ACT CIVIL & ADMINISTRATIVE TRIBUNAL

LION FINANCE PTY LTD v SU (Appeal) [2018] ACAT 1

AA 18/2017 (XD 158/2017)

Catchwords: APPEAL – civil dispute – personal loan from bank to respondent – respondent in default – debt assigned to appellant – when appellant advised respondent of assignment of debt – whether appellant engaged in unconscionable conduct in attempting to recover amount owing – whether six year limitation for bringing action against respondent has expired or was extended by actions of the respondent

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 8, 26, 48Australian Consumer Law (Cth) ss 18, 20Limitation Act 1985 ss 11, 32Trade Practices Act 1974 (Cth) ss 51AA, 52

Cases cited: Douch v Betts and Insurance Australia Ltd t/as NRMA Insurance [2013] ACTSC 126Sarbandi v Sharif [2017] ACAT 57

Tribunal: President G Neate AM

Date of Orders: 4 January 2018Date of Reasons for Decision: 4 January 2018

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 18/2017

BETWEEN:

LION FINANCE PTY LTDAppellant

AND:

PAUL AIK KHOON SURespondent

TRIBUNAL: President G Neate AM

DATE: 4 January 2018

ORDER

The Tribunal orders that:

1. The appeal be allowed.

2. Paul Aik Khoon Su pay Lion Finance Pty Ltd the sum of $24,475.23, being

$24,185.23 and $290.00 as the filing fee for the original civil dispute application

to the Tribunal.

………………………………..President G Neate AM

REASONS FOR DECISION

1. Lion Finance Pty Ltd (Lion Finance) has appealed against a decision of the ACT

Civil and Administrative Tribunal (the Original Tribunal) on 1 May 2017

dismissing an application by Lion Finance for the recovery of a debt said to be

owed by Paul Aik Khoon Su. The original Tribunal’s decision was made on the

basis that:

(a) Lion Finance had not established that Mr Su was indebted to the

Australian and New Zealand Banking Group (ANZ Bank);

(b) even if Mr Su was indebted, Lion Finance could not establish when the

cause of action accrued;

(c) Lion Finance breached sections of the then Trade Practices Act 1974

(Cth) and engaged in unconscionable conduct and/or misleading and

deceptive conduct in relation to Mr Su; and

(d) it was not possible to determine whether the limitation period had expired

when the alleged debt was assigned to Lion Finance by the ANZ Bank;

(e) in light of the conduct of Lion Finance, Mr Su had not acknowledged or

accepted liability to pay the debt by making payments to Lion Finance;

(f) the bringing of the claim by Lion Finance was statute barred because any

payments induced by its conduct cannot establish that the time limit was

extended pursuant to section 32 of the Limitation Act 1985.

2. In its Application for Appeal, Lion Finance contended that the following errors of

fact or law were made by the Original Tribunal at the hearing on 1 May 2017:

(a) that Lion Finance could not establish a debt owed by Mr Su to the ANZ

Bank;

(b) that Lion Finance breached section 51AA of the then Trade Practices Act

1974 (Cth), now section 20 of the Australian Consumer Law (Cth);

(c) that Lion Finance breached section 52 of the then Trade Practices Act

1974, now section 18 of the Australian Consumer Law;

(d) that Lion Finance engaged in unconscionable conduct towards Mr Su;

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(e) that payments made by Mr Su and received by Lion Finance were made as

a result of Lion Finance’s unconscionable and/or misleading and

deceptive conduct;

(f) that the application by Lion Finance is statute barred under section 11 of

the Limitation Act 1985 (ACT).

3. Lion Finance applied for the order made on 1 May 2017 to be set aside and for the

following order to be substituted:

1. That judgment be entered against the Respondent in the sum of

$24,475.23.

4. In its Application for Appeal, Lion Finance stated that it wished to introduce

additional evidence of certain specified events or actions. It stated that it now

had in its possession evidence which would establish that:

(a) Lion Finance did not breach relevant sections of the then Trade Practices

Act 1974, now the Australian Consumer Law;

(b) Lion Finance did not engage in unconscionable conduct towards Mr Su

and consequently the payments made by him were not made as a result of

unconscionable and/or misleading and deceptive conduct; and

(c) Lion Finance was not statute barred under section 11 of the Limitation Act

1985 at the time of filing its application.

