All Topics / Creative Investing / Adverse ruling by Tribunal for wrappers

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  • Profile photo of joshknackjoshknack
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    @joshknack
    Join Date: 2004
    Post Count: 8

    Hi everyone,

    Are people aware of the decision by the Consumer, Tenancy and Trader Tribunal of NSW in July 2005, Lewis v Ormes (Commercial) [2005] NSWCTTT 481? It is of concern for wrappers for the following reasons.

    In that case, the Consumer, Tenancy and Trader Tribunal (CTTT) ordered a wrapper to repay almost half of the instalments (amounting to almost $30k) he had received over a period of years to the purchasers of the property (the wrapper’s clients) on the basis that the wrap contract was “unjust”. The Tribunal calculated the amount of compensation based on the difference between the amount charged under the wrap contract, and what the rental cost of the property would have been. The Tribunal made its decision notwithstanding the fact that the purchasers had sought independent legal advice, and had been told that the wrap contract should be avoided.

    This case gives rise to a possibility that all wrap contracts could be so treated if a purchaser defaulted and decided to litigate the issue. The decision lists various factors that are taken into account in determining whether a contract is “unjust” (at para 17). It seems that to guard against an adverse finding such as was made in this case, wrappers should (amongst other things):

    • ensure their clients receive independant legal and/or financial advice,
    • genuinely negotiate the terms/ interest rate in the wrap contract,
    • make sure the contract is in plain English,
    • accurately and fully explain the effect of the contract and the transaction to the client,
    • ensure no pressure is put on the client to accept,
    • ensure that the mental condition of the client is such that the client is capable of protecting his or her interests, and
    • ensure that the contract is affordable for the client.

    If these matters are attended to, such an adverse decision may be avoided, but it is of note that the Tribunal did not directly address any of the factors it listed specifically.

    However, it did discuss at length that the provisions of cl 9.5 of the wrap contract (which provided that the deposit and instalments were forfeited by the clients on default), and observed that they were “draconian”. It went on to decide that, in its opinion, the contract was “unjust”. It should be noted that there was also a question in the case about one of the purchasers’ mental capacity.

    The fact the CTTT considered cl 9.5 to be “draconian” is of particular concern. The effect of the decision is of course a sum of its facts, but I wonder whether it may in future be necessary to sell the property as in an ordinary loan contract with a bank when a client has defaulted, and refund any balance to the client after all expenses have been paid (including paying out the balance of the contract with the wrapper’s financier).

    Has anyone else come across this decision, and if so, have they formulated a commercial response to it? As far as I can tell, the decision has not been appealed. The decision can be accessed at http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWCTTT/2005/481.html

    Cheers,
    Josh

    Disclaimer: the preceding is not legal advice and should not be treated as such. If you have legal concerns, please direct them to a wrap savvy solicitor.

    Profile photo of siaccisiacci
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    @siacci
    Join Date: 2003
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    I found this article very good reading. It points out very clearly (to me in particular) that you must do your due diligence on your potential client. You must ensure you check that they are able to meet thier repayments. You cannot just put anybody into a vendor finance contract and think “she’ll be right”. You have an obligation to do the right thing. I like to operate with a view to help the purchaser achive home ownership. If they are borderline say “NO”.

    Dave Siacci

    Profile photo of Paul DobsonPaul Dobson
    Participant
    @pauldobson
    Join Date: 2003
    Post Count: 1,196

    Hi Josh

    Having been a mortgage broker in the past, Karen and I have always understood the importance of having an excellent due dilligence paper trail to try to protect us from any unconscionable lening claims.

    An easy way to put together a standard type of paper trail is to collect a bunch of loan application forms from different lending institutions. These application forms usually contain a list of the supporting paper work a lender needs you to submit with your application. Collect the same paperwork from your prospective wrapees.

    These application forms should also help you to make up your own application form. These application forms have sections for “other loans” and ‘assets and liabilities” for good reason.

    We also insist prospective wrapees supply us with a copy of their Credit Report. We also ring their employers to confirm real wages. When we do this we minute when we rang, who we spoke to and what they said in relation the wrapees wage package. This is what the back room people do in traditional lending organisations and they don’t come unstuck too often :-)

    Good luck.

    Cheers, Paul

    Paul & Karen Dobson
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    Profile photo of thecrestthecrest
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    @thecrest
    Join Date: 2004
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    ensure that the mental condition of the client is such that the client is capable of protecting his or her interests, and

    How are you meant to do this ?
    Do you request a recent psych report ?
    Howzabout a literacy & numeracy competency test ?
    Whatever happened to caveat emptor ?

    All sounds like swiss cheese to me.

    good luck, hope you wrappers can plug the holes.

    cheers
    thecrest

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    Profile photo of joshknackjoshknack
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    @joshknack
    Join Date: 2004
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    Thanks Paul, those are some helpful tips. I too think it is possible to avoid such problems if you are careful.

    Josh

    Profile photo of joshknackjoshknack
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    @joshknack
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    Post Count: 8

    Hi again,

    An update: I am aware that the decision is the subject of an appeal, although I don’t know when the hearing is going to be held.

    Cheers,
    Josh

    Profile photo of TerrywTerryw
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    @terryw
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    Nice summary Josh

    Terryw
    Discover Home Loans
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