Rabone v Deane [1915] HCA 78; (1915) 20 CLR 636 (6 December 1915)

HIGH COURT OF AUSTRALIA

Rabone Defendant, Appellant; and Deane and Another Plaintiffs, Respondents.

H C of A

On appeal from the Supreme Court of New South Wales.

6 December 1915

Griffith C.J., Gavan Duffy and Rich JJ.

Blacket K.C. and Clive Teece, for the appellant.

Leverrier K.C., R. K. Manning and Sanders, for the respondents, were not called on.

Griffith C.J.

The points raised in this case are whether the late Mrs. Neale was carrying on business as a money-lender within the meaning of the Money-lenders and Infants Loans Act 1905, and, if so, whether the transaction in question was one entered into in the course of that business. Mrs. Neale was a lady to whom a very large sum of money—amounting to about £500,000—was left by her husband, and she desired to invest it. As she was entitled to do, she preferred to invest it upon mortgages of real estate. Such investments are approved of by the Court as investments of trust funds. As there was such a large sum to be invested she followed the practice of her late husband and had an office in Sydney, as her husband had before his death, at which applications for proposed mortgages were received and dealt with. The fact that money was available for investment was also notified by advertisement. She employed the defendant, who was her husband's nephew, to keep her accounts for her. While this was going on, the defendant induced her to buy 30,000 shares in a brick company, in which he was largely interested. That was not the sort of investment to which she had been accustomed, and after a little she repented of it and told her nephew that she wished to get rid of the shares, and suggested that he should buy them. He said that he could not pay for them as he had not the money. She said that she would allow the payment to stand over on security. I do not for a moment believe that she said that she would "lend" him the money to pay her for them. If she did, it would be the same in substance. The shares remained in her name. Accordingly an agreement was entered into by which he was to purchase the shares, but they were to remain registered in her name He was to pay her three per cent. interest on the unpaid purchase money, for which she gave him credit for a period of ten years. It is seriously contended that this was a transaction in the ordinary course of a business of a money-lender. It was simply a case of a security taken by an unpaid vendor for the price of goods sold. Mrs. Neale was not satisfied to take the security of the shares alone, but asked for and received security over certain land of the defendant. This makes it all the clearer that the case was one of a security taken by an unpaid vendor. The point is not seriously arguable.

The learned Judge said that the transaction seemed to him to be "far more like that of an unpaid vendor allowing a favoured purchaser to postpone the payment for his shares than that of a money-lender taking security for money lent." I should say that it was exactly a transaction of an unpaid vendor allowing a favoured purchaser to postpone the payment on giving security. The transaction, therefore, is clearly not even one made in the course of an investment business, if the word "business" is properly used in connection with her operations of investment.

I should like, however, to add that, as at present advised, although we have not heard full argument on this point, I see no reason for saying that the investing of money on mortgages of real estate, although carried on systematically and on a large scale, can be regarded as carrying on the business of a money-lender within the meaning of the Act.

Gavan Duffy J.

Nothing that I say must be taken to suggest that I think that Mrs. Neale was carrying on the business of a money-lender. It is unnecessary to deal with that question. It is sufficient to say that the learned Judge was right in coming to the conclusion that this agreement was not an agreement made in the course of the business of a money-lender.

Rich J.

I concur.

Appeal dismissed with costs.

Solicitors, for the appellant, McCarthy & Maxwell.

Solicitors, for the respondents, Shipway & Berne.