JUDGES	WARREN CJ, NEAVE and WHELAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	24 September 2013
DATE OF JUDGMENT	22 November 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 331
JUDGMENT APPEALED FROM	[2012] VSC 275 (Zammit AsJ)

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CONSUMER CREDIT - Re-opening transactions - Unjust terms - Unconscionability - Terms not unjust - No unconscionability.

CONTRACT - Duty to cooperate - No breach.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr T J Sowden with Mr K J Dernelley	George Erlichster
For the Respondent	Mr S D Hay	Gadens Lawyers

WARREN CJ
NEAVE JA
WHELAN JA:

Background

Permanent Custodians Limited (‘Permanent’) holds a first registered mortgage over a property in Pascoe Vale (‘the Property’) securing a loan of $323,000 by Permanent to the appellant, Mr Wolfe, and his former partner, Ms Gayle Breasley.

Mr Wolfe and Ms Breasley separated in November 2007. Both Mr Wolfe and Ms Breasley are parties to the loan agreement. The mortgage was given by Ms Breasley as the sole registered proprietor of the Property.

Mr Wolfe and Ms Breasley entered into terms of settlement in relation to their separation. It was agreed that the Property would be transferred to Mr Wolfe upon the sale of an adjoining property. It is unclear whether that transfer ever occurred.

In 2008 there was default on the loan. In August 2009 Permanent obtained default judgment for the full amount of the loan against Mr Wolfe, and default judgment for the loan and for possession of the Property against Ms Breasley. A warrant of possession was issued to enforce the judgment for possession. At that time Mr Wolfe was living at the Property. Eviction by the Sheriff was scheduled for the round of evictions in the week commencing 4 December 2009.

In an attempt to salvage the situation, Mr Wolfe made an arrangement with Permanent on 1 December 2009. The arrangement was constituted by, or recorded in, a letter of that date from Permanent’s solicitors, Gadens, to a solicitor then acting for or assisting Mr Wolfe, George Erlichster.[1]
[1]The judgment below describes the agreement as being ‘embodied’ in the 1 December 2009 letter. At trial there were disputes about that but those disputes were not pursued on the appeal.

Under the terms of the arrangement made, Mr Wolfe was to pay a specified sum (being ‘arrears’, fees and costs, and ‘2 months payments in advance’) and to ‘ … then maintain all future repayments as and when they fall due’. Permanent was to ‘stay the eviction’. The arrangement included the following terms:

… all payments made will be accepted by our client [Permanent] without prejudice to its rights to rely on the existing Judgment and Warrant for Possession …
… if … your client [Mr Wolfe] defaults in repayments from February 2010, then our client [Permanent] reserves its rights to proceed with further…

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 Ltd

Details

AGLC: Wolfe v Permanent Custodians Ltd [2013] VSCA 331
Case: [2013] VSCA 331
Decision Date: 22 November 2013

CaseChat Overview and Summary

The appeal was brought by the appellant, Mr Wolfe, against a decision of an Associate Judge of the Supreme Court of Victoria. The Associate Judge dismissed Mr Wolfe's claim for relief under the credit legislation and for breach of an implied contractual duty to co-operate and for unconscionable conduct under the Australian Securities and Investment Commission Act 2001. Mr Wolfe appeals against the dismissal of his claim. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria. The appeal was dismissed. The appellant's appeal against the dismissal of his claim by the Associate Judge was dismissed. The Court of Appeal found that the terms concerning default under the arrangement made on 1 December 2009 were not unjust, that Permanent's conduct did not breach the duty to co-operate and that Permanent's conduct was not unconscionable. The Court did not need to address the two contentions raised by Permanent concerning the application of the credit legislation.

Orders