Devon v Ji [2016] FCA 797

Devon v Ji [2016] FCA 797

The applicant had no real, as distinct from fanciful, prospect of success against the twenty-seventh respondent. The earlier decision rejected a triable issue that the first loan was subject to the National Credit Code and bound the applicant, so s 13 did not assist him. Any claim that the second loan was tainted or impugned by the first loan because the transactions were related was bad in law. The unconscionable conduct allegations were not pleaded clearly and were unsupported by factual material. The alleged sham or avoidance structure was misconceived because there was no evidence of a common intention that the second loan documents not create the legal relations they recorded.

Jurisdiction
Australia
Judgment Date
11 July 2016
Procedural Posture
Application for Summary Judgment in a Commercial Loan and Credit Proceeding / Application by the Twenty Seventh Respondent Pursuant to S 31 A(2) of the Federal Court of Australia Act 1976 (cth) And/or R 26.01(1) of the Federal Court Rules 2011 (cth)
Outcome
Summary judgment entered for the twenty-seventh respondent against the applicant.
Legal Topics
['summary Judgment' 'no Reasonable Prospect of Success' 'national Credit Code' 'unconscionable Conduct' 'misleading and Deceptive Conduct' 'sham Allegation' 'loan Security']
['practice and Procedure' 'consumer Credit' 'commercial and Corporations'] ['summary Judgment' 'no Reasonable Prospect of Success' 'national Credit Code' 'unconscionable Conduct' 'misleading and Deceptive Conduct' 'sham Allegation' 'loan Security']

Case Brief

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Procedural Posture

Application for Summary Judgment in a Commercial Loan and Credit Proceeding / Application by the Twenty Seventh Respondent Pursuant to S 31 A(2) of the Federal Court of Australia Act 1976 (cth) And/or R 26.01(1) of the Federal Court Rules 2011 (cth)

Legal Issues

  1. 1 ['Whether the applicant had a reasonable prospect of prosecuting claims against the twenty-seventh respondent.' 'Whether the National Credit Code applied to the first loan transaction or assisted the applicant by reason of s 13(1).' 'Whether the second loan transaction was voidable, tainted or impugned because it was linked to the first loan transaction.' 'Whether the allegation that the twenty-seventh respondent engaged in unconscionable conduct had a factual foundation raising a triable issue.' 'Whether the allegation that the second loan was structured as a corporate loan to avoid the National Credit Code raised a viable sham or unconscionable conduct claim.']

Ratio Decidendi

The applicant had no real, as distinct from fanciful, prospect of success against the twenty-seventh respondent. The earlier decision rejected a triable issue that the first loan was subject to the National Credit Code and bound the applicant, so s 13 did not assist him. Any claim that the second loan was tainted or impugned by the first loan because the transactions were related was bad in law. The unconscionable conduct allegations were not pleaded clearly and were unsupported by factual material. The alleged sham or avoidance structure was misconceived because there was no evidence of a common intention that the second loan documents not create the legal relations they recorded.

Court Disposition

Summary judgment entered for the twenty-seventh respondent against the applicant.

Orders

  • ['Judgment be entered for the twenty-seventh respondent against the applicant pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).' "The applicant pay the twenty-seventh respondent's costs of the proceeding." 'The matter be listed for hearing on a date to be fixed on the question of whether the...