Brown v Brook

[1971] HCA 30

HIGH COURT OF AUSTRALIA

Barwick C.J., Menzies, Windeyer, Owen and Walsh JJ.

BROWN v. BROOK

(1971) 125 CLR 275

28 July 1971

Money Lenders (Q.)—Statutes

Money Lenders (Q.)—Registration—Definition—Person who in an isolated transaction lends money at rate exceeding specified rate—Not carrying on business or holding himself out as money lender—Whether obliged to register—Money Lenders Act 1916-1969 (Q.), ss. 3 "Money lender", 6 (1). Statutes—Interpretation—Special definition of term—Subject to contrary intention in statute—Substantive section referring to term "as defined by this Act"—Contrary intention—Implication—Money Lenders Act 1916-1969 (Q.), s. 3. "Money lender", 6 (1).

Decisions

July 28.
The following written judgments were delivered:-
BARWICK C.J. In this appeal I have had the advantage of reading the reasons for judgment prepared by my brother Owen. He there sets out the relevant facts and the history of the case. He also quotes the relevant section of the Money Lenders Act 1916-1969 (Q.) (the Act) and refers to such of the authorities as are relevant. I fully agree with what my brother has written and with the conclusion at which he has arrived. (at p274)

2. It seems to me quite plain that s. 6(1) of the Act cannot be made to apply to a lender who is a money lender as defined by the Act only because the rate of interest which has been charged by him upon a loan was above the stipulated rate. The sub-section requires the money lender to whom it applies to take steps with respect to his business of money lending. If he has no such business the command just cannot be taken to have been directed to him. I agree with the conclusions expressed in the cases to which my brother Owen refers. They were, in my opinion, as in his, rightly decided. (at p276)

3. Such problems as the case involves derive entirely from the description in s. 6 of the persons to whom it is to apply as money lenders "as defined by this Act". The definition includes as well as those who carry on or advertise the carrying on of the business of a money lender those who lend money above the stipulated rate. Having regard to the accepted view that a single such transaction satisfies the statutory expression, "who lends", (a view which but for earlier decisions I would be inclined to doubt) there was material before the primary judge on which it could be held that the respondent was a money lender as thus defined. He had lent money on an occasion prior to the instant transaction at above the specified rate of interest: but he did not carry on the business of money lending or advertise his intention of so doing. (at p277)

4. Had s. 6(1) not contained the words "as defined by this Act" there could be no question in my mind that the section provided a clear context which would indicate that it was not intended that the section should apply to a person who did not carry on the business of money lending. That would clearly be a contrary indication within the meaning of s. 3 of the Act. The meaning assigned by such a definition section is no more than, and perhaps even less than, a prima facie meaning always yielding to a context which betrays an intention to use the defined word in a different sense, with a less extensive or perhaps a more restrictive meaning. A definition section is not intended itself to express the parliamentary intention in an enacting provision unless that provision itself does not indicate the intention with which the defined word is there used. (at p277)

5. Here in the enacting section the word "money lender" is expressly said to bear the meaning "as defined by this Act". It is said that this necessarily means that a money lender within the definition who does not carry on or does not advertise the carrying on of the business of money lending is bound to observe the terms of the section, in this case, particularly sub-s. (1). But so to say is, in my opinion, to fail to read the enacting section as a whole before attempting the construction of its parts. The words "as defined by this Act" are as much in need of construction as any other part of the section. Once it is clear, as to my mind it is to demonstration, that the intention of the section is to compel money lenders who carry on the business of money lending to register their business addresses and to conduct their business at such addresses and in the name in which the business is registered as being carried on, the suggested construction of the words "as defined" must be seen to be erroneous. The introduction of those words into the section cannot, in my opinion, be interpreted as an expression of intention that the Parliament intended the defined meaning to apply irrespective of a context which clearly indicated its own intention that it should not do so. In other words, in my opinion, in this section the insertion of the words "as defined by this Act" do no more than reiterate the whole of the definition clause in so far as it purports to define the term money lender, so that the section will apply to such persons falling within the defined description to whom s. 6 in its terms properly construed is intended to apply. In other words, in my opinion, the whole of the relevant part of the definition section is to be regarded including its critical opening words. This result is conveniently expressed, in my opinion, by saying that the context governs what part, if any, of the defined meaning is to apply in the enacting provisions; or by the common expression that the defined meaning must yield to context. (at p278)

6. It seems to me abundantly clear that the purpose of including in the definition of a money lender the lender who charges above the stated rate of interest on a loan is to bring that lender within the purview of s. 4 of the Act which enables the re-opening of a transaction by reduction of the amount of interest payable. In this connexion I agree with what was said by Philp J. in the passage which my brother Owen cites from Arnall v. Gray and Doneley (1941) QSR 122 . (at p278)

7. We were referred to the terms of s. 4c(6) inserted in the Act in 1962. I am unable to find any relevance of this section to this case once it is decided that the respondent did not come under an obligation to register in accordance with s. 6(1). I am not sure of the assumption of law which the draftsman of this provision had in mind. If it was that the law was not as it had been laid down by the Queensland cases to which reference has been made he was simply in error and, there being in the section no amendment of the law as so laid down, his error is of no importance. (at p278)

