination by the Tribunal of whether or not loan contracts in the various classes being considered to determine whether departures or non-compliance were properly to be regarded as minor errors was so infected by error by failure to consider a relevant circumstance, namely the correctness or otherwise of the sum stated in the PLP record as constituting the discharge amount for a prior loan, means that the orders of his Honour should also be set aside.

68    Notwithstanding the setting aside of those orders, the appellant has in substance failed and should bear the costs of the appeal.

69    I would propose the following orders:

(1) Orders of Hamilton J in application No 30045/95 dated 1 July 1997 be set aside.

(2) Orders of the Commercial Tribunal of New South Wales in application No 1027/94 dated 26 September 1995 be set aside.

(3) The appellant pay the respondents' costs of the proceedings before the Tribunal and before Hamilton J and of the appeal.

(4) The matter be remitted to the Commercial Tribunal of New South Wales for further consideration in accordance with these reasons.

70    BEAZLEY JA: I agree with Cole AJA and with the additional comments of Stein JA.

71    STEIN JA:I agree with Cole AJA, his reasons and proposed orders. I share his view that Custom Credit Corporation v Gray (1992) 1 VR 540 should not be followed in New South Wales.

72 I would merely add the following. The Tribunal had to determine whether it was satisfied that the contraventions, the subject of the application before it, were ‘minor errors’ as defined by s 86A of the Credit Act 1984. The basis upon which the Bank asked the Tribunal to so find was that although the discharge amount was omitted from the loan document, it was included in another document (the PLP record) handed to the debtor at the time. Therefore, it could not be said that the debtors were likely to be disadvantaged in any significant respect.

73    However, this must assume that the figures in the PLP document are themselves correct. If they are shown to be incorrect, it may not follow that the Tribunal can conclude that it is unlikely to disadvantage the debtors concerned in any significant respect so as to be a minor error. Whether or not the figures in the PLP record are correct or otherwise is therefore material to a consideration of whether the subject contravention of the Act should be regarded as a minor error. Approached in this way, no jurisdictional question arises that the Tribunal is impermissibly examining a contravention outside the subject matter of the application before it.

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