IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2023-485-51

[2023] NZHC 3035

BETWEEN
BRENT IAN ANDREWS

Appellant

AND

COMMERCE COMISSION

Respondent

Hearing: 26 October 2023

Appearances:

Appellant self-represented

J B Hamlin and C A Richardson for Respondent

Judgment:

30 October 2023

JUDGMENT OF GRICE J

(Appeal against conviction and sentence)

Introduction

[1] On 31 May 2023, in a reserved judgment following a Judge-alone trial before Judge Harrop, the appellant was convicted on two charges:1

(a)failing, without reasonable excuse, to provide information and documents in accordance with a notice issued under ss 98(1)(a) and (b) of the Commerce Act 1986 contrary to s 103(1)(a) of the Act;2 and

1 Commerce Commission v Andrews [2023] NZDC 9206 [conviction decision].
2 Maximum penalty $100,000 fine.

ANDREWS v COMMERCE COMISSION [2023] NZHC 3035 [30 October 2023]

(b)failing, without reasonable excuse, to attend an interview in accordance with a notice under s 98(1)(c) of the Commerce Act contrary to s 103(3)(a) of the Act.3

[2] On 7 July 2023, the appellant was sentenced to pay a fine of $3,000, to be paid at the rate of $10 per week.4 The Judge would have imposed a fine of $30,000, but lowered the fine to $3,000 on the basis this would be the most the appellant would realistically be able to pay, considering his financial situation.

[3] The appellant appeals against both conviction and sentence under many heads of appeal. Leave was granted to Ms Carla Jerram to sit next to Mr Andrews and assist him.

[4] The respondent submits the appeal should be dismissed. The respondent says that although the appellant has raised a significant number of grounds of appeal, none of the grounds raised by the appellant demonstrate any error by the Judge in his assessment of the evidence or law, let alone one sufficient to give rise to a miscarriage of justice. The respondent says the evidence produced by the Commission was sufficient to prove the charges beyond reasonable doubt. In terms of the sentence, the respondent says that while the Judge erred in describing the appellant’s benefit entitlements, he did not err in imposing a fine of $3,000.

Background

[5] The appellant was a director of Premodealz Ltd (Premodealz), a mobile trader undertaking consumer lending.

Statutory framework

[6] Consumer lending is regulated under the Credit Contracts and Consumer Finance Act 2003 (the CCCFA). A “mobile trader” is defined under the CCCFA, but in essence involves the sale of consumer goods to natural persons on credit.5 The

3      Maximum penalty $100,000 fine.
4      Commerce Commission v Andrews [2023] NZDC 14576 [sentencing decision].
5      Credit Contracts and Consumer Finance Act 2003, s 5.

CCCFA provides that sales by a mobile trader are to be treated as a consumer credit contract.6

[7] The Commission has a role to promote compliance with the CCCFA, and to this end has a number of functions under s 111, including taking prosecutions in relation to breaches of the Act.7 Section…

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 Andrews v Commerce Commission

Details

AGLC: Andrews v Commerce Commission [2023] NZHC 3035
Case: [2023] NZHC 3035
Decision Date: 30 October 2023

CaseChat Overview and Summary

In the case of Andrews v Commerce Commission, Brent Ian Andrews, the appellant, appealed both his conviction and sentence following a trial in the District Court. The appellant was convicted of failing to provide information and documents, and failing to attend an interview as required by statutory notices issued under the Commerce Act 1986. The appellant was sentenced to a fine of $3,000. The appellant argued, among other things, that the District Court did not have jurisdiction to hear the matter, and that he had no reasonable excuse for not complying with the notices. The respondent, the Commerce Commission, submitted that the appeal should be dismissed. The Court found that the District Court did have jurisdiction to hear the matter, and that the appellant's excuses for non-compliance were not reasonable. The Court also found that the sentence was appropriate, despite an error in describing the appellant's financial position. The appeal against conviction and sentence was dismissed.

The Court's reasoning was that the District Court had jurisdiction to hear the matter, as the charges were category 1 offences which the District Court was empowered to hear under the Criminal Procedure Act 2011. The Court also found that the appellant's excuses for non-compliance with the notices were not reasonable, as there was no evidential basis for the excuses and the notices provided an extensive explanation of the appellant's obligations. The Court found that the sentence was appropriate, despite an error in describing the appellant's financial position, as the fine was at the lowest for offending at this type and lowered from $30,000 to take into account the appellant's dire financial position. The Court also found that the instalment figure was reasonable. The Court did not consider the fine of $3,000 to be manifestly excessive, even having regard to the true financial position of the appellant.

Orders