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…

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 Brown v Brook

Details

AGLC: Brown v Brook [1971] HCA 30
Case: [1971] HCA 30
Decision Date: 28 July 1971

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Brown v Brook*. The dispute concerned the interpretation of a will and the entitlement of the respondent, Brook, to a share of the deceased's estate. The appellant, Brown, as executor of the will, contended that Brook was not entitled to any portion of the estate.

The central legal issue before the Court was whether the respondent, Brook, qualified as a "child" of the testator for the purposes of the will's distribution clause. This required the Court to determine the meaning of "child" in the context of the testator's will and whether it encompassed adopted children or children born outside of marriage, given the specific wording of the will and relevant legislative provisions.

The Court's reasoning focused on the testator's intention as expressed in the will, considering the legal framework governing adoption and illegitimacy at the time the will was made and the testator's death. The judges examined the language used by the testator and applied established principles of testamentary construction. The Court ultimately held that the term "child" in the will, when construed in light of the surrounding circumstances and applicable law, did not extend to the respondent.

Consequently, the High Court allowed the appeal, setting aside the order of the court below and ordering that the respondent was not entitled to a share of the estate.

Orders