Victorian Civil and Administrative Tribunal|2007-05-31

Beddoe v Mortgage Masters (Credit) [2007] VCAT 957 (31 May 2007)

Credit - application by finance broker to strike out/dismiss claim - whether case manifestly hopeless because loan a short-term loan to which Code does not apply or because business purpose declaration effective - no jurisdiction in Tribunal under Trade Practices Act 1974 (Cth) - Victorian Civil and Administrative Tribunal Act 1998 s75; Trade Practices Act 1974 (Cth); Consumer Credit (Victoria) Code ss 6, 7, 11, 176 and Sched. 1

Pursuant to s75 of the Victorian Civil and Administrative Tribunal Act 1998 the Applicant's claim as against the First Respondent is dismissed to the extent that it relates to the Consumer Credit (Victoria) Code and the Trade Practices Act 1974 (Cth). The rest of the claim as against the First Respondent is struck out, with liberty to the Applicant to apply to have a claim reinstated in an amended form, limited in the manner described in the Tribunal's reasons for decision.
The First Respondent's costs are reserved. The Tribunal notes that this Respondent has foreshadowed an application for costs. That Respondent has liberty to apply for those costs on or before 20 June 2007.

The claim as against the First Respondent (Mortgage Masters) is dismissed in part. The rest of the claim is struck out, with a right to apply for reinstatement of the claim in an amended form. At the end of these reasons, I explain the limited form of application for reinstatement that this order contemplates. The order reserves Mortgage Masters's costs and gives it liberty to apply.

In February 2006, Ms Beddoe filed with the Tribunal a claim against Mortgage Masters, Paramount Mortgage Services Pty Ltd (Paramount) and Fincorp Mortgages Pty Ltd (Fincorp). On the material before me, it appears that Fincorp trades under the name Guardian Mortgages Pty Ltd (Guardian).
Fincorp applied to have the claim struck out as against it, basing its application on what it said were terms of settlement reached in a related Supreme Court proceeding between it and Ms Beddoe and a subsequent order by Master Efthim in Fincorp's favour. That strike out application was never determined because, by consent orders dated 22 June 2006, the VCAT claim was withdrawn and dismissed as against Fincorp.
VCAT directed Ms Beddoe to indicate whether she wished to continue her claim as against Mortgage Masters and Paramount. She indicated that she did. The matter was referred to mediation. There were a number of adjournments of the mediation, but it was ultimately unsuccessful.
In October 2006, Mortgage Masters applied to strike out or dismiss the claim under s75 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act). The parties agreed to proceed by written submission and by determination on the papers. I have before me the original claim, and later points of claim. Both of these include numerous attachments. I also have written submissions from Ms Beddoe and Mortgage Masters (to which more documents are attached).
Mortgage Masters applies to have the claim struck out or dismissed on all the grounds mentioned in s75 - namely, that the claim is frivolous, vexatious, misconceived, lacking in substance, or an abuse of process. The principles which the Tribunal applies in dealing with applications of this kind are relevantly these[1]. The section permits the summary termination of a proceeding - here, a claim. The Tribunal should be cautious before doing this and so depriving the litigant of the chance to have the case heard in the ordinary course. It should only do so where, for a reason mentioned it the section, a claim can be said to be manifestly hopeless, undoubtedly untenable, doomed to fail or on no reasonable ground can justify relief. If all that a Respondent asserts is that there is a dispute as to a fact in issue between the parties, this is not a good reason to summarily terminate the claim. Rather, the claim should go to a full hearing where evidence as to the matter can be called and tested by cross-examination. On an application such as this, made at an early stage and before witness statements or other evidence has been provided, the claimant's case is to be taken at its highest and it is to be assumed that Ms Beddoe will be able to prove what she asserts.
I first consider the material before me. I then consider the parties' submissions. Finally, I state my conclusion.