8. In my opinion, the appeal should be dismissed. (at p278)

MENZIES J. Section 6 of the Money Lenders Act of Queensland has engaged the attention of courts, including this Court, on a number of occasions. Now, for the first time, this Court is called upon to decide whether it imposes an obligation to register upon a person who is a money lender as defined in the Act merely because he has, on an earlier occasion but otherwise than in the course of carrying on a money lending business, lent money at a rate exceeding the specified rate. (at p279)

2. I do not find myself able to dispose of this question by saying that, when s. 6 speaks of "A money lender as defined by this Act", it does not refer to a person who is a money lender simply because he has lent money at a rate exceeding the specified rate. It is true that the definition of "money lender" in s. 3 of the Act is prefaced by the words "unless the context otherwise indicates", but what s. 6(1) does is to take up the words of the definition from s. 3 and to provide that a money lender "as defined by this Act" shall be registered. The definition must therefore be read into s. 6(1). I find an insuperable difficulty in reading "money lender as defined" as meaning "money lender otherwise than as defined". It would, of course, be different if the words "money lender as defined by this Act" had simply read "money lender" because then it could, no doubt, properly be said that the context of s. 6 indicates an intention that the definition should not apply. It is to that context that I now turn. (at p279)

3. When regard is had to the actual requirements of s. 6 it is apparent that difficulty arises in applying those requirements to a case where a money lender does not carry on the business of money lending. Thus the primary requirement is that a money lender should register himself "with the address . . . at which he carries on his business of money-lending". The second obligation is to "carry on the money-lending business in his registered name . . . and at his registered address . . . and at no other address". (at p279)

4. In a series of cases decided by the Supreme Court of Queensland over a period of forty years, including the decision now under appeal (1971) QWN 25 , these provisions have been regarded as showing that only a person who carries on the business of a money lender can register and that a person who has become a money lender by reason of isolated transactions of loan is not obliged to register. Some doubt was, I think, cast upon the correctness of this stand by the observations of Dixon C.J., agreed with by McTiernan J., in Mayfair Trading Co. Pty. Ltd. v. Dreyer (1958) 101 CLR 428, at p 448 , dealing with a similar provision in the legislation of Western Australia, but in J.B. Witts Pty. Ltd. v. Wholesalers (Australia) Pty. Ltd. (1963) 109 CLR 322 , two members of this Court nevertheless expressed the opinion that the Queensland cases had been rightly decided. In the circumstances I am disposed to think that the meaning of the section should now be regarded as settled and that any review of that meaning should now be left to the legislature. The community is, I think, entitled to rely upon, and to order its affairs upon, an interpretation of a statute settled by long-standing decisions. (at p280)

5. I would, therefore, dismiss this appeal. (at p280)

WINDEYER J. The statutes of the Australian States concerning money-lenders are filled with difficulties. Although not uniform in verbiage, they have presented similar problems of interpretation in a number of cases in recent times: and varying legislative amendments have added new complexities. All this is familiar enough to lawyers who have been concerned with these matters and to readers of commentaries in legal periodicals, including articles in the Australian Law Journal in 1961. (at p280)

2. The questions in this case arise from the Queensland statutes that are collectively called the Money Lenders Act 1916-1969. These I shall refer to as the Act. It requires that money-lenders as defined be registered annually. It prescribes too, matters that must be observed in transactions entered into by a money-lender in the course of his business and the manner in which his money-lending contracts must be made. These requirements follow, in a general way, the common pattern of laws designed originally to protect indigent individuals from avaricious money-lenders. Any failure of a money-lender to observe the statutory requirements made his money-lending transactions unlawful. He could not maintain any form of action to recover money he had lent or to enforce any security he had obtained. That was a consequence of the application of general principles to the specific requirements and prohibitions of the statutes: Cornelius v. Phillips (1918) AC 199 . In England these disabilities were only fastened upon persons whom it is convenient, using Lord Atkinson's phrase (1918) AC, at p 214 , to call "professional money-lenders", that is persons who carry on money-lending as their business. But in the legislation of the Australian States a more extensive meaning is given to the term "money-lender". As a result borrowers have been enabled to assert unmeritorious defences and to escape from obligations they had accepted under fair and honest commercial transactions. The decision of this Court in Mayfair Trading Co. Pty. Ltd. v. Dreyer (1958) 101 CLR 428 shewed the way for them. The end to which it could lead was seen in two decisions in the Supreme Court of New South Wales: Tozer Kemsley &Millbourn (A/asia) Pty. Ltd. v. Point (1960) 78 WN(NSW) 250 ; White v. Pacific Acceptance Corporation Ltd. (1961) 78 WN (NSW) 559 . Thereupon the legislature of New South Wales, by Act No. 50 of 1961, added s. 30A to the Money-lenders and Infants Loans Act, 1941-1948, the relevant statute in that State. The new provision was copied in Queensland in the next year by the addition of s. 4c to the Act there. The result of these amendments was that transactions by moneylenders which did not comply in all respects with statutory requirements were no longer irredeemably void, and money lent in contravention of those requirements was not absolutely irrecoverable. Instead, in proceedings relating to a loan or money-lending transaction a court might in its discretion make such order as it should consider just and equitable. Considerations that govern the exercise of this discretion were adverted to in the judgment of Walsh J. in D. &J. Fowler (Australia) Ltd. v. Bence (1963) SR (NSW) 769 . An example of the use and operation of the section may be seen in the judgment of Street J. in Cody &Willis Pty. Ltd. v. Truman (1967) 87 WN (Pt 1) (NSW) 519 . In the view I take of this case it is not necessary that I consider in any detail the corresponding provision, s. 4c of the Queensland Act, except for one aspect of it, s. 4c (6), to which I shall come later. (at p281)

