Nelson v BMW Australia Finance Ltd
[2009] WASCA 13
•15 JANUARY 2009
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| TITLE OF COURT : | THE COURT OF APPEAL (WA) | |
| CITATION | : | NELSON -v- BMW AUSTRALIA FINANCE LTD [2009] WASCA 13 |
| CORAM | : WHEELER JA |
PULLIN JA
BUSS JA
| HEARD | : | 1 DECEMBER 2008 |
| DELIVERED | : | 15 JANUARY 2009 |
| FILE NO/S | : | CACV 65 of 2008 |
| BETWEEN | : GRAHAME BRETT NELSON |
Appellant
AND
BMW AUSTRALIA FINANCE LTD
Respondent
ON APPEAL FROM:
| Jurisdiction | : | DISTRICT COURT OF WESTERN AUSTRALIA |
| Coram | : KEEN DCJ | ||
| Citation |
| ||
| File No |
| ||
| Jurisdiction |
| ||
| Coram |
| ||
| Citation |
| ||
| File No |
| ||
| Catchwords: |
Hire-purchase - Statutory requirement - Fourth Schedule - Whether owner may estimate the amount of arrears
Appeal - Interlocutory appeals - No merit in proposed grounds - No new point of law
Legislation:
Hire-Purchase Act 1959 (WA), s 13, s 15
Result:
Application for leave to appeal against both decisions of primary judge dismissed
[2009] WASCA 13
Category: B
Representation:
Counsel:
| Appellant | : | Mr K C B Staffa |
| Respondent | : | Mr R A C Cullen |
Solicitors:
| Appellant | : | Staffa Lawyers |
| Respondent | : | Cullen Babington Hughes |
Case(s) referred to in judgment(s):
Equipment Investments Pty Ltd v M J Dowthwaite & Co Pty Ltd (1969) 16 FLR
23
[2009] WASCA 13
WHEELER JA
PULLIN JA
WHEELER JA: I agree with Pullin JA.
PULLIN JA: This is an appeal against two orders of Keen DCJ dated 16 June 2008. The first order appealed against is the order dismissing the appellant's application for summary judgment under O 16. The second order appealed against is the dismissal of an appeal against the decision of Deputy Registrar Hewitt made on 23 August 2007, by which the deputy registrar granted leave to the respondent to amend its statement of claim. Both of these appeals are appeals against interlocutory orders (and therefore not 'final' orders) and as a result a grant of leave is necessary before the appeal can proceed. See s 79(1)(b) of the District Court of Western Australia Act 1969 (WA).
3 The case concerns a hire-purchase agreement entered into between
the parties on 21 September 1999 in respect of a BMW motor vehicle. The pleadings in the District Court reveal that the respondent alleged that the appellant defaulted under the agreement and that the respondent repossessed the vehicle.
4 Before the default occurred it seems that there developed an issue
about whether or not a particular payment of $650 had been made by the appellant to the respondent. The respondent contended and pleaded that the appellant was in arrears and in default to the tune of $3,341.16. The appellant contended that the figure was overstated by $650.
5 A few days before the trial the respondent wished to amend its
pleadings in effect to acknowledge that it had been paid the $650. The amendment proposed to amend the pleadings to state that at the time of default, the appellant owed $2,691.16 rather than the previously pleaded figure of $3,341.16. At the same time, the respondent decided to plead in its statement of claim (rather than in its reply) that it had given notice dated 3 August 2004 which 'complied with the Fourth Schedule of the Hire-Purchase Act'. The appellant opposed the grant of leave to amend. The deputy registrar granted leave and the appellant appealed. To the appeal was added the appellant's application for summary judgment under O 16. The appeal and the application were heard together.
6 The short point which was raised on the application for judgment
under O 16 was the appellant's contention that, because the Fourth Schedule showed 'arrears of instalments' as $3,341.16 rather than $2,691.16, the Fourth Schedule notice was 'invalid and ineffective' and that this meant that the respondent 'could not succeed with its case by virtue of s 13(4) of the [Hire-Purchase] Act'. The primary judge recorded
[2009] WASCA 13
PULLIN JA
the submissions of both parties and decided in effect that the appellant had not satisfied him that there was no real question to be tried and dismissed the application.
The appeal against the deputy registrar's order allowing amendments to the pleadings was dismissed. The primary judge said
It seemed to me and I obtained little in the way of contradiction from the defendant that the amendment as to the amount did little more than to admit the defendant's position. The plaintiff was admitting that this payment, alleged to have been made by the defendant, had in fact been made. Accordingly, by amending the statement of claim the real issues joined between the parties were clearly identified. Alternatively by amending the pleading to acknowledge this payment the plaintiff was avoiding false issues being on the pleadings before the Court. [19]
8 Although there were several grounds of appeal, the real point raised
in relation to the dismissal of the summary judgment application was a repeat of the appellant's argument put to the primary judge, namely that the Fourth Schedule notice was 'invalid and ineffective' because the 'arrears of instalments' was shown as $3,341.16 rather than $2,691.16 and that this defect was 'fatal to the Fourth Schedule notice by virtue of s 13(4) of the Hire-Purchase Act 1959, with the result that the respondent's (plaintiff's) rights under the Hire-Purchase Agreement ceased and determined with the result that the appellant (defendant) was entitled to summary judgment under Order 16'.
