Director of Consumer Affairs Victoria v Scully (No 3)

In the matter of Director of Consumer Affairs Victoria v Scully (No 3), the court examined the legality of two programs intended to facilitate home purchases for individuals unable to secure bank finance. The Director of Consumer Affairs Victoria brought proceedings against Scully, seeking a declaration that the design and implementation of these programs were unconscionable under the Fair Trading Act 1999 (Vic). The primary legal issues revolved around whether the statutory unconscionability criterion required a demonstration of 'moral obloquy' and whether the design and implementation of the programs breached this standard.

The court undertook a detailed examination of statutory interpretation and precedents, including Qantas Airways Ltd v Cameron, Hurley v McDonald’s Australia, Attorney-General of New South Wales v World Best Holdings Ltd, Australian Securities and Investments Commission v National Exchange Pty Ltd, and Tonto Home Loans Australia Pty Ltd v Tavares. The court concluded that moral obloquy was indeed a requisite element for establishing unconscionability under the Act. Additionally, the court found that while the design and implementation of one of the programs did not meet the threshold of moral obloquy, the second program did breach this standard.

Ultimately, the court determined that the design and implementation of one of the programs were unconscionable, leading to a declaration that these actions were against public interest and misleading. The court did not find the other program to be unconscionable, as it did not involve moral obloquy. The Director of Consumer Affairs Victoria was granted a declaration as sought, with respect to the unconscionable program, and the proceedings were dismissed in relation to the other program.