3. I need not repeat the facts. The case proceeded in the Supreme Court on the basis that the plaintiff, the present respondent, did not carry on business as a money-lender: but that on one or two occasions before he lent to the defendants, the appellants, the money that he has now sued to recover, he had lent money to acquaintances at rates of interest exceeding eight per centum per annum. I put aside some procedural questions that were raised in the argument and go now straight to the main contention of the appellants. Shortly stated the proposition is that the definition of "money-lender" in s. 3 of the Act governs the operation of s. 6, with the result that anyone who answers in any way to the statutory description of a money-lender must register himself as such; and that if he is not so registered any loan he makes is a void transaction and the borrower cannot be compelled to repay the money he was lent. (at p281)

4. The starting point of this proposition is the definition of "money-lender" in the Queensland Act. It is as follows:

"In this Act, unless the context otherwise indicates, the following terms have the meanings set against them respectively, that is to say:- . . . . . . . . . . . . . . . 'Money-lender' includes every person whose business is that of money-lending, or who advertises or announces himself or holds himself out in any way as carrying on that business, or who lends money at a rate of interest exceeding eight pounds per centum per annum: the term does not include . . ." (persons of various kinds specifically described in detail, such as pawnbrokers, friendly societies, bankers and others: these I need not set out).

I interpolate here that by Act No. 15 of 1969, assented to on 16th December 1969, "ten per centum per annum" was substituted for "eight per centum per annum" wherever occurring in the definition. (at p282)

5. There are several things to be observed in this definition. First, it is to yield to any contrary indication from context. Secondly, the term "money-lender" has in the Act "the meaning" set against it; yet the manner of the definition is not to give the term a connotation, but to define it by reference to denotation. It "includes" three different kinds of persons each generically described, but it "does not include" others specifically described who might otherwise be within one or other of the inclusive descriptions. Notwithstanding that the primary meaning of the word "includes" is not exhaustive, the effect of this definition is, I think, to state fully the denotation of the term: see Y.Z. Finance Co. Pty. Ltd. v. Cummings (1964) 109 CLR 395 , in particular the comment of Kitto J. (1964) 109 CLR, at pp 401-402 on Lord Watson's well-known statement in Dilworth v. Commissioner of Stamps (1899) AC 99, at pp 105-106 . Thirdly, and most importantly, this definition departs from the prototype definition in s. 6 of the Money Lenders Act, 1900 (U.K.) in that it is not confined to persons whose business is money-lending or who hold themselves out as carrying on that business. It embraces also "every person who lends money at a rate of interest exceeding eight pounds per centum per annum". This provision seems to have appeared first in the Money Lenders Act 1906 (Vict.). (at p282)

6. On a first reading the words, "a person who lends money", would appear to describe a person who makes a practice of doing so. The relative clause is a defining one. It limits the application of the antecedent, "person", to persons who lend money at the specified rate. If it were not for authority, I would have read this as descriptive of a characteristic or quality of a person, not as referring to a particular action by him. I would not have read the words "who lends" as an elliptical equivalent of "who shall lend" or "should have lent". I would have thought that "a person who lends money" should be understood as like a description of a man as a person who smokes cigars, or who buys books, or who plays the flute, or who bets on the races, or who goes swimming, and so forth. Such descriptions would not ordinarily be thought satisfied by a smoking of one cigar, buying one book, playing a tune on one occasion, making one bet, and going once for a swim. I would have thought that the extension of the statutory denotation of money-lender was made to catch persons of whom it could be said that, although money-lending was not their ordinary business, they engaged in money-lending with some degree of regularity and repetition. However, there is a heavy weight of authoritative opinion that if a man lends money at more than the specified rate he at once becomes a money-lender within the meaning of the Act. That is said to be the result in Western Australia and Queensland - but not New South Wales, where the relevant words are not simply "who lends money", but "who from time to time lends money". This view, that an isolated transaction at a sufficiently high rate of interest makes a man a money-lender for the purposes of the law, is traceable to the judgment of Isaacs J. in Cloverdell Lumber Co. Pty. Ltd. v. Abbott (1924) 34 CLR 122, at p 139 . That was a dissenting judgment on the main issue in that case; and on this topic the other members of the Court (Knox C.J. and Gavan Duffy J.) said that they expressed no opinion. It seems to me that Isaacs J. made an assumption as to the mischief that adding these words to the definition was intended to remedy, and then, on that assumption of the legislative purpose, he gave them a meaning that to my mind they do not naturally bear. However, to read them as I would have done if I were unaided, or unhampered, by judicial interpretation does, I appreciate, raise its own difficulties. I feel bound by precedent pronouncements to take the alternative view that Dixon C.J. did in the Mayfair Trading Co.'s Case where he said (1958) 101 CLR, at p 447 :

