Devon v Thirteenth Kaysan Pty Ltd [2016] FCA 1026

Devon v Thirteenth Kaysan Pty Ltd [2016] FCA 1026

Leave to appeal was refused because the trial judge's summary dismissal was not attended by sufficient doubt: the Code did not apply because the loans were made to a company or companies and the mortgage was security rather than a credit contract; there was no evidence to support a sham allegation or lifting the corporate veil; and the unconscionable conduct and misleading or deceptive conduct allegations were generalised, unsupported, and disclosed no triable issue in fact or law.

Jurisdiction
Australia
Judgment Date
19 August 2016
Procedural Posture
Application for Leave to Appeal / Leave to Appeal From Summary Judgment
Outcome
The application for leave to appeal is dismissed with costs.
Legal Topics
['summary Judgment' 'leave to Appeal' 'national Credit Code' 'unconscionable Conduct' 'misleading and Deceptive Conduct' 'sham Transaction' 'mortgage Security' 'corporate Veil']
['practice and Procedure' 'consumer Credit' 'commercial and Corporations' 'commercial Contracts, Banking, Finance and Insurance'] ['summary Judgment' 'leave to Appeal' 'national Credit Code' 'unconscionable Conduct' 'misleading and Deceptive Conduct' 'sham Transaction' 'mortgage Security' 'corporate Veil']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Leave to Appeal From Summary Judgment

Legal Issues

  1. 1 ['Whether the decision of the trial judge was attended by sufficient doubt to warrant the grant of leave to appeal.' 'Whether the National Credit Code applied to two loans advanced to a company or companies controlled by the applicant and guaranteed by him with mortgage security over his property.' 'Whether the mortgage was a separate credit contract subject to the National Credit Code.' 'Whether there was evidence supporting an allegation that the company loan structure was a sham or warranted lifting the corporate veil.' 'Whether the claims of unconscionable conduct and misleading or deceptive conduct disclosed any triable issue or factual foundation.']

Ratio Decidendi

Leave to appeal was refused because the trial judge's summary dismissal was not attended by sufficient doubt: the Code did not apply because the loans were made to a company or companies and the mortgage was security rather than a credit contract; there was no evidence to support a sham allegation or lifting the corporate veil; and the unconscionable conduct and misleading or deceptive conduct allegations were generalised, unsupported, and disclosed no triable issue in fact or law.

Court Disposition

The application for leave to appeal is dismissed with costs.

Orders

  • ['The application for leave to appeal is dismissed with costs.']