Walker v Consumer, Trader and Tenancy Tribunal of New South Wales - [2013] NSWSC 1432

Supreme Court

New South Wales

Medium Neutral Citation: Walker v Consumer, Trader and Tenancy Tribunal of New South Wales [2013] NSWSC 1432
Hearing dates: 2-3 October 2012
Decision date: 27 September 2013
Jurisdiction: Common Law
Before: Hall J
Decision:
(1) Order that the decision of the Consumer, Trader and Tenancy Tribunal of New South Wales ("the Tribunal") made on 9 November 2011 in proceedings between the Plaintiff and the Second, Third and Fourth Defendants is quashed.
(2) Declare that the Consumer Credit (New South Wales) Code 1995 applies to the credit contract and mortgage between the Plaintiff and the Second Defendant entered on about 24 July 2005.
(3) Declare that the First Defendant, the Consumer, Trader and Tenancy Tribunal of New South Wales, has jurisdiction to hear and determine the Plaintiff's application in proceedings number COM 08/59286.
(4) Order pursuant to section 65 of the Supreme Court Act 1970 that the First Defendant, the Consumer, Trader and Tenancy Tribunal of New South Wales, hear and determine the Plaintiff's application in proceedings number COM 08/59286.

Catchwords: CONSUMER CREDIT - Appeal from Consumer, Trader and Tenancy Tribunal - prerogative relief sought under section 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 - Supreme Court able to make findings of fact as are necessary in order to establish whether Tribunal had jurisdiction to determine the application - plaintiff purchased vehicle from third defendant and obtained "interest-free" loan from second defendant contemporaneously - loan contract secured by bill of sale over vehicle - second and third defendants both wholly owned subsidiaries of fourth defendant - evidence that sale price of vehicle included an additional amount above the "retail market value" - evidence that third defendant provided a "management fee" to second defendant for each "interest-free" loan provided to customers of third defendant - whether Consumer Credit (New South Wales) Code 1995 applied to loan contract and bill of sale - Tribunal determined that no charge was or may be made for the provision of credit to the plaintiff pursuant to s 6(1)(c) of the Code therefore Code did not apply - no requirement by Code that charge must be imposed by the credit provider or that charge must be made under a credit contract - alternatively, if requirement that charge made under a credit contract; sale contract, loan contract and "management fee" arrangement between plaintiff, second and third defendants constituted a single deemed credit contract pursuant to Schedule 1 of the Code - sale price of vehicle included an amount in the nature of a charge pursuant to s 6(1)(c) under the single deemed credit contract - Tribunal had jurisdiction to hear and determine plaintiff's application
Legislation Cited: Consumer Credit (New South Wales) Act 1995 (NSW)
Consumer Credit (New South Wales) Code 1995
Consumer, Trader and Tenancy Tribunal Act 2001
Evidence Act 1995
Income Tax and Social Securities Contribution Assessment Act 1936-1950 (Cth)
Justice Legislation Amendment Act 2008 (Qld)
National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth)
National Consumer Credit Protection Act 2009 (Cth)
National Credit Code
Supreme Court Act 1970
Cases Cited: Abrahams v Federal Commissioner of Taxation (1945) 70 CLR 23
Attorney-General for Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536
Bahadori v Permanent Mortgages Pty Ltd (2008) 72 NSWLR 44
Beckley v Consumer, Trader and Tenancy Tribunal [2009] NSWSC 703
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5
Craig v South Australia (1995) 184 CLR 163
D'Amore v Independent Commission Against Corruption [2012] NSWSC 473
Doughty v Martino Development Pty Ltd [2010] VSCA 121
Geeveekay Pty Ltd v Director of Consumer Affairs, Victoria (2008) VSC 50; (2008) 19 VR 512
Grain Elevators Board (VIC) v Dunmunkle Corp [1946] 73 CLR 70
Newton v Federal Commissioner of Taxation (1958) 98 CLR 1
Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (2011) 281 ALR 687
Category: Principal judgment
Parties: Nicole Walker (Plaintiff)
Consumer, Trader and Tenancy Tribunal of New South Wales (First Defendant)
Kwik Finance (Sydney) Pty Ltd (Second Defendant)
DTGN1 Pty Ltd (Third Defendant)
PR Finance Group Limited (Fourth Defendant)
Representation: Counsel:
A Leopold SC with P Batley (Plaintiff)
M Neil QC with M Minehan (Second, Third and Fourth Defendants)
Solicitors:
Legal Aid Commission of NSW (Plaintiff)
Crown Solicitor (First Defendant)
QBM Lawyers (Second, Third and Fourth Defendants)

File Number(s): 2011/410504
Decision under appeal

Citation:

Walker v Kwik Finance [2011] NSWCTTT 520

Date of Decision:

2011-11-09 00:00:00

Before:

Senior Member Buckley

File Number(s):

COM 08/59286

Judgment

PART A

Background

On 24 July 2005, the plaintiff purchased a second hand Toyota Landcruiser motor vehicle, (the Landcruiser) from the third defendant, previously known as Motor Finance Wizard (Sydney Sales) Pty Ltd (MFW) pursuant to a contract for sale (Sale Contract). The price for the Landcruiser pursuant to the Sale Contract was $25,990 (the Sale Price).

At the time of purchasing the Landcruiser, the plaintiff also purchased from MFW a motor vehicle mechanical parts and labour warranty for $1,295.

The total price for the Landcruiser and the warranty was $27,285.

The plaintiff paid a deposit of $3,000 and was allowed $4,000 by way of trade in for her Mitsubishi Pajero. Under the Sale Contract the balance payable by her to MFW was $20,285.

Contemporaneously, the plaintiff entered into a loan agreement with the second defendant, Kwik Finance (Sydney) Pty Ltd (Kwik) (Loan Contract). Under the Loan Contract, the plaintiff agreed to borrow and Kwik agreed to lend the sum of $20,285. The plaintiff's obligations under the Loan Contract were secured by a Bill of Sale over the Landcruiser also entered into by the plaintiff contemporaneously with the Loan Contract (Bill of Sale).

The Loan Contract was dated 25 July 2005 and provided for the loan amount to be repaid in 144 weekly instalments of $140 per week plus one payment of $125 without any provision for interest. The aggregate amount of repayments required under the Loan Contract equalled the principal sum of $20,285 that was lent. The "Total Interest Charges" in the Loan Contract were expressed to be nil.

MFW and Kwik are both wholly owned subsidiaries of the fourth defendant, PR Finance Group Limited (PRFG).

PRFG is a public company which provides finance to customers for the purchase of second-hand motor vehicles provided by entities within the PRFG group which includes MFW and Kwik. MFW operates motor vehicle dealerships and Kwik is the entity that "provides finance".

PRFG sources funds to be utilised in the entities. It makes those funds in turn available to MFW.

Although Kwik's accounts in relation to MFW sales indicate that it provides loans to customers, there was no physical movement of cash upon the completion of a sale to a consumer. All transactions are general journal entries only: Report of Furzer Crestani Forensic Chartered Accountants, 15 July 2010 at [11.7] (Exhibit MP10 at pp 518-687).

After a dispute arose between the plaintiff and Kwik in 2007/2008 as to the obligations of the plaintiff under the Loan Contract, the plaintiff commenced proceedings in the Commercial Division of the Consumer, Trader and Tenancy Tribunal (the Tribunal) on 1 December 2008 against Kwik and MFW and subsequently PRFG seeking relief under ss 70 and 71 of the Consumer Credit (New South Wales) Code 1995 (the Code) and alleging breaches of s 15 of the Code, in particular ss 15(B) and 15(G).

On 20 August 2009, Kwik filed an application seeking that the Tribunal dismiss the plaintiff's claim on the basis that the Tribunal had no jurisdiction to hear and determine the claim. The basis of the challenge was that the Code did not apply because no charge was made for the provision of credit provided to the plaintiff within the meaning of s 6(1)(c) of the Code. This application was stood over to the final hearing of the plaintiff's claims.

On 9 November 2011, the Tribunal dismissed the plaintiff's application on the basis that there was no charge that was or may be made for the provision of credit to the plaintiff pursuant to s 6(1)(c) of the Code.

By Amended Summons filed on 4 April 2012, the plaintiff seeks in this Court orders in the nature of certiorari and mandamus in reliance on s 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 (CTTT Act), and declarations that the Code applies to the Loan Contract and associated Bill of Sale.

The second, third and fourth defendants were the respondents in the proceedings before the Tribunal. I note that the first defendant filed a formal appearance on 11 January 2012. For the purpose of these proceedings, a reference to the defendants will mean a reference to the second, third and fourth defendants.

The Legislative Scheme

Reforms to consumer credit law have resulted in a single national consumer credit regime governed by the National Consumer Credit Protection Act 2009 (Cth) and National Credit Code (New Code) which commenced on 1 July 2010. Most pre-existing consumer credit contracts and mortgages became governed by the New Code however the effect of clause 6(1)(a) of Schedule 1 to the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth) was that the previous Code continued to apply in relation to the Loan Contract and Bill of Sale because at 1 July 2010 those agreements were already the subject of proceedings in the Tribunal.

Under the former consumer credit regime, the Code obtained statutory force in New South Wales by virtue of s 5 of the Consumer Credit (New South Wales) Act 1995 (NSW) (Consumer Credit Act) which provides as follows:

"5 Application in New South Wales of the Consumer Credit Code

The Consumer Credit Code set out in the Appendix to the Consumer Credit (Queensland) Act, as in force for the time being:

(a) applies as a law of New South Wales, and

(b) as so applying may be referred to as the Consumer Credit (New South Wales) Code."

Section 4(1) of the Code defines the term "credit" in the following terms:

"4 Meaning of credit and amount of credit

(1) For the purposes of this Code, credit is provided if under a contract--

(a) payment of a debt owed by one person (the debtor) to another (the credit provider) is deferred; or

(b) one person (the debtor) incurs a deferred debt to another (the credit provider)."

(2) For the purposes of this Code, the amount of credit is the amount of the debt actually deferred.

The amount of credit does not include--

(a) any interest charge under the contract; or

(b) any fee or charge--

(i) that is to be or may be debited after credit is first provided under the contract; and

(ii) that is not payable in connection with the making of the contract or the making of a mortgage or guarantee related to the contract.

Section 5 of the Code defines the term "credit contract" in these terms:

"For the purposes of this Code, a credit contract is a contract under which credit is or may be provided, being the provision of credit to which this Code applies."

Section 6 sets out the circumstances in which the Code applies to the provision of credit. Relevantly, it is in the following terms:

"6 Provision of credit to which this Code applies

This Code applies to the provision of credit (and to the credit contract and related matters) if when the credit contract is entered into or (in the case of pre-contractual obligations) is proposed to be entered into-

(a) the debtor is a natural person ordinarily resident in this jurisdiction or a strata corporation formed in this jurisdiction; and

(b) the credit is provided or intended to be provided wholly or predominantly for personal, domestic or household purposes; and

(c) a charge is or may be made for providing the credit; and

(d) the credit provider provides the credit in the course of a business of providing credit or as part of or incidentally to any other business of the credit provider." (emphasis added)

Schedule 1 of the Code sets out the principal definitions of various terms and expressions in the Code. Relevant to the present case are the following:

"contract" includes a series or combination of contracts or contracts and arrangements.

"contract document" means the document or documents setting out the terms of a contract.

"credit provider" means a person that provides credit, and includes a prospective creditor provider.

Section 11 sets out the presumptions relating to the application of the Code. It relevantly provides as follows:

11 Presumptions relating to application of Code

(1) In any proceedings (whether brought under this Code or not) in which a party claims that a credit contract, mortgage or guarantee is one to which this Code applies, it is presumed to be such unless the contrary is established.

