Legal Research
Cases
Bahadori v Permanent Mortgages Pty Ltd

Bahadori v Permanent Mortgages Pty Ltd

Link copied

Case Copied 26 June 2008 78 min read

Contents

On this page

Reported Decision: 72 NSWLR 44

New South Wales

Court of Appeal

CITATION: Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150

HEARING DATE(S): 5 February 2008

JUDGMENT DATE:
26 June 2008

JUDGMENT OF: Giles JA at 1; Tobias JA at 8; Campbell JA at 198

DECISION: In matter CA No. 40140/07
(a) Appeal dismissed;
(b) Subject to the orders made in relation to matter CA No. 30023/08, below, each party to pay their or its own costs of the appeal;
(c) Order that the appellants pay the costs of the first and second respondents of the Notice of Motion filed on 18 February 2008.
In matter CA No. 30023/08
(a) Declare that the Consumer Trader & Tenancy Tribunal (the Tribunal) has jurisdiction to hear applications COM04/52375, COM04/55473, COM04/55476 and COM05/32128 (the said applications);
(b) Order that the decision of the Tribunal dated 2 May 2006 whereby it determined that it did not have jurisdiction to hear the said applications be quashed;
(c) Order that the Tribunal hear the said applications;
(d) Order that the first and second defendants pay the plaintiffs’ costs of the summons filed on 7 March 2008 which are to include the costs of the written submissions filed in CA 40140/07 and one half of the costs of the hearing before the Court of Appeal on 5 February 2008;
(e) Order that the appellants pay the costs the first and second defendant with respect to the hearing before the Court of Appeal on 6 March 2008.

CATCHWORDS: Consumer Credit Code – Appeal from Consumer, Trader and Tenancy Tribunal – Prerogative relief – Whether Tribunal had jurisdiction to hear application – Court of Appeal able to make findings of fact – Purpose of Code – Whether Code applied to transactions – Whether provision of credit for personal, domestic or household purposes – Whether provision of credit for business or investment purposes – Whether borrower declarations as to purpose valid – Whether there was a credit contract – When credit contract was formed – Series or combination of contracts, or contracts and arrangements – Whether credit provider or other relevant person knew or had reason to believe borrower declarations were false

LEGISLATION CITED: Commercial Tribunal Act 1984
Consumer, Trader & Tenancy Tribunal Act 2001 (NSW)
Consumer Credit (New South Wales) Act 1995 (NSW)
Consumer Credit (New South Wales) Code 1995 (NSW)
Consumer Credit Regulations 1995 (NSW)
Legal Profession Act 1987 (NSW)
Medical Practice Act 1992 (NSW)
Oaths Act 1900 (NSW)
Supreme Court Act 1970 (NSW)

CATEGORY: Principal judgment

CASES CITED: Canham v Australian Guarantee Corporation Ltd (1990) 20 ALD 361; (1990) ASC 55-984
Chapman v Taylor [2004] NSWCA 456
Codelfa Construction Pty Ltd v State Rail Authority NSW [1982] HCA 24(1982) 149 CLR 337
Dale v Nicholls Construction Pty Ltd [2003] QDC 453
Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696
Grygiel v Baine [2005] NSWCA 218
Health Care Complaints Commission v Karalasingham [2007] NSWCA 267
Jonsson v Arkway Pty Ltd [2003] NSWSC 815;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Bahadori v Permanent Mortgages Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] NSWCA 150
Decision Date: 26 June 2008

CaseChat Overview and Summary

The appeal concerned the jurisdiction of the Consumer, Trader and Tenancy Tribunal to hear applications brought by the appellants, Mr Bahadori and others, against Permanent Mortgages Pty Ltd and others. The central dispute revolved around whether certain credit transactions fell within the ambit of the Consumer Credit Code. The Court of Appeal was required to determine whether the Tribunal had the power to adjudicate these matters, which involved questions about the nature of the credit provided and the validity of declarations made by the borrowers regarding the purpose of the credit.

The legal issues before the Court of Appeal included whether the Consumer Credit Code applied to the transactions in question, specifically whether the credit was provided for personal, domestic, or household purposes, as opposed to business or investment purposes. The court also had to consider the validity of borrower declarations concerning the purpose of the credit and whether a credit contract, as defined by the Code, had been formed. Further, the court examined whether the transactions constituted a series or combination of contracts and arrangements, and crucially, whether the credit provider knew or had reason to believe that the borrower declarations as to the purpose of the credit were false.