". . . the argument for the respondents was that the material words in the definition contemplated a practice or course of dealing or the like of lending at a rate of more than twelve and one-half per cent per annum. Enough has been said already to show that the argument does not accord with the view of these words which has long been judicially accepted. It gives a meaning to the words which is very indefinite and one to which it is difficult to give a ready practical application in any given case if there has been more than one loan. Further, it seems to defeat what must have been an object, if not the chief object, of the introduction of the words, namely to give the courts power to re-open transactions under s. 4 wherever a rate of interest of more than twelve and one-half per cent per annum has been charged." (at p283)

7. I therefore take it as established doctrine that a person who in Queensland on any occasion lent money at a rate of interest exceeding 8 per cent per annum (or since 1969 10 per cent) became a money-lender for the purposes of the Act; and that any subsequent loans by him, whatever the rate of interest and to whomsoever they were made, were loans by a money-lender. The result of this is surely startling as, until the amendment Act of 1962 brought s. 4c(6) into the law, anyone who by way of investment took up, say, debentures in a public company or invested his savings on, say, second mortgage, at an interest rate of more than 8 per cent became a money-lender in respect of any loans that he should thereafter make to anyone at any rate of interest and at any time however distant. (at p284)

8. I accept that: but it does not follow that every reference in the Act to a money-lender makes all its provisions applicable to such a person. The underlying policy and purpose of the Parliament in bringing such persons within the purview of the Act is not obvious. Perhaps, as Dixon C.J. suggested in the case I have mentioned, it was to prevent anyone but a registered money-lender charging interest upon a loan at more than 8 per cent. More convincing perhaps is his Honour's further suggestion in the same case that one object, if not the chief object, of the introduction of the words was to give the courts power to reopen loan transactions wherever interest at more than the stipulated rate was charged. In this his Honour's statement plainly echoes what Philp J. had earlier said in Arnall v. Gray and Doneley (1941) QSR 122, at p 125 :

"So far as I can see, the primary, if not the only, reason for including in the definition of 'money-lender' a person who makes an isolated loan is to make the loan transaction when it has been completed reviewable under s. 4."

But that a particular transaction can be reopened and reviewed by a court as a money-lender's transaction does not necessarily mean that moneys subsequently lent in any other transactions is irrecoverable because in the meantime the lender did not become and remain a registered money-lender pursuant to s. 6 of the Act. Yet that, as I understood it, is what was said for the appellants. It is not necessary, for the consideration of this proposition, to decide whether a person who becomes a money-lender within the meaning of the Act by his lending money at more than 8 (now 10) per cent per annum is a money-lender pro hac vice or only in respect of later loans that he makes. In the present case that question does not arise, and I say nothing about it. (at p284)

9. The question for us comes to this: whether a person who became a money-lender by statutory description was thereupon obliged by s. 6(1)(a) of the Act to register himself as a money-lender and to comply with other provisions of that section. I mention again the case of a private investor who takes up debentures issued by a public company. Today money-lenders do not publicly advertise or announce their readiness to lend as frequently as do corporations offering terms on which they will borrow. However, there is no need to look upon the consequences of the Act as a guide to its meaning, for the matter is to my mind well covered by decisions of the Supreme Court of Queensland and of this Court, which I consider we should follow. I refer to Baker v. Pryor (1932) QSR 66 ; Buchanan v. Kiley (1948) QSR 274 ; and to J.B. Witts Pty. Ltd. v. Wholesalers (Australia) Pty. Ltd. (1963) 109 CLR 322 . That means I would dismiss the appeal and I need say no more. However, as counsel for the appellants founded his argument on the words in s. 6(1), "a money-lender as defined by this Act shall", I shall add a few remarks on the effect of that phrase. (at p285)

10. The argument was that it imports each part of the definition of money-lender into s. 6(1) and precludes it being said that there "the context otherwise indicates". I think that is too facile an answer, and that it mistakes the problem. The question, as I see it, is not whether the definition of money-lending in s. 3 is in s. 6(1) overborn by the context, but rather to which of the kinds of money-lenders as so defined s. 6(1) applies. I do not read it as applying to a person whose business is not that of a money-lender or who does not advertise or announce himself as carrying on that business. I say that simply because it is impossible to relate the requirements of the subsection to such a person. I accept it as referring to money-lenders "as defined". But that does not mean that it must be regarded as applicable to each of the kinds of persons that the term "money-lender" is defined as denoting. The subsection is clearly applicable to those who carry on the business of money-lenders or announce themselves as doing so. It is equally clearly not applicable to those that do not. That means only that, so far as the latter are concerned, s. 6(1) is inoperative because irrelevant. In this sense it can be said that the definition yields to the context: but I prefer to base my conclusion rather on the words of Lord Denman C.J. in Reg. v. Justices of Cambridgeshire (1838) 7 Ad &E 480, at p 491 (112 ER 551, at p 555) :

