Asquith Rugby League Club Limited v Capital Finance Australia Limited

[2011] FCA 110

FEDERAL COURT OF AUSTRALIA

Asquith Rugby League Club Limited v Capital Finance Australia Limited [2011] FCA 110

Citation:		Asquith Rugby League Club Limited v Capital Finance Australia Limited [2011] FCA 110
Parties:		ASQUITH RUGBY LEAGUE CLUB LIMITED (ACN 000 610 542) and SHELLHARBOUR WORKERS' CLUB LIMITED (ACN 001 068 864) v CAPITAL FINANCE AUSTRALIA LIMITED (ACN 069 663 136) and TOTAL CONCEPT PROJECTS (AUSTRALIA) PTY LIMITED (ACN 073 474 772)
File number(s):		NSD 1198 of 2010
Judge:		JACOBSON J
Date of judgment:		16 February 2011
Legislation:		Federal Court of Australia Act 1976 (Cth) ss 33C, 33K Federal Court Rules; Order 13 r 2, r 3A Trade Practices Act 1974 (Cth) s 47
Cases cited:		Brisbane Broncos Leagues Club v Alleasing Finance Australia Pty Ltd [2011] FCA 106 referred to
Date of hearing:	24 November 2010
Date of last submissions:	24 November 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	11
Counsel for the Applicants:	Mr A J Sullivan with Mr A Abadee and Mr R Notley
Solicitor for the Applicants:	Slater & Gordon Lawyers
Counsel for the First Respondents:	Mr M Lee
Solicitor for the First Respondents:	Kemp Strang

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1198 of 2010

BETWEEN:

ASQUITH RUGBY LEAGUE CLUB LIMITED
(ACN 000 610 542)
First Applicant

SHELLHARBOUR WORKERS' CLUB LIMITED
(ACN 001 068 864)
Second Applicant

AND:

CAPITAL FINANCE AUSTRALIA LIMITED
(ACN 069 663 136)
First Respondent

TOTAL CONCEPT PROJECTS (AUSTRALIA) PTY LIMITED
(ACN 073 474 772)
Second Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	16 FEBRUARY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave be granted pursuant to s 33K(1) of the Federal Court of Australia Act 1976 (Cth) and O 13 r 2 of the Federal Court Rules to file an amended application in a form which reflects the reasons for judgment handed down today.

2.Pursuant to O 13 r 3A(1) of the Federal Court Rules, the amendment to the definition of the group take effect from the date of these orders.

3.The Applicant’s Notice of Motion filed on 17 November 2010 be otherwise dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1198 of 2010

BETWEEN:

ASQUITH RUGBY LEAGUE CLUB LIMITED
(ACN 000 610 542)
First Applicant

SHELLHARBOUR WORKERS' CLUB LIMITED
(ACN 001 068 864)
Second Applicant

AND:

CAPITAL FINANCE AUSTRALIA LIMITED
(ACN 069 663 136)
First Respondent

TOTAL CONCEPT PROJECTS (AUSTRALIA) PTY LIMITED
(ACN 073 474 772)
Second Respondent

JUDGE:	JACOBSON J
DATE:	16 FEBRUARY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth) (“the Act”). It is almost identical to the proceeding brought by the Brisbane Broncos Leagues Club (“the Broncos”) against Alleasing Finance Australia Pty Limited and Total Concept Projects (Australia) Pty Limited to which I referred in my reasons for judgment handed down today: see Brisbane Broncos Leagues Club v Alleasing Finance Australia Pty Ltd [2011] FCA 106.

2. For present purposes, the only relevant difference between the two proceedings is that, in this case, the financier is Capital Finance Australia Limited (“Capital”).

3. The gravamen of the claim is effectively the same as in the other proceeding because, here, the Applicants allege that Group Members were induced to enter into leasing arrangements for the lease of digital signage equipment by misrepresentations made by the second respondent (“TCP”).

4. The representations are to the same effect as those which are the subject of the other proceeding and are said to have been made to group members by TCP with the authority of Capital.

5. The Applicants have filed a Notice of Motion in the same terms as in the Broncos’ proceeding seeking leave to file an amended application.  The motion raises the same issues as in the Broncos’ motion.

6. For the reasons given in my judgment in the Broncos’ motion, it is my opinion that the claims of seven or more persons in the present proceeding give rise to two substantial common issues of law or fact within s 33C(1)(c) of the Act.

7. The substantial common issues which are identified are the “authority” question and the “reasonable grounds” question stated in paragraphs 4(b) and 4(c) of the proposed amended application.

8. For the reasons stated in relation to the Broncos’ motion, I do not consider that a substantial common issue (or indeed any real issue) arises in relation to the representation that the equipment would correspond with the equipment described in the Rental Schedule.

9. Nor do I consider that the draft amended statement of claim pleads the elements of a cause of action under s 47(6) of the Trade Practices Act 1974 (Cth).

10. The amendment to the definition of the group opens the class in the same way as in the Broncos’ motion.  For the same reasons, the amendment to the definition of the group is to take effect from the date of these orders.

11. The appellants did not file a motion made under s 33N of the Act for the reasons explained by Mr Lee in his oral address.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:        16 February 2011