Schedule 2 to the Code contains miscellaneous provisions relating to its interpretation. Clause 7 which is relevant to this case provides as follows:

"7 Interpretation best achieving Code's purpose

(1) In the interpretation of a provision of this Code, the interpretation that will best achieve the purpose or object of this Code is to be preferred to any other interpretation.

(2) Subclause (1) applies whether or not the purpose is expressly stated in this Code."

Section 22 of the CTTT Act provides that the Tribunal has such jurisdiction to decide matters and such power to make orders as is conferred on it by the CTTT Act or any other Act. The jurisdiction it is given with respect to the Code derives from s 8 of the Consumer Credit Act.

PART B

The Decision before the Tribunal

The issue before the Tribunal was whether the Code applied to the Sale Contract and associated Bill of Sale. For the Code to apply, the prerequisites of s 6 must be satisfied and the main issue that arose was whether there was a charge for the provision of credit within the meaning of s 6(1)(c). There was no dispute that the remaining prerequisites in s 6(1) were satisfied.

The plaintiff submitted that there was a distinct differential between the Landcruiser Sale Price and the retail value of the Landcruiser at the time of sale. The plaintiff termed this differential a "Sale Price Differential" and contended that it represented, for the purposes of s 6(1)(c), the "charge" for Kwik's provision of credit.

The plaintiff also made submissions in relations to agency. It was contended that Kwik and MFW were the agents of PFRG and that PFRG was the vendor and credit provider as undisclosed principal. The Tribunal rejected this argument. As this ground in the Amended Summons has not been pressed, it is not necessary to outline in detail the Tribunal's reasoning in relation to this ground.

(i) Sale Price Differential

In relation to the existence of a differential, the plaintiff relied on the evidence of Craig Rockstro, a motor vehicle valuer. Mr Rockstro determined that the retail market value as at the date of sale was $22,100. Mr Rockstro arrived at that figure by making adjustments in accordance with "Glass's Guide", an industry tool for the consistent valuation of used vehicles. The starting value for those adjustments was the amount ascribed to the Landcruiser as its "Median value including GST achieved by a franchise dealer... for a vehicle in Guide condition and average km's". Mr Rockstro's adjustments to that starting value were made in accordance with the Glass Guide by reference to the vehicle's features such as transmission, mileage etc.

Adopting Mr Rockstro's valuation, the Sale Price Differential was $3,890 and it was contended that it was imposed by MFW in the Sale Contract and represented the credit charge. The Tribunal noted that Mr Rockstro had conceded that there was no standard profit margin in the used car market and that dealers were entitled and did obtain the best price the market would bear.

The defendants submitted that Mr Rockstro's evidence could not be relied upon and that the relevant value of the vehicle at the time of sale was to be ascertained by evidence of the price which a willing but not anxious vendor could reasonably expect to obtain and a hypothetical willing but not anxious purchaser could reasonably expect to have to pay: Abrahams v Federal Commissioner of Taxation (1945) 70 CLR 23 at 29.

The Tribunal found that the evidence established that the plaintiff was a willing but not anxious free and noted that she formed part of the target clientele of the respondents, described at p 24 of PRFG's prospectus as "Borrowers in the non-confirming consumer finance segment are typically individual borrowers that do not meet the standard income and credit verification history criteria that Traditional Lenders use to assess lending suitability": Exhibit MP10 at p 220.

The Tribunal noted that the profitability of MFW was driven primarily through the margin achieved on the sale of vehicles given that interest-free finance is provided. It also found that the evidence established that Kwik did not derive any profit from its role in the PRFG business model: Exhibit MP1 at [32] and [34].

The Tribunal was satisfied that the evidence before it supported the proposition that the sale price achieved by MFW for its sale to the plaintiff was above the Glass median value. However, it found that the differential could equally be described as an undisclosed interest allowance, or an unreasonably high profit margin obtained by an exploitative seller into a market of limited alternative opportunities: Exhibit MP1 at [36].

(ii) The Relevant Charge

The Tribunal found that there was a charge however construed ss 4, 5 and 6 as providing that the charge needed to be levied by the credit provider for it to be within the meaning of s 6(1)(c).

The plaintiff submitted that within the terms s 6(1)(c) of the Code, the credit charge that, "is or may be made for providing the credit," does not necessarily have to be made by the credit provider, ie. Kwik.

The plaintiff submitted that:

"The issue of whether there is a charge for providing the credit is to be determined by whether there is a cost to the consumer that is incurred when credit is given. The imposition of this cost by the supplier, (in this case MFW), as opposed to the credit provider, (in this case Kwik), does not take the transaction outside the Code": Exhibit MP1 at [40].

In response, the defendants contended that that was an improper interpretation of ss 4 and 6 of the Code and submitted that any charge:

"Has to be levied by or be to the benefit of Kwik, the credit provider. Further it is asserted on behalf of Kwik that the benefit of any alleged difference between the sale price and the market value of the vehicle would not accrue to the credit provider Kwik, but to the seller of the vehicle, MFW, which his a third party": Exhibit MP1 at [41].

In support of her submission, the plaintiff drew attention to what she termed the respondents' "integrated business model" as set out in PRFG's prospectus: "A traditional car sale and finance model involves separate transactions for the sale of the car and the financing, involving two different parties, being the car dealership and an independent third party provider. MFW provides an integrated offer of a car and guaranteed interest free finance. MFW (via wholly owned subsidiary Kwik Finance) provides motor vehicle finance exclusively to its dealerships": Exhibit MP10 at p 231.

The Tribunal accepted the plaintiff's submission that the Loan Contract with Kwik had to be viewed as part of the "integrated business model" rather than construed in isolation. However, the Tribunal found that the benefit, if it did exist, arose from a strategy of exploitative overpricing or, through hiding a credit charge where the benefit then accrued to the supplier, MFW: Exhibit MP1 at [44].

The Tribunal made reference to the presumption under s 11 of the Code which shifts the onus onto the defendants to prove that the Code does not apply once it is established by the evidence that such a price differential and credit contract exists. However the Tribunal found that irrespective of the onus, the viability of the plaintiff's argument was reliant on upon an interpretation of s 6(1)(c) of the Code that did not limit the imposition of a charge to a "credit provider", a party to the credit contract.

The Tribunal considered ss 4 and 6 of the Code:

"Section 4(1) of the Code as detailed above, provides that a credit contract is created by payment of a debt by one person, the debtor, to another, described as the credit provider. Section 6 in its preamble, notes that the "Code applies to the provisions of credit..." and in ss 6(1)(b) notes that the "credit is provided or intended to be provided". Thirdly in ss 6(1)(c) the end of the sub-section states that a "charge is or may be made for providing the credit;" Lastly, ss 6(1)(d) refers to the "credit contract" who "provides the credit" (Exhibit MP1 at [48], original emphasis).

In interpreting s 6(1)(c), the Tribunal rejected the plaintiff's submission that a purposive approach should be taken in accordance with clause 7 of Schedule 2 of the Code and found that the ordinary meaning of the words must be accepted unless there is ambiguity of otherwise.

The Tribunal also considered submissions made by both parties in relation to the enactment of the Justice Legislation Amendment Act 2008 (Qld) (Amending Act), which amends the Code. The Code was amended by the insertion of s 10C.

Section 10C provides:

"10C Deciding application of Code to particular contracts for the sale of goods by instalments under related contracts

(1) For the purpose of this section, a contract is a related contract to a contract for the sale of goods (the goods contract) if--

(a) the sale of the goods is financed, wholly or partly, by the provision of credit under the contract; and

(b) the credit provider under the contract is--

(i) the supplier of goods under the goods contract; or

(ii) a related body corporate within the meaning of the Corporations Act of the supplier of the goods under the goods contract; and

(c) the amount payable under the contract is payable by instalments.

(2) For the purpose of deciding whether a related contract to a goods contract is a credit contract and, if it is a credit contract, of applying this Code (including part 6) to it, the charge for providing the credit is the amount by which the amount payable to purchase the goods, together with any other amount payable under the related contract, exceeds the cash price of the goods.

(3) This section does not affect the application of this Code to a contract that is, apart from this section, a credit contract.

Further, the plaintiff relied upon s 187 of the Code which was inserted by the Amending Act. Section 187 provides:

"187 Provision of credit for the sale of land or goods by instalments

(1) This section applies in relation to the provision of credit, before the commencement, for a sale of land or goods by instalments.

(2) The [Amending Act] does not affect the application of this Code in relation to the provision of the credit.

(3) Without limiting subsection (2), the enactment of the [Amending Act] is not to be construed as limiting the application of this Code, as in force before the commencement, to a sale of land or goods by instalments.

The plaintiff relied on the second reading speech to the Amending Act and submitted that the amendments were inserted to "remove any doubt about the matter for contracts entered into after the amendments commenced." The defendants submitted that the second reading speech does not refer to doubts being raised as to the prior provisions of the Code but used the words of the Minister and noted that "doubts raised in reviews" caused the amendment to the Code to "ensure that consumers utilizing these credit arrangements are protected under the Code." The Tribunal noted that prior to that statement, the Minister noted that it was "arguable that these types of arrangements are already covered by the Code."

The Tribunal considered the parties' submissions in relation to how the Amending Act could be used as a guide to the meaning of the Code before the amendment including reference to dicta in Grain Elevators Board (VIC) v Dunmunkle Corp [1946] 73 CLR 70 and in Doughty v Martino Development Pty Ltd [2010] VSCA 121 at 33 and concluded that ultimately it is from the plain meaning of the words of the statute, interpreted in their context that the intention of the legislature must be derived: Exhibit MP1 at [54].

The Tribunal concluded that the construction submitted by the plaintiff ignored the conjunctive normal meaning of the entirety of the sentence that is made up of all the words of s 6(1) and not just the words of a particular subsection.

The Tribunal accepted the respondents' argument that it is implicit within the contextual interpretation of s 6(1)(c) that any charge may only be made by the credit provider, after the word made where it appears in s 6(1)(c). The Tribunal determined that the plaintiff's submissions ignored the conjunctive character of the whole sentence contained in s 6 of the Code and noted in particular the involvement of the credit provider in s 6(1)(d).

The Tribunal considered s 6 in light of s 4 and noted that s 4 identified the participants in the credit contract as the debtor and the credit provider, and that those two participants reappear in ss 6(1)(a) and (d) respectively. The Tribunal reasoned that it was interpreting a structured sentence, being the whole of s 6 and determined that the only person that could make the charge referred to in s 6(1)(c) is the credit provider thereby rejecting the plaintiff's argument that the benefit obtained by MFW through the Sale Price Differential could be regarded as a charge under s 6(1)(c).

PART C

The Proceedings: Section 65 CTTT Act

The plaintiff seeks orders in the nature of certiorari and mandamus in reliance on s 65 of the CTTT Act. The principal ground the plaintiff relies upon is that the Tribunal erred by failing to find that there was a charge within the meaning of s 6(1)(c) of the Code.

The plaintiff also relied on agency and procedural unfairness as grounds in the Amended Summons however those grounds are no longer pressed: Plaintiff's Written Submissions dated 23 May 2012 at [19].

Section 65 of the CTTT Act provides:

"65 Review by prerogative writ etc generally excluded

(1) Except as provided by this section, a court has no jurisdiction to grant relief or a remedy by way of:

(a) judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or

(b) declaratory judgment or order, or

(c) an injunction,

in respect of any matter that has been heard and determined (or is to be heard or determined) by the Tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a matter.

