Tanidis v Crucis Pty Ltd
[2011] FMCA 125
•21 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TANIDIS v CRUCIS PTY LTD & ANOR | [2011] FMCA 125 |
| TRADE PRACTICES – Application for urgent injunction – endeavour to stay Supreme Court order for possession – whether Federal Magistrates Court has jurisdiction – no serious question to be tried – application dismissed. |
| Trade Practices Act 1974 National Consumer Credit Protection Act 2009 |
| Applicant: | PETRA HELENE TANIDIS |
| First Respondent: | CRUCIS PTY LTD (A.C.N. 102 849 799) |
| Second Respondent: | NILLUMBIK SHIRE COUNCIL |
| File Number: | MLG 49 of 2011 |
| Judgment of: | Burchardt FM |
| Hearing dates: | 20 & 21 January 2011 |
| Date of Last Submission: | 21 January 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 21 January 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hone |
| Solicitors for the Applicant: | Darroll Nelson & Co |
| Counsel for the First Respondent: | Mr P Davis |
| Solicitors for the First Respondent: | Davis Lawyers |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $1,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 49 of 2011
| PETRA HELENE TANIDIS |
Applicant
And
| CRUCIS PTY LTD (A.C.N. 102 849 799) |
First Respondent
| NILLUMBIK SHIRE COUNCIL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The application which has brought this matter before the Court was filed on 19 January of this year. It was filed, and this has been made quite clear by the applicant and, indeed, repeated by counsel today on her behalf, in this Court because of an incapacity to have the matter urgently listed at this time of year before either the Supreme Court or the County Court of Victoria. If one looks at the final orders sought by the applicant in handwritten form they include:
(1)Nillumbik Shire Council approve my application for subdivision.
(2)That Crucis Pty Ltd be required to abide the provisions of the National Credit Code 2009.
Then there is declaration sought that the Trade Practices Act 1974 (“the Act”) applies to all councils in Australia. It went on, relevantly, to require, having made some observations about power, that the Court make an interim order restraining the Sheriff of Victoria from executing a warrant of possession to evict the applicant until the matter is heard by this Court. Various forms of declaration were sought in the attached page, which I will not need to refer to for present purposes.
In the applicant’s affidavit in support, likewise filed on 19 January of this year, at paragraphs 4 and 5 she sets out the basis upon which she proceeded. In paragraph 4 she refers to the fact that the National Credit Code, being schedule 1 to the National Consumer Credit Protection Act 2009, is binding upon the first respondent. It provides that the code applies to mortgages by natural persons. There is a presumption that the contract is within the code. There is reference to s.37 whereby the Court may order a statement, and to s.38(8) which provides that if an application is made to the Court, a credit provider must not begin enforcement proceedings in respect of the disputed liability.
Various other matters are referred to in that paragraph and in paragraph 5 the applicant went on to say:
“The Applicant has continually since the enactment of the National Credit Code requested a Statement of Account since
30 June 2010 and the latest Statement delivered by the First Respondent was delivered on the 23 December 2010 was delivered as appears here.”
And she then goes on to refer to a chart that she herself had prepared.
A further affidavit was filed by the applicant by leave today, that annexes a statement of claim and also a document described as an affidavit/declaration. I say, with no disrespect to the applicant who was at that time representing herself, that it is not entirely an easy document to follow. It is clear that she takes considerable exception to the conduct of the Nillumbik Shire Council for refusing to approve a subdivision, despite her request to do so, and otherwise has referred to various difficulties with the Sheriff and the like in that document. The statement of claim, in my view, says nothing pertinent for present purposes. There are two respondents. The first is the mortgagee and the second is the Shire Council.
The complaint against the Shire Council in my view is unsustainable in this Court and I emphasise that point. It is perfectly possible that the County Court proceeding to which the applicant has made reference in her materials is entirely a valid and ongoing one. Whether or not the Nillumbik Shire Council has properly exercised any or refused to exercise any powers it may have as to any application made by the applicant to subdivide her property, is perfectly capable of giving rise to a cause of action, well that is at least in theory, one would assume capable of giving rise to a valid cause of action. The difficulty is, however, that this is not a Court of general jurisdiction. It is a Court, the jurisdiction of which is restricted to the various statutes which give it jurisdiction. The only two statutes that have any conceivable application in this instance are, respectively, the National Consumer Credit Protection Act and the Trade Practices Act.
