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Secure Funding Pty Ltd v West[2017] QDC 169

Secure Funding Pty Ltd v West[2017] QDC 169

DISTRICT COURT OF QUEENSLAND

CITATION:

Secure Funding Pty Ltd v West [2017] QDC 169

PARTIES:

SECURE FUNDING PTY LTD ACN 081 982 872 (FORMERLY LIBERTY FUNDING PTY LTD)

(plaintiff)

v

MICHELE WEST

(defendant)

FILE NO/S:

1373 of 2017

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

23 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2017 and further written submissions 20 June 2017

JUDGE:

Kefford DCJ

ORDER:

The plaintiff’s application for summary judgment is dismissed

CATCHWORDS:

PROCEDURE – DISTRICT COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – SUMMARY JUDGMENT – where the defendant was in default under her loan agreement – where the defendant alleges that she did not receive a default notice – where the defendant alleges breaches of the National Credit Code – whether the defendant has a real prospect of successfully defending the plaintiff’s claim – whether there is a need for a trial of the claim

LEGISLATION:

Land Title Act 1994 (Qld), s 78

National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth), s 4, Sch 1 item 3

National Credit Code (Cth), s 88

Property Law Act 1974 (Qld), s 84

Uniform Civil Procedure Rules 1999, r 189, r 292

CASES:

Bank of Queensland Ltd v Dutta [2010] NSWSC 574, approved

Bernstrom v National Australia Bank Ltd [2003] 1 Qd R 469; [2002] QCA 231, applied.

Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32, cited

Connollys Lawyers Pty Ltd v Davis [2013] QCA 231, applied

Dale v Nichols Constructions Pty Ltd [2003] QDC 453, approved

Deputy Commission of Taxation v Salcedo [2005] 2 Qd R 232; [2005] QCA 227, applied

Dubois v Ong & Anor [2004] QCA 185, applied

Haller v Ayre [2005] 2 Qd R 410, 432[65]; [2005] QCA 224, applied

McVeigh & Anor v Petterwood Group Pty Ltd, [1987] QSC 422, cited

Monas v Perpetual Trustees Victoria Ltd (2011) 80 NSWLR 739; [2011] NSWCA 417, followed

Nibar Investments Pty Ltd v Wallace [2012] NSWSC 1301, cited

Queensland Pork Pty Ltd v Lott [2003] QCA 271, applied.

COUNSEL:

C Schneider for the plaintiff

The defendant appeared on her own behalf

SOLICITORS:

Norton Rose Fulbright for the plaintiff

The defendant appeared on her own behalf

TABLE OF CONTENTS

Introduction 4

Relevant legal principles with respect to summary judgment5

Reliance on deemed admissions7

Agreed facts11

The defendant’s allegations12

The default notice allegation14

The registered mortgage allegation24

The interest rate allegation25

The enforceability allegation29

The Code breach allegation30

The unjust transaction allegation37

Agency allegation40

Unjust transaction allegation generally42

The loan application form allegation45

The unconscionable conduct allegation45

The electronic transactions allegation46

The misleading or deceptive conduct allegation47

Conclusion48

Introduction

  1. [1]
    The plaintiff, Secure Funding Pty Ltd, applies for summary judgment, pursuant to r 292 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”), in respect of the whole of its claim for money due and owing under a loan agreement between the plaintiff and defendant and for recovery of possession of land provided as security for the loan.[1] 
  1. [2]
    The relief sought by the plaintiff in the claim is:
  1. (a)
    $407,399.31 as at 26 December 2012 as money due and owing under a loan agreement between the plaintiff and the defendant;
  1. (b)
    interest as at 26 December 2012 on the sum of $407,399.31 capitalised as provided in the loan; and
  1. (c)
    recovery of possession of the land as registered mortgagee under s 78 of the Land Title Act 1994 (Qld) and under the terms and conditions of registered bill of mortgage number 709932656 given by the defendant in favour of the plaintiff in respect of the land described in Title Reference 16832013 as Lot 3 on RP 206842 County of Canning, Parish of Mooloolah, situated at 21 Tecoma Road, Palmwoods in the State of Queensland.[2]
  1. [3]
    At the hearing of the summary judgment application, the plaintiff indicated that, in terms of interest, it was seeking interest on the outstanding amount at the default rate of 15.72 per cent, but only on a fixed basis, rather than on the compounding basis that it says the loan agreement permits.[3]
  1. [4]
    The defendant, Michele West, is the registered owner of the subject land.[4]  The plaintiff holds a first registered mortgage over the land.[5]
  1. [5]
    The plaintiff’s application was filed on 11 May 2017.[6]  It sought, in the alternative to summary judgment, the strike out of various paragraphs of the pleading filed by the defendant on 6 March 2017 titled “Further Amended Defence” and particulars.  The plaintiff’s application also sought an order that any trial in the matter proceed without a jury.
  1. [6]
    On 16 May 2017, the defendant filed an application seeking:
  1. (a)
    summary judgment pursuant to r 293 of the UCPR; or
  1. (b)
    in the alternative to summary judgment:
  1. (i)
    an order that permitted her to rely on the pleading filed on 19 September 2014; and
  1. (ii)
    an order that any trial in the matter proceed without a jury.[7]
  1. [7]
    In early April 2017, Applegarth J ordered that these applications all be heard together at a one day hearing on 26 May 2017. He also made orders requiring the filing of material.[8]
  1. [8]
    At the hearing the parties agreed, given the volume of material to be considered and the limited time available, that the court need only determine the plaintiff’s application for summary judgment.[9]  The hearing of the other issues was adjourned pending determination of the plaintiff’s summary judgment application.

Relevant legal principles with respect to summary judgment

  1. [9]
    Rule 292(2) of the UCPR provides:

“If the court is satisfied that-

  1. (a)
    the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and
  1. (b)
    there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.”

  1. [10]
    The task for the court on an application under r 292 is to determine whether there is a “realistic”, as opposed to “fanciful”, prospect of the defendant successfully defending all or part of the plaintiff’s claim.[10] 
  1. [11]
    The applicant bears the onus of proving the claim and persuading the court that there is no real prospect of the defendant succeeding; however, once a prima facie case has been made out, the evidentiary onus shifts to the defendant.[11]  As was explained by Williams JA in Dubois v Ong & Anor [2004] QCA 185 at [44] – [45], in discharging that onus “a defendant must ‘condescend upon the particulars’ in order to demonstrate the arguability of the defence advanced.”
  1. [12]
    Where a defendant has adduced sufficient sworn evidence capable of suggesting the existence of an available defence, the fact that such a defence has not been pleaded does not necessarily prevent the court from taking such defence into account in disposing of an application for summary judgment brought under r 292.[12]
  1. [13]
    In Deputy Commission of Taxation v Salcedo [2005] 2 Qd R 232; [2005] QCA 227, McMurdo P observed at 233 [3]:[13]

Nothing in the UCPR, however, detracts from the well established general principle that issues raised in proceedings will be determined summarily only in the clearest of cases.  Gaudron, McHugh, Gummow and Hayne JJ. said in Agar v. Hyde, recently cited with approval by Gleeson C.J., McHugh and Gummow JJ. in Rich v. CGU Insurance Ltd:

“… Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”

  1. [14]
    In an appropriate case, however, the court should make use of the power in order to give effect to the overriding object of achieving the just resolution of civil disputes without undue expense and delay.[14]  Summary judgment should not be withheld on the basis of a mere spectre of a possible, but speculative, defence.[15]

Reliance on deemed admissions

  1. [15]
    The Outline of Submissions on behalf of the Plaintiff rely extensively on admissions deemed to be made by the defendant as a consequence of the operation of r 189 of the UCPR.  In oral submissions, Counsel for the plaintiff accepted that the admitted facts “are crucial to the proceedings and, indeed, its one of the reasons we’re here today.  However, our position is that the facts have been admitted.”[16]  With respect to the admissions, the following background provides relevant context.
  1. [16]
    On 4 August 2016, the plaintiff served a Notice to Admit Documents on the defendant. It listed 115 documents and gave the defendant 14 days to serve a notice on the plaintiff disputing the authenticity of the documents, otherwise their authenticity would be taken to be admitted pursuant to r 189 of the UCPR.[17]
  1. [17]
    On 14 August 2016, the plaintiff served a Notice to Admit Facts, dated 12 August 2016, on the defendant.[18]
  1. [18]
    On 15 August 2016, the defendant filed a document titled “Reply and Answer”,[19] in which the defendant made allegations that were inconsistent with some of the facts in the Notice to Admit Facts.  One material example is the defendant’s allegations that default notices were not received.[20]
  1. [19]
    On 15 August 2016, the defendant emailed the solicitors for the plaintiff requesting an opportunity to inspect the documents the subject of the notices on the morning of 16 August 2016, noting that the description of the documents was different to those on the disclosed lists.[21]
  1. [20]
    On 16 August 2016, the defendant attended the office of Norton Rose Fulbright to view the documents the subject of the Notice to Admit Documents. It seems that, at that time, the documents were not produced in a manner that would enable the defendant to identify the documents in question and nobody was able to sit with the defendant to assist her with that task.[22]
  1. [21]
    Consequently, on 18 August 2016, a partner from Norton Rose Fulbright sent an email to the defendant that attached a schedule that cross-referenced the documents listed in the Notice to Admit Documents to those in the plaintiff’s lists of documents.[23]  The email also indicated that “As agreed, the time for you to respond to the Notice to Admit Documents is extended to Friday 26 August at 4pm.”
  1. [22]
    On 25 August 2016, Applegarth J made orders that, in paragraph 5, required the parties, by 14 October 2016, to provide each other, amongst other things:
  1. (a)
    a written summary of the documents and facts that the party contended are agreed and those which are in dispute; and
  1. (b)
    a list of the matters the party would be required to prove at trial.
  1. [23]
    On 28 August 2016, the defendant sent the plaintiff a “Notice Disputing Authenticity of Documents” in which she disputed the authenticity of 13 of the 115 documents.[24]
  1. [24]
    On 14 October 2016, the plaintiff’s solicitors emailed a letter dated 13 October 2016 to the defendant. The letter identified what the plaintiff contended were:
  1. (a)
    the agreed facts;
  1. (b)
    the factual matters in dispute;
  1. (c)
    the agreed and disputed documents; and
  1. (d)
    the matters the plaintiff would be required to prove at trial;[25]
  1. [25]
    On 13 December 2016, Applegarth J made an order extending the time for compliance with paragraph 5 of the order of 25 August 2016 to 13 January 2017.
  1. [26]
    On 22 January 2017, the defendant emailed the plaintiff’s solicitors a letter dated 15 January 2017. The letter, amongst other things, indicated that the disputed documents were “as per Disputed Documents submitted by the Defendant” and noted the matters that the defendant contended she would be required to prove at trial.[26] 
  1. [27]
    On 3 February 2017, the plaintiff’s solicitor emailed a letter to the defendant in which the plaintiff:
  1. (a)
    noted that the defendant had not addressed the matters required by paragraph 5 of the order made by Applegarth J on 25 August 2016;
  1. (b)
    warned the defendant that it regarded the facts in the Notice to Admit Facts as having been admitted;
  1. (c)
    notified the defendant that it considered that the proceeding could be dealt with on a summary basis and that it intended to request the court to make directions in relation to an application for summary judgment at the directions hearing on 10 February 2017;[27] and
  1. (d)
    requested particulars, with notice that the request being made was pursuant to r 444 of the UCPR.
  1. [28]
    On 7 February 2017, the defendant emailed the plaintiff’s solicitor indicating that she did not realise her response was a response for the court or did she know the forms required. The defendant indicated that she intended to send an amended defence to address the outstanding matters and “tidy up” her pleadings.[28]
  1. [29]
    On 8 February 2017, the defendant emailed the plaintiff’s solicitor a letter claiming to be a reply pursuant to r 445 of the UCPR.  It indicated that particulars would be provided in the form of an Amended Defence.[29]
  1. [30]
    On 20 February 2017, the defendant emailed the plaintiff’s solicitor her Further Amended Defence.[30]  The Further Amended Defence was filed on 6 March 2017.[31]  It contains allegations that are inconsistent with some of the facts in the Notice to Admit Facts.  One material example is the defendant’s allegations that default notices were not received.
  1. [31]
    On 20 March 2017, the plaintiff’s solicitors attempted to file its summary judgment application. A copy of the unsealed application was emailed to the defendant on 24 March 2017.[32]
  1. [32]
    At the hearing, with respect to the issue of the deemed admissions, the defendant said “The only thing I can say here, your Honour, is with all the confusion and the – and I – I still have not inspected original documents.  And the referencing – this has been an oversight on my behalf, but I have continually maintained through these proceedings that I object and dispute all the loan application form documents.”[33]  The defendant also made an oral application for leave to withdraw admissions.[34]
  1. [33]
    It is clear from this background that the defendant continues to dispute a number of the facts, and the authenticity of a number of documents, that she is taken to have admitted under r 189 of the UCPR.
  1. [34]
    As is noted in paragraph [13] above, ordinarily a party is not to be denied the opportunity of taking advantage of the usual interlocutory processes.  Those processes include the ability to apply, under r 189(3) of the UCPR, to withdraw admissions deemed to be made.  When considering whether the defendant has real prospects of successfully defending all or part of the plaintiff’s claim and whether there is a need for a trial, it is necessary to have “a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”.[35] 
  1. [35]
    Accordingly, it is not appropriate to determine the summary judgment application on the basis of the deemed admissions.

