Giampaolo v Esanda Finance Corporation Ltd
[2001] VSC 71
•8 March 2001
| SUPREME COURT OF VICTORIA | Not Restricted | |
| COMMON LAW DIVISION PRACTICE COURT | ||
No. 8059 of 2000
| ANTHONY GIAMPAOLO | Plaintiff |
| v | |
| ESANDA FINANCE CORPORATION LTD (ACN 004 346 043) | Defendant |
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JUDGE: | Gillard J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 February and 8 March 2001 |
DATE OF JUDGMENT: | 8 March 2001 |
CASE MAY BE CITED AS: | Giampaolo v Esanda Finance Corporation Ltd |
MEDIUM NEUTRAL CITATION: | VSC 71 |
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Leave to appeal – Victorian Civil and Administrative Tribunal Act 1998 – Section 148 – principles – leave granted.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr P. Bingham | Peter Eggleston & Associates |
| For the Defendant | Mr J. Paterson | Deacons |
HIS HONOUR:
This is an appeal against an order made by Master Wheeler who dismissed an application by Anthony Giampaolo ("the plaintiff") who sought leave to appeal from orders made by the Victorian Civil and Administrative Tribunal ("the Tribunal") pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998.
The orders in question were made by the Tribunal on 23 November 2000 and 6 December 2000, and were made by Deputy President M McNamara.
By reason of s.148(2) of the Act, an application for leave to appeal must be made no later than 28 days after the date of the order. The aggrieved party does not have an appeal as of right.
According to s.148(1)(b), application must be made to the Trial Division of this Court seeking leave to appeal. The procedure is set out in Order 4 of Ch.II of the Rules of Court.
The plaintiff issued an originating motion in this Court on 15 December 2000, and also a summons seeking leave.
The summons came on before Master Wheeler on 8 February 2001 and he dismissed the application for leave to appeal.
The applicant filed his notice of appeal against that decision on 14 February 2001. The hearing before me is a rehearing de novo.
Rule 4.09(2) provides –
"(2) without limiting paragraph (1), the Master may refuse leave to appeal if satisfied that the applicant does not have a prima facie case on appeal or that to refuse leave would impose no substantial injustice."
The principles to be applied were discussed by the Court of Appeal in Secretary to the Department of Premier v. Hulls (1999) 3 VR 331. Phillips JA, who delivered the judgment of the Court, stated that Rule 4.09 does not state the test to be applied, but merely empowers a master to refuse leave in certain circumstances.
At page 335 His Honour said:
"On the other hand, on an application for leave to appeal it cannot be expected that error below be established. That is for the appeal itself. Something less must be sufficient on the application for leave to appeal, and ordinarily the applicant will be required to show that there is a real or significant argument to be put that error exists. In other contexts this has sometimes been called a prima facie case or an arguable case. These are no more than an attempt to describe the degree to which the applicant must satisfy the Court from which leave is sought that there is a real or significant argument in favour of the applicant on the question of law which is identified. (Contrast in a different context Beecham Group Pty Ltd v. Bristol Laboratories Pty Ltd (1968) 118 CLR 628 at 620 per Kitto J.) It is not possible to lay down in advance any standard of satisfaction, for much may depend upon the importance of the question of law to the remedy to be sought. What is peripheral may be thought less persuasive in relation to leave to appeal than an issue which is central."
At page 337 His Honour stated the test to be "that the decision below should be attended by sufficient doubt to justify the grant of leave to appeal". It is important to emphasise that the appeal is on a question of law and not fact, and that the decision on the legal issue is attended with sufficient doubt to justify leave.
To understand the application before me it is necessary to briefly state the facts.
In August 1998 the plaintiff entered into a hire purchase agreement with the defendant, Esanda Finance Corporation Pty Ltd ("Esanda"). The plaintiff purchased on hire a Saab motor vehicle. The price was $38,000. He was required to pay 60 monthly instalments of $597.60. He paid a deposit of $6,000.
In June 2000 he fell into arrears and was given a repossession notice. He made application to the Tribunal in which he alleged that he had entered into a credit contract with Esanda within the meaning of the Consumer Credit (Victoria) Code and that the Code applied to the agreement. He asserted that Esanda had contravened certain requirements of the Code and there was a dispute concerning the documentation. He obtained an injunction. The dispute came on before Member McNamara on 8 November 2000 and he reserved his decision. He delivered it on 23 November 2000. He made a determination in the form of an order that the hire purchase agreement was not a credit contract within the meaning of the Code.
By reason of s.11(1) of the Code, in any proceeding where a party claims "that a credit contract ... is one to which this Code applies, it is presumed to be such unless the contrary is established."
