Dale v Nichols Constructions Pty Ltd - [2003] QDC 453

DISTRICT COURT OF QUEENSLAND

CITATION:

Dale v Nichols Constructions Pty Ltd [2003] QDC 453

PARTIES:

WENDY DALE

First Applicant

ROBERT NORMAN DALE

Second Applicant

v

NICHOLS CONSTRUCTIONS PTY LTD (ACN 010 763 505)

Respondent

and

BROADBENT RADICH SAMPSON LAWYERS

Third Party

FILE NO/S:

D868 of 2000

DIVISION:

PROCEEDING:

Originating application

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

12 December 2003

DELIVERED AT:

Brisbane

HEARING DATE:

10-13 September, 3-4 October 2002

JUDGE:

McGill DCJ

ORDER:

Declare that the transactions between the first applicant and the respondent in January 1998 in respect of a loan of $161,000 and in March 1998 in respect of a loan of $20,000, are both subject to the Consumer Credit Code.1.

Declare that:2.

in respect of the first credit contract, there were breaches of key requirements in that the provision for default interest was contrary to s 28(1), which was a breach of s 21(1)(c), and there was a failure to state the total interest payable under the contract, which was a breach of s 15(E);(a)

in respect of the second credit contract, there were breaches of key requirements in that the contract did not state the annual percentage rate of interest, the method of calculation of the interest charges payable under the contract, and the credit fees and charges that were or might become payable under the contract, in breach of s 15(C), (D) and (G);(b)

Order the respondent pay the first applicant $1,000 as a civil penalty in respect of the first credit contract, and $5,000 as a civil penalty in respect of the second contract.3.

Declare that the provisions of the first credit contract by which a higher rate of interest was payable unless the borrower was not in default under the contract imposed a liability prohibited by s 21(1) of the Code and were void to that extent.4.

The application for compensation or restitution for contraventions of the Code is refused.5.

The application for reopening the second credit contract under s 70 of the Code is refused.6.

The application for relief under the Trade Practices Act is refused.7.

Determinations of the amounts payable to discharge the loan contracts under s 77, orders on the third party proceeding, and orders for costs, to be made after further submissions.8.

CATCHWORDS:

CONSUMER CREDIT – Consumer Credit Code – whether transaction governed by Code – whether any and what breaches of code – remedy – amount required to pay out loans.

Consumer Credit Code ss 6(1)(b), (d), 11(2), 12(1), 21(1), 21(3), 23(1), 28, 70, 76, 80, 103, 107.

Baltic Shipping Company v Dillon (1991) 22 NSWLR 1 - cited

Best v Sutcliffe [1965] NZLR 750 - distinguished

Hungier v Grace (1972) 46 ALJR 492 - distinguished

Jonsson v Arkway Pty Ltd [2003] NSWSC 815 - followed

Linkenholt Pty Ltd v Quirk [2000] VSC 166 - considered

Linter Group Ltd v Goldberg (1992) 10 ACLC 739 - applied

Marshall & Brougham Pty Ltd v Commissioner of Taxation

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.

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Details

Case: [2003] QDC 453
Decision Date: 12 December 2003

CaseChat Overview and Summary

In the Federal Court of Australia, Dale brought an action against Nichols Constructions Pty Ltd concerning two loan agreements. The first loan of $161,000 was executed in January 1998, and the second loan of $20,000 was executed in March 1998. Dale contended that both loans were subject to the Consumer Credit Code and that Nichols Constructions Pty Ltd had breached several key requirements of the Code. Dale sought remedies including a declaration of the breaches, a civil penalty, and compensation for the contraventions.

The court was required to determine whether the transactions between Dale and Nichols Constructions Pty Ltd were governed by the Consumer Credit Code. If so, the court had to identify any breaches of the Code and determine appropriate remedies, including the amount required to pay out the loans. The court also needed to decide if Dale was entitled to compensation or restitution for the contraventions, if the second credit contract could be reopened under section 70 of the Code, and if relief under the Trade Practices Act was applicable.

The court found that both loans were indeed subject to the Consumer Credit Code. Regarding the first loan, the court identified breaches of sections 21(1)(c) and 15(E) of the Code, concerning the provision for default interest and the failure to state the total interest payable. For the second loan, breaches were found in sections 15(C), (D), and (G) of the Code, related to the omission of the annual percentage rate of interest, the method of calculation of interest charges, and credit fees and charges. The court ordered Nichols Constructions Pty Ltd to pay Dale $1,000 as a civil penalty for the first contract and $5,000 for the second contract. The court also declared void the provisions in the first credit contract that imposed a higher rate of interest unless the borrower was not in default. The application for compensation, restitution, and reopening the second credit contract was refused, as was the application for relief under the Trade Practices Act. Further submissions were required to determine the amounts payable to discharge the loan contracts, third party proceeding orders, and costs.

