Buurabalayji Thalanyji Aboriginal Corporation RNTBC v Hayes - [2019] WASC 50

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   BUURABALAYJI THALANYJI ABORIGINAL CORPORATION RNTBC -v- HAYES [2019] WASC 50
CORAM:   MASTER SANDERSON
HEARD:   22 JANUARY 2019
DELIVERED          :   22 JANUARY 2019
PUBLISHED           :   21 FEBRUARY 2019
FILE NO/S:   CIV 2587 of 2018
BETWEEN:   BUURABALAYJI THALANYJI ABORIGINAL CORPORATION RNTBC
Plaintiff

AND

TRUDY HAYES
Defendant

Catchwords:

Plaintiff's application for summary judgment - Turns on own facts

Legislation:

Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)
National Consumer Credit Protection Act 2009 (Cth)

Result:

Summary judgment granted

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M L Bennett
Defendant	:	In Person

Solicitors:

Plaintiff	:	Bennett + Co
Defendant	:	In Person

Case(s) referred to in decision(s):

Nil

MASTER SANDERSON:

This was the plaintiff's application for summary judgment. At the conclusion of the hearing I indicated I would enter judgment for the plaintiff and provide reasons for my doing so. These are those reasons.
The claim is very straightforward; the following relevant facts are taken from the statement of claim which was indorsed on the writ of summons filed 6 September 2018. The plaintiff is a company duly incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). It is also the Registered Native Title Body Corporate holding the determined native title on trust for the Thalanyji People.
During or about May 2017, the plaintiff and the defendant entered into a written Loan Agreement (the Agreement). The agreement anticipated the plaintiff lending the defendant an amount of $400,000 which the defendant could draw down on a monthly basis starting on 17 May 2017. Each monthly amount was to be no more than $80,000. At various dates between 8 June 2017 and 10 October 2017 the defendant made five monthly withdrawals. It is not in dispute the full $400,000 anticipated by the Agreement was advanced.
The Agreement anticipated the defendant paying interest at the rate of 2.15% per annum on a monthly basis. A default interest rate was specified of 7.15% per annum. Starting on 17 December 2017 the defendant was further required to make a principal sum repayment of $25,000 per month plus interest at the prescribed rate. The defendant defaulted under the loan. A default notice was issued and when the default was not remedied, demand was made for repayment of the loan together with interest at the default rate. The amount of the claim was $516,683.30.
At the hearing the defendant did not deny she was obliged to make repayment of the loan under the terms of the Agreement. She did not dispute the quantum of the claim. The defences she raised were separate and distinct from the obligations under the Agreement.
On 22 October 2018 the defendant filed a defence. Pursuant to pars 2.1 and 2.2 of that defence the defendant says the loan was provided 'towards personal and domestic costs' and was subject to the National Consumer Credit Protection Act 2009 (Cth) and the National Credit Code (NCC).[1]
[1] National Credit Code (NCC) as Schedule 1 to the National Consumer Credit Protection Act 2009 (Cth).
In support of its application the plaintiff relied on an affidavit of Matthew Phillip Slack sworn 25 October 2018. Appearing as attachment 'MPS 4' to that affidavit is a copy of the Agreement. Clause 4 is entitled 'Purpose'. It reads as follows:
The Borrower acknowledges and agrees that the Principal Sum must be used for the sole purpose of funding the Borrower's working capital that is reasonably necessary for the Borrower to duly and punctually comply with its operations.
Appearing as attachment 'MPS 8' to Mr Slack's affidavit is a copy of the Business Plan (the Plan) which was provided to the plaintiff by the defendant as the basis for the loan. The Plan makes it plain the defendant intended to establish a labour hire company which would supply 'qualified, semi‑skilled and skilled' employees for the mining, construction and hospitality industries. There is no suggestion that this loan was for private domestic purposes. Even if that were the case, the NCC does not in and of itself justify the defendant's failure to abide by the terms and conditions of the loan. No defence to the claim is disclosed by pars 2.1 and 2.2 of the defence.
Paragraph 2.3 of the defence claims 'the plaintiff is liable for maladministration in lending in respect of the purported loan'. It is difficult to know precisely what that sub‑paragraph means. In any event it does not provide a defence to the claim. By par 2.4 the defendant says the plaintiff has failed 'in its responsible lending obligations under the [National Credit Code]'. Having concluded the NCC does not apply I need say nothing more about this purported defence.
