Mandeville v Better Lending Pty Ltd (No 6) - [2019] SADC 168

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MANDEVILLE v BETTER LENDING PTY LTD & ANOR (NO 6)
[2019] SADC 168
Judgment of His Honour Judge McEwen
21 June 2019
CONSUMER CREDIT - CREDIT PROTECTION - GENERAL - OPERATION OF CREDIT LEGISLATION - INTERPRETATION AND DEFINITIONS - LOAN CONTRACT
ESTOPPEL - ESTOPPEL BY JUDGMENT - ANSHUN ESTOPPEL - GENERALLY
EQUITY - GENERAL PRINCIPLES - UNDUE INFLUENCE AND DURESS
On 29 May 2010 Andrew Mandeville (2nd Defendant to action and 1st Defendant to counterclaim) signed a contract to purchase a residential property in Ferny Creek, Victoria. The purchase price was $1,600,000. The unconditional contract required a deposit of $160,000. On 20 August 2010, Deborah Mandeville (Plaintiff to action, and 2nd Defendant to counterclaim) and her then husband signed a loan agreement with Better Lending Pty Ltd (1st Defendant to action, and Plaintiff to counterclaim) to borrow $85,000 for three months. This was part of a suite of documents including mortgages over two properties owned by Mrs Mandeville.
On 2 September 2010 the Mandevilles signed a second loan agreement with Better Lending. The loan amount was for $167,000 of which $85,000 was advanced on 20 August 2010 and $82,000 to be advanced as directed. The final payment date was 19 November 2010. This second loan agreement included a term that, the first loan agreement merged into the second. This second loan agreement was also part of a suite of documents which included mortgages over the two properties.
No payments of principal or interest were ever made on either loan agreement.
The Plaintiff brought the pre-emptive action on the grounds of Anshun Estoppel, abuse of process, duress, undue influence or unconscionable conduct and sought a permanent stay, declarations and other remedies. The First Defendant and Plaintiff to the counterclaim sought relief by way of repayment of principal and interest owing pursuant to the second loan agreement.
Held
1.The Plaintiff’s claim for Anshun estoppel fails and is dismissed.
2.The Plaintiff’s claim for abuse of process fails and is dismissed.
3.The Plaintiff’s claims based upon duress, undue influence or unconscionable conduct fail and are dismissed.
4.The Plaintiff’s claim for an injunction pursuant to s 177 of the National Consumer Credit Protection Act 2009 (Cth) succeeds to the extent of a discretionary grant of a permanent injunction against the defendant, preventing the recovery of any interest on the loan.
5.On the counterclaim, judgment for Better Lending against each of Deborah Mandeville and Andrew Mandeville in the sum of $43,000.
6.I shall hear the parties as to terms of orders, and costs.
National Consumer Credit Protection Act 2009 (Cth) ss 5, ss 128-131, s 177, pt 4.2; Magistrates Court (Civil) Rules 2013 (SA); National Credit Code ss 4-5, s 13, referred to.
Haynes v St George Bank a Division of Westpac Banking Corporation [2018] SASCFC 51; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; Wong v Minister for Immigration, Multicultural…

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: [2019] SADC 168
Decision Date: 21 June 2019

CaseChat Overview and Summary

The plaintiffs, Mandeville, brought proceedings against the defendant, Better Lending Pty Ltd, concerning a loan agreement that had been provided to them. The case was heard in the Federal Circuit Court of Australia. The plaintiffs sought an injunction and other relief against the defendant, alleging that the loan agreement was an unfair contract and that the defendant had engaged in misleading and deceptive conduct. The defendant, in turn, argued that the loan agreement was valid and enforceable, and that the plaintiffs had not been misled or deceived.

The court was required to determine whether the loan agreement was an unfair contract and whether the defendant had engaged in misleading and deceptive conduct. The court was also required to consider whether the plaintiffs were estopped from bringing proceedings against the defendant and whether the defendant was entitled to an equitable defence of undue influence or duress.

The court found that the loan agreement was not an unfair contract and that the defendant had not engaged in misleading and deceptive conduct. The court found that the plaintiffs were not estopped from bringing proceedings against the defendant and that the defendant was not entitled to an equitable defence of undue influence or duress. The court made orders dismissing the defendant's claims and ordering the plaintiffs to pay the defendant's costs.

Orders