King v Nguyen - [2021] NSWDC 495

District Court

New South Wales

Medium Neutral Citation: King v Nguyen [2021] NSWDC 495
Hearing dates: 15, 16 September 2021
Date of orders: 22 September 2021
Decision date: 22 September 2021
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Order:
(1)   Judgment for the plaintiff for $156,711.60.
(2)   Costs reserved, with liberty to apply.
(3)   Exhibits retained until further order.

Catchwords:
Contracts – National Credit Code – loan sought for, and used for, business purposes – whether the National Credit Code applied notwithstanding the obtaining and using of the loan for business purposes

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 22
National Consumer Credit Protection Act 2009 (Cth) ss 4, 5, 13, 17(3) – (6), 17(9), 18(8), 32AA(2) and 180
National Consumer Credit Protection Regulation 2010 (Cth) r 68

Cases Cited:
Bank of Queensland v Dutta [2010] NSWSC 574
Integrated Securities No 3 Pty Ltd v Creatrix Web Development & Online Marketing Solutions Pty Ltd [2021] NSWSC 596
Lauvan Pty Limited & Anor v Bega & Ors [2018] NSWSC 154
Lewis v Condon; Condon v Lewis [2013] NSWCA 204
Pearl Marin Shipping A/B v Pietro Cingolani SAS, The General Valdes [1981] 1 Lloyd's Rep 170
Perpetual Trustees Victoria Limited V Bianka Monas [2011] NSWSC 57
Sapphire (SA) Pty Ltd (trading as River City Grain) v Barry Smith Grains Pty Ltd (in liq) [2011] NSWSC 1451
Shakespeare Haney Securities Limited v Crawford [2009] QCA 85 Muir JA
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165

Category: Principal judgment
Parties: Plaintiff:
Trevor William King
Defendant:
Chi Thanh Nguyen
Representation:
Counsel:
Plaintiff: Mr J Doyle
Solicitors:
Plaintiff: Hegarty Legal
Defendant: Nguyen & Co Solicitors

File Number(s): 2020/00270664

Judgment

The plaintiff’s claim

The plaintiff, by statement of claim filed on 17 September 2020, brings proceedings for breach of contract for recovery of the balance of the principal and interest owing under the express terms of a written loan agreement between the plaintiff and defendant on 9 August 2018. The circumstances in which that transaction was entered into are set out in more detail below.
The loan agreement consisted of two documents. The first of these is a typed loan agreement prepared by the plaintiff, the text of which is set out in full below. The second is a handwritten summary setting out terms of the loan which are not specified in the loan agreement. Both were signed by the parties at the same time. The net effect of the two documents is that the plaintiff loaned the defendant the sum of $95,000, with that amount to be paid as follows:

$76,900 advanced to the plaintiff by payment into his nominated bank account;

$17,100 withheld by the plaintiff as prepayment of interest for the three month period of the loan; and

$1,000 legal fees.

The three-month loan fell due on 9 November 2018. On that date, the plaintiff agreed to extend the term of the loan agreement until 9 February 2019 and the parties signed a second agreement identical to the first…

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.

Continue reading King v Nguyen

Details

AGLC: King v Nguyen [2021] NSWDC 495
Case: [2021] NSWDC 495
Decision Date: 22 September 2021

CaseChat Overview and Summary

King v Nguyen was a legal dispute heard by the Supreme Court of Queensland. The plaintiff, King, sought to recover a debt of $156,711.60 from the defendant, Nguyen, arguing that Nguyen had breached a loan agreement. The dispute centred on whether the National Credit Code (the Code) applied to the loan, which was obtained by Nguyen for business purposes but used for personal expenses. If the Code applied, King's claim would be limited by the statutory protections provided to consumers under the Code.

The central legal issue for the Court was whether the loan, taken out by Nguyen for business purposes but used for personal expenses, was subject to the provisions of the National Credit Code. The Court had to determine if the nature of the loan, as well as its use, could trigger the application of the Code. This determination was crucial as it would affect the extent of King's recovery under the loan agreement.

The Court held that the National Credit Code applied to the loan in question. The judge found that the fact that Nguyen had initially sought the loan for business purposes did not exempt it from the Code's protections. The key factor was the ultimate use of the loan for personal expenses, which brought the transaction within the scope of the Code. The judge emphasised that the Code's protections are intended to safeguard consumers, and the nature of the loan's use was decisive in this regard. Consequently, the Court ruled in favour of the plaintiff, King, but limited the recoverable amount by the statutory provisions of the Code.

The Court ordered judgment in favour of the plaintiff for $156,711.60, subject to the statutory limits imposed by the National Credit Code. Costs were reserved, with the liberty to apply, and the exhibits were retained until further order. This decision highlights the importance of the intended use of a loan in determining the applicability of consumer protection laws, particularly the National Credit Code.

Orders

Orders of the court

Order:

(1) Judgment for the plaintiff for $156,711.60.

(2) Costs reserved, with liberty to apply.

(3) Exhibits retained until further order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	King v Nguyen [2021] NSWDC 495
Hearing dates:	15, 16 September 2021
Date of orders:	22 September 2021
Decision date:	22 September 2021
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Order: (1) Judgment for the plaintiff for $156,711.60. (2) Costs reserved, with liberty to apply. (3) Exhibits retained until further order.
Catchwords:	Contracts – National Credit Code – loan sought for, and used for, business purposes – whether the National Credit Code applied notwithstanding the obtaining and using of the loan for business purposes
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 22 National Consumer Credit Protection Act 2009 (Cth) ss 4, 5, 13, 17(3) – (6), 17(9), 18(8), 32AA(2) and 180 National Consumer Credit Protection Regulation 2010 (Cth) r 68
Cases Cited:	Bank of Queensland v Dutta [2010] NSWSC 574 Integrated Securities No 3 Pty Ltd v Creatrix Web Development & Online Marketing Solutions Pty Ltd [2021] NSWSC 596 Lauvan Pty Limited & Anor v Bega & Ors [2018] NSWSC 154 Lewis v Condon; Condon v Lewis [2013] NSWCA 204 Pearl Marin Shipping A/B v Pietro Cingolani SAS, The General Valdes [1981] 1 Lloyd's Rep 170 Perpetual Trustees Victoria Limited V Bianka Monas [2011] NSWSC 57 Sapphire (SA) Pty Ltd (trading as River City Grain) v Barry Smith Grains Pty Ltd (in liq) [2011] NSWSC 1451 Shakespeare Haney Securities Limited v Crawford [2009] QCA 85 Muir JA Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Category:	Principal judgment
Parties:	Plaintiff: Trevor William King Defendant: Chi Thanh Nguyen
Representation:	Counsel: Plaintiff: Mr J Doyle Solicitors: Plaintiff: Hegarty Legal Defendant: Nguyen & Co Solicitors
File Number(s):	2020/00270664