Day v Markfair Pty Ltd

[2003] QDC 40

Transcript of Proceedings

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REVISED COPIES ISSUED
State Reporting Bureau

DISTRICT COURT	[2003] QDC 040	Date: 17 April, 2003
CIVIL JURISDICTION JUDGE ROBIN QC
No D4905 of 2001

LESLEY DAY	First Plaintiff
and
CHRISTOPHER FRANCIS DAY	Second Plaintiff
and
BRIAN WILLIAM OSBORNE	Third Plaintiff
and
SHERRALYN JEANETTE OSBORNE	Fourth Plaintiff
and
MARKFAIR PTY LTD TRADING AS	First Defendant
INVESTLAND (AUST) ACN 065 542 761
and
TRAVIS MILLER	Second Defendant
and

WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those

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ROB DAVIS	Third Defendant	1
and
MICHAEL BYRON	Fourth Defendant
and
MERMAID BEACH RESIDENTIAL PTY LTD
ACN 007 406 822	Fifth Defendant	10
and
WESTPAC BANKING CORPORATION
ACN 007 457 141	Sixth Defendant
and
AUSTRALIA & NEW ZEALAND BANKING
GROUP LIMITED ACN 005 357 522	Seventh Defendant	20
and
GRAEME HART TRADING AS GRAEME HART
AND ASSOCIATES	Eighth Defendant
and
REA AUSTRALIA PTY LTD ACN 074 215 357	Ninth Defendant
30
and
McCULLOUGH ROBERTSON LAWYERS	Tenth Defendant
BRISBANE ..DATE 21/03/2003
40
ORDER

CATCHWORDS: Application for summary judgment - UCPR Rule 293
- Trade Practices Act 1974 - limitation period relied upon -
Trade Practices Amendment Act No. 1 of 2001, items 20 and 21 -
as of 26 July 2001 limitation period increased from three to
six years - amendment held to apply to conduct engaged in

prior to the amendment for which the three year limitation 50

period had not expired prior to 26 July 2001 - relevant date
of conduct was 11 August 1998 - held to apply to would-be
plaintiffs whose limitation period had not expired by 26 July
2001 - "period" in amending provision held to refer to
"limitation period" - application dismissed.
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HIS HONOUR: The applicant is the second defendant, Travis	1
Miller, who finds himself one of numerous defendants in this action instituted by Mr and Mrs Day and Mr and Mrs Osborne in respect of purchases of home units on the Gold Coast through "marketeering" exercises, of which they have repented.

10

Mr Miller is involved only in respect of the Osborne contract. He was apparently made available to the Osbornes in the office of the first defendant but on the basis of his operating

independently of the first defendant and indeed all other

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defendants, as a financial advisor. The statement of claim in paragraph 29.1(n) describes Mr Miller as the representative of the first defendant, but nothing seems to turn on whether or

not they are associated for the purposes of the Trade

Practices Act which, along with the State Fair Trading

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legislation, forms the basis of the claims being litigated.

The paragraph I mentioned pleads that on the 11th of August
1998 Mr Miller represented to the Osbornes the purchase price

it was suggested they pay of $178,900 was fair market value

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for the property they were looking at, that it would be a profitable investment for them, that it was reasonable to apply a capital growth rate of 10 per cent per annum to the

purchase price in analysing the benefit of purchasing the

property as an investment, that they would be able to sell it

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for $262,863.00 after five years with selling costs of

$18,002.00, that they'd be able to sell it for $386,232 after

10 years with corresponding costs and capital gains tax of

$44,403.00.

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The Osbornes plead that acting in reliance on such	1
representations they decided to purchase the property and borrow the necessary funds to assist them.
The purpose of the application is to obtain a summary judgment

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in Mr Miller's favour pursuant to Rule 293 of the UCPR. The
basis on which the Osbornes' claim is said to have no real
prospect of succeeding is that a limitations defence is
available. Given the way in which the matter has been argued,

the relevant limitation period is that established in section

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82 subsection (2) of the Trade Practices Act.

The applicant has pleaded the limitation point - which appears to me to be necessary if he's to have any prospect of success, as until there is such a pleading there's always a potential

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for a litigant entitled to set up the limitation period to
waive it; see Western Australia v. Wardley Australia Limited

(1991) 30 FCR 245.

