Wade v J Daniels and Associates Pty Ltd [2020] FCA 1708

Federal Court of Australia

Wade v J Daniels and Associates Pty Ltd [2020] FCA 1708 File number(s): VID 153 of 2019

Judgment of: O'BRYAN J

Date of judgment: 27 November 2020

Catchwords: CONSUMER LAW – services supplied to a consumer facing foreclosure on a home loan mortgage – alleged breach of contract and failure to comply with consumer guarantees – alleged misleading and deceptive conduct – alleged unconscionable conduct – nature and scope of services supplied – where the consumer disclosed to the supplier that the purpose of seeking services was to retain her home – whether supplier agreed or represented that its services would provide consumer with a long term solution that would enable the consumer to retain her home – whether supplier agreed or represented that supplier would procure a refinance of the consumer's home loan – whether supplier knew that consumer would be unable to maintain loan repayments and that the supplier's services would not prevent the bank from taking possession of the consumer's home – whether the removal of a credit impairment from the consumer's credit file provided any benefit to the consumer in retaining her home PRACTICE AND PROCEDURE – application to re-open case after judgment reserved – applicable principles – application refused STATUTORY INTERPRETATION – meaning of the phrase "financial services" in s 12BAB of the Australian Securities and Investments Commission Act 2001 (Cth) – whether a service involving negotiations with a bank to defer recovery action and to agree temporary reductions in repayments is a financial service

Legislation: Australian Securities and Investments Commission Act 2001 (Cth) ss 12AB, 12BAA, 12BAB, 12CB, 12DA, 12ED Competition and Consumer Act 2010 (Cth) ss 84(2), 130A, 131A, 137B, 139B(2) Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) ss 2, 18, 21, 22, 60, 61, 236, 267(3), 268, 275 Evidence Act 1995 (Cth) s 128 Federal Court of Australia Act 1976 (Cth) ss 37M, 43, 51A(1)(a), 52 Wrongs Act 1958 (Vic) Federal Court Rules 2011 (Cth) r 39.06