Ormes v Lewis

[2006] NSWSC 16

CITATION:	Ormes v Lewis [2006] NSWSC 16
HEARING DATE(S):	30 January 2006
JUDGMENT DATE :	3 February 2006
JURISDICTION:	Common Law Division Administrative Law List
JUDGMENT OF:	Associate Justice Malpass at 1
DECISION:	The notice of motion is dismissed; the plaintiff is to pay the costs of the notice of motion.
CATCHWORDS:	Jurisdiction conceded before Tribunal - credit contract - leave to add a ground of appeal challenging finding as to jurisdiction - dictates of justice - leave to file further evidence of material not led before Tribunal.
LEGISLATION CITED:	Consumer Claims Act 1998 Consumer Credit (New South Wales) Code Consumer Trader & Tenancy Tribunal Act 2001
CASES CITED:	Director of Consumer Affairs Victoria v Geeveekay Pty Ltd (Credit) [2005] VCAT 555 Rafiqi and Thomas v Wacal Investments Pty Ltd (1988) ASC 155-024 (District Ct (Qld)).
PARTIES:	Darren Ormes (Plaintiff) David Lewis (First Defendant) Corinda Lewis (Second Defendant) Consumer Trader & Tenancy Tribunal (Third Defendant)
FILE NUMBER(S):	SC 30083/05
COUNSEL:	Mr B Sharpe (Plaintiff) Ms J I Ghabrial (First & Second Defendants)
SOLICITORS:	Cordato Partners (Plaintiff) Legal Aid Wollongong (First & Second Defendants) I V Knight, Crown Solicitor (Third Defendant)
LOWER COURT JURISDICTION:	Consumer Trader and Tenancy Tribunal of NSW
LOWER COURT FILE NUMBER(S):	04/43987
LOWER COURT JUDICIAL OFFICER :	Senior Member Connolly

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

Associate Justice Malpass

3 February 2006

30083 of 2005 Darren Ormes v David Lewis & Anor

JUDGMENT

1 His Honour: The plaintiff (as vendor) and the defendants (as purchasers) entered into a contract for sale of land dated 31 July 2002 (the contract). The contract provided for the sale of property at Dapto for the price of $200,000. The balance of the price (in the sum of $188,000) was to be payable “as per the Instalment Payment”. The contract has an instalment payment schedule. Clause 1 thereof is in the following terms:-

1. This Schedule is to apply
This Schedule shall apply to vary the provisions of the Contract to the extent outlined. The operation of this Schedule will commence on the Possession date.

2 A credit code disclosure statement also formed part of the contract. It contained an offer of instalment arrangements for the payment of the balance price (the maximum amount of credit was expressed to be $188,000 and provision was made for the payment of interest commencing upon the possession date).

3 The defendants took possession. They accepted the offer of instalment arrangements and made payments in the order of $58,000. There was default and the contract was brought to an end.

4 The defendants brought an application in the Consumer Trader & Tenancy Tribunal (the Tribunal). The application was based on alternate grounds. It was contended that the contract was a credit contract within the meaning of s5 of the Consumer Credit (New South Wales) Code (the Code). In the alternative, it was contended that there was jurisdiction having a limit of $25,000 under the Consumer Claims Act 1998.

5 The application came to hearing. It was heard by Senior Member Connolly. His reasons for decision are dated 18 July 2005. His decision brought about the result that the plaintiff was ordered to pay a sum in the order of $28,000 to the defendants.

6 On 19 August 2005, the plaintiff filed a summons in this court. The summons sought to disturb the decision of the Tribunal on the basis of error of law.

7 In the hearing before the Tribunal, the plaintiff was represented by experienced counsel and the defendants were represented by a solicitor.

8 Counsel for the plaintiff conceded that the Tribunal had jurisdiction in the matter. There was no challenge to the proposition that the code applied to the contract.

9 The defendants proceeded before the Tribunal relying on this concession as to jurisdiction. As a consequence, the alternative ground was not pressed and no evidence was led in respect of it.

10 The Tribunal satisfied itself that the contract was a credit contract within the meaning of the Code and that it had jurisdiction to entertain the application. The Tribunal then proceeded to consider the question of the reopening of the transaction pursuant to s70 of the Code. A finding was made that the contract was unjust. This led to the granting of the relief in the order of $28,000.

11 The grounds of appeal set forth in the summons were directed to what was done by the Tribunal pursuant to s70 of the Code.

12 An amended summons was filed on 8 September 2005. The purpose of that document was to also seek an extension of time in which to bring the appeal.

13 A further amended summons was filed on 14 October 2005. The purpose of the filing of that document is not entirely clear.

14 On 23 November 2005, the plaintiff filed a notice of motion. It sought the following relief:-

1. The plaintiff have leave to file and serve a Second Further Amended Summons herein adding a further ground of appeal that “The Tribunal was in error in finding that the contract entered into between the parties was a credit contract within the meaning of the Consumer Credit Code (New South Wales) (The Code).
2. The Plaintiff have leave to file and serve further Affidavits relating to additional evidence which was not before the Consumer Trader and Tenancy Tribunal.

