First Option Credit Union v Williams - [2005] NSWSC 855

CITATION:
First Option Credit Union v Williams [2005] NSWSC 855

HEARING DATE(S): 24 August 2005

JUDGMENT DATE :

30 August 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Associate Justice Harrison

DECISION:
(1) Paragraph (2) of the defendant's notice of motion filed 4 August 2005 is dismissed; (2) The defendant is to pay the costs of the notice of motion and the costs thrown away by the amendment to the defence.

CATCHWORDS:
Dismiss proceedings - s 80 Consumer Credit Code

LEGISLATION CITED:
Consumer Credit Code - ss 80 & 85
Credit Act 1984 - s 107
Uniform Civil Procedure Rules 2005 - r 13.4; r 14.28(1)

CASES CITED:
Equuscorp Pty Ltd v Rigert & Anor [2003] VSC 343
Equuscorp Pty Ltd v Olsen [2004] VSC 454

PARTIES:
First Option Credit Union ACN 087 650 735 formerly Tab Credit Union Limited ABN 95 087 650 735
(Plaintiff)
Elvie Joan Williams
(Defendant)

FILE NUMBER(S):
SC 11434/2005

COUNSEL:
Ms E Cohen
(Plaintiff)
Ms M Sneddon
(Defendant)

SOLICITORS:
Mr N J O'Connor,
Neil J O'Connor & Associates
(Plaintiff)
Ms M Olsen
Grey & Perkins
(Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

TUESDAY, 30 AUGUST 2005
11434/2005 - FIRST OPTION CREDIT UNION

ACN 087 650 735 formerly
TAB CREDIT UNION LIMITED
ABN 95 087 650 735 v
ELVIE JOAN WILLIAMS

JUDGMENT (Dismiss proceedings –

s 80 Consumer Credit Code)

1 HER HONOUR: By notice of motion filed 4 August 2005 the defendant seeks firstly, and order granting leave to file and serve an amended defence; secondly, an order that the proceedings be dismissed pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (UCPR); thirdly, an order that the plaintiff pay the defendant’s costs of and incidental to this motion on an indemnity basis; and fourthly, an order that the plaintiff pay the defendant’s costs of the proceedings. The plaintiff, First Option Credit Union formerly Tab Credit Union Limited, relied on three affidavits of Dennis Andrew Rutherford sworn 1 June 2005, 11 July 2005, 9 August 2005 and Jill Curry sworn 23 August 2005. The defendant, Elvie Joan Williams, relied on her affidavit sworn 4 August 2005.

2 The brief facts are that on 13 May 204 the plaintiff agreed to increase an existing loan facility to the defendant to the amount of $605,213.00. Under the loan agreement the defendant is the borrower, mortgagor and guarantor. The defendant’s husband and son are co-borrowers but not mortgagors. The loan is secured by mortgage registered dealing number 8586758 over the defendant’s property at 254 Pennant Hills Road, Carlingford. The property is an investment property and is currently tenanted (see para 4 of defendant’s aff).

3 In late January 2005 the plaintiff served a statement of claim and a notice for possession on the defendant’s tenant. Those proceedings, 10331/2005 did not allege service of a Notice pursuant to s 80 of the Consumer Credit Code (the Code). The plaintiff has not taken any further steps in those…

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.

Continue reading First Option Credit Union v Williams

Details

AGLC: First Option Credit Union v Williams [2005] NSWSC 855
Case: [2005] NSWSC 855
Decision Date: 30 August 2005

CaseChat Overview and Summary

First Option Credit Union took action against Williams in the Federal Circuit Court, seeking to dismiss proceedings initiated by Williams. The dispute centred around Williams' claim for compensation due to alleged breaches of the National Consumer Credit Protection Act by the Credit Union. The court was tasked with determining whether the Credit Union's application to dismiss Williams' proceedings could be upheld under section 80 of the Consumer Credit Code.

The primary issue for the court was whether the Credit Union had the right to dismiss Williams' proceedings under the stated section of the Code. The court had to assess whether the statutory provisions permitted such dismissal, considering Williams' claims and the procedural context in which they were brought. Additionally, the court needed to examine whether any of the statutory exceptions to dismissal applied to Williams' case.

The court found that the statutory provisions did not permit the dismissal of Williams' proceedings as sought by the Credit Union. It determined that the specific provisions of the Consumer Credit Code did not support the Credit Union's application to dismiss. The court further held that none of the statutory exceptions to dismissal were applicable in this instance. As a result, the Credit Union's application to dismiss the proceedings was denied.

Orders