The difficulty immediately apparent in my view to the applicant’s position as regards the Council is that the Council’s power to permit or not permit subdivisions must, quintessentially, be a matter of State legislation. The Shire Council would not, one imagines, be providing credit in either granting or not granting subdivision and, furthermore, in that capacity would, in my view, prima facie be conducting the business of local government not carrying on its activities by way of trade or commerce. In my view, as presently advised, the action against the Shire Council is completely unsustainable in this Court. That brings us to the question as to whether or not there is a serious question to be tried, this being the first limb, so to speak, of the two limbs of the injunction process.
The High Court has recently restated the matter as being a prima facie case but that is generally still understood as involving the two matters to which I have referred, as detailed in subsequent Federal Court decisions. One of the aspects of the amount of time this case has permitted for the amassing of materials is that I do not have those authorities on the bench with me. Nonetheless, the Court is required to be persuaded that there is a serious question to be tried. In the ultimate, counsel for the applicant confirmed what was said by the applicant herself yesterday. It is submitted that it is unconscionable for the mortgagee to proceed with the possession when in breach of the National Credit Code, that is, of course, schedule 1 to the National Consumer Credit Act.
The applicant asserts that she has been asking for a statement pursuant to the code since July 2010 and has not yet been provided with such a statement that complies with the relevant obligations that the code provides. The position is said to breach an order made by Mukhtar AJ whom the applicant asserts ordered that such a statement be provided pursuant to the provisions of the code. The applicant concedes that she owes the first respondent money but says that she does not know how much because the relevant statement has not been provided. I note that it is clear that the applicant is likely to be evicted together with her family from her home shortly if no injunction is granted, as she seeks. She is prepared to, and has through her counsel, given the usual undertaking as to damages.
Mr Davis, for the first respondent, says that the Supreme Court proceeding, in which he had direct involvement, involved an application for possession only, not damages, and was made pursuant to the terms of the mortgage instrument and further to the terms of the Transfer of Land Act. The orders that the Court made have been provided by the applicant herself, although the photocopies are not quite complete. The order of 23 September 2010, taken out and stamped and authenticated by the prothonotary, is relevantly as follows:
Other Matters
(1)The Defendants have not appeared in Court today. In some email correspondence to the Court on 22 September 2009 the second defendant states she seeks an adjournment because of her husband’s hospitalisation and her personal stress.
(2)Even accepting that, the fact is that by 3 separate defences filed by the defendants on 20 August 2010, 2 September 2010 and
8 September 2010, there is a clear and unequivocal admission by them that “the Defendants agree with the Plaintiff in this matter and agree with the amount and points and have no dispute”. Two of the defences refer to a “Settlement Instrument” having been forwarded to the Plaintiff on 11 August 2010, and state, “we are currently awaiting confirmation of settlement.” Whatever that instrument may be, there is no suggestion that it is anything more than a proposal.
(3)(I should state that the photocopy loses a little bit at the end of the lines and I am reconstructing as best I am able). The Court sees no reason not to give judgment for possession by operation of the defendant’s admissions under rule 35.04. There have been enough adjournments and extensions of time to make it not necessary for the Court to insist that the Plaintiff proceed at further delay and expenses, for summary judgment.
(4)To allow for the mere possibility that the Defendants (who are legally unrepresented) might want to contend that the “Settlement Instrument” legally precludes this judgment, this Court has made an order for deferred judgment.
(5)In any event, any proposal for payment of moneys can still be pursued by the Defendants despite an order for possession.
The Court went on thereafter to order that the plaintiff have possession of what in effect is the applicant’s home, but ordered that the judgment not take effect before 8 October 2010 and that any application by the defendants to resist that event be made, within a timetable, to
Mukhtar AJ.
The order made on 7 October 2010, at which time the applicant in this case appeared in person, noted under Other Matters:
(1)The Second Defendant Petra Tanidis has appeared in Court today and explained her distressed personal circumstances which the Court accepts. She states that she has been attempting to subdivide the mortgaged land (which is approximately 26 acres) on which her family home is situated, but there are restrictions in this area as enforced by the Nillumbik Shire Council. There is the possibility that she could obtain second mortgage finance and make some payments to the Plaintiff, but there is a question of satisfying a second mortgagee of her means and ability to repay a mortgage debt.
(2)The Defendant seeks a stay of three months. The Court will, without opposition from the Plaintiff, grant a 5 week stay on the judgment which may give the Defendant time to obtain funds or come to some arrangement with the lender. (The lender gave the borrower a moratorium on the debt for 6 months between July and December 2010, and the writ was filed in February 2010). Furthermore, as it is unlikely the Sheriff will practically take any action for some time after 30 days, the Defendant will practically speaking gain more time to seek more finance or come to terms with the Plaintiff.
