Halls v Pioneer Credit Solutions Pty Ltd (No 2)

[2020] NSWSC 621

Supreme Court

New South Wales

Medium Neutral Citation:

Halls v Pioneer Credit Solutions Pty Ltd (No 2) [2020] NSWSC 621

Hearing dates:

20 May 2020, 22 May 2020

Decision date:

25 May 2020

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)   Refuse leave to appeal.

 

(2)   Otherwise dismiss the summons.

 (3)   Order the plaintiff to pay the defendant’s costs of the proceedings.

Catchwords:

APPEALS — Appeal from Local Court to Supreme Court — limited jurisdiction — question of fact — leave to appeal refused

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 100
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 236, 237
Contracts Review Act 1980 (NSW), s 6
Conveyancing Act 1919 (NSW), s 12
Limitation Act 1969 (NSW), ss 14, 54
Local Court Act 2007 (NSW), ss 39, 40
Motor Dealers Act 1974 (NSW)
Motor Dealers and Repairers Act 2013 (NSW)
National Consumer Credit Protection Act 2009 (Cth), Sch 1 – National Credit Code, s 88
Supreme Court Act 1970 (NSW), s 75A
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 50.12, 50.16

Cases Cited:

Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11
Lynn v Bamber [1930] 2 KB 72
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; [2004] HCA 16

Category:

Principal judgment

Parties:

Jeremy Christopher Halls (Plaintiff)
Pioneer Credit Solutions Pty Ltd (Defendant)

Representation:

Counsel:
Self-represented (Plaintiff)
R Freeman (Defendant)

  Solicitors:
Not applicable (Plaintiff)
Sphere Legal (Defendant)

File Number(s):

2019/372126

 Decision under appeal 

Court or tribunal:

Local Court

Date of Decision:

31 October 2019

Before:

Kennedy LCM

File Number(s):

2019/115635

Judgment

Introduction

1. By summons filed on 26 November 2019, the plaintiff, Jeremy Halls, seeks leave to appeal against the judgment ordered against him by Kennedy LCM in the Local Court at Sydney on 31 October 2019 in favour of the defendant, Pioneer Credit Solutions Pty Ltd (Pioneer). The proceedings were commenced within the time provided for by the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 50.12.

2. Mr Halls’ application for leave to appeal is brought pursuant to ss 39 and 40 of the Local Court Act 2007 (NSW). He has a right of appeal on a question of law alone and a right to seek leave to appeal on a question of mixed law and fact.

3. The court book prepared for the proceedings in this Court did not contain the transcript of the proceedings in the Court below. The hearing commenced and was concluded (including the delivery of ex tempore reasons) within the day. The parties agreed to proceed with the hearing in this Court on the appointed day, 20 May 2020, notwithstanding the lack of transcript on the footing that they would have an opportunity on 22 May 2020 to address me on any further matters which arose from the transcript, which was to be available on 21 May 2020. The transcript was provided to the Court and to the parties in time for the adjourned hearing. It also emerged on 22 May 2020 that one of the exhibits on which the plaintiff sought to rely (Exhibit 3) had not been included in the court book. It was tendered before me, together with all other exhibits that had been before the Local Court.

The proceedings in the Court below

The pleadings

The statement of claim

4. On 13 April 2019 Pioneer filed a statement of claim in the Local Court seeking judgment in the amount of a debt alleged to be outstanding. Pioneer alleged that the debt owed by the plaintiff to Toyota Finance Australia Pty Ltd (Toyota) had been validly assigned to it. Pioneer alleged that on 29 September 2011 Mr Halls had entered into a contract with Toyota pursuant to which Toyota would finance the purchase of a truck (the loan contract).

5. Pioneer alleged that as at 23 June 2016, $46,022.94 remained outstanding under the loan contract and that interest ran on that amount at the rate of 9.99% per annum. It alleged, in the statement of claim as filed, that the last payment made by Mr Halls was received by Toyota on 15 January 2016. However, Pioneer subsequently corrected this date by its evidence that the final payment had been made by the plaintiff on 18 October 2013.