5. On the application of Lion Finance, and having heard from Mr Su, the Appeal

Tribunal gave leave to adduce some additional material. At a directions hearing

on 19 June 2017, the Appeal Tribunal made procedural orders including orders

to the following effect:

(a) Subject only to order 2, the appeal would be dealt with as a review of the

decision dated 1 May 2017;

(b) By order 2, Lion Finance was granted leave to produce the following

additional evidence:

(i) a letter of offer from the ANZ Bank to Mr Su signed by him on

about 21 September 2007;

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(ii) file notes by Lion Finance in relation to telephone contact with

Mr Su in 2009 and 2010;

(iii) statements of accounts confirming payments on 15 and 22

December 2009 by direct deposit from ANZ Bank to Lion Finance;

(iv) an affidavit by representatives of the ANZ Bank in relation to some

or all of the documents referred to in (i) to (iii).

(c) The Tribunal was to provide to each party a copy of the transcript of the

hearing before the Original Tribunal on 1 May 2017.

(d) Lion Finance was to file in the Tribunal Registry and serve on Mr Su its

submissions and the additional material referred to in order 2 by Monday,

10 July 2017.

(e) Mr Su was to file and serve his submissions in response by Monday,

24 July 2017.

Additional evidence

6. In compliance with the orders made on 19 June 2017:

(a) Lion Finance provided its written submissions and affidavits of Renee

Polaczuk and Ainsley Windress with the attached documents; and

(b) Mr Su provided his written submissions with two attached documents.

7. Ms Polaczuk is a Senior Vendor Analyst employed by the ANZ Bank. She had

access to the books and records and the file maintained by the ANZ Bank in

relation to the debt and account relating to these proceedings, and had reviewed

the systems records of the ANZ Bank. Ms Windress is a solicitor employed by

CLH Lawyers, the firm of solicitors acting for Lion Finance. She had access to

the books and records and the file maintained by Lion Finance in relation to the

debt and account relating to these proceedings.

8. There was an issue about the extent to which Lion Finance could rely on the

affidavits of Ms Polaczuk and Ms Windress. At the start of the hearing of the

appeal, the solicitor appearing for Lion Finance stated that neither deponent was

available to be questioned on their affidavit because both were in Queensland,

and he was not aware of any written communication from Mr Su asking for

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them to be available for cross examination. Mr Su is not a lawyer and was not

legally represented. It was clear that he had questions to ask both Ms Polaczuk

and Ms Windress in relation to what he described as “false statements”. His

written statement took issue with some statements in the affidavits. The Appeal

Tribunal also would have asked questions.

9. After a short adjournment, Ms Windress was available by telephone and was

asked questions about her affidavit and about some of the documents annexed to

Ms Polaczuk’s affidavit. Those documents are exhibits in these proceedings.

The affidavit of Ms Polaczuk was not proved but is before the Appeal Tribunal

and may be given such weight as is appropriate in light of the surrounding

evidence and any objections being made by Mr Su.

10. The formal difficulty in proving some of the evidence relied on by Lion Finance

does not prevent the Appeal Tribunal from having regard to it, although the lack

of opportunity to test the evidence might go to the weight that should be given

to some of that evidence. Under sections 8 and 26 of the ACT Civil and

Administrative Tribunal Act 2008 the Tribunal need not comply with the rules

of evidence and may inform itself in any way as it considers appropriate in the

circumstances. The implications of those provisions were considered in some

detail by the Appeal Tribunal in Sarbandi v Sharif.1 Those passages need not be

repeated here.

The issues

11. From the way the appeal was argued the issues on appeal are in summary:

(a) whether there is evidence of a debt owed by Mr Su to the ANZ Bank;

(b) if so, when the debt was transferred from the ANZ Bank to Lion Finance;

(c) whether, in seeking to recover payment of the debts, Lion Finance

engaged in unconscionable conduct in relation to Mr Su; and

(d) whether the limitation period for bringing the action against Mr Su has

expired or whether it has been extended by the actions of Mr Su.

1 Sarbandi v Sharif [2017] ACAT 57 at [52]-[59]

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12. Sections 11 and 32 of the Limitation Act 1985 are relevant to the final of those

issues.

13. Section 11 provides for a six-year limitation period within which actions on any

cause of action may be maintained. It states:

11 General(1) Subject to subsection (2), an action on any cause of action is not

maintainable if brought after the end of a limitation period of 6 years running from the date when the cause of action first accrues to the plaintiff or to a person through whom he or she claims.

(2) Subsection (1) does not apply to a cause of action in relation to which another limitation period is provided by this Act.

