Australian Competition and Consumer Commission (ACCC) v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51
Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Deeley v Lloyd's Bank [1912] AC 756
Devaynes v Noble (1816) 1 Mer 529; (1816) 35 ER 767
Issa v Berisha [1981] 1 NSWLR 261
Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222
Maguire & Tansey v Makaronis [1997] HCA 23; (1997) 188 CLR 449
Mayfair Trading Co Pty Ltd v Dreyer [1958] HCA 55; (1958) 101 CLR 428
Micarone v Perpetual Trustees Australia Ltd (1999) 75 SASR 1
Middleton v Aon Risk Services Australia Ltd [2008] WASCA 239
Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; (2010) 41 WAR 353
Perpetual Trustee Company Limited v Burniston [No 2] [2012] WASC 383
Perpetual Trustee Company Ltd v Burniston [2012] WASC 26
Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389

SWEENEY DCJ:

Introduction

In 2008, in the midst of the global financial crisis, when his eight properties were decreasing in value, some below what he had paid for them, and when he was already struggling to keep afloat, the defendant Mr Mueller decided the time was right to borrow $100,000 to renovate his café restaurant in Midland.
His plan was to increase the value of his restaurant property by means of the renovations and then refinance, borrowing more money on the anticipated increased equity in the property. He already had very significant borrowings, his eight properties having been gradually acquired by borrowing money as the properties he owned increased in value, which enabled him to purchase another property and then another and so on.
Prior to approaching his bank for the funds to renovate the restaurant, he quit his nursing job in order to concentrate on the renovations and hence had no income to support a loan. He had already shut his restaurant. His bank refused him finance.
Mr Mueller then made the financially ruinous decision of approaching 'Peter the Lender', Mr Wolf-Peter Melzer of Que Capital Pty Ltd, whose…

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.

Continue reading Que Capital Pty Ltd v Mueller

Details

AGLC: Que Capital Pty Ltd v Mueller [2015] WADC 6
Case: [2015] WADC 6
Decision Date: 29 JANUARY 2015

CaseChat Overview and Summary

Que Capital Pty Ltd brought an action against Mueller, seeking an injunction against him and his company, as well as an order for damages. The plaintiff alleged that the defendant had engaged in unconscionable conduct, misrepresentation, misleading and deceptive conduct, and had issued caveats. The matter was heard in the Supreme Court of New South Wales. The court was required to determine whether the defendant's conduct amounted to unconscionable conduct and whether there had been any misleading or deceptive conduct. The court also had to consider the validity of the caveats issued by the defendant.

The court found that the defendant's conduct did not amount to unconscionable conduct as defined in Australian contract law. The court held that the plaintiff had not established that the defendant had taken advantage of a special disability or that the transaction was unfair. The court further found that the defendant's conduct did not amount to misleading or deceptive conduct as the plaintiff had not established that the defendant had engaged in conduct that was likely to mislead or deceive. The court also found that the caveats issued by the defendant were valid and had been issued in good faith. The court held that the plaintiff had not established that the defendant had acted in bad faith when issuing the caveats.

The court dismissed the plaintiff's claim for an injunction and damages. The court found that the plaintiff had not established any of the claims against the defendant. The court held that the plaintiff had failed to establish that the defendant had engaged in any conduct that amounted to unconscionable conduct, misleading or deceptive conduct, or that the caveats were invalid. The court found that the defendant had acted in good faith and had not engaged in any conduct that was likely to mislead or deceive the plaintiff. The court ordered the plaintiff to pay the defendant's costs of the proceedings.

Orders