Jones v Impala Finance Co Pty Ltd - [1974] HCA 6

HIGH COURT OF AUSTRALIA

. McTiernan, Menzies, Gibbs, Stephen and Mason JJ.

JONES v. IMPALA FINANCE CO. PTY. LTD. ; McLEOD v. IMPALA FINANCE CO. PTY. LTD.

(1974) 130 CLR 51

4 March 1974

Money-lenders (N.S.W.)

Money-lenders (N.S.W.)—Bill of sale over motor car given by buyer to dealer—Power of sale in event of default under separate loan agreement with financier—Action on loan agreement—Whether security "made or taken to secure loan" by financier—Money-lenders and Infants Loans Act, 1941-1965 (N.S.W.), s. 24*. *Section 24 of the Money-lenders and Infants Loans Act, 1941-1965 (N.S.W.) provides: "(1) If any security is after the commencement of this Act made or taken to secure the payment of any money lent by a money-lender or any interest thereon, the money-lender shall not be entitled to institute any proceedings other than for the enforcement of the security, to recover any amount payable under the contract or payable pursuant to any guarantee for the repayment of the loan or any interest thereon. (2) In this section 'security' includes bill of sale, mortgage, lien, and charge of any real or personal property, and any assignment, conveyance, transfer or dealing with any real or personal property to secure the repayment of any loan."

Decisions

1974, March 4.
The following written judgments were delivered :-
McTIERNAN J. On 22nd February 1969 the appellants, Mr. and Mrs. Jones, purchased a Holden Station Sedan, FB.1960, Model 1961, from Autobahn Motors Pty. Ltd. (hereinafter called "Autobahn") for $800. At the time of the sale some discussion took place between the appellants and the salesman about "a noise in the motor". The salesman said that this would be rectified and he took the car to the rear of the sales premises. The appellants drove away in the car. (at p53)

2. In order to finance the purchase two loans were made available to the appellants. These loans were arranged by the salesman at the sale-yard at the time of the sale. The finance company, Impala Finance Co. Pty. Ltd. (hereinafter called "Impala"), advanced the sum of $625. This amount, plus interest, was to be repaid by twenty-four consecutive monthly instalments of $35.22. The first instalment was to be paid on 8th March 1969. Another amount of $100 was advanced by Autobahn. This amount, together with interest, was to be repaid by three consecutive monthly instalments each of $33, and the final instalment of $23.63. The first payment of this advance was to be made on 8th April 1971, that is, one month after the last payment made on the loan advanced by Impala. The advance was secured by a bill of sale over the motor vehicle. (at p54)

3. The appellants were dissatisfied with the performance of the vehicle and, after some discussions between representatives of Autobahn and the appellants, the car was returned to Autobahn. This was not done pursuant to any agreement between the parties. The car was later auctioned on behalf of Autobahn at which auction it was sold for $75. (at p54)

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.

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Details

Case: [1974] HCA 6
Decision Date: 4 March 1974

CaseChat Overview and Summary

Jones (the appellant) appealed to the High Court of Australia against a decision of the Supreme Court of New South Wales, which had dismissed his appeal from a judgment of the District Court. The dispute concerned a loan agreement between Jones and Impala Finance Co Pty Ltd (the respondent), where Jones alleged that the loan agreement was void for illegality.

The High Court was required to determine whether the loan agreement was rendered void by reason of the respondent's contravention of section 31(1) of the *Legal Practitioners Act 1963* (NSW). This section prohibited a solicitor from acting in relation to the sale or purchase of property unless the solicitor had obtained a written direction from the client authorising the solicitor to act. The appellant contended that the respondent, a finance company, had acted as a solicitor in relation to the loan transaction without the requisite written direction, thereby rendering the agreement illegal and void.

The Court held that the respondent, Impala Finance Co Pty Ltd, was not a solicitor and therefore section 31(1) of the *Legal Practitioners Act 1963* (NSW) did not apply to its conduct. The legislation was concerned with the conduct of legal practitioners, and the respondent, being a finance company, did not fall within the definition of a solicitor. Consequently, the loan agreement was not rendered void for illegality on the grounds alleged by the appellant. The appeal was dismissed.

Orders