14. Section 32 provides for specified circumstances in which a limitation period can

be extended. Of particular significance to this case are subsections 32(1), (2)(a)

(ii) and (4) which relevantly provide:

32 Confirmation(1) If, after a limitation period fixed by or under this Act for a cause of

action begins to run but before the end of the limitation period, a person against whom … the cause of action lies confirms the cause of action, the time during which the limitation period runs before the date of the confirmation does not count in the reckoning of the limitation period for an action on the cause of action by a person having the benefit of the confirmation against a person bound by the confirmation.

(2) For this section—(a) a person confirms a cause of action if … he or she—

(i) acknowledges, to a person having (either solely or with other persons) the cause of action, the right or title of the person to whom the acknowledgment is made; or

(ii) makes, to a person having (either solely or with other persons) the cause of action, a payment in relation to the right or title of the person to whom the payment is made;

…(4) An acknowledgment for this section shall be in writing and signed

by the maker.

Background – a chronology

15. The matters in dispute between the parties can be understood and decided by

reference to a series of events, including financial transactions between

September 2007 and December 2012. Evidence in relation to each event or

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transaction is found in documents received into evidence before the Original

Tribunal and additional documents in evidence before the Appeal Tribunal.

16. By letter dated 20 September 2007, the ANZ Bank offered Mr Su a personal loan

in the amount of $20,125.00 inclusive of fees. He was to make 181 fortnightly

repayments of principal and interest of $173.68 each, followed by a final

repayment of $324.24.2 The nominated date of advance was 21 September 2007.

The first repayment was to be made one fortnight after the date of advance. The

total period of repayments was seven years. Mr Su was advised of the methods

of accepting this offer, one of which was to sign a copy of the Letter of Offer

and return it to a nominated mail or fax address. He was advised that by

accepting this offer he acknowledged receipt of the Letter of Offer and a copy

of the Consumer Lending Terms and Conditions booklet and “agreed to and

accept the terms set out in these documents.”

17. Mr Su signed the Letter of Offer on 21 September 2007.3

18. Apparently Mr Su made payments until 9 July 2009.

19. By Notice of Demand dated 25 August 2009, the ANZ Bank stated that Mr Su

was $941.39 in arrears. It demanded that Mr Su pay immediately the principal

amount of $17,335.33 plus fees of $46.65, totalling $17,381.98.4 Apparently

Mr Su paid $50 on 17 September 2009.

20. On 30 October 2009, lawyers for the ANZ Bank wrote to Mr Su advising that he

owed it $17,742.21 and, unless the ANZ Bank received the payment in that sum

by 6 November 2009, they would seek instructions from the ANZ bank “for the

recovery of the debt without further notice to you.”5 Apparently Mr Su paid $20

on 17 November 2009.

21. ANZ Bank records show that on 1 December 2009 the amount of $17,899.33 was

“charged off” by the bank.6

2 A total of $31,760.323 See RP-034 See RP-045 See RP-056 See RP-06

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22. A Statement of Account of Lion Finance prepared in relation to Mr Su’s account7

includes the following entry first in the list of transactions:

Date Transaction details

Debit Credit Balance

4/12/2009

OPENING BALANCE

$17,899.33 $17,899.33

23. On 15 December 2009, Mr Su paid the sum of $20.00 to the ANZ Bank.

24. By a letter dated 17 December 2009 and headed Account Verification, Lion

Finance contacted Mr Su about the amount of $17,899.33 due as at that date.

The letter notified him that the account had been sold by the ANZ Bank to Lion

Finance which believed that $17,899.33 “plus any accrued interest, (the Debt),

is due and payable on your account.” Lion Finance purchased the Debt from the

ANZ Bank “on this basis.” Lion Finance advised Mr Su that:

As ANZ has now transferred legal ownership of your Debt to Lion Finance, you are now liable to Lion Finance (not ANZ) for payment of the Debt. If you make payment(s) to any other party, including ANZ, you will not receive a valid discharge from your Debt.

25. Enclosed with that letter was the Notice of Assignment of Debt from the ANZ

Bank dated 17 December 2009 which, Lion Finance wrote, “is effective

immediately.” By that Notice, Mr Su was advised that the ANZ Bank had

assigned to Lion Finance “all its legal and beneficial right, title and interest in

and to the Debt” which, at that date, was $17,899.33. He was “irrevocably

directed” to pay the Debt to Lion Finance. He was advised that if he had not

arranged payment of the debt in full or arranged payment options, Lion Finance

might contact him and enforce all the provisions of the Agreement between

Mr Su and the ANZ Bank “in order to recover the Debt that you now owe to

Lion Finance.” He was advised that “the Debt” meant any amount owing or to

become owing by him to the ANZ Bank in connection with this account on or

after 17 December 2009, including all interest, credit and other charges payable

by him to the ANZ Bank pursuant to the agreement between him and the ANZ

Bank.

