Portfolio Leasing v The Registrar of CCT
[1999] NSWSC 872
•31 August 1999
CITATION: Portfolio Leasing v The Registrar of CCT & Anor [1999] NSWSC 872 CURRENT JURISDICTION: Administrative Law FILE NUMBER(S): 30040/99 HEARING DATE(S): 20 August 1999 JUDGMENT DATE:
31 August 1999PARTIES :
Portfolio Leasing Australia Limited (ACN 008-547-304)
(Plaintiff)The Registrar of the Consumer Claims Tribunals
James Stedman Advertising Pty Limited
(First Defendant)
(Second Defendant)JUDGMENT OF: Master Harrison
COUNSEL : Mr W Annis-Brown
Mr P Davenport
(Solicitor for Plaintiff)
(Solicitor for second defendant)SOLICITORS: Lincoln Smith & Co
(Plaintiff)Philip Davenport
(Second Defendant)CATCHWORDS: Declarations- jurisidiction of CCT ACTS CITED: Consumer Claims Tribunal Act 1987
Consumer Claims Act 1998DECISION: see paras 22 and 23
11
THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISIONMASTER HARRISON
TUESDAY, 31 AUGUST 1999
30040/99 - PORTFOLIO LEASING AUSTRALIA LIMITED
(ACN 008-547-304) v THE REGISTRAR OF
THE CONSUMER CLAIMS TRIBUNALS &
ANOR
JUDGMENT (Declarations: jurisdiction of CCT)
1 MASTER: By summons filed 7 June 1998 the plaintiff seeks to appeal a decision of Mr G J Durie a Referee of the Consumer Claims Tribunal (the tribunal) made on 13 May 1999. The plaintiff relied on an affidavit of Wayne Vincent Annis-Brown sworn 9 June 1999. The second defendant James Stedman Advertising Pty Limited did not file any affidavit evidence. The first defendant the Registrar of the Consumer Claims Tribunal filed a submitting appearance. The issue to be decided is whether or not the words “shall be automatically renewed” mean that at the expiry of initial term of the agreement the parties entered into a fresh contract.2 The plaintiff seeks declarations that the Consumer Claims Tribunals has no jurisdiction to hear and determine those matters arising in a claim by the second defendant against the plaintiff in proceedings before a Tribunal numbered TSY98/1534 and that the Referee G J Durie erred in law in ruling that the Consumer Claims Tribunals has jurisdiction to hear and determine the claim made by the second defendant against the plaintiff. Alternatively the plaintiff seeks an order in the nature of mandamus that the proceedings numbered TSY98/1534 in the Consumer Claims Tribunal be remitted to the said Referee to be heard and determined according to law.
3 Section 12(2)(a)(i) of the Consumer Claims Tribunal Act 1987 (the Act) gives this court the jurisdiction to grant relief in relation to the hearing or determination of the claim if it has given a ruling under s 26 of the Act which was erroneous. The plaintiff concedes for present purposes that the second defendant is a consumer within the meaning of the Act; the claim made by the second defendant to the Tribunal was a consumer claim within the meaning of the Act and that the consumer claim relates to goods supplied by the plaintiff to the second defendant.
4 On 13 June 1994 James Stedman Advertising Pty Limited as a renter (second defendant) signed a rental agreement with Portfolio Leasing Australia Limited (the plaintiff and the lessor). The second defendant leased computer equipment. The computer equipment was allegedly supplied on 16 June 1994. The initial term of the rental was 36 months. The fixed monthly rental was $792. The initial period of rental expired on 16 June 1997.
5 Clause 8 of the terms and condition of the rental agreement stated:
“RENEWAL. After the expiration of the initial Term, this Agreement shall be automatically renewed pending one of the following events:-
(a) Owner receives Renters written notice of cancellation ninety (90) days prior to the expiration of the Terms of this Agreement. In the event the rent payments shown above shall be due and payable in accordance with paragraph seven (7) up to the effective date of cancellation being the rent due date on or after the expiry of ninety (90) days from the date of receipt by the Owner of such notice of cancellation. The Renter shall return the Equipment on or before such effective date of cancellation in accordance with paragraph twelve (12).
(b) Owner does not receive from the Renter any written notice of cancellation ninety (90) days prior to the expiration of the Terms of this Agreement or Renter does not return Equipment in accordance with paragraph twelve (12) by the effective date of cancellation associated with valid notice of cancellation as provided for in paragraph eight (a) (8a). In either of these events the Term of this Agreement shall immediately be renewed for a period equal to the lesser of the Initial Term of twelve (12) months. The provisions of this paragraph eight (8) shall also apply after the expiration of each such period of renewal.”