The state of the material before me makes it very difficult to determine what is alleged by the parties and what the respective claims are. Ms Beddoe is not legally represented and, although Mortgage Masters was legally represented, the material from both parties is somewhat disorganised, does not include affidavits setting out matters in a logical form, refers selectively to affidavits and other material in the related Supreme Court material, and is in some respects internally inconsistent. The following can be gleaned from the material before me.
Gael Daisley, a neighbour of Ms Beddoe and a person for whom Ms Beddoe had done some work, proposed to attempt to find investors willing to invest in the development of a 'brain diagnostic tool' - an instrument or procedure developed in the United States. Ms Beddoe believed that the tool might help her very sick young daughter. Ms Daisley proposed to Ms Beddoe that Ms Daisley fund a trip by Ms Beddoe and her daughter to the US, where the diagnostic tool could be used to assess Ms Beddoe's daughter, Ms Beddoe's daughter could obtain treatment, and also a video of the tool's use could be made and that video brought back to Australia for use by Ms Daisley to attract investment in her scheme. Ms Beddoe's material mentions that she hoped to have future employment in this proposed venture.
For some reason which is not clear from the material, Ms Daisley was unable to provide the funds to pay for Ms Beddoe's travel to the US. It was agreed between them that Ms Beddoe would borrow the money for the travel, and that Ms Daisley would repay her within a month.
I pause here to say that the story in Ms Beddoe's points of claim and in her submissions on the strike-out application differs in some respects. I have set out what she asserts in her points of claim. Her submissions say that the sole purpose for visiting the US was to get her daughter assessed and treated.
Ms Daisley suggested that Ms Beddoe see Mortgage Masters. There is disagreement in the parties' submissions about dates at this point. Mortgage Masters submits that Ms Beddoe came to see its manager, Mr Nankin, on 6 May 2003, and signed a letter of loan offer on 7 May 2003. Ms Beddoe submits that her visit occurred on 7 May 2003 and that she signed the loan offer on 8 May 2003. For the purposes of this application, I take her material at its highest and assume that she will be able to prove this if the matter had gone to hearing.
According to Ms Beddoe, on 7 May 2003 she visited and had a discussion with Mr Nankin. She told him of her need for funds to travel to New York for medical treatment for her daughter, and of the possibility of ongoing employment for her with the company that was to develop the 'brain diagnostic tool'. She gave particulars of her income and explained that her home could be used as security for the loan. She offered that, if she could obtain the finance she then sought, she would, on her return to Australia, refinance all her loans through Mortgage Masters. After discussion, she decided to take a short-term loan of $40,000. She asserts that Mr Nankin told her that the loan could be obtained in three days. She says that she signed a form which Mr Nankin filled out and then left without copies of any paperwork. It is not clear whether she read the form that she signed.
On the same day, Mortgage Masters telephoned her asking her to come to its office on 8 May 2003. She visited their offices on that date, and was shown a faxed letter of offer which she found hard to read. She asked questions about those parts of the letter which she could not read or could not understand. She claimed that she questioned the amount of the valuation fee, application fee, interest (8% per month), brokerage and early discharge fee, and was told that these would need to be paid if the loan were to be processed urgently. Although her material is unclear, it appears from it that she signed the letter of offer and paid the application fee and valuation fee to Mortgage Masters on that day.
The material before me includes two documents dated 7 May 2003. The first is on Guardian's letterhead, and thanks Ms Beddoe for her loan application and confirms approval of a loan of $40,000 on various terms set out. These include an interest rate of 8% per month (96% per annum), that the loan was to be secured over Ms Beddoe's home, statements as to various fees, and a statement that commission is to be paid to Paramount in the amount of $2200 and will form part of the principal loan amount. The document states that the loan is 'subject to being for business purposes only' and that 'you will be required to sign a declaration prior to entering into the contract'. It also states that 'by accepting this offer you acknowledge that the proposed loan does not fall within the definition of a consumer loan under the Consumer Credit Code as this would require different procedures and documentation'. The document also acknowledges that, prior to settlement, Ms Beddoe would obtain independent legal advice.