The decision of the High Court in that litigation, Wardley

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Australia Limited v. State of Western Australia (1992) 175 CLR 514, is a leading authority in the present context. The Court indicated at 533-34:

"in the plainest of terms that we regard it as

undesirable that limitation questions of the kind under	50
consideration should be decided in interlocutory proceedings in advance of the hearing of the action except in the clearest of cases. Generally speaking in such proceedings insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question."

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I accept Mr Freeburn's submissions in support of the present	1
application that the present circumstances offer nothing remotely comparable with the uncertainties that characterised the Wardley case. It concerned an indemnity; it was quite unknown whether the indemnity would ever be called on and if

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so what the relevant amounts of any demand were likely to be. the other side based on potential which the Osbornes might have to obtain some relief other than section 82 damages from Mr Miller.

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Mr Freeburn has persuaded me that in this case a crucial date is the 11th of August 1998. On that date, in the Osbornes' case, in any event, Mr Miller perpetrated the conduct attributed to him and they, before the day was out, signed a

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contract. Part of their claim is that their home unit was
worth some $40,000 less than the fair market value as
indicated. They are making a case that having committed
themselves to the contract they have suffered loss and damage

by being committed to prejudice their financial position by

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exchanging too great an amount of money for the property.

An alternative relevant date may be the date of completion of the contract to purchase some weeks later. As it happens it does not particularly matter which date is relevant, so it is

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convenient to think in terms of the 11th August 1998.

The filing date of the claim was the 9th October 2001 which

fell outside the longstanding three year limitation period set

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out in section 82(2) which provided until the 26th July 2001	1
that "an action under subsection (1) may be commenced at any time within three years after the date on which the cause of action accrued."

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In July 2001, by the Trade Practices Amendment Act No 1 of
2001, certain amendments were effected to the principal Act,
commencing on the 28th day after Royal Assent which was given
on the 28th June 2001. In consequence of item 20 in the

Schedule of amendments, subsection (2) came to read "an action

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under subsection (1) may be commenced at any time within six
years after the date on which the cause of action that relates

to the conduct accrued".

A transitional provision was enacted in item 21 and I quote:

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"Application of item 20 (1). The amendment made by item
20 applies in relation to conduct engaged in, on or after

the commencement of that item.

(2) The amendment made by item 20 also applies in
relation to conduct engaged in before the commencement of

that item but only if the period that:

(a) relates to the conduct; and

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(b) Practices Act 1974 before the commencement of

applied under subsection 82 (2) of the Trade had not ended when that item commenced."

It is not suggested today that there is any special difficulty

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in identifying conduct which may be understood as actions

taken by Mr Miller. There was reference to the possibility

that "conduct" which prima facie refers to what a putative

defendant has done extends to include events consequent upon

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that conduct, such as entry into a contract by people like the	1
Osbornes.
In this case everything happened on the same date, namely 11th August 1998, when I think their cause of action if they had

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one accrued. There is no question of item 21 (1) applying to
extend the limitation period because there was no conduct

engaged in after 26th July 2001.

So far as item 21 (1) is concerned, Mr Freeburn presented what

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strikes me as a very subtle argument that (a) and (b) create
two separate conditions to be satisfied before the limitation
period is extended from three years to six in respect of

conduct engaged in before 26th July 2001.

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The argument is that people in the position of the Osbornes who, because the limitation period has been pleaded, must show they sued in time must show (a) that "the period that relates to the conduct" (of Mr Miller) had not ended on the 26th July 2001 and (b) that the limitation period that applied under

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section 82(2) immediately before the 26th July 2001 had not
expired. He concedes, as I think he had to, that the
plaintiffs encounter no problem in respect of (b). His
argument comes down to this, that the "period that relates to

the conduct" of Mr Miller had ended before 26 July 2001.

