FEDERAL COURT OF AUSTRALIA
Cundy v ACT Cross Country Club Inc [2009] FCA 1167
DAVID BRIAN CUNDY AND FRANCES MARY SETON TRADING AS CUNDY SPORTS MARKETING (ABN 45 876 294 256) v ACT CROSS COUNTRY CLUB INC (ABN 76 119 541 467)
NSD 952 of 2009
PERRAM J
13 OCTOBER 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 952 of 2009
BETWEEN: DAVID BRIAN CUNDY AND FRANCES MARY SETON TRADING AS CUNDY SPORTS MARKETING (ABN 45 876 294 256)
ApplicantAND: ACT CROSS COUNTRY CLUB INC (ABN 76 119 541 467)
Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
13 OCTOBER 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The notice of motion be dismissed.
2. The costs of the motion be costs in the cause.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 952 of 2009
BETWEEN: DAVID BRIAN CUNDY AND FRANCES MARY SETON TRADING AS CUNDY SPORTS MARKETING (ABN 45 876 294 256)
ApplicantsAND: ACT CROSS COUNTRY CLUB INC (ABN 76 119 541 467)
Respondent
JUDGE:
PERRAM J
DATE:
13 OCTOBER 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 8 October 2009 I dismissed the respondent’s motion to transfer the present proceedings from the New South Wales Registry to the Australian Capital Territory Registry of this Court.
The respondent submitted that such a transfer was appropriate because:
(a)it was a voluntary organisation with little in the way of substantial assets;
(b)there was an upcoming mediation which, if the matter were not transferred, would be conducted by a registrar of this Court in Sydney. This would require the committee members of the respondent to absent themselves from work and travel to Sydney for the day, a result attended by both inconvenience and expense;
(c)if the hearing of the matter were conducted in Sydney then it would be necessary for the respondent and its representatives to travel to Sydney for that hearing, again with corresponding inconvenience and expense; and
(d)the matter was concerned with the Canberra Marathon and involved principally Canberra witnesses.
The proceeding was commenced by the applicants in Sydney which is the closest city to the place at which they live, the Central Coast. They will both, so it seems, be witnesses. It follows that there are witnesses both in New South Wales and in the Australian Capital Territory. I reject, therefore, the respondent’s submission that the choice of New South Wales as the appropriate registry was capricious on the applicant’s part. It was, to the contrary, understandable.
I do not think that a transfer to the Australian Capital Territory registry would lead to any significant reduction in costs. A video link would still be necessary; only the identity of the party appearing by means of it would change. I accept that if the matter remains in the New South Wales registry’s list then the respondent and its representatives will be required to travel to Sydney both for any mediation and for the trial. However, I do not regard either of those matters as significant enough to justify a transfer from this registry. It might be noted, in that regard, that if the matter were transferred as the respondent seeks, the same difficulties presently affecting the respondents would then affect the applicants.
I reject also the argument that a failure to transfer the matter would involve excessive inconvenience to the conduct of the mediation in Sydney. The officers of the respondent will need to take the day off work whether the mediation is dealt with in Sydney or in Canberra. The drive from Canberra to Sydney is 3 hours; the burden is not excessive.
It was for those reasons that I rejected the transfer application on 8 October 2009 with costs in the cause.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate:
Dated: 13 October 2009
Solicitor for the Applicant: Peter Banki of Banki Haddock Fiora Counsel for the Respondent: S Hausfeld Solicitor for the Respondent: Dibbs Barker
Date of Hearing: 8 October 2009 Date of Judgment: 13 October 2009
- AGLC
- Cundy v ACT Cross Country Club Inc [2009] FCA 1167
- Case
- [2009] FCA 1167
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the defendant club was bound by the terms of the membership agreement that Cundy sought to enforce. The club argued that the agreement was not properly executed due to alleged misrepresentations and procedural errors, which rendered the agreement void or voidable. Additionally, the court needed to determine whether the plaintiff's claims were statute-barred, given the club's assertion that Cundy had delayed in enforcing the agreement and that the applicable limitation period had expired.
The court found that the club had failed to provide sufficient evidence to substantiate their claims of misrepresentation and procedural errors. It was held that the membership agreement was properly executed, and the club was therefore bound by its terms. Furthermore, the court rejected the club's argument that the plaintiff's claims were statute-barred, finding that the applicable limitation period had not expired. The court concluded that the club's defence was not well founded and dismissed the notice of motion. Additionally, the costs of the motion were awarded to the plaintiff.
Orders
Orders of the court
1. The notice of motion be dismissed.
2. The costs of the motion be costs in the cause.
Note:
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
Established by: PERRAM J
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