Agreed facts

  1. [36]
    Leaving aside the deemed admissions, it is apparent from the pleadings and statements made by the defendant during the proceeding, that the following facts are not disputed by the defendant:
  1. (a)
    on 25 August 2006, a loan agreement was entered into between the plaintiff, as lender, and the defendant, as borrower, whereby the plaintiff agreed to lend the defendant the amount of $390,000;[36]
  1. (b)
    the loan agreement required the defendant to provide, as security for the loan, a mortgage over the Land in favour of the plaintiff,[37]
  1. (c)
    the loan agreement and mortgage were executed by the defendant at her solicitor’s office on 25 August 2006 and the mortgage was registered on the title for the land, as dealing number 709932656, on 13 September 2006;[38]
  1. (d)
    pursuant to the loan agreement, the plaintiff provided $390,000 to the defendant on or about 7 and 8 September 2006;[39]
  1. (e)
    the defendant commenced repayments in March 2007 and made a number of repayments pursuant to the loan agreement;[40]
  1. (f)
    in August 2013, the defendant agreed to vary the terms of the loan agreement by varying the amount she was required to pay to the plaintiff each month, and all of the other terms and conditions of the loan agreement remained unchanged and binding on the defendant;[41] and
  1. (g)
    on numerous occasions, the defendant was in default of her obligations under the loan agreement.[42]
  1. [37]
    The plaintiff alleges that on or about 7 October 2013, the defendant defaulted on her obligations under the loan agreement (including as varied) by failing to make payments.[43]  The defendant does not dispute that she has failed to make payments.[44]  She also does not assert that repayments were made other than those shown in the loan statement exhibited to the affidavit of Ms Di Rago.[45]  No repayments have been made since 30 October 2014.[46] 

The defendant’s allegations

  1. [38]
    The defendant prepared the court documents filed on her behalf and appeared on her own behalf before this court. In the application for summary judgment, the defendant relied on her Further Amended Defence,[47] her Reply and Answer (which was an earlier iteration of the Further Amended Defence),[48] her affidavit and the exhibits to it[49] and her two written outlines titled “Submissions Response on behalf of the Defendant (Plaintiff’s Application)”[50] and “Outline of Submissions on behalf of the Defendant”[51].
  1. [39]
    It can be gleaned from those documents that the defendant resists the plaintiff’s claim on the following bases:
  1. (a)
    the plaintiff did not send notices under s 84 of the Property Law Act 1974 and s 88 of the National Credit Code (the “default notice allegation”);[52]
  1. (b)
    there are defects in the copy of the mortgage disclosed by the plaintiff’s solicitor (the “registered mortgage allegation”);[53]
  1. (c)
    there was no default under the loan agreement (including as varied) as the plaintiff was applying an incorrect interest rate in breach of the terms of the loan agreement (the “interest rate allegation”);[54]
  1. (d)
    there was no valid and enforceable variation to the contract between the plaintiff and the defendant (the “enforceability allegation”);[55]
  1. (e)
    the plaintiff breached, and continues to breach, various sections of the Consumer Credit Code (the “Code breach allegation”);[56]
  1. (f)
    the loan agreement was unjust within the meaning of s 70(2) of the Consumer Credit Code and the plaintiff knowingly put the defendant into a worse financial position through the unjust contract (the “unjust transaction allegation”);[57]
  1. (g)
    the plaintiff, or a party acting as agent for the plaintiff, falsified the loan application form (the “loan application form allegation”);[58] and
  1. (h)
    the plaintiff has engaged in unconscionable conduct in the formation of the contract (the “unconscionable conduct allegation”).[59]
  1. [40]
    The defendant also raises two other allegations as part of her summary judgment application. Although the allegations were raised with respect to her summary judgment application, it is appropriate to also address those allegations in case they reveal a real prospect of a successful defence or an issue about which there is a need for a trial. Those other allegations are:
  1. (a)
    the plaintiff has failed to comply with provisions of the Electronic Transactions Act 1999 (Cth) (the “electronic transactions allegation”);[60] and
  1. (b)
    the plaintiff has engaged in misleading or deceptive conduct in relation to the loan agreement (the “misleading or deceptive conduct allegation”).[61]

The default notice allegation

  1. [41]
    The plaintiff claims that:
  1. (a)
    on or about 22 October 2012, the plaintiff sent a notice under s 84 of the Property Law Act 1974 and s 88 of the National Credit Code to the defendant requiring the defendant to remedy the default within 31 days and specifying that if the default in payment was not rectified within 31 days, the plaintiff may proceed to sell the land and exercise any or all of the powers conferred on the plaintiff by the mortgage and by the Property Law Act 1974 (Qld) and National Credit Code;[62] and
  1. (b)
    on or about 11 October 2013, the plaintiff sent a further notice under s 84 of the Property Law Act 1974 and s 88 of the National Credit Code to the defendant requiring the defendant to remedy the default within 31 days and specifying that if the default in payment was not rectified within 31 days, the plaintiff may proceed to sell the land and exercise any or all of the powers conferred on the plaintiff by the mortgage and by the Property Law Act 1974 (Qld) and National Credit Code.[63]
  1. [42]
    The defendant denies receiving the notices.[64]
  1. [43]
    Copies of the notices that the plaintiff claims to have sent are contained in the affidavit of Ms Di Rago.[65]  Ms Di Rago attests to a belief that the notices were sent.  The stated basis of the belief is her review of the notices.  The notices are signed.  However, they do not otherwise, on their face, contain information, such as a registered post receipt, that demonstrates that the notices were sent.
  1. [44]
    With respect to the notice alleged to have been sent on 22 October 2012, the defendant says that she was in North Queensland at the time, caring for her elderly mother, and that on her return to her home address, in November 2012, no default notice was in the accrued mail.[66]  She also denies receipt of the other default notice.  The defendant says she was unable to remedy the default as she had not been notified.[67]
  1. [45]
    It is clear that there is a dispute of fact with respect to service of the default notices.
  1. [46]
    The plaintiff submits that a lender’s failure to comply with legislative requirements does not invalidate any subsequent enforcement proceedings or provide the debtor with a defence in those proceedings. The plaintiff further submits that, even if following a trial, the plaintiff were found to have failed to comply with the legislative notice requirements, such a finding would have no impact on the defendant’s liability to the plaintiff in the proceeding.[68]
  1. [47]
    The legislative requirements in issue are s 84 of the Property Law Act 1974 (Qld) and s 88 of the National Credit Code (Cth).
  1. [48]
    Section 84 of the Property Law Act 1974 states:

“84 Regulation of exercise of power of sale

  1. (1)
    A mortgagee shall not exercise the power of sale conferred by this Act or otherwise unless and until—
  1. (a)
    default has been made in payment of the principal money or interest or any part of it secured by the instrument of mortgage, and notice requiring payment of the amount the failure to pay which constituted the default under such instrument of mortgage has been served on the mortgagor and such default has continued for a space of 30 days from service of the notice; or
  1. (b)
    default has been made in the observance or fulfilment of some provision contained in the instrument of mortgage or implied by this or any other Act and on the part of the mortgagor, or of some person concurring in making the mortgage, to be observed and performed, and notice requiring the default to be remedied has been served on the mortgagor, and such default has continued for the space of 30 days from service of the notice.
  1. (2)
    A notice under this section may be in the approved form.
  1. (3)
    This section applies, despite any stipulation to the contrary and despite section 49, to mortgages made whether before or after the commencement of this Act, but only to the exercise of a power of sale arising upon or in consequence of a default occurring after the commencement of this Act.
  1. (4)
    A reference in any instrument of mortgage to the power of sale conferred on a mortgagee by any 1 or more of the Acts repealed by the Land Title Act 1994 shall be construed as a reference to the power of sale conferred by this Act.
  1. (5)
    Nothing in this section applies to the exercise by a mortgagee of the power of sale conferred on a mortgagee under the Land Act.”
  1. [49]
    Section 88 of the National Credit Code states:

“88 Requirements to be met before credit provider can enforce credit contract or mortgage against defaulting debtor or mortgagor

Enforcement of credit contract

  1. (1)
    A credit provider must not begin enforcement proceedings against a debtor in relation to a credit contract unless:
  1. (a)
    the debtor is in default under the credit contract; and
  1. (b)
    the credit provider has given the debtor, and any guarantor, a default notice, complying with this section, allowing the debtor a period of at least 30 days from the date of the notice to remedy the default; and
  1. (c)
    the default has not been remedied within that period; and
  1. (d)
    if the credit contract is for a reverse mortgage, …

Criminal penalty: 50 penalty units.

Note: If a debtor or guarantor has given a credit provider a hardship notice or a postponement request there may be extra requirements that the credit provider must comply with before beginning enforcement proceedings: see sections 89A and 94.

Enforcement of mortgage

  1. (2)
    A credit provider must not begin enforcement proceedings against a mortgagor to recover payment of money due or take possession of, sell, appoint a receiver for or foreclose in relation to property subject to a mortgage, unless:
  1. (a)
    the mortgagor is in default under the mortgage; and
  1. (b)
    the credit provider has given the mortgagor a default notice, complying with this section, allowing the mortgagor a period of at least 30 days from the date of the notice to remedy the default; and
  1. (c)
    the default has not been remedied within that period.
  1. (d)
    if the mortgage secures an obligation under a credit contract for a reverse mortgage …

Criminal penalty: 50 penalty units.

Note: If a mortgagor has given a credit provider a postponement request there may be extra requirements that the credit provider must comply with before beginning enforcement proceedings: see section 94.

Default notice requirements

  1. (3)
    A default notice must contain a prominent heading at its top stating that it is a default notice and specify:
  1. (a)
    the default; and
  1. (b)
    the action necessary to remedy the default; and
  1. (c)
    a period for remedying the default; and
  1. (d)
    the date after which enforcement proceedings in relation to the default, and, if relevant, repossession of mortgaged property may begin if the default has not been remedied; and
  1. (e)
    that repossession and sale of mortgaged property may not extinguish the debtor’s liability; and
  1. (f)
    the information prescribed by the regulations about the debtor’s right to:
  1. (i)
    give a hardship notice under section 72; or
  1. (ii)
    give a postponement request under section 94; or
  1. (iii)
    make an application to the court under sections 74 and 96; and
  1. (g)
    the information prescribed by the regulations about:
  1. (i)
    the approved external dispute resolution scheme of which the credit provider is a member; and
  1. (ii)
    the debtor’s rights under that scheme; and
  1. (h)
    that a subsequent default of the same kind that occurs during the period specified for remedying the original default may be the subject of enforcement proceedings without further notice if it is not remedied within the period; and
  1. (i)
    that, under the Privacy Act 1988, a credit reporting body (within the meaning of that Act) may collect and hold default information (within the meaning of that Act) in relation to the default; and
  1. (j)
    any other information prescribed by the regulations.

