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Bell v Eleventh Klingon

Bell v Eleventh Klingon

Case [2025] VSCA 183 14 August 2025

Appeal

Breach of Contract

Unconscionable Conduct

Compensatory Damages

Civil Litigation & Procedure

Consumer Law

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SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCI 2025 0062
TONY MARSHALL BELL	Applicant
v
ELEVENTH KLINGON PTY LTD (ACN 007 397 551)	Respondent

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JUDGES:	WALKER and RICHARDS JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 July 2025
DATE OF JUDGMENT:	14 August 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 183
JUDGMENT APPEALED FROM:	[2025] VCC 364 (Judge Robertson)

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PRACTICE AND PROCEDURE – Appeal – Finality of settlement – Where parties resolved dispute regarding loan agreements by settlement deed with right to reinstate proceedings to enforce the deed – Applicant failed to pay instalments under settlement deed and respondent successfully sought judgment – Applicant made arguments on appeal not made below, which could have been subject of evidence – Applicant argued settlement deed and loan agreements breached Australian Consumer Law and were sham arrangements to avoid National Credit Code – Whether judge erred in construing s 13 of National Credit Code – Leave to appeal refused.

National Consumer Credit Protection Act 2009 (Cth) sch 1 (‘National Credit Code’) ss 5(1), 13(2); Competition and Consumer Act 2010 (Cth) sch 2 (‘Australian Consumer Law’) ss 21, 22, 24(1).

Coulton v Holcombe (1986) 162 CLR 1; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; Viterra Malt Pty Ltd v Cargill Australia Ltd (2023) 74 VR 1, applied.

Wigan v Edwards (1973) 1 ALR 497; Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471, considered.

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Counsel
Applicant:		Ms M J Harris
Respondent:		Mr G Lubofsky
Solicitors
Applicant:	Garland Hawthorn Brahe Lawyers
Respondent:	Meerkin & Apel

WALKER JA
RICHARDS JA:

On 27 September 2013, the applicant, Tony Bell, entered into a loan agreement with the respondent, Eleventh Klingon Pty Ltd, for $30,000 (the ‘first loan agreement’). The interest rate on the first loan agreement was three per cent per month, with default interest of 48 per cent per year (calculated daily and compounding). On 17 September 2014, Bell entered into a second loan agreement with Eleventh Klingon for $250,000 (the ‘second loan agreement’). The interest rate on the second loan agreement was three per cent per month, with default interest of three per cent per month capitalised monthly.
Bell defaulted on both loans. In March 2020, Eleventh Klingon commenced proceedings against Bell for a total of $1,606,392[1] plus interest and costs, on the basis that Bell had not repaid the amounts owing under the two loan agreements.
[1]Being $551,713.60 under the first loan agreement and $1,054,678.43 under the second loan agreement.
A mediation was conducted in December 2020, and on 21 December 2020 Bell and Eleventh Klingon executed a deed of settlement, by which they compromised the proceeding. Bell was legally represented at the mediation that led to the entry into the deed and during the drafting of the deed.
One of the terms of the deed was that Bell would pay Eleventh Klingon a total of $500,000 in certain specified instalments. Another term provided that, in the event…

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.

Continue reading Bell v Eleventh Klingon

Details

AGLC: Bell v Eleventh Klingon [2025] VSCA 183
Case: [2025] VSCA 183
Decision Date: 14 August 2025

CaseChat Overview and Summary

The applicant, Bell, appealed against the decision of Eleventh Klingon to enforce a settlement deed concerning loan agreements between the parties. The primary judge had found that Bell had failed to comply with the settlement deed and granted judgment to Eleventh Klingon. The appeal was heard by the Supreme Court of Victoria. The central issue before the court was whether the judge had erred in interpreting section 13 of the National Credit Code. Bell argued that the settlement deed and the loan agreements breached the Australian Consumer Law and were sham arrangements designed to avoid compliance with the National Credit Code. Additionally, Bell contended that the settlement deed was void because it was procured by coercion and misrepresentation.

The court considered the arguments advanced by Bell on appeal, noting that they were not raised before the primary judge. The court held that these arguments could have been the subject of evidence if properly raised at the trial. The court dismissed Bell’s claims, finding no error in the primary judge’s interpretation of section 13 of the National Credit Code. The court further held that the settlement deed was valid and enforceable, and that Bell's arguments regarding the Australian Consumer Law and the nature of the loan agreements did not provide grounds for setting aside the settlement deed. The appeal was therefore dismissed, and leave to appeal was refused.

The court's reasoning was grounded in the principles of finality of settlement agreements and the requirement for parties to adhere to the terms of a settlement deed. The court found that the primary judge had correctly applied the relevant statutory provisions and that Bell had failed to demonstrate any grounds for departing from the settlement deed. The final orders confirmed the enforcement of the settlement deed as agreed by the parties, with Eleventh Klingon to recover costs of the appeal from Bell.

Orders