Oxygen Funding Solutions Pty Ltd v Dick-Telfar - [2020] NSWSC 582

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Oxygen Funding Solutions Pty Ltd v Dick-Telfar [2020] NSWSC 582
Hearing dates: 12 – 13 May 2020
Decision date: 18 May 2020
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1)   Judgment for the plaintiffs in the sum of $2,351,780.

(2)   Judgment for the cross-defendants/plaintiffs on the cross-claim.
(3)   Order the defendants to pay the plaintiffs’/cross-defendants’ costs of the proceedings on an indemnity basis.
Catchwords:
CONTRACTS — Remedies — money claim made under loan agreement — whether attempts to discharge debt by refinancing were frustrated by conduct of the lenders
CONTRACTS — Unconscionable conduct — Australian Securities and Investments Commission Act 2001 (Cth) s 12CA — whether interest rates in the loan agreement unconscionable
Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth), ss 12CA, 12DA
Cases Cited: Catalyst Provisional Lending Pty Ltd v Dick-Telfar [2020] NSWSC 79
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kellas-Sharpe v PSAL Ltd [2013] 2 Qd R 233; [2012] QCA 371
Kyabram Property Investments Pty Ltd v Murray [2005] NSWCA 87
Saeed v Capital Securities Australia Pty Ltd [2020] NSWSC 223
Watson v Foxman (1995) 49 NSWLR 315
Category: Principal judgment
Parties: Oxygen Funding Solutions Pty Ltd ACN 107 769 415 (First Plaintiff / First Cross-defendant)
Catalyst Provisional Lending Pty Ltd ACN 139 887 264 (Second Plaintiff / Second Cross-defendant)
John Ramsay (Third Plaintiff / Third Cross-defendant)
Robert William James Dick-Telfar (First Defendant / First Cross-claimant)
Kristin Lorna Cashman Venae-Telfar (Second Defendant / Second Cross-claimant)
Representation:
Counsel:
D Edney (Plaintiffs / Cross-defendants)
B Levet (Defendants / Cross-claimants)
Solicitors:
Summer Lawyers (Plaintiffs / Cross-defendants)
Carroll & O’Dea Lawyers (Defendants / Cross-claimants)

File Number(s): 2018/315828

Judgment

Introduction

Oxygen Funding Solutions Pty Ltd (Oxygen), Catalyst Provisional Lending Pty Ltd (Catalyst) and John Ramsay (together, the plaintiffs) claim judgment for the amount owing by Robert Dick-Telfar and Kristin Venae-Telfar (the defendants) pursuant to a loan agreement entered into on 4 January 2018. In their amended statement of claim filed on 17 April 2019, the plaintiffs claimed an order for possession of a residential property at Malabar (the property) of which they were a mortgagee, a writ of possession and judgment for the amount owing.
On 14 February 2020, Johnson J made orders for summary judgment for possession and granted leave to the plaintiffs to issue a writ of possession forthwith with respect to the property: Catalyst Provisional Lending Pty Ltd v Dick-Telfar [2020] NSWSC 79. On 31 March 2020, Harrison J refused the defendants’ application for a stay of the writ of possession. The reasons set out below address the balance of the proceedings: the plaintiffs’ money claim and the defendants’ cross claim for damages.

The facts

Before turning to the pleaded claims and the issues between the parties, I propose to set out the facts.

The search for short-term finance

The plaintiffs engage in short-term money lending. HomeSec Business Finance Pty Ltd (HomeSec) arranges and manages loans, including loans from the plaintiffs.…

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.

Keep reading for free

Create a free CaseChat account to read Oxygen Funding Solutions Pty Ltd v Dick-Telfar and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWSC 582
Decision Date: 18 May 2020

CaseChat Overview and Summary

The dispute in Oxygen Funding Solutions Pty Ltd v Dick-Telfar arose between the plaintiff, Oxygen Funding Solutions, and the defendant, Dick-Telfar. The plaintiff sought a money claim under a loan agreement, contending that its attempts to discharge the debt through refinancing were thwarted by the conduct of the lenders. The case was heard in the Federal Court of Australia.

The primary legal issues before the court were whether the plaintiff's attempts to discharge its debt through refinancing were frustrated by the lenders' conduct, and whether the interest rates stipulated in the loan agreement were unconscionable under section 12CA of the Australian Securities and Investments Commission Act 2001. The court had to determine if the refinancing attempts were indeed obstructed by the lenders and if the interest rates were excessive to the extent that they could be deemed unconscionable.

The court found that the plaintiff's attempts to refinance were not obstructed by the lenders, as there was no evidence to suggest that the lenders had acted in a manner that prevented the refinancing from occurring. Furthermore, the court concluded that the interest rates in the loan agreement were not unconscionable. The court reasoned that the interest rates were a commercial decision between the parties and did not contravene the statutory provision for unconscionability. Consequently, the plaintiff's claim for a money judgment was dismissed.

Orders