(The Honourable Justice Doyle, the Honourable Justice Livesey and the Honourable Justice Bleby)
3 May 2021
ESTOPPEL - ESTOPPEL BY JUDGMENT - RES JUDICATA OR CAUSE OF ACTION ESTOPPEL
ESTOPPEL - ESTOPPEL BY JUDGMENT - ISSUE ESTOPPEL
ESTOPPEL - ESTOPPEL BY JUDGMENT - ANSHUN ESTOPPEL
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - DEFAULT JUDGMENT - OTHER PARTICULAR JUDGMENTS - ON CLAIM FOR DEBT OR LIQUIDATED DEMAND
CONSUMER CREDIT - CREDIT PROTECTION - REGULATED CONTRACTS AND REGULATED MORTGAGES - CREDIT SALE, LOAN AND CONTINUING CREDIT CONTRACTS
Appeal against three judgments of the District Court which determined a claim and a counterclaim arising out of the appellant’s failure to meet certain obligations under a loan agreement.
The appellant, Ms Deborah Mandeville, was formerly married to Mr Andrew Mandeville. Mr Mandeville is the second respondent on the appeal. He played no part in the proceedings on appeal. The first respondent, Better Lending Pty Ltd (‘Better Lending’), is a licensed credit provider based in South Australia.
Ms Mandeville owned the family home at Scoresby, Victoria. She also owned an investment property at Ferntree Gully, Victoria. There was limited equity in each of those properties. On 29 May 2010, Mr Mandeville signed a contract to purchase a residential property in Ferny Creek, Victoria. The purchase price was $1,600,000. The contract was unconditional and required a deposit of $160,000.
On 20 August 2010, the Mandevilles signed a loan agreement with Better Lending to borrow $85,000 for three months. The judge found that this loan agreement was part of a ‘suite of documents including mortgages over the Scoresby and Ferntree Gully properties’. On 2 September 2010, the Mandevilles signed a second loan agreement with Better Lending, which contained an entire agreement clause, the effect of which was that the first loan agreement was subsumed by the second. The total sum lent on the second loan agreement was $167,000. The trial judge found that the purpose of the loans was to provide funds for the deposit on the Ferny Creek residential property. The Mandevilles did not complete the contract for the purchase of the Ferny Creek property and did not make any payments of principal or interest under either the first or second loan agreements.
On 24 July 2014, Better Lending issued proceedings in the Magistrates Court against Mr and Mrs Mandeville, suing in debt on the first loan agreement, rather than the second. On 21 August 2014, Better Lending caused default judgment to be entered against the Mandevilles on the claim, in default of the Mandevilles filing a defence.
Ms Mandeville then commenced a claim in the Magistrates Court against Better Lending, effectively seeking to enjoin Better Lending from further enforcing any of its rights under the second loan agreement and the associated mortgage. Better Lending brought a counterclaim under the second loan agreement.…
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
AGLC
Mandeville v Better Lending Pty Ltd [2021] SASCA 28
Case
[2021] SASCA 28
Decision Date
CaseChat Overview and Summary
This case involved an appeal by Ms Mandeville against three judgments of the District Court concerning a dispute with Better Lending Pty Ltd arising from a second loan agreement. The primary dispute centred on the amount outstanding under this agreement and Better Lending's claims for possession of a property and damages. Ms Mandeville contended that a prior default judgment obtained by Better Lending precluded them from pursuing further claims, raising issues of res judicata and issue estoppel.
The District Court was required to determine whether the default judgment prevented Better Lending from pursuing claims pleaded in its Second Statement of Counterclaim, by reason of res judicata or issue estoppel. Additionally, the court had to consider Ms Mandeville's claims that Better Lending was estopped by an *Anshun* estoppel from making further claims due to the earlier default judgment, and that such claims constituted an abuse of process. The court also had to determine claims of duress, undue influence, and unconscionable conduct, and assess Better Lending's counterclaim for the outstanding loan amount.
The District Court's reasoning involved dismissing Ms Mandeville's arguments regarding res judicata, issue estoppel, and *Anshun* estoppel, finding that the default judgment did not preclude Better Lending from pursuing its claims. The court also dismissed the claims of duress, undue influence, and unconscionable conduct. However, it granted an injunction preventing Better Lending from recovering interest on the loan under the National Consumer Credit Protection Act 2009 (Cth). On the counterclaim, the court gave judgment for Better Lending against both Mr and Ms Mandeville for $43,000, representing the difference between the principal loan amount and the payments already made. The final judgment concerned costs, with the court ordering Better Lending to pay 80 per cent of Ms Mandeville's costs on a party/party basis, and staying that judgment pending quantification of costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The Third Counterclaim asserted the amount to be outstanding under the second loan agreement as at that date to be $1,290,490. It also sought damages for breach of the loan agreement, prejudgment interest at the rate of 7 per cent per month, an order that Ms Mandeville give up vacant possession of the Scoresby property to Better Lending pursuant to s 78(1)(a) and (b) of the Transfer of Land Act 1958 (Vic) and costs on an indemnity basis, pursuant to certain clauses in the second loan agreement.The judgments As the Court has already observed, this appeal is instituted against a total of three judgments of the District Court, which were together dispositive of the proceedings. First, in September 2018, the District Court heard and determined what it described as a preliminary issue which was formulated by the parties in the following terms:[4][4] Mandeville v Better Lending P/L & Anor (No 5) [2018] SADC 99 at [4].The parties have formulated the following questions: Statement of IssuesDoes the default judgment (appearing at page 4) preclude the first defendant Better Lending Pty Ltd from making the claims pleaded:1. paragraphs 1O – 1S2. paragraph 23. paragraphs 1,2,3 and 4 of Part 3of the Second Statement of Counterclaim (appearing at page 45), by reason of:4. Res judicata?5. Issue estoppel?(Footnotes omitted) In essence, the preliminary issue was whether by reason of the default judgment and the principles of res judicata or issue estoppel, Better Lending was precluded from pursuing any further claims in what was at that stage the Second Statement of Counterclaim. On this preliminary issue, the judge concluded that the default judgment did not preclude Better Lending from making further claims under the second loan agreement by reason of either res judicata or issue estoppel. The second judgment, being judgment on the trial of the action, was delivered on 21 June 2019.[5] The Court:[6]·dismissed Ms Mandeville’s claim that Better Lending was estopped by an Anshun estoppel from making any further claim by reason of the default judgment in the previous Magistrates Court action;·dismissed Ms Mandeville’s claim to the effect that any further claim by Better Lending constituted an abuse of process by reason of the earlier default judgment;·dismissed Ms Mandeville’s claims based on duress, undue influence and unconscionable conduct;·granted an injunction pursuant to s 177 of the National Consumer Credit Protection Act 2009 (Cth) preventing Better Lending from recovering any interest on the loan; and·on the counterclaim, gave judgment for Better Lending against each of Mr and Ms Mandeville in the sum of $43,000. This represented the difference between the $124,000 already paid and the balance of the principal loan, being $167,000.[5] Mandeville v Better Lending Pty Ltd & Anor (No 6) [2019] SADC 168.[6] Mandeville v Better Lending Pty Ltd & Anor (No 6) [2019] SADC 168 at [146]-[150]. The third judgment the subject of this appeal is the decision on costs, made on 20 February 2020. Having regard to the mixed result of the trial, the judge ordered that Better Lending pay 80 per cent of the costs of Ms Mandeville on a party/party basis. The judge noted that this would have the effect that the costs liability of Better Lending would exceed the $43,000 judgment, and acceded to a request that he stay that judgment pending quantification of costs.The appeal