Cash Solutions (Aust) Pty Ltd v Turner

DISTRICT COURT OF QUEENSLAND

CITATION:

Cash Solutions (Aust) Pty Ltd  v Turner & Anor [2008] QDC 108

PARTIES:

CASH SOLUTIONS (AUST) PTY LTD
(appellant)

V

SANDRA TURNER
(first respondent)

&

STEPHEN NEVILLE MAGUIRE  (second respondent)

FILE NO/S:

DC 600 of 2007

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court Southport

DELIVERED ON:

15 May 2008

DELIVERED AT:

Southport

HEARING DATE:

29 April 2008

JUDGE:

Newton DCJ

ORDER:

Appeal against the decision of the magistrate to reopen transaction is dismissed.  The appeal against that part of the magistrate’s decision to fix the applicable interest rate at 30% per annum is allowed. In lieu of the interest rate fixed by the magistrate order that the rate of 48% per annum be applied. No order as to costs.

CATCHWORDS:

CONSUMER CREDIT – Consumer Credit Code
Appeal against decision of Magistrate to reopen transaction – appeal against part of magistrate’s decision to fix applicable interest rate at 30% per annum  - whether Magistrate was wrong to reopen transaction – whether after reopening transaction the Magistrate made wrong decision in fixing interest rate at 30% per annum -  power to reopen unjust transactions.
Consumer Credit Code (Q’ld) s 70
Contracts Review Act [1980] NSW
Consumer Credit (Queensland) and Other Acts Amendment Bill 2008
Baltic Shipping Co. v Dillon (1991) 22 NSWLR 1 – referred to
West v AGC Advances Ltd (1986) 5 NSWLR 610 – referred to
Esanda Finance Corporation Ltd v Tong (1997) 41 NSWLR 482 – referred to
Accom Finance Pty Limited v Mars Pty Limited (2007) NSWSC 726 – referred to
State of Queensland v Ward and Anor [2002] QSC 171 – referred to
Dale v Nichols Constructions Pty Ltd (2003) QDC 453 – referred to

COUNSEL:

L.D. Bowden for the appellant
B.G. Devereaux SC for the first respondent

No appearance for the second respondent

SOLICITORS:

Forbes Dowling for the appellant
Legal Aid Queensland for the first respondent

No appearance for the second respondent

1. This is an appeal against a Magistrate’s decision to reopen a credit transaction pursuant to the Consumer Credit Code.

1. The appellant, Cash Solutions (Aust) Pty Ltd (“Cash Solutions”) loaned a total of $15,500.00 to the respondents, Sandra Turner and Stephen Maguire, on various dates and in various amounts, viz:

1.          23 May 2006,             $3,500.00;

2.          5 September 2006,      $5,000.00;

3.          18 October 2006,       $2,000.00; and

4.          22 December 2006,     $5,000.00.

1. The purposes of the loans were for airfares for a female friend of Mr Maguire to travel to Queensland from Russia (and return), car repairs incurred by Mr Maguire and the purchase of Christmas presents.  I was informed by counsel for Cash Solutions that one of the points seriously in contest at the trial was whether or not the transactions were caught by the provisions of the Consumer Credit Code (“the Code”). The magistrate found that the transactions were consumer transactions as opposed to commercial transactions. Mr Bowden made it clear that this part of His Honour’s decision is not challenged in this appeal.

1. The two grounds relied upon…