Motel Marine Pty Ltd v IAC (Finance) Pty Ltd [1964] HCA 7

High Court of Australia Dixon C.J. Kitto, Taylor, Menzies and Owen JJ. Motel Marine Pty Ltd v IAC (Finance) Pty Ltd [1964] HCA 7

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Feb. 25 Dixon C.J.

This is an appeal from a judgment of Burbury C.J. by which his Honour gave judgment for a defendant in an action. The action was brought by an incorporated company called Motel Marine Pty. Ltd. which had borrowed money from the defendant, I.A.C. (Finance) Pty. Ltd. The loan was of the sum of £25,000 at ten per cent per annum interest. The loan was made on the security of a first mortgage of land situated in Moonah. The defendant respondent is registered as a money-lender under Pt III of the Lending of Money Act 1915 (vol. 3, p. 520 of the Tasmanian Statutes 1826-1959 Reprint). The money was lent on 9th June 1960 to the plaintiff by the defendant. The plaintiff on 18th July 1962 issued a writ of summons and subsequently filed a statement of claim joining I.A.C. (Finance) Pty. Ltd. as the first defendant and Motel Panorama Pty. Ltd. as co-defendant. The purpose of the suit was to obtain declarations showing that the securities given for the loan were ineffectual and to restrain any remedy against the plaintiff in respect of the loan. The plaintiff had received the money lent and did not offer to repay it. The basis of the suit was that s. 13 which forms part of Pt III had not been complied with. It is, I think, necessary to set out s. 13 in full.

12.

(1) No contract for the repayment by a borrower of money lent to him, or to any agent on his behalf, by a money-lender after the commencement of this section, or for the payment of interest on money so lent, and no security given by the borrower or any such agent to any money-lender in respect of any such contract or loan, shall be enforceable unless— (a) a note or memorandum in writing of the contract is made and signed personally by the borrower; and (b) a copy thereof is delivered to or sent by prepaid registered letter through the post addressed to the borrower within seven days of the making of the contract, and no such contract or security shall be enforceable if it is proved that the note or memorandum required by this section was not signed by the borrower before the money was lent or before the security was given, as the case may be.