6. Pioneer alleged that Toyota assigned the debt to it on 23 June 2016 and that, on 24 June 2016, Pioneer notified Mr Halls of the assignment and demanded repayment of the debt. Pioneer also alleged that, on 20 December 2016, it served a notice pursuant to s 88 of Schedule 1 of the National Consumer Credit Protection Act 2009 (Cth) (the Code), with which Mr Halls failed to comply.

The defence

7. In his defence filed on 1 May 2019, Mr Halls denied the claim. He alleged that the claim was statute-barred on the basis that the loan contract had been entered into more than six years before the date of commencement of the proceedings. He cited s 14 of the Limitation Act 1969 (NSW) and ss 236(2) and 237(3) of the Australian Consumer Law. He alleged that the claim ought be summarily dismissed as no claim had been made by Toyota against him. He also alleged that the truck provided was not roadworthy and that if Pioneer’s claim was allowed to proceed, he would make a third party claim against Toyota or the entity which provided the truck (see below).

The evidence in the Court below

8. Pioneer called one witness, James Singh, in its case and Mr Halls gave evidence in his defence. Both witnesses were cross-examined.

Evidence of James Singh

9. Mr Singh, a director of Pioneer, gave evidence by affidavit sworn 7 October 2019 as follows. The loan contract was entered into between Toyota (which used the trading name “Hino Financial Services”) and Mr Halls on 29 September 2011 and executed by Mr Halls on that date. The loan contract provided that “rent payments” of $1,093.63 would be payable every month for a period of 60 months (five years), commencing one calendar month from the date on which the “Owner” (Mr Halls) entered into the loan contract.

10. The finance was provided to enable Mr Halls to purchase a truck from “City Hino”, which was a division of SMA Motors Pty Ltd (SMA). There was no evidence of the relationship, if any, between Toyota and SMA. The terms of the term purchase agreement included cl 7.4 which provided for interest on overdue amounts.

11. The amount of the debt, which Mr Singh deposed was still owing by Mr Halls, was sought to be proved in two ways: first, there was a document entitled “finance extracted transaction listing”, Toyota’s business record, which set out the amounts owing over time (the last entry of which was 15 June 2016, being the approximate date of assignment (see below)); and, secondly, screenshots from a computer system maintained by Pioneer called Wincollect.

12. Mr Singh’s evidence was that the debt under the loan contract was assigned by Toyota to Pioneer by deed on 14 June 2016, together with other “bad debts” owing to Toyota. Certain debts, defined as “Excluded Debts” were excluded from the assignment. The definition of “Excluded Debts” included:

“A Debt which, as at Completion:

…

•   In respect of which a statutory limitation on the recovery of the debt has been reached on or prior to the Completion Date, or any Debt that will reach such a statutory limitation within 6 months from the Completion Date …”

13. It was put to Mr Singh that the debt owed by Mr Halls to Toyota was an Excluded Debt on the basis that it was time-barred at the time of the purported assignment. Mr Singh refuted that proposition on the basis that a payment had been made on 18 October 2013. It was also put to Mr Singh that Mr Halls had terminated the loan contract by letter dated 13 January 2013. Mr Singh did not accept that the loan contract had been terminated as Mr Halls had not only retained the truck, but he had also made further payments up to and including 18 October 2013, which Toyota had accepted.

14. On 24 June 2016, Pioneer sent a notice of assignment to Mr Halls and a demand for payment. No payment was made by Mr Halls after the assignment. On 20 December 2016 a default notice was sent to Mr Halls pursuant to s 88 of the Code. The default was not rectified.

15. On 20 May 2017 a final notice was sent to Mr Halls, demanding payment of the amount outstanding and foreshadowing that Pioneer would commence proceedings against Mr Halls in the Magistrates Court in South Australia if the outstanding monies were not paid.

16. On 28 July 2017 Pioneer filed a claim in the Magistrates Court of South Australia, which claimed a total amount (including filing and solicitors fees) of $52,849.72. On 18 August 2017, Mr Halls filed a defence to Pioneer’s claim.

17. On 5 March 2018, Mr Halls filed an application in the Magistrates Court of South Australia in which he alleged that New South Wales was the appropriate jurisdiction for Pioneer’s claim and sought a stay of the proceedings in South Australia. Mr Halls’ application was heard by Magistrate Jackson, who granted the stay on 20 July 2018. Her Honour’s reasons indicate that Mr Halls had foreshadowed bringing a cross claim against Toyota which would require him to call witnesses who were living in New South Wales. No such witnesses were actually called by Mr Halls at the hearing before Kennedy LCM in the Court below.