It is open under s.11(2) for the debtor to make a declaration that the credit was not provided for personal, domestic or household purposes. No declaration was in fact made in the present matter. Under s.6 the Code does not apply in certain circumstances. The onus is on Esanda to prove the Code does not apply.
Section 6(1)(b) provides –
"6(1) This Code applies to a provision of credit (and to the credit contract and related matters) if when the credit contract is entered into or (in the case of pre-contractual obligations) is proposed to be entered into
(a) …
(b) the credit is provided or intended to be provided wholly or predominantly for personal, domestic or household purpose; and
(c) … ."
(Emphasis added).
The issue which was decided as a preliminary issue was whether the Code did apply to the credit contract, the contention of the Esanda being that it did not because the credit was provided wholly or predominantly for purposes other than personal, domestic or household. The contention was that credit was provided to acquire a vehicle which was used for business purposes and not personal purposes.
The Tribunal member after hearing evidence accepted the argument of Esanda that the contract was not a credit contract within the meaning of the Code.
The plaintiff wishes to appeal that finding and it is submitted on his behalf that the learned Tribunal member made an error of law when he so concluded on the evidence that was before the Tribunal.
Mr P Bingham of Counsel for the plaintiff submits that taking into account the presumption that it was a credit contract, Esanda had failed on the evidence to prove that it was not, and that the reasoning of the Tribunal member showed that he had misconstrued the provisions of the Code and hence made an error.
The evidence before this Court was by affidavit which summarised the evidence given by the plaintiff before the Tribunal. It showed that he used the vehicle to go to work and his employer assigned him security jobs at various locations and he made his journey in his car to these locations. The evidence also showed that from a very early point in time after the acquisition of the vehicle he claimed taxation deductions in respect of the vehicle and claimed he used the vehicle 82 per cent in the course of his employment.
This morning Mr Paterson has produced a transcript of the evidence given by Mr Giampaolo, the plaintiff, before the Tribunal. It demonstrated that the summary deposed to in the affidavit was incomplete and arguably wrong. It appears that he was asked by the salesman who sold him the car what type of work he did and he answered:
" I can't recall word by word because it's been so long ago. I think he asked me did I use my car for work. I said to him that I used it in the course of my duties."
This evidence arguably may go to the plaintiff's state of mind when he obtained the credit.
I should interpolate at this point to observe that in future where applications are made for leave to appeal from the Tribunal, that if evidence is given and the evidence is of importance in considering the application, then every endeavour should be made by the applicant to produce a transcript of the evidence before the Court. I understand that the proceedings in the Tribunal are being recorded. I could imagine circumstances where, if that course is not followed and leave is given, that later when the transcript is produced it may show a different set of facts and may put in doubt whether leave should ever have been granted.
Mr Bingham submitted that the learned Tribunal member made a number of errors of law. He referred to paragraph 35 of his reasons.
He emphasised that the question whether it was a credit contract had to be determined at the date when the credit was provided, that is, in August 1998. He submitted that the Tribunal member made an error in relying upon the tax deductions to prove that he had acquired the credit for purposes which were not wholly or predominantly for personal, domestic or household purposes.
It has been the practice of the Court of Appeal not to give reasons for granting or refusing leave on an application for leave to appeal. See for example Leighton Contractors Pty Ltd v. Kilpatrick Green Pty Ltd (1992) 2 VR 505 at 514. This approach has also been adopted by some Trial Division judges in applications such as the present. See for example Department of Human Services v. Thwaites (1999) VSC 163 per Beach J.
I will follow that approach and keep my remarks to a minimum.
I have closely considered the reasons for the decision of the member. He carefully considered the law and facts.
What the Credit Code means is a question of law. He considered the meaning of the words used in s.6, and consulted dictionaries for the definition of the words "personal, domestic or household purposes". The submissions put to him on behalf of the plaintiff were that it was necessary to prove that the credit was obtained for a business purpose.
I would prefer the issue focussing on the question at the time when the credit contract was entered into whether the provision of credit was provided wholly or predominantly for personal, domestic or household purposes.
It seems to me arguable here that the credit was not obtained for domestic or household purposes, but was obtained predominantly for personal services.
In my view it is arguable that the facts do not support the conclusion and that the learned member did misdirect himself when he came to the conclusion that the predominant purpose according to the tax returns was that the plaintiff was using the vehicle for business purposes.
No doubt in the course of employment he was requested to go from place to place. He utilised his own vehicle to do so. He was not conducting a business, and in my view it is arguable that the learned member was wrong in concluding that the credit was not obtained predominantly for personal purposes.
In my opinion it is arguable that in construing the phrase and its application, the learned member made errors of law.
Accordingly, in my opinion the appeal from Master Wheeler should be allowed and leave to appeal from the decision of the Tribunal be granted, with costs reserved.
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