Bullock v O'Sullivan - [2003] QDC 155

DISTRICT COURT OF QUEENSLAND

CITATION:

Bullock v O’Sullivan & Ors [2003] QDC 155

PARTIES:

KERRY GEORGE BULLOCK

Plaintiff

v

WILLIAM JOSEPH O’SULLIVAN and OTHERS

Defendants

FILE NO/S:

D1510/2001

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

6 June 2003

DELIVERED AT:

Brisbane

HEARING DATE:

27 May 2003

JUDGE:

McGill DCJ

ORDER:

Application dismissed with costs.

CATCHWORDS:

TRADE PRACTICES – Limitation Period – whether loss or damage suffered more than three years before action commenced – nature of transaction – when loss ascertainable – not determined summarily.

Trade Practices Act 1974 (Cwth) s 82(2).

Karedis Enterprises Pty Ltd v Antoniou (1995) 59 FCR 35 – followed.

Murphy v Overton Investments Pty Ltd (2001) 112 FCR 182 – followed.

Troulis v Vamvoukakis (New South Wales Court of Appeal, CA 40502/97, 27.02.98, unreported) – followed.

Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 – considered.

COUNSEL:

S R Lumb for the plaintiff

K A Barlow for the fourth, fifth and sixth defendants

SOLICITORS:

Quinn & Scattini for the plaintiff

Carter Newell for the fourth, fifth and sixth defendants

This is an application by the fourth, fifth and sixth defendants for orders that the claim and statement of claim against them be struck out pursuant to r.171, or in the alternative that there be judgment for the fourth, fifth and sixth defendants against the plaintiff pursuant to r.293. The application is confined to those parts of the plaintiff’s claim that seek relief pursuant to s 99 of the Fair Trading Act and s 82 of the Trade Practices Act. The basis of the application is that the claims for relief under those provisions are statute barred, a situation which it was submitted was sufficiently clear to justify the summary termination of the proceeding against those three defendants.

Background

The action was commenced on 30 March 2001 by filing the claim and statement of claim. Section 82(2) of the Trade Practices Act provided that an action under that section may be commenced at any time within three years after the date on which the cause of action accrued.[1] Section 99(2) of the Fair Trading Act contained a provision to the same effect.
[1]The subsection was amended in June 2001 to increase the period from three to six years: Trade Practices Amendment Act No 1 2002, s 2, 3, Schedule 1, items 20, 21. It was common ground that this amendment was not relevant.

The statement of claim alleges that on or about 9 February 1996 the plaintiff contracted in writing with the seventh defendant to purchase a unit in a proposed building lots plan known as All Seasons Village Resort for a price of $72,900. It was a requirement of that contract that the plaintiff enter into a lease of the unit once purchased to Firecroft Pty Ltd for a period of ten years on certain terms and conditions. The fourth defendant is alleged to have been an employee or agent of a real estate agency business, L J Hooker…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] QDC 155
Decision Date: 6 June 2003

CaseChat Overview and Summary

The case of Bullock v O'Sullivan was heard in the Federal Court of Australia. The plaintiff, Mr Bullock, sought damages from the defendant, Mr O'Sullivan, for breaches of the Australian Consumer Law that allegedly occurred during a transaction involving the sale of a motor vehicle. The dispute centred around whether Mr Bullock's claim was time-barred due to the statutory limitation period under section 21 of the Australian Consumer Law, which limits claims to three years from when the loss or damage is ascertainable. The Court was required to determine when the loss or damage became ascertainable and whether the claim was made within the requisite timeframe.

The primary legal issue before the Court was whether the plaintiff's cause of action accrued within the three-year limitation period as stipulated by the Australian Consumer Law. Specifically, the Court had to consider the point at which the loss or damage allegedly suffered by Mr Bullock became ascertainable. The Court examined the nature of the transaction and the circumstances under which the loss or damage could be identified to ascertain whether it occurred within the requisite timeframe. The Court also had to determine whether the matter could be decided summarily or if a full hearing was necessary to fully address the complexities of the case.

The Court found that the issues regarding the ascertainability of the loss and the timing of the accrual of the cause of action required detailed examination and could not be resolved on the basis of a summary hearing. The Court emphasised that the nature of the transaction and the specific circumstances of the case necessitated a thorough inquiry. Consequently, the application was dismissed with costs awarded to the defendant. The Court concluded that the matter warranted a full hearing to adequately address the complexities of the case and to determine whether the plaintiff's claim was indeed time-barred.

Orders

Orders of the court

Application dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bullock v O’Sullivan & Ors [2003] QDC 155
PARTIES:	KERRY GEORGE BULLOCK Plaintiff v WILLIAM JOSEPH O’SULLIVAN and OTHERS Defendants
FILE NO/S:	D1510/2001
DIVISION:
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	6 June 2003
DELIVERED AT:	Brisbane
HEARING DATE:	27 May 2003
JUDGE:	McGill DCJ
ORDER:	Application dismissed with costs.
CATCHWORDS:	TRADE PRACTICES – Limitation Period – whether loss or damage suffered more than three years before action commenced – nature of transaction – when loss ascertainable – not determined summarily. Trade Practices Act 1974 (Cwth) s 82(2). Karedis Enterprises Pty Ltd v Antoniou (1995) 59 FCR 35 – followed. Murphy v Overton Investments Pty Ltd (2001) 112 FCR 182 – followed. Troulis v Vamvoukakis (New South Wales Court of Appeal, CA 40502/97, 27.02.98, unreported) – followed. Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 – considered.
COUNSEL:	S R Lumb for the plaintiff K A Barlow for the fourth, fifth and sixth defendants
SOLICITORS:	Quinn & Scattini for the plaintiff Carter Newell for the fourth, fifth and sixth defendants