6 Prior to 13 June 1997 the renter of the equipment did not give to the lessor any notices in respect of the rental agreement nor did it return the goods to the lessor.
7 The second defendant continued making rental payments after 13 June 1997. Once again prior to 13 June 1998 the renter of the equipment did not give to the lessor any notices in respect of the rental agreement nor did it return the goods to the lessor.
8 On 10 November 1998 the second defendant lodged a claim form with the Consumer Claims Tribunal. The second defendant gave the following details of the claim:9 Thus the amount in dispute is about $4,752 plus interest. The matter was heard on 4 December 1998 and 4 March 1999. Mon 13 May 1999 the Referee Mr G J Durie gave brief reasons for ruling on jurisdiction. The Referee commented that he was referred to an unreported decision of Sully J but it was not supplied to him by the parties, although they were requested to do so. I have also been unable to locate that unreported decision. The relevant portions of the Referee’s reasons are as follows:
“(1) I am retiring and winding up my company. I contacted Portfolio Leasing on 13.5.1998 to establish a payout figure on the computer that had been on a 36 month rental lease from 16.6.1994. They advised the sum of $4454 was the purchase price.
(2) On 14.6.1998 I posted a cheque for the above amount.
(3) On 19.10.1998 my cheque was returned and I was informed that it reached Portfolio Leasing after 16 June and that I therefore was liable for a further payment of $792 per month (total $14030).
(4) I advised them that I was not responsible for postal delays and re-offered my cheque for $4454 plus interest of $94.81.
(5) They refused my offer and requested payment of $9206 to complete the transaction.
(6) I feel this unfair as my account has been paid by bank debit for 48 months without fail during this contract. I am prepared to accept a decision by the Consumer Claims Tribunal on his matter and would pay the $4454 + interest to Portfolio Leasing Ltd.”
10 On 1 March 1999 the Consumer Claims Tribunals Act 1987 was repealed by the Consumer Claims Act 1998. The Consumer Claims Act 1998 commenced on 1 March 1999. By virtue of Schedule 1 to the Consumer Claims Act 1998, the Consumer Claims Tribunals Act 1987 applied to matters that had not been finally determined by the Consumer Claims Tribunal.
“The claim arises out of a lease of office equipment, the lessor being the Respondent and the lessee the Claimant. The original documentation between the parties dated 16 June 1994. That place was for a term of 36 months, with fixed monthly payments of $792.00. There is no holding over clause in the lease. Clause 8 is relevant. That provides for an automatic renewal until either (a) the lessee in writing cancels the lease; or (b) where there is no such written notice, and the equipment is not returned, “the Term of this Agreement shall immediately they (sic) renewed for a period equal to the lesser of the Initial Term or twelve month”. Thus the Initial Term expired on 15 June 1997. The Claimant continued to pay the monthly rental.
The Respondent argues that the Tribunal has no jurisdiction because the supply occurred more than three years before the claim was lodged. There is no dispute that claim was not lodged on 10 November 1998….”
In my opinion, there was a supply of goods, and a provision of services on 16 June 1994. I consider the proper interpretation of the agreement entered into that day was that that supply and provision came to an end on 15 June 1997. There was then a fresh supply and provision on 16 June 1997. I am drawn to this
conclusion from the use of the word “renewed” in clause 8 of the agreement. This is to the contrast and with the use of such words as “continued or “held over”. Had such words been used, I would have concluded that there was only one agreement.
The Claimant argues that there was a fresh agreement entered into on 16 June 1998 and a fresh supply the (sic) day. I consider this argument to be correct for the same reason that I consider that there was a fresh agreement and a fresh supply on 16 June 1997.
I adjourn the matter to take the fixed (sic) by the Registrar at least 14 days ahead as required by the Consumer Claims Tribunal Act section 26 (3).
Ruling
I rule that the Consumer Claims Tribunal has jurisdiction to hear and determine this claim.”
11 Section 10(1) of the Consumer Claims Tribunals Act 1987 reads as follows:12 and Section 10(3):
“Jurisdiction
(1) Subject to this Act, a tribunal has jurisdiction to hear and determine any consumer claim referred to it in accordance with this Act.”
