Director of Consumer Affairs Victoria v Geeveekay Pty Ltd - [2006] VCAT 106 - VCAT 2006 case summary — Zoe

Director of Consumer Affairs Victoria v Geeveekay Pty Ltd - [2006] VCAT 106 - VCAT 2006 case summary — Zoe

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10 I have decided not to disregard the respondents' later submissions. This is a relatively early stage in this proceeding, before any final hearing has commenced. It concerns matters crucial to the later course of the proceeding. The Victorian Civil and Administrative Tribunal Act 1998 obliges the Tribunal to proceed on the substantial merits and without undue technicality. There is no unfairness to the Director because the Director has had some four weeks within which to answer the new submissions. Having said this, it should not be thought that if the respondents were at a later time to try to introduce new material, in particular, at some time late in the final hearing, I would adopt the same view. Also, what I have said does not mean that there will be no consequence in costs in respect of the respondents' conduct.

11 The respondents' new submission is this. In the absence of evidence, the tribunal ought to proceed on the assumption that the borrowers or purchasers or their solicitors were provided with a spiral-bound volume containing certain documents. I use the Rand contract, which is part of the category called "Bank of Melbourne Contracts", as an example. According to the respondents, I should assume that the volume for the Rand transaction contains the Contract of Sale of Real Estate, which is called "the Contract of Sale" in the draft orders, the Schedule of Mortgage Particulars, the document headed "Disclosure Document", Memorandum of Common Provisions AA670 and what the respondents call "additional explanatory material" contained in a document titled "You and Your Loan" paragraphs (a) to (d). The respondents ask the tribunal to assume that the Loan Offer dated 27 May 2002 and the Mortgage Schedule were not provided to the purchaser or borrower. As the respondents explain that the Mortgage Schedule and the Letter of Offer were both produced pursuant to the Director's notice dated 4 November 2005, after looking at that notice, I take the respondents' reference to the Mortgage Schedule to be the document called by the Director in that notice and in the draft orders "the cover sheet of the Mortgage". The respondents also refer to a section 32 statement in respect of this and the other transactions but I agree with the respondents that this is not material for present purposes.

12 The respondents' primary submission is that the Rand contract and the Rand contract document each consist and only consist of all the documents in the spiral-bound volume handed to and signed by the purchaser/borrower (Rand). The documents should not be, they say, artificially unbundled into their component, separate, sub-documents. This, they say, is more artificial than the way in which they ask me to look at the transaction.

13 Also, the respondents say, the tribunal should not incorporate into the credit contract other documents where the relevant information contained in those other documents can be found in documents which are already clearly part of the credit contract. So, for example, the respondents say that the fact that section 8 paragraph (a) of the "You and Your Loan" document refers to fees and charges not otherwise set out in the Rand Contract and the fact that that document mentions the Letter of Offer does not mean that the Letter of Offer is incorporated into the contract. The simpler approach is, they say, if fees and charges are not fully disclosed in the credit contract as they have defined it, those fees and charges will not be recoverable by the respondents. A similar submission is made in respect of each category of transactions covered by the Director's draft orders.

14 The Director, as an alternative argument to the one I have mentioned earlier, argues that I should reject the respondents' submission. I agree.

15 First, it is clear that there is no agreement between the parties as to what documents were provided to the purchasers/borrowers in these transactions. This being so, I cannot, in the absence of evidence, make the assumptions sought by the respondents.

16 Second, even I were to assume that a spiral-bound volume were provided to, for example, Rand, including the documents suggested by the respondents, it cannot be inferred which of those documents, whether all or some, constituted the contract document or credit contract, or indeed whether that credit contract or contract document was constituted by other or additional documents.

17 Third, this approach misunderstands the nature of this part of the proceeding. This part of the proceeding aims to define, in a general way, which covers all of the transactions in respect of which the draft orders are made, what constitutes the credit contract and contract document as a matter of proper construction. It does not look to each particular borrower/purchaser. This is consistent with the nature of the application. This is a global application seeking a lump sum penalty in respect of numerous categories of contracts.

18 Fourth, what constitutes the credit contract must, in my view, be determined by asking a number of questions. First, what did the parties sign? Second, was what they signed in contractual form? Third, did what they sign (and which is in contractual form) incorporate, either expressly or by necessary implication, other documents?

