BOSSELL v COMPUR PTY LTD [1991] NSWCA 25

BOSSELL v COMPUR PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and CLARKE JJA 31 July 1991, 6 November 1991

[1991] NSWCA 25

LOAN — ESTOPPEL — APPEAL CREDIBILITY OF WITNESSES MONEYLENDING ACT 1941, s22 and s30A | MONEYLENDER — DISCRETIONARY RELIEF Estoppel — Appeal — Credibility of witnesses Moneylending Act 1941, s22 and s30A — Moneylender Discretionary relief.

Mahoney JA I agree with the judgment of Clarke JA and in general with his Honour's reasons.

I would reserve for further consideration the question whether the advances which Compur Pty Limited made to Mr Bossell fell within s22 of the Moneylending Act 1941. However, it is not necessary to express any opinion upon that question. I agree with Clarke JA that, if the advances fell within s22 of the Act, it was open to the learned judge and is open to this Court, under s30A, to give judgment for the company in the present form. Upon the facts found by the learned judge and in accordance with his approach to what occurred, the proper conclusion is that the company, in the transaction, acted honestly and ought fairly to be excused from any non-compliance with the Act. I agree with the orders proposed by Clarke JA.

Priestley JA Subject to the reservation made by Mahoney JA I agree generally with the reasons of Clarke JA. I agree also with the observations of Mahoney JA. I agree with the orders proposed by Clarke JA.

Clarke JA In the early 1970s Mr Tamplin Lynam was a partner in the firm of chartered accountants known as Ure Lynam and Company. The appellant, whom I shall hereafter call "Bossell" was a director and shareholder in Dredgeworks Pty Ltd ("Dredgeworks") and both he and Dredgeworks were clients of Ure Lynam. The shareholders of Dredgeworks were Bossell, Lynam and the respondent ("Compur") which was a company in which Lynam had a substantial interest.