Combined notices

  1. (4)
    Default notices that may be given under subsections (1) and (2) may be combined in one document if given to a person who is both a debtor and a mortgagor.

When default notice not required

  1. (5)
    A credit provider is not required to give a default notice or to wait until the period specified in the default notice has elapsed, before beginning enforcement proceedings, if:
  1. (a)
    the credit provider reasonably believes that it was induced by fraud on the part of the debtor or mortgagor to enter into the credit contract or mortgage; or
  1. (b)
    the credit provider has made reasonable attempts to locate the debtor or mortgagor but without success; or
  1. (c)
    the court authorises the credit provider to begin the enforcement proceedings; or
  1. (d)
    the credit provider reasonably believes that the debtor or mortgagor has removed or disposed of mortgaged goods under a mortgage related to the credit contract or under the mortgage concerned, or intends to remove or dispose of mortgaged goods, without the credit provider’s permission or that urgent action is necessary to protect the mortgaged property.

Non‑remedial default

  1. (6)
    If the credit provider reasonably believes that a default is not capable of being remedied:
  1. (a)
    the default notice need only specify the default; and
  1. (b)
    the credit provider may begin the enforcement proceedings after the period of 30 days from the date of the notice.
  1. (7)
    Subsections (1) and (2) are offences of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

…

Other law about mortgages not affected

  1. (8)
    This section is in addition to any provision of any other law relating to the enforcement of real property or other mortgages and does not prevent the issue of notices to defaulting mortgagors under other legislation. Nothing in this section prevents a notice to a defaulting mortgagor under other legislation being issued at the same time, or in the same document, as the default notice under this section.

Note: By virtue of subsection 183(2), a notice may contain information required to be given under other legislation or be included in a notice given under other legislation.

  1. [50]
    Although the National Credit Code commenced on 1 April 2010, after the plaintiff and defendant entered into the loan agreement:
  1. (a)
    it substantially replicates the  Consumer Credit Code (Qld),[69] which applied from 1996 to 2010; and, in any event
  1. (b)
    pursuant to s 4 and item 3 of Schedule 1 of the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009, the National Credit Code applies to the loan agreement.
  1. [51]
    The plaintiff relies on Monas v Perpetual Trustees Victoria Ltd (2011) 80 NSWLR 739; [2011] NSWCA 417 and Nibar Investments Pty Ltd v Wallace [2012] NSWSC 1301 in support of its submission that the defendant’s allegation with respect to the default notices would not defeat its summary judgment application.
  1. [52]
    Nibar Investments Pty Ltd v Wallace[70] is of little assistance in that it is a decision of the Supreme Court of New South Wales that simply cites Bank of Queensland Ltd v Dutta [2010] NSWSC 574 and applies Monas v Perpetual Trustees Victoria Ltd[71].
  1. [53]
    Monas v Perpetual Trustees Victoria Ltd[72] involved a claim by a mortgagor that a default notice issued by the mortgagee did not comply with s 80(3) of the Consumer Credit (New South Wales) Code 1996 and accordingly was invalid.[73]  The mortgagee challenged the mortgagor’s claim and, by way of a defensive measure, filed a notice of motion for authorisation to begin proceedings should its default notice be found to be defective.
  1. [54]
    Young JA (with whom Beazley JA and McColl JA agreed), at 747 [37], found that the reasons given by Davies J in Bank of Queensland Ltd v Dutta[74] were correct and “noncompliance with s 80 does not mean that there is a failure of a condition precedent to the present litigation and that therefore the present litigation must be dismissed.” 
  1. [55]
    In Bank of Queensland Ltd v Dutta[75], Davies J considered whether, as a matter of construction, s 80 of the Consumer Credit (New South Wales) Code 1996 imposed a procedural condition upon the exercise of the jurisdiction to commence proceedings, or whether proceedings commenced in breach of the section were a nullity and liable to be struck out in every case.  Davies J found that the proceedings were not a nullity on the basis that:
  1. (a)
    s 80(4) clearly contemplates that there are some circumstances where proceedings can be commenced although no notice is served and, having regard to Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32, the present proceedings could not be regarded as a nullity;
  1. (b)
    s 80(4)(c) provides that the courts can authorise the credit provider to begin the enforcement proceedings and there is no requirement that this be done before they are commenced; and
  1. (c)
    s 170 of the Code provides “A credit contract, mortgage or guarantee or any other contract is not illegal, void or unenforceable because of a contravention of this Code unless this Code contains an express provision to that effect” and all that s 80 does is to provide a penalty for commencing the proceedings without serving a notice. It contains no express provision that the credit contract or mortgage is unenforceable.
  1. [56]
    A similar issue was considered by McGill DCJ in Dale v Nichols Constructions Pty Ltd [2003] QDC 453.  He found that a failure to give notice required by s 80 of the Consumer Credit Code was not a defence to a claim for relief under s 78 of the Land Titles Act.  In addition to s 80 and s 170 of the Consumer Credit Code, McGill DCJ referred to s 114 of the Consumer Credit Code, which provides a “power to require the credit provider to make restitution or pay compensation activated by commencing a proceeding in breach of s 80”.  He found that non-compliance with s 80 does not in itself give rise to a defence to the mortgagor if proceedings are commenced.[76]
  1. [57]
    Both s 84 of Property Law Act 1974 and s 88 of the National Credit Code seek to impose a form of restriction on the commencement of court proceedings.  Here, there is a dispute about the effect of non-compliance.  As was the case in Berowra Holdings Pty Ltd v Gordon[77], the resolution of that issue requires close attention to be paid to the words of the statute and the statutory scheme in general.[78]
  1. [58]
    Having regard to the observations in the joint judgment of Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Berowra Holdings Pty Ltd v Gordon[79], particularly at 369 – 377, [10] – [37], it seems to me that the better view is that the lender’s failure to comply with legislative requirements in s 88(4) of the National Credit Code does not invalidate these proceedings as:
  1. (a)
    s 88(4) of the National Credit Code contemplates that there are some circumstances where proceedings can be commenced although no notice is served;
  1. (b)
    s 88(5)(c) of the National Credit Code provides that the courts can authorise the credit provider to begin the enforcement proceedings and there is no requirement that this be done before they are commenced;
  1. (c)
    s 193 of the National Credit Code provides:

“(1) A credit contract, mortgage or guarantee or any other contract is not illegal, void or unenforceable because of a contravention of this Code unless this Code contains an express provision to that effect.

  1. (2)
    Except as provided by this section, this Code does not derogate from rights and remedies that exist apart from this Code.”
  1. (d)
    s 88 of the National Credit Code provides a penalty for commencing the proceedings without serving a notice, but contains no express provision that the credit contract or mortgage is unenforceable; and
  1. (e)
    s 124 of the National Credit Code provides detail about the civil effect of contraventions and says:

“(1) If a credit provider contravenes a requirement of or made under this Code, the court may order the credit provider to make restitution or pay compensation to any person affected by the contravention and, in that event, may make any consequential order it considers appropriate in the circumstances.

  1. (2)
    An application for the exercise of the court’s powers under this section may be made by:
  1. (a)
    a person affected by the contravention; or
  1. (b)
    ASIC on behalf of a person affected by the contravention, if the person has consented in writing to ASIC making the application; or
  1. (c)
    ASIC (on its own behalf).”
  1. [59]
    Similarly, it seems to me that the non-compliance with the legislative requirement in s 84 of the Property Law Act 1974 does not invalidate these proceedings, particularly given the relief sought is an order for recovery of possession of the land under s 78 of the Land Title Act 1994, not an order for the sale of the mortgaged lot.[80]
  1. [60]
    In any event, it is unnecessary for me to determine whether, despite not giving rise to a defence, the non-compliances leave the proceedings vulnerable to an application by the defendant to set aside the originating process.  This is because the factual dispute about service of the default notices gives rise to the need for a trial for the reason outlined in paragraphs [61] to [64] below.
  1. [61]
    The plaintiff’s entitlement to summary judgment for the whole of its claim is dependent upon it demonstrating that the full balance of the loan is due and owing and that the plaintiff is entitled to interest, at the default rate specified in the loan agreement, on the full balance of the loan.
  1. [62]
    With respect to the full balance of the loan being due and owing, clause 7.2 of the loan agreement states:

“If you are in default, we may give you a notice stating that you are in default.

If you do not, or cannot, correct the default within any period given in the notice or required by law (or if you are in default again for a similar reason at the end of that period), then, at the end of that period and without further notice to you, the total amount owing becomes immediately due for payment (to the extent that it is not already due for payment).

We may then sue you for that amount, or enforce any security, or do both.”

  1. [63]
    Clauses 13.12 and 13.13 stipulate how notices may be given to the defendant.[81]   
  1. [64]
    While a signed copy of the default notices appears in the plaintiff’s records, the plaintiff has not established that the notices were given, either by sending them by post or otherwise.  As is noted above, the defendant denies receipt of the default notices and says she was unable to remedy the default as she had not been notified.
  1. [65]
    It is clear that there is a dispute of fact with respect to the service of the default notices.
  1. [66]
    Accordingly, as the evidence presently stands, there is a need for a trial of the claim.
  1. [67]
    Having found that there is a need for a trial, it is unnecessary to consider the balance of the defendant’s allegations. However, as the issues raised are also the subject of a strike-out application by the plaintiff and a summary judgment application by the defendant, and have all been the subject of submissions, I will deal with each of them briefly below.

The registered mortgage allegation

  1. [68]
    In her Further Amended Defence, the defendant denies that, by written mortgage registered number 709932656, she had mortgaged the subject land to the plaintiff to secure the loan. She also did not admit allegations with respect to the registration of the mortgage. The stated basis for the denial and non-admissions were that there were defects in the copy of the mortgage disclosed by the plaintiff’s solicitor.[82]
  1. [69]
    At the hearing, the defendant accepted that the mortgage was executed by her at her solicitor’s office on 25 August 2006 and registered on the title for the Land as dealing number 709932656 on 13 September 2006.  The defendant explained that her complaint, with respect to this issue, was about the efficacy of the plaintiff’s record keeping in that the mortgage the plaintiff had disclosed was not a true copy of the document.[83] 
  1. [70]
    There is no genuine dispute between the parties either about whether the defendant granted a mortgage over the subject land in favour of the plaintiff or about whether the mortgage is registered. The defendant’s allegations are not a defence to the plaintiff’s claim against the defendant and this is not a matter that warrants a trial of the claim.

The interest rate allegation

  1. [71]
    In her Further Amended Defence, the defendant denies the allegations that:
  1. (a)
    she has not paid the amount that is due and owing under the loan agreement; and
  1. (b)
    she is in default under the mortgage. 
  1. [72]
    The basis of the defendant’s denial is an allegation that the amount of interest charged by the plaintiff is incorrect. The defendant contends that the rate of interest was to be fixed for the first two years at 10.1 per cent and variable thereafter.[84]  The defendant alleges that the plaintiff’s conduct in increasing the interest rate during the first two years was in breach of the terms of the loan agreement.[85]
  1. [73]
    As is noted above in paragraph [36], the defendant does not dispute that she entered into a loan agreement with the plaintiff on 25 August 2006.[86]
  1. [74]
    The plaintiff contends that the terms of the loan agreement are recorded in the loan schedule and the standard terms, which are exhibited to the affidavit of Ms Di Rago.[87] 
  1. [75]
    The defendant does not dispute that the loan schedule and the standard terms exhibited to the affidavit of Ms Di Rago are a true copy of the loan agreement signed by her in the presence of her solicitor.[88]  However, the defendant alleges that the terms of the loan agreement found in those documents must be read together with the loan application form.[89]
  1. [76]
    While the defendant takes issue with the accuracy of the loan application forms attached to the affidavit of Ms Di Rago, she accepts that page 17 of the exhibits to Ms Di Rago’s affidavit is accurate insofar as it notes the interest type as variable fixed for two years.[90]  The defendant relies on that notation to assert that the rate of interest was to be fixed for the first two years at 10.1 per cent and variable thereafter.  She alleges that it forms a “pre-contractual statement” that could only be varied by written notification.
  1. [77]
    The affidavit of Ms Di Rago exhibits a letter dated 24 August 2006 and addressed to the defendant.[91]  That letter states:

“We are pleased to advise that your loan application received from First Pacific Finance (Bill Sanders) has been approved.

