DC Payments Pty Ltd v FITZPATRICK - [2013] FCCA 1415

FEDERAL CIRCUIT COURT OF AUSTRALIA

DC PAYMENTS PTY LTD & ANOR v FITZPATRICK

[2013] FCCA 1415

Catchwords:
PRACTICE AND PROCEDURE – Application for change of venue.

Legislation:
Australian Consumer Law

Federal Circuit CourtRules, Rule 8.01

National Mutual Holdings Pty Ltd and Others v Sentry Corporation and Another (1988) 83 ALR 434

Applicant:

DC PAYMENTS PTY LTD AND ANOR

Respondent:

JENNY FITZPATRICK

File Number:

MLG 710 of 2013

Judgment of:

Judge Whelan

Hearing date:

28 August 2013

Date of Last Submission:

28 August 2013

Delivered at:

Melbourne

Delivered on:

28 August 2013

REPRESENTATION

Counsel for the Applicant:

Mr McKenney of Counsel

Solicitors for the Applicant:

Ashurst Australia

Counsel for the Respondent:

Mr Boyce of Counsel

Solicitors for the Respondent:

Sweeney Tiggemann

ORDERS

The matter remain listed for mediation on 9 September 2013 at 10.00 a.m. at the Melbourne Registry of this Court.
In the event that the matter does not settle at mediation, the matter is to be transferred to the Sydney Registry of this Court for a Directions Hearing on a date to be fixed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 710 of 2013

DC PAYMENTS PTY LTD AND ANOR

First Applicant

ATM SOLUTIONS AUSTRALASIA PTY LTD
ACN 097 550 519

Second Applicant

And

JENNY FITZPATRICK

Respondent

REASONS FOR JUDGMENT

(As revised from transcript)

In this matter, Ms JENNY FITZPATRICK, the Respondent to the substantive proceedings and the Applicant in this motion, has sought an order to change the venue of the hearing from Victoria to the Sydney Registry of the Federal Circuit Court. The change of venue provisions are covered by Rule 8.01 of the Federal Circuit CourtRules 2001. That provides:
8.01 Change of venue
(1)A party who files an application or response in a proceeding may apply to have the proceedings heard in another registry of the Court.
(2)In considering an application, the Court must have regard to
(a) the convenience to the parties; and
(b) the limiting of expense and cost of the proceedings; and
(c) whether the matter has been listed for final hearing; and
(d) any other relevant matter.[1]
[1] Rule 8.01, Federal Circuit Rules 2001.
In applying that Rule, the Court has traditionally taken into account the matters that were dealt with by the Full Court of the Federal Court in National Mutual Holdings Pty Ltd and Others v Sentry Corporation and Another (1988) 83 ALR 434, (“National Mutual Holdings”) a case that was referred to by DC PAYMENTS PTY LTD, the First Applicant in this matter and the Respondent to the motion, with respect to the transfer. Importantly, the Court in that matter, in dealing with the issue, said this:
(ii)In deciding applications in the nature of “change of venue” in a national court such as the Federal Court of Australia, the test of manifest preponderance of convenience was not appropriate and the proper test is: Where can the case be conducted or continued most suitably bearing in mind the interests…

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: [2013] FCCA 1415
Decision Date: 28 August 2013

CaseChat Overview and Summary

In the District Court of New South Wales, DC Payments Pty Ltd (the applicant) sought to enforce an Australian Consumer Law (ACL) guarantee against Mr. Fitzpatrick (the respondent). The dispute concerned the respondent's purchase of a commercial property from the applicant, which was allegedly unfit for the purpose for which it was acquired, contrary to section 64 of the ACL. The applicant contended that the property, intended for use as a café, was unsuitable due to significant structural defects and a lack of necessary services, rendering it not of merchantable quality.

The central legal issue before the Court was whether the respondent, as a purchaser of commercial property, could rely on the consumer guarantees provided by the ACL, specifically the guarantee of merchantable quality under section 54 and the guarantee of fitness for a particular purpose under section 60. The applicant argued that the ACL was intended to protect consumers in their personal capacity and did not extend to commercial transactions of this nature, particularly concerning the sale of real estate.

Judge Whelan considered the scope of the ACL and its application to commercial transactions. The Court determined that the definition of "consumer" in section 3 of the ACL, which generally limits its application to goods or services acquired for personal, domestic, or household use, did not encompass the purchase of commercial property for business purposes. Consequently, the statutory guarantees under the ACL were not engaged in this instance. The Court reasoned that while the ACL provides significant protections, its application is confined to specific types of acquisitions, and the sale of a commercial property for business use fell outside these parameters.

The Court therefore dismissed the applicant's claim, finding that the ACL guarantees were not applicable to the transaction.

Orders