Section 13 of the Hire-Purchase Act 1959 (WA) reads:
(1)
Subject to this section, an owner shall not exercise any power of taking possession of goods comprised in a hire-purchase agreement arising out of any breach of the agreement relating to the payment of instalments until he has served on the hirer and every guarantor a notice, in writing, in the form of the Third Schedule and the period fixed by the notice (being not less than seven days after service of the notice) has expired.
(2) … (3)
Within 21 days after the owner has taken possession of goods that were comprised in a hire-purchase agreement he shall serve on the hirer and every guarantor a notice, in writing, in the form of the Fourth Schedule.
(4)
If the notice required by subsection (3) is not served, the rights of the owner under the hire-purchase agreement cease and determine, but, if the hirer exercises his rights under this Act to recover the goods so taken possession of, the agreement has the same force and
[2009] WASCA 13
PULLIN JA
effect in relation to the rights and liabilities of the owner and the
hirer as would have had if the notices had been duly given.
10 What will be noticed immediately is that s 13(4) does not have the
effect contended for by the appellant in his grounds of appeal. Subsection (4) says that if the notice required by s 13(3) (ie 'a notice, in writing, in the form of the Fourth Schedule') is not served, the rights of the owner under the hire-purchase agreement cease and determine.
11 The Fourth Schedule is an advice to hirers and which informs them
in part that the goods hired having been repossessed, the hirer will be entitled to get them back if within 21 days, the hirer requires the owner to redeliver the goods and the hirer reinstates the agreement by paying the arrears and remedying the 'following breaches of the agreement' (or paying the owner's expenses in remedying them). The form then reads in part (a):
The owner's estimate of the amount you must pay to reinstate the agreement is -
Arrears of instalments $......... Costs of storage, repair or maintenance $......... Cost of repossession $......... Cost of redelivery $......... Total: $.........
12 The form also provides for an alternative in part (b) which is to allow
the hirer to finalise the agreement and pay the balance due under the agreement, but I need not set that out because the appellant did not complain about any aspect of that part of the Fourth Schedule.
13 The appellant submitted that the owner was only permitted to make
an estimate in relation to items which, he contended, could not be known with certainty at the time the Fourth Schedule was prepared. So for example, the final costs of storage and costs of redelivery would not be known at that time. The appellant argued that an owner must know precisely what arrears of instalments there were at the time the Fourth Schedule was prepared and that no estimate of arrears of instalments was permitted. It followed, the appellant submitted, that if the amount shown against 'arrears of instalments' was not the actual amount of arrears in instalments, then there was no real question to be tried at trial because the notice was, in consequence, not in the form of the Fourth Schedule with
[2009] WASCA 13
PULLIN JA
the result that the rights of the owner 'cease and determine'. In support of this the appellant submitted that if the amount of arrears was not stated accurately, then the hirer's rights under s 15 of the Act would be prejudiced.
14 Those submissions must be rejected. It is clearly arguable that the
requirement that the owner's estimate of the amount to reinstate the agreement may be made up of estimates of the four amounts making up the total. In some circumstances, the 'arrears of instalments' might have to be a matter of estimation. It is possible to contemplate many circumstances requiring an estimate. One example might be where a particular hirer had many hire-purchase agreements and made a single payment, raising questions about the correct method of apportioning payments across the various accounts.
The appellant's contention about s 15 has no merit. Nothing in s 15 conditions the hirer's rights on payment of the amount the owner estimates as the arrears.
16 There were a number of authorities referred to by the parties but
none were directly on point. It is only necessary to mention one of those cases, namely Equipment Investments Pty Ltd v M J Dowthwaite & Co Pty Ltd (1969) 16 FLR 23 because the appellant placed emphasis on it. That case concerned the Hire-Purchase Act 1960 (NSW), s 13 of which and the Fourth Schedule of which were similar to this State's provisions, if not identical. The case relevantly concerned part (b) of the Fourth Schedule notice (not part (a) which the appellant complains about in this case). In Dowthwaite the Fourth Schedule notice had been modified by the owner by adding to the statutory form, two extra items relating to interest on arrears and insurance, which the appellant had then inserted figures against. Gibbs J held (57) that 'the inclusion of the interest on arrears and insurance in par (b) had the result that the notices were not in the form in the Fourth Schedule, and did not comply with s 13(3)'. It is clearly arguable that such reasoning does not apply here because the Fourth Schedule notice was in the form of the Fourth Schedule. Nothing was added to the form other than the filling in of the estimated figures which the form itself calls for.
As a result there is no merit in the appellant's contention that his Honour erred in dismissing the application for judgment under O 16.
18 The proposed appeal against the amendment to the statement of
claim has no merit. The ground of appeal concerning this point repeats
[2009] WASCA 13
PULLIN JA
BUSS JA
the contention that the Fourth Schedule notice was invalid. That has already been dealt with above. All that the amendments otherwise did was to recognise what the appellant had previously contended, namely that he had made a $650 payment which had not been taken into account by the respondent. There could be no prejudice to the appellant in making what was in effect an admission.
As a result, the application for leave to appeal against both decisions of the primary judge should be dismissed.
BUSS JA: I agree with Pullin JA.
0
1