GRACE CARLISLE v FILARIA PTY LIMITED (ACN 056 933 843) and INDEPENDENT GROUP PTY LTD (ACN 008 659 792), and JOHN CHRISTOPHER RUNKO, and TERENCE JOHN CHAMBERLAIN, PETER LAWRENCE CROWLEY, JOHN DAVID BRADLEY, PHILIP RAYMOND SMITH, CHRISTOPHER JOHN CROWLEY, WILLIAM BRIAN LOFTUS, THOMAS FRANCIS MEAGHER, NICHOLAS JOHN SYMONS, KEITH ARTHUR BRADLEY, ALFONSO DEL RIO, ANNE MARIE PROCTOR, JOHN SNELL, ROSEMARY ELIZABETH TOWNSEND, SALLY JOAN SHEPPARD [2002] ACTSC 33 (2 May 2002)
CATCHWORDS
PRACTICE AND PROCEDURE – application to further amend Statement of Claim to add causes of action said to be statute barred – relevant principles.
PRACTICE AND PROCEDURE – applications for orders striking out claims said to disclose no cause of action and/or to be statute barred or, alternatively, for summary judgment in favour of defendants – relevant principles – whether claims clearly untenable because loss not caused by breaches of contract, misrepresentations or negligent acts alleged – whether any alleged breaches of retainer by plaintiff’s solicitors occurred outside limitation period – whether cases of action for negligence commenced not from purchase of property or only from occurrence of loss upon subsequent expiration of lease – whether claims clearly outside limitation periods – whether claims against estate agent and former employee for misrepresentation and statutory claims statute barred.
Trade Practices Act (1974) (Cth), ss 52, 82
Limitation Act 1985, s 11
Fair Trading Act 1992, subs 50(7)
Weldon v Neal [1887] 19 QBD 394
Bowler v Hilda Pty Ltd (unreported) [2000] FCA 899 (7 July 2000)
Gould v Vaggelas (1985) 157 CLR 215
Neilsen v Hempston Holdings Pty Ltd (1986) 65 ALR 302
Republic of Peru v Peruvian Guano Co (1887) 36 Ch D 489
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Stergiou v Citibank Savings Ltd (1998) 148 FLR 244
Mathaman v Nabalco Pty Ltd (1969) 14 FLR 10
Dey v Victorian Railway Commissioners (1949) 78 CLR 62
Inglis v Commonwealth Trading Bank of Australia (1972) 20 FLR 30
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164
State ofSouth Australia v Corporation of the Town of Hindmarsh (unreported, SASC, Bollen J, 10 March 1993)
March v E and M H Stramare Pty Ltd (1991) 171 CLR 521
McGee v Yeomans [1977] 1 NSWLR 273
Klobucar v Neocuat (unreported, ACTSC, Higgins J, 1 October 1999)
Proctor v Jetway Aviation [1984] 1 NSWLR 166
ANZ v Larcos (1987) 13 NSWLR 286
Cropper v Smith (1884) 26 Ch D 700
Clough v Frog (1974) 48 ALJR 481
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Sali v SPC Ltd (1993) 67 ALJR 841
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Scarcella v Lettice (2000) 51 NSWLR 302
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Cartledge v E Jopling & Sons Ltd [1963] AC 758
Hawkins v Clayton (1988) 164 CLR 539
Sutherland Shire Council v Heyman (1988) 157 CLR 424
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- Case
- [2002] ACTSC 33
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the plaintiff was entitled to further amend the Statement of Claim to include the additional causes of action. The court considered whether the claims were clearly untenable, whether any alleged breaches of retainer by the plaintiff's solicitors occurred outside the limitation period, and whether the claims against the estate agent and former employee for misrepresentation and statutory claims were indeed statute-barred. The court also assessed whether the cases of action for negligence commenced from the purchase of the property or only from the occurrence of the loss upon the subsequent expiration of the lease.
The court held that the plaintiff was entitled to further amend the Statement of Claim, subject to certain conditions. It found that the additional causes of action were not clearly untenable and that there was a possibility that they could be valid claims. The court also determined that the cases of action for negligence did not commence from the purchase of the property but rather from the occurrence of the loss upon the expiration of the lease, which might potentially fall within the limitation period. The court noted that the claims against the estate agent and former employee for misrepresentation and statutory claims might be subject to limitation periods, but this was not conclusively determined at this stage of the proceedings.
The final orders granted the plaintiff leave to further amend the Statement of Claim, subject to the terms outlined in the Third Amended Statement of Claim. The court also ordered that the defendants file a defence to the amended Statement of Claim within 21 days from the date of the order. This decision allowed the plaintiff to proceed with the additional claims, provided they met the conditions set by the court.
Orders
Orders of the court
1.
subject to order 2 hereof, the plaintiff have leave to further amend the Statement of Claim in the terms set out in the Third Amended Statement of Claim, which was filed in Court by leave on 12 March 2002;
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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