“(3) A tribunal does not have jurisdiction in respect of a consumer claim … if:
(a) in the case of a consumer claim relating to goods or services that have been supplied to or for the claimant , the date on which the supply was made or, if made in instalments, the date on which the supply was last made;
(b) …
or
(c) in the case of a consumer claim relating to:
(i) a contract for the supply of goods or services to which neither paragraph (a) or (b) applies, or
(ii) a collateral contract, the date on which the contract was entered into,
was more than 3 years before the date on which the claim was lodged in accordance with section 13 of this Act or section 13 of the repealed Act…”
13 There was no suggestion that the supply of the computer equipment was made in instalments.
14 The plaintiff submitted at the hearing before the Referee, that he had no jurisdiction because the goods, the subject of the rental agreement, had been supplied to Stedman on the date of the agreement (16 June 1994) and that that date was more than three years before the date on which the claim was lodged on 10 November 1998. - Section 10(3)(a). Alternatively if s 10(3)(a) did not apply, then the claim was still out of time by virtue of s 10(3)(c) as the claim was lodged more than three years after the date on which the contract was entered into.
15 The plaintiff submitted that the Referee was led into error by equating the concept of date of supply (a question of fact) with the notion that there was automatic renewal of the rental agreement on 15 June 1997 (and again on 15 June 1998). According to the plaintiff the Referee erred in law when he decided that when the parties entered into a fresh agreement there was then a fresh supply of the goods. According to the plaintiff the correct construction of the agreement is that the application of clause 8 does not result in the extinguishment of the original agreement and the creation of a new one, but merely results in a variation of the original agreement such that its provisions apply for a further 12 months.
16 The second defendant made lengthy written submissions. Some of these submissions referred to a subsequent oral agreement. There is no evidence that this issue was raised before the Referee and there is no mention in the Referee’s reasons to lead me to conclude it was raised before him. In any event, it seems that the Referee, having decided he had jurisdiction intended to conduct a hearing at which these arguments could be ventilated.
17 The Referee considered that there was a fresh agreement entered into on 16 June 1998 and a fresh supply on that day. Similarly he held that there was a fresh agreement on 16 July and a fresh supply on that day. Section 10 is directed at the date on which the supply was made. Section (3) of the Act defines supply as:
“(a) in relation to goods, includes supply of goods by way of a contract for the sales, exchange, lease, hire hire-purchase of goods or an alleged contract for the sales, exchange, lease, hire or hire-purchase of goods, and
(b) in relation to services, includes provide, grant or render services for valuable consideration under a contract or for valuable consideration claimed to have been agreed to under an alleged contract.”
18 The second defendant submitted that “supply” can be continuous so that the computer equipment was not supplied on a specific date. The Macquarie Dictionary 3rd Ed, The Macquarie Library Pty Limited 1997 relevantly defines “supply” as “to furnish (a person, establishment, place, etc.) with what is lacking or requisite; to furnish or provide (something wanting or requisite): to supply electricity to a community; to make up (deficiency); make up for (a loss, lack, absence, etc); satisfy (a need, demand etc); to fill (a place, vacancy, etc); occupy as a substitute; to fill the place of another, temporarily, or as a substitute”. The Oxford Concise Dictionary defines “supply” as “furnish, provide (thing needed, or person) with or with thing needed”.
19 The physical supply of computer equipment occurred on one occasion, namely on 16 June 1994. Even if the word “supply” could be construed as occurring continuously, it could not be construed in this manner with the supply of inanimate objects such as computer equipment.
20 Clause 8 uses the words “This Agreement shall be automatically renewed”. It is my view that the application of clause 8 does not result in the extinguishment of the original one and the creation of a “fresh” agreement in identical terms to the original one but rather gives rise to a variation of the original agreement so that its provisions apply for a further 12 months. Clause 8 operates, in effect as a holding over clause in a lease. Clause 8 does not result in the making of a new agreement between the renter and the lessor. That being so, the supply of the goods occurred on 16 June 1994 which was more than three years before 10 November 1998. Hence this consumer claim does not fall within the provision of s 10(3)(a). Alternatively if s 10(3)(a) does not apply, the contract was entered into on 15 June 1994 which was more than three years prior to 10 November 1998. The consumer claim does not fall within s 10(3)(c)(i). Accordingly the tribunal does not have jurisdiction in relation to this consumer claim. This is common ground between the parties.
21 It is my view that the learned Referee has erred in law by finding that there were fresh supply and provision of computer equipment on 15 June 1997 and on 16 July 1997. I set aside the decision of Referee G J Durie made on 13 May 1999. I make a declaration that the Consumer Claims Tribunal has no jurisdiction to determine the claim made by the second defendant against the plaintiff in proceedings No TSY98/1534. Costs should follow the event. The second defendant is to pay the plaintiff's costs.
22 The Court declares that:23 The Court orders that:
(1) The Consumer Claim Tribunal has no jurisdiction to determine the claim made by the second defendant against the plaintiff in proceedings No TSY98/1534.
(3) The second defendant is to pay the plaintiff's costs.
(2) The decision of Referee G J Durie made on 13 May 1999 be set aside.
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