The details of our offer of finance are set out in the loan agreement (in duplicate) and standard terms and conditions.  Please read all documents carefully and in particular take notice of the comments on page six of the Consumer Loan Agreement Schedule about Acceptance by Customer.

Loan Agreement

If you accept the terms of the offer, you should sign two copies of the Consumer Loan Agreement Schedule and return them to us.  You should keep the other signed copy.

Please note that if this offer is not accepted within 14 days of issue, then the offer may be withdrawn.  Any further offer may not be on the same terms and conditions.

Mortgage Document

We have enclosed the mortgage documents together with a copy of the Memorandum of Common Provisions.  Please read the documents and then sign the two original Mortgages and return them to us and retain the copy for your records.

…”

  1. [78]
    The Consumer Loan Agreement Schedule:
  1. (a)
    is titled, in large bold font, “Consumer loan agreement (variable rate) schedule”;[92]
  1. (b)
    contains a table that:
  1. (i)
    with respect to “Annual Percentage Rate” states “The annual percentage rate that applies to your loan is a variable rate.  The annual percentage rate is our interest rate for similar variable rate loans.  That interest rate is 10.10 per cent per annum at the disclosure date.”;[93]
  1. (ii)
    with respect to “Repayments” states “During the interest only period you must make 24 Monthly interest repayments of $3,282.50 each.”, but also states “(The above figures and amounts are estimates which assume that payments will be made on time, that the annual percentage rate and fees and charges will not change after the disclosure date and that the settlement date is the disclosure date.)”;[94]
  1. (c)
    contains a note that “Under this agreement, any of the following information which is given above may be varied without your consent … the annual percentage rate …”;[95]
  1. (d)
    contains, on page 6 of the schedule, under the heading “Acceptance by Customer” a box titled “Important” that:[96]
  1. (i)
    states, under the heading “Before you sign” in the first bullet point, “READ THIS CONTRACT DOCUMENT so that you know exactly what contract you are entering into and what you will have to do under the contract.”;
  1. (ii)
    states, under the heading “Things you must know” in the fourth bullet point, “If this contract document says so, the credit provider can vary the annual percentage rate (the interest rate), the repayments and the fees and charges and can add new fees and charges without your consent.”.
  1. [79]
    The Consumer loan agreement Standard Terms and Conditions contains:
  1. (a)
    clause 2, which records that the percentage rate is a variable rate and can change;[97]
  1. (b)
    clause 7.1, which states that failure to pay on time all amounts due under the agreement is an act of default;[98]
  1. (c)
    clause 7.2, which provides that in the event of default, the plaintiff may serve a notice on the defendant stating that she is in default and requiring her to rectify the default, failing which the total amount of the loan becomes immediately due for payment;[99] and
  1. (d)
    clause 7.4, which stipulates that interest is to be paid at a higher rate, being the default rate, on any amount while it is overdue.[100]
  1. [80]
    The defendant acknowledges that the letter of 24 August 2006 and the loan agreement schedule indicate a different position with respect to interest than that contained in the loan application form. However, she contends that those statements do not amount to written notification changing the “pre-contractual statement” about fixed interest for two years because such matters were “very simple to overlook”.[101]
  1. [81]
    While the defendant may have overlooked the details with respect to the variable interest rate, she has no real prospect of successfully defending the plaintiff’s claim on the basis that the interest rate was to be a fixed interest rate. It is clear from the letter of 24 August 2006 that the offer of finance was on the terms in the loan agreement and standard terms and conditions. The loan application form does not form part of the contract. Further, the letter warned about the need to read all documents carefully.
  1. [82]
    A fair reading of the loan agreement documents discloses numerous statements that confirm that the interest rate was to be a variable interest rate. There is no suggestion that this is to be linked to the cash rate set by the Reserve Bank of Australia (as contended by the defendant). Further, the execution page of the Consumer loan agreement schedule again warned of the need to read the document carefully. The defendant has no real prospect of successfully defending the plaintiff’s claim based on this allegation and the allegation is not one that warrants a trial of the claim.

The enforceability allegation

  1. [83]
    The defendant admits that:
  1. (a)
    on 16 August 2013, she signed a document titled “Variation to Loan Agreement” pursuant to which she agreed to vary the terms of the loan agreement;
  1. (b)
    the variation agreement varied the loan agreement to the effect that the defendant was required to make 278 monthly minimum repayments of $4,801.99, comprised of a monthly repayment of $4,791.99 and a monthly service fee of $10 per month; and
  1. (c)
    all other terms and conditions of the loan agreement remain unchanged and binding on the defendant.[102]
  1. [84]
    During the hearing, the defendant sought rely on the variation to the loan agreement to assert that her defaults in 2012 were not relevant.[103]
  1. [85]
    However, the defendant contends that at the time she entered the Variation to Loan Agreement, she “felt she had no other option or she would lose her home.”  The defendant alleges that she lacked bargaining power.[104]
  1. [86]
    It is apparent from documents attached to the affidavit of Ms Di Rago that:
  1. (a)
    the Variation to Loan Agreement was entered into by the parties at the defendant’s request; and
  1. (b)
    the only effect of the Variation to Loan Agreement was to amend the amount of the monthly repayment that the defendant was required to make under the loan agreement as a consequence of having capitalised the arrears, bringing the loan “up to date”.[105] 
  1. [87]
    With respect to the alleged “unequal bargaining power”, the defendant relies on:
  1. (a)
    the comments by employees of the plaintiff in telephone conversations with her,[106] which she says offered the variation on the basis of “Take it or you will have to sell your home”;[107]
  1. (b)
    the fact that her husband was killed in a car accident in 2002 and that since that time, her main aim has been to retain the family home so as to try and maintain a safe and secure environment for her children and minimise further trauma and upheaval to her children;
  1. (c)
    the fact that she and her children still struggle emotionally with the loss of her husband and have a deep-rooted attachment to the family home; and
  1. (d)
    the fact the defendant has had panic attacks at the prospect of losing her home.
  1. [88]
    There is no allegation that the “unequal bargaining power” resulted in any unlawful or illegitimate pressure being applied to the defendant’s commercial or financial interests that would vitiate the variation to the loan agreement.[108] 
  1. [89]
    Even if the variation to the loan agreement was vitiated, the defendant would remain bound by the original terms of the loan agreement. It is the breach of those terms that gives rise to the plaintiff’s claim.
  1. [90]
    The defendant’s circumstances may well explain why she “felt she had no other option”.  They do not, however, demonstrate a proper basis on which she has a real prospect of successfully defending all or part of the plaintiff’s claim or that there is a need for a trial with respect to this issue.  

The Code breach allegation

  1. [91]
    In her Further Amended Defence, the defendant alleges that the plaintiff has breached numerous sections of the Queensland Consumer Credit Code as in force at the time the contract was entered.  A number of the allegations relate to alleged failures at the time of the entry of the contract, while other provisions relate to alleged continuing breaches.
  1. [92]
    At the time the contract was entered, the Queensland Consumer Credit Code was in force in Queensland.  It was an appendix to the Consumer Credit (Queensland) Act 1994.  The Consumer Credit Code regulated the provision of consumer credit until the Credit (Commonwealth Powers) Act 2010 (Qld) adopted the National Credit Code[109] and repealed the Consumer Credit (Queensland) Act 1994 and the Consumer Credit Code.[110]
  1. [93]
    The National Consumer Credit Protection Act 2009 (Cth) now regulates the licensing of persons who engage in credit activities, responsible lending conduct, remedies, administration, and compliance and enforcement of the Act.  The National Credit Code is Schedule 1 to that Act.  It substantially replicates the Queensland Consumer Credit Code,[111] which applied from 1996 to 2010.  The National Credit Code commenced on 1 April 2010.  The National Credit Code does not have retrospective effect and, as such, at the time of the formation of the loan agreement, the relevant governing legislation was the Consumer Credit Code.  However, the National Credit Code regulates all conduct with respect to the loan agreement from 1 April 2010 to present.[112]
  1. [94]
    The alleged breaches relate to s 15(C), s 15(H), s 15(J)(iii), s 17, s 28, s 39, s 59 and s 158 of the Queensland Consumer Credit Code.
  1. [95]
    With respect to s 15 of the Consumer Credit Code, the defendant alleges that the plaintiff failed to give:
  1. (a)
    disclosure that a higher interest rate would be applied to the loan if the loan was not kept up to date at all times.  It is alleged that the plaintiff only stated that a default interest rate of 4 per cent higher than the contract rate would be applied if the loan was to default;
  1. (b)
    full and detailed information on the circumstances in which the plaintiff may vary the interest rate to be applied to the loan; and
  1. (c)
    full and detailed disclosure that the default interest rate may be increased at the plaintiff’s discretion.[113]
  1. [96]
    Section 15 of the Consumer Credit Code requires the contract document to contain various specified matters, including:

“(C) Annual percentage rate or rates.

  1. (a)
    The annual percentage rate or rates under the contract.
  1. (b)
    If there is more than one rate, how each rate applies.
  1. (c)
    If an annual percentage rate under the contract is determined by referring to a reference rate—
  1. (i)
    the name of the rate or a description of it; and
  1. (ii)
    the margin or margins (if any) above or below the reference rate to be applied to determine the annual percentage rate or rates; and
  1. (iii)
    where and when the reference rate is published or, if it is not published, how the debtor may ascertain the rate; and
  1. (iv)
    the current annual percentage rate or rates.
  1. (h)
    Changes affecting interest and credit fees and charges.

If the annual percentage rate or rates or the amount or frequency of payment of a credit fee or charge or instalment payable under the contract may be changed, or a new credit fee or charge may be imposed, a statement or statements to that effect and of the means by which the debtor will be informed of the change or the new fee or charge.

  1. (j)
    Default rate.
  1. (a)
    If the contract is a contract under which a default rate of interest may be charged when payments are in default—a statement to that effect and the default rate and how it is to be applied.
  1. (b)
    If the default rate under the contract is determined by referring to a reference rate—
  1. (i)
    the name of the rate or a description of it; and
  1. (ii)
    the margin or margins (if any) above or below the reference rate to be applied to determine the default rate; and
  1. (iii)
    when and where the reference rate is published or, if it is not published, how the debtor may ascertain the rate; and
  1. (iv)
    the current default rate.”
  1. [97]
    Details of the annual percentage rate were included in the loan agreement, particularly at pages 1, 3 and 4 of the Consumer loan agreement (variable rate) schedule and clauses 2, 4.9 and 7 of the Consumer loan agreement Standard Terms and Conditions.[114] 
  1. [98]
    With respect to s 17 of the Consumer Credit Code, the defendant alleges that the plaintiff altered the loan application form, which the defendant alleges forms part of the contractual documents, after the defendant’s signature was obtained.  It is alleged by the defendant that the documents are, as such, ineffective.[115]
  1. [99]
    Section 17 of the Consumer Credit Code relates to alterations of contract documents and states:

“(1) An alteration of (including an addition to) a contract document by the credit provider after it is signed by the debtor is ineffective unless the debtor has agreed in writing to the alteration.

