Bircan v Asia Invest Enterprises Pty Ltd and Anor [2018] NSWCATCD 51

Bircan v Asia Invest Enterprises Pty Ltd and Anor [2018] NSWCATCD 51

The Tribunal found that the first respondent's unexplained inflation of the price of equipment from $42,849.40 to $69,887.32 without notifying the applicant was misleading, deceptive and unconscionable. The second respondent also failed to provide documentation showing the total value of the goods or applicable interest rate and sought to enforce the rental arrangement after being apprised of the alleged breaches. The relationship between the first and second respondents supported treating the second respondent as a linked credit provider. Appropriate relief was to require the first respondent to pay the inflated difference, with interest as calculated under the rental contract, to the...

Jurisdiction
Australia
Judgment Date
04 September 2018
Procedural Posture
Consumer Claim Concerning Misleading or Deceptive Conduct, Unconscionable Conduct, and Linked Credit in Relation to Leased Café Equipment / Principal Judgment After Hearing
Outcome
Application allowed in part; orders made requiring payment by the first respondent to the second respondent, refund by the second respondent to the applicant, relieving the applicant from paying the inflated amount, and no order for costs beyond each party bearing its own costs.
Legal Topics
['misleading or Deceptive Conduct' 'unconscionable Conduct' 'linked Credit Provider' 'supply and Leasing of Goods' 'consumer Claim Jurisdiction' 'refund of Rental Payments']
['australian Consumer Law' 'consumer Law' 'fair Trading' 'contract' 'credit and Finance'] ['misleading or Deceptive Conduct' 'unconscionable Conduct' 'linked Credit Provider' 'supply and Leasing of Goods' 'consumer Claim Jurisdiction' 'refund of Rental Payments']

Case Brief

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Procedural Posture

Consumer Claim Concerning Misleading or Deceptive Conduct, Unconscionable Conduct, and Linked Credit in Relation to Leased Café Equipment / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the first respondent engaged in misleading, deceptive or unconscionable conduct by quoting goods to the applicant at $42,849.40 and selling them to the second respondent at $69,887.32 without notifying the applicant.' "Whether the second respondent's conduct in leasing the goods and enforcing the rental agreements was unconscionable." "Whether the second respondent was a linked credit provider in relation to the first respondent's supply of goods." 'Whether the applicant should be relieved from paying the inflated component of the finance arrangement and refunded rental payments for a coffee grinder that was never provided in working order.']

Ratio Decidendi

The Tribunal found that the first respondent's unexplained inflation of the price of equipment from $42,849.40 to $69,887.32 without notifying the applicant was misleading, deceptive and unconscionable. The second respondent also failed to provide documentation showing the total value of the goods or applicable interest rate and sought to enforce the rental arrangement after being apprised of the alleged breaches. The relationship between the first and second respondents supported treating the second respondent as a linked credit provider. Appropriate relief was to require the first respondent to pay the inflated difference, with interest as calculated under the rental contract, to the...

Court Disposition

Application allowed in part; orders made requiring payment by the first respondent to the second respondent, refund by the second respondent to the applicant, relieving the applicant from paying the inflated amount, and no order for costs beyond each party bearing its own costs.

Orders

  • ['The first respondent, Asia Invest Enterprises Pty Ltd, is to pay the second respondent the sum of $27,073.92 together with interest thereon at a rate 46.9% on that sum being a total of $40,286.50 as calculated in accordance with the rental contract between the second respondent and the applicant. Such payments are...