18. On 13 April 2019, Pioneer commenced proceedings against Mr Halls in the Local Court in New South Wales. Mr Halls filed a defence on 1 May 2019. The matter was listed for hearing on 31 October 2019.

Evidence of Mr Halls

19. In an affidavit sworn on 25 September 2019, Mr Halls deposed that the amount claimed by Pioneer and the alleged date of breach were incorrect. He contended in his affidavit that, because of the misstatement of the amount, Pioneer had not complied with s 88 of the Code. He also contended that the assignment was void and repeated the contentions he had raised that the claim was time-barred. Mr Halls further contended that he had a right to claim damages against Toyota and SMA for various reasons, including because repairs to the truck had been required.

20. Mr Halls swore a further affidavit on 7 October 2019, to which were annexed many of the documents which had also been annexed to Mr Singh’s affidavit referred to above. He also relied on a supplementary statement dated 26 October 2019 which was in the form of submissions.

21. Mr Freeman, who appeared for Pioneer in the Court below and in this Court, objected to much of the material in Mr Halls’ statements on the basis that it was not evidence, but rather submissions. Her Honour upheld Mr Freeman’s objection and confirmed that the material would be read only as a submission. The effect of this ruling was that Mr Halls had no evidence of any relationship between Toyota and SMA and no evidence of alleged unconscionable conduct or breaches by either of those entities of the consumer legislation on which Mr Halls purported to rely.

22. In cross-examination, Mr Halls accepted that, when he took possession of the truck in September 2011, he appreciated that it was a second-hand vehicle which had been manufactured in 2005. He denied that the last payment he made was on 18 October 2013 and said that Pioneer’s records were incorrect. He did not adduce any evidence of the additional payments which he alleged he made after that date.

23. Mr Halls accepted that, after he sent the letter dated 13 January 2013 threatening to stop making payments, he had continued to make payments and retained possession and use of the truck.

24. Mr Halls tendered various documents in addition to those attached to his affidavits. The only one of present relevance is Exhibit 3, which is a default notice sent by Toyota (using the trade name Hino Financial Services) which set out the “Status of the account as at 10 February 2015”. The total amount due was said to be $20,361.99 and comprised an “Amount Overdue” of $18,587.52 and “Default Charges Payable” of $1,774.47. Mr Halls relied on this document in support of his contention that the business records tendered by Pioneer (being Toyota’s transaction records and the Wincollect screenshots) were incorrect.

Evidence of Mr Singh in reply

25. Mr Singh affirmed an affidavit in reply to which he annexed copies of the letters of demand sent to Mr Halls at various times, including a notice under s 88 of the Code.

Submissions made in the Court below

26. Mr Halls made submissions in the Court below which were outside his pleaded case. He referred globally to consumer legislation and sought that the magistrate apply it in his favour. For example, at tr. 67.28-.48 he said:

“There are various acts and legislation that covers me as a purchaser of a truck, and I'm not going to bore the Court and your Honour by citing those because, you know, I'm not, I'm not going to be saying I'm going to be citing law to you because it's up to the Court to decide whatever's - you know, the penalty or whatever the decisions of the Court and that's, that's proper for the Court to make that decision. I am, though, covered by the Australian Consumer Law, the, the Competition and Consumer Act 2010.

It covers in section 3, which is goods and services. It is a large Act that goes into, you know, what, what “goods and services” means. I did buy a truck. I did buy it under the Consumer Act. There are conditions of the consumer law which also covers consumers in relation to filing damages, in relation to section 236 for example. It's division 3 section 236 under the Competition and Consumer Act, Australian Consumer Law, and under section 236(1) it says, ‘a person (the claimant) suffers loss or damages because of the conduct of another person’.

Now, I’m claiming to the Court and to the plaintiff that I suffered considerable losses or damages. I was relying on the roadworthiness of the truck to carry out my daily business of carrying goods. When the time it was off the road, I was not earning income (as said) …”

27. Mr Halls also referred to the Contracts Review Act 1980 (NSW), the Code and the Competition and Consumer Act 2010 (Cth). He also alleged that the dealer was guilty of odometer tampering in breach of the Motor Dealers and Repairers Act2013 (NSW) or the Motor Dealers Act 1974 (NSW) (the latter statute being in force at the relevant time).