  1. (2)
    This section does not apply to an alteration having the effect of reducing the debtor’s liabilities under the credit contract.”
  1. [100]
    For reasons detailed above, with respect to the interest rate allegation, I am not satisfied that the loan application form is part of the contractual documents. As such, even if there were alterations to the loan application form, they would not be deemed ineffective by the operation of s 17 of the Consumer Credit Code as alleged by the defendant. 
  1. [101]
    The defendant’s allegation with respect to s 28 of the Consumer Credit Code is that the plaintiff has further increased the default interest rate while this litigation has been on foot.[116] 
  1. [102]
    Section 28 deals with default interest and states:

“(1) A credit contract may not provide that an annual percentage rate applicable under a credit contract to any part of the unpaid balance will differ according to whether the debtor is in default under the contract.

  1. (2)
    However, a credit contract may provide for such a differential rate if the higher rate is imposed only in the event of default in payment, in respect of the amount in default and while the default continues.”
  1. [103]
    The default interest rate is linked to the variable interest rate. It changes when the variable interest rate changes. This conduct by the plaintiff is not conduct that provides the defendant with a real prospect of successfully defending the plaintiff’s claim or one that necessitates a trial.
  1. [104]
    With respect to s 39 of the Consumer Credit Code, the defendant alleges that the plaintiff failed to provide her with a copy of the registered mortgage or the mortgage document within the required 14 days.[117] 
  1. [105]
    Section 39 states:

“(1) If a mortgage is in the form of a written mortgage document and is not part of a credit contract, the credit provider must give the mortgagor a copy to keep, in the form in which it was made, within 14 days after it is made.

  1. (2)
    This section does not apply if the credit provider has previously given the mortgagor a copy of the mortgage document to keep.”
  1. [106]
    The defendant’s allegation is inconsistent with the documents disclosed in the proceedings.[118]  The plaintiff had previously given the defendant a copy of the mortgage document to keep.
  1. [107]
    With respect to s 59(1) and (4) of the Consumer Credit Code, the defendant alleges that the plaintiff has continually, throughout the contract period, failed to properly notify the defendant of proposed interest charges and how they apply.[119]
  1. [108]
    Section 59 deals with interest rate changes and states:

“(1) Notification of interest rate changes. A credit provider must, not later than the day on which a change in the annual percentage rate or rates payable under a credit contract takes effect, give to the debtor written notice setting out—

  1. (a)
    the new rate or rates or, if a rate is determined by referring to a reference rate, the new reference rate; and
  1. (b)
    any information required by the regulations.

Maximum penalty—100 penalty units.

  1. (2)
    Notification by publication. Notice under subsection (1) may be given by publishing the notice in a newspaper circulating throughout this jurisdiction. A credit provider that gives notice in accordance with this subsection must give to the debtor particulars of the change before or when the next statement of account is sent to the debtor after the change takes effect.

Maximum penalty—100 penalty units.

  1. (3)
    Changes in reference rates. Subsection (1) does not apply to a change in a rate that is determined by referring to a reference rate if the changed reference rate is notified (whether or not by the credit provider) in a newspaper circulating throughout this jurisdiction not later than the date the change takes effect.
  1. (4)
    Notification of other interest changes. A credit provider must, not later than 20 days before a change in the manner in which interest is calculated or applied under a credit contract (including a change in or abolition of any interest free period under the contract) takes effect, give to the debtor written notice setting out—
  1. (a)
    particulars of the change; and
  1. (b)
    any information required by the regulations.

Maximum penalty—100 penalty units.

  1. (5)
    Interest rate reductions. Subsections (1) and (4) do not apply to a change that reduces the obligations of the debtor under the credit contract.
  1. (6)
    Application. This section applies whether or not the change is a change to the terms of the contract.”
  1. [109]
    The defendant’s allegation about failure to notify interest rate changes is inconsistent with the documents disclosed in the proceedings.[120] 
  1. [110]
    With respect to s 158(2)(a) and (b) of the Consumer Credit Code, the defendant alleges that the plaintiff has failed to fully disclose the conditions under which variations to the agreed interest rate may be applied.[121]
  1. [111]
    Section 158 deals with tolerances and assumptions relating to information and states:

“(1) Disclosures generally. Information disclosed in a precontractual statement, contract document, mortgage document or guarantee, statement, notice or consumer lease, or otherwise disclosed for the purposes of this Code, is taken to be correctly disclosed if—

  1. (a)
    it is within tolerances allowed by the regulations; and
  1. (b)
    the disclosure is made as at a date stated in it.
  1. (2)
    Disclosure of interest charges. Disclosures for the purposes of this Code relating to interest charges may be made on the following assumptions (and such other assumptions under this section as are applicable)—
  1. (a)
    that, in the case of an annual percentage rate or default rate, there will be no variation in the rate as disclosed over the whole term of the contract or any shorter term for which it applies;
  1. (b)
    if a change to a variable rate is provided for by the contract, that the variable rate applicable over the term for which it applies is the same as the equivalent variable rate as at the date disclosure is made;
  1. (c)
    that the debtor will make the repayments required by the contract at the times required by the contract.

…”

  1. [112]
    The allegation by the defendant does not assist her to resist the plaintiff’s claim. In the Outline of Submissions on behalf of the Defendant[122] and the Submissions Response on behalf of the Defendant (Plaintiff’s Application),[123] the defendant seeks to draw support for her position from the difference between the annual percentage rate and the Reserve Bank of Australia’s cash rate.  The default interest rate payable by the defendant is linked to the variable interest rate, not the official cash rate from the Reserve Bank of Australia. 
  1. [113]
    Further, and in any event, even if the plaintiff was guilty of breaches of the Consumer Credit Code as alleged, or even the equivalent provisions in the National Credit Code in terms of the alleged continuing breaches, such a finding does not render the loan agreement or the mortgage illegal, void or unenforceable.  In that respect, it should be noted that s 170 of the Consumer Credit Code states:

“(1) A credit contract, mortgage or guarantee or any other contract is not illegal, void or unenforceable because of a contravention of this Code unless this Code contains an express provision to that effect.

  1. (2)
    Except as provided by this section, this Code does not derogate from rights and remedies that exist apart from this Code.”
  1. [114]
    Section 193 of the National Credit Code is in identical terms.
  1. [115]
    In the Submissions Response on behalf of the Defendant (Plaintiff’s Application),[124] the defendant acknowledged the effect of s 193 of the National Credit Code.  In response, the defendant points to s 179 of the National Consumer Credit Protection Act 2009, which provides the court with powers to make orders, including an order declaring part of a contract void.  However, that provision applies if there has been a contravention of civil penalty provision or an offence against the National Consumer Credit Protection Act 2009, not the Code.
  1. [116]
    Accordingly, the defendant has no real prospects of successfully defending the proceeding on these grounds and there is no need for a trial to resolve these issues.

The unjust transaction allegation

  1. [117]
    In her Further Amended Defence, the defendant alleges that the loan agreement was unjust within the meaning of s 70(2) of the Consumer Credit Code and that the plaintiff knowingly put the defendant into a worse financial position through the unjust contract.[125]  The defendant alleges that the plaintiff knew or ought reasonably to have known, due to its financial expertise, that the defendant could not service the loan and that the loan agreement was unjust.[126]
  1. [118]
    Section 70 of the Consumer Credit Code has been replaced by s 76 of the National Credit Code.  It states:

“Power to reopen unjust transactions

  1. (1)
    The court may, if satisfied on the application of a debtor, mortgagor or guarantor that, in the circumstances relating to the relevant credit contract, mortgage or guarantee at the time it was entered into or changed (whether or not by agreement), the contract, mortgage or guarantee or change was unjust, reopen the transaction that gave rise to the contract, mortgage or guarantee or change.

Matters to be considered by court

  1. (2)
    In determining whether a term of a particular credit contract, mortgage or guarantee is unjust in the circumstances relating to it at the time it was entered into or changed, the court is to have regard to the public interest and to all the circumstances of the case and may have regard to the following:
  1. (a)
    the consequences of compliance, or noncompliance, with all or any of the provisions of the contract, mortgage or guarantee;
  1. (b)
    the relative bargaining power of the parties;
  1. (c)
    whether or not, at the time the contract, mortgage or guarantee was entered into or changed, its provisions were the subject of negotiation;
  1. (d)
    whether or not it was reasonably practicable for the applicant to negotiate for the alteration of, or to reject, any of the provisions of the contract, mortgage or guarantee or the change;
  1. (e)
    whether or not any of the provisions of the contract, mortgage or guarantee impose conditions that are unreasonably difficult to comply with, or not reasonably necessary for the protection of the legitimate interests of a party to the contract, mortgage or guarantee;
  1. (f)
    whether or not the debtor, mortgagor or guarantor, or a person who represented the debtor, mortgagor or guarantor, was reasonably able to protect the interests of the debtor, mortgagor or guarantor because of his or her age or physical or mental condition;
  1. (g)
    the form of the contract, mortgage or guarantee and the intelligibility of the language in which it is expressed;
  1. (h)
    whether or not, and if so when, independent legal or other expert advice was obtained by the debtor, mortgagor or guarantor;
  1. (i)
    the extent to which the provisions of the contract, mortgage or guarantee or change and their legal and practical effect were accurately explained to the debtor, mortgagor or guarantor and whether or not the debtor, mortgagor or guarantor understood those provisions and their effect;
  1. (j)
    whether the credit provider or any other person exerted or used unfair pressure, undue influence or unfair tactics on the debtor, mortgagor or guarantor and, if so, the nature and extent of that unfair pressure, undue influence or unfair tactics;
  1. (k)
    whether the credit provider took measures to ensure that the debtor, mortgagor or guarantor understood the nature and implications of the transaction and, if so, the adequacy of those measures;
  1. (l)
    whether at the time the contract, mortgage or guarantee was entered into or changed, the credit provider knew, or could have ascertained by reasonable inquiry at the time, that the debtor could not pay in accordance with its terms or not without substantial hardship;
  1. (m)
    whether the terms of the transaction or the conduct of the credit provider is justified in the light of the risks undertaken by the credit provider;
  1. (n)
    for a mortgage–any relevant purported provision of the mortgage that is void under section 50;
  1. (o)
    the terms of other comparable transactions involving other credit providers and, if the injustice is alleged to result from excessive interest charges, the annual percentage rate or rates payable in comparable cases;
  1. (p)
    any other relevant factor.

Representing debtor, mortgagor or guarantor

  1. (3)
    For the purposes of subsection (2)(f), a person is taken to have represented a debtor, mortgagor or guarantor if the person represented the debtor, mortgagor or guarantor, or assisted the debtor, mortgagor or guarantor to a significant degree, in the negotiations process prior to, or at, the time the credit contract, mortgage or guarantee was entered into or changed.

Unforeseen circumstances

  1. (4)
    In determining whether a credit contract, mortgage or guarantee is unjust, the court is not to have regard to any injustice arising from circumstances that were not reasonably foreseeable when the contract, mortgage or guarantee was entered into or changed.

Conduct

  1. (5)
    In determining whether to grant relief in respect of a credit contract, mortgage or guarantee that it finds to be unjust, the court may have regard to the conduct of the parties to the proceedings in relation to the contract, mortgage or guarantee since it was entered into or changed.

