McFarland v Common Australia Pty Ltd - [2018] NSWDC 489

District Court

New South Wales

Amendment notes

Medium Neutral Citation: McFarland & Anor v Common Australia Pty Ltd [2018] NSWDC 489
Hearing dates: 23 – 24, 30 – 31 August 2018; 3 – 7 September 2018
Date of orders: 07 September 2018
Decision date: 07 September 2018
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
(1) Verdict and judgment for the defendant against the plaintiff on the statement of claim.

(2) Verdict for the cross-claimant against the first cross-defendant Mervyn Christopher McFarland in the sum of $71,732.38.
(3) Verdict and judgment for the cross-claimant against the second cross-defendant Wendy Ann Miller for $13,406.38.
Catchwords:
CIVIL – CONTRACT – MORTGAGE – VENDOR FINANCE – Defendant sold rural land to the plaintiffs and provided a loan of $100,000 to the plaintiffs to be repaid by three equal annual instalments, secured by a requested first mortgage – Default by plaintiffs – Defendant enters into possession of land – Property offered for sale by public auction

Whether plaintiffs had a statutory claim against defendant under Conveyancing Act 1919 section 111A(4)

Whether plaintiff’s had a statutory claim under the National Credit Code – Issues discussed:
(a) what was the credit contract;
(b) was the contract for the personal, domestic or household purposes of the plaintiffs;
(c) whether the contract was incidental to any other business of the defendant

Claim by plaintiffs that defendant converted possessions to its own use – Chattels and fixtures left by plaintiffs on the land – No manifestation of any intention of the defendant to keep chattels adversely in defiance of the plaintiffs rights to the chattels

Cross-claim by defendant for losses sustained by the defendant because of default under the mortgage
Cross-claim by defendant for trespass to defendant’s sheep – Claim for loss of stock and loss of profit
Legislation Cited: Civil Liability Act 2002
Conveyancing Act 1919
National Consumer Credit Protection Act 2009
Real Property Act 1900
Cases Cited: Avery v Saree Holdings Ltd; Lava Ltd v Avery [2012] NSWSC 463
Bank of Queensland Limited v Dutta [2010] NSWSC 574
Cambridge v Anastasopoulos [2012] NSWCA 405
Dale v Nichols Constructions Pty Ltd [2003] QDC 453
Jonsson v Arkway Pty Ltd and Anor [2003] NSWSC 815
Knowles v Victorian Mortgage Investments Ltd & Anor [2011] VSC 611
Kuwait Airways Corporation v The Iraqi Airways Company & Ors [2002] UKHL 19
Lauvan Pty Limited & Anor v Bega & Ors [2018] NSWSC 154
Mattinson v Multiflow [1977] 1 NSWLR 368
Penfolds Wines Pty Limited v Elliott (1946) 74 CLR 204
Pipicella v Stagg (1983) 32 SASR 464
Sanderson v Dunn (1911) 32 ALT (Supp.) 14; 17 ALR (CN) 9
Smith v Cook (1875) 1 QBD 79
Category: Principal judgment
Parties: Mervyn Christopher McFarland (First Plaintiff/Cross-Defendant)
Wendy Ann Miller (Second Plaintiff/Cross-Defendant)
Common Australia Pty Ltd (Defendant/Cross-Claimant)
Representation:
Counsel:
Mr A Fronis (Plaintiffs/Cross-Defendants)
Mr C Simpson (Defendants/Cross-Claimants)
Solicitors:
A Ace Solicitors (Plaintiffs/Cross-Defendants)
Blue Ocean Law (Defendants/Cross-Claimants)

File Number(s): 2016/310131
Publication restriction: Nil

Judgment

The plaintiffs buy rural land

HIS HONOUR: On 28 March 2014 the…

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: [2018] NSWDC 489
Decision Date: 07 September 2018

CaseChat Overview and Summary

The case of McFarland v Common Australia Pty Ltd involved a dispute between the plaintiffs, Mervyn Christopher McFarland and Wendy Ann Miller, and the defendant, Common Australia Pty Ltd. The plaintiffs had purchased rural land from the defendant and had taken a loan of $100,000 secured by a mortgage. After defaulting on their repayments, the defendant repossessed the land and sought to sell it. The plaintiffs brought an action claiming the defendant had converted their possessions, and the defendant cross-claimed for losses due to the plaintiffs' default and for trespass to its sheep.

The court had to decide if the plaintiffs had a statutory claim under section 111A(4) of the Conveyancing Act 1919 and whether the plaintiffs' mortgage was subject to the National Credit Code. The court also had to determine the nature of the credit contract, whether it was for the plaintiffs' personal, domestic or household purposes, and if the contract was incidental to any other business of the defendant. Additionally, the court examined whether the defendant had converted the plaintiffs' possessions and if the defendant's retention of the chattels constituted an adverse claim against the plaintiffs' rights. The court also considered the defendant's cross-claims for losses and for trespass to its sheep.