(2) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the jurisdiction of the Tribunal to determine the matter was disputed if the ground on which the relief or remedy is sought is that:

(a) the Tribunal gave an erroneous ruling as to its jurisdiction, or

(b) the Tribunal erred in refusing or failing to give a ruling as to its jurisdiction when its jurisdiction was disputed.

(3) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the Tribunal has made an order if the ground on which the relief or remedy is sought is that:

(a) the Tribunal had no jurisdiction to make the order, or

(b) in relation to the hearing or determination of the matter, a party had been denied procedural fairness."

The plaintiff's position, in short, is that s 65(2)(a) applies because the Tribunal's gave an erroneous ruling as to its jurisdiction in determining that it did not have jurisdiction to hear the plaintiff's claims because the Code did not regulate the Loan Contract or associated Bill of Sale.

As discussed in Part F invoking the Court's jurisdiction under s 65 enables it to make findings of fact as are necessary to establish that the Tribunal's ruling that it had no jurisdiction to determine the plaintiff's application was erroneous: Bahadori v Permanent Mortgages Pty Ltd (2008) 72 NSWLR 44 at [33]; Beckley v Consumer, Trader and Tenancy Tribunal [2009] NSWSC 703 at [44].

Unlike an appeal under s 67 of the CTTT Act, it is not necessary for the plaintiff to demonstrate error by the Tribunal either as to the findings it made or failed to make: Bahadori, supra, at [33]; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 at [38]; Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (2011) 281 ALR 687 at [22].

In Craig v South Australia (1995) 184 CLR 163, the High Court said:

"Where the writ is sought on the ground of jurisdictional error... the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take into account any relevant material placed before it". (At p 176)

The determination by the Tribunal that there was no charge as defined in the Code is a finding of fact that goes to its jurisdiction and accordingly, a jurisdictional fact review is de novo review, in which the court determines for itself whether the fact exists: D'Amore v Independent Commission Against Corruption [2012] NSWSC 473 at [66] citing Enfield, supra, at [48] and [60].

The Evidence

The plaintiff read the affidavit of Megan Pikett sworn on 21 March 2012. Four folders of material containing all the material before the Tribunal, the determinations made by the Tribunal and transcripts of the Tribunal proceedings were exhibited to that affidavit. Those four folders were admitted without objection as the Court Book.

For convenience, the index to the Court Book is reproduced as a Schedule to this judgment.

The plaintiff also relied upon a further affidavit of Megan Pikett sworn on 27 July 2012 to which was annexed the following documents:

(i) A Summons issued to Kwik in the course of the Tribunal proceedings dated 16 November 2009 requiring the production of specified documents;

(ii) An extract from Kwik's General Ledger for the year 1 July 2005 - 30 June 2006; and

(iii) A summary prepared by Ms Pikett that purports to identify that the number of items listed in that extract as "Interest Free Finance" for the purchase of motor vehicles in that financial year is 685. The significance of that number of transactions is discussed in Part E, para [112]. The summary is prefaced with a table which outlines a number of items that are excluded from the calculation of that figure and the reasons for exclusion.

The respondents objected to the summary in Ms Pikett's affidavit on the bases that Ms Pikett was not a suitably qualified person to prepare such a summary, that it was not of any assistance on the overall real issues and that it was prejudicial

The plaintiff contended that the summary is evidence in the nature of s 50 of the Evidence Act 1995.

Annexures A and B of that affidavit being the Summons issued to Kwik dated 16 November 2009 and the extract from the General Ledger of Kwik respectively were admitted as separate exhibits.

Only paragraphs 1-3 of the affidavit of Ms Pikett of 27 July 2012 were admitted; the balance of the affidavit, that is the summary, has been treated as a submission or aide-memoire document.

The plaintiff's evidentiary case also included a report by Mr Katehos of Furzer Crestani dated 20 August 2012. That report was admitted with only formal objection by the defendant.

PART D

Submissions on Behalf of the Parties

The plaintiff relied upon the following submissions:

(i) The plaintiff's written submissions dated 23 May 2012.

(ii) The plaintiff's written submissions in reply dated 31 July 2012.

(iii) Plaintiff's supplementary note re Rockstro evidence.

(iv) Plaintiff's summary of factual findings relevant to ultimate jurisdictional fact.

The plaintiff additionally relied upon oral submissions.

The second, third and fourth defendants relied upon written submissions dated 21 June 2012.

These submissions were supplemented with oral submissions.

PART E

Jurisdictional Facts

(i) Whether "a Charge" was Included in the Sale Price

The plaintiff contended that the sale price of the Landcruiser included a charge. Expert valuation evidence called in the plaintiff's case, both before the Tribunal and in the present proceedings, was directed both towards establishing the retail value of the vehicle as at the date of sale and whether the sale price was inflated, that is, whether it included a charge referrable to the provision of credit by Kwik. To that end, the plaintiff, as noted above, relied upon evidence adduced from Mr Rockstro, Motor Vehicle Assessor.

He holds a Certificate in Automotive Engineering and has worked as a motor vehicle loss assessor with the NRMA for an 11-year period. As a loss assessor he values total losses for insurance purposes and undertakes evaluations in the course of such work. A dealer guide referred to as "Glass's Dealers' Guide" was used by him in undertaking the evaluation in the present case.

Mr Rockstro's opinion on the retail value of the vehicle was set out in his Valuation Report dated 16 September 2008: Exhibit MP10 at p 445.

The defendants asserted that Mr Rockstro's valuation was based on a "median value" and that Mr Rockstro's upper range figure was the trade value for the vehicle. The plaintiff's submission in reply was that this was incorrect. I set out below the plaintiff's reply submissions on this point:

"38. The Plaintiff accepts that the lower figure in Mr Rockstro's range (slightly corrected by him in that same statutory declaration at [27] so as to adjust it to $16,903 - page 461 of Exhibit MP10), being the 'trade' value of the Landcruiser, reflects the wholesale value of the Landcruiser, ie, the price which the dealer would expect to pay to procure the vehicle (Transcript of 31/1/11 (Exhibit MP7), page 55). The retail market value of the vehicle, which the Plaintiff accepts is the relevant value, is higher.

39. The figure at the higher end of Mr Rockstro's range, namely, $22,100 (page 445) of the Exhibit MP10 was the 'median' retail value of the vehicle (Exhibit MP10 at page 446; and at page 461 [29]). That that higher figure was the 'retail' value of the vehicle is clear from the evidence: Transcript of 31/1/11 (Exhibit MP7), page 38, line 3; page 46, lines 2-6 (the sale figure that would be received from a 'private buyer, not from a dealer'); page 55, line 10; page 56, lines 20-28; and page 69, line 41.

40. The Defendants' submissions at [36], first sentence, are therefore incorrect insofar as they seek to deny that the upper end of Mr Rockstro's range of values represented the retail market value of the Landcruiser, ie, the value for a sale by a dealer to a consumer (private buyer).

41. Mr Rockstro based his opinion on Glass's Dealers' Guide and Redbook, data which 'is based on actual sales': statutory declaration of 14 July 2010 at [19] (page 460 of Exhibit MP10). The starting point was the figure of $24,400 (for the Landcruiser Winter) in the page of the Glass's Guide at page 8 of Exhibit MP6 (see also page 471 of Exhibit MP10). That figure of $24,400 was adjusted by Mr Rockstro in various ways, using his expertise, having regard to the condition of the vehicle, its automatic transmission, the kilometres travelled etc: see the statutory declaration of Mr Rockstro of 14 July 2010 at [23]-[27] (pages 460-461 of Exhibit MP10). That ultimately yielded the adjusted retail figure, for the Landcruiser, of $22,100.

...

46. The Defendants in their submissions rely upon the fact that Mr Rockstro's retail valuation figure derived from a 'median value'. They say at [39] that, because the upper end retail value figure specified by Mr Rockstro was derived from Glass's 'median' retail value for the Landcruiser, the actual retail value of the Landcruiser may have fallen on the high side of the median, above the Sale Price. But the fact that it was derived from a 'median' value does not detract from the conclusion that Mr Rockstro's figure of $22,100 was the actual retail market value. The very purpose of Mr Rockstro making the various adjustments he made, referred to on page 461 of Exhibit MP10 was to distinguish the retail value of this specific vehicle, the Landcruiser, from the 'median''."

The defendants submitted that the Tribunal had concluded that no charge arose on the facts of this case within the meaning of s 6(1)(c). In order for there to be a "charge" within the terms of ss 4, 5 and 6(1)(c) of the Code, the defendants' contention was that it had to be one levied by Kwik, the credit provider, upon Ms Walker, the debtor. The benefit of any alleged difference established by the valuation evidence between the sale price and the market value of the vehicle, it was argued, would accrue not to the credit provider, Kwik, but to the seller of the vehicle, MFW, which was a "third party": Written Submissions at [25].

In these circumstances, it was submitted that as a matter of construction of s 6(1)(c), a third party, who was not the credit provider, could not in such circumstances be regarded as imposing a charge "for providing the credit": at [25].

It was further submitted in relation to the extended meaning of "contract" in Schedule 1 to the Code that, as a matter of ordinary reasonable construction, any contract "in a series or combination of contracts or contracts and arrangements" must be a contract with the debtor in relation to a particular loan: at [27].

Accordingly, so the argument ran, even if a series or combination of contracts or arrangements could constitute the credit contract, it must be one between the credit provider and the debtor for the particular debt.

Accordingly, on that basis neither the sales contract between MFW and the plaintiff, nor the Management Fee Arrangement (discussed below at [105]) between MFW and Kwik could be a part of a credit contract as between Kwik and the plaintiff as defined in s 5 by reference to s 4.

It was noted in the submissions for the defendants that the Loan Contract expressly provided that there were no credit charges and that the loan was interest-free. The entire loan amount of $20,285, it was observed, was paid by Kwik to MFW. In those circumstances there could not be any suggestion that Kwik gained any fee or benefit from the loan such as to amount to a charge.

In the plaintiff's case it was contended that although Kwik did not impose a charge (an "interest" charge) under the Loan Contract between it and the plaintiff, MFW "concealed" a charge in their sale price for the vehicle in the contract of sale between the plaintiff and MFW. MFW under an "arrangement" it had with Kwik in due course credited Kwik with the amount "concealed" in the sale as "compensation" for Kwik not having charged interest under its Loan Contract.

In order to examine the question as to whether the sale price of the Landcruiser exceeded retail market value and contained a "concealed amount" as alleged by the plaintiff, I turn to the valuation evidence given by Mr Rockstro as to the valuation method and approach he followed when determining the retail value of the Landcruiser as at the date of the sale to the plaintiff:

(i) The starting point is p 8 of Exhibit MP 6, p 471 of Exhibit MP 10 - that the figure of $24,400 for a vehicle, a Landcruiser Winter (4x4) 4P Wagon.

(ii) That figure of $24,400 was subject to adjustments referred to above which then produced the "retail" figure of $22,100.

(iii) Glass's Guide states in the "Used Vehicles Value Section" that "used prices" were "extensively researched".

(iv) It was necessary to observe that the "prices" referred to in the Glass's Guide did not refer to a price of a particular vehicle, but applied as a guide to the probable value of a vehicle that had travelled a certain number of kilometres said to be average for its age and in what was referred to as "Guide condition" (this last expression essentially meaning in a reasonably roadworthy condition): Exhibit MP6 at p 11.

(v) The term "retail" median value is defined in the Glass's Guide as follows:

"'Retail": median value including GST achieved by a franchise dealer ... for a vehicle in Guide condition and average kilometres ..." (Exhibit MP6 at p 10).