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19 The parties agree that the credit contract for the Rand exemplar is constituted by the Disclosure Document, the Contract of Sale, the Memorandum of Common Provisions and the "You and Your Loan" document. There are, in the respondents' view, only certain paragraphs of that latter document which are incorporated. But the proper view, given the nature of the document, is that the whole of that document is incorporated. This is reflected in my orders.

20 The Schedule of Mortgage Particulars referred to by the respondents is also part of the credit contract. The Director does not disagree with this, but correctly, in my view, treats it as part of the Contract of Sale.

21 The Disclosure Document provides that by virtue of the Contract of Sale that the borrower may enter, the borrower will be bound by the terms of the mortgage between the lender and their mortgagees contained in a Memorandum of Common Provisions with a specified number. In my view, the terms of that mortgage must include the mortgage cover sheet. The mortgage cover sheet is referred to in the Memorandum of Common Provisions and the mortgage would be incomprehensible without it. This is sufficient, in my view, to incorporate that cover sheet into the credit contract itself.

22 The Memorandum of Common Provisions is again mentioned in the Contract of Sale, which all the parties agree is part of the Rand transaction.

23 The Contract of Sale and the "You and Your Loan" document, both of which the parties agree form part of the Rand contract, mention a higher rate of interest, but do not provide how and when that higher rate applies. The Letter of Offer deals with this matter. The "You and Your Loan" document mentions the Letter of Offer in a number of places. Examples are section 8, which concerns certain fees and charges; section 10, which deals with changes to the contract; and section 20, which deals with the governing law. In my view, the credit contract in certain places expressly, and in others by necessary implication, incorporates the Letter of Offer.

24 For similar reasons, I conclude that the Director correctly says what constitutes the credit contract in the samples of the other transactions covered by the draft orders. This relates now to paragraphs 3 to 9 of those orders. I deal briefly with those cases where there are significant differences between what I have already said is part of the Rand credit contract and the other categories of transactions.

25 Paragraph 3 of the draft orders deals with the category called in the orders "Suncorp Metway Contracts". That category is exemplified by the Bremen/Campbell contract. The same reasoning as I have applied to the Rand contract category dealing with the mortgage cover sheet applies here. I am satisfied that the Director is correct in incorporating the Borrower Information Table as part of the credit contract. The "Offer of Loan Terms" booklet, which the parties agree is part of that contract, refers to that table and in my view, incorporates it.

26 Paragraph 4 of the draft orders deals with the category called "Interstar Contracts - First Type". That category is exemplified by the Lockwood contract. The only document which requires specific mention in this particular context is the Loan Agreement. I am satisfied that the Director correctly has treated that as incorporated in the credit contract. The "Interstar Loan Terms and Conditions" booklet, which the parties agree forms part of the credit contracts, refers to, and in my view incorporates, the Loan Agreement. The Loan Agreement is the loan agreement with Perpetual Trustees Victoria Limited.

27 Paragraph 5 of the draft orders deals with the category called "Interstar Contracts - Second Type". This category is exemplified by the Tuddenham/Hewitt contract. The only document which requires specific mention is the schedule to the Loan Agreement. I accept that the Loan Agreement is mentioned in the "Interstar Terms and Conditions" booklet, which the parties agree is part of the contract. That Loan Agreement refers to a schedule to that agreement. I am satisfied that the Director is correct in treating that schedule as part of the contractual arrangement. That agreement is with Perpetual Trustees Victoria Limited.

28 Paragraph 6 of the draft orders deals with the category called "NAB Contracts - First Type". This contract is exemplified by the Wade/Williamson contract. The only document which requires specific mention is the "Facility Agreement Details". The parties have agreed that I can proceed on the assumption that this document was identical to the "Facility Agreement Details" document produced in respect of the "NAB Contracts - Second Type". The parties agree that the contract includes the "Facility Agreement General Terms" document. I accept the Director's submission that this document incorporates the "Facility Agreement Details" document and that this document too was part of the credit contract.

29 Paragraph 7 of the draft orders deals with the category called "NAB Contracts - Second Type". This category is exemplified by the Cameron contract. For the reasons given earlier, I accept the Director's submission that the "Facility Agreement Details" document is part of the credit contract.