The court found that the plaintiffs did not have a statutory claim under the Conveyancing Act or the National Credit Code. The court determined that the credit contract was not for the plaintiffs' personal, domestic or household purposes and was not incidental to the defendant's business. The court also found that the defendant did not convert the plaintiffs' possessions as there was no manifestation of an intention to keep the chattels adversely against the plaintiffs' rights. Regarding the defendant's cross-claims, the court awarded damages for the plaintiffs' default and for trespass to the defendant's sheep.

The court ordered judgment in favour of the defendant on the plaintiffs' claim. The court also ordered that the defendant was entitled to $71,732.38 from Mervyn Christopher McFarland and $13,406.38 from Wendy Ann Miller. The court found that the plaintiffs were liable for the losses sustained by the defendant due to their default under the mortgage and for the trespass to the defendant's sheep.

Orders

Orders of the court

(1) Verdict and judgment for the defendant against the plaintiff on the statement of claim.

(2) Verdict for the cross-claimant against the first cross-defendant Mervyn Christopher McFarland in the sum of $71,732.38.

(3) Verdict and judgment for the cross-claimant against the second cross-defendant Wendy Ann Miller for $13,406.38.

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:	McFarland & Anor v Common Australia Pty Ltd [2018] NSWDC 489
Hearing dates:	23 – 24, 30 – 31 August 2018; 3 – 7 September 2018
Date of orders:	07 September 2018
Decision date:	07 September 2018
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	(1) Verdict and judgment for the defendant against the plaintiff on the statement of claim. (2) Verdict for the cross-claimant against the first cross-defendant Mervyn Christopher McFarland in the sum of $71,732.38. (3) Verdict and judgment for the cross-claimant against the second cross-defendant Wendy Ann Miller for $13,406.38.
Catchwords:	CIVIL – CONTRACT – MORTGAGE – VENDOR FINANCE – Defendant sold rural land to the plaintiffs and provided a loan of $100,000 to the plaintiffs to be repaid by three equal annual instalments, secured by a requested first mortgage – Default by plaintiffs – Defendant enters into possession of land – Property offered for sale by public auction Whether plaintiffs had a statutory claim against defendant under Conveyancing Act 1919 section 111A(4) Whether plaintiff’s had a statutory claim under the National Credit Code – Issues discussed: (a) what was the credit contract; (b) was the contract for the personal, domestic or household purposes of the plaintiffs; (c) whether the contract was incidental to any other business of the defendant Claim by plaintiffs that defendant converted possessions to its own use – Chattels and fixtures left by plaintiffs on the land – No manifestation of any intention of the defendant to keep chattels adversely in defiance of the plaintiffs rights to the chattels Cross-claim by defendant for losses sustained by the defendant because of default under the mortgage Cross-claim by defendant for trespass to defendant’s sheep – Claim for loss of stock and loss of profit
Legislation Cited:	Civil Liability Act 2002 Conveyancing Act 1919 National Consumer Credit Protection Act 2009 Real Property Act 1900
Cases Cited:	Avery v Saree Holdings Ltd; Lava Ltd v Avery [2012] NSWSC 463 Bank of Queensland Limited v Dutta [2010] NSWSC 574 Cambridge v Anastasopoulos [2012] NSWCA 405 Dale v Nichols Constructions Pty Ltd [2003] QDC 453 Jonsson v Arkway Pty Ltd and Anor [2003] NSWSC 815 Knowles v Victorian Mortgage Investments Ltd & Anor [2011] VSC 611 Kuwait Airways Corporation v The Iraqi Airways Company & Ors [2002] UKHL 19 Lauvan Pty Limited & Anor v Bega & Ors [2018] NSWSC 154 Mattinson v Multiflow [1977] 1 NSWLR 368 Penfolds Wines Pty Limited v Elliott (1946) 74 CLR 204 Pipicella v Stagg (1983) 32 SASR 464 Sanderson v Dunn (1911) 32 ALT (Supp.) 14; 17 ALR (CN) 9 Smith v Cook (1875) 1 QBD 79
Category:	Principal judgment
Parties:	Mervyn Christopher McFarland (First Plaintiff/Cross-Defendant) Wendy Ann Miller (Second Plaintiff/Cross-Defendant) Common Australia Pty Ltd (Defendant/Cross-Claimant)
Representation:	Counsel: Mr A Fronis (Plaintiffs/Cross-Defendants) Mr C Simpson (Defendants/Cross-Claimants) Solicitors: A Ace Solicitors (Plaintiffs/Cross-Defendants) Blue Ocean Law (Defendants/Cross-Claimants)
File Number(s):	2016/310131
Publication restriction:	Nil