(vi) On analysis it does not follow, as submitted on behalf of the defendants, that the Landcruiser purchased by the plaintiff could fall in the high side of the median. The median is a derived value - based on used sale prices of the relevant model. The "value method" to derive the actual retail value of the vehicle purchased by the plaintiff is achieved by taking the median retail value and then adjusting it as explained below a [98]-[99] to reach the actual retail price for the vehicle at the relevant date of $22,100.

The Tribunal, as has been noted above, in its Reasons for Decision dated 9 November 2011, stated:

"36 I am satisfied that the evidence supports the proposition that the sale price achieved by MFW for its sale to the applicant, was above the adjusted Glass median value. The differential, however, could equally be described as an undisclosed interest allowance, or an unreasonably high profit margin obtained by an exploitative seller into a market of limited alternative opportunities."

However, as observed in the primary written submissions for the plaintiff the Tribunal did not decide which of the two alternatives was factually correct.

In the plaintiff's primary written submissions at [113] it was stated:

"At [31] the Tribunal said that, 'adopting' the Rockstro valuation, there was 'a resultant differential of $3,090, between that amount and the sale price of $25,990.00. ..."

The Sale Price Differential in the plaintiff's submission was a jurisdictional fact and it is open to this Court to determine that fact and nature of, and the amount of, the differential. In that respect, it was contended that this Court should find that the Sale Price Differential existed in fact and (to the extent that it is necessary to go any further than that) that the quantum of the Differential was $6,413.50. However, it was also stated that it was not necessary to take the further step because the jurisdictional fact in s 6(1)(c) merely requires the existence of a charge, not the existence of a charge with a particular quantification: Plaintiff's Written Submissions at [116].

It is necessary to refer here to the basis upon which Mr Rockstro proceeded in undertaking his valuation in determining the existence of any sale price differential. His estimate of the retail value of the Landcruiser, as at the date of sale to the plaintiff, was based upon Glass's Dealers' Guide and Redbook subject to adjustments for a number of factors. Mr Phelan, director of MFW, called in the defendants' case, said in oral evidence before the Tribunal (Exhibit MP8 at T 45-46) that he was familiar with that Guide but that he did not use it. He said it was "an irrelevant document". He did not, however, explain the basis for his assertion other than saying that he did not know of any "good motor dealer that would even assess a vehicle judging from the Glass's Guide". He asserted, without demonstration or foundation, that "the Glass's Guide is a wide open range of what that car can be worth. A lot of variables go into the value of a vehicle": (T 46).

The submissions on behalf of the defendants took issue with the evidence of Mr Rockstro as to market value. Although the defendants did not call valuation evidence, the submission was, as has earlier been noted, that Mr Rockstro's upper range figure of $22,100 was a median price and did not represent the market price that a dealer might obtain on the sale. Accordingly, on this line of argument, as noted above, the figure of $22,100 being a median value meant, the defendants submitted, that the actual sale price of the Landcruiser at $25,990 must either be within the range of market values above the median or alternatively was not proven by the plaintiff to be outside the range.

I have considered Mr Phelan's evidence which the defendants relied upon before the Tribunal. Mr Phelan did not include in his statements any reference to, or criticism of, Mr Rockstro's use or reliance upon Glass's Guide. Further, apart from his abovementioned assertions, he did not seek to demonstrate that Glass's Guide was erroneous or provided misleading information. Nor did he demonstrate how, if at all, the "variables" to which he referred would lead to an erroneous result in applying Glass's Guide when determining the market value of a motor vehicle.

Mr Phelan's evidence on the above matters was simply based upon his general statements as to his experience, including his statement that he applied a process which involved various "steps" in arriving at the market price for a vehicle.

In Mr Rockstro's Statutory Declaration made on 14 July 2010, Mr Rockstro stated that in his 11-year employment as a motor vehicle assessor with NRMA he underwent constant in-house training courses and that 'NRMA has the best training in the business": Exhibit MP10 at p 459 [13].

He stated at [19] of his Statutory Declaration that dealers' guides such as Glass's Dealers' Guide and Redbook are used because their data is based on actual sales. Glass's Dealers' Guide sets out three level of vehicles together with an explanation. Mr Rockstro attached extracts from the Glass's Guide which explain how it is to be used and the basis upon which adjustments are to be made in the course of the valuation method used to obtain a retail market price. The extract explains, in particular, the basis for the use of the Guide in determining "Used Vehicles Values": Annexure "B" in Exhibit MP10 at pp 464-465.

I am satisfied that the evidence, in particular the evidence of Mr Rockstro which I accept, provided a proper basis for the valuation method utilised and applied by him in deriving the retail values of used vehicles including the plaintiff's Landcruiser.

I note that Mr Rockstro set out his methodology in his second Statutory Declaration: Exhibit MP10 at pp 460-462. I set out in the paragraphs that follow a summary of the approach he adopted.

Mr Rockstro identified four categories of vehicles that are used in Glass's Guide. He also gave oral evidence before the Tribunal on his approach to his valuation in Exhibit MP7 at T 35-36; Annexure D to his Statutory Declaration dated 14 July 2010 is a copy from Glass's Guide indicating four categories of "Toyota vehicles" with four categories they being: "new price", "trade price", "trade" and "retail". Mr Rockstro's valuation calculations are set out in Annexure C to that Statutory Declaration in Exhibit MP10 at p 470. In the right column under the subheading "Circle Applicable Dealers' Guide Value" Mr Rockstro placed three valuation figures, namely:

$15,780 corresponding to the "trade low" figure

$19,308 corresponding to the "trade" figure

$24,400 which corresponds to the "retail" figures in the Guide.

As to the above evidence, see Exhibit MP7 at T 38.

Mr Rockstro's value range accordingly was, at the low end $16,874 and at the high end $22,250. The lower end represented the wholesale value of the vehicle. The upper end represented his valuation of the current retail market value of the vehicle. He explained how he derived the upper and lower figures in cross-examination at T 54-55.

In relation to the "retail" figure of $24,400, Mr Rockstro wrote "131,000 kms" which represents the kilometres travelled according to the Guide to be used in valuation. The kilometre reading of the Landcruiser, however, was considerably higher than that figure - in excess of 70,000 kms above 131,000 kms.

He applied an adjustment figure for the excess kilometres travelled by the vehicle beyond the maximum specified in Glass's Guide (Exhibit MP10 at p 467). He noted that the vehicle had travelled 205,571 kms as at the date of sale.

He explained the other adjustments made by Mr Rockstro in respect of accessories at T 40-45. He added a 5% factor for the automatic transmission and then deducted for panel damage and made an allowance for accessories to get to his final valuation figure of $22,100.

Mr Rockstro at T 45-46 stated that his retail market value was a "fair and reasonable figure" and it confirmed the retail value, he explained, this "from a private buyer, not from a dealer" (T 46).

The Glass's Guide "Used Car Values" is, as stated in the Guide, (Annexure B2 in Exhibit MP10 at p 465) based on "used prices which have been extensively researched ... Research has mainly been carried out in capital cities. The prices published do not refer to any specific vehicle".

Mr Rockstro explained in cross-examination that his valuation method at T 56-57 and that the lower of the three figures set out in para [95] above ($15,780) as recorded in Mr Rockstro's "Valuation Calculation Advice" (Annexure C in Exhibit MP10 at p 470), was the "trade" figure and the higher figure - $24,400 represented the "retail" figure based on the Glass's Guide.

On the basis of the evidence, in particular Mr Rockstro's valuation evidence to which I have referred and which I accept as valid, I find that the retail market value of the Landcruiser vehicle, as at the date of the sale to the plaintiff, 25 July 2005, was the amount of $22,100. This latter figure was the resultant amount following an additional adjustment to Mr Rockstro's upper end valuation of the range of figures of $22,250 which he acknowledged had overstated the upper end figure by $150.

By applying to the figure of $22,100 a reduction for the dealings "load" expense (being the amount added by MFW to cover its operating expenses) namely, $1,755, (Exhibit MP11 at p 48) a retail market value figure of $20,345 has been established. I determine that the Sale Price Differential accordingly is the amount of $5,645 (that being the difference between $20,345 and the sale price of $25,990). The nature or significance of the differential is discussed below.

(ii) The Management Fee

The evidence establishes the fact that fees, described as "Management" fees, were credited and/or paid by MFW to Kwik in the amount of $685,000 in the 2006 financial year. The issue in dispute concerning these "fees" essentially related to their proper characterisation and whether in particular the evidence proved that the fees included a fee related or referable to the sale transaction between the plaintiff and MFW.

In the oral submissions for the defendants before the Tribunal it was submitted that the amount of $685,000 paid to Kwik by MFW in the 2006 financial year was calculated for "accounting convenience" but that there was no relationship between the fees and the total number of vehicles sold.

The Tribunal, however, observed that that was not consistent with the first Statutory Declaration of Mr Wise: Exhibit MP9 at T 57. As noted in the defendants' written submissions to this Court, the Tribunal in the course of the submissions made by the parties, canvassed the proposition that the amount of the Management Fee had been calculated at $1,000 per vehicle but it did not make a specific finding to that effect: at [42].

The submission for the defendants was that the Senior Member "impliedly dealt with the issue and must have found the proposed figure of $1,000 per vehicle did not amount to a charge for the provision of credit by the credit provider": at [44].

I, with respect, have concluded that no such implied finding can be attributed to the Tribunal. On the basis of the evidence to which I shall shortly refer, I have concluded that the Management Fees paid by or credited against MFW in favour of Kwik, in the 2006 financial year represented the payment of $1,000 per vehicle, financed by monies provided by Kwik.

The plaintiff's primary submission was that the $1,000 "per deal management fee" related only to financed motor vehicles. That was said to be demonstrated by the "Interest Free finance" section of the Kwik general ledger for the 2006 year produced by Kwik. The entries in it, it was submitted, supported the conclusion that the Management Fee paid by MFW to Kwik, comprised $1,000 "per deal" for each motor vehicle sale by MFW financed by Kwik, including the plaintiff's vehicle.

Kwik's general ledger in relation to the period 1 July 2005 to 30 June 2006 (Exhibit MP10 at p 589) recorded the following entry:

30/06/2006 Internal Admin/Service Fee

of $1,000 per de $685,000

This entry, together with the document KW 1, attached to Mr Wise's statement dated 1 September 2010 (Exhibit MP11 at p 57), confirms that the fee described as "Kwik to MFW admin fee recharges" and as a "fee per deal" in the amount of $1,000 was credited to Kwik for the financial year 2006 in a total amount of $685,000 for 685 motor vehicle sale transactions or "deals".

I turn to the evidence called on behalf of the defendants on the issue of the Management Fees.

Mr Ken Wise, Chief Financial Officer of the PR Finance Group of companies in his statement 1 September 2010 stated at 8.2.7:

"The management fee between Kwik and MFW is dictated by the charge required to bring Kwik to a net asset position ie to remove net liabilities largely arising from losses from any skips and right-offs (such as customer absconding with vehicles or insurance right-offs) and other corporate expenses. There is no connection between the calculation and payment of the management fee and finance provided by Kwik to individual customers. The management fee is not passed on to individual customers by Kwik and was certainly not part of or related to the loan contract between Kwik and Mrs Walker. The management fee is determined every 6 or 12 months. In FY 2006 a figure of over $600,000 was required. this was journalled as though it was $1,000 for each of the 685 deals counted at the time the management charge was determined. A worksheet for these calculations has been provided. Exhibited "KW 1" is a true copy of my calculations. The document was produced by me in or about August 2006." (Exhibit MP11 at p 53)

Exhibit KW 1 to Mr Wise's statement, as noted above, is entitled "Kwik to MFW Admin fee recharges". The entry of particular relevance is that concerning the St Marys dealership, (the dealership where the plaintiff purchased the Landcruiser).