30 Paragraph 8 of the draft orders deals with the category called "ANZ Bank Contracts - First Type". This category is exemplified by the Smith contract. For the reasons given in relation to the Rand category of contracts, I accept the Director's submission that the mortgage cover sheet is part of the relevant contract.

31 Paragraph 9 of the draft orders deals with the category called "ANZ Bank Contracts - Second Type". This category is exemplified by the Hetherton contract. As with category 8, I accept the Director's submission that the cover sheet of the relevant mortgage is part of the contract. I note that the parties agree that I can proceed on the assumption that the ANZ's "Small Business Fees and Charges" brochure and the ANZ's "Personal Banking Fees and Charges" brochure did not accompany the Letter of Offer and are not part of the relevant contract.

32 I agree then with the Director's draft orders in respect of the documents which constitute the credit contracts for each of the relevant categories of transaction covered by the orders. There is no disagreement between the parties that the contracts have a number of drafting inadequacies. In my view, however, the contracts are not so uncertain as to be void. They are not so obscure as to be incapable of precise meaning. It is not impossible to glean from them any particular intention of the parties.

33 It is fair to say that the documents incorporate various layers of other documents. So using the Rand contract as an example, the draft orders provide that the credit contract is constituted by the Disclosure Document, the Contract of Sale, Memorandum of Common Provisions AA70, the cover sheet of the mortgage, the document headed "You and Your Loan" and the Letter of Offer. This mirrors the way in which the documents are internally linked to each other. The linkages are these. The Disclosure Document states that the lender offers a loan, being a terms contract for the purchase of land. It goes on to say, in relation to the borrower, that "by virtue of the Contract of Sale that you may enter into, you will be bound by the terms of the Mortgage between the lender and the lender's mortgagees contained in" a specified Memorandum of Common Provisions (and a number is referred to). The parties are agreed that this number should be AA670.

34 In essence, the Contract of Sale between the Keoghs and Rand obliges Rand to pay interest at a rate determined by taking the rate payable by the Keoghs under their mortgage with the Bank of Melbourne, together with an additional margin. In turn, the Contract of Sale assumes the existence of other documents. It refers in a number of places to the Keoghs' mortgage with the Bank of Melbourne and the requirements of Memorandum of Common Provisions AA670. It also refers to a document headed "You and Your Land", which should be "You and Your Loan", as the parties agree.

35 It appears also from the documents relating to the "You and Your Loan" document, that the mortgage between the Keoghs and the Bank of Melbourne is constituted by that document and a Letter of Offer. The "You and Your Loan" document refers to that letter in several places. Similarly, Memorandum of Common Provisions AA670 refers in several places to information set out in the mortgage cover sheet.

36 The draft orders propose correctly in my view that except to the extent that a particular borrower might not be so bound, the borrower, to take the Rand Contract as an example, is bound by the Contract of Sale and the incorporated documents I have just mentioned. The proposed orders provide that if a provision of the Contract of Sale is inconsistent with a provision of one of these incorporated documents, the provision of the Contract of Sale prevails. This, in my view, correctly reflects the intention of Rand and the Keoghs when they first signed these documents. The incorporated documents, although referred to in the documents signed by Rand and the Keoghs, are not signed transactions as is the Contract of Sale itself. In addition, the Contract of Sale is the only document that contains an express provision designed, albeit perhaps with some inadequacies, to deal with inconsistencies between general and special conditions and between those conditions and conditions contained in legislation.

37 I do not need to go into detail in respect of the other examples of categories of documents to which the orders relate. All are in similar terms, with variations which simply depend on the titles of the various incorporated documents. In effect, the structure of the orders and the reasons for them are the same.

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38 The final item of disagreement between the parties relates to what constitutes the contract document for the purposes of each category of transaction. Apart from names, addresses, amounts and rates, the structure and form of the Disclosure Document is similar for all the categories. I take the Disclosure Document in the Rand transaction as an illustration. It is headed "Great Australian Dream Providers GV and V Keogh 14 Valencia Rise, Tyabb Consumer Credit Code Regulated Disclosure Document". It is then headed "Credit Facility to Tania Rand by way of a Terms Contract to Purchase 22 Dunbar Avenue Morwell 3840". It begins, "the Lender offers You a Loan (being a terms contract for the purchase of land) on the terms and conditions of this Loan Offer and by virtue of the Contract of Sale that you may enter into, you will be bound by the terms of the Mortgage between the lender and their mortgagees contained in the MCP No. AA519 copy of which is attached".