The second document is a loan application form. It is on the Paramount letterhead. It describes the loan purpose as 'short term loan for business'. It describes Ms Beddoe's occupation as 'marketing manager'. It states that Ms Beddoes's home is security for the loan, that the loan amount is $40,000, and gives various particulars of Ms Beddoe's salary, assets and liabilities. It confirms the borrower's understanding that Paramount may receive fees, margins and commissions from the credit provider in consideration of its role as 'finance broker, mortgage originator and/or mortgage manager'.
It appears that Ms Beddoe claims that she signed the first document on 8 May 2003, but it is unclear whether she claims that she was shown and/or read only part of the form. She appears to claim that her signature on the second document was forged. She does not allege who was the forger. It also appears from Ms Beddoe's material (although it is very unclear) that on this day she also signed a document called 'Appointment to Act'. In brief, that document authorises Mortgage Masters to procure an offer of a loan for Ms Beddoe on the terms set out in the schedule to the document. Mortgage Masters accepts the appointment. The document shows the loan amount as $40,000, the indicative interest rate as 8% per month and the term of the loan 1-2 months. It provides that, if Mortgage Masters's fees are not paid, Mortgage Masters has a caveatable interest in the security for the loan.
Ms Beddoe's material also refers to another loan application form for a loan of $120,000. Mortgage Masters in its submissions states that this loan never went ahead. No documents relating to this loan are in the material before me. It is unnecessary for me to consider it further.
Valuation of her home for the purposes of the loan did not occur until 13 May (or perhaps 14 May) 2003. The processing of the loan was further delayed because the valuer reported that there was no certificate of occupancy for the property. That issue was not resolved until 15 May 2003. Ms Beddoe asserts that, in a telephone call, Mr Nankin (Mortgage Masters's manager) told her that if she stated that the loan was for business purposes it would be processed faster. She says that she hesitated about this but ultimately faxed a letter to this effect. The letter is not in the material before me.
Ms Beddoe states that, on 16 May 2003, Mortgage Masters told her that the loan had been approved. She asked for mortgage documentation to be processed urgently as she had now booked a flight for her and her daughter to the US on 19 May 2003. The material suggests that this choice of date was dictated by the availability of the relevant neurologist in New York. Mortgage Masters referred Ms Beddoe to Mr Szmerling, a solicitor with the law firm Chadwicks. The meeting was to occur on the morning of 19 May 2003, and Ms Beddoe was then to sign the mortgage documents.
When Ms Beddoe arrived at Mr Szmerling's office on the morning of 19 May 2003, the mortgage documents were unavailable, and would not be available until that afternoon. The material before includes a letter from Mr Szmerling in which he states his recollection that, on that day, Ms Beddoe was distressed and spoke to him only of the need to seek medical treatment for her daughter. She did not speak of any business proposition. Mr Szmerling suggested that Ms Beddoe execute an Enduring Power of Attorney, and that the Attorney could then complete the mortgage documentation. Ms Beddoe did this, giving a Power of Attorney to Ms Daisley. While Ms Beddoe claims that Mr Szmerling suggested Ms Daisley as the Attorney, Mr Szmerling states that her choice of Attorney was her own. The Power of Attorney is not in the material before me. From the documents signed by the Attorney, I accept that it was dated 19 May 2003.