The exhibit is in the following terms:

"KWIK TO MFW ADMIN FEE RECHARGES

# of Deals

Fee per deal

at

$1,000

Kwik Finance (Qld) P/L

- MFW (Sales)

890

890,000

- MFW (Northern-Sales)

233

233,000

1,123,000

Kwik Finance P/L

- MFW (Sales)

104

104,000

Kwik Finance (Sydney-Sales) P/L (St Marys)

- MFW (Sydney-Sales) St Marys

685

685,000

Kwik Finance (Sydney-Sales) P/L (Chester Hill)

- MFW (Sydney-Sales) - Chester Hill

257

257,000

In his supplementary statement dated 9 December 2010 at p 2, Mr Wise stated:

Paragraph 8.2.7

In elaboration of my comments in my previous statement on paragraph 8.2.7 of the Furzer Crestani report, I state that for the FY 2006, a management fee of at least $669,000 was required to bring Kwik Finance (Sydney) Pty Ltd out of its net liability position that was largely caused by the losses from skips and right-offs. This figure was rounded up to $685,000 as explained in my previous statement, based on 685 deals. This was done for accounting convenience but there is in fact no relationship between the fee and the total number of vehicles sold. Rather, the total quantum of the fee relates only to rectifying the net liability position largely caused by the losses suffered on skips and right-offs. The management fee is not intended to and does not in any way compensate Kwik Finance (Sydney) Pty Ltd for the provision of interest free loans." (Exhibit MP11 at p 59)

In the written submissions for the plaintiff it was stated:

"... this Court should not accept that there was 'no' relationship between the fee and the total number of vehicles sold (the Tribunal did not make any finding either way). This is simply not credible in the face of the fact that the Exhibit to Mr Wise's first witness statement ... demonstrates that the fee paid by MFW to Kwik in the 2006 year, in the case of each of the 5 different parts of Australia to which that Exhibit related ... was based on exactly $1,000 per financial deal ..." (At [52])

The submissions for the plaintiff contended that Mr Wise made an important concession in his first statement at [8.2.7], namely that the annual fee was paid in order to bring "out of the net liability position that was largely caused by the losses from the skips and write-offs", that is, from the losses on its loans. They, it was submitted, were a direct result of its failure to charge interest - being "income" which lenders use to absorb losses and if all goes well, a profit (at [53]). The contention for the plaintiff was:

"Accordingly, although it may not be possible to characterise the fee as wholly a payment in lieu of interest and nothing else, it is nevertheless a payment referable to the fact that Kwik refrained from charging interest on the loans it made in order to finance purchases by consumers of motor vehicles from MFW." (At [53])

Mr Wise's evidence in chief before the Tribunal on the subject of the management fees was as follows:

Q. Could I just ask something very brief additionally? You have made some mention of the management fee in your report. Did the management fee have any relevance to whether or not Kwik would trade at a profit or a loss?

A. It's solely in there to make sure it doesn't happen at liabilities.

Q. So they wouldn't trade insolvent?

A. Yes.

Q. Now, when you say 'solely', what does Kwik do to warrant getting a management fee?

A. It does manage those loans and have the relationship with MFW and charges that fee to cover management fees and administration.

Q. Is that in accordance with accounting standards?

A. I believe it is, yes.

Q. And legitimate accounting practice?

A. Yes, we are audited and it has never been raised as an issue by our auditors. (Exhibit MP9 at T 4-5)

In cross-examination he gave the following evidence:

Q. Now, it's the case, isn't it, that the idea of having this management fee paid according to the books as being paid by MFW to Kwik, was only because Kwik otherwise would trade at a loss?

A. Correct. (Exhibit MP9 at T 11)

A little later he was asked:

"Q. Is what I said correct that the management fee was processed by you upon the basis of $1,000 per deal?

A. It was processed that way, yes.

Q. And it was calculated on that basis by you, that is, $1,000 per deal?

A. It was.

Q. And if we go to attachment O1 to Mr Katehos' report we see, don't we, it's described as an internal admin service fee of $1,000 per deal.

A. Yes.

Q. And it was intended to be, was it not, recompense to Kwik on a per deal basis, for the financial burden borne by Kwik in making the above ?

A. No." (Exhibit MP9 at T 11)

A little later Mr Wise was asked:

Q. Isn't this true that there was no management or administration function performed by Kwik for the benefit of MFW on a deal by deal basis during the financial year ended 30 June 06?

A. On a deal by deal basis, that's possibly correct. It did do - it did provide a service to MFW in broader terms and hence charged the management fee.

Q. Isn't this right? There's nothing that Kwik needed to do at all to provide a loan to the Ms Walkers of this world. All that happened was that someone caused this loan account with MFW to be increased by the value of the amount notionally lent to Ms Walker and other borrowers each month. Isn't that all that happened?

A. That would have not affected the management fees.

Q. What was that.

A. That does not affect the management fees, the increase in the loan accounts." (Exhibit MP9 at T 13).

A little later he was asked:

Q. And either this management fee is some accounting device to make it appear that Kwik is trading profitably when it's not or it represents a real fee that MFW feel obliged to pay Kwik to compensate it for the benefit of providing interest loans to MFW customers, don't you agree.

A. Which loan?

Q. Well, it's either one of those two, don't you agree.

A. Yeah. Which one do I agree with?

Q. I assume you don't agree that it's accounting fiction?

A. No, it's not an accounting fiction.

Q. It's not meant to be. These management fees aren't created, are they, to disguise and appearance that Kwik might be trading insolvently?

A. No. No.

Q. Or an accounting device or fiction.?

A. No.

Q. That would be an improper course?

A. Correct.

Q. So it's not just some made up figure to make sure the directors of Kwik can deny any suggestion that they are directors of a company trading whilst insolvent. That wouldn't be right, would it?

A. No, it wouldn't.

Q. It's meant to be a real fee.

A. Yes.

Q. And it's calculated per deal.

A. It's not calculated - I have calculated it per deal.

Q. And you are the person who did the calculation?

A. I did in that year, yes.

Q. So it was calculated per deal wasn't it?

A. Correct. I did calculate it per deal.

Q. And if it's real, I suggest it must represent compensation made by MFW to Kwik to compensate Kwik for some financial burden Kwik was bearing as a result of making interest-free loans to MFW's customers, don't you agree?

A. It was raised to cover those losses in running.

Q. But it's not a fiction?

A. It's not a fiction.

Q. It reflects an amount to MFW, on your instructions, felt it was obliged to pay Kwik per deal?

A. I have - on my instructions, I have raised that journal in that way, but it is a process that was happening before I started in terms of the reimbursement of any losses.

...

Q. Well, what did you mean when you said there was a practice there?

A. The practice in terms of raising a management fee to bring it back to a break-even. I don't recall when it was a - whether I instigated the $1,000 per car for convenience or whether it was something that had happened before.

... (Exhibit MP9 at T 15).

In re-examination Mr Wise was asked:

Q. ... Though isn't it, that the management fee wasn't intended to be compensation for the salary and wages paid by Kwik? It was intended to - you say it was borne of the need to compensate for the bad debts written off?

A. No, no, no. That's incorrect. It was to compensate for all its net costs, in essence, that created its loss and, therefore, would have created its net liabilities. So it was its net operating loss that was being covered in all of the - with all facets." (Exhibit MP9 at T 18)

Mr Wise's statement that the figure of $685,000 was "for accounting convenience" and that there was "in fact no relationship between the fee and the total number of vehicles sold" were assertions without supporting evidence. They in fact are in conflict with the contemporary records - in particular the general ledger extract referred to above and the attachment KW I. Indeed, Mr Wise's statements set out above are inconsistent with his own evidence in paragraph 8.2.7 of his first statement dated 1 September 2010. There he did not speak of "accounting convenience" but that the situation was "dictated by the charge required to bring Kwik to a net position ie to remove net liabilities largely arising from losses from any skips and write-offs ...". He said that, in respect of the Management Fee for the 2006 year: "a figure of over $600,000 was required".

The "liabilities" or losses that Kwik would have suffered in the 2006 financial year without the $685,000 having been credited to Kwik, plainly would have resulted from not raising an interest charge in the loan contracts.

Whilst the plaintiff's primary written submissions conceded that the management fees may not have wholly represented amounts in lieu of interest, I accept that the evidence supports the conclusion that such fees were, at least, in part credit to compensate Kwik and that they acted as a method or a means of facilitating the purchase of motor vehicle by members of the public from MFW.

Mr Wise, in responding to a question in cross-examination that the fees represented "compensation" for a financial burden which Kwik was carrying, said:

"A. It was raised to cover those losses in running." (Exhibit MP11 at T 15)

As noted above, Mr Wise's evidence in re-examination, was that the Management Fee was "intended to compensate" Kwik.

Mr Katehos, director of Furzer Crestani Forensic Chartered Accountants, in his report dated 20 August 2012, undertook an analysis on the following basis.

(i) He selected at random five motor vehicle sale transactions per month in the MFW general ledger for the year ended 30 June 2006 that were financed by Kwik - 60 transactions relating to Kwik financed vehicles.

(ii) He selected at random five motor vehicle sale transactions per month in the MFW general ledger for the year ended 30 June 2006 that were not financed by Kwik - 60 transactions relating to non-Kwik financed vehicles.

(iii) He then compared the gross profit achieved by MFW for sales that fell within category (i) above and those that fell within category (ii) above.

Mr Katehos' review of the sales referred to in (i) establish that the gross profit of those vehicles gave a gross average profit of $9,364 (58.05%) over the sample.

The average gross profit in respect of the vehicles in category (ii) above gave an average gross profit of $5,056 (29.55%) over the sample.

Accordingly, the average gross profit percentage of the sample for Kwik financed vehicles of 58.05% is approximately double that compared to the non-Kwik financed vehicles at 29.55%.

The submission for the plaintiff before this Court was that the review confirmed that a charge was "concealed" within the sale price for the sale of the Kwik financed motor vehicles: T 39:24-31. That, it was submitted, is the explanation for the double gross profit - the profit being inflated to cover a charge for the cost of "interest-free" finance which amount was paid back by MFW to Kwik. That conclusion, in my opinion, is supported by the evidence to which I have referred.

The plaintiff's submission was that the Management Fee was not a mere "accounting fiction" or a "device" as stated by Mr Wise but was a "real fee". It represented a payment made by MFW by Kwik described by Mr Wise as compensation to cover losses incurred by Kwik. It was calculated on a per deal basis.

Finally, it was submitted for the plaintiff that: (i) it was not necessary for the plaintiff to establish the exact amount of the charge, simply that there was a charge included in the sale price: (T 39), (ii) that Mr Rockstro's adjusted figure of $22,100 was generous because MFW was a non-franchise dealer and Glass's Guide was based upon the prices that a franchise dealer would achieve: (T 39). Both of these propositions I consider to be valid propositions.

The evidence to which I have referred establishes, and I so find, that a Management Fee of $1,000 was levied by MFW in respect of the sale of the Landcruiser under the Sale Contract with the plaintiff and under its arrangement with Kwik, MFW credited a fee in that amount to Kwik on the basis that the fee, along with other management fees, would compensate Kwik for losses made by it in the 2006 financial year.

(iii) Was the Management Fee a "Charge"?

On the above findings the remaining issue is whether the "Management Fee" may be properly regarded as a "credit charge" for the provision of credit by a credit provider (namely Kwik) within the terms of s 6(1)(c).

In examining that issue, it is noted that the presumption in cl 11(1) of Schedule 2 to the Code is that Kwik bears the legal and evidentiary burden of establishing that the Loan Contract (and the Bill of Sale) were not respectively a credit contract and a mortgage to which the Code applied.

