Monas v Perpetual Trustees Victoria Ltd - [2011] NSWCA 417

Court of Appeal

New South Wales

Case Title: Monas v Perpetual Trustees Victoria Limited

Medium Neutral Citation: [2011] NSWCA 417

Hearing Date(s): 29 November 2011

Decision Date: 21 December 2011

Jurisdiction:

Before:
Beazley JA at [1]; McColl JA at [2]; Young JA at [3]

Decision:
Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
CONSUMER CREDIT - Consumer Credit (New South Wales) Code s 80 - whether a s 80 default notice must be in the exact terms of s 80(3) - notice must reasonably convey the message the section intends and not be misleading to the borrower

CONSUMER CREDIT - consequences of an inadequate s 80 notice - whether the notice is invalid - whether the court can grant leave nunc pro tunc - statute allows for restitution and criminal sanctions as consequences of inadequate notice - these consequences strongly tend against further consequences - breach of s 80, at most an irregularity - authorisation to proceed may be given nunc pro tunc

Legislation Cited:
Consumer Credit (New South Wales) Code 1996 ss 66, 70, 71, 80, 86, 88, 170, Sch 2 cl 11
Contracts Review Act 1980
Conveyancing Act 1919 ss 111, 129
Credit (Home Finance Contracts) Act 1984 s 7
National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth) s 4, Sch 1 cl 3
National Credit Code 2009 (Cth) ss 72, 74, 94, 96
Real Property Act 1900 s 57

Cases Cited:
Bank of Queensland Ltd v Dutta [2010] NSWSC 574
Benjamin v Ashikian [2007] NSWSC 735
Berowra Holding Pty Ltd v Gordon [2006] NSWSC 32; 225 CLR 364
Campbell v The Commercial Banking Co of Sydney (1879) LR 2 NSW (L) (PC) 375
CBFC Finance v Dickinson (unreported, 18 August 1992, Master Greenwood)
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Fox v Jolly [1916] 1 AC 1
Graham v Aluma Life Pty Ltd (1996) 39 NSWLR 58
Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361
Mir Bros Projects Pty Ltd v 1924 Pty Ltd [1980] 2 NSWLR 907
Shakespeare Haney Securities Ltd v Crawford [2009] QCA 85; [2009] 2 Qd R 156
Silberman v Citigroup Pty Ltd [2011] VSC 514

Texts Cited:

Category: Principal judgment

Parties:
Bianka Monas (Appellant)
Perpetual Trustees Victoria Limited (Respondent)

Representation

- Counsel:

- Solicitors:
Legal Aid NSW (Appellant)
Kemp Strang (Respondent)

File number(s): CA 2009/293578

Decision Under Appeal

- Court / Tribunal:

- Before: Davies J; Hoeben J

- Date of Decision:

- Citation: Perpetual Trustees Victoria Ltd v Monas [2010] NSWSC 1156 (Davies J);Perpetual Trustees Victoria Limited v Bianka Monas [2011] NSWSC 57 (Hoeben…

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: [2011] NSWCA 417
Decision Date: 21 December 2011

CaseChat Overview and Summary

The appeal in *Monas v Perpetual Trustees Victoria Ltd* concerned the validity of a default notice issued under section 80 of the Consumer Credit (New South Wales) Code. The appellant, Mr Monas, argued that the notice was invalid because it did not precisely adhere to the wording prescribed by section 80(3). The respondent, Perpetual Trustees Victoria Ltd, contended that the notice was sufficient. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether a default notice issued under section 80 of the Consumer Credit (New South Wales) Code must be in the exact terms stipulated by the legislation, or if substantial compliance that reasonably conveys the intended message without misleading the borrower would suffice. A secondary issue concerned the consequences of an inadequate notice, specifically whether it rendered the notice invalid and if the court possessed the power to grant leave for the notice to be rectified retrospectively.

The Court of Appeal held that a default notice under section 80 of the Consumer Credit (New South Wales) Code does not need to be in the exact wording of the statute, provided it reasonably conveys the message intended by the section and is not misleading to the borrower. The Court reasoned that the consequences of an inadequate notice, as outlined in the statute, include restitution and criminal sanctions, which strongly militate against further, more severe consequences such as invalidity. Therefore, a breach of section 80 was considered, at most, an irregularity, and the court retained the power to authorise the notice to proceed retrospectively.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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.

Case Title:	Monas v Perpetual Trustees Victoria Limited
Medium Neutral Citation:	[2011] NSWCA 417
Hearing Date(s):	29 November 2011
Decision Date:	21 December 2011
Jurisdiction:
Before:	Beazley JA at [1]; McColl JA at [2]; Young JA at [3]
Decision:	Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	CONSUMER CREDIT - Consumer Credit (New South Wales) Code s 80 - whether a s 80 default notice must be in the exact terms of s 80(3) - notice must reasonably convey the message the section intends and not be misleading to the borrower CONSUMER CREDIT - consequences of an inadequate s 80 notice - whether the notice is invalid - whether the court can grant leave nunc pro tunc - statute allows for restitution and criminal sanctions as consequences of inadequate notice - these consequences strongly tend against further consequences - breach of s 80, at most an irregularity - authorisation to proceed may be given nunc pro tunc
Legislation Cited:	Consumer Credit (New South Wales) Code 1996 ss 66, 70, 71, 80, 86, 88, 170, Sch 2 cl 11 Contracts Review Act 1980 Conveyancing Act 1919 ss 111, 129 Credit (Home Finance Contracts) Act 1984 s 7 National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth) s 4, Sch 1 cl 3 National Credit Code 2009 (Cth) ss 72, 74, 94, 96 Real Property Act 1900 s 57
Cases Cited:	Bank of Queensland Ltd v Dutta [2010] NSWSC 574 Benjamin v Ashikian [2007] NSWSC 735 Berowra Holding Pty Ltd v Gordon [2006] NSWSC 32; 225 CLR 364 Campbell v The Commercial Banking Co of Sydney (1879) LR 2 NSW (L) (PC) 375 CBFC Finance v Dickinson (unreported, 18 August 1992, Master Greenwood) Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Fox v Jolly [1916] 1 AC 1 Graham v Aluma Life Pty Ltd (1996) 39 NSWLR 58 Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361 Mir Bros Projects Pty Ltd v 1924 Pty Ltd [1980] 2 NSWLR 907 Shakespeare Haney Securities Ltd v Crawford [2009] QCA 85; [2009] 2 Qd R 156 Silberman v Citigroup Pty Ltd [2011] VSC 514
Texts Cited:
Category:	Principal judgment
Parties:	Bianka Monas (Appellant) Perpetual Trustees Victoria Limited (Respondent)
Representation
- Counsel:
- Solicitors:	Legal Aid NSW (Appellant) Kemp Strang (Respondent)
File number(s):	CA 2009/293578
Decision Under Appeal
- Court / Tribunal:
- Before:	Davies J; Hoeben J
- Date of Decision:
- Citation:	Perpetual Trustees Victoria Ltd v Monas [2010] NSWSC 1156 (Davies J);Perpetual Trustees Victoria Limited v Bianka Monas [2011] NSWSC 57 (Hoeben…