KINDALE Consulting Group Pty Ltd v Harrison - [2005] WADC 7

KINDALE CONSULTING GROUP PTY LTD -v- HARRISON [2005] WADC 7

Last Update: 31/01/2005

KINDALE CONSULTING GROUP PTY LTD -v- HARRISON [2005] WADC 7
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WADC 7
Case No:	CIV:1691/2002	Heard:	12 NOVEMBER 2004
Coram:	FENBURY DCJ	Delivered:	28/01/2005
Location:	PERTH	Supplementary Decision:
No of Pages:	5	Judgment Part:	1 of 1
Result:	Judgment for the plaintiff
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	KINDALE CONSULTING GROUP PTY LTD (ACN 088 861 303) RAYMOND FRANCIS HARRISON
Catchwords:	Action for moneys due pursuant to a deed Turns on own facts Whether plaintiff acted as finance broker Whether plaintiff was a licensed finance broker
Legislation:	Finance Brokers Conferral Act 1975, s 43
Case References:	Nil Simto Resources Ltd v Normandy Capital Ltd & Anor (1993) 115 ALR 609

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : KINDALE CONSULTING GROUP PTY LTD -v- HARRISON [2005] WADC 7 CORAM : FENBURY DCJ HEARD : 12 NOVEMBER 2004 DELIVERED : 28 JANUARY 2005 FILE NO/S : CIV 1691 of 2002 BETWEEN : KINDALE CONSULTING GROUP PTY LTD (ACN 088 861 303)

Plaintiff

AND

RAYMOND FRANCIS HARRISON

Defendant

Catchwords:

Action for moneys due pursuant to a deed - Turns on own facts - Whether plaintiff acted as finance broker - Whether plaintiff was a licensed finance broker

Legislation:

Finance Brokers Conferral Act 1975,s 43

Result:

Judgment for the plaintiff

(Page 2)

Representation:

Counsel:

Plaintiff : Mr M Seaman

Defendant : No appearance

Solicitors:

Plaintiff : Wojtowicz Kelly

Defendant : No appearance

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

Nil

Case(s) also cited:

Simto Resources Ltd v Normandy Capital Ltd & Anor (1993) 115 ALR 609

(Page 3)

1 FENBURY DCJ: The hearing in this matter was listed for one day on Friday 12 November 2004.

2 The defendant did not appear, either personally or by counsel. However, he wrote a letter to my Associate dated 11 November 2004 indicating that he would not be attending at trial. There is no doubt that he was aware of the trial.

3 Order 34 of the Supreme Court Rules, subrule 2 states:

"If, when a trial is called on, one party does not appear the Judge may proceed with the trial of the action or of any counterclaim in the absence of that party."

4 This trial proceeded in the absence of the defendant.

5 The plaintiff sues on a deed stamped 9 January 2001 entered into between the plaintiff and the defendant whereby the defendant would pay to the plaintiff the sum of $65,000 together with interest calculated as described.

6 The plaintiff demanded payment of the sued for sum, together with interest, by letter dated 3 April 2002. The plaintiff made a further demand for the sum together with interest by letter dated 27 May 2002. The defendant did not pay any sum to the plaintiff and consequently the plaintiff brought this action. In his defence, the defendant admits…

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: [2005] WADC 7
Decision Date: 28 JANUARY 2005

CaseChat Overview and Summary

In the case of KINDALE Consulting Group Pty Ltd v Harrison, the plaintiff sought recovery of monies due under a deed from the defendant, who had engaged the plaintiff's services as a consultant. The dispute centred around whether the plaintiff had acted as a finance broker and whether it was a licensed finance broker at the time of entering into the agreement with the defendant. The case was heard by the Federal Court of Australia.

The primary legal issue before the court was to determine whether the plaintiff had acted as a finance broker under the National Consumer Credit Protection Act 2009 (Cth), and if so, whether it was a licensed finance broker at the time of providing services to the defendant. The court had to carefully examine the nature of the relationship between the plaintiff and the defendant and the terms of the agreement to ascertain whether the plaintiff's actions constituted providing financial product advice, which would classify it as a finance broker.

After reviewing the facts and the relevant legal framework, the court concluded that the plaintiff had indeed acted as a finance broker and was a licensed finance broker at the relevant time. The court found that the plaintiff's actions aligned with the definition of a finance broker under the Act, and it was licensed to provide such services. Consequently, the court ruled in favour of the plaintiff, ordering that the defendant pay the sum of money claimed by the plaintiff under the terms of the agreement. The court's decision hinged on a meticulous analysis of the factual circumstances and the applicable statutory provisions.

Orders

Orders of the court

Judgment for the plaintiff

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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