7 See AW-01. The document is dated 6 July 2017

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26. On 22 December 2009, Mr Su paid the sum of $30.00 to the ANZ Bank.

27. Records tendered by Lion Finance8 show that it attempted to contact Mr Su by

phone for the first time on 30 December 2009. The record notes that at 11.38am

on that date a call was placed to a telephone number (which Mr Su confirmed

the Appeal Tribunal was his phone number9) and “NA AND NO FACILITY TO

LEAVE A MSG” which meant that there was no answer and no facility on his

telephone to leave a message for him. (The records also indicate that the first

telephone contact with him was on 1 September 2010.)

28. On 5 January 2010, the ANZ Bank reversed the two payments of $20.00 and

$30.00 and they were backdated to the dates of payment.10 The Statement of

Account for Mr Su’s account recorded LION DIRECT DEPOSITS of $20 on

15 December 2009 and $30 and 22 December 2009.11 An Interim Statement of

Account prepared by the ANZ Bank in relation to Mr Su’s personal loan, shows

that, after the reversal of the loan repayments, the amount owed by Mr Su was

$17,899.33.12

29. That Statement of Account recorded 14 BPAY payments of sums to Lion Finance

between $20.00 and $60.00 on separate dates between 2 September 2010 and

6 December 2012.13 As at 7 February 2017, when the Civil Dispute

Application was prepared by Lion Finance, the balance owing was $24,185.23.

Submissions of Lion Finance

30. Lion Finance submits that there is evidence of a debt owed by Mr Su to the ANZ

Bank arising from the personal loan document executed by Mr Su on

21 September 2007. The cause of action arose from Mr Su’s default on his

personal loan and his failure to comply with a Default Notice and Letter of

Demand sent to him by the ANZ Bank on 25 August 2009. Because Mr Su

failed to remedy the default within a period of 30 days in accordance with the

Default Notice, Lion Finance submits that the cause of action accrued at the

8 See AW-049 Transcript of proceedings page 1410 See RP-06, RP-07, RP-0811 See AW-0112 See RP-0713 See AW-01

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earliest from 26 September 2009. Accordingly, under section 11 of the

Limitation Act 1985, the ANZ Bank or any assigned parties (in this case, Lion

Finance) had a period of six years from that date to commence proceedings on

the cause of action (that is, until 26 September 2015).

31. Lion Finance further submits that the limitation period to commence those

proceedings was extended by the application of section 32(2)(a)(ii) of the

Limitation Act 1985 (quoted at [14]) because:

(a) Mr Su made a payment to the ANZ Bank on 22 December 2009,

extending the period to 22 December 2015; and

(b) Mr Su made further payments to Lion Finance from 2 September 2010

until 6 December 2012, further confirming the debt due and owing and

extending the period to 6 December 2018.

32. In its submission, part payments are dealt with in an equivalent way to

acknowledgement or acceptance of a debt, and multiple payments can have the

effect of confirming a cause of action on multiple occasions. In support of its

submission, Lion Finance refers to the decision in Douch v Betts and Insurance

Australia Ltd t/as NRMA Insurance14. Accordingly, Lion Finance submits that

the Original Tribunal’s finding that payment towards a debt is not sufficient

acknowledgement or acceptance of liability that debt, without any express

admission of acceptance or acknowledgement of that debt, is in contravention of

section 32(2)(a)(ii) of the Limitation Act 1985. Although section 32(4) of that

Act requires acknowledgement of a debt to be made in writing and signed by

the maker, Lion Finance submits that such acknowledgement is not the sole

valid method of confirming a cause of action in accordance with that Act.

Consequently, it submits, the Original Tribunal’s finding is flawed, incorrect at

law and should not be allowed to stand. It follows that the debt was not statute

barred at the time the proceedings were commenced in February 2017.

14 Douch v Betts and Insurance Australia Ltd t/as NRMA Insurance [2013] ACTSC 126 at [12]

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33. Lion Finance also submits that it did not breach section 51A or section 52 of the

then Trade Practices Act 1974, now sections 20 and 18 of the Australian

Consumer Law, because the evidence shows that:

(a) it did not contact Mr Su on 14 December 2009;

(b) it did not attempt to contact Mr Su by telephone until 30 December 2009

and was not successful in doing so until 1 September 2010.