39 There follows a section headed "Financial Table" listing such things as the amount of credit, the annual percentage rate - lower and higher rates, details of the amount, period, commencement date and date for final payments. Opposite the heading "Final Repayment Date", the document refers to moneys then payable "in accordance with this Offer and the Terms and Conditions". In the part of the document dealing with variations of the contract, it lists the changes which may be made without the borrower's consent "unless otherwise stated in this Offer or the Terms and Conditions". In a provision headed "Understanding this Loan Offer" which essentially deals with interpretational matters, it states that "all expressions defined in the Terms and Conditions have the same meaning in this Loan Offer".

40 The document states the names of the credit provider as Geoffrey Vincent Keogh and Veronica Keogh and adds the words "via their loan with the Bank of Melbourne". The document states that to accept the loan offer, the borrower must sign and return to the lenders' solicitors a copy of the offer within the specified time. It provides a space within which the borrower can sign an acknowledgement that the borrower has received a copy of "this offer, the security documents and the terms and conditions". Before the borrower's signature, the document includes the statement beginning "Important Before You Sign" and "Things You Must Know", which are statements in the form prescribed by form 3B of the Consumer Credit (Victoria) Regulations ("the Regulations"). This statement contains warnings and other information. The statement is in a box as required by r15 and is placed above the debtor's signature in accordance with the Regulations.

41 The Financial Table part of the Disclosure Document is placed on the front page of the document, as is required by r13 of the Regulations, which concerns pre-contractual statements.

42 Section 15 of the Code requires the contract document to contain certain specified information including such information as the amount of credit, certain particulars of interest and fees and charges and so on. Section 15 (o) requires the document to contain the information and warnings prescribed by the Regulations. Regulation 15 and form 3B prescribe information and warnings for that purpose.

43 Clause 1(1) of Schedule 1 of the Code defines various terms. It applies unless a contrary intention appears. It provides that "contract" includes "a series or combination of contracts or contracts and arrangements". It provides that "contract document" means "document or documents setting out the terms of a contract".

44 For completeness, I should mention that s4 defines "credit". The effect of s5 is that "credit contract" is a contract for the provision of credit to which the Code applies, ss6-10 go on to explain to what provisions of credit the Code does and does not apply.

45 Section 12(1) provides:

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53 First, ss12 and 15 of the Code use the terms "contract document" and "contract". It should not be thought that Parliament has used these terms in a meaningless way, in other words that it uses the terms in fact with the same meaning. It should be presumed that Parliament means what it says and that if it uses a different term, that term has a different meaning. Section 12 requires a credit contract, for example, to be in the form of written contract document. Section 15 requires a contract document to contain various specified matters. When it lists these matters, it does so in a number of places, in a way that refers to the contract, not the contract document. So for example, when one looks at ss15(C), (D) and (F) which deal with such matters as interest and minimum payments, one will find that the words "under the contract" are used, not "under the contract document". Section 15(F)(b) begins "where the contract provides for a minimum payment...". These sections then, in their terms, distinguish between contract and contract document.

54 Second, the Code envisages that the contract document may not contain all the terms of the credit contract. I give some examples. A credit provider may, in breach of s12, enter into a contract, some of which is not in the form of a written contract document. A contract document may omit information required by s15. In fact Division 1 of Part 6 contemplates that this may happen. It permits a credit provider or the government consumer agency (here, the Director) to apply for civil penalty orders where a key requirement, of which this is one, is breached.

55 Third, one way of testing the correctness of this interpretation is to consider the application of s15 if the Code meant that the contract document and the credit contract were one and the same. Those provisions which require, for example, the contract document to contain certain information such as the information concerning interest, minimum payments and so on under the contract, would be meaningless repetition. They would be saying no more than the contract document must contain the information in the contract document. Parliament should not be presumed to have intended this.

