Devon v Thirteenth Kaysan Pty Ltd [2016] FCA 357

Devon v Thirteenth Kaysan Pty Ltd [2016] FCA 357

The applicant had no reasonable prospect of successfully prosecuting the proceedings because the loans in question were made to companies, not to a natural person, and therefore the National Credit Code did not apply. No triable issue was shown regarding the sham allegation or regarding any articulated factual foundation for unconscionable or misleading and deceptive conduct. Accordingly, judgment was entered for the First, Second, Third and Twelfth Respondents.

Parties
Applicant: Hugh John Devon; First Respondent: Thirteenth Kaysan Pty Ltd (ACN 005 854 740); Second Respondent: Outplass Pty Ltd (ACN 006 322 425); Third Respondent: Ajzensztat Jeruszalski Lawyers (A Firm); Twelfth Respondent: Spigler & Schwarcz Lawyers (A Firm)
Jurisdiction
Australia
Judgment Date
13 April 2016
Procedural Posture
Application for Summary Judgment / Judgment on Summary Judgment Application
Outcome
Judgment for the First, Second, Third and Twelfth Respondents; applicant to pay costs.
Legal Topics
Summary Judgment, National Credit Code Application, Misleading and Deceptive Conduct, Unconscionable Conduct
Practice and Procedure Commercial Law Banking and Finance Law Summary Judgment National Credit Code Application Misleading and Deceptive Conduct Unconscionable Conduct

Case Brief

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Parties

Hugh John Devon

Applicant

Thirteenth Kaysan Pty Ltd (ACN 005 854 740)

First Respondent

Outplass Pty Ltd (ACN 006 322 425)

Second Respondent

Ajzensztat Jeruszalski Lawyers (A Firm)

Third Respondent

Spigler & Schwarcz Lawyers (A Firm)

Twelfth Respondent

Procedural Posture

Application for Summary Judgment / Judgment on Summary Judgment Application

Legal Issues

  1. 1 Whether the National Credit Code applies to the loan transactions
  2. 2 Whether the applicant's claims disclose a reasonable cause of action for misleading and deceptive conduct and unconscionable conduct

Ratio Decidendi

The applicant had no reasonable prospect of successfully prosecuting the proceedings because the loans in question were made to companies, not to a natural person, and therefore the National Credit Code did not apply. No triable issue was shown regarding the sham allegation or regarding any articulated factual foundation for unconscionable or misleading and deceptive conduct. Accordingly, judgment was entered for the First, Second, Third and Twelfth Respondents.

Court Disposition

Judgment for the First, Second, Third and Twelfth Respondents; applicant to pay costs.

Orders

  • Judgment be entered for the First, Second, Third and Twelfth Respondents against the Applicant pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).
  • The Applicant pay the First, Second, Third and Twelfth Respondents' costs of the proceedings.