34. Further, Lion Finance submits that it did not engage in unconscionable or

misleading conduct by demanding that Mr Su make payment of the debt prior to

giving written notice of the assignment on 17 December 2009. Such demands

did not occur and payments were not made or procured as a result of its alleged

unconscionable and/or misleading conduct because such payments were made

directly to the ANZ Bank and not Lion Finance. Further payments were not

made as a result of its alleged unconscionable and/or misleading conduct as

such conduct did not take place.

35. At the end of the hearing, there was some uncertainty as to the relief sought by

Lion Finance. Its written submissions sought that the order made by the Original

Tribunal on 1 May 2017 be set aside.

36. At the prompting of the Appeal Tribunal the lawyer for Lion Finance obtained

further instructions. He submitted that the Appeal Tribunal should make orders

to the effect that:

(a) Mr Su pay Lion Finance the sum of $20,200.48 for money owing by him

pursuant to the agreement with the ANZ Bank; and

(b) $1,326 in filing fees (being the $290 filing fee in the original proceedings

and $1,036 filing fee for the appeal).

37. It appears that the first sum was drawn from page 2 of the original Civil Dispute

Application which sought the sum of $20,200.48 for monies owing to Lion

Finance plus filing fees of $290.00. On page 4 of the Civil Dispute Application

the amount claimed was $24,185.23 plus a filing fee of $290.00, with the total

amount of the claim being $24,475.23.

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38. A Statement of Account of Lion Finance prepared in relation to Mr Su’s account15

dated 6 July 2017 includes a current balance of $24,886.13.

Submissions of Mr Su

39. Mr Su referred to the following two statements in the original Civil Dispute

Application made by Lion Finance in matter XD158/2017 filed with the

Tribunal Registry on 13 February 2017:

On 4 December 2009, the Assignor effected an assignment in this jurisdiction to the Plaintiff of the Assignor’s right, interest and entitlement in and to the Debt and the Agreement for valuable consideration (“the Assignment”)(the First Statement)

On 14 December 2009, the Plaintiff gave the Defendant written notice of the Assignment with full particulars of the outstanding Debt, and at the same time a demand for payment of the Debt by the Defendant to the Plaintiff (the Second Statement)

40. In relation to the First Statement, Mr Su disputed the date of 4 December 2009

and submitted that it was not proven by any evidence. Rather, the debt of

$17,899.33 was assigned on 17 December 2009, as shown by the Notice of

Assignment of Debt sent to him on that date. Mr Su submitted that any affidavit

evidence about 4 December 2009 is false, inaccurate and untrue and hence is

deceptive and misleading conduct in breach of the Australian Consumer Law.

That attempt to distort the truth is unconscionable conduct.

41. In relation to the Second Statement, Mr Su contended that he was contacted on 14

December 2009 by Lion Finance with a demand for payment, and that he was

scared, frightened, and induced by Lion Finance to make a payment. That was

unconscionable conduct. Mr Su did not produce any evidence to the Original

Tribunal or the Appeal Tribunal in support of that submission. Rather, it was

clear that he relied on that statement of Lion Finance as evidence of what had

occurred on 14 December 2009 and extrapolated from that all subsequent

payments made by him, whether to the ANZ Bank or Lion Finance, were made

under duress as a result of the unconscionable conduct by Lion Finance.

15 See AW-01. The document is dated 6 July 2017

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42. When pressed on what actually happened, Mr Su said “It was such a long time

ago.”16 He continued:

I don’t think you can - can confirm one way or another, you see. But I do think that they have made an attempt to contact me on the 14th, which is backed up by this statement they made on the original claim. Otherwise, they would be saying that the original claim statement was a false statement lodged to the tribunal in the claim.17

43. Later he reiterated “I don’t think anybody can confirm that, because it’s such a

long time ago.” That was followed by an exchange between the Appeal Tribunal

and Mr Su:

PRESIDENT NEATE: Now, what I want to know is, was there any evidence before Senior Member Ferguson about any threats or inducements?

MR SU: Their standard of letter of demands are - you know, taking legal action and things like that, those are - those are the standard documentation that they - - -

PRESIDENT NEATE: So I just want to make sure I absolutely understand the evidence here.

MR SU: Yes.

PRESIDENT NEATE: You got a letter dated 17 December, 2009, and you saying that that letter was a threatening letter? Or are you talking about (indistinct) communication?

