Fenech, Georhe v Robert Sterling

[1984] FCA 344

Re: GEORGE FENECH and JULIAN FENECH
And: ROBERT STERLING
No. G 344 of 1983
Trade Practices
57 ALR 98 / 4 FCR 372

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Woodward(1), St. John(1) and Spender(1) JJ.

CATCHWORDS

TRADE PRACTICES - misleading or deceptive conduct - action for recovery of loss or damage suffered as result of contravention-limitation period.

Trade Practices Act 1974 ss.80, 82 and 87

Trade Practices - Application for orders under s 87(1A) - Whether limitation period applies - Trade Practices Act 1974 (Cth), s 87(1A).

HEADNOTE

No prescribed period of limitation applies to an application by a person who has suffered loss or damage by conduct of another in contravention of Pt V for orders pursuant to s 87(1A) of the Trade Practices Act 1974 (Cth).

Observations concerning the discretionary nature of the orders provided for by s 87(1A) and concerning matters which might be relevant to the exercise of the discretion in particular cases where there has been lapse of time.

HEARING

1984, October 16, 29. #DATE 29:10:1984

APPEAL

Appeal from judgment and orders of Davies J.

J L Trew QC and J F Kildea, for the appellants.

I M Kahn, for the respondent.

Cur adv vult

Solicitor for the appellants: Public Solicitor.

Solicitors for the respondent: J W Walker and D K L Raphael.

GFV

ORDER

1. The appeal be upheld and the decision of Davies J. set aside.

2. The matter be remitted to Davies J. to be dealt with in accordance with these reasons for judgment.

3. The respondent pay the appellants' taxed costs of the appeal.

Appeal allowed with costs

Matter remitted to Davies J to be dealt with in accordance with the reasons for judgment

JUDGE1

This appeal raises the short point whether the particular application made under s.87(1A) of the Trade Practices Act 1974 ('the Act') is subject to a three-year period of limitations. The facts are set out fully in the judgment of Davies J. (reported in (1983) 51 ALR 205), who heard the application for orders under s.87(1A) and dismissed it on the ground that the period of limitation did apply and had expired before the application was filed. His Honour also made other findings, referred to below, which are not the subject of appeal.

The facts of the case which are relevant for present purposes may be summarized as follows. The appellants, along with a number of other people, were induced by a series of false representations to invest in a large land development project near Ballarat in Victoria. This occurred in 1975. The investors believed they were getting a half-acre piece of land for themselves, on which one or two houses could be erected, and which would appreciate rapidly in value as the project developed. Pursuant to the contract which the appellants signed on 12 November 1975, they paid a deposit of $650 on the same day and the balance of purchase money, namely $3000, on 21 November 1975. In fact…