Paragraphs 2.5 and 2.6 claim 'the plaintiff failed to make reasonable inquiries about the defendant's financial situation' and that 'the defendant did not receive legal advice in respect of the purported loan'. These two points require some comment.
The plea by the defendant raises the issue of unconscionable conduct. The defendant does not however, in her various affidavits, provide evidence which would justify a conclusion that the plaintiff did not behave in a proper and appropriate manner. This was a business transaction. The defendant was borrowing funds from the plaintiff for a particular purpose. She was not guaranteeing the obligations of a third party in a transaction to which she was a stranger or only peripherally related. The defendant was the principal of the enterprise which was being established and for which the loan was advanced. There was nothing complicated about the transaction. The Agreement is simplicity itself. There is no basis for suggesting that there was some form of unconscionable conduct.
By par 4 of the defence the defendant raises two points. By par 4(a) she says there was 'no consideration for the principal sum owed'. However, the defendant admitted the $400,000 was advanced to her and that she had not made repayment of the principal amount nor had she paid interest pursuant to the agreement. There was clearly consideration passing between the parties. By par 4(b) the defendant says the plaintiff 'is under an obligation to mitigate its loss'. It is difficult to know how the plaintiff could mitigate its loss other than to sue the defendant. In fact it may have been under an obligation to its shareholders to do just that. Either way there is nothing in the suggestion the plaintiff is in some way responsible for the loss it has incurred.
Further grounds are raised in par 9 of the defence. By par 9.1 the defendant says the plaintiff's conduct in seeking repayment of the loan is 'oppressive to, unfairly prejudicial to or unfairly discriminatory against the defendant'. The plea relates this to the defendant's membership of the plaintiff. No evidence was advanced to support this proposition and in any event it is clearly untenable. There is nothing oppressive or discriminatory against the plaintiff seeking to enforce an agreement entered into with the defendant. There is nothing in the fact the defendant is a member of the plaintiff which would prevent enforcement action being taken.
By par 9.2 the defendant claims the plaintiff regularly 'forgives loans of its members'. That is disputed by the plaintiff and evidence to the effect no such loans have been forgiven was tendered. By par 9.3 it is then said the plaintiff knew or ought to have known the defendant was unable to repay the loan and the attempt to enforce the loan unfairly targets the defendant. Even if it had been the case the plaintiff had forgiven loans to others it provides no basis for suggesting not forgiving the defendant's loan is in some way unfair and prejudicial and therefore renders the Agreement unenforceable. There is no logical nexus between what may happen between the plaintiff and a third party and what happens between the plaintiff and the defendant.
Paragraph 9.4 pleads the plaintiff has engaged in conduct 'that is sub judice contempt in respect of this matter' because it had published certain facts about the loan in one of its newsletters. There is no reason why the plaintiff should not keep its members informed about its affairs – including loans made to members. It is in the interests of transparency that they should do so. But even if that was in some way improper it would not affect the rights of the plaintiff against the defendant. It could not provide any grounds for the loan to be regarded as unenforceable.
By par 11 of the defence the defendant says money has been paid to the plaintiff which should have been offset against money owing by the defendant to the plaintiff. At the hearing this claim was not pursued. There was no evidence of any repayment at all of any of the outstanding principal and interest.
In opposition to this application the defendant lodged four affidavits all of which were filed on 20 November 2018. There was an additional affidavit sworn 21 December 2018 which was sent to the plaintiff but which was not filed. While I have taken into account what was contained in those affidavits it is not necessary for me to deal with their contents. They do no more than reinforce the points raised in the defence. There is nothing in the evidence which would in any way suggest the defendant has an answer to the plaintiff's claim. In reaching that conclusion I am mindful of the test to be applied in summary judgment applications – there must be no serious question to be tried. In this case it is clear there is no serious question to be tried and on that basis I entered judgment for the plaintiff. The defendant should pay the plaintiff's costs of the action including any reserved costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DG
Associate to Master Sanderson
21 FEBRUARY 2019