…”

  1. [119]
    The defendant has not made an application to reopen the loan agreement. Despite this, whether the defendant has a real prospect of defending the plaintiff’s claim on the basis of an application to reopen the loan is a relevant consideration on the summary judgment application.[127]

Agency allegation

  1. [120]
    In contending that the loan agreement is unjust, the defendant relies on allegations that, at the time the loan was entered into, the plaintiff or the plaintiff’s agent knew:
  1. (a)
    through credit checks that the defendant was in financial trouble and was in a desperate situation, thus severely restricting the defendant’s bargaining power;
  1. (b)
    due to the defendant’s age and her self-employed status in the commercial fishing industry, it was unlikely the defendant would be able to meet her obligations under the loan agreement;
  1. (c)
    there had been a failure to fully explain the applicable interest implications of the contract; and
  1. (d)
    the loan application forms were altered and the plaintiff’s Lotus e-system printouts uses unsubstantiated monetary values and, as such, also knew that the defendant could not service the loan.[128]
  1. [121]
    It is also alleged that the plaintiff’s agent knew that the defendant was in a confused and emotional state due to the death of her husband and the subsequent stress and trauma from enduring a lengthy legal challenge to the deceased’s estate.[129]
  1. [122]
    With respect to the agency allegation, the defendant alleges that Howard Pacific Finance was agent for the plaintiff. The plaintiff, on the other hand, submits that there is nothing in the material put forward by the defendant to establish an arguable case in that respect.
  1. [123]
    The defendant acknowledges that she corresponded with Mr Michael Brickell of New Capital Finance in relation to the loan agreement.[130]  On about 31 May 2006 (approximately three months before the loan agreement was entered into), the defendant executed an “authority to act” in favour of New Capital Finance pursuant to which the defendant appointed New Capital Finance as her finance broker and authorised it to make applications to lenders on her behalf.[131]
  1. [124]
    The defendant also accepts that she signed a document with Howard Pacific Finance’s details on it that had been forwarded to her by Mr Brickell. This document is referred to at paragraph 55 of her affidavit. However, the defendant’s position is that she has never dealt directly with the plaintiff or Howard Pacific Finance.[132]
  1. [125]
    The plaintiff submits that the evidence filed by Ms West suggests that a second brokerage firm named “Howard Pacific Finance” (formerly known as “First Pacific Finance”)[133] was engaged by New Capital Finance (acting on behalf of the defendant) to assist in making the application to the plaintiff for the loan.[134]  In this respect, the plaintiff refers to paragraph 55 to the Affidavit of Michele West[135] and an email from Mr Brickell at Exhibit MW-1 p 202. 
  1. [126]
    The plaintiff also submits that there is no prima facie case that Howard Pacific Finance, or anyone else, acted as agents for the plaintiff and the defendant has not led any evidence capable of discharging her evidential onus to prove such agency.
  1. [127]
    With respect to the onus borne by the defendant, the plaintiff refers to Secure Funding Pty Ltd v Moon [2012] QSC 244 at [44].  That case, however, did not involve an application for summary judgment. 
  1. [128]
    In Barker v GE Mortgage Solutions Limited [2013] QCA 137, Philippides J (with whom White JA and Ann Lyons J agreed) observed at [45] that “It is the case that the authorities referred to by the respondent establish that generally, but subject to the terms of the relevant contract, brokers have been held to be the agent of the borrowers.”  The cases referred to therein recognise that the position may differ according to the individual circumstances of each case.
  1. [129]
    Here, unlike in Barker v GE Mortgage Solutions Limited,[136] there is no clear evidence of the existence of, or the terms of, any contract between the defendant and Howard Pacific Finance.  The email from Mr Brickell at p 202 is equivocal.  The document referred to at paragraph 55 of the Affidavit of Michele West[137] also does not provide the clarity suggested by the plaintiff.  It states that the defendant acknowledges that she has “made an application for credit from Howard Pacific Finance”.  Further, as is noted above, the defendant maintains that she has never dealt directly with Howard Pacific Finance.[138]  The defendant has also indicated an intention to call an ex-employee of Howard Pacific Finance who was the mortgage manager as a witness.[139]  Accordingly, I am not presently persuaded that there is no need for a trial with respect to the defendant’s allegations in this respect.

Unjust transaction allegation generally

  1. [130]
    Section 76 of the National Credit Code provides a non-exhaustive list of matters the court may have regard to in determining whether a transaction is an unjust transaction.
  1. [131]
    In submitting that the material before the court does not disclose any real prospect of the defendant successfully defending the plaintiff’s claim on the basis of the transaction being unjust, and that there is no need for a trial to determine the issue, the plaintiff relies on numerous matters.[140]  Many have considerable merit, including: 
  1. (a)
    the observation by Philippides J in Barker v GE Mortgage Solutions Limited [2013] QCA 137 at [64] that:

“There is ample authority to the effect that a credit contract will not be unjust merely because one of the criteria in s 76(2) applies, since the criteria are to be considered in the light of all the circumstances of the case.  But by the same token, a contract may be unjust even though none of the s 76(2) criteria are present …

  1. (b)
    the observation by Philippides J in Barker v GE Mortgage Solutions Limited [2013] QCA 137 at [72] that:

“The appellant asserted that she was unable to afford the loan provided by the respondent.  But the fact that a party cannot afford a loan has been held to be insufficient on its own to result in a finding that the loan contract is unjust under comparable legislation: see Australian Society Group Financial Services (NSW) Ltd v Bogan [1989] ASC 55-938 in respect of similar legislation.  The appellant also contended that there was an inequality in bargaining power between the parties (relying on the equivalent of s 76(2)(b) and (d)).  However, mere procedural factors such as inequality of bargaining power without more, such as the lender abusing or taking unfair advantage of that power, is unlikely to be a sufficient basis for a finding that a contract is unjust: see West v AGC (Advances) Ltd (1986) 5 NSWLR 610.  …”

  1. (c)
    the evidence that, prior to execution of the loan agreement and mortgage, the defendant met with her solicitor, Ms Rimmer, and she told the plaintiff of the fact that she was legally represented prior to execution of the transaction documents;[141]
  1. (d)
    before offering to enter into the loan agreement with the defendant, the plaintiff sought certain financial details from her in an application form, which details included her income, assets and liabilities;[142]
  1. (e)
    after receiving the defendant’s application, the plaintiff sought further information in relation to outstanding debts owed by the defendant at that time;[143]
  1. (f)
    the plaintiff issued copies of the transaction documents to the defendant before she was required to sign them and, in doing so, requested the defendant read all of the issued documents carefully before signing them and specifically directed her attention to the important information set out on page 5 of the loan schedule document;[144]
  1. (g)
    the defendant executed the transaction documents at the offices of her appointed solicitors;[145]
  1. (h)
    the transaction documents clearly set out the terms of the loan agreement and the mortgage; and
  1. (i)
    immediately prior to signing the loan agreement, the plaintiff informed the defendant, in writing, that she should not sign the transaction documents if there was anything that she did not understand about those documents.[146]
  1. [132]
    However, the plaintiff’s submissions also rely, to a considerable degree, on its position that Howard Pacific Finance was agent for the defendant.[147]  As is noted above, I consider this to be an issue about which there is presently the need for a trial.[148]  The defendant also takes issue with the submission that the loan agreement documents were sent to her 14 days prior to execution.[149]  She asserts that they were sent to her solicitor’s office on 24 August 2006.[150]  This is another issue about which there is a need for a trial in order to determine all of the circumstances relevant to whether the transaction is unjust.
  1. [133]
    As is noted in the quoted passage from Barker v GE Mortgage Solutions Limited [2013] QCA 137 at paragraph [131](a) above, the criteria in s 76 of the National Credit Code are to be considered in light of all of the circumstances of the case.  Given some of those circumstances involve matters about which there is a need for a trial, I am not satisfied that the defendant has no real prospects of defending the claim on the basis of her allegation of an unjust transaction.  There is a need for a trial of this issue.

The loan application form allegation

  1. [134]
    In her Further Amended Defence, the defendant alleges that the plaintiff, or a party acting as agent for the plaintiff, falsified the loan application form in a number of respects.[151]
  1. [135]
    With respect to this issue, the plaintiff submits that “the only possible conclusion is that any such alterations were made by Howard Pacific Finance, and not Secure Funding” and that given the plaintiff’s position with respect to the agency relationship, the defendant has no real prospect of successfully defending the plaintiff’s claim on this basis, and there is no need for a trial of this matter.[152]
  1. [136]
    As noted above, I am not presently satisfied that there is no need for a trial of the agency issue.

The unconscionable conduct allegation

  1. [137]
    In her Submissions Response on behalf of the Defendant (Plaintiff’s Application), the defendant alleges that the plaintiff has engaged in unconscionable conduct in the formation of the contract.[153]  In this respect, the submissions appear to allege breach of s 21 of the Australian Consumer Law.
  1. [138]
    Pursuant to s 131(1) of the Competition and Consumer Act 2010 (Cth), Schedule 2 to that Act, being the Australian Consumer Law, applies as a law of the Commonwealth to the conduct of corporations.  Section 131(2) of the Competition and Consumer Act 2010 (Cth) provides that s 21 of Schedule 2 also applies as a law of the Commonwealth in relation to a supply or possible supply of goods or services by any person to a corporation (other than a listed public company); or an acquisition or possible acquisition of goods or services from any person by a corporation (other than a listed public company).  However, s 131A(1) of the Competition and Consumer Act 2010 (Cth) states:

“Despite section 131, this Division does not apply (other than in relation to the application of Part 5-5 of Schedule 2 as a law of the Commonwealth) to the supply, or possible supply, of services that are financial services, or of financial products.”

  1. [139]
    The provision of credit and the grant of security are both “financial products” within the meaning of the Australian Consumer Law.[154]
  1. [140]
    Accordingly, this defence is only speculative in nature. It is not a proper basis on which to refuse summary judgment.

The electronic transactions allegation

  1. [141]
    The defendant alleges that the plaintiff has failed to comply with provisions of the Electronic Transactions Act 1999 (Cth).  Her allegations are in two categories, namely:
  1. (a)
    as a result of the alleged non-compliances, the loan application form is defective; and
  1. (b)
    the plaintiff’s internal “Lotus notes” system contravenes either or both of s 15(1) and s 15D of the Electronic Transactions Act 1999.
  1. [142]
    For the reasons outlined in paragraphs [72] to [82] above, I am not satisfied that the loan application form is part of the loan agreement on which the plaintiff’s claim is based.  The only relevance of the loan application form is to the issue of whether the transaction is an unjust transaction.  The allegations with respect to the Electronic Transactions Act 1999 do not, of themselves, provide the defendant with a real prospect of defending the plaintiff’s claim or give rise to the need for a trial.
  1. [143]
    As for the plaintiff’s internal “Lotus notes” system, I am satisfied that it is an internal recording and assessment software tool used by the plaintiff,[155] and that its contents were not communicated to the defendant prior to entering the loan agreement.[156]  The information contained therein does not form any part of the loan agreement.
  1. [144]
    I am satisfied that s 15(1) and s 15D of the Electronic Transactions Act 1999 are of no application to the “Lotus notes” information. 
  1. [145]
    The allegations with respect to the Electronic Transactions Act 1999 do not, of themselves, provide the defendant with a real prospect of defending the plaintiff’s claim or give rise to the need for a trial.

The misleading or deceptive conduct allegation

  1. [146]
    The defendant alleges that, at the time the loan agreement was entered into, the plaintiff contravened s 52 of the Trade Practices Act 1974 (Cth) by failing to disclose:
  1. (a)
    that the rate of interest chargeable under the loan agreement was variable, not fixed for two years; and
  1. (b)
    the prospect of application of a higher rate of interest in the event of a default.
  1. [147]
    At the time the loan agreement was entered, s 51AF of the Trade Practices Act 1974 (Cth) stated that Part V of the Trade Practices Act 1974 (within which s 52 was located) did not apply to the supply, or possible supply, of services that are financial services and s 52 did not apply to conduct engaged in in relation to financial services.  “Financial services” was defined in s 4 as having the same meaning as in Division 2 of Part 2 of the Australian Securities and Investment Commission Act 2001 (Cth).  At the relevant time, pursuant to s 12BAA and s 12BAB of the Australian Securities and Investment Commission Act 2001, financial services included dealing in a financial product such as a security.
  1. [148]
    Accordingly, s 52 did not apply to the conduct engaged in by the plaintiff in relation to the supply of financial products such as the loan.
  1. [149]
    Further, the difficulties with the substance of defendant’s complaints with respect to the interest rate are outlined in paragraphs [72] to [82] above.

Conclusion

  1. [150]
    For the reasons expressed with respect to the default notice allegation and the unjust transaction allegation (particularly as it relates to whether Howard Pacific Finance was an agent for the defendant), I am not presently satisfied that the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim and that there is no need for a trial of the claim or part of the claim. 
  1. [151]
    The plaintiff’s application for summary judgment is dismissed.

Footnotes

[1] Application – Court Doc 52.

[2] Claim – Court Doc 1.

[3] Second Affidavit of Angela Di Rago – Court Doc 66 [4] – [10].

