Moon v Secure Funding Pty Ltd - [2013] QCA 86

[2013] QCA 86

COURT OF APPEAL

MARGARET McMURDO P
FRASER JA
DAUBNEY J

Appeal No 9249 of 2012
SC No 12291 of 2009

GARRY ANTHONY MOON &
TANIA MAREE MOON Appellants

SECURE FUNDING PTY LTD
ACN 081 982 872 First Respondent

ASSURED CREDIT MANAGEMENT PTY LTD
ACN 096 859 872 Second Respondent

PAUL EDWIN STEVENSON Third Respondent

CONCATE PTY LTD
ACN 109 832 797 Fourth Respondent

BRISBANE

DATE 18/04/2013

ORDER

THE PRESIDENT: The first respondent brought an action in the Trial Division to enforce its rights under a loan agreement with the appellants, following their default. The loan was secured by a mortgage over the appellants' property. The appellants defended that action and brought a counterclaim, alleging that the fourth respondent, acting through the third respondent, was agent for the first and second respondents and breached the duties owed as mortgage brokers to the appellants.

The appellants claimed damages from the third and fourth respondents and sought an order that the loan and mortgage should be set aside. The appellants were self-represented in the two day trial. The primary judge ordered that the first respondent have possession of the appellants' property, that the appellants pay the first respondent the amount owing plus interest, and dismissed the appellants' counterclaim against the first to fourth respondents.

The appellants have appealed from those orders. Their grounds of appeal are as follows:

"The [appellants] reject the entire proceedings of hearings, trial, judgment and all costs awarded on the basis that not once, has the matter been heard in a court of competent jurisdiction, in accordance with chapter III of the Commonwealth of Australia Constitution 1900, as upheld by the High Court in Forge V ASIC
- Further, allegations of unconscionable conduct were not addressed
- The First Defendant was prevented from cross examining the Plaintiffs witness on matters of breaches of the Consumer Credit Code
- Grant leave to amend defence and counterclaim to enable the courts consideration of ALL the allegations in the defendants Affidavit, including breaches of the Consumer Credit Code.
- Grant leave to examine ORIGINALS, of photocopies of alleged faxed documents presented as evidence by 3^rd & 4^th Defendant that appear to contain anomalies.
- Grant leave to submit compelling new evidence of a technical nature" (errors in original).

On 6 December 2012, the appellants filed an application in this appeal, "[t]hat the Appeal be correctly re-classified a Rehearing, pursuant to UCPR 765 – No (1)(2)" (errors in original). They also filed a separate application in the appeal to adduce further evidence. They attached affidavit material in support of that application, the relevance of which is hard to comprehend.

In addition to the material included in the more than 1,000 pages contained in the two volumes of the appeal record book, the appellants have filed about 300 further pages of printed material, none of which seems helpful to them. They filed their outline of argument in support of their grounds of appeal, together with a three page…

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.

Continue reading Moon v Secure Funding Pty Ltd

Details

AGLC: Moon v Secure Funding Pty Ltd [2013] QCA 0
Case: [2013] QCA 86
Decision Date: 18/04/2013

CaseChat Overview and Summary

In Moon v Secure Funding Pty Ltd, the appellants, Garry Anthony Moon and Tania Maree Moon, appealed against orders of the Supreme Court of Queensland. The respondents were Secure Funding Pty Ltd, Assured Credit Management Pty Ltd, Paul Edwin Stevenson, and Concate Pty Ltd. The dispute arose from the enforcement of a loan agreement secured by a mortgage over the appellants' property. The appellants' counterclaim alleged breaches of duty by mortgage brokers. The Court of Appeal was tasked with considering several grounds of appeal, including challenges to the primary judge's jurisdiction, the handling of the counterclaim, and procedural issues.

The primary issues before the Court of Appeal were whether the primary judge had jurisdiction to hear the case, if allegations of unconscionable conduct were adequately addressed, if the appellants were wrongly prevented from cross-examining witnesses on matters of breaches of the Consumer Credit Code, and if the appellants should be granted leave to adduce further evidence. The appellants also sought leave to amend their pleadings to include new allegations after the trial had concluded.

The Court of Appeal held that the primary judge, as a member of the Trial Division of the Supreme Court of Queensland, had jurisdiction to hear the case. The Court noted that the appellants did not raise any jurisdictional issues before the primary judge and that there was no basis to question the court's jurisdiction. The Court also found that the allegations of unconscionable conduct were not addressed because the appellants did not raise these issues at trial, and appellate courts generally do not allow new points to be argued for the first time on appeal, especially when they concern factual matters that could have altered the trial's conduct. Regarding the cross-examination of witnesses, the Court found no error in the primary judge's ruling that the appellants could not ask a witness to confirm the content of legislation that had not been pleaded. Lastly, the Court concluded that the appellants had not provided a sufficient reason for leave to adduce further evidence or to amend their pleadings post-trial. As none of the grounds of appeal were substantiated, the appeal was dismissed.

The Court of Appeal dismissed the appeal with costs. The orders included refusing the appellants' applications to examine original documents, adduce further evidence, and amend their pleadings. The appeal was dismissed, and the costs of the appeal were awarded to the respondents.

Orders