The Court went on to order:
(1)The Defendant’s application to discharge paragraph 1 of the Court’s order made on 23 September 2010 is refused.
(2)The Court affirms paragraph 1 of those orders unconditionally;
(3)There be a stay of execution of the judgment until 15 November 2010.
I note there is no reference whatever to the ordering of any statement pursuant to the code or otherwise in those orders and I note that there has been no application made to Mukhtar AJ to correct any such omission, if such it was, since either of those dates. I note further that although references were made by the applicant’s counsel to the
Trade Practices Actand the ASIC Act, it is really the breach of the code that is pressed. Given that the first respondent has judgment for possession, and that Trade Practices Act and ASIC Act matters could have been doubtless pleaded in that case, it is not surprising that these matters have not been pressed before me.
The first thing to be said about the code, as about the National Consumer Credit Protection Act generally, is that there are a number of relevant references to what is described as “the Court”. “Lower court” is defined relevantly to include this Court and “superior court” is relevantly defined, including the Federal Court, but in the short time available, bearing in mind that I am not familiar with this legislation, I have not found the definition which must exist somewhere in the legislation as to what “the Court” means. Neither counsel were able to assist me in this regard. Counsel for the applicant submitted that in the circumstances the definition should be taken – absent any other definition –to include this Court. I am not necessarily sure that that is a correct assumption but I will assume in the applicant’s favour that it is the case.
Section 33 of the code is the starting section of division 5 which is “the credit provider’s obligations to account”. Section 33 provides that any credit provider must give the debtor periodic statements of account in accordance with the division. Section 34 sets out the information that those statements of account must include, and section 36 relevantly says that a credit provider must, at the request of a debtor, provide a statement setting out the various matters described therein. Section 37 gives “the Court” power to order, on the application of the debtor, the creditor provide the statement, if it has not been made. I would interpolate and say that there is no formal application of any such sort before me, although it is implicit that such an application would be made were it required.
Section 38 deals with disputed accounts. Once a dispute arises, various things occur. Subsection 6 reads as follows:
“The credit provider must not begin enforcement proceedings on the basis of a default arising from the disputed liability until at least 30 days have elapsed from the time the written explanation or advice as to agreement was given.”
Subsection 38(8) reads:
“If an application is made to the court under this section within 30 days after the explanation is given, the credit provider must not, without leave of the court, begin enforcement proceedings on the basis of a default arising from the disputed liability.”
Here what is submitted is that it is improper, unconscionable and, indeed, in essence, unlawful for the credit provider to seek to rely upon the orders of the Supreme Court in circumstances where it is asserted that a statement has not been provided in accordance with the code. But the difficulty with that argument is that all those sections refer to “beginning” enforcement of proceedings. The Supreme Court proceedings began, as Mukhtar AJ’s orders make it clear, in February 2010. That was before the code was even enacted. The proceedings underway are not being commenced, they are being concluded. In my view, there is simply no serious question to be tried. The definitions in the code, even if they were otherwise satisfied, are not met because this is not the commencement of a proceeding for enforcement but its conclusion.
If I am wrong as to that, and assuming I have jurisdiction otherwise, this would still not be a strong enough case, in my view, to make it appropriate to grant the injunction sought. As counsel for the first respondent correctly submits, the proper forum for this application would be the Supreme Court. It always has been. There have been delays since October and further delays since 15 November when the stay in the Supreme Court orders itself concluded. It is not in my view a strong enough case and there has been too much delay for it to be appropriate for there to be an injunction granted. I note that the balance of convenience might well be thought to favour the applicant. It is always a matter of great concern that a family, or even a single party, may be evicted from their home but I note, on consideration, that the value of the land is not certain nor is the value of the debt and, indeed, that is a matter of which the applicant herself complains. I am unable to presume in the ultimate that there is any overwhelming position in relation to the balance of convenience.
I further note that if, in the ultimate, it emerges that the conduct of the first respondent is wrongful, then this does appear to be a case in which damages would be an appropriate remedy. I will therefore dismiss the application with costs. I shall be minded to fix the costs now rather than to have further time and money spent.
RECORDED : NOT TRANSCRIBED
Bearing in mind the Court’s scales for these matters I shall allow the sum of $1,250.00.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 21 January 2011
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