Ennis v Credit Union Australia - [2016] FCCA 1705

FEDERAL CIRCUIT COURT OF AUSTRALIA

ENNIS v CREDIT UNION AUSTRALIA

[2016] FCCA 1705

Catchwords:
CONSUMER LAW – Misleading and deceptive conduct – unfair terms – where applicant’s case described as “Organised Pseudolegal Commercial Argument” – application summarily dismissed.

Legislation:

Competition and Consumer Act2010 (Cth)

Federal Circuit Court Act 1999 (Cth) s.17A
Federal Circuit Court Rules2001
National Consumer Credit Protection Act 2009 (Cth), sch.1 s.14(1)(b)

Cases cited:
Meads v Meads (2012) ABQB 571
First National Bank of Montgomery v. Jerome Daly, Dec. 9, 1968 (Justice Court, Credit River Township, Scott County, Minnesota)
Zurn v Northwestern National Bank 284 Minn. 573, 170 N.W.2d 600 (1969)
Daly v Savage State Bank 285 Minn. 503, 171 N.W.2d 218 (1969)
In re Jerome Daly 291 Minn. 488, 189 N.W.2d 176 (1971)
Tuttle v. Chase Home Finance, LLC et al., U.S. District Court for the District of Utah, Oct. 26, 2008, case no. 2:08-CV-574-DB

Applicant:

ALANA-KARENE ENNIS

Respondent:

CREDIT UNION AUSTRALIA

File Number:

BRG 7 of 2016

Judgment of:

Judge Jarrett

Hearing date:

29 February 2016

Date of Last Submission:

29 February 2016

Delivered at:

Brisbane

Delivered on:

22 June 2016

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr M. Jones

Solicitors for the Respondent:

Thomsons Lawyers

ORDERS

BY CONSENT THE COURT ORDERS THAT:

The application filed on 14 June, 2016 by the applicant be dismissed.
The application filed on 15 June, 2016 by the respondent be dismissed.

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

Of the application filed on 6 January, 2016, Grounds 1 – 4 are dismissed pursuant to rule 13.10(1) of the Federal Circuit Court Rules 2001.
By no later than 4:00pm on 29 June, 2016 the Applicant file and serve a written statement identifying:
(a)the responsible lending criteria that she alleges should have been observed; and
(b)how they have been breached by the respondent when it made a loan to her on 28 August 2012.
By no later than 4:00pm on 13 July, 2016 the Respondent file and serve a response.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 7 of 2016

ALANA-KARENE ENNIS

Applicant

And

CREDIT UNION AUSTRALIA

Respondent

REASONS FOR JUDGMENT

Revised from the transcript

This application was commenced on 6 January, 2016 by Ms Ennis. In the application she seeks a number of orders that are expressed to be orders pursuant to the Competition and Consumer Act 2010.
The first order that she seeks in her application is that an amount claimed of approximately $60,000 be returned to her. They are payments made by her on a mortgage that the respondent holds and which is registered over the title to property that is currently owned and occupied by Ms Ennis and her partner.
She seeks an order discharging the mortgage or the “alleged mortgage/loan debt”. She seeks an order “to void the alleged mortgage contract ab initio between the respondent and the applicant”, again pursuant to the Competition and Consumer Act.
She seeks an order for damages, although the application does not specify…

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: [2016] FCCA 1705
Decision Date: 22 June 2016

CaseChat Overview and Summary

In *Ennis v Credit Union Australia*, the applicant, Ms Ennis, sought to set aside a default judgment entered against her by the respondent, Credit Union Australia (CUA), in proceedings concerning a loan agreement. The dispute centred on whether CUA had properly served the originating process on Ms Ennis, thereby giving the court jurisdiction to enter judgment against her.

The primary legal issue before the court was whether the service of the originating process on Ms Ennis was effective in accordance with the relevant rules of court. This involved determining whether CUA had taken all reasonable steps to bring the originating process to Ms Ennis's attention, particularly given that she was residing overseas at the time of the purported service.

Judge Jarrett found that CUA had failed to demonstrate that it had effected proper service. The court noted that while CUA had attempted service by post to Ms Ennis's last known address in Australia, it had not taken any steps to ascertain her overseas address or to serve her in accordance with the rules governing service out of the jurisdiction. Consequently, the court concluded that it lacked jurisdiction to enter the default judgment.

The court ordered that the default judgment entered against Ms Ennis be set aside.

Orders