Jonsson v Arkway Pty Ltd [2000] NSWFTT 2

Jonsson v Arkway Pty Ltd [2000] NSWFTT 2

The Tribunal held that the 12 May 1998 and 8 September 1999 variations were fresh provisions of credit within the meaning of the Consumer Credit Code because they deferred repayment of debts already due under earlier arrangements, and the pre-Code mortgage applied to the extent that it secured obligations under those post-Code credit contracts. The Respondent failed to rebut the presumption that the Code applied or to prove that the credit was not provided wholly or predominantly for personal, domestic or household purposes; on the evidence the Applicant's purpose, if any, was financing her mother's home or preserving her own home, not investment. The Tribunal therefore had jurisdiction....

Jurisdiction
Australia
Judgment Date
24 November 2000
Procedural Posture
Consumer Credit Application Concerning Re Opening of Mortgage Transactions, Civil Penalty, Jurisdiction and Transfer / Decision Made Without Hearing, With Consent of the Parties, on Jurisdiction and Application to Transfer Proceedings to the Supreme Court
Outcome
The Tribunal found that it had jurisdiction and refused the Respondent's application to transfer the proceedings to the Supreme Court.
Legal Topics
['consumer Credit Code' 'pre Code Credit Contracts' 'variation of Mortgage' 'purpose of Credit' 'personal, Domestic or Household Purposes' 'investment Purpose' 'transfer to Supreme Court' 'fair Trading Tribunal Jurisdiction']
['consumer Credit' 'mortgage Law' 'civil Penalties' 'tribunal Jurisdiction' 'civil Procedure'] ['consumer Credit Code' 'pre Code Credit Contracts' 'variation of Mortgage' 'purpose of Credit' 'personal, Domestic or Household Purposes' 'investment Purpose' 'transfer to Supreme Court' 'fair Trading Tribunal Jurisdiction']

Case Brief

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Procedural Posture

Consumer Credit Application Concerning Re Opening of Mortgage Transactions, Civil Penalty, Jurisdiction and Transfer / Decision Made Without Hearing, With Consent of the Parties, on Jurisdiction and Application to Transfer Proceedings to the Supreme Court

Legal Issues

  1. 1 ['Whether the mortgage of 1 March 1995 and the variations of 12 May 1998 and 8 September 1999 were regulated by the Consumer Credit Code.' 'Whether the purpose of the provision of credit exempted the transactions from the Consumer Credit Code because the credit was not provided or intended to be provided wholly or predominantly for personal, domestic or household purposes.' 'Whether proceedings should be transferred to the Supreme Court of NSW.']

Ratio Decidendi

The Tribunal held that the 12 May 1998 and 8 September 1999 variations were fresh provisions of credit within the meaning of the Consumer Credit Code because they deferred repayment of debts already due under earlier arrangements, and the pre-Code mortgage applied to the extent that it secured obligations under those post-Code credit contracts. The Respondent failed to rebut the presumption that the Code applied or to prove that the credit was not provided wholly or predominantly for personal, domestic or household purposes; on the evidence the Applicant's purpose, if any, was financing her mother's home or preserving her own home, not investment. The Tribunal therefore had jurisdiction....

Court Disposition

The Tribunal found that it had jurisdiction and refused the Respondent's application to transfer the proceedings to the Supreme Court.

Orders

  • ['The Tribunal has jurisdiction in this matter.' 'The application to transfer these proceedings to the Supreme Court is refused.' 'The parties are to submit draft orders as to the progress of this matter to the Tribunal on or before 20 December 2000.' 'The matter is to be listed for a telephone directions hearing on...