56 Fourth, it has been often said that the intention of the Code is to promote truth in lending. Its disclosure requirements concerning key information in credit contracts are to that end. The purpose of s15 is to ensure that key information about credit contracts is disclosed to the borrower. Section 7 of Schedule 2 of the Code requires that the Code be interpreted in a way that will promote its scheme. In my view, the Director's reading of the Code does promote this scheme of the Code as I have described it. It is true that Schedule 1 of the Code defines "contract" to include a series or combination of contracts or arrangements and defines "contract document" to include one or many documents. My interpretation of "contract document" as it is used in s12 and other sections in the Code is not, in my view, inconsistent with these definitions. The definition of "contract document" is that it is a document setting out the terms of the contract. It does not say that it is a document setting out all or the terms or every term of a contract.

57 The next question is: what constitutes the contract document in these categories of transactions? The Director argues that the contract document is constituted only by the document headed "Disclosure Document". The respondents argue that the documents which constitute the respective credit contracts constitute the contract document.

58 In my opinion, for each of the sample transactions, the contract document is constituted by the Disclosure Document and the Contract of Sale. I explain why.

59 I illustrate my explanation by documents in the Rand exemplar transaction. This reasoning applies to the other sample transactions. Despite being headed "Disclosure Document", the document which I have called for convenience "the Disclosure Document" is, in its terms, a loan offer by the Keoghs to Rand. It contains a financial table, which is in a similar form to the pre-contractual statement required by s14 of the Code and r13 of the Regulations. It contains above the place for signature by the borrower the information and warnings required to be included in the contract document by s15(O) of the Code and r15 of the Regulations. Clearly, this is in my view part of the contract document.

60 The Contract of Sale, which is the only other document in the Rand transaction before me which has been signed by the parties to this case, is not in the same form. It is not structured in the same way and does not contain the same information and warnings. I conclude, as I have said, that the first document in the contract document is the Disclosure Document.

61 But is that document constituted by any other document? The Disclosure Document is headed "Credit Facility by way of a Terms Contract to Purchase" certain land. It begins, "the Lender offers You a loan (being a terms contract for the purchase of land) on the terms and conditions of this Loan Offer". As I have said earlier, the document later refers to "this offer and the terms and conditions", or to "this offer or the terms and conditions", in a number of places. It states that expressions defined in the terms and conditions have the same meanings as they do in the Loan Offer. It includes an acknowledgement by the borrowers that they have received a copy of the Loan Offer and the Terms and Conditions. The proper construction of this offer is that it incorporates the terms and conditions which are other than those set out in the offer itself. Because the loan is said to be by way of a terms contract to purchase land, proper construction of the document is, in my view, that the terms and conditions referred to are those contained in the contract for the sale of land.

62 My conclusion is not affected by that part of the Disclosure Document which states that "by virtue of the Contract of Sale that you enter into, you will be bound by the terms of the Mortgage between the lender and their mortgagees" contained in a specified Memorandum of Common Provisions. This is not, in my view, an incorporation of the Memorandum of Common Provisions into either the Disclosure Document. It does no more than describe the effect of the entering into the Contract of Sale. Nor is my conclusion affected by the fact that the Contract of Sale has not yet been entered into. Nor has the loan offer yet become a credit contract. The Loan Offer has not, of course, yet been accepted. My conclusion is not affected by the fact that the Contract of Sale does not contain, above the purchaser/borrower's signature, the warnings and information required by s15(O) of the Code and r15 of the Regulations. This is because, by virtue of s12(4), s12 is complied with if one of the documents constituting the contract document is duly signed, and the other documents are referred to in the signed document. In my view, the requirements of r15 relate to the document which is to be signed and not to the documents to be referred to in that document.

63 No other documents apart from the Contract of Sale are, in my view, incorporated into the Disclosure Document. Section 12(4), in my view, only permits the contract document to incorporate one layer of incorporation. In other words, the signed document can itself refer to documents which have not been duly signed, but this does not have the effect of then incorporating documents referred to in that unsigned document, and in that way, bringing them into the contract document itself. The Contract of Sale is the only other part of the contract document.

64 My orders reflect this decision as well as my decision concerning the credit contracts. I note that costs are reserved by the orders. That concludes my reasons for decision.