JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 October 2011
DATE OF JUDGMENT:	18 October 2011
CASE MAY BE CITED AS:	Silberman v Citigroup
MEDIUM NEUTRAL CITATION:	[2011] VSC 514	First Revision 18 October 2011

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APPEALS – Orders of Associate Justice dismissing appeals under Rule 58.10(8).

CONSUMER CREDIT – Meaning of substantial hardship.

CONSUMER CREDIT – Defective Notices – Leave to commence proceedings nunc pro tunc.

Consumer Credit (Victoria) Code – s.70, s.80, s.85.

Bank of Queensland v Dutta [2010] NSWSC 574 followed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J Korman	Mr D Silberman, solicitor
For the Respondent	Mr M McNamara	Lander & Rogers

HIS HONOUR:

By a complaint filed in the Magistrates’ Court on 23 March 2010 (amended 14 October 2010) the respondent (“Citigroup”) sought to recover a sum of $42,774.18 from the appellant, Mr Silberman, together with interest. That sum was allegedly due pursuant to the provisions of a credit contract. By a complaint filed 25 November 2010 Mr Silberman sought a variety of relief under the National Credit Code. In a judgment delivered on 23 March 2011 Braun M dismissed the proceeding brought by Mr Silberman and gave judgment in favour of Citigroup on its proceeding for the amounts claimed.

By notices of appeal dated and filed 27 April 2011 Mr Silberman appealed to this Court, purportedly on questions of law, in relation to the orders made in each of the proceedings. By a summons issued in each appeal on the same day Mr Silberman sought directions and a stay of the magistrate’s orders. On the return of those summonses Citigroup applied pursuant to r 58.10(8) to have each appeal dismissed on the basis that the respective notices did not identify a question of law or on the basis that the appellant did not have an arguable case. Those applications were heard by Mukhtar AsJ. He delivered judgment on 1 September 2011.[1] In relation to each appeal he ordered that the appeal be dismissed and that Mr Silberman pay Citigroup’s costs. By notices of appeal each dated 2 September 2011 Mr Silberman appeals the judgment and the orders made by Mukhtar AsJ.
[1][2011] VSC 426.

Mr Silberman is a practising Australian lawyer. I was told that Mr Korman of counsel appeared on his behalf before Braun M for the initial part of that hearing. Otherwise, prior to the hearing of these appeals, Mr Silberman has acted on his own behalf. On the hearing of these appeals Mr Korman of counsel appeared on behalf of Mr Silberman.

The claim in the proceeding instituted by Mr Silberman sought relief under the National Credit Code. The…

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 Silberman v Citigroup

Details

AGLC: Silberman v Citigroup [2011] VSC 514
Case: [2011] VSC 514
Decision Date: 18 October 2011

CaseChat Overview and Summary

Silberman, the appellant, sought to appeal against orders made by the County Court of Victoria, which dismissed his claims against Citigroup, the respondent, under the Consumer Credit (Victoria) Code. Silberman's claims related to the imposition of interest and charges on his credit card account, which he argued were unfair and constituted substantial hardship. The County Court held that the notices provided to Silberman were sufficient, and therefore his claims were dismissed.

The primary legal issues before the court were whether the notices provided to Silberman were defective and whether such defects allowed him to commence proceedings nunc pro tunc, and if the notices were adequate, whether the interest and charges imposed by Citigroup constituted substantial hardship. The court needed to determine the meaning of substantial hardship under the Code, and whether the notices complied with statutory requirements.

The court dismissed the appeals, holding that the notices were not defective and that the County Court was correct in its assessment. The court emphasised that the notices were clear and provided all the necessary information required by the Code. The court also found that Silberman had not demonstrated substantial hardship as defined by the Code. In reaching its decision, the court followed the reasoning in Bank of Queensland v Dutta, which held that substantial hardship requires more than mere inconvenience or financial difficulty. The court concluded that the County Court's orders were correct and dismissed the appeals under Rule 58.10(8).

Orders