Devon v Ji

[2016] FCA 797

FEDERAL COURT OF AUSTRALIA

Devon v Ji [2016] FCA 797

File number:

VID 496 of 2015

Judge:

DAVIES J

Date of judgment:

11 July 2016

Catchwords:

PRACTICE AND PROCEDURE – application for summary judgment – whether National Credit Code applies – where two loans alleged to be interrelated – where National Credit Code previously held not to apply to first loan

PRACTICE AND PROCEDURE – application for summary judgment – allegations of unconscionable conduct – where no factual foundation identified

Legislation:

Federal Court of Australia Act 1976 (Cth) s 31A

National Consumer Credit Protection Act 2009 (Cth) Sch 1 National Credit Code s 13

Cases cited:

Devon v Thirteenth Kaysan Pty Ltd [2016] FCA 357

Raftland Pty Ltd v Commissioner of Taxation (2008) 238 CLR 516; [2008] HCA 21

Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28

Date of hearing:

1 June 2016

Registry:

Victoria

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Commercial Contracts, Banking, Finance and Insurance

Category:

Catchwords

Number of paragraphs:

12

Counsel for the Applicant:

The Applicant appeared in person

Counsel for the Twenty-Seventh Respondent:

M Gronow

Solicitor for the Twenty-Seventh Respondent:

Obst Legal

ORDERS

VID 496 of 2015

BETWEEN:

HUGH DEVON

Applicant

AND:

JUN JI

Fourth Respondent

YUNSHENG CHEN
Fifth Respondent

JOSEPH WYTWORNIK
Sixth Respondent (and others named in the Schedule)

JUDGE:	DAVIES J
DATE OF ORDER:	11 JULY 2016

THE COURT ORDERS THAT:

1.Judgment be entered for the twenty-seventh respondent against the applicant pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

2.The applicant pay the twenty-seventh respondent’s costs of the proceeding.

3.The matter be listed for hearing on a date to be fixed on the question of whether the proceeding should be dismissed against the remaining respondents.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DAVIES J:

1. This proceeding was commenced by the applicant (“Mr Devon”) against 27 respondents (some of whom appear to be named twice). The proceeding as against the first, second, third and twelfth respondents was dismissed summarily pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (“the Act”) on the application of those respondents on the ground that the claims against them had no reasonable prospect of success: Devon v Thirteenth Kaysan Pty Ltd [2016] FCA 357 (“Devon v Thirteenth Kaysan”). The twenty-seventh respondent has now made application pursuant to s 31A(2) of the Act and/or r 26.01(1) of the Federal Court Rules 2011 (Cth) for an order dismissing the whole of Mr Devon’s claims against him.

2. The subject matter of the proceeding concerns two loan transactions.  One of the loan transactions related to an amount of $1.5 million advanced by the first and second respondents to Southco Enterprises Pty Ltd (“Southco”), a company of which Mr Devon was the sole director at the relevant time (“the first loan”). The first…