CDLC Pty Ltd v Capital Estate Developments Pty Ltd (No 3) - [2024] ACTSC 304

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	CDLC Pty Ltd v Capital Estate Developments Pty Ltd (No 3)
Citation:	[2024] ACTSC 304
Hearing Date:	2 August 2024
Decision Date:	3 October 2024
Before:	Baker J
Decision:	See [49]
Catchwords:	CIVIL LAW – Strike out Application – plaintiffs seek orders striking out various paragraphs of the first defendant’s Amended Defence and Counterclaim – third party seeks the entirety of the Third Party Notice be struck out – r 425(1) of the Court Procedure Rules 2006 (ACT) – first defendant claims the plaintiff engaged in misleading or deceptive conduct – finding of reliance on the part of the aggrieved party not necessary to found a cause of action for misleading and deceptive conduct under the Australian Consumer Law – adverse court order capable of constituting loss or damage under the ACL – novelty of claim not a reason to strike out pleadings – arguable cause of action under the ACL – impugned pleadings not frivolous, scandalous, unnecessary, vexatious or an abuse of process – application dismissed.
Legislation Cited:	Competition and Consumer Act 2010 (Cth) Sch 2, ss 2, 82 Court Procedure Rules 2006 (ACT), rr 425, 1521 Leases (Commercial and Retail) Act 2001 (ACT), ss 95, 100
Cases Cited:	Bolas v Calvary Healthcare Limited [2016] ACTSC 58 CDLC Pty Ltd v Capital Estate Developments Pty Ltd [2023] ACTSC 284 CDLC Pty Ltd v Capital Estate Developments Pty Ltd (No 2) [2023] ACTSC 321 Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; 238 CLR 304 Commissioner for ACT Revenue v Arcidiacono t/as Rose Cleaning Service [2017] ACTSC 379 Findex Group Limited v McKay [2022] ACTSC 192 Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132; 19 ACTLR 238 Henville v Walker [2001] HCA 52; 206 CLR 459 Insurance Commission of Western Australia v Antony Leslie John Woodings as Liquidator of the Bell Group Ltd (in liq) [No 2] [2017] WASC 372 Janssen-Cilag Pty Ltd v Pfizer Pty Ltd [1992] FCA 649; 37 FCR 526 Jewelsnloo Pty Ltd v Sengos [2016] NSWCA 309 Maragol v Berry Patch Preschool Kellyville Ridge Pty Ltd [2024] NSWSC 1077 Marks v GIO Australia Holdings Ltd [1998] HCA 69; 196 CLR 494 McColley v Commonwealth of Australia [2014] ACTCA 21 Medical Device Technologies Pty Ltd v Health Administration Corporation [2024] NSWCA 142 Protec Pacific Pty Ltd v Steuler Services GmbH & Co KG [2014] VSCA 338 Seven Network Ltd v News Ltd (No 4) [2005] FCA 244; 214 ALR 686 West v New South Wales [2007] ACTSC 43
Texts Cited:	G Clarke, ‘Misleading or deceptive conduct cases in the Supreme Court of Victoria’ (2015) 89(6) ALJ 397
Parties:	CDLC Pty Ltd & Anor ( First Plaintiff) Pouring Pty Ltd (Second Plaintiff) Capital Estate Developments Pty Limited as Trustee for Capital Estate Developments Trust & Ors ( Defendant) Arthur Choi ( Third Party)
Representation:	Counsel B Buckland & R McGilvray (First Plaintiff) B Buckland & R McGilvray (Second Plaintiff) P…

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: [2024] ACTSC 304
Decision Date: 3 October 2024

CaseChat Overview and Summary

In the case of CDLC Pty Ltd v Capital Estate Developments Pty Ltd (No 3), the dispute arose between the plaintiffs and the first defendant, with a third party also involved. The plaintiffs sought to have various paragraphs of the first defendant's Amended Defence and Counterclaim struck out, and the third party sought to have the entirety of their Third Party Notice struck out. The application was heard in the ACT Supreme Court and involved issues under the Australian Consumer Law (ACL) and the Court Procedure Rules 2006 (ACT).

The primary legal issues for the court to decide were whether the plaintiffs' application to strike out certain pleadings should be dismissed and if the third party's application to strike out their Third Party Notice should also be dismissed. The court had to consider the requirements of Rule 425(1) of the Court Procedure Rules 2006 (ACT) and the elements of a cause of action under the ACL. Specifically, the court examined whether the first defendant's pleadings constituted a valid cause of action under the ACL, and whether the impugned pleadings were frivolous, scandalous, unnecessary, vexatious, or an abuse of process.

The court found that the first defendant's claim of misleading or deceptive conduct did not require a finding of reliance by the aggrieved party to constitute a valid cause of action under the ACL. Furthermore, the court noted that an adverse court order could constitute loss or damage under the ACL, and that the novelty of a claim was not a valid reason to strike out pleadings. The court held that the pleadings in question were not frivolous, scandalous, unnecessary, vexatious, or an abuse of process, and thus dismissed both the plaintiffs' and the third party's applications to strike out the respective pleadings. The court's reasoning was grounded in established legal principles and the specific provisions of the ACL and the Court Procedure Rules.

As a result of the court's decision, both the plaintiffs' and the third party's applications to strike out the respective pleadings were dismissed. The court found that the first defendant's Amended Defence and Counterclaim, as well as the third party's Third Party Notice, contained valid causes of action under the ACL and did not meet the criteria for being struck out under Rule 425(1) of the Court Procedure Rules 2006 (ACT). The court's decision upheld the integrity of the legal process and ensured that the parties' claims and defences could proceed to a merits hearing.

Orders

Orders of the court

See [49]

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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