(a) The Plaintiff's Primary Contention: The "Charge" Need Not be One Imposed by the Credit Provider

The defendants submitted that the Tribunal, following careful analysis of the submission for the parties, had correctly determined that no charge arose. Attention was drawn to the provisions of ss 4, 5 and 6(1)(c) of the Code and in particular to the interrelationship between s 4 and s 6(1) as discussed by the Tribunal at [46], [56] and [57] of its decision (Exhibit MP1).

It was submitted for the defendants:

"25 It is submitted that for a 'charge' for credit to arise pursuant to ss.4, 5 and 6(1)(c) of the Code, such charge has to be levied by Kwik, the credit provider upon Ms Walker the debtor. The benefit of any alleged difference between the sale price and the market value of the vehicle would accrue not to the credit provider, Kwik, but to the seller of the vehicle, MFW, which is a third party. It is submitted that as a matter of construction of s.6(1)(c) of the Code, a third party, who is not the credit provider, could not in such circumstances be regarded as imposing a charge 'for providing the credit'."

It was submitted for the plaintiff that the Sale Price Differential constituted a charge for Kwik providing credit to the plaintiff within the meaning of s 6(1)(c).

Furthermore it was argued the Management Fee referable to the sale to the plaintiff which MFW credited in the 2006 financial year to Kwik was "a charge" by the latter as credit provider for the provision of credit to the plaintiff. On that basis s 6(1)(c) was satisfied.

In this respect it was submitted that the Sale Price Differential arose as a consequence of, or on account of, the fact that Kwik had provided credit to the plaintiff, purportedly interest-free. In support, emphasis was given to the word "for" in s 6(1)(c) - that the charge described in that provision must be a "charge" that is or may be made "for" "providing" the "credit". The word "for" it was submitted in it context carries its ordinary and natural dictionary meaning namely, "by reason of", "because of", "on account of", or "in consequence of": Written Submissions at [107].

It was submitted that, in relation to the Loan Contract between the plaintiff and Kwik there was a causal connection between the provision of credit, and the making of the charge by means of the "arrangement" between MFW and Kwik.

The Tribunal, according to the submissions for the plaintiff, erred in its construction of s 6(1)(c). The plaintiff's contention was that it was not necessary that the charge for providing the credit be made by the credit provider itself. The only limitation was that there must be a causal connection between the provision of credit and a charge for that provision.

On this basis it was contended that the Sale Price Differential was a "consequence of" or was "on account of" the fact that Kwik had provided credit to the plaintiff, purportedly interest-free: Written Submissions at [123]. The Sale Price Differential accordingly included a charge within the provisions of s 6(1)(c).

(b) The Plaintiff's Alternative Contention: There was a "Charge" Imposed under the Relevant Contracts and the "Deal Fee Arrangement"

The alternative submission was that, if there was an additional limitation within s 6(1)(c), then it was that the charge for the provision of credit must be made under the putative credit contract: Written Submissions at [111]. In that event, it was submitted that the charge, whether it be the Sale Price Differential as a whole or as to part, (namely the $1,000 paid by MFW to Kwik pursuant to the "Deal Fee Arrangement") was a "charge" made under a deemed contract pursuant to the extended definition of "contract": Written Submissions at [111].

In the written submissions for the plaintiff it was noted that the extended definition does not define the words "series" or "combination" but it was argued they clearly bore their ordinary and natural meaning importing a connection between each of two or more contracts. It was submitted that the connection could be a temporal connection or one involving any other substantial common feature.

It was submitted that there was a close connection between the Sale Contract and the Loan Contract and the alleged "arrangement" between MFW and Kwik in these proceedings.

The "connecting features" (referred to in Written Submissions at [37]) relied upon to establish what was contended was a very close relationship between the financier and the vendor are set out below at [154].

In the submissions for the plaintiff reliance was placed upon the observations of Tobias JA (with whom Campbell JA agreed) in Bahadori, supra, at [160] and [161]. See [176](iv) below.

On these premises, the plaintiff's contention was that the Sale Contract, the Loan Contract and the "Deal Fee Arrangement" together formed a "series" or a "combination" of contracts and/or arrangements for the purpose of the extended definition of "contract" in the Code. The "connecting features" were identified as follows:

(i) MFW and Kwik are "closely connected" each being wholly owned subsidiaries of PRFG.

(ii) The Sale Contract and the Loan Contract were entered into contemporaneously.

(iii) The sale pursuant to the Sale Contract was a "deal" for the purpose of the Deal Fee Arrangement, enlivening the entitlement of Kwik to the payment by MFW of $1,000. The basis for such a conclusion was put that if the plaintiff had not entered into a sale contract with MFW, then the annual fee paid by MFW to Kwik for the 2006 year, pursuant to the Deal Fee Arrangement, would have been $1,000 less that is $684,000 not $685,000.

(iv) The Deal Fee Arrangement bore, to a substantial extent, the character of compensation for Kwik refraining from charging interest on the loans it made to MFW customers, including the plaintiff.

(v) There was evidence that the Sale Contract entered into by the plaintiff with MFW was set so as to cover the operating expenses of the PRFG "Group", including funding costs. The evidence of Mr Llewellyn (director of Kwik) given in cross-examination was relied upon (Exhibit MP8 at T 20-21).

The funding costs were said to have been partly related to obtaining external borrowings by the PRFG Group

(vi) The close link between interest-free finance under the Loan Contract and high margins under the Sale Agreement.

(vii) The provision of the loan without benefit to Kwik would be entirely uncommercial.

(viii) Kwik only lent to customers who purchased from MFW. The recipient of the interest-free loan only received the benefit because of the close relationship between the retailer, MFW, and the credit provider, Kwik.

(ix) The fact that the Sale Contract and Loan Contract form part of an "integrated sale and in-house finance package": Company Prospectus: Exhibit MP10 at p 224.

(x) The integrated contracts were effected by a simple adjustment to the intercompany loan account as between Kwik and MFW.

(xi) The "PRFG Business Model" which was described and emphasised in the prospectus.

(xii) The fact that the Kwik representative was on-site at the sale yards.

(xiii) The many references in the prospectus to Kwik.

(xiv) The loan from Kwik enabled the plaintiff to pay more money under the Sale Contract reflecting an interest saving under the Loan Contract.

(xv) The credit rating of MFW customers as ascertained by Kwik dictated the category of vehicle that would be offered by MFW to the customer: Written Submissions at [57]-[73].

Further it was noted that the submissions for the plaintiff in the present proceedings to the effect that the relevant credit contract comprised a series of contracts or arrangements pursuant to the definition of "contract" in Schedule 1 of the Code, was not one raised in the Tribunal proceedings.

The defendants in the present proceedings relied upon the following:

"26 The defendants submit below that the Plaintiff's arguments that the credit contract comprises a series or combination of contracts or arrangements should not be permitted to be raised in these proceedings. However, if allowed, the Plaintiff's arguments should fail. Schedule 1 of the Code provides that:

contract includes a series or combinations of contracts, or contracts and arrangements.

contract document means the document or documents setting out the terms of a contract.

27 As a matter of ordinary reasonable construction, any contract in a series or combination must be a contract with the debtor in relation to a particular loan: Bahadori v Permanent Mortgages Pty Ltd (2008) 72 NSWLR 44.

28 Further, Schedule 1 specifically provides that 'credit' is defined by section 4(1) of the Code and 'credit contract' by section 5 of the Code. The amount of the credit is the amount of the debt actually deferred: s.4(2). The debt that is deferred is between the debtor and the credit provider: s.4(1). Therefore, even if a series or combination of contracts or arrangements can constitute the credit contract, it must be one between the credit provider and the debtor for the particular debt. Therefore, it is submitted that neither the sales contract between MFW and the Plaintiff nor the management fee arrangement between MFW and Kwik can be a part of a credit contract between Kwik and the Plaintiff as defined in section 5 by reference to section 4.

29 The loan contract expressly provides that there are no credit charges and that the loan is interest free. As a matter of mathematical calculation, it is quite plain that the repayment schedule in the loan agreement of 144 payments of $140 per week plus one payment of $125 mathematically totals the loan amount of $20,285. The amount of the debt which is deferred in accordance with s.4(2) of the Code and which is therefore the amount of credit, is the said sum of $20,285 and there is therefore no charge for providing that credit.

30 The entire loan amount of $20,285 was paid by Kwik to [MFW]: Statement of Peter Llewellyn (paragraph 8) [Exhibit MP11 p18]. In such circumstances there cannot be any suggestion that Kwik gained any fee or benefit from the loan such as to amount to a charge.

31 It is submitted that the Tribunal was correct in determining that the Code does not apply to the loan contract between the Plaintiff and Kwik.

In any event, it was submitted for the defendants that the decision in Bahadori provides no support for the plaintiff's attempt to include the "arrangement" of the payment of the Management Fee as a component of the credit contract. In Bahadori, Tobias JA held that the extended definition of "contract" only applies to a series of contracts or arrangements with respect to a particular loan. Here, it was contended for the defendants that a management fee that was determined every 6 to 12 months and paid by MFW to Kwik as a lump sum, could not possibly be construed as part of the contracts or arrangements between the credit provider and the debtor in respect of the particular loan of $20,285 made by Kwik to the debtor on 25 July 2005.

In the defendants' submissions, in Bahadori the various letters of offer which were held by the Court together to comprise the "credit contract" were all directed to the borrower. This was in contrast to the present case where the arrangement between MFW and Kwik for the payment of the Management Fee, did not involve the debtor at all: at [49].

In the plaintiff's written reply submissions it was contended that the defendants' submissions did not correctly characterise the arguments put on behalf of the plaintiff. In this respect it was stated that it was not a matter of one contract or arrangement being "incorporated into the credit contract". Rather, the plaintiff's case is that there was a (deemed) single contract, comprising a series or a combination of contracts and arrangements, the parties to which included the credit provider and the borrower, an element of which included the provision of credit by the credit provider to the borrower and a further element of which included the making of a charge for providing the credit: Plaintiff's Submissions in Reply at [22].

The plaintiff's contention was that each of the contracts formed part of an arrangement the subject of the deemed single contract with respect to the loan by Kwik to the plaintiff. That, it was noted, was the point of the 15 connecting features referred to in the plaintiff's primary submissions, summarised above at [154].

The plaintiff's submissions also took issue with the defendants' submissions at [27] and [49] and [75] to the effect that any contract in a series or combination "must be a contract with the debtor in relation to a particular loan". It was contended that although Bahadori was cited in support, no particular passage was referred to. The reply submission to the defendants' submission was that Bahadori does not stand for the proposition formulated by the defendants. Tobias JA, in that case, it was submitted, held that the extended "credit contract" must be one to which the credit provider is a party but that the Court specifically made the point that the credit provider need not have been a party "to each and every contract or arrangement that formed the relevant series" at [160]. Accordingly, the Court in that case did not hold that the debtor needs to be a party to each and every contract or arrangement forming part of the series: Plaintiff's Submissions in Reply at [24].

PART F

CONSIDERATION

(i) Jurisdictional Facts Review

The resolution of the Tribunal's jurisdiction, in the present proceedings, involves a determination as to (a) the particular factual matters referred to in these proceedings as the "jurisdictional facts" and (b) the proper construction of the relevant legislative provisions, including, in particular, the provisions of s 6(1)(c).

The first of the two "jurisdictional facts" concerns the issue of the Sale Price Differential. That issue is largely determined by an analysis of the valuation evidence and the other evidence directed, to the alleged "charge" concealed in the sale price of the vehicle. The second involves the proper characterisation of the Management Fees paid by MFW to Kwik in the 2006 financial year.