"We apprehend that an interpretation clause is not to receive so rigid a construction; that it is not to be taken as substituting one set of words for another, nor as strictly defining what the meaning of a word must be under all circumstances. We rather think that it merely declares what persons may be comprehended within that term, where the circumstances require that they should." (at p286)

11. For the reasons that I have given, I would dismiss this appeal. If I should be wrong in thinking that the respondent was not a person who was required by s. 6(1) to register himself as a money-lender, it would be necessary to go on to consider the effect of s. 4c(6) enacted in 1962. It is as follows:

"(6) Money-lending transactions by money-lenders not carrying on business as such. Notwithstanding anything in this Act, any neglect or failure whether before or after the commencement of 'The Money Lenders Acts Amendment Act of 1962', to comply with or observe or perform any of the requirements and provisions of this Act by a money-lender who is not a person whose business is that of money-lending or who does not advertise or announce himself or hold himself out in any way as carrying on that business, does not operate to avoid the obligation on the borrower or a guarantor of the loan or transaction to repay to the lender or any assignee of the lender who is not a person whose business is that of money-lending, or who does not advertise or announce himself or hold himself out in any way as carrying on that business, the amount of the principal of the loan. Save in so far as is necessary to give effect to this subsection, nothing in this subsection affects the operation of subsections (2) to (5) (both inclusive) of this section." (at p286)

12. This saving provision seems to have been enacted by Parliament on an assumption that the law was not as stated in the decisions of the Supreme Court that I have mentioned and that these must be taken to have been overruled by the Mayfair Trading Co.'s Case (1958) 101 CLR 428 . I do not think that that is so, for reasons that I have given. But the subsection is not to be ignored. It provides an answer to the proposition that the Parliament of Queensland, when it had the Act before it for amendment, must have endorsed the interpretations that courts had put upon it except to the extent that it made amendments. That is in any event a most unreliable proposition today, even in the case of a consolidating Act, for the reasons that Dixon C.J. gave in Reg. v. Reynhoudt (1962) 107 CLR 381, at p 388 . Leaving aside procedural difficulties that were raised in the argument for the appellants on the basis that this case began in an application for summary judgment, I go to the substance of this appeal. If it should not be altogether dismissed, the question would be what order the Supreme Court ought to have made having regard to s. 4c(6). By virtue of that provision the respondent was entitled to recover the amount of the principal of the loan, and to have its entitlement to interest determined pursuant to s. 4c(2). The respondent has an indisputable right to recover at all events the principal amount: and a judgment to that effect at least should I apprehend have been given on the summons for judgment. However, I consider that the judgment as entered was correct and that the appeal should be dismissed. (at p287)

OWEN J. The plaintiff in this action, who is the respondent in the appeal, issued a writ against the defendants claiming the repayment of money lent together with certain interest. In his statement of claim the plaintiff alleged that on or about 10th October 1969 he had lent the defendants an amount of $18,000 repayable on 1st March 1970 with interest at the rate of 15 per cent per annum. He alleged further that the defendants had failed to repay the loan and some of the interest due thereon. The defendants entered an appearance to the writ and in August 1970 delivered their statement of defence. It admitted the making of the loan and the fact that it had not been repaid and went on to allege that "the agreement or contract on which the plaintiff sues is governed by the laws of the State of Queensland, and in particular by the Money Lenders Act 1916-1969" and that the plaintiff was a "money-lender" as defined in these Acts in that he had lent money at a rate of interest exceeding $8 per cent per annum. It alleged also that on or about 27th October 1967 the plaintiff had lent $7,000 to the first defendant or to a named company at an interest rate of $20 per cent per annum; that the plaintiff was not at any time registered as a "money-lender" and that for this reason he could not successfully maintain his claim. The plaintiff then sought an order for summary judgment upon an affidavit stating, inter alia, that he believed that there was no defence to the action. The matter came before the Acting Chief Justice and the plaintiff was cross-examined on his affidavit. In the course of that cross-examination he denied that in October 1967 he had made a loan of $7,000 as alleged in the statement of defence. That transaction, he said, was not one of loan. The amount alleged to have been lent was his contribution to a joint venture of buying and selling cattle upon which he and the defendant had embarked. He said, however, that on an occasion in 1967 he had lent the wife of one of the defendants $5,000 or $7,000 for a period of three weeks; that he had told the borrower that he wanted no interest on it but that in fact the latter had insisted on paying interest at the rate of 9 per cent per annum for the period of the loan. The learned Acting Chief Justice ordered that judgment be entered for the plaintiff for $18,675, that being the amount endorsed on the writ. His Honour gave no reason for his decision but I think it is plain that he dealt with the matter in a summary way because he was of opinion that authorities which bound him had decided that the statement of defence did not disclose any answer to the plaintiff's claim. (at p288)

2. An appeal was made to the Full Supreme Court and was dismissed. In the course of their judgment their Honours said (1971) QWN 25, at p 59 :

"Notwithstanding that there was matter in respect of which there was a contest of fact on the face of the record, we were asked to consider the matter on the basis that three transactions had in fact taken place, for the purpose of economy of proceedings."

They went on to say:

"The central question is, accepting the three transactions, do they constitute the respondent as a money-lender who was obliged to register?"

