Wade v J Daniels and Associates Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 27 November 2020
• Neutral Citation: [2020] FCA 1708
• Date: 27 November 2020

Federal Court of Australia

Wade v J Daniels and Associates Pty Ltd [2020] FCA 1708

File number(s):	VID 153 of 2019
Judgment of:	O'BRYAN J
Date of judgment:	27 November 2020
Catchwords:	CONSUMER LAW – services supplied to a consumer facing foreclosure on a home loan mortgage – alleged breach of contract and failure to comply with consumer guarantees – alleged misleading and deceptive conduct – alleged unconscionable conduct – nature and scope of services supplied – where the consumer disclosed to the supplier that the purpose of seeking services was to retain her home – whether supplier agreed or represented that its services would provide consumer with a long term solution that would enable the consumer to retain her home – whether supplier agreed or represented that supplier would procure a refinance of the consumer’s home loan – whether supplier knew that consumer would be unable to maintain loan repayments and that the supplier’s services would not prevent the bank from taking possession of the consumer’s home – whether the removal of a credit impairment from the consumer’s credit file provided any benefit to the consumer in retaining her home ; PRACTICE AND PROCEDURE – application to re-open case after judgment reserved – applicable principles – application refused ; STATUTORY INTERPRETATION – meaning of the phrase “financial services” in s 12BAB of the Australian Securities and Investments Commission Act 2001 (Cth) – whether a service involving negotiations with a bank to defer recovery action and to agree temporary reductions in repayments is a financial service
Legislation:	Australian Securities and Investments Commission Act 2001 (Cth) ss 12AB, 12BAA, 12BAB, 12CB, 12DA, 12ED Competition and Consumer Act 2010 (Cth) ss 84(2), 130A, 131A, 137B, 139B(2) Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) ss 2, 18, 21, 22, 60, 61, 236, 267(3), 268, 275 Evidence Act 1995 (Cth) s 128 Federal Court of Australia Act 1976 (Cth) ss 37M, 43, 51A(1)(a), 52 Wrongs Act 1958 (Vic) Federal Court Rules 2011 (Cth) r 39.06
Cases cited:	Ample Source International Ltd v Bonython Metals Group Pty Ltd (No 6) [2011] FCA 1484; 285 ALR 488 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90; ATPR 42-447 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2020] FCAFC 130; 381 ALR 507 Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2019] FCA 1284; 139 ACSR 52 Australian Securities and Investments Commission v Kobelt [2019] HCA 18; 93 ALJR 743 Australian Securities and Investments Commission v Narain (2008) 169 FCR 211 Baltic Shipping Co v Dillon (The Mikhail Lermontov) (1993) 176 CLR 344 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 CCP Australian Airships v Primus Telecommunications Pty Ltd [2004] VSCA 232; (2005) ATPR 42-042 David Jones Ltd v Willis (1934) 52 CLR 110 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 Effem Foods Ltd v Nicholls [2004] NSWCA 332; ATPR 42-034 F.Y.D Investments Pty Ltd v Promptair Pty Ltd [2017] FCA 1097 Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 Grant v Australian Knitting Mills Ltd (1935) 54 CLR 49 International Harvester Company of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Company (1958) 100 CLR 644 Jenyns v Public Curator (Qld) (1953) 90 CLR 113 The “Juliana” (1822) 2 Dods 504 Kelly v The Queen (2004) 218 CLR 216 Kimberley NZI Finance Ltd v Torero Pty Ltd [1989] ATPR (Digest) 53,193 King (Trustee), in the matter of Zetta Jet Pte Ltd v Linkage Access Limited [2018] FCA 1979 Let’s Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 Miller & Associates Insurance Broking Pty Ltd v BMW Australia (2010) 241 CLR 357 Moore v Scenic Tours Pty Ltd [2020] HCA 17; 94 ALJR 481 O’Grady v Northern Queensland Company Ltd (1990) 169 CLR 356 Olson v Keefe (No 3) [2018] FCA 2001 Oshlack v Richmond River Council (1998) 193 CLR 72 Paciocco v Australia & New Zealand Banking Group Ltd (2015) 236 FCR 199 Paciocco v Australia & New Zealand Banking Group Ltd (2016) 258 CLR 525 PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Services (1995) 184 CLR 301 Queensland North Australia Pty Ltd v Takeovers Panel (No 2) (2015) 236 FCR 370 Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 Scenic Tours Pty Ltd v Moore [2018] NSWCA 238; 339 FLR 244 Smith v New South Wales Bar Association (1992) 176 CLR 256 Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1 Trade Practices Commission v Sun Alliance Australia Ltd (1994) ATPR 41-286 Walplan Pty Ltd v Wallace (1986) 8 FCR 27
Division:	General Division
Registry:	Victoria
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	413
Date of hearing:	14, 15, 16, 29 October 2019 and 17 December 2020
Counsel for the Applicant:	C H Truong QC, L F Alampi, M W Guo
Solicitor for the Applicant:	Consumer Action Law Centre
Counsel for the Respondent:	S Clement
Solicitor for the Respondent	Macpherson Kelly

ORDERS

		VID 153 of 2019
BETWEEN:	BRENDA MAREE WADE Applicant
AND:	J DANIELS AND ASSOCIATES PTY LTD (ACN 159 769 534) Respondent

order made by:	O'BRYAN J
DATE OF ORDER:	27 NOVEMBER 2020

THE COURT ORDERS THAT:

1. The applicant’s interlocutory application dated 10 December 2019 seeking leave to re-open the applicant’s case be dismissed.

2. The respondent pay to the applicant the sum of $2,000 plus interest from 10 November 2017 to the date of judgment at the rate specified in Section 2 of the Federal Court Interest on Judgments Practice Note (GPN-INT) (Judgment Sum).

3. Interest is payable on the Judgment Sum from the date of judgment to the date of payment at the rate specified in r 39.06 of the Federal Court Rules 2011 (Cth).

4. The applicant’s amended originating application be otherwise dismissed.

5. The applicant pay 50% of the respondent’s costs of the proceeding.

6. The parties have leave to apply to the Court by written notice within 14 days to vary paragraph 5 of these orders or seek further orders consequent upon the judgment of the Court.

Note: Entry of orders is dealt with in...