Collection House Limited v Taylor [2004] VSC 49

Supreme Court of Victoria|2004-03-03|Before: NETTLE J

For the reasons given, I consider that the Tribunal erred in the way alleged in the appellant's first ground of appeal, and that it may have erred in the ways alleged in the second and third grounds of appeal, but that it did not err in the way alleged in the fourth ground of appeal.

I certify that this and the 20 preceding pages are a true copy of the reasons for judgment of Nettle J of the Supreme Court of Victoria delivered on 3 March 2004.

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[1] VCAT Act, s. 98(1); Francis-Wright v VCAT [2001] VSC 35; (2001) 17 VAR 306 at 313

[2] Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 582-585; Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 145-6; Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 121, 143 and 153

[4] State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 145 at 155; The Warehouse Group (Australia) Pty Ltd v Bevendale Pty Ltd & Ors (2002) 121 VPR 321 at 334

[5] McColl v Lehmann [1987] VicRp 46; [1987] VR 503 at 506

[6] Bloch v Bloch [1981] HCA 56; (1981) 55 ALJR 701 at 703; McColl v Lehman, ibid

[8] Re Refugee Tribunal; Ex parte Aala, supra at 117 [84] and 122 [102]

[9] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145-6; Exparte Aala, supra at 153

(a) any right of action has accrued to recover any debt...; and

(b) the person liable or accountable therefor acknowledges the claim or makes any payment in respect thereof -

the right shall be deemed to have accrued on and not before the date of the acknowledgment or the last payment..."

[11] Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 at 514 [48]; Murphy v Overton Investments Pty Ltd [2004] HCA 3 [42]-[52]

[12] Hanave Pty Ltd v LFOT (1999 FCA 357 [11] and [41-51]; Henville v Walker [2001] HCA 52; (2001) 206 CLR 459; I&L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 (2002) 76 ALJR 1461

[13] Blomley v Ryan ([1956] HCA 81; 1956) 99 CLR 362 at 415 per Kitto J; Meagher Gummow & Lehane's Equity, Doctrines and Remedies 4th Ed at [16--005]

[14] Blomley v Ryan, ibid at 405, per Fullagar J; Carello v Jordan [1935] St R Qd 294; Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 at 462; Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457 at 478 - 9 [75]

[15] Fry v Lane (1888) 40 Ch 312 at 322; Commercial Bank of Australia Ltd v Amadio, supra at 460, per Gibbs CJ

[16] Cresswell v Potter [1978] 1 WLR 255 at 257, Amadio, ibid.

[18] Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457 at 485

[19] cf ACCC v Berbatis, supra at [93], per Kirby J, in diss.

"16. In order to obtain relief as a consequence of unconscionable conduct the Applicant needs to establish first that she was in a position of special disadvantage and secondly that [CHL] took advantage of that position by unfair or unconscionable means. Mason J in the High Court in the leading case of The Commercial Bank of Australia Ltd. v Amadio [1983] HCA 14; 46 ALR 402 at 413 stated that the Court had equitable jurisdiction to set aside as unconscionable, a transaction where `...one party by reason of some condition or circumstance is placed at a special disadvantage vis-à-vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created.' Again, his Honour (413) in defining the requirement that the disadvantage be special characterised this as requiring `...that the disabling condition or circumstance [must be] one which seriously affects the ability of the innocent party to make a judgment as to his own best interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party'. 17. The special disadvantage, although not comprehensively classified may, according to Dr Hardingham QC in his paper Unconscionable Dealing (Published in Finn's Essays in Equity 1 at 3) include such cases as illness, lack of education, ignorance, mistake as to matter relevant to the extent of the other party's liability and others. I find that the Applicant in this case was at such a special disadvantage because of her lack of knowledge of the matters at issue, and that [CHL] as the stronger party wrongfully exploited this position of special disadvantage. [CHL] was therefore in breach of section 7 of the Fair Trading Act."

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