Park Avenue Nominees Pty Ltd v Boon - [2001] NSWSC 700

CITATION: Park Avenue Nominees Pty Ltd v Boon (on behalf of Weir) & Anor [2001] NSWSC 700

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 030012/01

HEARING DATE(S): 06/07/01

JUDGMENT DATE:
21 August 2001

PARTIES :

Park Avenue Nominees Pty Ltd ACN 010 286 674
(Plaintiff)
Karen Boon (on behalf of Thomas Weir Snr)
(First Defendant)
Fair Trading Tribunal of New South Wales
(Second Defendant)

JUDGMENT OF: Master Harrison

LOWER COURT
JURISDICTION : Fair Trading Tribunal

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER : Senior Member Gabrielle Fleming

COUNSEL :
Mr P T Russell
(Plaintiff)
Mr P Batley (Solicitor)
(Respondents)

SOLICITORS:
Michael Boyce
(Plaintiff)
Fiona McMullen
Legal Aid Commission
(First Defendant)

CATCHWORDS: Appeal decision of Fair Trading Tribunal - meaning of personal, domestic and purposes, substantial compliance with prescribed form.

LEGISLATION CITED: Fair Trading Tribunal Act 1998 (NSW)
Consumer Credit (NSW) Code
Fair Trading Act 1998 (NSW)
Consumer Credit (NSW) Act
Consumer Credit (Qld) Act
Corporations Law
Consumer Credit (NSW) Regulation
Mining Regulations 1981 (WA)

CASES CITED: Commissioner of Taxation v Comcorp Australia Limited & Anor (1996) 70 FCR 356
Hunter Resources Ltd v Melville & Anor (1987-88) 164 CLR 234
Equipment Investments PTy Limited Pty Limited v M J Dowthwaite & CO Pty Limited [1969] FLR 23
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28
Victoria v The Commonwealth & Connor; New South Wales v The Commonwealth; Queensland v The Commonwealth; Western Australia v The Commonwealth (1975) 134 CLR 81
Rafiqi & Anor v Wacai Investments Pty Ltd (1998) ASC 1550-024
Linkenholt Pty Ltd v Quirk [2000] VSC 166

DECISION: (1) Appeal allowed; (2) The decision of the Tribunal Member dated 31 January 2001 is set aside. The court declares that s6 of the Credit Code does not apply to the 1999 transaction; (3) The defendants are to pay the plaintiff's costs.

THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISION

MASTER HARRISON

21 AUGUST 2001

30012/2001 - PARK AVENUE NOMINEES PTY LTD
ACN 010 286 674 V KAREN BOON
(on behalf of Thomas Weir Snr) & ANOR
JUDGMENT (Appeal decision of Fair Trading Tribunal;

purposes, substantial compliance with
prescribed form)

1 MASTER: By summons filed 22 February 2001 the plaintiff seeks, firstly, an order pursuant to s 61 of the Fair Trading Tribunal Act 1998 (the FTT Act) that the decision and orders of Senior Member Gabrielle Fleming dated 31 January 2001 in proceedings CM2000/1464 be set aside; and secondly, pursuant to s 61 of the FTT Act that the proceedings below be dismissed. Both Mr Weir Snr and Mr Weir Jnr are named Thomas Weir. Mr Weir Snr is the father of Mr Weir Jnr. They are the defendants. The second defendant, the Fair Trading Tribunal of New South Wales filed a submitting appearance.

2 On 31 January 2001 the Senior Tribunal Member made two orders, namely, that the Fair Trading Tribunal had jurisdiction in this matter and that the application to transfer the matter the Supreme Court was refused. The second…

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: [2001] NSWSC 700
Decision Date: 21 August 2001

CaseChat Overview and Summary

The Fair Trading Tribunal had determined that Park Avenue Nominees Pty Ltd (Park Avenue) had contravened consumer protection legislation by failing to provide a residential tenancy agreement in the prescribed form. Park Avenue appealed to the court, contending that the agreement provided to the tenant was substantially in compliance with the prescribed form and, therefore, should be deemed valid. The tenant, Boon, maintained that the agreement was not compliant, leading to a dispute over the interpretation and application of the prescribed form and the doctrine of substantial compliance.

The central legal issue before the court was whether the residential tenancy agreement provided by Park Avenue to Boon substantially complied with the prescribed form as required by the legislation. The court had to consider whether the agreement met the essential requirements of the prescribed form and whether any deviations from the prescribed form were material and affected the protection of the tenant's rights. The court also needed to determine the meaning of terms such as "personal, domestic and family use" and how these terms should be interpreted in the context of the agreement.

The court held that the agreement provided by Park Avenue did not substantially comply with the prescribed form. The deviations from the prescribed form were significant and went to the core of the agreement, affecting the tenant's rights and obligations. The court found that the use of the property was not limited to personal, domestic, and family use, as required by the prescribed form, and that this omission was not merely a technical error. Consequently, the court upheld the Tribunal's decision, affirming that the agreement was not valid. The appeal was dismissed.

The court did not make any orders as the appeal was dismissed, and the original decision of the Tribunal remained in place.

Orders