New South Wales Supreme Court CITATION : DaimlerChrysler Services Australia P/L v Berckelman & Anor [2004] NSWSC 447 HEARING DATE(S) : 19 May 2004 JUDGMENT DATE : 27 May 2004 JURISDICTION: Common Law - Administrative Law List JUDGMENT OF : Master Harrison DECISION : (1) The decision of R Connolly dated 29 August 2003 is affirmed; (2) The appeal is dismissed; (3) The amended summons is dismissed; (4) The plaintiff is to pay the respondent's costs as agreed or assessed. CATCHWORDS : Appeal decision of CTTT - contract - Consumer Credit Code - jursidiction Consumer Credit Code - s 11 LEGISLATION CITED : Consumer Trader and Tenancy Act 2001 (NSW) - s 67 Supreme Court Rules 1970 (NSW) Jackamarra v Krakouer (1998) 195 CLR 516, (1998) 153 ALR 276 CASES CITED : Pace v Read (2000) 179 ALR, [2000] NSWSC 823 Park Avenue Nominees Pty Ltd ACN 010-286-674 v Karen Boon (on behalf of Thomas Weir Snr) & Anor [2001] NSWSC 700 DaimlerChrysler Services Australia Pty Limited (Applicant) PARTIES : Peter Berckelman (First Respondent) Consumer Trader & Tenancy Tribunal (Second Respondent) FILE NUMBER(S) : SC 30090/2003 Mr A Radojev (Applicant) COUNSEL : Ms R Francois (First Respondent) Ms P Humphreys, Humphreys & Feather (Applicant) SOLICITORS : Mr P Beckelman (First Respondent) Submitting Appearance (Second Respondent) LOWER COURT CTTT JURISDICTION : LOWER COURT COM 03/14345 FILE NUMBER(S) : LOWER COURT Tribunal Member R Connolly JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST MASTER HARRISON THURSDAY, 27 MAY 2004 30090/2003 - DAIMLERCHRYSLER SERVICES AUSTRALIA PTY LIMITED v PETER BERCKELMAN & ANOR JUDGMENT (Appeal decision of CTTT - contract - Consumer Credit Code - jurisdiction) 1 MASTER: By amended summons filed 4 March 2004 the plaintiff seeks firstly, an order that the order of R Connolly, Tribunal Member made on 29 August 2003, determining that the Consumer Credit Code (the Code) applies to a contract entered into by the parties, be set aside; secondly, a declaration that the Code does not apply to a contract between the parties entered into on 1 August 2001; and thirdly, an order dismissing the defendant's application filed in the Consumer Trader and Tenancy Tribunal (CTTT) on 26 March 2003. The applicant is DaimlerChrysler Services Australia Pty Limited (Daimler). The applicant relied on the affidavits of Pamela Humphreys sworn 26 November 2003 and 24 February 2004 and the affidavit of Luke Eisenhauer sworn 18 May 2004. The first respondent is Peter Berckelman. The second respondent is the CTTT and has filed a submitting appearance. Mr Berckelman was the applicant in the CTTT but is the respondent in this Court. It follows that DaimlerChrysler was the respondent in the CTTT and is the applicant in this Court. For convenience in this judgment I shall refer to DaimlerChrysler as the applicant and Mr Berckelman as the respondent. Grounds of appeal 2 The plaintiff appeals part of the decision and the whole of the orders of the Tribunal dated 29 August 2003 pursuant to s67 of the Consumer Trader and Tenancy Act 2001 (NSW) (the Act). The grounds of appeal are firstly, that the Tribunal Member misconstrued the test to be applied pursuant to s11(3) of the Code; secondly, that the learned Member failed to apply the correct test as set out in s11(3) of the Code, namely, what evidence was there of the plaintiff credit provider's knowledge, actual or imputed, that the credit was to be used for a purpose other than that stated by the defendant, and would that evidence be sufficient, in the circumstances of the case, including matters such as the defendant's apparent capacity, to displace the declaration as to the stated purpose; thirdly, that in purporting to apply the test under s11(3) the Member erred in giving no weight to the declaration of purpose made by the defendant pursuant to s11(2) of the Code; fourthly, that the learned Member's finding that the defendant's declaration of business purpose was ineffective pursuant to s11(3) of the Code was against the evidence and the weight of the evidence; and fifthly, that the learned Member misconstrued the test to be applied pursuant to s11(2) of the Code, in that the Member held that s11(2) altered the common law of contract so that, for the purpose of s11(2), the act of the defendant signing a contract document constituted the formation of the contract. 