The Court of Appeal, comprising Giles JA, Tobias JA, and Campbell JA, reasoned that the Tribunal did possess jurisdiction to hear the applications. The court found that the purpose of the Consumer Credit Code was to protect consumers, and its application depended on the actual use of the credit, not solely on declarations made by borrowers. The court was able to make findings of fact to determine the true purpose of the credit. In matter CA No. 40140/07, the appeal was dismissed, with each party bearing their own costs, except for the costs associated with a specific notice of motion. In matter CA No. 30023/08, the court declared that the Tribunal had jurisdiction to hear the specified applications, quashed the Tribunal's previous decision to the contrary, and ordered that the Tribunal proceed to hear the applications. Costs orders were made in favour of the plaintiffs in this second matter.

Orders

Orders of the court

In matter CA No. 40140/07 (a) Appeal dismissed; (b) Subject to the orders made in relation to matter CA No. 30023/08, below, each party to pay their or its own costs of the appeal; (c) Order that the appellants pay the costs of the first and second respondents of the Notice of Motion filed on 18 February 2008. In matter CA No. 30023/08 (a) Declare that the Consumer Trader & Tenancy Tribunal (the Tribunal) has jurisdiction to hear applications COM04/52375, COM04/55473, COM04/55476 and COM05/32128 (the said applications); (b) Order that the decision of the Tribunal dated 2 May 2006 whereby it determined that it did not have jurisdiction to hear the said applications be quashed; (c) Order that the Tribunal hear the said applications; (d) Order that the first and second defendants pay the plaintiffs' costs of the summons filed on 7 March 2008 which are to include the costs of the written submissions filed in CA 40140/07 and one half of the costs of the hearing before the Court of Appeal on 5 February 2008; (e) Order that the appellants pay the costs the first and second defendant with respect to the hearing before the Court of Appeal on 6 March 2008.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150
HEARING DATE(S):	5 February 2008
JUDGMENT DATE:	26 June 2008
JUDGMENT OF:	Giles JA at 1; Tobias JA at 8; Campbell JA at 198
DECISION:	In matter CA No. 40140/07 (a) Appeal dismissed; (b) Subject to the orders made in relation to matter CA No. 30023/08, below, each party to pay their or its own costs of the appeal; (c) Order that the appellants pay the costs of the first and second respondents of the Notice of Motion filed on 18 February 2008. In matter CA No. 30023/08 (a) Declare that the Consumer Trader & Tenancy Tribunal (the Tribunal) has jurisdiction to hear applications COM04/52375, COM04/55473, COM04/55476 and COM05/32128 (the said applications); (b) Order that the decision of the Tribunal dated 2 May 2006 whereby it determined that it did not have jurisdiction to hear the said applications be quashed; (c) Order that the Tribunal hear the said applications; (d) Order that the first and second defendants pay the plaintiffs’ costs of the summons filed on 7 March 2008 which are to include the costs of the written submissions filed in CA 40140/07 and one half of the costs of the hearing before the Court of Appeal on 5 February 2008; (e) Order that the appellants pay the costs the first and second defendant with respect to the hearing before the Court of Appeal on 6 March 2008.
CATCHWORDS:	Consumer Credit Code – Appeal from Consumer, Trader and Tenancy Tribunal – Prerogative relief – Whether Tribunal had jurisdiction to hear application – Court of Appeal able to make findings of fact – Purpose of Code – Whether Code applied to transactions – Whether provision of credit for personal, domestic or household purposes – Whether provision of credit for business or investment purposes – Whether borrower declarations as to purpose valid – Whether there was a credit contract – When credit contract was formed – Series or combination of contracts, or contracts and arrangements – Whether credit provider or other relevant person knew or had reason to believe borrower declarations were false
LEGISLATION CITED:	Commercial Tribunal Act 1984 Consumer, Trader & Tenancy Tribunal Act 2001 (NSW) Consumer Credit (New South Wales) Act 1995 (NSW) Consumer Credit (New South Wales) Code 1995 (NSW) Consumer Credit Regulations 1995 (NSW) Legal Profession Act 1987 (NSW) Medical Practice Act 1992 (NSW) Oaths Act 1900 (NSW) Supreme Court Act 1970 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Canham v Australian Guarantee Corporation Ltd (1990) 20 ALD 361; (1990) ASC 55-984 Chapman v Taylor [2004] NSWCA 456 Codelfa Construction Pty Ltd v State Rail Authority NSW [1982] HCA 24(1982) 149 CLR 337 Dale v Nicholls Construction Pty Ltd [2003] QDC 453 Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 Grygiel v Baine [2005] NSWCA 218 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Jonsson v Arkway Pty Ltd [2003] NSWSC 815;