Assabgy Holdings Pty Ltd v Reeftye Pty Ltd

[2005] FCA 1728

FEDERAL COURT OF AUSTRALIA

Assabgy Holdings Pty Ltd v Reeftye Pty Ltd [2005] FCA 1728

Statutes

Trade Practices Act 1974 (Cth) s 52

ASSABGY HOLDINGS PTY LTD v REEFTYE PTY LTD, NICOLA RACHAEL PRICE, ROBERT PRICE
QUD 195 of 2005

KIEFEL J
BRISBANE
22 NOVEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD195 OF 2005

BETWEEN:

ASSABGY HOLDINGS PTY LTD
(ACN 100 233 798)
APPLICANT

AND:

REEFTYE PTY LTD
(ACN 010 956 644)
FIRST RESPONDENT

NICOLA RACHAEL PRICE
SECOND RESPONDENT

ROBERT PRICE
THIRD RESPONDENT

JUDGE:

KIEFEL J

DATE OF ORDER:

22 NOVEMBER 2005

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.Paragraphs 28(a) and (c) and the particulars to paragraph 33 of the applicant’s Statement of Claim be struck out;

2.The applicant have liberty to re-plead those paragraphs within fourteen (14) days from today’s date.

3.The applicant provide discovery in accordance with O 15 r 2 of the Federal Court Rules within twenty-one (21) days;  and that the respondents provide discovery fourteen (14) days after the applicant’s discovery.

4.The applicant file and serve within thirty (30) days (or such further time as the Court may allow) affidavits setting out the evidence-in-chief of all witnesses intended to be called at trial in support of the applicant’s case.

5.The application for security for costs be adjourned to a date to be fixed;

6.The parties attend mediation by a mediator to be agreed by them and failing agreement, by a Court mediator by 31 January 2006;

7.The matter be listed for further directions at 9.45 am on 10 February 2006.

8.The applicant pay the respondent’s costs of the Amended Notice of Motion.

9.The Order made on 24 August 2005 in relation to costs be varied by providing that the costs of that hearing be the applicant’s costs in the proceedings.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD195 OF 2005

BETWEEN:

ASSABGY HOLDINGS PTY LTD
(ACN 100 233 798)
APPLICANT

AND:

REEFTYE PTY LTD
(ACN 010 956 644)
FIRST RESPONDENT

NICOLA RACHAEL PRICE
SECOND RESPONDENT

ROBERT PRICE
THIRD RESPONDENT

JUDGE:	KIEFEL J
DATE:	22 NOVEMBER 2005
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The application to transfer this matter to the Supreme Court of Queensland is, both parties accept, dependent upon the view I reach concerning the claim brought by the applicant under s 52 of the Trade Practices Act 1974 (Cth). It is clearly, as submissions revealed, the secondary claim to a much larger claim in terms of quantum, brought for breach of contract. That may not, however, determine the question of whether a transfer is appropriate.

2. I should add that at an early stage of the proceedings, I queried whether or not this matter was appropriately brought in this Court, because those claims did not appear to be substantial.  However, that matter was addressed by counsel for the applicant on the second directions hearing, and I accepted that the claims were, on their face at least, brought bona fide and the Court had jurisdiction.  It is regrettable that the respondent’s counsel at that point did not present the argument which as is now put forward.  Nevertheless, that does not seem to me to bar the respondents from arguing that there should be a strike out, although there might be other consequences in terms of costs as a result of having had two opportunities to do so.

3. The principal matter, as I understand senior counsel for the respondents to contend for, is that the four representations pleaded do not find correspondence in the evidence provided by the principal witness for the applicant, Mr Assabgy.  The representations were said to have been made at two meetings prior to the contract being entered into between the parties on 22 June 2004.  In summary, they appear to be that the whole subdivision would be finished by the end of November; that the entire development would be finished by the end of December; and although the respondents didn’t really need until March 2005, the applicant suggested that that further time be made available.