[4] Further Amended Statement of Claim – Court Doc 15 [2]; Further Amended Defence – Court Doc 45 [1].

[5] Second Affidavit of Michael Carl Lenicka – Court Doc 50 [7] and Exhibit MCL-2 p 1.

[6] Court Doc 52.

[7] Court Doc 53.

[8] Court Doc 49.

[9] T1-35/L26-43.

[10] Deputy Commission of Taxation v Salcedo [2005] 2 Qd R 232, 234-7; [2005] QCA 227.

[11] Queensland Pork Pty Ltd v Lott [2003] QCA 271, [41].

[12] Connollys Lawyers Pty Ltd v Davis [2013] QCA 231, [19].

[13] Footnotes omitted.

[14] Bernstrom v National Australia Bank Ltd [2003] 1 Qd R 469, 475; [2002] QCA 231.

[15] Haller v Ayre [2005] 2 Qd R 410, 432[65]; [2005] QCA 224.

[16] T1-25/L20-22.

[17] Affidavit of Michael Carl Lenicka – Court Doc 46 [8] and Exhibit MCL-1 pp 40 – 47.

[18] Affidavit of Michael Carl Lenicka – Court Doc 46 [6] and Exhibit MCL-1 pp 35 – 37.

[19] Court Doc 17.

[20] Court Doc 17 [5] and [8].

[21] Affidavit of Michael Carl Lenicka – Court Doc 46 [7] and Exhibit MCL-1 p 38.

[22] T1-19/L15 – T1-21/L13.

[23] Affidavit of Michael Carl Lenicka – Court Doc 46 [9] and Exhibit MCL-1 pp 48 – 68.

[24] Affidavit of Michael Carl Lenicka – Court Doc 46 [9] and Exhibit MCL-1 pp 69 – 70.

[25] Affidavit of Michael Carl Lenicka – Court Doc 46 [10] and Exhibit MCL-1 pp 71 – 85.

[26] Affidavit of Michael Carl Lenicka – Court Doc 46 [11] and Exhibit MCL-1 pp 86 – 88.

[27] Affidavit of Michael Carl Lenicka – Court Doc 46 [12] and Exhibit MCL-1 pp 89 – 100.

[28] Affidavit of Michael Carl Lenicka – Court Doc 46 [13] and Exhibit MCL-1 p 101.

[29] Affidavit of Michael Carl Lenicka – Court Doc 46 [14] and Exhibit MCL-1 pp 102 – 103.

[30] Affidavit of Michael Carl Lenicka – Court Doc 46 [15] and Exhibit MCL-1 pp 104 – 115.

[31] Court Doc 45.

[32] Second Affidavit of Michael Carl Lenicka – Court Doc 50 [17] and Exhibit MCL-2 pp 35 – 38.

[33] T1-21/L14-19.

[34] T1-82/L14 – T1-83/L35.

[35] Rich v CGU Insurance Ltd (2005) 214 ALR 370; (2005) 79 ALJR 856, 859 [18]; [2005] HCA 16, [18], citing Agar v Hyde (2000) 201 CLR 552 at 575-6 [57]; [2000] HCA 41.

[36] Further Amended Statement of Claim filed 23 May 2014 – Court Doc 15 [3]; Further Amended Defence – Court Doc 45 [1]; Affidavit of Angela Di Rago – Court Doc 47 [16] – [19] and Exhibit ADiR-1 pp 69 – 87; T1-70/L30 – T-71/L35.

[37] Affidavit of Angela Di Rago – Court Doc 47 [16] – [19] and Exhibit ADiR-1 pp 69 – 87, particularly at pp 74 and 78.

[38] Further Amended Statement of Claim filed 23 May 2014 – Court Doc 15 [4]; Second Affidavit of Michael Carl Lenicka – Court Doc 50 [7] and [9] and Exhibit MCL-2 pp 1 and 4; T1-73/L1 – T1-74/L1.

[39] Further Amended Statement of Claim filed 23 May 2014 – Court Doc 15 [3]; Further Amended Defence – Court Doc 45 [1]; Affidavit of Angela Di Rago – Court Doc 47 [32] and Exhibit ADiR-1 p 169.  See also T1-60/L7 – T1-62/L27, where it is apparent from the submissions of the defendant that she accepts the loan statement as accurate.

[40] Affidavit of Angela Di Rago – Court Doc 47 [32] and Exhibit ADiR-1 p 169.  See also T1-60/L7 – T1-63/L44, where it is apparent from the submissions of the defendant that she accepts the loan statement as accurate and that there were many instances of default.

[41] Further Amended Statement of Claim filed 23 May 2014 – Court Doc 15 [8A] – [8C]; Further Amended Defence – Court Doc 45 [6].  See also T1-59/L10 – T1-60/L5 where the defendant accepts that she signed the variation to the loan agreement.  See also Affidavit of Angela Di Rago – Court Doc 47 [26] – [29] and Exhibit ADiR-1 pp 101 – 103.

[42] Affidavit of Angela Di Rago – Court Doc 47 [32] and Exhibit ADiR-1 p 169.  See also T1-60/L7 – T1-63/L44, where it is apparent from the submissions of the defendant that she accepts the loan statement as accurate and that there were many instances of default.

[43] Further Amended Statement of Claim filed 23 May 2014 – Court Doc 15 [8D]; Affidavit of Michael Carl Lenicka – Court Doc 46 [6] and [7] and Exhibit MCL-1 pp 36 - 38 Notice to Admit Facts [9]; Second Affidavit of Michael Carl Lenicka – Court Doc 50 [3] and [4]; Affidavit of Angela Di Rago – Court Doc 47 [32] and Exhibit ADiR-1 pp 154 - 169.  See also T1-60/L7 – T1-63/L44, where it is apparent from the submissions of the defendant that she accepts the loan statement as accurate and that there were many instances of default.

[44] Further Amended Defence – Court Doc 45 [7].  See also T1-60/L7 – T1-63/L44, where it is apparent from the submissions of the defendant that she accepts the loan statement as accurate and that there were many instances of default.

[45] Affidavit of Angela Di Rago – Court Doc 47 [32] and Exhibit ADiR-1 pp 154 - 169.  See also T1-60/L7 – T1-63/L44, where it is apparent from the submissions of the defendant that she accepts the loan statement as accurate and that there were many instances of default.

[46] Affidavit of Angela Di Rago – Court Doc 47 [32] and Exhibit ADiR-1 pp 154 – 169; Second Affidavit of Angela Di Rago sworn 25 May 2017 and filed by leave [7].

[47] Court Doc 45.

[48] Court Doc 17.

[49] Court Doc 55 – 59.

[50] Court Doc 63.

[51] Court Doc 54.

[52] Further Amended Defence – Court Doc 45 [5] and [8]. 

[53] Further Amended Defence – Court Doc 45 [2], [3], [7e)] and [10e)]. 

[54] Further Amended Defence – Court Doc 45 [4], [7] and [10]. 

[55] Further Amended Defence – Court Doc 45 [6].

[56] Further Amended Defence – Court Doc 45 [12] and Submissions Response on behalf of the Defendant (Plaintiff’s Application) – Court Doc 63 [16] – [18], [23(b)], [24], [53] and [54]. 

[57] Further Amended Defence – Court Doc 45 [14], [15], [20] and [22]. Submissions Response on behalf of the Defendant (Plaintiff’s Application) – Court Doc 63 [10] – [18].

[58] Further Amended Defence – Court Doc 45 [16].

[59] Submissions Response on behalf of the Defendant (Plaintiff’s Application) – Court Doc 63 [10] – [15].

[60] Outline of Submissions on behalf of the Defendant – Court Doc 54 pp 2 – 9.

[61] Outline of Submissions on behalf of the Defendant – Court Doc 54 p 12.

[62] Further Amended Statement of Claim – Court Doc 15 [8].

[63] Further Amended Statement of Claim – Court Doc 15 [8F].

[64] Further Amended Defence – Court Doc 45 [5] and [8]. 

[65] Affidavit of Angela Di Rago – Court Doc 47 [30] and Exhibit ADiR-1 pp 115 – 121.

[66] Further Amended Defence – Court Doc 45 [5].

[67] Further Amended Defence – Court Doc 45 [8]. 

[68] Outline of Submissions on behalf of the Plaintiff – Court Doc 51 [25] and [26].

[69] The Consumer Credit Code was appended to the Consumer Credit (Queensland) Act 1994.

[70] [2012] NSWSC 1301.

[71] (2011) 80 NSWLR 739; [2011] NSWCA 417.

[72] (2011) 80 NSWLR 739; [2011] NSWCA 417.

[73] Although the requirements for a default notice in s 80(3) of the Consumer Credit (New South Wales) Code 1996 are different to those in to s 88 of the National Credit Code, but s 80(1) and (2) were in materially similar terms to s 88(1) and (2) of the National Credit Code. 

[74] [2010] NSWSC 574.

[75] [2010] NSWSC 574.

[76] Dale v Nichols Constructions Pty Ltd [2003] QDC 453, [92].

[77] (2006) 225 CLR 364; [2006] HCA 32

[78] Very little time was spent during the hearing addressing this issue.  In submissions, Counsel for the plaintiff only directed this court’s attention to the findings of Young JA at [37] and [38] of Monas v Perpetual Trustees Victoria Ltd (2011) 80 NSWLR 739; [2011] NSWCA 417.  The court was not taken to the reasons of Davies J in Bank of Queensland Ltd v Dutta [2010] NSWSC 574, nor were submissions made about whether the National Credit Code contained provisions equivalent to those discussed in Bank of Queensland Ltd v Dutta, particularly s 170 of the Consumer Credit (New South Wales) Code 1996.  The court’s attention was also not directed to Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32. 

[79] (2006) 225 CLR 364; [2006] HCA 32.

[80] McVeigh & Anor v Petterwood Group Pty Ltd, [1987] QSC 422.

[81] Affidavit of Angela Di Rago – Court Doc 47 [19] and Exhibit ADiR-1 p 85.

[82] Further Amended Defence – Court Doc 45 [2] and [3]. 

[83] T1-73/L1 – T1-74/L1.  See also Submissions Response on behalf of the Defendant (Plaintiff’s Application) – Court Doc 63 [19] – [22].  For the undisputed documents, see Second Affidavit of Michael Carl Lenicka – Court Doc 50 [7] and [9] and Exhibit MCL-2 pp 1 and 4.

[84] Further Amended Defence – Court Doc 45 [4], [7] and [10]. 

[85] Further Amended Defence – Court Doc 45 [4], [7] and [10]. 

[86] Further Amended Statement of Claim filed 23 May 2014 – Court Doc 15 [3]; Further Amended Defence – Court Doc 45 [1]; Affidavit of Angela Di Rago – Court Doc 47 [16] – [19] and Exhibit ADiR-1 pp 69 – 87; T1-70/L30 – T-71/L35.

[87] Affidavit of Angela Di Rago – Court Doc 47 [16] – [19] and Exhibit ADiR-1 pp 71 – 87.

[88] T1-70/L15 – T1-71/L1.

[89] T1-64/L31 – T1-66/L30 and T1-71/L17-46.  See also Outline of Submissions on behalf of the Defendant – Court Doc 54 pp 9 – 11.

[90] T1-84/L7 – T1-85/L19.

[91] Affidavit of Angela Di Rago – Court Doc 47 [16] and Exhibit ADiR-1 pp 69 – 70.

[92] Affidavit of Angela Di Rago – Court Doc 47 [18] and Exhibit ADiR-1 p 71.

[93] Affidavit of Angela Di Rago – Court Doc 47 [18] and Exhibit ADiR-1 p 71.

[94] Affidavit of Angela Di Rago – Court Doc 47 [18] and Exhibit ADiR-1 p 71.

[95] Affidavit of Angela Di Rago – Court Doc 47 [18] and Exhibit ADiR-1 p 73.

[96] Affidavit of Angela Di Rago – Court Doc 47 [18] and Exhibit ADiR-1 p 76.