This I read as meaning that on the assumption that there were two transactions of loan prior to the one on which the action was based, the question was whether the plaintiff was a "money-lender" who was bound to register under s. 6(1) of the Acts. For the purposes of the case I am prepared to assume without deciding that if he was bound to register, his failure to do so prevented him from recovering the money lent and interest thereon. (at p288)

3. At all relevant times s. 3 of the Money Lenders Act of Queensland provided that "unless the context otherwise indicates", the term "Money-lender" includes "every person whose business is that of money-lending, or who advertises or announces himself or holds himself out in any way as carrying on that business, or who lends money at a rate of interest exceeding eight pounds per centum per annum". Then follow certain exceptions which are not material for present purposes. No suggestion was or is made that the plaintiff had at any time carried on the business of money-lending or that he had advertised or announced himself or held himself out in any way as carrying on that business. The only allegation was that he came within the definition because he had earlier lent money at a rate of interest exceeding 8 per cent per annum. (at p288)

4. Section 6(1) provides that:

"A money-lender as defined by this Act shall (a) Register himself as a money-lender in accordance with
this Act, under his own and usual trade name (if any) and in no other name, and with the address, or all the addresses if more than one, at which he carries on his business of money-lender; and

(b) Carry on the money-lending business in his registered name and in no other name and under no other description, and at his registered address or addresses and at no other address; and

(c) Not enter into any agreement in the course of his business as a money-lender with respect to the advance and repayment of money, or take any security for money in the course of his business as a money-lender, otherwise than in his registered name; and

(d) On reasonable request and on tender of a reasonable sum for expenses, furnish the borrower with a copy of any document relating to the loan or any security therefor; and

(e) When selling, assigning, transferring, or assuring any debt, promissory note, bill of exchange, chose in action, or security taken or received by him in his business as a money-lender, give to the purchaser, assignee, or transferee full particulars in writing of the transaction in connection with the same."

In J.B. Witts Pty. Ltd. v. Wholesalers (Australia) Pty. Ltd. (1963) 109 CLR 322 I expressed the opinion that s. 6(1) had no application to a person who became a "money-lender" merely because he had lent money at a rate of interest exceeding 8 per cent. Taylor J., I think, took the same view. In reaching that conclusion I was of opinion as was Taylor J. - that the decisions to that effect of the Queensland Supreme Court in Baker v. Pryor (1932) QSR 66 and Buchanan v. Kiley (1948) QSR 274 were correct. I adhere to that view. It is true that in J. B. Witts Pty. Ltd. v. Wholesalers (Australia) Pty. Ltd. (1963) 109 CLR 322 the loan transaction upon which the plaintiff sued was not preceded by any earlier loan, but that, I think, does not affect the position since I am of opinion that s. 6(1) is not designed to include a person who is included by s. 3 in the term "money-lender" but who does not carry on business as such. I should add that I agree with Philp J. in Arnall v. Gray and Doneley, where his Honour said (1941) QSR 122, at p 125 :
< "So far as I can see, the primary, if not the only, reason for including in the definition of 'money lender' a person who makes an isolated loan is to make the loan transaction when it
has been completed reviewable under s. 4."
In my opinion the Full Supreme Court rightly dismissed the appeal to it in the present case and this appeal should also be dismissed. (at p289)

WALSH J. This appeal raises a question which was regarded by the Full Court of the Supreme Court of Queensland, from whose decision the appeal is brought, as governed by earlier decisions of that Court which ought to be followed. The question concerns the operation of s. 6(1)(a) of the Money Lenders Act 1916-1969 (Q.) (the Act). The cases upon which the Full Court based its judgment were Baker v. Pryor (1932) QSR 66 and Buchanan v. Kiley (1948) QSR 274 . Reference was made also to Arnall v. Gray and Doneley (1941) QSR 122 . (at p290)

2. In Baker v. Pryor (1932) QSR 66 the Court was concerned with the question whether a person who lent money on one occasion only, at a rate exceeding the rate specified in the definition of "Money-lender" in s. 3 of the Act, was required to register himself as a money-lender and was precluded, if not registered, from enforcing a security taken by him in that transaction. In Buchanan v. Kiley (2) the facts were different in that there were numerous transactions, antecedent to that out of which the action arose, in which money was lent at a rate exceeding the specified rate. In the cases in Queensland that difference has not been regarded as leading to a different result with respect to the obligation to register. The view has been accepted that the requirement of registration imposed by s. 6(1) of the Act is not imposed upon those who lend money at a rate of interest in excess of the specified rate, whether once only or more than once, but who do not carry on, or intend to carry on, the business of money-lending. In Baker v. Pryor (1), where the Court was concerned with one isolated transaction out of which the action arose, the reasons given for holding that there was no obligation to register included the statement of R.J. Douglas J. (4), that "it was never contemplated that anyone who was not carrying on the business of a money lender is obliged to register" and the statement by E. A. Douglas J., (1932) QSR, at p 76 : "A person who occasionally lends money, but not as part of a business of money-lending, is not required to be registered." (at p290)

3. In Buchanan v. Kiley (1948) QSR 274 it was argued that Baker v. Pryor (1932) QSR 66 had been affected by amendments of the Act and of the Regulations made under it. The argument was rejected. The Court held that the law was still the same as it had been declared to be in Baker v. Pryor (1932) QSR 66 and that only those persons who carried on business as money-lenders were required to register. (at p290)