On 20 May 2003, Ms Daisley, on Ms Beddoe's behalf, signed a number of documents. First, she signed a loan application form and a privacy consent form. Second, she signed a formal letter of offer under which Guardian offered Ms Beddoe an advance of $40,000 on the security of her home at an interest rate of 96% per annum, for a term of one month. Clause 6 of the offer provided that the loan was 'subject to being for business purposes only' and that the mortgagor would be obliged to sign a consumer credit declaration prior to entering into the mortgage. Clause 12 required the borrower to obtain independent legal advice from a solicitor who must also witness the security documents. Clause 19 mentions a brokerage fee to Paramount. Clause 24 stated that it was a 'condition' that the borrower's accountant must provide a letter stating that in the accountant's opinion the borrower could afford to enter into the loan. In summary, clause 27 provided that, if Paramount advanced the valuation fee and application fee to the borrower and that money was not repaid, the security for the loan secured that money, and a caveatable interest arose.
Ms Daisley on Ms Beddoe's behalf also signed a business purpose declaration in the form prescribed by the Consumer Credit (Victoria) Regulations for the purposes of s11 of the Consumer Credit (Victoria) Code (the Code). That declaration was to the effect that the credit provided was to be applied wholly or predominantly for business or investment purposes or for both.
Finally, Ms Daisley on Ms Beddoe's behalf signed a loan repayment ability declaration. It declared Ms Beddoe's ability to repay in accordance with the loan terms without substantial hardship, and stated that she was unaware of any factor that might result in a decrease in her income or an increase in her expenditure which might affect her ability to make those repayments or cause her substantial hardship. The declaration acknowledged that legal advice had been taken in relation to the loan. The letter in the material from Mr Szmerling confirms that that advice was given.
Although Ms Beddoe now says that there were significant differences between the loan offer which she had accepted and the loan offer which Ms Daisley accepted on her behalf and that Ms Daisley ought never to have signed that loan offer, there is nothing in the material to suggest that she instructed her Attorney not to sign the documents, or that the Attorney disobeyed any instruction about what documents she was to execute. There is nothing to indicate that Ms Beddoe has taken any proceedings against her Attorney for fraud.
In her points of claim, Ms Beddoe alleges that the loan money was paid to her late - some four days after she had arrived in the United States, and that the lack of any money while she was in the US until that time caused her distress and hardship. Among other things, she had little or no money for food for herself and her daughter.
It appears from Ms Beddoe's material that, because Mortgage Masters suggested she see Mr Szmerling, she believed that Mr Szmerling was Mortgage Masters's agent. Mr Szmerling in the letter in the material me denies being the mortgagee's agent, accept for the purpose only of lodging the mortgage documentation after it had been signed. Ms Beddoe gives no other reason for her belief that Mr Szmerling was Mortgage Masters's agent.
The material before me includes a letter from Guardian dated 30 June 2004, enclosing a valuation fee for Ms Beddoe's home from First Valuation Group, for the purposes of the proposed loan. That shows a valuer's fee of $220. It appears from this letter that Guardian re-credited $430 - the balance of the $650 fee originally paid to Ms Beddoe's account.
Ms Beddoe's claim against Mortgage Masters is this. She says that, on 22 May 2003, some $32,000 ($8000 less than the loan amount) was paid into her bank account. Her claim against Mortgage Masters is under ss 6(1), 11 and 70(1) of the Code, and under ss 51(AA) and 51 (AB) of the Trade Practices Act 1974 (Cth) (the Trade Practices Act). She mentions breaches of the Fair Trading Act 1999 (the Fair Trading Act) constituted by what she says is misleading, deceptive and unconscionable conduct by Paramount and Mortgage Masters, but she does not further identify the exact nature of that conduct.
From Mortgage Masters, she is seeking orders reimbursing her for the $1100 commission which she paid to Mortgage Masters, for a loan application fee of $495, for a valuation fee of $650, and for fees, charges and interest applicable to the loan (totalling $6330). It appears that she is also asking that Mortgage Masters reimburse her for money which she asserts was taken by her Attorney Ms Daisley (totalling $5000). She appears to be alleging that Mortgage Masters coerced her into appointing this Attorney. She also asks Mortgage Masters for compensation for what she alleges was her and her daughter's suffering when 'stranded' in New York without money for food.

