Febray v Equititour; Hutchinson v Equititour - [2009] QDC 281

DISTRICT COURT OF QUEENSLAND

CITATION:

Febray v Equititour; Hutchinson v Equititour [2009] QDC 281

PARTIES:

D2123 of 2006

FEBRAY PTY LTD (AS TRUSTEE FOR THE TAYLOR FAMILY TRUST)

(Plaintiff)

AND

EQUITITOUR

(First defendant)

AND

PHILIP KEITH SULLIVAN

(Second defendant)

AND

CARLSON HOTELS ASIA PACIFIC PTY LTD

(Third defendant)

AND

JAMES DODD

(Fourth defendant)

D2124 of 2006

ANTHONY BRUCE HUTCHINSON AND ALISON PATRICIA HUTCHINSON

(Plaintiff)

AND

EQUITITOUR PTY LTD

(First Defendant)

AND

PHILIP KEITH SULLIVAN

(Second Defendant)

AND

CARLSON HOTELS ASIA PACIFIC PTY LIMITED

(Third Defendant)

AND

JAMES DODD

(Fourth defendant)

FILE NO/S:

D2123 of 2006 and D2124 of 2006

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

28 August 2009

DELIVERED AT:

Brisbane

HEARING DATE:

18 April 2008, 16 May 2008 with further written submissions received on 14 and 28 August 2008

JUDGE:

Rackemann DCJ

ORDER:

Judgment for the defendants against the plaintiffs

CATCHWORDS:

LIMITATION OF ACTIONS – TORT – TRADE PRACTICES ACT – WHEN TIME BEGINS TO RUN – plaintiffs were purchasers of units subject to lease-back – transaction said to be induced by actionable misrepresentation and conduct – where plaintiffs’ claim is for transaction costs and disposal costs in addition to diminution in value – where plaintiffs also claim holding costs and loss of investment returns – where evidence that purchase price was the market price but exceeded the true value – when was that ascertainable – whether transaction costs are recoverable in the absence of diminution of value – whether action statute barred

PROCEDURE – DISTRICT COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER THE RULES OF COURT – SUMMARY JUDGMENT – whether cases should be summarily dismissed

Cases cited:

Bullock v O’Sullivan [2003] QDC 155
Christie v Purves & Ors [2007] NSWCA 184
Commonwealth v Amann Aviation Pty Ltd (1992) 174 CLR 64
Commonwealth v Cornwell (2007) 234 ALR 148
Dustar Pty Ltd v Equititour Pty Ltd & Ors [2007] QSC 300
Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd [2008] VSCA 26
Francis v Whatson (1994) 2 Qd R 584
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640
McRae v Commonwealth Disposals Commission (1951) 84 CLR 377
Murphy v Overton Investments Pty Ltd [2004] 216 CLR 388
Potts v Miller (1940) 64 CLR 282
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514

Winnote Pty Ltd v Page & Ors [2006] NSWCA 287

Legislation cited:

Fair Trading Act 1989 (Qld)

Trade Practices Act 1974 (Cth)

COUNSEL:

Mr S Couper QC for the plaintiffs

Mr T J Bradley for the first, second and fourth defendants

Mr J D McKenna SC with Mr D S Piggott for the third defendant

SOLICITORS:

Slater & Gordon Lawyers for the plaintiffs

Minter Ellison-Gold Coast for the first, second and fourth defendants

Mallesons Stephen Jaques for the third defendant

In each of these proceedings the defendants seek summary judgment[1] on the basis that the plaintiffs’ claims are self-evidently statute barred, having been commenced beyond the relevant limitation period. It is contended,…

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: [2009] QDC 281
Decision Date: 28 August 2009

CaseChat Overview and Summary

In Febray v Equititour and Hutchinson v Equititour, the plaintiffs, purchasers of units under a lease-back arrangement, alleged that the transactions were induced by actionable misrepresentations and conduct. They sought recovery for transaction costs, disposal costs, diminution in value, holding costs, and loss of investment returns. The plaintiffs argued that the purchase price exceeded the true value of the units and that the true value was ascertainable at the time of purchase. The defendants sought to dismiss the claims on the grounds of limitation periods and summary judgment.