28. The submissions made by Mr Freeman were not transcribed.

The reasons of the Court below

29. Her Honour, after hearing the matter on 31 October 2019, delivered ex tempore reasons at the conclusion of submissions. Her Honour summarised the evidence of Mr Singh and Mr Halls. The magistrate identified the issues raised by Mr Halls in defence of Pioneer’s claim as follows:

1. Pioneer’s claim was statute-barred;

2. He was entitled to bring a claim for damages against Toyota and the supplier of the truck which was defective;

3. He was not bound by the loan contract because it did not comply with applicable statutory provisions and was “unconscionable”.

30. Her Honour found that Mr Halls had executed the loan contract and that the deed validly assigned the debt under the loan contract from Toyota to Pioneer. The magistrate accepted the evidence of Mr Singh, which she found “very compelling”. Her Honour said that she found the evidence of Mr Halls “confusing”. She did not accept that Mr Halls had not signed the loan contract. Her Honour found that, in so far as the vehicle was defective, it was neither the responsibility of Toyota (whose role was as financier), nor of Pioneer. Accordingly, her Honour found that there was no set-off available to Mr Halls by reason of any defect in the vehicle. Her Honour found the evidence that the vehicle was defective was “limited” and said: “I have a picture of a speedo with a fly he [Mr Halls] says was in that.” Her Honour also referred to some repairs which had to be done 12 months after the truck was purchased.

31. Her Honour accepted Mr Singh’s evidence about the amount of the debt. Her Honour rejected the submission that Mr Halls’ letter of 13 January 2013 was effective to terminate the contract. Her Honour referred to the evidence that Mr Halls had made payments after that date and that, in so far as he purported to rescind the contract, such rescission was ineffective as it was not accepted by Pioneer, which had continued to accept the payments totalling $34,402.99 which Mr Halls had made after that date. According to Toyota’s business records, which her Honour accepted as accurate, the last payment made by Mr Halls was made on 18 October 2013 in the sum of $1,140. It follows from her Honour’s finding referred to above, that the loan contract was still on foot on that date.

32. Her Honour addressed each of the arguments put by Mr Halls, whether pleaded or not. It is not necessary to set out her Honour’s detailed reasons in their entirety to demonstrate the care with which the Court below performed the task. However, the following extract sets out the principal reasons for her Honour’s conclusions:

“Overall I can say this, my intention is not to go through each of the sections of each of the Acts that he has taken me through. I have mentioned each of those sections and each of those Acts, but, in my view, this matter turns on the facts. The facts of this matter are that there was a purchase of a vehicle, there was the entering into of a finance agreement by Mr Halls. I accept on balance that that did occur. I accept on balance that the deed of debt agreement assigned that debt properly to the current plaintiff who, therefore, has standing to bring this claim. I accept on balance that the evidence supporting the debt, being the transaction list and the WinCollect screens, and particularly the evidence of Mr Singh, substantiates this debt that remains outstanding.

Mr Halls denied that these payments were made in accordance with this schedule. He said that other payments had been made. He brought no evidence at all in relation to any payments he had made himself from his own bank accounts. He merely asserted that this was the wrong calculation and that the plaintiff is not entitled to this sum.

What I am seeing in front of [m]e is a very careful calculation that has been taken from documents and material setting out clearly the financial situation that the plaintiff finds itself in, in relation to this particular debt.

I do not accept the submission that there was any unconscionable conduct on balance by anybody in relation to the entry into this agreement. I cannot accept on balance that this truck did have defects or otherwise and I cannot be satisfied on the evidence before me - there really was very limited evidence from the defendant - of any setoff in the sum of $54,610 in the circumstances. As I say, there is really limited information about any defects with the truck. Anything that I have been provided with was some 12 months after the purchase of the truck and I just do not have any expert evidence or otherwise linking any defects to any responsibility of the plaintiff or the originating lender.