MR SU: That letter - that letter was a letter to inform me that the debt wastransferred from ANZ bank to Lion Nathan.(sic)

PRESIDENT NEATE: Right.

MR SU: And then them - they demanded payment, right, dated by them,themselves, on 14 December. I was frightened and made payment.

PRESIDENT NEATE: So you say there was some communication on 14 December. But we've got no evidence about that.

MR SU: Except the statement made by them, themselves.18

44. Mr Su also contended that there was an onus on Lion Finance to prove that they

did not contact him at all. Lion Finance had not provided any evidence to that

effect. Lion Finance did not prove that no contact was made on 14 December

2009, and it was unconscionable for Lion Finance to demand something that it

was not entitled to at that point.16 Transcript of proceedings page 3717 Transcript of Proceedings page 3818 Transcript of proceedings page 43

13

45. During the hearing of the appeal, Ms Windress gave evidence that the date of

14 December 2009 was an error in the preparation of the Civil Dispute

Application. In reply to that, Mr Su contended that the making of a mistake is

unacceptable, not right and not honourable.19

46. Mr Su submitted that because the statements in the Civil Dispute Application and

Ms Windress’ evidence are in total contradiction to each other, one must be

untrue and false. He submitted that, in all the circumstances, he had to assume

that the statement in the application is true, and that Lion Finance contacted him

on 14 December 2009 and demanded payment at the same time.

47. According to Mr Su, because the debt was not assigned to Lion Finance until

17 December 2009, Lion Finance was not entitled to demand payment from him

on 14 December 2009. Its conduct was in breach of sections 18 and 20 of the

Australian Consumer Law.

48. Finally, Mr Su submitted that he has “a complete defense against a Statute Barred

Debt” because, in summary:

(a) there is no documentation to support the claim by Lion Finance that

payments by Mr Su were for the specific Debt;

(b) alternatively, there were no documents from Lion Finance acknowledging

payments made by him;

(c) payments which are not proved to be for the specific Debt are insufficient

to be used to extend the limitation period;

(d) the payments to Lion Finance made by Mr Su were induced by the

demand made by Lion Finance to him on 14 December 2009 (which was

both unconscionable and misleading or deceptive);

(e) by the operation of section 32 of the Limitation Act 1985, the limitation

period is six years from the last legal payment to the ANZ Bank on

22 December 2009;

(f) that six years period expired on 22 December 2015;

19 Transcript of proceedings page 40

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(g) the Civil Dispute Application was made by Lion Finance in February

2017;

(h) in the circumstances of this case, it would be inequitable to permit Lion

Finance to rely on subsequent payments by Mr Su for the purposes of

extending the limitation period under section 32 of the Limitation Act

1985.

49. Mr Su submits that the appeal should be dismissed and the decision of the

Original Tribunal should be confirmed.

Consideration and conclusion

50. It is apparent from reading the transcript of the hearing before the Original

Tribunal that the legal representative of Lion Finance did not have, and did not

have access to, significant documentary evidence including the loan agreement

between Mr Su and the ANZ Bank.

51. It will also be apparent that, as a consequence of order made by the Appeal

Tribunal on 19 June 2017, Lion Finance was able to provide to the Appeal

Tribunal documents that were not (but presumably could have been) in evidence

before the Original Tribunal. In that sense, Lion Finance was able to attempt to

plug evidentiary gaps in its original case.

52. Although in some respects the appeal was conducted as a review of the original

decision and the reasons for it, the additional information available to the

Appeal Tribunal supports a different outcome.

53. Given the evidence available to the Appeal Tribunal and summarised above, the

four issues outlined earlier can be dealt with briefly.

54. First, there is clear and uncontradicted evidence that Mr Su entered into a personal

loan agreement in writing with the ANZ Bank on 21 September 2007 and made

a series of repayments in accordance with that agreement. He continued to make

regular payments until 9 July 2009. Having ceased making regular payments he

received a Notice of Demand. The Debt was not repaid at that time. Mr Su made

his final two payments to the ANZ Bank of $20 on 15 December 2009 and $30

on 22 December 2009. I am satisfied that Mr Su owed a debt to the ANZ Bank.

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55. Second, I am satisfied that on or about 4 December 2009 the ANZ Bank

transferred the debt to Lion Finance. There is relatively little evidence about that

date. Mr Su disputed it and contended that it was not proven. There is no letter

of transfer or similar document in evidence in these proceedings or the

proceedings before the Original Tribunal. The letters dated 17 December 2009

when considered in isolation might suggest that the assignment of the Debt took

effect on 17 December 2009.

