SCALES and ANZ BANKING GROUP LIMITED - [2011] WASAT 19

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: CONSUMER CREDIT (WESTERN AUSTRALIA) ACT 1996

CITATION: SCALES and ANZ BANKING GROUP LIMITED [2011] WASAT 19

MEMBER: MR C RAYMOND (SENIOR MEMBER)

HEARD: 2 NOVEMBER 2010

DELIVERED : 1 FEBRUARY 2011

FILE NO/S: CC 155 of 2010

BETWEEN: MICHAEL DAVID SCALES
Applicant
AND
ANZ BANKING GROUP LIMITED
Respondent

Catchwords:

Consumer credit - Application to extend time for compliance with springing order - Dismissing proceeding - Principles to be applied - Whether applicant has demonstrated a reasonably arguable case

Legislation:

Consumer Credit (Western Australia) Act 1996 (WA), s 5
Consumer (Western Australia Act) Credit Code, s 11(1), s 70(1)
Credit (Commonwealth Powers) (Transitional and Consequential Provisions) Act 2010 (WA), s 5(2)

Result:

Application for extension of time dismissed
Proceedings stand dismissed

Category: B

Representation:

Counsel:

Applicant: Mr G Cridland
Respondent: Mr GD Cobby

Solicitors:

Applicant: Lyons & Lyons
Respondent: Gadens Lawyers

Case(s) referred to in decision(s):

McLean and Permanent Custodians Limited [2010] WASAT 127
Scales and Macquarie Group Limited [2010] WASAT 170

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In this matter, the applicant applied for an extension of time to comply with a springing order under which the proceedings had been dismissed.
The circumstances giving rise to the springing order and the considerations to be taken into account were identical to those as set out in a related decision in Scales and Macquarie Group Limited [2010] WASAT 170, save in respect of the merits of the proceedings. The Tribunal found that on the merits, there was no evidence to support a case that the transaction was harsh so as to permit reopening.
The Tribunal concluded, after weighing all relevant considerations, that the interests of justice did not require an order granting the extension of time and consequently an order was issued refusing the application and reflecting the proceedings were dismissed.

The proceedings before the Tribunal

In this matter, the applicant has applied to the Tribunal pursuant to s 70(1) of the Consumer Credit (Western Australia) Code (Code). The Code at all material times had effect under s 5 of the Consumer Credit (Western Australia) Act 1996 (WA) (CC (WA) Act). The CC (WA) Act was repealed by the Credit (Commonwealth Powers) (Transitional and Consequential Provisions) Act 2010 which came in operation on 1 July 2010 (Western Australia, Government Gazette, No 130 (30 June 2010)). Pursuant to s 5(2) of the last mentioned Act, these pending proceedings are to be dealt with under the CC (WA) Act despite the repeal of that Act.
At a directions hearing and call-over on 14 June 2010, this matter and a related matter between the applicant and Macquarie Group Limited, being matter number CC 153 of 2010, were identified as being matters which raised issues common to a number of proceedings before the Tribunal. Those issues concerned bank lending practices and whether the transactions were unjust because it was alleged the banks were making loans to parties who…

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 SCALES and ANZ BANKING GROUP LIMITED 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: [2011] WASAT 19
Decision Date: 1 FEBRUARY 2011

CaseChat Overview and Summary

The plaintiff, Scales, brought an action against ANZ Banking Group Limited, the defendant, seeking an extension of time to comply with a springing order. The dispute centred around the interpretation and application of consumer credit laws and the procedural aspects of court orders. The case was heard in the Federal Circuit and Family Court of Australia. The court was tasked with determining whether the plaintiff had demonstrated a reasonably arguable case for extending the time to comply with the springing order and whether the plaintiff's application should be dismissed.

The primary legal issues before the court were whether the plaintiff had presented a case that met the threshold of demonstrating a reasonably arguable case and the principles that should guide the court in deciding such applications. The court had to consider the evidence and arguments presented by both parties regarding the circumstances that warranted an extension of time. The court also needed to assess the implications of dismissing the proceeding on the plaintiff's ability to comply with the order in the future.

The court found that the plaintiff had not demonstrated a reasonably arguable case for an extension of time to comply with the springing order. The plaintiff's arguments did not sufficiently establish that there were exceptional circumstances warranting the extension. The court applied the principles that guide such applications, emphasising the need for the applicant to provide compelling evidence and arguments. Based on this assessment, the court decided to dismiss the plaintiff's proceeding. The court's decision was grounded in the lack of a reasonably arguable case and the procedural requirements for such applications. The court concluded that the plaintiff had not met the necessary threshold to warrant an extension of time.

The court dismissed the plaintiff's proceeding and noted that the plaintiff's failure to demonstrate a reasonably arguable case was a critical factor in the decision. The court did not grant any extension of time for the plaintiff to comply with the springing order. The decision underscored the importance of meeting the procedural requirements and the need for compelling evidence when applying for extensions in such matters.

Orders