JESSUP v HSBC BANK

[2012] FMCA 309

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JESSUP v HSBC BANK [2012] FMCA 309

CONSUMER LAW – Application for injunctive relief pursuant to s.177 of the National Consumer Credit Protection Act – respondent obtaining judgment in NSW – applicant resident in Tasmania – whether regulations and/or superseded Consumer Credit Code require proceeding to have been issued in Tasmania. 

National Consumer Credit Protection Act 2009, ss.178, 179
Competition and Consumer Act 2010
Consumer Credit (Tasmania) Act 1996, ss.5, 8, 10
Tasmanian Statutes 1996
National Consumer Credit Protection Regulations 2010, reg.36(3)

Field v Perpetual Ltd [2010] FCA 1001

Applicant: STEPHEN JESSUP

Respondent: HSBC BANK

File Number: LNG 56 of 2011

Judgment of: Burchardt FM

Hearing date: 17 February 2012

Date of Last Submission: 15 March 2012

Delivered at: Melbourne (via video link to Hobart)

Delivered on: 23 April 2012

REPRESENTATION

The Applicant: In person (assisted at hearing by McKenzie Friend)

Counsel for the Respondent: Mr P. Lunn

Solicitors for the Respondent: Simmons Wolfhagen

ORDERS

1. The application be dismissed. 

2. The applicant pay the respondent’s costs. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT HOBART

LNG 56 of 2011

STEPHEN JESSUP

Applicant

And

HSBC BANK

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 11 November 2011, the applicant filed an application in the Court seeking relief under the National Consumer Credit Protection Act 2009 (“the Act”). The applicant sought an interim injunction to prevent the respondent from further relying upon a judgment it had obtained in the New South Wales Local Court, the setting aside of the judgment in that Court and the return of moneys obtained pursuant to it. Additionally, the applicant sought compensation under ss.178 and 179 of the Act and, if appropriate, damages for unconscionable conduct under the Competition and Consumer Act 2010. 

2. For the reasons that follow, I do not propose to grant the applicant the relief he seeks and the application will be dismissed with costs. 

The Facts

1. An affidavit by Tim Mozsny filed on 4 January 2012 on behalf of the respondent makes a number of factual assertions which have not been the subject of any challenge by the applicant and which I accept.  From that affidavit it is apparent that on or about 3 March 2005, the applicant applied to the respondent for a Visa Card via the internet. 

2. On or about the same date, the respondent approved that application and made credit of $22,000 available to the applicant. 

3. The applicant started to use the credit card on or about 17 March 2005. 

4. By 2009, the applicant was failing to pay the minimum amount due under the contract (governed by conditions sent to him in March 2005).  On or about 4 September 2009, the respondent issued a notice pursuant to s.80 of the Consumer Credit Code demanding repayment of the overdue amount within 30 days. 

5. The applicant failed to pay and by letter dated 19 July 2010, the respondent wrote to the applicant notifying him that the credit card had been cancelled and demanded full payment of the outstanding…