Victorian Producers Co-operative Co Ltd v Edwards - [1993] SASC 4145

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), DUGGAN(2) AND DEBELLE(3) JJ

CWDS
Consumer credit - Claim for balance on running account with stock agent for supply of goods and services on credit - balance consisting of interest - defences that no implied promise to pay interest and that no credit charge, including interest, recoverable because plaintiff not holder of Credit Provider's Licence under Consumer Credit Act - promise to pay interest properly implied - Act not applying to credit contract where amount of principal exceeds prescribed amounts (s.6(3)) - applicability of Act while aggregate of advances less repayments did not exceed prescribed amount - non-applicability of Act thereafter.

HRNG ADELAIDE, 13 July 1993 #DATE 1:9:1993
Counsel for appellant Nessie Edwards:     Mr A J Besanko
Solicitors for appellant Nessie Edwards: Piper Alderman
Counsel for respondent:                 Mr D J Bleby QC
  with Mr P A McNamara
Solicitors for respondent:                Wallmans

ORDER
Appeal allowed

JUDGE1 KING CJ The respondent sued the appellants in the Supreme Court for an amount alleged to be due as the balance of a current or running account in the name of the appellant Mrs Edwards and her late husband. The appellants other than Mrs Edwards are the executors of the will of the late Mr Edwards. A partial summary judgment was obtained. The balance of the claim in dispute was the interest component of the claim and the appellants were given leave to defend as to that balance. The learned trial judge found against the appellants and judgment has been entered against them in the sum of $187,424.94. They appeal against that judgment. 2. Two issues were debated on the hearing of the appeal. The first is whether there was an implied agreement to pay interest, or alternatively to pay interest on the basis claimed. The second is whether the provisions of the Consumer Credit Act 1972 operate to preclude recovery of interest. 3. The appellant Mrs Edwards and her late husband were farmers near Bordertown. From about 1973 they operated a running account with a stock and station agent company known as DSM Estates Limited. DSM supplied on credit goods and services used in carrying on the farm and was sole agent for the sale of livestock, crops and wool. The debit balance of the account from time to time bore interest at a rate determined by DSM. Due to a takeover of DSM in 1984 Mrs Edwards' brother, who had been the Bordertown manager of DSM, approached the respondent, which was also a stock and station agent, to open an office in Bordertown. The brother thereupon became the respondent's manager in Bordertown. 4. Mr and Mrs Edwards agreed with the brother to transfer their account to the respondent if the respondent would advance the money needed to pay out DSM. That amount was $111,700.18. The brother prepared an application for finance for that sum for the purpose of paying out DSM on the basis of information supplied by 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 Victorian Producers Co-operative Co Ltd v Edwards

Details

AGLC: Victorian Producers Co-operative Co Ltd v Edwards [1993] SASC 4145
Case: [1993] SASC 4145
Decision Date: 1 September 1993

CaseChat Overview and Summary

The Victorian Producers Co-operative Co Ltd (VPCC) sued Nessie Edwards and others for an amount due on a running account for goods and services supplied on credit. The trial judge found for VPCC and ordered Edwards to pay $187,424.94. Edwards appealed, raising two issues: whether there was an implied agreement to pay interest and whether the Consumer Credit Act 1972 precluded recovery of interest. The Full Court allowed the appeal. The Court found that there was no implied agreement to pay interest, as the evidence did not support the trial judge's finding. The Court also found that the Consumer Credit Act applied to the transaction, but only to the period before the principal exceeded the prescribed amount of $15,000. As the principal exceeded $15,000 on 1 August 1984, the Act did not apply to the transaction thereafter. The Court held that VPCC was not entitled to recover interest for the period before 1 August 1984, but was entitled to recover interest for the period after that date according to the implied term. The Court ordered that the parties be heard on how to deal with the small amount of credit charge applicable to the period during which the Act applied before entering judgment.

Orders