Leasing scams earn their day in court
A number of finance companies and banks that provided questionable leases and loans for technology equipment may find the courts willing to nullify contracts on the grounds of unconscionable conduct, following a ruling in the Federal Court of Australia two weeks ago.In a decision that sets a precedent for this type of litigation, the owners of a medical practice in Capalaba, Queensland succeeded in a cross-claim against Technology Leasing Ltd in a dispute about rental payments over a phone system provided (and sold) by Freshtel in late 2007. Technology Leasing was the financier under a five-year contract, with the costs of the rental being offset by a "billing credit" from the telco. The medical practice, operating through Lennmar Pty Ltd, continued to make rental payments for a year after Freshtel folded in July 2008. Technology Leasing later claimed that Lennmar owed A$31,000 under the lease.The case is one of a kind that is generating a deal of heat for financiers that allied themselves with equipment suppliers that promised "free" equipment.In 2010, ABC's Four Corners reported on what had become a common complaint about this form of business practice and which saw affected businesses sign two contracts: one for telecommunication services from a reseller (such as Freshtel, in the case of Lennmar) and a second agreement to pay the rental on the equipment (with Technology Leasing, in this case). Sales representatives appear to have led customers to believe the telco would cover the costs of all equipment, as the principals of Lennmar (including the practice manager, Kieren Parton) believed in this case.Lauren Magasdi, a commercial litigation lawyer with Attwood Marshall Lawyers, wrote in an email that "until recently, state jurisdictions were unable to hear arguments presented under the Competition and Consumer Law, formerly the Trade Practices Act.""The reason why [this was] not adopted before was because it was viewed that the Federal Court was the only court that had exclusive jurisdiction."In the Lennmar case, Justice Dennis Cowdroy found that:-- Freshtel made misleading and deceptive statements -- that Technology Leasing was "jointly and severally liable for Freshtel's misrepresentations" under section 73 of the Trade Practices Act-- that Technology Leasing "aided and abetted Freshtel's misleading and deceptive conduct" in breach of section 75 the Trade Practices Act-- that Technology Leasing "aided and abetted Freshtel's contravention" of the third line forcing section of the Act -- that Technology Leasing engaged in unconscionable conduct and that Lennmar should be granted relief under the Contracts Review Act.Technology Leasing is a related company of Secured Finance Limited. Both are subsidiaries of the Sydney-based Hal Group.