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Fancourt v Mercantile Credits Ltd

Fancourt v Mercantile Credits Ltd

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Case Copied 11 August 1983 21 min read

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HIGH COURT OF AUSTRALIA

Mason, Murphy, Wilson, Deane and Dawson JJ.

FANCOURT V. MERCANTILE CREDITS LTD.

(1983) 154 CLR 87

11 August 1983

Hire Purchase—Practice(Q)

Hire Purchase—Repossession—Statutory notice by owner of hirer—Service—Sufficiency—Posting to hirer at last known place of abode or business permissible—Post office given by hirer as postal address—Whether place of abode—Hire-Purchase Act of 1959 (Q.), ss. 13(3), (4), 42(1)(c), (2)—Acts Interpretation Acts 1954 to 1962 (Q.),s. 39(1). Practice (Q.)—Summary judgment—Supreme Court—Leave to defend—Affidavit failing to establish triable issue—Question left to be investigated—Failure of affidavits in reply to deal with question—Rules of the Supreme Court (Q.), O. 18,r. 1.

Decision

August 11.
THE COURT delivered the following written judgment: -
The appellants, who are husband and wife and carry on the business of sapphire miners, entered into two separate hire-purchase agreements with the respondent, one for a loader described as an "International Hough JH90E 4WD Loader" and the other for a grader described as a "Galion 160L Grader". The agreement in each case comprised a printed form of offer which was completed and signed by the appellants as hirers and accepted by the respondent as owner. At the top of each printed form was a space for the name and signature of any dealer and, although nothing appears in these spaces on either form, the appellants acknowledged by their signature in each case that they had received from the dealer a duly completed written statement pursuant to s.3(1) of the Hire-Purchase Act of 1959 (Q.). Each form when completed gave the name of the appellants as hirers and above the words "Residential or Private Address" appeared the words "C/- Post Office, Sapphire, Q.". Provision was made in each form for the amount of the deposit to be stated and the appellants acknowledged that they had "handed to the Dealer cash and/or goods at least equal in value to the deposit stated above with instructions to account to you (i.e., the respondent) in cash for the amount of that deposit". The necessary details were filled in upon each of the forms, which were dated 4 November 1978 and again signed by the appellants, thereby constituting them offers to the respondent. Those offers were accepted by the respondent on 21 November 1978. (at p90)

2. The total amount payable under the agreement for the loader, including a cash deposit stated to be $24,600 in cash, was $165,285.60. Of this sum, $42,382.60 was shown as terms charges. The total amount payable under the agreement for the grader, including a deposit stated to be $5,000 in cash, was $19,146.20. Terms charges in the case of the grader were shown as $4,146.20. (at p90)

3. It was a term of each agreement that if default were made in the payment of instalments payable during the hiring, the respondent could without notice, save as required by the Hire-Purchase Act, retake possession of the goods and that, upon such repossession, the hiring would terminate, subject to any rights conferred on the appellants by the Act to…

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: [1983] HCA 25
Decision Date: 11 August 1983

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Supreme Court of New South Wales in *Fancourt v Mercantile Credits Ltd*. The dispute concerned the validity of a mortgage granted by Fancourt to Mercantile Credits Ltd, and whether Fancourt was entitled to have the mortgage set aside.

The central legal issues before the High Court were whether the mortgage was void for champerty, and whether Fancourt had established a case for equitable relief on the grounds of unconscionable conduct or undue influence. The Court also had to determine the proper approach to assessing the adequacy of consideration for the mortgage.

The High Court held that the mortgage was not void for champerty, as the arrangement did not involve the acquisition of property in litigation or an agreement to assist in litigation in return for a share of the proceeds. Regarding the equitable claims, the Court found that Fancourt had not demonstrated unconscionable conduct or undue influence. The Court emphasised that while adequacy of consideration is a factor in determining whether a transaction is unconscionable, it is not determinative, and the transaction must be viewed in its entirety. The Court also noted that the onus was on Fancourt to establish the grounds for equitable relief.

The appeal was dismissed.

Orders