Mortgage Masters's submissions are these. It is a mortgage broker, not a lender. It procures loans only. The relationship between Ms Daisley and Ms Beddoe was a commercial one, and Ms Beddoe's trip to New York was for the purpose of that relationship. In these circumstances, the business purposes declaration signed by Ms Daisley correctly stated that the credit was provided for business or investment purposes. This was Mortgage Masters's understanding. Ms Beddoe obtained legal advice from Mr Szmerling before leaving for the United States, and the mortgage documentation was signed by her Attorney, who had also received advice from Mr Szmerling.
The claim under the Trade Practices Act is not to the point. The claim under the Code is also not to the point. The Code does not apply, either because of the business purpose declaration or because s7 of the Code excludes a short-term loan of this kind from the operation of the Code.
The fees and commissions charged by Mortgage Masters were deducted from the loan advance in accordance with the loan conditions and were disclosed in the loan documentation. Mortgage Masters's role in the loan transaction finished at the loan approval stage. It was not responsible for preparing the loan documentation, advancing the loan money, or overseeing the loan after that.
The processing of the loan approval was delayed because of the certificate of occupancy issue. This was through no fault of Mortgage Masters. Mortgage Masters in fact arranged for the requirements concerning the certificate of occupancy mentioned in the valuer's report to be waived. Any other delays in the later processing of the loan were Guardian's responsibility, and not that of Mortgage Masters. To the extent that Ms Beddoe's claim relates to these other matters, her claim should properly be addressed to her Attorney, her solicitor or Guardian.
There has been substantial delay in applying to VCAT. The application has been made almost three years after the alleged loan transaction. On Ms Beddoe's material, her case is manifestly untenable.
This loan transaction has been the subject of related Supreme Court proceedings between Fincorp and Ms Beddoe (No 7008 of 2003). Judgment in those proceedings was entered with costs against Ms Beddoe. Ms Beddoe could have, in those proceedings, raised the allegations she now makes against Mortgage Masters but did not do so. It would be an abuse of process to allow her to raise them now.
Ms Beddoe submits the matter should not be struck out or dismissed. She maintains that her sole purpose for travelling to the United States, and therefore the sole purpose of obtaining credit to fund the journey, was to obtain medical assessment and treatment for her sick daughter. She repeats a number of matters raised in her application and points of claim, which I have already summarised. She accuses Mortgage Masters of taking double commission and of misleading her when it told her on 16 May 2003 that her loan had been approved when it was not. I am satisfied that Ms Beddoe is confused about this point. She appears not to distinguish between informal approval of a loan and the formal loan documentation (the contract and mortgage).

