Secure Funding Pty Ltd v Stark;; Secure Funding Pty Ltd v Conway [2015] NSWSC 223

Secure Funding Pty Ltd v Stark;; Secure Funding Pty Ltd v Conway [2015] NSWSC 223

The appeals were dismissed because Secure Funding did not establish error in Harrison AsJ's discretionary decision to set aside the default judgments. It was reasonably arguable that s 12GM of the ASIC Act could be invoked by the defendants as persons who suffered loss or damage from alleged unconscionable conduct against Staway, notwithstanding that they were not the direct recipients of the financial services. Monroe Topple did not govern the issue because it concerned whether there was a contravention, not who could seek remedial relief. It was also plainly arguable that the statutory remedy could be relied upon by way of defence rather than only by cross-claim or set-off. Harrison AsJ...

Jurisdiction
Australia
Judgment Date
17 March 2015
Procedural Posture
Appeals From a Decision of an Associate Judge Setting Aside Default Judgments; Applications for Leave to Amend Defences / Appeals Under Uniform Civil Procedure Rules 2005 (nsw) R 49.4 and Applications for Leave to Amend Defences Determined by the Supreme Court of New South Wales
Outcome
Appeals dismissed; leave to amend the defences granted as sought.
Legal Topics
['appeal From Associate Judge' 'default Judgment Set Aside' 'exercise of Discretion' 'unconscionable Conduct' 'asic Act Remedies' 'availability of Statutory Relief by Defence' 'leave to Amend Pleadings']
['civil Procedure' 'consumer Protection' 'financial Services' 'mortgages and Possession of Land'] ['appeal From Associate Judge' 'default Judgment Set Aside' 'exercise of Discretion' 'unconscionable Conduct' 'asic Act Remedies' 'availability of Statutory Relief by Defence' 'leave to Amend Pleadings']

Case Brief

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Procedural Posture

Appeals From a Decision of an Associate Judge Setting Aside Default Judgments; Applications for Leave to Amend Defences / Appeals Under Uniform Civil Procedure Rules 2005 (nsw) R 49.4 and Applications for Leave to Amend Defences Determined by the Supreme Court of New South Wales

Legal Issues

  1. 1 ['Whether Harrison AsJ erred in concluding that the defendants had bona fide, arguable defences based on ss 12CB and 12GM of the Australian Securities and Investments Commission Act 2001 (Cth).' 'Whether s 12GM of the Australian Securities and Investments Commission Act 2001 (Cth) is arguably available to a person other than the recipient of the financial services in connection with which unconscionable conduct is alleged.' 'Whether Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia [2002] FCAFC 197; 122 FCR 110 required rejection of the proposed defences.' 'Whether the statutory remedy under s 12GM could be invoked by way of defence to claims for possession of land rather than only by cross-claim or set-off.' 'Whether the procedural history, including prior concessions that no defence was available, required refusal to set aside the default judgments.' 'Whether leave should be granted to amend the defences.']

Ratio Decidendi

The appeals were dismissed because Secure Funding did not establish error in Harrison AsJ's discretionary decision to set aside the default judgments. It was reasonably arguable that s 12GM of the ASIC Act could be invoked by the defendants as persons who suffered loss or damage from alleged unconscionable conduct against Staway, notwithstanding that they were not the direct recipients of the financial services. Monroe Topple did not govern the issue because it concerned whether there was a contravention, not who could seek remedial relief. It was also plainly arguable that the statutory remedy could be relied upon by way of defence rather than only by cross-claim or set-off. Harrison AsJ...

Court Disposition

Appeals dismissed; leave to amend the defences granted as sought.

Orders

  • ['That the appeals from the decision of Harrison AsJ be dismissed.' 'That leave to amend the defences be granted as sought.']