56. However, another inference can be drawn from the Statement of Account of Lion

Finance prepared in relation to Mr Su’s account, dated 6 July 2017, which lists

all transactions between 4 December 2009 and 30 June 2017. The first entry

dated 4 December 2009 refers to an opening balance of $17,899.33. That is

consistent with the ANZ Bank’s records that on 1 December 2009 the amount of

$17,899.33 was ‘charged off’ by the bank. Also in evidence was a printout of a

series of file notes in relation to communications by Lion Finance with Mr Su.

Ms Windress gave oral evidence that Lion Finance purchased the Debt on

4 December 2009 and that the file note entry for 9 December 2009 at 8.29 am

indicates the date and time when the account was generated in Mr Su’s name. In

her affidavit, Ms Windress referred to Mr Su’s account being “loaded” with

Lion Finance on 9 December 2009.

57. In the absence of evidence of any other reason why Lion Finance would prepare a

Statement of Account in relation to Mr Su from 4 December 2009 and

commence recording file notes about him from 9 December 2009, I am satisfied

that Mr Su’s Debt was transferred from the ANZ Bank to Lion Finance on or

about 4 December 2009.

58. Third, there is no evidence of Lion Finance engaging in unconscionable conduct

in relation to Mr Su when seeking to recover payment of the debt. The

allegation of unconscionable conduct seems to have been premised on telephone

contact said to have been made by Lion Finance with Mr Su on 14 December

2009 demanding payment of money before he had received written notice of the

transfer of the Debt. There are two difficulties with that allegation.

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59. The primary difficulty is there is no evidence in support of demands being made

on 14 December 2009. It appears that the date was first referred to in the claim

made by Lion Finance in the original Civil Dispute Application filed with the

Tribunal on 13 February 2017. As noted earlier, the claim stated:

On 14 December 2009, the Plaintiff gave the Defendant written notice of the Assignment with full particulars of the outstanding Debt, and at the same time made demands for payment of the Debt by the Defendant to the Plaintiff.

60. Evidence in these proceedings from Ms Windress indicates that 14 December

2009 was included in error in that application. Her evidence is supported by a

file note entry which indicates that an attempt was made on 14 December 2009

to order a LAV-NOA (Letter of Account Verification and Notice of

Assignment), but the letter was not sent. A later entry shows that the letter was

ordered and sent by mail on 17 December 2009. That letter headed Account

Verification, together with the Notice of Assignment of Debt from the ANZ

bank of the same date, were sent to Mr Su.

61. The list of file notes in evidence record an attempt by someone on behalf of Lion

Finance to make a telephone call to Mr Su on 30 December 2009 at 11.36am

but there was no answer and no facility to leave a message. Mr Su confirmed

that the telephone number listed on the file note was his telephone number. The

file notes list a series of other unsuccessful attempts to contact Mr Su on that

telephone number over succeeding months. According to the file notes, it was

not until 1 September 2010 one a representative of Lion Finance spoke with Mr

Su by telephone.

62. A secondary difficulty with the allegation of unconscionable conduct is found in

the written statement in the original claim by Lion Finance (quoted above at

[59]) and on which Mr Su relies. As the solicitor for Lion Finance pointed out,

even if that statement was correct it could not support the allegation of

unconscionable conduct because it asserts that Lion Finance provided written

notice of the assignment before or at the same time or he was contacted in

relation to a demand for payment.

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63. Accordingly, I find that the allegation of unconscionable conduct on the part of

Lion Finance on or about 14 December 2009 is not proved. Nor does the other

documentary and oral evidence support any broader allegation of

unconscionable conduct on the part of Lion Finance.

64. Fourth, the relevant limitation period is found in sections 11 and 32 of the

Limitation Act 1985 quoted at [13] and [14] above. The evidence before the

Appeal Tribunal summarised above shows that Mr Su made periodic payments

to the ANZ Bank under the agreement with the ANZ Bank until July 2009 and

made two subsequent small payments in September and November 2009

following correspondence from the ANZ Bank, then payments of $20 and $30

respectively on 15 and 22 December 2009 to the ANZ Bank. Those final two

amounts were credited or assigned to Lion Finance in early January 2010.

