Penhall-Jones v Stiftung Ausbildungsfonds Jung'She Psychologie [2004] NSWSC 789

New South Wales Supreme Court

CITATION : Penhall-Jones v Stiftung Ausbildungsfonds Jung'She Psychologie [2004] NSWSC 789 HEARING DATE(S) : 23/08/04, 24/08/04 JUDGMENT DATE : 24 August 2004

JUDGMENT OF : Hoeben J at 1 DECISION : Plaintiff's summons dismissed.

Local Courts (Civil Claims) Act 1970 LEGISLATION CITED : Contracts Review Act 1980 Industrial Arbitration Act (NSW) 1980 PARTIES : Margaret Penahll-Jones - Plaintiff Stiftung Ausbildungsfonds Jung'She Psychologie - Defendant FILE NUMBER(S) : SC 12223/03 COUNSEL : Plaintiff in person Mr B Burke - defendant SOLICITORS : Plaintiff in person Schweizer Kobras - defendant

LOWER COURT Local Court JURISDICTION : LOWER COURT 10373/1999 FILE NUMBER(S) : LOWER COURT Lulham LCM JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOEBEN J

Tuesday, 24 August, 2004

12223/03 – Margaret PENHALL-JONES v STIFTUNG AUSBILDUNGSFONDS JUNG'SCHE PSYCHOLOGIE

JUDGMENT – on summons seeking to set aside decision of Magistrate Lulham entered 4 August 2003; see p124. 1 HIS HONOUR: This is an appeal by the plaintiff from the decision of Mr Lulham, Local Court magistrate, hereafter called "the magistrate", brought under s 69 of the Local Courts (Civil Claims) Act 1970. 2 Section 69 restricts the appeal to point of law only and where there is an issue of mixed fact and law, that can only be dealt with on the appeal with leave. 3 Apart from the plaintiff's motion and affidavits in support, I have before me the exhibits tendered in the court below and a transcript of the proceedings of 28 and 29 May 2003 before the magistrate. With the advantage of that material it seems to me that the magistrate's summary of facts and the background to the dispute is accurate and appropriate and I incorporate into this judgment paragraphs 3 - 9 of the magistrate's judgment, except that the position of the plaintiff and the defendant in those proceedings has been reversed in the proceedings before me. 4 On 4 August 2003 the magistrate entered judgment in favour of the defendant in the sum of $14,284.24 plus interest, such interest to run from 14 September 1999. The magistrate reached this decision by the following stages of reasoning: i) Swiss law applied to the contract of loan and governed the proceedings before him; ii) In relation to the plaintiff's claim there was no difference between Swiss law and the law of New South Wales; iii) To the extent that the defendant wanted to rely upon the Contracts Review Act (CRA) and the Swiss Credit Code (SCC) in her defence, she carried the onus of proving as a fact the provisions of the Swiss Credit Code and that the Contracts Review Act had its equivalent under Swiss law; iv) The defendant had agreed with the plaintiff to repay loans from the end of June 1995 with the first payment to be made on 1 December 95; v) The defendant could not rely upon the Contracts Review Act or the provisions of the Swiss Credit Code because she had failed to prove as a question of fact that these provisions formed part of Swiss law; vi) Even if the Contracts Review Act could be relied upon by the defendant she had not brought herself within that act because it had not been established that the loan agreements were unfair - on the contrary, the magistrate thought that the terms were generous. In addition, the defendant had not established that when the loan contracts were entered into she had been affected by undue influence, unfair pressure or unfair tactics; vii) The defendant's cross-claim failed because the duty claimed did not exist and, even if it did, it was impossible of fulfilment.