Fact Finding in the Present Proceedings

In the written submissions for the defendants it was stated:

"In the written submissions of the Plaintiff at paragraphs 34-50, a new point is raised which was not taken before the Senior Member in the Tribunal and which is not a ground in the Amended Summons. It is now argued by the Plaintiff, relying on Bahadori (supra), that a credit contract includes a series of contracts or arrangements pursuant to the definition of 'contract' in Schedule 1 of the Code and that somehow the management fee of $685,000 paid by MFW to Kwik, said to equate to $1,000 per vehicle, was made pursuant to a contract or arrangement which is to be incorporated into the credit contract." (At [45])

There is a need to distinguish between proceedings under s 65 of the CTTT Act and proceedings by way of a strict appeal. It was submitted for the plaintiff that the power of the Court under s 65 of the CTTT Act to grant the prerogative and declaratory relief sought in the Amended Summons (a power that may be exercised in the light of s 65(2)(a) of the CTTT Act) is a power to grant relief that is "analogous to a grant of prerogative relief": Bahadori, supra, at [30].

It was further noted that the grant of relief is discretionary and that the Court is empowered to make findings of fact as are necessary in order to establish that the Tribunal's ruling, namely, that it had no jurisdiction to determine the application, was erroneous. Reliance was made in this respect upon the observations of Tobias JA in Bahadori at [33] in which it was stated that jurisdiction under s 65 of the CTTT Act (in contrast to an appeal under s 67) would enable the Court "to make such findings of fact as were necessary in order to establish that the Tribunal's ruling that it had no jurisdiction to determine the applications was erroneous": Plaintiff's Written Submissions at [14].

The submission, accordingly, was that the Court had power, on review, to receive evidence itself in relation to jurisdictional facts: Bahadori, supra, at [43]-[44], and Attorney-General for Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540 per Lockhart J.

In terms of the reformulation or development of the grounds relied upon in the present proceedings to the grounds relied upon in the Tribunal, the submission was that the fact that a point may not have been expressly taken before the Tribunal by the plaintiff, did not prevent it from being dealt with on judicial review by this Court because of the existence or non-existence of the jurisdictional fact. The Tribunal, it was noted, was not authorised to determine that question wrongly.

In any event it was submitted that it was inherent in ground 14 of the Amended Summons, that the plaintiff was relying on more than one contract or arrangement and that the complaint, in light thereof, in the present proceedings was a technical and hollow one: at [18]. The defendants, it was stated, had been on notice since 23 May 2012, of the detail of the plaintiff's argument about the extended definition of "contract".

It is clear, in my opinion, that this Court in proceedings such as the present, may receive evidence and make findings in relation to factual matters relevant to or that constitute the jurisdictional foundations for the exercise of the Tribunal's jurisdiction with respect to the plaintiff's claim in the Tribunal: Beckley, supra, at [54]; Attorney-General for Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536, 540, per Lockhart J. Similarly, the plaintiff is not confined, as ordinarily is the case with a strict appeal, to the grounds argued in the Tribunal: Bahadori at [41].

(ii) The Plaintiff's Claim in the Tribunal

In the Further Amended Application dated 28 January 2011 filed in the Tribunal on behalf of the plaintiff (MP3) the primary relief sought under the Code was in the following terms:

1. An order under s 70 that the credit contract and mortgage entered on about 24 July 2005 are reopened.

2. An order under s 71 that the credit contract and mortgage entered on about 24 July 2005 are set aside.

3. An order under s 71 that the mortgage entered on about 24 July 2005 be discharged.

The plaintiff claimed damages by reason of alleged breaches by MFW and Kwik of provisions of the Code, particulars of which are set out in paragraph 28 of the Further Amended Application.

The relief sought in the Amended Summons in the present proceedings is as follows:

"1 An order that the decision of the Consumer, Trader and Tenancy Tribunal of New South Wales ("the Tribunal") made on 9 November 2011 in proceedings between the Plaintiff and the Second, Third and Fourth Defendants is quashed.

2 A declaration that the Consumer Credit (New South Wales) Code 1995 applies to the credit contract and mortgage between the Plaintiff and the Second Defendant entered on about 24 July 2005.

3 In the alternative to paragraph 2, a declaration that the Consumer Credit (New South Wales) Code 1995 applies to the credit contract and mortgage between the Plaintiff and the Fourth Defendant entered on about 24 July 2005.

4 A declaration that the First Defendant, the Consumer, Trader and Tenancy Tribunal of New South Wales, has jurisdiction to hear and determine the Plaintiff's application in proceedings number COM 08/59286.

5 An order pursuant to section 65 of the Supreme Court Act 1970 that the First Defendant, the Consumer, Trader and Tenancy Tribunal of New South Wales, hear and determine the Plaintiff's application in proceedings number COM 08/59286.

6 In the alternative to paragraph 5, an order in the nature of mandamus that the First Defendant, the Consumer, Trader and Tenancy Tribunal of New South Wales, hear and determine the Plaintiff's application in proceedings number COM 08/59286.

7 Costs.

8 Such further or alternative order as the Court thinks fit or the nature of the case requires.

(iii) Facts Not the Subject of Findings by the Tribunal

The Tribunal did not make findings as to:

(i) Whether there was a Sale Price Differential which amounted to or constituted a form of charge for the provision of credit;

(ii) Whether the payment from MFW to Kwik of $1,000 per vehicle sold by MFW to the plaintiff with finance with Kwik in the 2006 financial year was a "charge" for the provision of credit within s 6(1)(c) of the Code.

I turn to consider the evidence bearing upon those two issues. For convenience, I will restate the way in which the plaintiff argued in favour of the Tribunal having jurisdiction in the matter:

(i) First, that the correct approach to the construction of s 6 of the Code was that whilst the credit provider must be the one who provides the credit, there is no additional limitation that the charge must be one which is made under the "credit contract, that is under the contract pursuant to which credit is provided".

(ii) Alternatively, if there is an additional requirement that the charge for the provision of credit must be one made under the credit contract then there was in this case a charge under the claimed, deemed or extended contract. In that respect the contention was that both the Sale Contract and the Loan Contract were part of the deemed single "contract" in combination with the "Deal Fee Arrangement".

In relation to the construction of the provisions of the Code, including in particular, s 6 the following matters are noted:

(i) In the interpretation of the provisions of the Code, the interpretation that will best achieve the purpose or object of the Code is to be preferred to any other interpretation: cl 7, Sch 2 to the Code.

(ii) The purpose of the Code is to protect consumers of credit by, amongst other things, requiring a number of matters to be contained in the contract documents: (s 15) and compliance with mandatory requirements with respect to a credit contract (Pt 2 of the Code) and other provisions that are contained in Pt 3, Pt 4 and Pt 5 of the Code: Bahadori, supra, at [57]-[66].

(iii) The provisions referred to in the abovementioned Parts of the Code make clear that its purpose or object is to place significant restrictions on credit providers who provide credit to debtors who are natural persons and where that credit is provided for personal, domestic or household purposes: Bahadori at [67].

(iv) In respect of the provisions of s 6(1) the following propositions were established in the judgment of Tobias JA in Bahadori at [160], [161], [162] and [170]:

(i) The 'credit contract' must be one to which the credit provider, against whom relief is sought under the Code, is a party.

(ii) That does not require that where the extended definition of 'contract' applies, the credit provider must have been a party to each and every contract or arrangement that formed the relevant series.

(iii) Where the relevant credit contract comprises a series or combination of contracts or contracts and arrangements which have closely connected parties, it matters not that each of those contracts or arrangements must involve the ultimate credit provider so long as, at the end of the day, it can be said that that credit provider is a party to the credit contract.

(iv) The extended definition of 'contract' applies only to a series of contracts or arrangements with respect to a particular loan.

I additionally note that the word "and" in the phrase "contracts and arrangements" indicates that an arrangement is included in the definition of "contract" only if there is a contract to begin with: see for example Geeveekay Pty Ltd v Director of Consumer Affairs, Victoria (2008) VSC 50; (2008) 19 VR 512.

The submission for the plaintiff in relation to the plaintiff's first line of argument referred to above at [175](i) was that the Tribunal, in effect, impermissibly read into s 6(1)(c) words which were not expressed, namely the words "by the credit provider" after the word "may" in that subsection.

The plaintiff's argument as earlier noted, was that on the proper construction of the provision, so long as there was a charge made and a causal connection between that charge and the provision of credit, the requirement of s 6(1)(c) was satisfied. There was no express provision requiring that the charge be made either by the credit provider or that the charge be made under the credit contract. Accordingly, so the argument ran, if the evidence established that a charge was imposed by MFW under the sale contract in circumstances where MFW was subsequently charged a management fee by Kwik, those factors would be sufficient to bring the credit contract within s 6(1)(c).

The defendants submitted that the statutory provisions are clear and should be given effect according to their terms. It was accepted that a purposive construction is to be applied to the relevant statutory provisions in context and that in this case the purpose of the statute was, it was contended, to regulate the credit affairs between credit providers and debtors, and to strike a balance between their respective interests. The plaintiff, however, took issue with that particular description of the "purpose" of the Code.

It was noted in the defendant's submissions that amendments had been made to the Code in 2009 by Part 6 of the Amending Act (referred to at [43] above) to apply the Code to so-called "Tiny Term" credit contracts, in particular, the insertion of new ss 10A-10C (including in s 10C the new detailed concepts of "related contract" and "related body corporate"). The amendments commenced on 22 May 2009 and do not apply to the subject transaction which was entered into prior to commencement of the amendments: Defendants' Written Submissions at [52] and [53].

It was submitted for the defendants that the application of the ordinary meaning of the words in ss 4, 5 and 6(1)(c) of the Code applies a coherent, cogent, commonsense and definitive resolution of the issue in the manner contended for by the defendants. Further, the defendants' interpretation does not lead to any unworkability, manifest absurdity or unreasonableness.

It was submitted on the other hand that the interpretations contended for by the plaintiff are artificial and commercially unsound, unreasonable and unjust: Defendants' Written Submissions at [55] and [56].

In the construction of s 6(1)(c) it is necessary to consider the provisions of s 6(1)(c) in context and in particular in light of the relevant provisions of s 4(1) and s 4(2) as well as the remaining provisions of s 6(1).

Sections 4(1) and 4(2) both employ the phrase "under a contract", in ss 4(1) and 4(2)(a) and (b). That phrase also appears in other provisions including s 5.

As earlier noted, section 4(2) provides that, inter alia:

"the amount of credit does not include --

(a) any interest charge under the contract; or

(b) any fee or charge --

(i) that is to be or may be debited after credit is first provided under the contract; and

(ii) that is not payable in connection with the making of the contract or the making of a mortgage or guarantee related to the contract.

Section 4(1) also employs the phrase "provided under a contract" in relation to the concept of the provision of credit. Section 4(2) in relation to "the amount of credit" between any interest charge "under the contract" and other fees or charges is not necessarily limited to a fee or charge under a credit contract. See s 4(2)(b).

Section 6(1)(c) could have readily been expressed by the legislature in terms of a charge made under a credit contract. However, it was drafted in broader terms "a charge is or may be made for providing the credit" without referring to whether a charge is one that is imposed under a credit contract by the relevant credit provider or a charge otherwise arising and imposed by a third person.

Having regard to the use of the phrases in s 4(1), 4(2) "under a contract" and "under the contract", similar wording could be expected to have been employed in s 6(1)(c) if the legislature's intention had been to confine it to a charge imposed by a credit provider but by no one else.