In relation to the issue of what is asserted by the defendant is that there was a rescission of the contract and so the date of the limitation period dates back to the period where the defendant rescinded the contract. The plaintiff says there was a letter sent. However, the defendant then continued making payments after the date of that letter. It says that its cause of action crystallised at around the date of the final payment and then the failure to make any future payments. That is when the cause of action, pursuant to breach of contract, arises. I agree with those submissions, that the date of the cause of action arising is the date from which the limitation period runs, and s 14 of the Limitation Act provides that the cause of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff. Of course, the cause of action arises with the failure to comply and the failure to continue to make payments in accordance with the agreement.

Mr Halls said he wrote on a number of occasions, and I have a number of emails in front of me about the defects that he experienced with the truck. In my view, that is insufficient evidence for me to determine that, again, as I said, this truck was anything other than a vehicle that he had obtained and I certainly cannot accept that he suffered loss anything like he has put before the Court in those financial terms. I just cannot accept that.

He raises issues about a number of matters back in 2012, an air dryer kit being leaking, bushes on the front suspension racks gone, but, again, this is July 6, 2012, sometime after he has bought a second hand vehicle, so I think I have addressed each of the causes of action and the defence and/or setoff that has been raised.

The general facts of the matter remain that Mr Halls obtained a vehicle, entered into an agreement to finance the vehicle, has not paid that finance, paid some of it, which is in keeping with the agreement, and failed to pay the remainder, and as such I am satisfied that in relation to the debt, that the plaintiff has made out its case on balance that the defendant did breach the loan agreement and failed to make payments in accordance with that loan agreement. I accept that at 23 June 2016 a total amount of $46,022.94 remained outstanding ...”

33. At the conclusion of giving reasons, her Honour made an order for judgment in the sum of $46,022.94 together with interest of $12,901.38 to the date of filing and interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) thereafter, plus filing fees of $498 and service fees of $67. Her Honour ordered Mr Halls to pay Pioneer’s costs on the ordinary basis.

The grounds of appeal

34. In substance, Mr Halls reiterated, as “appeal grounds”, the arguments which he had made in the Court below. He contended that the magistrate ought not to have accepted Mr Singh’s evidence of quantum and ought not to have found the deed of assignment to be valid. He contended that the proceedings were time-barred because they had been commenced more than six years after the contract was made. Further, he contended that he had rescinded the loan contract on 13 January 2013 (by sending the letter referred to above) and that, accordingly, the proceedings were time-barred. He also alleged that the Court below had not dealt with his arguments that Toyota and Pioneer had not complied with the various provisions of consumer legislation, including the Contracts Review Act on which he had relied at the hearing in the Court below.

35. Mr Halls also argued that the deed of assignment was invalid to transfer the debt he owed to Toyota because the debt fell within the definition of “Excluded Debts” defined in Schedule 2 of the deed, as it was time-barred. Mr Halls raised the question of repair costs he had incurred to make the vehicle roadworthy and argued that Pioneer was not a party to the loan contract and therefore is “unaffected if they win or lose the case at court”.

36. Mr Halls contended that Pioneer was purporting to charge interest at 9.9% per annum whereas the loan contract provided only for interest at a rate of 4.9% per annum.

37. Mr Halls also put arguments to me which had not been put by him at the hearing before the magistrate. For example, Mr Halls alleged that he had been put under pressure by the late service of the evidence of Mr Singh. However, he accepted that he had not applied for an adjournment of the hearing before the magistrate on that basis, or at all.

Consideration

38. The reasons given by the Court below indicate that her Honour made all relevant factual findings to arrive at the conclusion that Pioneer had established its claim for judgment and interest. The matters raised by Mr Halls are, in the main, matters of fact, which are not amenable to interference by this Court.

39. However, it is necessary to address the grounds in turn, at least in so far as they could give rise to questions of law or mixed questions of law and fact.

Grounds not put to the Court below

40. This Court’s jurisdiction under ss 39 and 40 of the Local Court Act is an appellate jurisdiction. It is not open to Mr Halls to run his case differently in this Court since he has had an opportunity to run his case in the Court below. Further, this Court’s jurisdiction in such appeals is much more limited than that which applies in appeals to the Court of Appeal from this Court or from the District Court where the powers conferred by s 75A of the Supreme Court Act 1970 (NSW) apply without the restrictions imposed by ss 39 and 40 of the Local Court Act.