3 Section 67 of the Act allows for an appeal to be made to this court on a question of law. An appeal may only be made with the leave of the court. A reference to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal. The onus lies on the plaintiff to demonstrate that there has been an error of law. Section 67(3) of the Act provides that after deciding the question of the subject of an appeal, the court may, unless it affirms the decision of the Tribunal on the question that should have been made, remit its decision on the question to the Tribunal and order a rehearing of the proceedings before the Tribunal. Extension of time to file the appeal 4 By notice of motion filed 26 November 2003, the plaintiff seeks that it be granted leave to file this appeal out of time. The CTTT's decision was made on 29 August 2003. The summons was filed on 9 October 2003. It was filed about 10 days late. The plaintiff's solicitor deposed that the plaintiff has its office in Melbourne. The explanation for delay is that counsel was late in giving advice and an attempt was made to file the appeal in the registry on 3 October 2003 but the document was rejected. 5 Prima facie a party is required to adhere to the time limits prescribed by the Supreme Court Rules 1970 (NSW). However, where there is a power to extend such time and there is good reason in the interests of justice to do so, the time limits may be extended. It is for the party seeking the extension to persuade the Court that it is in the interests of justice that it should be granted. Such persuasion will usually depend on the provision of an acceptable or satisfactory explanation as to why the time limits were not complied with (Jackamarra v Krakouer (1998) 195 CLR 516; (1998) 153 ALR 276 at 294 per Kirby J). See also the authorities collected in Pace v Read (2000) 179 ALR 437; [2000] NSWSC 823. 6 I accept the plaintiff's solicitor's explanation concerning delay. It is my view that in the interests of justice an extension of the period for filing of the appeal should be granted. Background 7 On or about 27 July 2001 the respondent purchased a Mercedes Benz motor vehicle from Sanderson Motors Pty Ltd in Sydney (Sanderson). The applicant financed the purchase of the vehicle. 8 In March 2003 the respondent sought a payout figure in respect of the contract from the applicant. In the course of communications with the applicant the respondent became aware that the contract was not made pursuant to the Code. The payout figure advised to the respondent was not calculated in accordance with the Code. The respondent instituted proceedings in the CTTT and claimed that the contract was one to which the Code applies. The Tribunal proceedings 9 Section 11 of the Code stipulates that the Code is presumed to apply unless the presumption is rebutted. The Tribunal Member stated that it was up to the party asserting that the Code did not apply to rebut this presumption. The respondent deposed that the document entitled "Declaration of Purpose for which Credit is Provided" (the declaration) had not been signed by him. 10 Section 11 of the Code provides: "Presumptions relating to application of Code (1) In any proceedings (whether brought under this Code or not) in which a party claims that a credit contract, mortgage or guarantee is one to which this Code applies, it is presumed to be such unless the contrary is established. (2) Credit is presumed conclusively for the purposes of this Code not to be provided wholly or predominantly for personal, domestic or household purposes if the debtor declares, before entering into the credit contract, that the credit is to be applied wholly or predominantly for business or investment purposes (or for both purposes). (3) However, such a declaration is ineffective for the purposes of this section if the credit provider (or any other relevant person who obtained the declaration from the debtor) knew, or had reason to believe, at the time the declaration was made that the credit was in fact to be applied wholly or predominantly for personal, domestic or household purposes. (4) A declaration under this section is to be substantially in the form (if any) required by the regulations and is ineffective for the purposes of this section if it is not." 11 Before the Tribunal Member the respondent made the following submissions: "a) He did not sign the document in question; he had told a 'relevant person' being an employee of Sanderson, within the meaning of S11(3) of the Code, that he would not sign the document; a relevant person had agreed he need not sign the document; the signature on the document was not his and was a forgery; or b) He may have signed the document inadvertently by mistake and the provisions of Section 11 (3) of the Code when read with the knowledge (actual or implied) of the 'relevant person', made the declaration ineffective, thus returning the contract to the provisions of the Code; and/or c) The declaration if signed, had been signed after he had entered into the credit contract and consequently the provisions of Section 11(2) of the Code, in spite of any signed declaration, were not available to the respondent credit provider." 12 The Tribunal Member rejected the respondent's evidence that his signature on the declaration was a forgery. This finding is not subject to challenge. Submission (a) failed. 