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Although didn't assert it was strong support, he claimed there was some to be found in the judgment of Goldberg J in Software Engineers Australia (NSW) Pty Ltd v. Bonket Pty Ltd V192 of

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2002, 19 September 2002. The reference is [2002] FCA 1168,	1
BC200205517, especially at paragraph 7.
After setting out item 21 his Honour went on:

"[7] The conduct complained of in the statement of claim

refers to a period which had not ended when the amendment	10
in item 20 came into operation (the end of that period being around 18 February 2002). Thus the limitation period applicable to the conduct alleged in paragraph 51 to 58 of the statement of claim is six years not three years."

Mr Freeburn submits that the statement of his Honour bespeaks

a recognition that a plaintiff must show that conduct	20
continued until the relevant date. One can imagine cases
where that happens, for example if information published on an
internet website remains there. The argument of Mr Freeburn
can possibly be supported by the observation that unless there
is a separate requirement established by item 21(2)(a), then	30
that subparagraph is otiose and has no useful, or indeed any effect.
I think that is a correct observation but in my view the point
carries the applicant only a limited distance. No-one expects	40
Parliamentary drafting to be perfect these days and many
criticisms could be made of item 21, not the least that it
embraces the concept of a "period" which - and here I speak of
a general impression - is eschewed by the drafters of the
Trade Practices Act in its previous emanations,	50
notwithstanding that (notably in section 82) it does establish
what everybody else has been content to call a "limitation

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period". Such an expression is widely used in State	1
legislation. See the Queensland Limitation of Actions Act 1974 in particular. In my opinion the significance of the word "period" being picked up in item 21 is that it is
effectively an acknowledgement that the provisions are dealing

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with a limitation period, making the use of the term "period"
particularly pertinent.

Despite my invitation, neither side was able to assist with references to any second reading speech, explanatory

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memorandum or other information that might assist in the
interpretation of item 21. My approach to it is what I think
the common sense (and I hope not too ham-fisted) one, that a
decision was made and implemented to harmonise the somewhat

anomalous limitation period in section 82 with others in force

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in the various Australian jurisdictions; that was done by
making it clear that in respect of conduct engaged in
henceforth the limitation period would be six years and that
in respect of conduct in the past the three year limitation

period would be extended to six for would-be plaintiffs whose

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three years had not run out by the 26th of July 2001.

If Mr Freeburn were right it seems to me that the word
"period" in item 21.2 should be "periods". He is clearly

asserting that two different periods are relevant, one

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applicable to each of the conditions he says have to be

satisfied.

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So far as Justice Goldberg's paragraph 7, from which Ms	1
Skennar also claims support, is concerned, I note the transposition that his Honour has engaged in in so far as in commenting on legislation which refers to "the period that relates to the conduct", he comments on it in terms of

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"conduct (that) relates to a period".

As I read paragraph 7 his Honour is construing item 21 in the same way as I would construe it. He refers to the end of the period he is referring to being around 18th February 2002.

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That must be a reference to the three years expiring on the considerable dissatisfaction in respects identified in his
18th February 2002, the starting date of which (as I read the
judgment) has to be the unspecified date in February 1999 when

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pleading.

The respondents in that case had submitted to his Honour that on the resignation any loss and damage crystallised for purposes of the Trade Practices Act and manifested itself in

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February 1999 following the resignation.

So far as Justice Goldberg is referring to a period ending
around the 18th February 2002, he is not referring to a

"period that relates to conduct" but to a limitation period

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that expired three years after a particular commencement date.

The last observation I would make is that it appears to me a

use of language both inelegant and quite inappropriate to

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refer to a period over which conduct occurs as a "period that	1
relates to the conduct". That seems to me a use of English so clumsy that one would not suspect parliamentary drafters to succumb to it. My view is that "period" in item 21 (2) is to be understood as if it read "limitation period" or something

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similar. While Justice Goldberg in the end resorted to the the situation, there is no need for me to take that course here.

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The limitation period here relevantly expired three years from 11th August 1998, by which time the amended section 82 (2) had come into effect so that the Osbornes gained the benefit of an additional three years within which to sue. I dismiss the

application.

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...

HIS HONOUR: The second defendant's application is dismissed with costs and I make a special order that in the event of it

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being determined hereafter that the third and fourth application in so far as they related to the Fair Trading Act.

plaintiffs are statute barred in respect of the Fair Trading

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...

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