Cass v Kingston Capital Ltd

Case [2010] FMCA 762


FEDERAL MAGISTRATES COURT OF AUSTRALIA

CASS v KINGSTON CAPITAL LIMITED [2010] FMCA 762

PRACTICE AND PROCEDURE – Summary dismissal of parts of application – whether no reasonable prospect of success – whether to strike out parts of application and pleadings where specific relief not sought under s.1325 of Corporations Act.

TRADE PRACTICES – Alleged misleading and deceptive conduct – whether claim relates to financial services and products – whether exclusionary provisions of s.51AF of Trade Practices Act apply.

COURTS AND JUDGES – Federal Magistrates Court – Corporations Act jurisdiction – associated matter.

WORDS AND PHRASES – “Court” – “court” – “financial product” – “financial service”.

Acts Interpretation Act 1901 (Cth), s.15C
Australian Securities and Investments Commission Act 2001 (Cth), ss.12BAA, 12BAB
Corporations Act 2001 (Cth), ss.58AA, 764A, 766A, 766C, 769C, 1041H, 1041I, 1325, Parts 7.10, 9.7
Federal Court of Australia Act 1976 (Cth), s.31A
Federal Magistrates Act 1999 (Cth), ss.10, 14, 17A(2) and (3), 18
Federal Magistrates Court Rules 2001 (Cth), rr.13.07, 13.08, 13.10
Trade Practices Act 1974 (Cth), ss.4, 51A, 51AF, 52, 86(4), 87
Australian Securities & Investments Commission v Money For Living (Aust) Pty Ltd (Administrators Appointed) & Ors (No. 2) (2006) 155 FCR 349; [2006] FCA 1285
Avoca Consultants Pty Ltd v Millennium3 Financial Services Pty Ltd (2009) 179 FCR 46; [2009] FCA 883
Balding v Ten Talents Pty Ltd (2007) 162 IR 17; [2007] FMCA 145
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146; [2006] FCA 1352
Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543
Clifford v Vegas Enterprises Pty Ltd (No 5) [2010] FCA 916
Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125
George v Fletcher(Trustee) [2010] FCAFC 53
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60
Johnson Tiles Pty Ltd & Ors v Esso Australia Pty Ltd & Anor (2000) 104 FCR 564; [2000] FCA 1572
Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753
Mahoney v AGD Mining Ltd [2002] FMCA 237
MG Distribution Pty Ltd & Ors v Khan & Anor (2006) 230 ALR 352; [2006] FMCA 666
Philip Morris Inc & Anor v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457
Rana v University of South Australia (2004) 136 FCR 344; [2004] FCA 559
Sent & Anor v Jet Corporation of Australia Proprietary Limited (1986) 160 CLR 540
Taylor v CGU Insurance Limited (2005) 193 FLR 120; [2005] FMCA 1073
Walker v Lifespan Financial Planning Pty Ltd & Ors (2003) 176 FLR 166; [2003] FMCA 519
Welsh v Allblend Holdings Pty Ltd [2010] FMCA 281
White Industries Australia Ltd v Commissioner of Taxation (2007) 160 FCR 298; [2007] FCA 511
RP…

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Details
AGLC
Cass v Kingston Capital Ltd [2010] FMCA 762
Case
[2010] FMCA 762
Decision Date

CaseChat Overview and Summary

In the Federal Magistrates Court, Cass brought a claim against Kingston Capital Ltd alleging misleading and deceptive conduct under the Trade Practices Act. The dispute centred on whether the conduct related to financial services and products and if the exclusionary provisions of s.51AF applied. Kingston Capital applied to have parts of Cass's application summarily dismissed for lacking a reasonable prospect of success and not seeking specific relief under s.1325 of the Corporations Act.

The court considered whether the exclusionary provisions of s.51AF of the Trade Practices Act applied to the claim and whether there was no reasonable prospect of success in parts of the application. The court also examined if the pleadings should be struck out due to the absence of specific relief sought under s.1325 of the Corporations Act. The court found that the exclusionary provisions applied and that parts of the application had no reasonable prospect of success. Consequently, the court dismissed the respondent’s application in part, granted leave for the applicant to file and serve an amended application and statement of claim, and set a date for a further directions hearing.

The Federal Magistrates Court dismissed the respondent's application in part and granted leave to the applicant to amend the application and statement of claim to specify any orders sought under s.1325 of the Corporations Act. The court also directed that any errors in paragraph numbering within the statement of claim be corrected. The matter was adjourned to a further directions hearing to allow for these amendments and to ensure the proceeding could continue in an orderly manner.

Orders

Orders of the court

1.

That the respondent’s application in a case be dismissed.

2.

That the applicant have leave to file and serve on or before 22 October 2010:

(a) any amended Application and Statement of Claim specifying any orders sought by the applicant under s.1325 of the Corporations Act; and

(b) any amended Statement of Claim correcting any errors with respect to paragraph numbers within the Statement of Claim.

3.

That the matter be adjourned to a further directions hearing at 9.00am on 29 October 2010.

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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