Palgo Holdings Pty Ltd v Gowans [2005] HCA 28

HIGH COURT OF AUSTRALIA

McHUGH, GUMMOW, KIRBY, HAYNE AND HEYDON JJ

PALGO HOLDINGS PTY LTD APPELLANT

AND

KELVIN GOWANS, A PUBLIC OFFICER ON

BEHALF OF THE DIRECTOR GENERAL OF

DEPARTMENT OF FAIR TRADING RESPONDENT

Palgo Holdings Pty Ltd v Gowans [2005] HCA 28

25 May 2005

S317/2004

ORDER

1. Appeal allowed with costs.

2. Set aside paragraphs 3 and 4 of the orders of the Court of Appeal of the Supreme Court of New South Wales made on 25 July 2003, and in their place order:

(a) the appeal to the Court of Appeal is allowed with costs;

(b) the order of Sperling J made on 30 September 2002 is set aside and, in its place, order:

(i) the appeal against conviction and sentence is allowed with costs; and

(ii) the appellant's conviction and sentence by the Local Court of New South Wales at Lismore on 18 December 2001 is quashed.

On appeal from the Supreme Court of New South Wales

Representation:

L J W Aitken for the appellant (instructed by Hewlett & Company Lawyers)

M G Sexton SC, Solicitor-General for the State of New South Wales with R A Greenaway for the respondent (instructed by D I Catt, Solicitor on behalf of the Office of Fair Trading)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Palgo Holdings Pty Ltd v Gowans

Statutes – Construction – Pawnbrokers and Second-hand Dealers Act 1996 (NSW) – Lender charged with carrying on the business of lending money on the security of pawned goods whilst not being the holder of a licence – Lender made short-term secured loans – Loan documents recorded that title in goods passed to lender – Chattel mortgage security – Goods usually kept by the lender for term of loan – Characterisation of transaction – Whether chattel mortgage was a bill of sale under Bills of Sale Act 1898 (NSW) – Whether the lender's business was the "business of lending money on the security of pawned goods" – Meaning of "pawned goods" in the Pawnbrokers and Second-hand Dealers Act 1996 (NSW).