In my view, it should. I deal with each claim in turn.

Ms Beddoe claims that Mortgage Masters has breached the Trade Practices Act. VCAT has held in a number of cases that it does not have jurisdiction under that Act. Those cases are to the effect that VCAT is not a court for the purposes of that Act, and that Act does not expressly confer jurisdiction on VCAT[2]. I follow these cases. Since VCAT has no jurisdiction to entertain this part of the claim, this part of the claim is dismissed.

It is common ground that there is a loan contract here. But does the Code apply to it? I need first to say something about relevant provisions of the Code.
The effect s6(1) is, among other things, that the Code applies to the provision of credit, and to the credit contract and related matters if when the contract is entered into the credit is provided or intended to be provided 'wholly or predominantly for personal, domestic or household purposes'.
Section 6(5) provides-

For the purposes of this section, the predominant purpose for which credit is provided is -

(a) the purpose for which more than half of the credit is intended to be used; or

(b) if the credit is intended to be used to obtain goods or services for use for different purposes, the purpose for which the goods or services are intended to be most used

I should add that s6(4) provides that investment by the debtor is not a personal, domestic or household purpose. There is no suggestion that Ms Beddoe herself was going to invest in the development of the 'brain diagnostic tool'.
Section 7 of the Code deals with the provision of credit to which the Code does not apply. Section 7(1) (in the form applying in May 2003 when this transaction occurred[3]) reads -

(1) Short term credit. This Code does not apply to the provision of credit if, under the contract -

(a) the provision of credit is limited to a total period that does not exceed 62 days; and

(b) the maximum amount of credit fees and charges that may be imposed or provided for does not exceed 5% of the amount of credit; and

(c) the maximum amount of interest charges that may be imposed or provided for does not exceed an amount (calculated as if the Code applied to the contract) equal to the amount payable if the annual percentage rate were 24% per annum.