4. There is, in my view, substance in the submission that the representations in pars 28(a) and (c) are not supported by the evidence given.  In relation to the first, that there would be no difficulty in completing title by the end of 2004, it is submitted by the applicant that this is to be derived from the reference by the respondent’s agent that the entire development would be completed by this point.  If there is to be a suggestion that that means, or contains, a reference to title being available, then I consider that would need to be separately pleaded.  But as it stands, there is no representation in terms of par 28(a).  Similarly, there is no representation of which evidence is available that in no conceivable circumstances could there be delay beyond early 2005.  It may be that the applicant’s witness says that that is what was conveyed to him, and this may be material and relevant especially to the question of reliance.  But it is an over-statement of the exchange between the parties and what was said by the respondent’s agent.  On one view, of course, leaving it stated at such a high level is not likely to cause any real injustice to the respondents, for their answer to it would be fairly simple.  But I do not think representations said to have been made, which clearly were not made, should remain in the pleadings. 

5. There is, additionally, on the frank concession of counsel for the applicant, the difficulty that the particulars of damage given in par 33 have now been superseded.  I accept that at the time of the pleading loss of opportunity may have been seriously under consideration, although damages for loss of bargain could never have seriously been thought to be available.  The damages now sought are said to be out-of-pocket expenses, of which limited detail has been provided to date.

6. I should add, although it should be clear enough, that I do consider that there is evidence to support the representations pleaded at pars 28(b) and (d), which were to the effect that the respondents saw no difficulty in the work being completed by the end of 2004, and that at the time that they were made, that works would commence in about four weeks. 

7. That leaves the question of reliance.  I entertained some doubt as to whether or not the whole of par 28 should be struck out, because it was not plain to me whether reliance was said to have been placed on all or some of the representations.  But I do not understand that position to be contended for by the respondents.  The point made is that, on the facts of this case, although the contract initially allowed for a period for completion until 31 March 2005, the parties thereafter amended that date by agreeing to 31 September 2005.  That may present some difficulties in a case involving reliance on these pre-contractual representations.  However, those facts are not presently pleaded not the least for the reason that the respondents have not been faced with reliance attached to a correct assessment of damage.

8. It follows that I cannot determine that question and whether or not it is fatal to the s 52 claim. The orders I will make are to strike out paragraphs 28(a) and (c) and the particulars of par 33 of the Statement of Claim and give the applicant leave to re-plead.

9. There will be orders in these terms:

   1.Paragraphs 28(a) and (c) and the particulars to paragraph 33 of the applicant’s Statement of Claim be struck out;

   2.The applicant have liberty to re-plead those paragraphs within fourteen (14) days from today’s date.

   3.The applicant provide discovery in accordance with O 15 r 2 of the Federal Court Rules within twenty-one (21) days;  and that the respondents provide discovery fourteen (14) days after the applicant’s discovery.

   4.The applicant file and serve within thirty (30) days (or such further time as the Court may allow) affidavits setting out the evidence-in-chief of all witnesses intended to be called at trial in support of the applicant’s case.

   5.The application for security for costs be adjourned to a date to be fixed;

   6.The parties attend mediation by a mediator to be agreed by them and failing agreement, by a Court mediator by 31 January 2006;

   7.The matter be listed for further directions at 9.45 am on 10 February 2006.

   8.The applicant pay the respondent’s costs of the Amended Notice of Motion.

   9.The Order made on 24 August 2005 in relation to costs be varied by providing that the costs of that hearing be the applicant’s costs in the proceedings.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:            22 November 2005

Counsel for the Applicant:	Mr M Lee
Solicitor for the Applicant:	Price & Company
Counsel for the Respondent:	Mr A Morris QC with Mr U Brennen
Solicitor for the Respondent:	MacDonnells Solicitors
Date of Hearing:	22 November 2005
Date of Judgment:	22 November 2005