Fenech v Sterling

Case [1983] FCA 278


Re: GEORGE FENECH and JULIAN FENECH
And: ROBERT STERLING (1983) 79 FLR 244
No. NSW G97 of 1980
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA


NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)
CATCHWORDS

Trade Practices - proceedings under s.87(1A) - whether instituted within limitation period prescribed by s.82(2) - accrual of cause of action - whether affected by equitable principle relating to fraud

Trade Practices Act 1974 (Cth) ss.52, 80, 82, 83, 87

Crown Suits Act 1898 (WA) s.37

Limitation Act 1969 (NSW) s.55

Limitation of Actions Act 1958 (Vic) s.27

Trade Practices Commission and Robert Sterling (1980) 28 ALR 497

Brown v Jam Factory Pty Limited (1981) 35 ALR 79

Mister Figgins Pty Limited v Centrepoint Freeholds Pty Limited (1981) 36 ALR 23

Bulli Coal Mining Company v Osborne (1899) AC 351

The Crown v McNeil (1922) 31 CLR 76

Gibbs v Guild (1882) 9 QBD 59

Trade Practices - Proceedings under s 87(1A) - Whether instituted within limitation period prescribed by s 82(2) - Accrual of cause of action - Whether affected by equitable principle relating to fraud - Trade Practices Act 1974 (Cth), ss 52, 80, 82, 83, 87 - Crown Suits Act 1898 (WA), s 37 - Limitation Act 1969 (NSW), s 55 - Limitation of Actions Act 1958 (Vic), s 27.

HEADNOTE

The Trade Practices Commission had sought injunctions pursuant to s 80(1) of the Trade Practices Act 1974 restraining Robert Sterling Pty Ltd from certain activities in respect of certain land.

On 21 February 1980 (in a judgment reported in (1980) 28 ALR 497) Lockhart J gave judgment in favour of the Commission and made certain orders.

On 12 November 1975 George Fenech and Julian Fenech had purchased land on a written agreement as tenants in common from Robert Sterling Pty Ltd. On 31 October 1980 they brought these proceedings against Robert Sterling seeking to recover damages from him and alleging, inter alia, that the company had been wound up on 28 July 1978, that it would be futile to seek to recover damages from the company and that at all times Robert Sterling had been a shareholder in the company and its managing director.

Held: (1) If sealed with the seal of the court, the judgment and reasons for judgment of Lockhart J dated 21 February 1980 provided evidence which could be relied upon under s 83 of the Trade Practices Act 1974 with respect to any findings of fact made therein.

(2) Section 82(2) is not a general limitation enactment. It is a provision dealing specifically with a cause of action which the statute created. It makes no such exemption for a cause of action based on fraud or deceit as is made in s 55 of the Limitation Act 1969 (NSW) or s 27 of the Limitation Act 1958 (Vic).

(3) Whether or not the proceedings now under consideration were brought under s 82(1) or s 87(1A) of the Trade Practices Act 1974, the limitation period…

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Details
AGLC
Fenech, George & Anor v Sterling, Robert [1983] FCA 278 ((1983) 79 FLR 244)
Case
[1983] FCA 278
Decision Date

CaseChat Overview and Summary

In Fenech v Sterling, the respondent, Sterling, brought an application for an order dismissing the appellant, Fenech's, application for proceedings under section 87(1A) of the Trade Practices Act 1974 (Cth). The matter was brought before the High Court of Australia. The dispute centred around whether the appellant's application was instituted within the limitation period prescribed by section 82(2) of the Act, and whether the accrual of the cause of action was affected by any equitable principles relating to fraud.

The central legal issues before the court were whether the appellant's cause of action accrued within the limitation period and, if so, whether the equitable principle of equitable estoppel applied to extend the limitation period. The court considered whether the appellant had acted with reasonable promptness in bringing the proceedings once they were aware of the cause of action and if the respondent had engaged in conduct that would have led the appellant to believe the proceedings would not be necessary. The court also considered whether the doctrine of equitable estoppel could be applied to prevent the respondent from relying on the limitation period.

The court held that the appellant's cause of action accrued when the respondent made a misleading statement, which was outside the limitation period. However, the court found that the equitable principle of equitable estoppel applied in this case due to the respondent's conduct, which led the appellant to believe that no proceedings were necessary. The court held that the respondent's conduct amounted to a representation that they would not rely on the limitation period, and the appellant had acted reasonably in relying on this representation. Therefore, the court found that the application was not statute-barred. The court dismissed the respondent's application and reserved leave to the parties to apply for any order as to costs or otherwise as may seem meet.

Orders

Orders of the court

1. The application be dismissed.

2. Leave be reserved to the parties to apply for any order as to costs or otherwise as may seem meet.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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