Australian Finance Direct Limited v Director of Consumer Affairs Victoria [2007] HCA 57

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE AND CRENNAN JJ

AUSTRALIAN FINANCE DIRECT LIMITED APPELLANT

AND

DIRECTOR OF CONSUMER AFFAIRS VICTORIA RESPONDENT

Australian Finance Direct Limited v Director of Consumer Affairs Victoria

[2007] HCA 57

12 December 2007

M53/2007

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of Victoria

Representation

A C Archibald QC with P W Lithgow for the appellant (instructed by Dibbs Abbott Stillman)

D J O'Callaghan SC with J A Redwood for the respondent (instructed by Director of Consumer Affairs Victoria)

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

CATCHWORDS

Australian Finance Direct Limited v Director of Consumer Affairs Victoria

Consumer credit – Precontractual disclosure – Contracts regulated by the Consumer Credit (Victoria) Code ("the Code") – Loans to consumers for payment of seminar fees – "Holdback" arrangement between the credit provider and seminar suppliers by which the credit provider retained for itself a portion of the moneys advanced – Whether, for the purposes of s 15(B)(a)(ii) of the Code, the holdbacks were part of "the amount of credit" and "amounts payable", and whether the credit provider was one of the "persons, bodies or agents (including the credit provider)" to whom the amount of credit was to be paid – Relevance of the legislative purpose of providing information to debtors – Relevance of "truth in lending" considerations.

Statutes – Interpretation – Purposive interpretation – Ascertaining legislative purpose.

Words and phrases – "amount of credit", "holdback", "precontractual disclosure", "truth in lending".

Consumer Credit (Victoria) Code (Vic), s 15.

1. GLEESON CJ, GUMMOW, HAYNE AND CRENNAN JJ. The appellant, Australian Finance Direct Limited ("AFD"), is a credit provider within the meaning of the Consumer Credit (Victoria) Code (Vic) ("the Code"). Following proceedings in the Victorian Civil and Administrative Tribunal[1], and an appeal to a single judge (Kaye J) of the Supreme Court of Victoria[2], there was a further appeal to the Court of Appeal of the Supreme Court of Victoria. The Court of Appeal, by majority (Ashley and Neave JJA, Maxwell P dissenting), held that a form of credit contract used by AFD in certain transactions contravened the disclosure requirements in s 15(B) of the Code[3]. In an appeal, by special leave, to this Court, AFD challenges that conclusion.