Orders

Orders of the court

Declare that the transactions between the first applicant and the respondent in January 1998 in respect of a loan of $161,000 and in March 1998 in respect of a loan of $20,000, are both subject to the Consumer Credit Code.1.

Declare that:2.

in respect of the first credit contract, there were breaches of key requirements in that the provision for default interest was contrary to s 28(1), which was a breach of s 21(1)(c), and there was a failure to state the total interest payable under the contract, which was a breach of s 15(E);(a)

in respect of the second credit contract, there were breaches of key requirements in that the contract did not state the annual percentage rate of interest, the method of calculation of the interest charges payable under the contract, and the credit fees and charges that were or might become payable under the contract, in breach of s 15(C), (D) and (G);(b)

Order the respondent pay the first applicant $1,000 as a civil penalty in respect of the first credit contract, and $5,000 as a civil penalty in respect of the second contract.3.

Declare that the provisions of the first credit contract by which a higher rate of interest was payable unless the borrower was not in default under the contract imposed a liability prohibited by s 21(1) of the Code and were void to that extent.4.

The application for compensation or restitution for contraventions of the Code is refused.5.

The application for reopening the second credit contract under s 70 of the Code is refused.6.

The application for relief under the Trade Practices Act is refused.7.

Determinations of the amounts payable to discharge the loan contracts under s 77, orders on the third party proceeding, and orders for costs, to be made after further submissions.8.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Dale v Nichols Constructions Pty Ltd [2003] QDC 453
PARTIES:	WENDY DALE First Applicant ROBERT NORMAN DALE Second Applicant v NICHOLS CONSTRUCTIONS PTY LTD (ACN 010 763 505) Respondent and BROADBENT RADICH SAMPSON LAWYERS Third Party
FILE NO/S:	D868 of 2000
DIVISION:
PROCEEDING:	Originating application
ORIGINATING COURT:	District Court, Southport
DELIVERED ON:	12 December 2003
DELIVERED AT:	Brisbane
HEARING DATE:	10-13 September, 3-4 October 2002
JUDGE:	McGill DCJ
ORDER:	Declare that the transactions between the first applicant and the respondent in January 1998 in respect of a loan of $161,000 and in March 1998 in respect of a loan of $20,000, are both subject to the Consumer Credit Code.1. Declare that:2. in respect of the first credit contract, there were breaches of key requirements in that the provision for default interest was contrary to s 28(1), which was a breach of s 21(1)(c), and there was a failure to state the total interest payable under the contract, which was a breach of s 15(E);(a) in respect of the second credit contract, there were breaches of key requirements in that the contract did not state the annual percentage rate of interest, the method of calculation of the interest charges payable under the contract, and the credit fees and charges that were or might become payable under the contract, in breach of s 15(C), (D) and (G);(b) Order the respondent pay the first applicant $1,000 as a civil penalty in respect of the first credit contract, and $5,000 as a civil penalty in respect of the second contract.3. Declare that the provisions of the first credit contract by which a higher rate of interest was payable unless the borrower was not in default under the contract imposed a liability prohibited by s 21(1) of the Code and were void to that extent.4. The application for compensation or restitution for contraventions of the Code is refused.5. The application for reopening the second credit contract under s 70 of the Code is refused.6. *The application for relief under the Trade Practices Act* is refused.7. Determinations of the amounts payable to discharge the loan contracts under s 77, orders on the third party proceeding, and orders for costs, to be made after further submissions.**8.
CATCHWORDS:	CONSUMER CREDIT – Consumer Credit Code – whether transaction governed by Code – whether any and what breaches of code – remedy – amount required to pay out loans. Consumer Credit Code ss 6(1)(b), (d), 11(2), 12(1), 21(1), 21(3), 23(1), 28, 70, 76, 80, 103, 107. Baltic Shipping Company v Dillon (1991) 22 NSWLR 1 - cited Best v Sutcliffe [1965] NZLR 750 - distinguished Hungier v Grace (1972) 46 ALJR 492 - distinguished Jonsson v Arkway Pty Ltd [2003] NSWSC 815 - followed Linkenholt Pty Ltd v Quirk [2000] VSC 166 - considered Linter Group Ltd v Goldberg (1992) 10 ACLC 739 - applied Marshall & Brougham Pty Ltd v Commissioner of Taxation