GOFF and CITIBANK PTY LTD - [2011] WASAT 10

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: CONSUMER CREDIT (WESTERN AUSTRALIA) ACT 1996

CITATION: GOFF and CITIBANK PTY LTD [2011] WASAT 10

MEMBER: DR B DE VILLIERS (MEMBER)

HEARD: 19 MAY 2010 AND 18 NOVEMBER 2010

DELIVERED : 21 JANUARY 2011

FILE NO/S: CC 107 of 2010

BETWEEN: VERNON GEORGE GOFF
EMMA LUISA GOFF
Applicants
AND
CITIBANK PTY LTD
Respondent

Catchwords:

Consumer credit - Preliminary issues - Declaration as to the purpose of a loan - Best available evidence - Unavailability of original documents or certified copies of the original documents - Whether credit intended to be used wholly or predominantly for personal, domestic or household purposes - Test to be applied to ascertain intended purpose - Allegation of false and corrupt dealings by mortgage broker - Whether mortgage broker is an agent of the credit provider - Whether the declaration made is ineffective

Legislation:

Consumer Credit (Western Australia) Act 1996 (WA), s 5
Consumer Credit (Western Australia) Code (WA), s 6, s 6(1)(b), s 11, s 11(1), s 11(2), s 11(3), s 70(1)

Result:

The application is dismissed

Category: B

Representation:

Counsel:

Applicants: Selfrepresented
Respondent: Mr P Sheiner

Solicitors:

Applicants: Self-represented
Respondent: Gadens Lawyers

Case(s) referred to in decision(s):

Esanda Finance Corporation Ltd v Spence Financial Group Pty Ltd [2006] WASC 177
Masquarade Music Ltd v Springsteen (2001) 51 IPR 650
McLean and Permanent Custodians Ltd [2010] WASAT 127

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The proceedings concern three preliminary issues, firstly whether the Tribunal can accept copies of credit applications as 'best evidence' if the originals of the documents are not available; secondly, whether the respondent, based on the information that was given to a mortgage broker, Ms Siranovic, knew or had reason to believe that the credit was wholly or predominantly for private, household or domestic use; and thirdly, what, objectively, the intended purpose of the credit was.
The applicants contended that the credit applications had been tampered with; that the Tribunal cannot rely on the facsimile copies of credit applications as best evidence; that Ms Siranovic was an agent for the respondent and the information the applicants gave to her is presumed to be known by the respondent since she was the respondent's agent; and, objectively, the credit was wholly or predominantly for purposes of private, household or domestic use and not for business or investment purposes as per the declaration. The applicants concluded that the dispute falls within the ambit of the Consumer Credit (Western Australia) Code (WA).
The respondent contended that it was its policy to accept credit applications by facsimile and that, in the absence of the original applications or certified copies of the original applications, the facsimile copies should be accepted as best evidence; the declaration thereon that the purpose of the credit was wholly or predominantly for business or investment must be accepted; and that Ms Siranovic was not an agent of the respondent. The respondent concluded that the dispute does not fall…

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 GOFF and CITIBANK PTY LTD

Details

AGLC: GOFF and CITIBANK PTY LTD [2011] WASAT 10
Case: [2011] WASAT 10
Decision Date

CaseChat Overview and Summary

Vernon George Goff and Emma Luisa Goff (the applicants) sought an order for the reopening of what they contended was an unjust transaction under the Consumer Credit (Western Australia) Act 1996 (WA). The applicants sought an order for the reopening of two loan contracts, contending that Citibank Pty Ltd (the respondent) did not make reasonable enquiries into their ability to service the loans. The State Administrative Tribunal (the Tribunal) was requested to determine whether it had jurisdiction to determine the dispute. The Tribunal found that it did not, and the applicants' application was dismissed. The applicants contended that the Tribunal should not accept copies of credit applications as best evidence because they were not the best available evidence. The applicants' rights were severely prejudiced by the inability or unwillingness of the respondent to make available the original or certified copies of the original credit applications. The applicants had only seen and signed the execution pages of the original credit applications. The applicants did not sign a business declaration but they did not deny signing a page of an incomplete application that was sent to them by facsimile by Ms Siranovic. All the other information contained in the credit applications was inserted by Ms Siranovic. The applicants had never received or sighted copies of the completed credit applications. The original credit applications 'have been tampered with'. It is only if the originals of those applications were provided that the existence and extent of any tampering can be demonstrated, if necessary, by an expert. The applicants rejected the evidence of the respondent's Mortgage Collector, Mr Kovicz, that the originals of the credit applications were not held by the respondent. The applicants contended that the copies of the credit applications before the Tribunal were potentially flawed and not the best evidence available for purposes of these proceedings. The document management system of the respondent did not comply with best practice and was essentially 'without integrity'. The respondent acted 'without legal due diligence' by accepting facsimile copies of a credit application. The applicants concluded that accepting facsimile copies of loan application in preference to maintaining the original document on file destroys the integrity of their filing system and archival modus operandi. On the one hand, the Respondent gains profit, speed and convenience but conversely potentially loses reliability, truthfulness and legal accountability. The respondent contended that it was its policy to accept credit applications by facsimile and that, in the absence of the original applications or certified copies of the original applications, the facsimile copies should be accepted as best evidence. The respondent had no documents or correspondence in regard to this matter in its possession other than those already submitted to the Tribunal. Mr Kovicz explained in his affidavit that, other than the copies of documents already provided to the Tribunal, there were no other documents or correspondence in the possession of the respondent 'which refer to the purpose of the loan, or the subsequent increase to the loan'. To the best of Mr Kovicz's knowledge and belief, there were no documents which observed any verbal communication between the applicants or Ms Siranovic, and the respondent, with regard to the purpose of the loan. The copies provided to the Tribunal were copies of the copies received by the respondent via facsimile from Ms Siranovic. Mr Kovicz explained that he did not intend to mislead the Tribunal or to create the impression that the copies of credit applications provided to the Tribunal were copies of the original applications. The copies provided to the Tribunal were copies of the copies received by the respondent via facsimile from Ms Siranovic. The Tribunal accepted the facsimile copies as the best evidence available. The Tribunal was satisfied that searches by the respondent could not obtain any other documentation or correspondence and the applicants were also not able to tender better documents. The parties were also not able to locate Ms Siranovic for her to give evidence in the proceedings. The Tribunal further found that Ms Siranovic was not the agent of the respondent. The mere fact that she assisted the respondents to complete credit applications and that she received a commission from the respondent does not imply an agency relationship. Finally, the Tribunal held that, objectively, the respondent did not know of, or have reason to believe, that the credit applied for was not to be used wholly or predominantly for business or investment purposes. The Tribunal therefore does not have jurisdiction to deal with the dispute under the Consumer Credit (Western Australia) Code and the application must be dismissed.

Orders