Among other things, the effect of s11(1) is that, if a person claims that the Code applies to a credit contract or mortgage, that contract or mortgage is presumed to be one to which the Code applies unless the contrary is established. The effect of s11(2) is that, for the purposes of the Code, credit is conclusively presumed not to be provided wholly or predominantly for personal, domestic or household purposes if 'if the debtor declares, before entering into the credit contract, that the credit is to be applied wholly or predominantly for business or investment purposes (or for both purposes)'.
Section 11(3) is an exception to this conclusive presumption. It provides -

(3) However, such a declaration is ineffective for the purposes of this section if the credit provider (or any other relevant person who obtained the declaration from the debtor) knew, or had reason to believe, at the time the declaration was made that the credit was in fact to be applied wholly or predominantly for personal, domestic or household purposes. For the purposes of this subsection, a relevant person is a person associated with the credit provider or a finance broker (or a person acting for a finance broker) through whom the credit was obtained.

The effect of s176 is, among other things, this. Conduct of a credit provider's officer, employee or agent, acting within actual or ostensible authority, is to be imputed to the credit provider and taken to be conduct of the credit provider. The purposes of the Code, a credit provider is not taken to know or have reason to believe something because its officer, agent or employee does so, unless the knowledge or reason to believe that thing was acquired by the officer, employee or agent acting in that capacity and in connection with the transaction concerned.
I do not accept Mortgage Masters's submission that the Code does not apply to this loan because it is a short-term loan excluded from the Code by s7(1). While the loan is for less than the 62 day period mentioned in s7(1)(a), all the three elements mentioned in s7(1)(a), (b) and (c) must be satisfied before it can be said that the Code does not apply to a short-term loan. Clearly, the annual interest rate of 96% exceeds the maximum rate provided in s7(1)(c). It may also be that the credit fees and charges may exceed the maximum figure mentioned in s7(1)(b). But if one of the elements is not satisfied, s7(1) does not operate to exclude this short-term loan from the Code.
Nor am I satisfied that the business purposes declaration operates to found the conclusive presumption that this loan was not for personal, domestic or household purposes. In my view, there is an arguable case that the exception in s11(3) applies, and makes the business purposes declaration ineffective to found this conclusive presumption.
Ms Beddoe's claim is that she told Mr Nankin, Mortgage Masters's manager, on 7 or 8 May 2003 that she needed the loan for a dual purpose - her daughter's medical assessment and treatment, and to assist Ms Daisley in some business venture. Her daughter's medical assessment and treatment may well have been her main reason for travelling to the United States and obtaining credit to do this, as Ms Beddoe states in her submissions and as her solicitor, Mr Szmerling, states in his letter. It is arguable that Mr Nankin knew before the loan contract was entered into that the credit was to be applied wholly or predominantly for personal, domestic or household purposes.
Moreover, if at hearing Ms Beddoe were able to prove that some agency relationship (involving more than document lodgement) existed between Mr Szmerling and Mortgage Masters, Mr Szmerling would also be a relevant person for the purposes of s11(3) of the Code. It is clear that he accepted that Ms Beddoe's purpose for travelling to the United States, and for obtaining credit to do this, was the medical treatment of her daughter. He knew, before the loan contract was entered into, that the credit was to be applied wholly or predominantly for personal, domestic or household purposes.
If the business purposes declaration is ineffective to found a conclusive presumption that the loan was not for personal, domestic or household purposes we come back to s6(1) and (5) of the Code to determine what was the purpose for which the credit was provided. The parties are in dispute about that purpose and, if there were two purposes, what was the purpose for which more than half the credit was provided. The case that the Code applies is not manifestly hopeless.
But this is not the end of the matter. Ms Beddoe claims that ss6, 11 and 70(1) have been breached. Section 6 and 11 are application provisions, rather than obligation provisions. Among other things, s70 permits a debtor or mortgagor to apply to the courts (which in this context, means VCAT) and VCAT may, if satisfied that in the circumstances at the time the contract or mortgage was entered into that contract or mortgage was unjust, reopen the transaction which gave rise to that contract or mortgage. Section 71 gives VCAT wide powers if it reopens such a transaction, including to set side or vary the credit contract, and to adjust accounts. But this is an application relating to the credit contract and the credit provider, not the procurer of the loan.
Here, Fincorp (the lender) cannot be a party to this application. By consent orders, this proceeding has been dismissed against it. Moreover, there is a suggestion in the material that the credit contract has already been the subject of proceedings (and perhaps a judgment) by the Supreme Court. The claim against Mortgage Masters under s70 is misconceived, because it is not the proper respondent. It should be dismissed.
The only part of the claim left is that which relates to the Fair Trading Act. In the material currently before me, there is no clear and intelligible claim which Mortgage Masters should be required to answer. However, I am not satisfied that the claim could not be cured by amendment. In my view, the rest of the claim in its current form should be struck out, and liberty given to Ms Beddoe to have it reinstated in an amended, intelligible and far more limited form. I mean by this that the claim would have to be limited only to those few matters for which Mortgage Masters might be considered responsible. On the material, I am satisfied that it acted only to procure a loan offer. It was not responsible for the final loan documentation, the actions of Ms Beddoe's Attorney, advice given by her solicitor, the loan which Guardian offered to her, payments to Paramount, or any loss which she might have suffered by being 'stranded' in New York. It was not responsible for delays caused by the valuer or by her need to obtain certificates of occupancy during the processing of the loan. The allegations of forgery are vague and unclear and should not be part of a reinstatement application. The only issue left would seem to be the commission payable to Mortgage Masters and Ms Beddoe's agreement to the payment of that commission would need to borne in mind. I should also add that any reinstated claim should not, in my view, include a claim that Ms Beddoe was 'forced' to sign a Power of Attorney. This matter relates to Ms Beddoe and her solicitor, not to Mortgage Masters. Moreover, there is nothing in the material to suggest force or pressure of any kind, except the pressure put by Ms Beddoe upon herself by booking a flight to New York on 19 May 2003.
Finally, I do not accept Mortgage Masters's submission concerning abuse of process and delay. Mortgage Masters was not a party to the Supreme Court proceeding. There is nothing to indicate in the material that the specific issue in respect of which I have permitted an application for reinstatement of the claim to be made was the subject of a judgment by the Supreme Court in that proceeding. Nor do I accept that Ms Beddoe's delay in bringing this application to VCAT was so inordinate as to make that application vexatious or an abuse of process. The delay was less than three years and, in the intervening time, Ms Beddoe was required to defend a related Supreme Court proceeding.

[1] See for example Rabel v State Electricity Commision [1998] 1 VR 102; Norman v Australian Red Cross Society [1998] 14 VAR 243; Bendigo Bank v Csizmadia-Estok [2007] VSC 112

[2] See for example Re: Maltall & ors [1998] 14 VAR 368; Houndalas & anor v Burnham [2006] VCAT 1308

[3] See Consumer Credit (Queensland) Amendment Act 2001 s4, which commenced on 10 December 2001

Civil and Administrative Tribunal Act 1998

Credit (Queensland) Amendment Act 2001

Beddoe v Mortgage Masters

At a glance

Court

Decision date

Source

Judgment (26 paragraphs)

Beddoe v Mortgage Masters (Credit) [2007] VCAT 957 (31 May 2007)

Parties

Legislation Cited (4)