[97] Affidavit of Angela Di Rago – Court Doc 47 [19] and Exhibit ADiR-1 p 79.

[98] Affidavit of Angela Di Rago – Court Doc 47 [19] and Exhibit ADiR-1 p 81.

[99] Affidavit of Angela Di Rago – Court Doc 47 [19] and Exhibit ADiR-1 p 82.

[100] Affidavit of Angela Di Rago – Court Doc 47 [19] and Exhibit ADiR-1 p 82.

[101] T1-69/L39 – T1-70/L28.

[102] Further Amended Defence – Court Doc 45 [6] and Amended Statement of Claim – Court Doc 15 [8A], [8B] and [8C].

[103] T1-59/L43 – T1-60/L3.

[104] Further Amended Defence – Court Doc 45 [6].

[105] Affidavit of Angela Di Rago – Court Doc 47 [25] – [27] and Exhibit ADiR-1 pp 100 - 103.

[106] Affidavit of Michele West – Court Doc 55 – 59 [35] and Exhibit MW-1 pp 144 – 182.

[107] T1-59/L24-28.

[108] See also oral submissions T1-57/L40 – T1-59/L30.

[109] Credit (Commonwealth Powers) Act 2010 (Qld), s 4.

[110] Credit (Commonwealth Powers) Act 2010 (Qld), s 8.

[111] The Consumer Credit Code was appended to the Consumer Credit (Queensland) Act 1994.

[112] The loan agreement between the plaintiff and defendant is a “carried over instrument” under s 4 of the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 and pursuant to item 3 of Schedule 1 of the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009, the National Credit Code applies to the loan agreement.

[113] Further Amended Defence – Court Doc 45 [12(1)] – [12(3)].

[114] Affidavit of Angela Di Rago – Court Doc 47 [18] – [19] and Exhibit ADiR-1 pp 71, 73, 74 and 79 – 82.

[115] Further Amended Defence – Court Doc 45 [12(4)].

[116] Further Amended Defence – Court Doc 45 [12(5)].

[117] Further Amended Defence – Court Doc 45 [12(6)].

[118] Affidavit of Angela Di Rago – Court Doc 47 [23] and Exhibit ADiR-1 p 99.

[119] Further Amended Defence – Court Doc 45 [12(7)].

[120] Affidavit of Angela Di Rago – Court Doc 47 [31] and Exhibit ADiR-1 pp 122 - 153.

[121] Further Amended Defence – Court Doc 45 [12(8)].

[122] pp 11 – 12.

[123] pp 14 – 17 [23].

[124] pp 17 – 18 [24].

[125] Further Amended Defence – Court Doc 45 [14], [15], [20], [22] and [15]. Submissions Response on behalf of the Defendant (Plaintiff’s Application) – Court Doc 63 [10] – [18].

[126] Further Amended Defence – Court Doc 45 [14], [15], [20], [22] and [15]. Submissions Response on behalf of the Defendant (Plaintiff’s Application) – Court Doc 63 [10] – [18].

[127] Barker v GE Mortgage Solutions Ltd [2013] QCA 137, [69] – [70].

[128] Further Amended Defence – Court Doc 45 [14(a)], [14(c)], [14(d)] and [14(e)].

[129] Further Amended Defence – Court Doc 45 [14(b].

[130] Affidavit of Michele West – Court Doc 55 – 59 [12], [40], [46], [53], [58] – [61] and [72].

[131] Affidavit of Michele West – Court Doc 55 – 59 [52] and Exhibit MW-1 pp 280 – 281.

[132] Submissions on behalf of the Defendant (Plaintiff’s Application).

[133] See the ASIC Historical Extract at Affidavit of Michele West – Court Doc 55 – 59 Exhibit MW-1 p 454.

[134] Outline of Submissions on behalf of the Plaintiff – Court Doc 51 pp 9 – 10 [45] – [48].

[135] Court Doc 55 – 59.

[136] In Barker v GE Mortgage Solutions Limited there was a disclosed contract schedule (see [44] and footnote 33) and other documents liking the broker and the appellant (see [47]).

[137] Court Doc 55 – 59 Exhibit MW-1 pp 283 - 284.

[138] Submissions on behalf of the Defendant (Plaintiff’s Application).

[139] Affidavit of Michael Carl Lenicka – Court Doc 46 [11] and Exhibit ADiR-1 pp 86 - 88.

[140] Outline of Submissions on behalf of the Plaintiff – Court Doc 51 pp 10 – 13 [49] - [56].

[141] Affidavit of Angela Di Rago – Court Doc 47 [23] and Exhibit ADiR-1 p 99.

[142] Affidavit of Angela Di Rago – Court Doc 47 [14] and Exhibit ADiR-1 pp 17 - 28.

[143] Affidavit of Angela Di Rago – Court Doc 47 [15] and Exhibit ADiR-1 pp 29 - 68.  This is accepted by the defendant – see Submissions Response on behalf of the Defendant (Plaintiff’s Application) – Court Doc 63 p 19 [32].

[144] Affidavit of Angela Di Rago – Court Doc 47 [16] and [17] and Exhibit ADiR-1 pp 69 - 70.

[145] Affidavit of Michele West – Court Doc 55 – 59 [13(e) and [105].

[146] Affidavit of Angela Di Rago – Court Doc 47 Exhibit ADiR-1 p 76.

[147] Outline of Submissions on behalf of the Plaintiff – Court Doc 51 pp 12 - 13 [54(b)(i) – (iii)], [54(d)] and [54(f)].

[148] See Submissions Response on behalf of the Defendant (Plaintiff’s Application) pp 19 - 24 [32] – [45].

[149] See Outline of Submissions on behalf of the Plaintiff – Court Doc 51 p 13 [54(f)].

[150] See Submissions Response on behalf of the Defendant (Plaintiff’s Application) p 25 [45(h)].

[151] Further Amended Defence – Court Doc 45 [16].

[152] Outline of Submissions on behalf of the Plaintiff – Court Doc 51 p 14 [57] - [59].

[153] Submissions Response on behalf of the Defendant (Plaintiff’s Application) – Court Doc 63 [10] – [15].

[154] Section 2 of the Australian Consumer Law; section 12BAA(7)(a) and section 12BAA(7)(k) of the Australian Securities and Investments Commission Act 2001.

[155] Further Affidavit of Michael Carl Lenicka – Court Doc 62 [4(a)].

[156] Further Affidavit of Michael Carl Lenicka – Court Doc 62 [4(b)].

Close

Editorial Notes

  • Published Case Name:

    Secure Funding Pty Ltd v West

  • Shortened Case Name:

    Secure Funding Pty Ltd v West

  • MNC:

    [2017] QDC 169

  • Court:

    QDC

  • Judge(s):

    Kefford DCJ

  • Date:

    23 Jun 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Agar v Hyde (2000) 201 CLR 552
1 citation
Jump To
Cite 1 - (2000) 201 CLR 552
Agar v Hyde [2000] HCA 41
1 citation
Jump To
Cite 1 - [2000] HCA 41
Australian Societies Group Financial Services (NSW) Ltd v Bogan (1989) ASC 55-938
1 citation
Jump To
Cite 1 - (1989) ASC 55-938
Bank of Queensland Ltd v Dutta [2010] NSWSC 574
5 citations
Jump To
Cite 1 - [2010] NSWSC 574
Cite 2 - [2010] NSWSC 574
Cite 3 - [2010] NSWSC 574
Cite 4 - [2010] NSWSC 574
Cite 5 - [2010] NSWSC 574
Barker v GE Mortgage Solutions Limited [2013] QCA 137
5 citations
Jump To
Cite 1 - [2013] QCA 137
Cite 2 - [2013] QCA 137
Cite 3 - [2013] QCA 137
Cite 4 - [2013] QCA 137
Cite 5 - [2013] QCA 137
Bernstrom v National Australia Bank Ltd[2003] 1 Qd R 469; [2002] QCA 231
4 citations
Jump To
Cite 1 - [2002] QCA 231
Cite 2 - [2002] QCA 231
Cite 3 - [2003] 1 Qd R 469
Cite 4 - [2003] 1 Qd R 469
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32
5 citations
Jump To
Cite 1 - [2006] HCA 32
Cite 2 - [2006] HCA 32
Cite 3 - [2006] HCA 32
Cite 4 - [2006] HCA 32
Cite 5 - [2006] HCA 32
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364
5 citations
Jump To
Cite 1 - (2006) 225 CLR 364
Cite 2 - (2006) 225 CLR 364
Cite 3 - (2006) 225 CLR 364
Cite 4 - (2006) 225 CLR 364
Cite 5 - (2006) 225 CLR 364
Connollys Lawyers Pty Ltd v Davis [2013] QCA 231
2 citations
Jump To
Cite 1 - [2013] QCA 231
Cite 2 - [2013] QCA 231
Dale v Nichols Constructions Pty Ltd [2003] QDC 453
3 citations
Jump To
Cite 1 - [2003] QDC 453
Cite 2 - [2003] QDC 453
Cite 3 - [2003] QDC 453
Deputy Commissioner of Taxation v Salcedo[2005] 2 Qd R 232; [2005] QCA 227
6 citations
Jump To
Cite 1 - [2005] QCA 227
Cite 2 - [2005] QCA 227
Cite 3 - [2005] QCA 227
Cite 4 - [2005] 2 Qd R 232
Cite 5 - [2005] 2 Qd R 232
Cite 6 - [2005] 2 Qd R 232
Dubois v Ong [2004] QCA 185
2 citations
Jump To
Cite 1 - [2004] QCA 185
Cite 2 - [2004] QCA 185
Haller v Ayre[2005] 2 Qd R 410; [2005] QCA 224
4 citations
Jump To
Cite 1 - [2005] QCA 224
Cite 2 - [2005] QCA 224
Cite 3 - [2005] 2 Qd R 410
Cite 4 - [2005] 2 Qd R 410
McVeigh v Petterwood Group Pty. Ltd. [1987] QSC 422
2 citations
Jump To
Cite 1 - [1987] QSC 422
Cite 2 - [1987] QSC 422
Monas v Perpetual Trustees Victoria Ltd (2011) 80 NSWLR 739
5 citations
Jump To
Cite 1 - (2011) 80 NSWLR 739
Cite 2 - (2011) 80 NSWLR 739
Cite 3 - (2011) 80 NSWLR 739
Cite 4 - (2011) 80 NSWLR 739
Cite 5 - (2011) 80 NSWLR 739
Monas v Perpetual Trustees Victoria Ltd [2011] NSWCA 417
5 citations
Jump To
Cite 1 - [2011] NSWCA 417
Cite 2 - [2011] NSWCA 417
Cite 3 - [2011] NSWCA 417
Cite 4 - [2011] NSWCA 417
Cite 5 - [2011] NSWCA 417
Nibar Investments Pty Ltd v Wallace [2012] NSWSC 1301
3 citations
Jump To
Cite 1 - [2012] NSWSC 1301
Cite 2 - [2012] NSWSC 1301
Cite 3 - [2012] NSWSC 1301
Queensland Pork Pty Ltd v Lott [2003] QCA 271
2 citations
Jump To
Cite 1 - [2003] QCA 271
Cite 2 - [2003] QCA 271
Rich v CGU Insurance Ltd [2005] HCA 16
1 citation
Jump To
Cite 1 - [2005] HCA 16
Rich v CGU Insurance Ltd (2005) 214 ALR 370
1 citation
Jump To
Cite 1 - (2005) 214 ALR 370
Rich v CGU Insurance Ltd (2005) 79 A.LJ.R. 856
1 citation
Jump To
Cite 1 - (2005) 79 A.LJ.R. 856
Secure Funding Pty Ltd v Moon [2012] QSC 244
1 citation
Jump To
Cite 1 - [2012] QSC 244
West v AGC (1986) 5 NSWLR 610
1 citation
Jump To
Cite 1 - (1986) 5 NSWLR 610

Cases Citing

Case NameFull CitationFrequency
Secure Funding Pty Ltd v West [2019] QDC 971 citation
1

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