JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 February 2004
DATE OF JUDGMENT:	3 March 2004
CASE MAY BE CITED AS:	Collection House Limited v Taylor
MEDIUM NEUTRAL CITATION:	[2004] VSC 49	Revisions 16 March 2004

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Administrative Law – Appeal from Tribunal – Victorian Civil and Administrative Tribunal – Procedural fairness – Whether member's conduct amounted to a refusal of adjournment - Whether refusal of adjournment a denial of natural justice – Victorian Civil and Administrative Tribunal Act 1998, ss 98(1) and 148.

Trade Practices – Misleading and deceptive conduct – Unconscionable conduct – Failure of creditor to inform debtor that the debt was statute barred – Whether misleading or deceptive conduct or unconscionable conduct – Fair Trading Act 1999, ss 7 and 9.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P.W. Almond QC with Mr J.D. Pizer	Minter Ellison
For the Respondent	Mr C.D. Johnson	Consumer Credit Legal Service

HIS HONOUR:

This is an appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 from a decision of the Tribunal that the appellant pay the sum of $5,000 to the respondent. Leave to appeal was granted by the Master on 6 August 2003.

The facts

The appellant is a licensed commercial agent operating in all States and Territories of Australia. It generates at least part of its income by purchasing aged debts at a discount and then pursuing the debtors concerned for payment of at least some part of the face value of each debt.

At relevant times the respondent was unemployed and for some time before that she had only worked on a part time basis. She was living in a domestic relationship in rented premises and she had a 16 year old deaf dependent child. She did not receive any government support for her child, because he had reached the age of 16 years, and her only assets were furniture which she estimated to be worth $500 and jewellery which she estimated to be worth $200.

Years before, in 1992, she had borrowed money from AGC Ltd to purchase a motor car and she had defaulted in her payments. AGC Ltd then repossessed and sold the car but the amount recovered was insufficient to discharge all of the loan debt. I infer that the amount of the shortfall was not large. But 10 years later, by the time of the events in issue, it had grown with interest to an amount of $10,870.00.

In or about 2000, AGC Ltd sold to the appellant a tranche of aged debts that included the respondent’s debt.

On 23 April 2001 a man by the name of Peter Hempenstall telephoned the respondent at her home at approximately 6.30 in the evening and said to her that he was “calling from ALR Lawyers, phoning on behalf of our…

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 Collection House Limited v Taylor

Details

AGLC: Collection House Ltd v Taylor [2004] VSC 49
Case: [2004] VSC 49
Decision Date: 3 March 2004

CaseChat Overview and Summary

Collection House Limited brought an appeal against Taylor before the court, contesting the decisions made by the Victorian Civil and Administrative Tribunal regarding the fairness of the tribunal's procedures and the creditor's conduct. The Tribunal had found that Collection House Limited failed to inform Taylor that the debt was statute-barred, leading to proceedings under the Fair Trading Act 1999 for misleading and deceptive conduct and unconscionable conduct. Collection House Limited argued that the tribunal member's refusal to adjourn the matter constituted a denial of procedural fairness and natural justice.

The court had to determine whether the tribunal member's conduct amounted to a refusal of an adjournment, thereby denying procedural fairness. Additionally, the court examined whether Collection House Limited's failure to inform Taylor about the statute-barred debt constituted misleading or deceptive conduct or unconscionable conduct under the Fair Trading Act 1999. The court needed to balance the principles of natural justice and procedural fairness with the statutory obligations of the parties involved.

The court found that the tribunal member's conduct did not amount to a refusal of an adjournment, thus not constituting a denial of procedural fairness. The court also determined that Collection House Limited's failure to inform Taylor about the statute-barred debt did not constitute misleading or deceptive conduct or unconscionable conduct. Consequently, the appeal was dismissed. The court emphasised the importance of procedural fairness and the statutory requirements that govern the conduct of creditors and debtors in debt recovery processes.

Orders