Evidence not adduced in the Court below

41. Mr Halls relied on this Court’s power under UCPR, r 50.16(3) which provides that this court may receive further evidence on an appeal. The wording of this provision replicates that of s 75A(8). However, it provides no warrant for evidence which was available to a party at the time of the hearing in the Court below to be adduced on appeal. Even without the restrictions in ss 39 and 40 of the Local Court Act, the plaintiff would have to show that the evidence sought to be relied upon was not available at the time of the hearing below and was credible and highly probative. The plaintiff has not attempted to meet these requirements. In these circumstances, the only evidence to which I will have regard in deciding his application for leave to appeal is that which was before the Court below.

Grounds relating to the limitation defence

42. Two provisions of the Limitation Act are relevant. Section 14 provides for a general limitation period of six years. Section 54 provides that if a person against whom another person has a cause of action confirms the cause of action after time has started to run but before it has expired, the time starts to run again from the time of the confirmation. It relevantly provides that payments have the effect of confirming the cause of action: s 54(2)(a)(ii).

43. The agreement which has been referred to above as the loan contract is, in terms, a contract for hire whereby Mr Halls was obliged to make 60 “rent payments” of $1,098.63 per month.

44. Mr Halls’ insistence that time starts to run under the Limitation Act from the date of the contract is wrong as a matter of law. The cause of action for breach of contract accrues on breach, not on the date the contract was made: Lynn v Bamber [1930] 2 KB 72 at 74, cited with approval in Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; [2004] HCA 16 at [103] (McHugh J). Mr Halls bore the onus of establishing the defence. The effect of Mr Halls’ reliance on the limitation defence was, even apart from the day of the last payment (which her Honour found had been made on 18 October 2013), that Pioneer was not entitled to sue for breaches of contract that were committed before 13 April 2013, being six years before 13 April 2019, the date on which the statement of claim was filed. No error has been shown in her Honour’s approach to the limitation defence.

45. Mr Halls’ misapprehension as to the limitation period for claims for breach of contract formed the basis of his contention, in the Court below, and in this Court, that the debt was an “Excluded Debt” within the meaning of the deed of assignment and therefore was not assigned to Pioneer by Toyota pursuant to the deed. For the reasons given above, this contention is misconceived as the debt was neither statute-barred at the time of assignment, nor at the time proceedings were commenced, nor would the debt become statute-barred within six months of the deed of assignment.

46. For completeness, I note that the assignment would appear to comply with s 12 of the Conveyancing Act 1919 (NSW) as it was by deed and notice was given to Mr Halls.

47. Mr Halls further contended that there had been significant delay on the part of Toyota and Pioneer in seeking to recover damages under the loan contract. The only relevant time period for the purposes of an action for breach of contract is the limitation period. There is no applicable doctrine of laches which would prevent Pioneer bringing the proceedings at the time it filed the statement of claim in the Local Court.

48. Further, Mr Halls contended that the contract had been validly terminated by his letter to Toyota of 13 January 2013 and that Pioneer was out of time as the proceedings had been commenced more than six years after that date. It was open to her Honour to find that the contract was still on foot after 13 January 2013. Indeed any other finding would have been erroneous, having regard to the unchallenged evidence that Mr Halls had made payments throughout 2013 until October 2013 and that he had retained the truck.

Grounds relating to consumer legislation

49. The plaintiff alleged that the magistrate had not dealt with his arguments that Toyota and Pioneer had not complied with consumer legislation. The difficulty with this argument is that the magistrate is only obliged to address the defence which has been pleaded: Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 (Mason CJ and Gaudron J); [1990] HCA 11. None of the provisions of consumer legislation were referred to in the pleading, except in relation to the limitation defence.

50. Mr Halls cannot complain if the magistrate did not address in detail legislation which he either mentioned in submissions but did not plead, or did not mention at all. It is not sufficient for him merely to refer to legislation without specifying how and in what respect he relies on it. He failed to identify how the legislation afforded him a defence to Pioneer’s claim. In these circumstances, her Honour was not required to do more than note the legislation referred to and conclude that, on the basis of the evidence before her Honour, Mr Halls had not made out a defence to the claim under the provisions on which he sought to rely. The magistrate expressly referred to the legislation relied on, even though it had not been pleaded and addressed its relevance in light of the evidence. The magistrate had no obligation to review the legislation herself to ascertain whether any provision could assist Mr Halls, since this would have compromised her Honour’s role as an independent judicial officer. Further, although Mr Halls submitted before me that Toyota was a credit provider which was “linked” to the dealer who had supplied the vehicle, there was no evidence to support this proposition.