13 The plaintiff submitted that once the Tribunal Member made a finding under (a) he had no option but to reject submissions (b) and (c). Further, the plaintiff submitted that there was no evidence upon which the Tribunal Member could have found that the subject of the contract was to be applied wholly or predominantly for personal, domestic or household purposes. The defendant submitted that he was entitled to raise different submissions based on s 11(2) and (3) of the Code and that there was evidence to support findings in relation to actual and constructive knowledge in accordance with s 11(3) of the Code. 14 The Tribunal Member then dealt with submission (b) raised by the respondent and continued [at para 19, page 5]: "19. … Where there is conflict in the evidence of what the applicant says is the predominant purpose for the use of the credit, and what the employees of Sanderson say (if anything) about the predominant purpose, the evidence of the applicant is still preferred in spite of this Tribunal's misgivings about his credibility in respect of some of his evidence. 20. Mr Berckelman says he did not notice the word 'Business' on the application for hire purchase (annexure 1) to his Statutory Declaration. Perhaps an argument can be advanced that a banker and now a non-practicing solicitor as he is, should have been more careful with what he signed. It is agreed by both parties that Mr Berckleman's forte is interest rates, and certainly he was at pains to correct any errors (as he saw them) in respect of interest rates on any documents put before him to sign." 21. The test of predominant purpose is an objective test as held in Park Avenue Nominees Pty Ltd ACN 010-286-674 v Karen Boon (on behalf of Thomas Weir Snr) & Anor [2001] NSWSC 700. The court held the actual use could be taken into account in determining the predominant purpose. In this case Mr Berckelman says the predominant purpose was Private as opposed to Business use. The tax records produced under summons support that proposition. The vehicle was registered as 'P-PRIV Use" in 7/2001 and on Mr Berckleman's uncontroverted evidence remains so registered today. 22. The evidence led on behalf of the respondent at the very highest goes to not having any discussions with Mr Berckelman about any purpose predominant or otherwise, or indeed private, domestic, household or business and/or investment. 23. In all the circumstances the Tribunal is satisfied that a reasonable person making an objective determination in respect of the use of this contract would conclude that the credit the subject of the contract was in fact to be applied wholly or predominantly for personal, domestic or household purposes." 15 The Tribunal member stated that the declaration is ineffective, if the credit provider knew or had reason to believe that at the time the declaration was made, the credit was in fact to be applied wholly or predominantly for a personal purpose. The credit provider's knowledge can be actual or implied. In Park Nominees, the relevant test is, on an objective basis, what would a reasonable person in the shoes of the credit provider have understood was the predominant purpose for which credit was provided. The actual purpose is one which was known by the credit provider at the time the declaration was made. On 25 July 2001 the declaration was signed by the respondent. There must have been some communication between the plaintiff and respondent as to the use of the motor vehicle around the time of signing the credit declaration because a certificate of registration in the respondent's name was made on 31 July 2001 by Sandersons. The certificate of registration nominated the use as private (see attachment H to Statutory declaration of respondent). 16 The decision that the Tribunal Member made, namely "a reasonable person making an objective determination in respect of the use of this contract would conclude that the credit the subject of the contract was in fact to be applied wholly or predominantly for personal, domestic or household purposes" was in the circumstances open to the Tribunal Member. There is no error of law. 17 In relation to the third submission made by the respondent, the Tribunal Member stated that in light of his decision in relation to submission (b) he did not have to decide submission (c). However the Tribunal Member found that submission persuasive. Submission (c) did not form the basis of the Tribunal Member's decision. The decision of R Connolly dated 29 August 2003 is affirmed. The appeal is dismissed. The amended summons is dismissed. 18 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the respondent's costs as agreed or assessed. 19 The court orders: (1) The decision of R Connolly dated 29 August 2003 is affirmed. (2) The appeal is dismissed. (3) The amended summons is dismissed. (4) The plaintiff is to pay the respondent's costs as agreed or assessed. ********** Last Modified: 05/27/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.