Kellas-Sharpe v PSAL Ltd

Case [2012] QCA 371


SUPREME COURT OF QUEENSLAND

CITATION:

Kellas-Sharpe & Ors v PSAL Limited [2012] QCA 371

PARTIES:

WENDY KELLAS-SHARPE
(first appellant)
GOLDIWAY PTY LTD
ACN 075 755 074
(second appellant)
OPM HOLDINGS QLD PTY LTD
ACN 118 505 641
(third appellant)
v
PSAL LIMITED
ACN 118 825 120
(respondent)

FILE NO/S:

Appeal No 2828 of 2012
SC No 3700 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

4 September 2012

JUDGES:

Margaret McMurdo P, Gotterson JA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    APPEAL DISMISSED.

2.    APPELLANTS TO PAY THE RESPONDENT’S COSTS OF THE APPEAL ON THE STANDARD BASIS.

CATCHWORDS:

CONTRACTS – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – PENALTIES AND LIQUIDATED DAMAGES – GENERAL PRINCIPLES – where appellants and respondents entered into a loan agreement – where the standard rate of interest was 7.5 per cent per month but, while the borrower is not in default, the concessional rate of interest at 4 per cent per month applies – where the appellants argue that the rule that a concessional rate of interest for prompt payment is not a penalty ought to be discarded and not applied – whether the clause is a penalty with the consequence that the interest rate provision is void

Australian Securities and Investments Commission Act 2001 (Cth), s 12CC
Property Law Act 1974 (Qld), s 84

Accom Finance Pty Ltd v Mars Pty Ltd (2007) 13 BPR 24; [2007] NSWSC 726, cited
Acron Pacific Ltd v Offshore Oil NL (1985) 157 CLR 514; [1985] HCA 63, cited
Andrews v Australia and New Zealand Banking Group Ltd (2012) 86 ALJR 1002; (2012) 290 ALR 595; [2012] HCA 30, cited
Astley v Weldon (1801) 2 Bos & P 346; (1801) 126 ER 1318; [1801] EngR 108, cited
Bay Bon Investments Pty Ltd v Selvarajah
[2008] NSWSC 1251, cited
Beil v Mansell (No 2) [2006] 2 Qd R 499; [2006] QSC 199, cited
Brett v Barr Smith (1919) 26 CLR 87; [1919] HCA 4, cited
David Securities Pty Ltd v Commonwealth Bank of Australia (1990) 23 FCR 1; (1990) 93 ALR 271; [1990] FCA 148, considered
Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79; [1914] UKHL 1, cited
Export Credits Guarantee Department v Universal Oil Products Co [1983] 1 WLR 399; [1983] 2 All ER 205, cited
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, cited
Interstar Wholesale Finance Pty Ltd v Integral Home Loans Pty Ltd (2008) 257 ALR 292; [2008] NSWCA 310, cited
Kowalczuk v Accom Finance Pty Ltd (2008) 77 NSWLR 205; [2008] NSWCA 343, cited
O’Dea v Allstates Leasing System (WA) Pty Ltd (1983) 152 CLR…

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Details
AGLC
Kellas-Sharpe v PSAL Ltd [2012] QCA 371
Case
[2012] QCA 371
Decision Date

CaseChat Overview and Summary

The case of Kellas-Sharpe v PSAL Ltd was heard in the court where the appellants, Kellas-Sharpe, contested a loan agreement with the respondents, PSAL Ltd. The central issue was whether a clause in the loan agreement that allowed for a concessional interest rate was a penalty clause, and if so, whether it rendered the interest rate provision void. The appellants argued that the rule allowing for a concessional rate of interest should not apply, contending that it constituted a penalty.

The legal issues the court needed to decide included whether the concessional interest rate clause was a penalty and if it violated any principles of contract law. Specifically, the court had to determine if the clause was a genuine pre-estimate of loss or merely a penalty, and if it was enforceable as a matter of law. The court also considered whether the concessional interest rate was a reward for prompt payment, which would exempt it from being considered a penalty.

The court held that the concessional interest rate clause was not a penalty but rather a legitimate pre-estimate of the loss incurred by the lender due to late payments. It was deemed a reasonable method of compensating for the delay in payment and, therefore, valid and enforceable. The appellants' argument that the rule should be discarded was rejected. Consequently, the interest rate provision remained in effect, and the clause was not void.

The appeal was dismissed, and the appellants were ordered to pay the respondents' costs of the appeal on the standard basis. This decision reinforces the principle that concessional interest rates can be valid provided they are genuinely intended to compensate for the delay in payment.

Orders

Orders of the court

1. APPEAL DISMISSED.

2. APPELLANTS TO PAY THE RESPONDENT’S COSTS OF THE APPEAL ON THE STANDARD BASIS.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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