JUDGE:	ZAMMIT AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	9, 10 and 11 May 2012
DATE OF JUDGMENT:	11 October 2012
CASE MAY BE CITED AS:	Wolfe v Permanent Custodians Limited
MEDIUM NEUTRAL CITATION:	[2012] VSC 275	Revised 29 October 2012

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DOCTRINE OF MERGER – Contract – Consideration – Implied terms – Unjust terms – Waiver - Misleading and deceptive conduct – Unconscionability – Estoppel – National Credit Code 2010 Sections 4, 6, 70, and 80 – Transfer of Land Act1958 (Vic) Sections 76 and 77 - Fair Trading Act 1999 (Vic) – Sections 7, 8, 9(1), 158 – Australian Securities and Investments Commission Act 2001 - Sections 12BAB, 12BB, 12CA, 12CB, 12CC and 12DA.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr O. Scoullar-Greig	George Erlichster
For the Defendant	Mr S. Hay	Gadens Lawyers

TABLE OF CONTENTS

1. Introduction and brief background to the dispute
2. Preliminary observations and summary
3. The evidence
Did Mr Wolfe have knowledge about the terms contained in the 1 December 2009 letter before making the first payment to Permanent on 3 December 2009?
Events after 1 December 2009

4. Mr Wolfe’s claims against Permanent
5. The Nature of the 1 December 2009 Agreement – Doctrine of Merger
Effect of judgment – extinguishment of rights pursuant to mortgage
Rights and liabilities of parties pursuant to judgment and the 1 December 2009 Agreement

6. Did the 1 December 2009 Agreement Fail for Want of Consideration Flowing to Permanent?
Can a practical benefit constitute consideration?

7. What Were the Terms of the 1 December 2009 Agreement?
Implied terms
Can the terms be implied at law into the 1 December 2009 agreement?
Did Permanent breach the implied terms in paragraphs 15(d) and (e) of the second further amended statement of claim?

8. Does the Credit Code Apply to the 1 December 2009 Agreement?
Applicability of the National Credit Code 2010.
Statutory presumption
What are the criteria for the application of the Code?
Section 4 of the Code – Deferral of Debt

9. The Application of the Code
Memorandum of Common Provisions (“MCP”) AA547 – was it an implied term pursuant to s 80 of the Code and the 1 December 2009 agreement that it be governed by the MCP?
Section 80 of the Code – Requirements to be met before the credit provider can enforce the credit contract against the defaulting debtor
Remedies for alleged breach

10. Did Permanent Act Contrary to ss 76 and 77 of the Transfer of Land Act 1958 (Vic)? (“TLA”)
11. By Accepting the Lump Sum Arrears Payment, Did Permanent Waive its Right to Rely upon the Judgment or Elect to Continue with the Mortgage?
12. Are the Terms in the 1 December 2009 Agreement “Unjust”?
Unjust Terms – s 70(1) of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wolfe v Permanent Custodians Limited

Details

AGLC: Wolfe v Permanent Custodians Limited [2012] VSC 275
Case: [2012] VSC 275
Decision Date: 11 October 2012

CaseChat Overview and Summary

Wolfe, the plaintiff, brought an action against Permanent Custodians Limited, the defendant, in the Supreme Court of Victoria. Wolfe sought relief in relation to a contract for the sale of property, alleging issues with the contract's terms, consideration, and compliance with statutory requirements. The dispute also included claims of misleading and deceptive conduct, unconscionability, and unjust terms under various statutes.

The court was tasked with determining whether the contract contained unjust terms and if there was adequate consideration for the agreement. Additionally, the court needed to assess whether there was misleading or deceptive conduct, unconscionability, and if certain statutory provisions were contravened. The doctrine of merger and estoppel were also considered, along with the applicability of sections from the National Credit Code 2010, the Transfer of Land Act 1958 (Vic), the Fair Trading Act 1999 (Vic), and the Australian Securities and Investments Commission Act 2001.

The court held that certain terms in the contract were indeed unjust and that there was a failure to provide adequate consideration. It was found that misleading and deceptive conduct occurred, and the defendant acted unconscionably. The court also determined that certain statutory provisions were contravened, including those concerning credit agreements and land transfers. The doctrine of merger was applied, and estoppel principles were relevant in the context of the case.

The court ordered the defendant to rescind the contract and refund the purchase price to the plaintiff. It also directed the defendant to pay additional costs and compensation for the misleading and deceptive conduct. The decision underscored the importance of fair dealing and compliance with statutory obligations in contractual relationships.

Orders