I accordingly consider that the construction contended for on behalf of the plaintiff that gives meaning to the phrase in s 6(1)(c) "for providing" as denoting a causal connection, is the correct one. In that way it applies to a charge imposed by the credit provider or a third party and avoids reading the provision as subject to unexpressed limitations. It also is a construction that gives the Code a suitably broad operation consistent with the legislative purpose of the Code itself.

On the facts proved in evidence, I am of the opinion that the provisions of s 6(1)(c) are in any event satisfied on the alternative basis upon which the plaintiff relies (the argument at [175](ii) above). In Bahadori, Tobias JA referred and identified the fact that the extended definition of "contract" is capable of dealing with a "mischief" to which the legislation is directed, namely, the necessity to avoid a situation where the requirements of the Code could be avoided by a particular strategy or device. In that context his Honour specifically referred to action taken to avoid the Code by a last minute switch of credit provider or lender. It, however, would in my opinion equally apply to other strategies or devices that are intended and/or have the effect of avoiding the requirements of the Code.

The success of the plaintiff's case on the alternative basis, to the effect that the condition specified in s 6(1)(c) was met on the extended contract basis depends upon whether of not the Sale Contract, the Loan Contract and the Deal Fee Arrangement together constitute parts of a deemed single contract.

In the present case the alternative contention for the plaintiff, both before the Tribunal and in this Court was that the "credit contract" into which the plaintiff entered was one that is not to be found wholly within the Sale and/or the Loan Contracts that she made with MFW and Kwik. The plaintiff contended that there was a series or a combination of contracts or, contracts between her and Kwik and MFW and an arrangement between MFW and Kwik whereby Kwik was compensated by MFW by a fee of $1,000 or part thereof, on account of the funding costs involved in Kwik financing the purchase by the plaintiff.

The evidence, in my assessment, establishes both a temporal and an otherwise close factual association or connection between MFW and Kwik and between the relevant contracts and the "Deal Fee Arrangement". I refer in particular in this respect to the "connecting factors" identified in the plaintiff's written submissions and referred to at [154] above.

The term "arrangement" has been employed in legislation of varying kinds in a way that broadens the reach of the legislation beyond legally enforceable contracts.

In Newton v Federal Commissioner of Taxation (1958) 98 CLR 1 the Privy Council considered transactions involving the distribution of profits to shareholders by three private companies which dealt in motor vehicles. The issue was whether the sums declared by the companies as special dividends were assessable income of the appellants. Section 260 of the Income Tax and Social Securities Contribution Assessment Act 1936-1950 (Cth) which rendered void against the Commissioner "every contract, agreement or arrangement" that had the effect, inter alia, of altering the incidence of income tax. The Privy Council observed:

"Their Lordships are of opinion that the word 'arrangement' is apt to describe something less than a binding contract or agreement, something in the nature of an understanding between two or more persons - a plan arranged between them which may not be enforceable at law. But it must in this section comprehend, not only the initial plan, but also the transactions by which it is carried into effect." (At 7)

Consistent with the approach taken in that case, in determining the existence of an "arrangement" in the definition of "contract" in the Code, it is necessary to look at the conduct or the overt acts of the defendants for the purpose of identifying whether any such "arrangement" existed and, if there was, its nature and purpose and how it was devised and/or implemented.

In the present proceedings, plainly the relationship between MFW and Kwik was a close one, they being closely related corporations. In addition, Kwik was the company whose operations were integral to the operations of MFW, Kwik providing the finance to a significant proportion of purchasers of motor vehicles from MFW. Their integrated operations were conducted with close consultation and co-operation one with the other. It is a situation in which the provisions of the Code could easily be rendered inapplicable by two closely related companies devising a plan, an arrangement, whereby the credit provider provides credit without an interest charge or any form of charge, but that the cost of providing the so-called "interest-free" finance is effectively included in whole or in part by the retailer making an off-setting or compensatory allowance in the retail sale price for the motor vehicle.

The extended definition of "contract" serves the purpose, as Tobias JA stated in Bahadori at [162] of responding to a situation where the requirements of the Code can be avoided by strategies or devices. A sale contract that includes but conceals an allowance for or a charge offsetting the cost of credit provided under an associated loan contract entered into by a related party would, of course, directly undermine the key legislative purpose, inter alia, of protecting consumers or recipients of credit.

I have concluded that the Sale Contract, the Loan Contract and the Deal Fee Arrangement formed the constituent parts of a "contract" within the extended definition of that term under which an amount was included in the Sale Contract intended to provide the means for compensating, at least in part, Kwik for its funding costs associated with the credit it provided the plaintiff to enable her to complete the purchase of the Landcruiser under the Sale Contract which she entered into with MFW.

Upon a close examination of the evidence I have concluded that the Sale Price for the Landcruiser vehicle included an amount which was intended to provide, and did provide, for an amount in the nature of a "charge" which was to be subsequently paid or credited by MFW to Kwik for Kwik financing the purchase of the Landcruiser by the plaintiff.

Accordingly on that basis, "the credit contract", being the extended contract consisting of the Sale Contract, the Loan Contract and the Deal Fee Arrangement, was one which met the requirements specified in s 6(1)(c) of the Code, namely "a charge is or may be made for providing the credit".

CONCLUSION

On the above findings it is, in my opinion, clear that the Tribunal had jurisdiction to hear and determine the claim in the plaintiff's Further Amended Application dated 28 January 2011, and erred in dismissing the application.

Subject to [205] I accordingly make the following orders:

(1) An order that the decision of the Consumer, Trader and Tenancy Tribunal of New South Wales ("the Tribunal") made on 9 November 2011 in proceedings between the Plaintiff and the Second, Third and Fourth Defendants is quashed.

(2) A declaration that the Consumer Credit (New South Wales) Code 1995 applies to the credit contract and mortgage between the Plaintiff and the Second Defendant entered on about 24 July 2005.

(3) A declaration that the First Defendant, the Consumer, Trader and Tenancy Tribunal of New South Wales, has jurisdiction to hear and determine the Plaintiff's application in proceedings number COM 08/59286.

(4) An order pursuant to section 65 of the Supreme Court Act 1970 that the First Defendant, the Consumer, Trader and Tenancy Tribunal of New South Wales, hear and determine the Plaintiff's application in proceedings number COM 08/59286.

I will provide the parties with an opportunity to make submissions on the precise form of the orders and declarations, and upon the question of any other ancillary orders and costs. For that purpose, I grant leave to the parties, or any one of them, to apply to my Associate for the proceedings to be re-listed on a suitable date and time.

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Schedule - Index to Court Book (PDF)

Decision last updated: 12 November 2013

Medium Neutral Citation:	Walker v Consumer, Trader and Tenancy Tribunal of New South Wales [2013] NSWSC 1432
Hearing dates:	2-3 October 2012
Decision date:	27 September 2013
Jurisdiction:	Common Law
Before:	Hall J
Decision:	(1) Order that the decision of the Consumer, Trader and Tenancy Tribunal of New South Wales ("the Tribunal") made on 9 November 2011 in proceedings between the Plaintiff and the Second, Third and Fourth Defendants is quashed. (2) Declare that the Consumer Credit (New South Wales) Code 1995 applies to the credit contract and mortgage between the Plaintiff and the Second Defendant entered on about 24 July 2005. (3) Declare that the First Defendant, the Consumer, Trader and Tenancy Tribunal of New South Wales, has jurisdiction to hear and determine the Plaintiff's application in proceedings number COM 08/59286. (4) Order pursuant to section 65 of the Supreme Court Act 1970 that the First Defendant, the Consumer, Trader and Tenancy Tribunal of New South Wales, hear and determine the Plaintiff's application in proceedings number COM 08/59286.
Catchwords:	CONSUMER CREDIT - Appeal from Consumer, Trader and Tenancy Tribunal - prerogative relief sought under section 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 - Supreme Court able to make findings of fact as are necessary in order to establish whether Tribunal had jurisdiction to determine the application - plaintiff purchased vehicle from third defendant and obtained "interest-free" loan from second defendant contemporaneously - loan contract secured by bill of sale over vehicle - second and third defendants both wholly owned subsidiaries of fourth defendant - evidence that sale price of vehicle included an additional amount above the "retail market value" - evidence that third defendant provided a "management fee" to second defendant for each "interest-free" loan provided to customers of third defendant - whether Consumer Credit (New South Wales) Code 1995 applied to loan contract and bill of sale - Tribunal determined that no charge was or may be made for the provision of credit to the plaintiff pursuant to s 6(1)(c) of the Code therefore Code did not apply - no requirement by Code that charge must be imposed by the credit provider or that charge must be made under a credit contract - alternatively, if requirement that charge made under a credit contract; sale contract, loan contract and "management fee" arrangement between plaintiff, second and third defendants constituted a single deemed credit contract pursuant to Schedule 1 of the Code - sale price of vehicle included an amount in the nature of a charge pursuant to s 6(1)(c) under the single deemed credit contract - Tribunal had jurisdiction to hear and determine plaintiff's application
Legislation Cited:	Consumer Credit (New South Wales) Act 1995 (NSW) Consumer Credit (New South Wales) Code 1995 Consumer, Trader and Tenancy Tribunal Act 2001 Evidence Act 1995 Income Tax and Social Securities Contribution Assessment Act 1936-1950 (Cth) Justice Legislation Amendment Act 2008 (Qld) National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth) National Consumer Credit Protection Act 2009 (Cth) National Credit Code Supreme Court Act 1970
Cases Cited:	Abrahams v Federal Commissioner of Taxation (1945) 70 CLR 23 Attorney-General for Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536 Bahadori v Permanent Mortgages Pty Ltd (2008) 72 NSWLR 44 Beckley v Consumer, Trader and Tenancy Tribunal [2009] NSWSC 703 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 Craig v South Australia (1995) 184 CLR 163 D'Amore v Independent Commission Against Corruption [2012] NSWSC 473 Doughty v Martino Development Pty Ltd [2010] VSCA 121 Geeveekay Pty Ltd v Director of Consumer Affairs, Victoria (2008) VSC 50; (2008) 19 VR 512 Grain Elevators Board (VIC) v Dunmunkle Corp [1946] 73 CLR 70 Newton v Federal Commissioner of Taxation (1958) 98 CLR 1 Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (2011) 281 ALR 687
Category:	Principal judgment
Parties:	Nicole Walker (Plaintiff) Consumer, Trader and Tenancy Tribunal of New South Wales (First Defendant) Kwik Finance (Sydney) Pty Ltd (Second Defendant) DTGN1 Pty Ltd (Third Defendant) PR Finance Group Limited (Fourth Defendant)
Representation:	Counsel: A Leopold SC with P Batley (Plaintiff) M Neil QC with M Minehan (Second, Third and Fourth Defendants) Solicitors: Legal Aid Commission of NSW (Plaintiff) Crown Solicitor (First Defendant) QBM Lawyers (Second, Third and Fourth Defendants)
File Number(s):	2011/410504
Decision under appeal	Citation: Walker v Kwik Finance [2011] NSWCTTT 520 Date of Decision: 2011-11-09 00:00:00 Before: Senior Member Buckley File Number(s): COM 08/59286

# of Deals	Fee per deal
at
$1,000
Kwik Finance (Qld) P/L
*- MFW (Sales)*	890	890,000
*- MFW (Northern-Sales)*	233	233,000
*1,123,000*
Kwik Finance P/L
*- MFW (Sales)*	104	104,000
Kwik Finance (Sydney-Sales) P/L (St Marys)
*- MFW (Sydney-Sales) St Marys*	685	685,000
Kwik Finance (Sydney-Sales) P/L (Chester Hill)
*- MFW (Sydney-Sales) - Chester Hill*	257	257,000