Sweetvale Pty Ltd & Anor v VCAT & Ors - [2011] VSC 426

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2011 01936
S CI 2011 01937

DOV RAPHAEL SILBERMAN	Plaintiff
and
CITIGROUP PTY LTD	Defendant

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JUDGE:	MUKHTAR AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	24, 31 May, 28 June, 30 August 2011
DATE OF JUDGMENT:	1 September 2011
CASE MAY BE CITED AS:	Silberman v Citigroup
MEDIUM NEUTRAL CITATION:	[2011] VSC 426

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APPEAL ― Appeal from Magistrates Court ― Necessity to show question of law ― Application of Consumer Credit Code ― Question whether appellants particular circumstances fell within statutory criteria ― Findings of fact ― Evaluations of evidence ― No question of law ― Appeal dismissed

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person	Dov Silberman, Lawyer
For the Defendant	Mr M McNamara	Lander & Rogers

HIS HONOUR:

The appellant has filed two separate notices of appeal under s 109 of the Magistrates’ Court Act against orders made in two interrelated proceedings which were heard concurrently in that court, as constituted by His Honour, Magistrate Braun. The respondent is a banker and credit provider. It sued Mr Silberman for about $43 000 for default under two facilities: (i) a “Ready Credit Account” facility which is akin to an overdraft and cheque account; and (ii) a “Platinum Visa” credit card account. Mr Silberman admitted default under both facilities. But, in effect he brought a countervailing claim under s 70(1) of the Consumer Credit Code that the credit contract was unjust.[1] Under that law the Court can reopen certain transactions. The outcome is not to annul the credit contract, but to possibly deprive the credit provider of its interest or credit charges. He also he raised what I not disparagingly call technical defences concerning the content of default notices which under s 80 of the code can be a pre-condition to enforcement proceedings by a credit provider.
[1]The pleadings in the Magistrates Court make reference to the National Consumer Credit Protection Act Code, but the case was fought and decided by reference the Consumer Credit Code, the relevant provisions of which are said to be identical.

I am told the case went for five days in the Magistrates’ Court. Mr Silberman gave evidence for two and a half days. The magistrate dismissed Mr Silberman’s claim and found Citigroup’s claim proved. The computation of Citigroup’s claim was not in dispute. Accordingly, the magistrate made an order on the claim for $49 978.88 with costs. It is fortunate this Court has a transcript of the magistrate’s ex tempore reasons and, more importantly, his Honour’s findings of fact.

The appellant seeks to appeal both decisions. He can only do so on a question of law. The respondent contends that the Court ought dismiss now the appeals under r 58.10(8) principally because they do not identify a question of law and in any event the appellant does not have an arguable case. The gravamen of the respondent’s case is that the case was decided on…

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: [2011] VSC 426
Decision Date: 1 September 2011

CaseChat Overview and Summary

Sweetvale Pty Ltd and another party appealed against a decision made by the Victorian Civil and Administrative Tribunal (VCAT) and others. The nature of the dispute revolves around the application of the Consumer Credit Code to the appellants' specific circumstances. The appellants argued that their situation warranted a particular interpretation of the Code, which was not granted by VCAT. The matter was brought before the court for review, focusing on whether the tribunal had erred in its legal interpretation or in its evaluation of the evidence presented.

The primary legal issues before the court were whether the appellants had demonstrated a question of law that warranted appeal and whether VCAT had correctly applied the Consumer Credit Code to their situation. Additionally, the court had to determine if the findings of fact made by VCAT were appropriate and if the tribunal had correctly evaluated the evidence. The appellants contended that VCAT had not adequately considered their particular circumstances or the relevant statutory criteria.

The court found that the appellants had not successfully demonstrated that a question of law existed, which was necessary for the appeal to proceed. The court further held that VCAT had appropriately applied the Consumer Credit Code and made findings of fact based on the evidence presented. The tribunal's evaluation of the evidence was deemed to be within its jurisdiction, and there was no error in law that would warrant a different outcome. Consequently, the appeal was dismissed.

Orders