TRADE PRACTICES – Alleged contraventions by real estate agency and owner in relation to rental premises – misleading and deceptive conduct – damages sought.
PRACTICE AND PROCEDURE – Summary dismissal or stay of proceedings – principles – failure to properly name a respondent – whether res judicata or issue estoppel by reason of order of Magistrates Court of Western Australia ordering tenant to deliver up vacant possession of property – claims made on behalf of non-parties to the proceeding – claim for relief of damages for personal injury – no reasonable prospect of success.
PRACTICE AND PROCEDURE – Application for substituted service – where party outside jurisdiction – where leave previously granted to apply for service outside of jurisdiction but no application made – principles to be applied where no leave granted for service outside of the jurisdiction and application made for substituted service.
LANDLORD AND TENANT – Residential tenancy agreement – whether agreement terminated in exercise of owner’s right to give notice without giving grounds – whether agreement motivated by tenant seeking to enforce rights.
[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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AGLC
Carter v TimeConti Sheffield [2011] FMCA 29
Case
[2011] FMCA 29
Decision Date
CaseChat Overview and Summary
Carter v TimeConti Sheffield was a matter before the Federal Court of Australia, where the primary issue was the correction of the name of a party involved in proceedings. The applicant sought to amend the name of the first respondent from “TimeConti Sheffield” to “Sheffield Estates Pty Ltd trading as TimeConti Sheffield.” The first respondent opposed this application.
The court had to determine whether the name of a party in proceedings could be amended under the Federal Court Rules and whether such an amendment would cause any undue prejudice to the other party. Additionally, the court had to consider whether the applications for costs and other related matters could be adjourned.
The court found that the amendment of the name of a party was permissible under the Federal Court Rules and did not cause any undue prejudice to the opposing party. The court also found that the applications for costs and other related matters could be adjourned to a directions hearing. The court further ruled that Order 2 of the Court’s Orders of 30 July 2010 would not be discharged except by an express order of the Court.
The court ordered that the name of the first respondent be amended to “Sheffield Estates Pty Ltd trading as TimeConti Sheffield.” The court dismissed the applicant’s application in a case filed on 8 July 2010. The court also adjourned the first respondent’s application in a case filed on 22 July 2010, the costs of the applicant’s application, and the first respondent’s application, as well as the applications generally, to a directions hearing at 3.00pm on 18 February 2011. The court also ruled that Order 2 of the Court’s Orders of 30 July 2010 would not be discharged except by an express order of the Court.
Orders
Orders of the court
1.
The name of the first respondent be amended to read “Sheffield Estates Pty Ltd trading as TimeConti Sheffield”.
2.
The applicant’s application in a case filed 8 July 2010 be dismissed.
3.
Each of:
(a) the first respondent’s application in a case filed on 22 July 2010;
(b) costs of the applicant’s application in a case filed 8 July 2010 and the first respondent’s application in a case filed 22 July 2010; and
(c) the applications generally,
be adjourned to a directions hearing at 3.00pm on 18 February 2011.
4.
Order 2 of the Court’s Orders of 30 July 2010 not be discharged other than by an express order of this Court.