4. The same conclusion was reached in relation to the Money-lenders and Infants Loans Act, 1941-1948 (N.S.W.) in Hyde v. Sullivan (1956) 56 SR (NSW) 113 , in which the court approved the reasoning in the cases of Baker v. Pryor (1932) QSR 66 and Buchanan v. Kiley (1948) QSR 274 . (at p291)

5. In Mayfair Trading Co. Pty. Ltd. v. Dreyer (1958) 101 CLR 428 , those cases were mentioned by Dixon C.J. (1958) 101 CLR, at pp 445-446 and by Taylor J. (6), but it was not necessary in that case to consider whether the earlier cases were correctly decided and no definite opinion about them was stated. However, Dixon C.J. made an observation from which the appellants in this case sought to obtain support for the contention that the respondent was bound by s. 6 of the Act to register himself as a money-lender. Speaking of the Western Australian legislation, his Honour referred to provisions in it which seemed inappropriate for the registration as a money-lender of a man who did not carry on the business of money-lending. His Honour went on to say (1958) 101 CLR, at p 448 : "The better view perhaps is that the machinery or procedure must yield to the substantial intention of the main provisions." But as Taylor J. pointed out subsequently in J.B. Witts Pty. Ltd. v. Wholesalers (Australia) Pty. Ltd. (1963) 109 CLR 322, at pp 327-328 , the point did not arise for decision in the Mayfair Trading Co. Case (1958) 101 CLR, 428 and no concluded view was there expressed. (at p291)

6. In J. B. Witts Pty. Ltd. v. Wholesalers (Australia) Pty. Ltd. (1963) 109 CLR 322 , the question was whether securities taken by a person who lent money in an isolated transaction at a rate above the rate mentioned in the definition, without having registered himself as a money-lender, were avoided by reason of his failure to register. Menzies J. considered it unnecessary to express an opinion concerning the correctness of the Queensland cases to which I have referred above. His Honour based his decision on the ground that a person, who is not a money-lender before the making of a loan at a rate of interest exceeding the specified rate and who becomes a money-lender only as a result of making such a loan, is not at the time when he makes it under any obligation imposed by the Act upon money-lenders and his right to recover the money lent cannot be affected by a failure to carry out any such obligation. Taylor J. was of opinion that s. 6(1)(a) of the Act, which is the provision which requires a money-lender to register, does not apply to a person who is a money-lender only because he lends money at a rate of interest exceeding the specified rate. He went on to say, (1963) 109 CLR, at p 328 , that even if that provision did apply to such a person, s. 6(1)(c) could have no application to him. That provision forbids a money-lender to enter into any agreement in the course of his business as a money-lender with respect to the advance and repayment of money or to take any security for money in the course of his business as a money-lender, otherwise than in his registered name. That provision has no direct relevance in this appeal, in which the appellants have not contended that in relation to the transaction upon which the respondent sued there was a breach of s. 6(1)(c). But because of the presence in s. 6(1) of par. (c) and also of par. (b), it is plain that the words "as defined by this Act" at the beginning of the subsection cannot have the effect that all persons who come within any of the descriptions contained in the definition provision are bound to observe all the requirements of the sub-section. Plainly it is only those who carry on the business of money-lending who can come under the obligations set out in pars. (b) and (c). This seems to me to weaken the force of the argument that because the words "as defined by this Act" have been included in s. (6)(1), that provision must be taken to apply to all the classes of money-lenders mentioned in the definition in s. 3, without any qualification based upon the words "unless the context otherwise indicates" which appear in s. 3. The argument is that unless this be so the words "as defined by this Act" can serve no purpose. Those words do present a difficulty. But when it is clear that most of the provisions of s. 6(1) are quite incapable of applying to a money-lender who does not carry on and does not propose to carry on business as such, it cannot be said that the purpose of including the words "as defined by this Act" must have been to ensure that all persons answering the statutory definition should be bound by the provisions of the subsection. (at p292)

7. In J. B. Witts Pty. Ltd. v. Wholesalers (Australia) Pty. Ltd. (1963) 109 CLR 322 , Owen J. held that s. 6(1) has no application to a case in which a person falls within the definition in s. 3 merely because he has made a loan at an interest rate exceeding the specified rate. (at p292)

