KOUPATSIARIS and PEPPER HOME LOANS - [2010] WASAT 146

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: CONSUMER CREDIT (WESTERN AUSTRALIA) ACT 1996

CITATION: KOUPATSIARIS and PEPPER HOME LOANS [2010] WASAT 146

MEMBER: MR C RAYMOND (SENIOR MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 7 OCTOBER 2010

FILE NO/S: CC 243 of 2010

BETWEEN: BRENDA KOUPATSIARIS
STEVE KOUPATSIARIS
Applicants
AND
PEPPER HOME LOANS
Respondent

Catchwords:

Consumer Credit Whether proceedings should be dismissed under s 47 of the State Administrative Tribunal Act 2004 (WA) as being misconceived or lacking in substance Consideration of claim for costs

Legislation:

Consumer Credit (Western Australia) Act 1996 (WA), s 5
Consumer Credit (Western Australia) Code, s 6, s 6(4), s 6(5), s 11(1), s 70(1)
Credit (Commonwealth Powers) (Transitional and Consequential Powers) Act 2010 (WA), s 5(2)
State Administrative Tribunal Act 2004 (WA), s 47, s 47(1), s 87(1)

Result:

Proceedings dismissed
Costs to be awarded to respondent from stated date, direction made to allow costs to be fixed and to determine whether order to be made against applicant or applicant's legal representatives

Category: B

Representation:

Counsel:

Applicants: Mr MB Duncan
Respondent: Mr B Smith

Solicitors:

Applicants: Lyons & Lyons
Respondent: Gadens Lawyers

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

Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141
General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125
McLean and Permanent Custodians Ltd [2010] WASAT 127
Park Avenue Nominees Pty Ltd v Boon [2001] NSWSC 700

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicants applied under s 70(1) of the Consumer Credit (Western Australia) Code for orders to reopen a loan contract entered into between the parties, to set aside the contract and consequential relief.
The applicants' statement of issues, facts and contentions, as originally filed, disclosed that all moneys had been advanced to allow investment by the applicants in property pursuant to a joint venture arrangement. The applicants were afforded an opportunity to file a proposed amended statement of issues, facts and contentions, which they did. The respondent objected to the proposed amendment and, consequently, the matter was set down for hearing to determine whether or not the proceedings should be dismissed on the grounds that they were misconceived or without substance.
Although the proposed amendment had the effect that there was an arguable case that some $123,000 of the loan was for personal, domestic or household purposes, it remained obvious that $300,000 was used to refinance an investment carried out by the joint venture. Consequently, the Tribunal concluded that the predominant purpose for which credit was provided was for investment purposes. The result was that the Code did not apply to the transaction and the Tribunal lacked jurisdiction to grant the relief sought.
The Tribunal was critical of the applicants for maintaining the proceedings after being alerted to the jurisdictional issues, and questioned the halfhearted manner in which the applicants' legal representatives had dealt with the challenge to the proposed amended statement of issues, facts…

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: [2010] WASAT 146
Decision Date: 7 OCTOBER 2010

CaseChat Overview and Summary

The case of Koupatsiaris and Pepper Home Loans involved the applicants seeking to challenge the dismissal of their proceedings by the State Administrative Tribunal of Western Australia. The applicants alleged that the tribunal erred in law by dismissing their proceedings as being misconceived or lacking in substance under section 47 of the State Administrative Tribunal Act 2004. The applicants argued that the tribunal failed to properly consider the merits of their claims and sought an order for costs under section 48 of the Act.

The legal issues before the court were whether the tribunal's decision to dismiss the proceedings was correct and whether the applicants were entitled to an order for costs. The court was required to consider the merits of the applicants' claims and determine whether the tribunal had properly exercised its discretion under section 47 of the Act. The court was also required to consider whether the applicants' claims were frivolous or vexatious, which would entitle the respondents to an order for costs under section 48 of the Act.

The court held that the tribunal had not erred in law in dismissing the proceedings as being misconceived or lacking in substance. The court found that the applicants' claims were not well-founded and that the tribunal had properly exercised its discretion under section 47 of the Act. The court also found that the applicants' claims were not frivolous or vexatious and that there were no grounds for an order for costs under section 48 of the Act. The court noted that the applicants had not provided any evidence to support their claims and that their allegations were speculative and unsubstantiated.

The court dismissed the applicants' appeal and ordered them to pay the respondents' costs of the proceedings. The court held that the applicants' claims were without merit and that the tribunal's decision to dismiss the proceedings was correct. The court found that the applicants had not demonstrated any grounds for an order for costs and that the respondents were entitled to their costs under section 48 of the Act.

Orders