The court had to determine when the limitation period began to run for the plaintiffs' claims. This hinged on when the plaintiffs could have ascertained that the purchase price exceeded the true value of the units. Additionally, the court had to decide whether the plaintiffs could recover transaction costs in the absence of a diminution in value. The defendants also argued that the claims were statute-barred. Furthermore, the court had to assess whether the cases should be summarily dismissed under the Queensland District Court Rules of Court.

The court found that the plaintiffs' claims were statute-barred as they were not brought within the requisite time limits. It concluded that the plaintiffs could have ascertained the true value of the units at the time of purchase, meaning the limitation period had expired before they filed their claims. The court also held that transaction costs could not be recovered without a corresponding diminution in value. The court granted the defendants' motions for summary judgment, dismissing the plaintiffs' claims in their entirety.

Orders

Orders of the court

Judgment for the defendants against the plaintiffs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Febray v Equititour; Hutchinson v Equititour [2009] QDC 281
PARTIES:	D2123 of 2006 FEBRAY PTY LTD (AS TRUSTEE FOR THE TAYLOR FAMILY TRUST) (Plaintiff) AND EQUITITOUR (First defendant) AND PHILIP KEITH SULLIVAN (Second defendant) AND CARLSON HOTELS ASIA PACIFIC PTY LTD (Third defendant) AND JAMES DODD (Fourth defendant) D2124 of 2006 ANTHONY BRUCE HUTCHINSON AND ALISON PATRICIA HUTCHINSON (Plaintiff) AND EQUITITOUR PTY LTD (First Defendant) AND PHILIP KEITH SULLIVAN (Second Defendant) AND CARLSON HOTELS ASIA PACIFIC PTY LIMITED (Third Defendant) AND JAMES DODD (Fourth defendant)
FILE NO/S:	D2123 of 2006 and D2124 of 2006
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	28 August 2009
DELIVERED AT:	Brisbane
HEARING DATE:	18 April 2008, 16 May 2008 with further written submissions received on 14 and 28 August 2008
JUDGE:	Rackemann DCJ
ORDER:	Judgment for the defendants against the plaintiffs
CATCHWORDS:	LIMITATION OF ACTIONS – TORT – TRADE PRACTICES ACT – WHEN TIME BEGINS TO RUN – plaintiffs were purchasers of units subject to lease-back – transaction said to be induced by actionable misrepresentation and conduct – where plaintiffs’ claim is for transaction costs and disposal costs in addition to diminution in value – where plaintiffs also claim holding costs and loss of investment returns – where evidence that purchase price was the market price but exceeded the true value – when was that ascertainable – whether transaction costs are recoverable in the absence of diminution of value – whether action statute barred PROCEDURE – DISTRICT COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER THE RULES OF COURT – SUMMARY JUDGMENT – whether cases should be summarily dismissed Cases cited: Bullock v O’Sullivan [2003] QDC 155 Christie v Purves & Ors [2007] NSWCA 184 Commonwealth v Amann Aviation Pty Ltd (1992) 174 CLR 64 Commonwealth v Cornwell (2007) 234 ALR 148 Dustar Pty Ltd v Equititour Pty Ltd & Ors [2007] QSC 300 Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd [2008] VSCA 26 Francis v Whatson (1994) 2 Qd R 584 HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640 McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 Murphy v Overton Investments Pty Ltd [2004] 216 CLR 388 Potts v Miller (1940) 64 CLR 282 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Winnote Pty Ltd v Page & Ors [2006] NSWCA 287 Legislation cited: Fair Trading Act 1989 (Qld) Trade Practices Act 1974 (Cth)
COUNSEL:	Mr S Couper QC for the plaintiffs Mr T J Bradley for the first, second and fourth defendants Mr J D McKenna SC with Mr D S Piggott for the third defendant
SOLICITORS:	Slater & Gordon Lawyers for the plaintiffs Minter Ellison-Gold Coast for the first, second and fourth defendants Mallesons Stephen Jaques for the third defendant