8. In my opinion this Court should not depart now from the interpretation of s. 6(1)(a) which has long been adopted in Queensland. As Taylor J. pointed out in the J. B. Witts Pty. Ltd.'s Case (1963) 109 CLR, at p 327 , that has been accepted as the law in Queensland since 1932 and notwithstanding a number of intervening amending Acts, the legislature has not seen fit to change it. It was approved by two members of the Court which heard that case and left open by the third member of it. The distinction which made it unnecessary in the view of Menzies J. to deal with the point is, in my respectful opinion, a valid distinction. But it is not one upon which the cases in Queensland have been based. The case of Baker v. Pryor (1932) QSR 66 in which there were no antecedent money-lending transactions and the case of Buchanan v. Kiley (1948) QSR 274 transactions, were treated alike as cases in which the Act imposed no obligation to register. In my opinion, that is an acceptable interpretation of the provisions of s. 6(1)(a) and s. 6(4)(a), by which a penal consequence is attached to a failure to register. A different interpretation would not merely involve the difficulties, to which the decisions have drawn attention, concerning the manner in which the requirements laid down by the Act and by the Regulations could be satisfied by a person who made loans occasionally but did not carry on a business of money-lending and had no intention of doing so. It would raise other questions to which the Act provides no clear answer. If such a person is bound to register immediately after he makes one loan at a rate exceeding the specified rate, it may be asked whether his failure to register will affect the enforceability of any loan transaction into which he may enter at any time thereafter. It may be asked whether, if he does register, a failure to renew that registration from time to time (see s. 6(2)) affects the enforceability of any loan which he may make after the initial registration has ceased to have effect. It appears to me that the fact that the Act provides for annual renewals of registration lends support to the conclusion that it is only those who are, or who hold themselves out to be, in the business of money-lending who are bound to register themselves as money-lenders. (at p293)

9. Upon the view which I have taken it is not necessary to consider whether or not it would have been proper for the primary judge, upon an application for summary judgment, to give effect to the provisions of s. 4c of the Act (inserted therein in 1962) and in particular to give effect to sub-s. (6) of that section. If it had been held that the respondent was required to register but had failed to do so and that this failure would (apart from s. 4c) have prevented him from enforcing the contract of loan, it appears that he would nevertheless have been entitled to recover the principal of the loan, whether or not the Court, in the exercise of the discretion given to it by sub-ss. (2) and (3) of s. 4c, gave him any additional relief. Since, in my opinion, the respondent did not need to rely upon s. 4c, these matters do not require consideration. But I should state that I do not accept the argument that the enactment of s. 4c, and in particular sub-s. (6) thereof, indicates that the legislature acted upon the assumption that the decisions in the earlier Queensland cases were no longer to be accepted as correct. An occasional lender of money might fail to comply with a requrement of the Act otherwise than by failing to register and, therefore, it cannot be said that there could be no need to relieve such a person from the consequences of a failure to comply with the Act, except upon the assumption that he was bound to register. (at p294)

10. Some questions were raised in the course of argument as to the propriety of the action taken by the primary judge in making any order for the entry of summary judgment. The parties were not in complete agreement as to the facts concerning two earlier transactions in which the respondent had taken part. One of these occurred in October 1967. The appellants alleged that the respondent lent money at that time at an interest rate of twenty per cent per annum, but the respondent said in evidence that this was not a loan but an investment in a joint venture. The other transaction was in August 1967. The respondent said in evidence that he had lent money then for a short period and did not want any interest on it but the borrower's husband "insisted" on paying interest at the rate of 9 per cent. If there had been an issue between the parties as to whether the respondent was carrying on the business of money-lending, it would probably have been thought that any questions of fact which were in dispute should be resolved at a trial and not in an application for summary judgment. Again, if a view of the law had been taken which made it important to determine, in relation to each of the antecedent transactions in 1967, whether it was a loan and, if so, whether it was a loan at a rate of interest exceeding the specified rate, then, as a general rule, such questions would not be decided in a summary application if there appeared to be a genuine dispute about the facts. But upon the view of the law which the learned primary judge was bound to take because of the earlier decisions and which was accepted by the Full Court and should, in my opinion, be accepted by this Court, there was no need to resolve any of those questions of fact. The Full Court stated that it was asked to consider the matter on the basis that three transactions had in fact taken place. I understand this to mean that the Court was asked to consider the case on the basis that there were two antecedent transactions as well as the transaction out of which the action arose and that all of these were loans at above the specified rate of interest. The effect of this was that the facts were assumed to be as favourable to the case for the appellants as they could ever be found to be at a trial. If on that assumption the respondent was entitled to succeed, there could be no valid objection to the making of an order for the entry of judgment in his favour. In this Court, counsel for the appellants submitted that we should deal with the matter upon the footing that there were two antecedent transactions of loans. In the circumstances of this case, I think that we may properly consider it on that footing. In general, we should not be asked to decide cases in which relevant facts have not been ascertained by agreement or by findings. But here the facts of the transaction upon which the action was brought are not in dispute. They are such that prima facie the respondent was entitled to judgment for the repayment of the money lent and for interest. The appellants raised a defence based upon the Act. They put forward certain facts to support that defence. In part, the respondent disputed those facts and he disclosed other facts upon which the appellants sought to rely. The only matters of fact not fully resolved relate to the claim of the appellants that, before the transaction upon which they were sued, the respondent had become a money-lender within the statutory definition, either by making one loan or by making two loans at a rate of interest greater than the specified rate. If they succeeded in establishing that he made two such loans they would still be left, in my opinion, with no defence to the action. The result would be the same if they should establish that he made one such antecedent loan or if they failed to establish that he made any. In those circumstances it is proper, in my opinion, to give effect to the conclusion that the respondent is entitled to judgment. There is no procedural ground for interference with the order which the Full Court made. (at p295)

11. In my opinion the appeal should be dismissed. (at p295)

Orders

Appeal dismissed with costs.