Devon v Thirteenth Kaysan Pty Ltd

Case [2016] FCA 1026

FEDERAL COURT OF AUSTRALIA

Devon v Thirteenth Kaysan Pty Ltd [2016] FCA 1026

Appeal from: Devon v Thirteenth Kaysan Pty Ltd [2016] FCA 357
File number: VID 358 of 2016
Judge: MIDDLETON J
Date of judgment: 19 August 2016
Catchwords:

PRACTICE AND PROCEDURE – application for leave to appeal – whether the decision of the trial judge is attended by sufficient doubt to warrant the grant of leave to appeal.

PRACTICE AND PROCEDURE – application for leave to appeal from summary judgment – whether National Credit Code applies – whether debtor was a natural person – whether loan to company secured by mortgage to natural person – allegations of unconscionable conduct and misleading and deceptive conduct – where no intelligible claim identified on pleadings – where no factual foundation identified.

Legislation:

Federal Court of Australia Act 1976 (Cth)

National Consumer Credit Protection Act 2009 (Cth)

National Credit Code
Cases cited:

Commonwealth Bank of Australia v Amadio (1983) 151 CLR 447

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Devon v Ji [2016] FCA 797

Devon v Ji [2016] FCA 988

Devon v Thirteenth Kaysan Pty Ltd [2016] FCA 357

Dowling v Commonwealth Bank of Australia [2008] FCA 59

Date of hearing: 19 August 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: 24
Counsel for the Applicant: The Applicant appeared in person
Counsel for the First and Second Respondents: Mr W H C Forrester
Solicitor for the First and Second Respondents: Basilone Legal
Counsel for the Third Respondent: Mr R Heath
Solicitor for the Third Respondent: K & L Gates
Counsel for the Twelfth Respondent: Mr C H Smith
Solicitor for the Twelfth Respondent: Lander & Rogers

ORDERS

VID 358 of 2016
BETWEEN:

HUGH JOHN DEVON

Applicant
AND:

THIRTEENTH KAYSAN PTY LTD

First Respondent

OUTPLASS PTY LTD (ACN 006 322 425)

Second Respondent

AJZENSZTAT JERUSZALSKI LAWYERS (A FIRM) (and others named in the Schedule)

Third Respondent

JUDGE:

MIDDLETON J

DATE OF ORDER:

19 AUGUST 2016

THE COURT ORDERS THAT:

1.The application for leave to appeal is dismissed with costs.

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


REASONS FOR JUDGMENT

MIDDLETON J:

  1. This is an application for leave to appeal a judgment of the trial judge in Devon v Thirteenth Kaysan Pty Ltd [2016] FCA 357 delivered on 13 April 2016 (the ‘Reasons’), dismissing the proceeding against four respondents pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the ‘Federal Court Act’).

  2. The trial judge has also dismissed the proceeding against all the other respondents.  On 11 July 2016, the trial judge entered summary judgment for the 27th respondent against the applicant: see Devon v Ji [2016] FCA 797. On 18 August 2016, the trial judge entered judgment for the 4th to 11th respondents and the 13th to…

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Details
AGLC
Devon v Thirteenth Kaysan Pty Ltd [2016] FCA 1026
Case
[2016] FCA 1026
Decision Date

CaseChat Overview and Summary

The applicant, Mr Devon, sought leave to appeal a decision of the trial judge, who had dismissed his claim for summary judgment. The respondent, Thirteenth Kaysan Pty Ltd, was the company against which the claim was brought. The nature of the dispute involved allegations of unconscionable conduct and misleading and deceptive conduct in the context of a loan transaction secured by a mortgage held by a natural person. The case was heard in the Federal Court of Australia.

The legal issues before the court were whether the decision of the trial judge was attended by sufficient doubt to warrant the grant of leave to appeal, and whether the National Credit Code applied to the circumstances of the case. Additionally, the court needed to determine if the debtor was a natural person, if the loan to the company was secured by a mortgage to that natural person, and if there were any allegations of unconscionable conduct and misleading and deceptive conduct. The court also had to consider if any intelligible claim was identified on the pleadings and if there was a factual foundation for the allegations.

The court found that the trial judge did not specifically consider the residual discretion to reject the summary dismissal claim and give Mr Devon another opportunity to articulate his claims. However, the judge was clearly of the view that there was no reasonable prospect of Mr Devon ever being able to formulate a proper claim. The court concluded that the allegations in the pleadings did not establish an intelligible claim, and the case did not meet the criteria for relief under the National Credit Code. Therefore, the application for leave to appeal was dismissed.

The court ordered that the application for leave to appeal was dismissed with costs. The entry of orders was dealt with in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application for leave to appeal is dismissed with costs.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The trial judge did not specifically consider the residual discretion the Court has to reject the summary dismissal claim, and give to Mr Devon another opportunity to articulate his claims on this basis. However, the trial judge was clearly of the view that there was no reasonable prospect of Mr Devon ever being able to formulate a proper claim, and acted accordingly in applying s 31A of the Federal Court Act. CONCLUSION In view of the above reasons, the application for leave to appeal is dismissed with costs.

Ratio Decidendi

Legal Principle Established

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