Dustar P/L v. Equititour P/L & Ors

SUPREME COURT OF QUEENSLAND

CITATION:

Dustar P/L v Equititour P/L & Ors [2007] QSC 300

PARTIES:

DUSTAR PTY LTD ACN 078 990 771 as trustee for THE CHRIS SEETO FAMILY TRUST
(plaintiff/respondent)
v
EQUITITOUR PTY LTD ACN 069 116 409
(first defendant/applicant)
PHILLIP KEITH SULLIVAN
(second defendant/applicant)
CARISON HOTELS ASIA PACIFIC PTY LIMITED ACN 000 708 332
(third defendant/applicant)
JAMES DODD
(fourth defendant/applicant)

FILE NO/S:

BS 6048 of 2006

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

12 October 2007

JUDGE:

Martin J

ORDER:

Judgment be entered for the first, second, third and fourth defendants pursuant to UCPR 293

CATCHWORDS:

LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – WHEN TIME BEGNS TO RUN – PARTICULAR CAUSES OF ACTION – OTHER CAUSES OF ACTION – where plaintiff was the purchaser of three units from the first defendant – where contract included a lease back arrangement – where the contract was entered on the basis of certain representations – where plaintiff claims damages for negligence, and also under the FTA and TPA – where plaintiff’s claim was one for the diminution in value and also for loss of investment returns – where defendants plead that each cause of action is statute barred – when the plaintiff’s cause of action could be said to have accrued – nature of the plaintiff’s interest said to be infringed – whether action statute barred

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT – where plaintiff contends that case involves complex issues of law and fact that demand a trial – whether case should be summarily dismissed

Fair Trading Act 1989 (Qld), s 6, s 99, s 100
Limitation of Actions Act 1974 (Qld), s 10
Trade Practices Act 1974 (Cth), s 82
Uniform Civil Procedure Rules 1999 (Qld), r 293

Commonwealth v Cornwell (2007) 234 ALR 148, considered
Hawkins v Clayton (1998) 164 CLR 539, considered
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640, applied
Wardley Australia Limited & Anor v Western Australia (1992) 175 CLR 514, distinguished

COUNSEL:

S J Carius for the plaintiff/respondent
T J Bradley for the first, second and fourth defendants/ applicants
J D McKenna SC with D S Piggott for the third defendant/ applicant

SOLICITORS:

Quinn & Scattini for the plaintiff/respondent
Minter Ellison for the first, second and fourth defendants/ applicants
Mallesons Stephen Jaques for the third defendant/applicant

1. MARTIN J:  There are two applications before me.  Each seeks that judgment be entered against the plaintiff pursuant to UCPR 293 or, in the alternative, that the whole of the Further Amended Statement of Claim be struck out or that certain paragraphs be struck out.

The parties

1. The plaintiff (“Dustar”) was the purchaser of three home units at the Radisson Palm Meadows Resort & Conference Centre.  The first defendant (“Equititour”) was the owner of the development and the vendor of…