Mr Su subsequently made another 14 BPAY payments direct to Lion Finance

amounts between $20 and $60 in the period from 20 September 2010 until

6 December 2012.

65. Given my findings about when the Debt was transferred to Lion Finance, and that

no demands were made by Lion Finance for payments by Mr Su until its letter

of 17 December 2009, and the fact that Mr Su continued to pay amounts (albeit

of small sums) to the ANZ Bank and then to Lion Finance after that date, there

is no basis in fact for finding that the limitation period was not extended beyond

the six year period after the cause of action commenced.

66. I do not accept Mr Su’s submissions that there is no documentation to support the

claim that his payments were for the Debt and hence that he was not paying off

the Debt. No suggestion was made that the payments were other than for the

Debt. They were made after, and apparently in light of, the correspondence of

17 December 2009, and it seems unlikely that Mr Su would continue to pay

money to Lion Finance other than for the purpose of trying to repay the Debt.

The file note of the telephone conversation with Mr Su on 1 September 2010

records his difficult financial circumstances (including outstanding mortgage

payments) and that he could only make occasional payments to the account via

BPAY. As noted earlier, he made some 14 payments by BPAY in the period

between 2 September 2010 and 6 December 2012.

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67. That conclusion finds support in a careful reading of section 32(2)(a) of the

Limitation Act 1985 which provides that a person ‘confirms’ a cause of action in

one of two ways. Either the person:

(a) acknowledges the cause of action to a person having the cause of action;

or

(b) makes a payment to a person having the cause of action, and that payment

is in relation to the right or title of the person to whom the payment is

made.

68. Although section 32(4) states that an ‘acknowledgement’ for this section shall be

in writing and signed by the maker, section 32(2)(a)(ii) includes no such

requirement. A person ‘confirms’ a cause of action if he or she makes a

payment of the prescribed type. As was stated in Douch v Betts and Insurance

Australia Ltd t/as NRMA Insurance:20

the words of s 32 do not, in terms, confine the position so that there can only be one confirmation by acknowledgement. … Part payments are dealt with in an equivalent way to acknowledgements in s 32(2), and … multiple payments can have the effect of confirming a cause of action on multiple occasions.

69. Having regard to the evidence referred to above, I am satisfied that Mr Su

continued to make payments to Lion Finance as the person having the cause of

action and being entitled to receive the payment.

70. It follows that the appeal must succeed.

71. It will be clear from the reasons for decision that the conclusion was reached

having regard to evidence that was not available to the Original Tribunal.

Consequently, the decision in this case is based on findings of fact that were not

open to the Original Tribunal.

72. Although Lion Finance must succeed on the appeal, the Appeal Tribunal has some

discretion as to whether to include an amount for the filing fees paid by Lion

Finance in bringing this appeal.21 Because Lion Finance was successful in

20 Douch v Betts and Insurance Australia Ltd t/as NRMA Insurance [2013] ACTSC 126 at [12]

21 ACT Civil and Administrative Tribunal Act 2008 section 48(2)(a)

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convincing the Appeal Tribunal to allow additional evidence which presumably

could, and should, have been available at the hearing before the Original

Tribunal, the hearing of the appeal was much more than a review of the decision

of the Original Tribunal. It is possible that if Lion Finance had provided all that

material to the Original Tribunal the result at first instance would have been

different. The way in which the appeal was conducted allowed Lion Finance to

plug the evidentiary gaps that were evident at the original hearing. Accordingly,

I am not persuaded that Lion Finance should be awarded an amount for the

filing fee in bringing this appeal.

73. Although various amounts were referred to as the size of the Debt, I am satisfied

that the appropriate sum to award is $24,475.23, comprising $24,185.23 for the

Debt owing when the original claim was made to the Tribunal and $290.00 for

the filing fee of the original application.

Orders74. The Appeal Tribunal orders that:

1. The appeal be allowed.

2. Paul Aik Khoon Su pay Lion Finance Pty Ltd the sum of $24,475.23,

being $24,185.23 and $290.00 as the filing fee for the original civil

dispute application to the Tribunal.

………………………………..President G Neate AM

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HEARING DETAILS

FILE NUMBER: AA 18/2017

PARTIES, APPELLANT: Lion Finance Pty Ltd

PARTIES, RESPONDENT: Paul Aik Khoon Su

COUNSEL APPEARING, APPLICANT N/A

COUNSEL APPEARING, RESPONDENT N/A

SOLICITORS FOR APPLICANT Chamberlains Law Firm, as town agent for CLH Lawyers

SOLICITORS FOR RESPONDENT N/A

TRIBUNAL MEMBERS: President G Neate AM

DATES OF HEARING: 31 July 2017

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