15 The notice of motion came on for hearing on 30 January 2006. The defendants opposed the granting of the relief sought therein.

16 There was no dispute that the court has the power to grant leave to amend the summons. There is no dispute that the power is to be exercised having regard to the dictates of justice.

17 Section 4 of the Code provides the meaning to be given to, inter alia, the term “credit”. This meaning is set forth in the following terms:-

(1) For the purposes of this Code, “credit” is provided if under a contract--
(a) payment of a debt owed by one person (the debtor) to another (the credit provider) is deferred; or
(b) one person (the debtor) incurs a deferred debt to another (the credit provider).

18 The plaintiff contends that it is arguable that there was no deferment of debt in the sense contemplated by the section and that, despite the concession made by counsel before the Tribunal, he should be allowed to argue the additional ground of appeal.

19 It appears that this question has had little judicial consideration. The Tribunal followed one of its own earlier decisions. The Victorian Civil and Administrative Tribunal has also made a decision relating to the question (Director of Consumer Affairs Victoria v Geeveekay Pty Ltd (Credit) [2005] VCAT 555).

20 These decisions do not assist the plaintiff. Instead, it relies on views expressed by Anthony Duggan and Elizabeth Lanyon in Consumer Credit Law (Butterworths, Sydney, 1999)

21 The authors criticise the decision made in Rafiqi and Thomas v Wacal Investments Pty Ltd (1988) ASC 155-024 (District Ct (Qld)). It was a decision that saw a contract for the sale of land being held to be a credit contract within the meaning of the Code. The case was distinguishable from the circumstances of the contract now before this court.

22 The publication contains the following:-

It follows that in the case of a sale where the contract does not name a date for payment in advance of completion, no debt is incurred until conveyance. There is no provision of credit up to that point. Nor is credit provided afterwards because in the usual case there will be no debt deferment. The purchaser’s obligation is to pay when the debt is incurred upon conveyance. In the case of a sale where the price is payable by instalments under the contract in advance of the conveyance, a debt is incurred each time an instalment falls due. Again, however, credit is not provided because there is no debt deferment. [p47]

23 It is unnecessary to dwell on the question of the correctness or otherwise of what was said by the authors. Even if it be assumed that what is propounded by the authors is correct, it seems to me that what is said by them does not have application in the particular circumstances of the present case.

24 The contract has its own unique features. The balance purchase price was payable on completion. The contractual provisions provided credit in respect of the balance purchase price. The schedule operated as a variation amendment to the standard claims and further clauses which commenced on the possession date. The acceptance of the offer of instalment arrangements had the effect of deferring the plaintiffs’ entitlement to completion and payment of the balance price.

25 Accordingly, I do not accept the contention that there was an arguable case that the Tribunal lacked the jurisdiction to entertain the application.

26 Whilst the decision on that point suffices to dispose of the application for amendment, it is not the only reason which would inevitably lead to the dismissal of that application. This would be the position even if a different view be taken on the credit contract issue.

27 Jurisdiction was conceded by the plaintiff. The defendants conducted their case before the Tribunal relying on that concession. The alternative ground for jurisdiction was not pressed and the defendants did not place evidence before the Tribunal to substantiate jurisdiction on that basis. In the circumstances, I do not consider that the plaintiff should now be allowed to change his stance and argue the proposed additional ground of appeal.

28 There has been considerable delay. The original appeal was brought out of time and an extension of time may or may not be granted. There is a lack of explanation for why the jurisdictional ground is sought to be ventilated at this late stage.

29 In the relevant circumstances of this case, I am not satisfied that the dictates of justice are compatible with the application to amend. In my view, the onus borne by the plaintiff has not been discharged and the application should fail.

30 The second order sought by the plaintiff concerns a procedural step. Like the application for leave to amend, it should have been dealt with by a registrar in the course of the case management of the appeal. The success of this second application is not dependent on the granting of leave to amend. The proposed further evidence does not concern the jurisdictional question. Rather, it relates to the grounds concerning the reopening of the transaction.

31 Leaving that matter aside, it is a misconceived application.

32 The plaintiff had the opportunity and did lead evidence on the reopening issue before the Tribunal. He is confronted by the public policy of finality in litigation. In an endeavour to deal with this problem, it is said that the purpose of the affidavits is to demonstrate that there was other evidence available to the plaintiff that could have been led on this issue. Presumably, it is thought that having such material before the court adds substance to the grounds of appeal that concern such issue.

33 The summons brings an appeal pursuant to s67 of the Consumer Trader & Tenancy Tribunal Act 2001. It is a narrow avenue of appeal and is restricted to those cases where the Tribunal decides a question with respect to a matter of law.

34 Where this court does not affirm the decision of the Tribunal, it may order a rehearing of the proceedings by the Tribunal. If that should come to pass, fresh evidence may be given on the rehearing before the Tribunal.

35 In the circumstances, I do not propose to grant leave to file and serve the further affidavits.

36 The notice of motion is dismissed. The plaintiff is to pay the costs of the notice of motion.

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