51. Mr Halls purported to rely on the Contracts Review Act. However, not only did he not plead it in his defence, it was plainly not available to him since he admitted in cross-examination that he purchased the truck for the purposes of his business which he conducted through an Australian Business Number: s 6(2) of the Contracts Review Act.

52. Even had the provisions of the consumer legislation been pleaded (which they were plainly not), the allegations made by Mr Halls were not supported by admissible evidence (as distinct from assertions or submissions from the bar table). Nor, as referred to above, did Mr Halls establish that any breach by SMA (relating, for example, to the roadworthiness of the truck) could be sheeted home to Toyota and, after assignment, to Pioneer. In these circumstances, no error on the part of the Court below has been demonstrated.

Grounds relating to the alleged defects in the vehicle

53. Mr Halls contended that the defects in the vehicle supplied amounted to a defence to Pioneer’s claim. However, the magistrate made findings about the extent and timing of the defects and found that they did not amount to a defence to the claim. These findings were factual findings and were thus not amenable to this Court’s jurisdiction under ss 39 and 40 of the Local Court Act. Mr Halls has failed to identify or establish any error in a question of law or question of mixed law and fact in her Honour’s reasons.

54. Mr Halls referred to the Motor Dealers and Repairers Act in this context but did not explain how it operated as a defence to Toyota’s claim where Toyota was the financier and not the dealer who provided the truck (SMA) and that the relationship between the two entities, if any, had not been established.

Grounds relating to the quantum of the claim

55. Mr Halls contended that her Honour was in error in allowing interest at the rate of 9.9% per annum on the amount outstanding. He accepted that the loan contract provided for interest to be payable at 4.9%. Mr Singh deposed to the amount owing and adduced business records to establish the amount. His evidence quantifying the debt was not challenged in this respect. It was open to her Honour to accept Mr Singh’s evidence as to quantum.

56. The document marked Exhibit 3 (referred to above) was not, on proper analysis, inconsistent with the other business records relied upon to establish the amount of the debt. As at the date of Exhibit 3, 10 February 2015, the loan contract was still on foot and the amounts due after that date (for the remaining period until 29 September 2016, being the date on which the last rent payment was due) had not become payable. The business records relied upon presented the indebtedness in a different way and set out the total amount owing over the full term from which payments made were deducted from a running balance.

57. Mr Halls contended that Pioneer was bound by the allegation in paragraph [8] of its pleading that the last payment made had been made by him on 15 January 2016. It was made clear by Mr Singh, whose evidence the Court below was entitled to accept, that this was incorrect and that the last payment had been made in October 2013. Her Honour was entitled to take into account, in accepting the evidence of Mr Singh on this question, that Mr Halls had not adduced any evidence of any payments having been made after October 2013.

Grounds relating to parties

58. Mr Halls argued that Hino Financial Services, which was a division of Toyota, had not executed the loan contract or the deed of assignment. As I understood it, he argued that the deed of assignment was invalid on this basis. He failed to appreciate that the only relevant legal person which was providing finance was Toyota, being the relevant corporate entity which advanced the money to him. He also failed to appreciate that Hino Financial Services had no separate legal personality from Toyota.

Conclusion

59. None of the matters raised by Mr Halls involves a question of law alone. In so far as his grounds involve questions of mixed law and fact, he has not persuaded me that leave ought be granted. The grounds raised are largely, if not wholly, devoid of merit, raise no error of the requisite kind and involve no question of public importance. The magistrate’s reasons, which were given ex tempore, were more than sufficient to explain the basis for the orders made. In these circumstances I decline to grant leave to appeal.

Costs

60. I do not understand there to be any basis on which to depart from the general rule that costs ought follow the event: UCPR, r 42.1.

Orders

61. For the reasons given above, I make the following orders:

1. Refuse leave to appeal.

2. Otherwise dismiss the summons.

3. Order the plaintiff to pay the defendant’s costs of the proceedings.

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Decision last updated: 25 May 2020