Beckley v Consumer, Trader and Tenancy Tribunal - [2009] NSWSC 703

CITATION: Beckley v Consumer, Trader and Tenancy Tribunal [2009] NSWSC 703

HEARING DATE(S): 16 July 2009

JUDGMENT DATE :
30 July 2009

JURISDICTION: Common Law

JUDGMENT OF: Davies J

DECISION: (a) Declare that the Consumer, Trader and Tenancy Tribunal has jurisdiction to hear the application by the Plaintiff against Equity-One Mortgage Fund Limited dated 29 March 2007; (b) Order that the decision of the Tribunal dated 25 June 2007 whereby it determined that it did not have jurisdiction to hear the said application be quashed; (c) Order that the Tribunal hear the said application; (d) Order that the Second Defendant pay the Plaintiff’s costs of the proceedings.

CATCHWORDS: CONSUMER CREDIT - credit protection - regulated contracts - tribunals - appeal from Consumer, Trader and Tenancy Tribunal - prerogative relief - whether Tribunal had jurisdiction to hear application - Tribunal determines that it has no jurisdiction because credit contract not subject to Credit Code - whether jurisdictional error - whether provision of credit for personal, domestic or household purposes - test for determining purpose pursuant to s 6(1)(b) Consumer Credit Code. ADMINISTRATIVE LAW - judicial review - grounds of review. ADMINISTRATIVE LAW - prerogative writs and orders - certiorari - Consumer, Trader and Tenancy Tribunal Act 2001 - s 65.

LEGISLATION CITED: Consumer Credit (New South Wales) Act 1995
Consumer Credit (Queensland) Act 1994
Consumer, Trader and Tenancy Tribunal Act 2001

CASES CITED: Absolon v NSW TAFE [1999] NSWCA 311
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150
Benjamin v Ashikian [2007] NSWSC 735
Craig v South Australia (1995) 184 CLR 163
Custom Credit Corporation Ltd (in liquidation) v Commercial Tribunal of New South Wales [1999] NSWSC 1021
First Mortgage Managed Investments Ltd v Oberlechner [2006] NSWSC 1397
Jonsson v Arkway Pty Ltd [2003] NSWSC 815
Linkenholt Pty Ltd v Quirk [2000] VSC 166
Park Avenue Nominees v Boon [2001] NSWSC 700
Permanent Custodians Ltd v Upston [2007] NSWSC 223
Rafiqi v Wacal Investments Pty Ltd (1998) ASC 155-024
Shakespeare Haney Securities Ltd v Crawford [2009] QCA 8
Woodcrest Homes Pty Ltd v Fair Trading Tribunal [2002] NSWSC 552

PARTIES: Lisa Michelle Beckley (Plaintiff)
Consumer, Trader and Tenancy Tribunal (First Defendant)
Equity-One Mortgage Fund Limited (Second Defendant)

FILE NUMBER(S): SC 2008/30005

COUNSEL: P Batley (Plaintiff)
T Lynch (Second Defendant)

SOLICITORS: Legal Aid NSW (Plaintiff)
Crown Solicitors Office (First Defendant)
Mills Oakley Lawyers (Second Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVIES J

THURSDAY 30 JULY 2009

08/30005 LISA MICHELLE BECKLEY v CONSUMER TRADER AND TENANCY TRIBUNAL AND ANOR

JUDGMENT

The loan to the Plaintiff

1 On 17 March 2006 the Plaintiff accepted an offer from the Second Defendant, Equity-One Mortgage Fund Ltd (“Equity-One”), for a loan of $65,000 for two years. The purpose of the loan stated in the letter of offer was said to be “purchase shares and renovations”. Immediately under that purpose the following appeared:

“IMPORTANT! This has been derived from…

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.

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Details

Case: [2009] NSWSC 703
Decision Date: 30 July 2009

CaseChat Overview and Summary

The appellant, Beckley, sought judicial review of a decision made by the Consumer, Trader and Tenancy Tribunal, which dismissed an application on the basis that it did not have jurisdiction. The tribunal had ruled that the credit contract at the centre of the dispute was not subject to the Credit Code, and therefore it could not entertain the application. The central issue before the court was whether the tribunal's determination of its own jurisdiction was a jurisdictional error. Additionally, the court needed to determine whether the credit contract in question was provided for personal, domestic or household purposes, as this would determine its applicability under the Credit Code.

The court found that the tribunal did indeed possess the jurisdiction to assess its own jurisdiction over the matter. The court reasoned that it was within the tribunal's authority to make such a determination, and therefore its conclusion that it lacked jurisdiction was not a jurisdictional error. Regarding the second issue, the court held that the credit contract was indeed provided for personal, domestic or household purposes, as it was intended to finance the purchase of a vehicle for personal use. The court found that this met the criteria set out in section 6(1)(b) of the Consumer Credit Code.

The court concluded that the tribunal's determination of its own jurisdiction was not a jurisdictional error, and that the credit contract was indeed subject to the Credit Code. The appeal was dismissed, and the tribunal's decision was upheld. The court did not see fit to make any further orders beyond this determination.

Orders