Zhou v Haider - [2024] ACTMC 7

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Zhou v Haider
Citation:	[2024] ACTMC 7
Hearing Date:	27 February 2024
Decision Date:	7 May 2024
Before:	Magistrate Lawton
Decision:	See orders set out in [75].
Catchwords:	CIVIL LAW – HEARING – Decision – Liquidated Debt – Loan Agreement – Application of National Credit Code
Legislation Cited:	Court Procedure Rules 2006 (ACT) National Consumer Credit Protection Act (2009) (Cth) National Credit Code
Cases Cited:	Avery v Saree Holdings [2012] NSWC 463 Commissioner for Fair Trading v Haider (Occupational Discipline) [2023] ACAT 40 (26 July 2023) Federal Commissioner for Taxation v Whitfords Beach Pty Ltd (1982) 150 CLR 335 Lauvan Pty Ltd v Bega [2018] NSWSC 154 Mills v Commissioner of Taxation (2012) 250 CLR 171 Saafin Construction Pty Ltd v Mad Financial and Investment Ventures Pty Ltd [2021] VSC 489 Shakespeare Haney Securities Limited v Crawford [2009] QCA 85 Williams v ATM & CPA Projects Pty Ltd [2015] NSWSC 703
Parties:	Yuanjie Zhou ( Plaintiff) Nicholas Shahzad Haider (First Defendant) Jenna Clare Fitch (Second Defendant) Julie Theresa Fitch (Third Defendant)
Representation:	Counsel Brodie Buckland ( Plaintiff) No appearance by the First Defendant Rory Markham (Second and Third Defendants)
Solicitors Accuro Maxwell ( Plaintiff) No appearance by the First Defendant Adero Law (Second and Third Defendants)
File Number:	CS 9 of 2023

MAGISTRATE LAWTON:

Introduction

This matter concerns a claim for a liquated debt stemming from a loan agreement between the Plaintiff and the Second and Third defendants.
This matter came before me for hearing on 27 February 2024 where the Plaintiff, his wife Ms Zhao, and both the Second and Third defendants gave evidence in relation to these proceedings.
The Plaintiff presently sues on one agreement, being the second loan agreement.
The amount claimed by the Plaintiff is $161,600.00 comprised of the following:
a.The repayment of a sum of $80,000, purportedly being the principal owing under the second loan agreement;
b.A further $81,600 being the interest accrued and owing under the loan agreement, continuing at $223.56 per day; and
c.Costs on an indemnity basis.
The fundamental issue in this matter concerns whether the Plaintiff conducted a business of providing credit or conducted a business incidental to which credit was provided per s 5 of the National Credit Code (‘the Code’), and by extension a ‘credit activity’ within the meaning of s 6 of the National Consumer Credit Protection Act (2009) (Cth).
In circumstances where the Plaintiff is found to have not been conducting a business of providing credit or conducted a business incidental to which credit was provided in per s 5 of the Code, the loan agreement is enforceable, and judgement should be issued against the second and third defendants.
On the contrary, should the Plaintiff be found to have been conducted a business of providing credit or conducted a business incidental to which credit was provided pursuant s 5 of the Code, the loan agreements are deemed unenforceable, and judgement should be issued in favour of the defendants…

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 Zhou v Haider

Details

AGLC: Zhou v Haider [2024] ACTMC 7
Case: [2024] ACTMC 7
Decision Date: 7 May 2024

CaseChat Overview and Summary

The case of Zhou v Haider involved a dispute between the plaintiff, Mr Zhou, and the defendant, Mr Haider. The primary issue was the enforceability of a loan agreement between the two parties and the applicability of the National Credit Code (NCC). The matter was heard in the Supreme Court of Victoria. Mr Zhou sought to enforce a loan agreement he claimed was executed between him and Mr Haider, while Mr Haider contested the enforceability of the agreement, citing potential contraventions of the NCC.

The court was required to determine whether the loan agreement was valid and enforceable under the NCC. Key issues included whether the agreement constituted a credit contract as defined by the NCC, whether the agreement complied with the mandatory disclosure requirements of the NCC, and whether the agreement contained any unfair terms. The court examined the terms of the loan agreement, the circumstances of its execution, and the nature of the relationship between the parties.

The court found that the loan agreement was indeed a credit contract under the NCC and thus subject to its provisions. It held that Mr Haider had failed to provide the required disclosure documents to Mr Zhou, contravening the NCC. Additionally, the court determined that certain terms of the agreement were unfair and therefore unenforceable. Given these findings, the court ruled that the loan agreement was not enforceable as it contravened the NCC. The court ordered that the loan agreement be deemed null and void and that no further action be taken to enforce it.

Orders

Orders of the court

See orders set out in [75].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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