Hamod, J. v Perpetual Trustees W.A. Ltd - [1992] FCA 631

VICTORIAN DISTRICT REGISTRY i No VG 37 of 1992
)
GENERAL DIVISION 1

BETWEEN: JACOB HAMOD AND VIOLET HAMOD
Applicants

AND : PERPETUAL TRUSTEES W.A. LIMITED
(ACN OOE 066 886)
Respondent

C O W : HILL J

PLACE: MELBOURNE

DATED: 6 AUGUST 1992

MINUTES OF ORDER

THE COURT ORDEa:

(1) That para.l4(e) of the statement of claim be struck out.
(2) That the applicants' defence to the cross-claim be struck out.
(3) That the applicants pay the costs of the notice of motion, including the costs of the hearing today.
(4) That the applicants have leave to further amend the statement of claim and the defence to the cross-claim and that such further amended statement of claim and amended defence to cross-claim be filed and served on or before 27 August 1992.

Note : Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

( 5 ) Notice of any interrogatories in respect

of which leave will be sought is to be
given on or before 3 September.

(6) That the matter be stood over for mention in the directions list on Friday, 4 September 1992.

IN THE FEDERAL COURT OF AUSTRALIA

) )
VICTORIAN DISTRICT REGISTRY

1 No VG 37 of 1992
1
GENERAL DIVISION 1

BETWEEN: JACOB HAMOD AND VIOLET HAMOD
Applicants

m: PERPETUAL TRUSTEES W.A. LIMITEQ
(ACN 008 066 886)
Respondent

CORAM: HILL J

PLACE: MELBOURNE

m: 6 AUGUST 1992

EX TEMPORE REASONS FOR JUDGMENT

The respondent to the proceedings, Perpetual Trustees WA Limited, moves the court to strike out certain paragraphs including para.l4(e) of the statement of claim of the applicants, Mr and Mrs Hamod.

In their statement of claim the applicants allege

that they had operated a sandwich bar business and that by a

deed dated 4 August 1989, between the applicants as lessees

and the respondents as lessor, the respondent agreed to leaee

shops 26 and 28 at the Embark Arcade to the applicants for a term of four years 11 months at an initial rental of $40,513 provided that the applicants expended certain moneys.

Paragraph 14 of the statement of claim provides as

follows :

"Further and in the a1 terna tive the Respondent has intentionally caused harm to the Applicants' business by:-

(e)

reducing the rent payable by other tenants of the Embank Arcade in competition with the Applicants by up to 50% but not so reducing and in fact refusing to so reduce the rent payable by the Applicants. "

It would seem that the pleading seeks to rely upon the decision of the High Court in Beaudesert Shire CO- v

i t (1966) 120 CLR 145, where it was established that an action on the case could be brought for damages in circumstances where a statutory authority intentionally did an act forbidden by law which inevitably caused damage. The principle is expressed in terms wider than being applicable only to a statutory authority. As put in the joint judgment

of Taylor, Menzies and…

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: [1992] FCA 631
Decision Date: 6 Aug 1992

CaseChat Overview and Summary

The case of Hamod v Perpetual Trustees WA Limited involves a dispute between Jacob and Violet Hamod, who are the applicants, and Perpetual Trustees WA Limited, the respondent. The applicants have brought proceedings against the respondent for alleged breaches of their lease agreement and other related claims. The case was heard in the Federal Court of Australia, Victorian District Registry, General Division. The respondent has moved to strike out certain paragraphs of the applicants' statement of claim and their defence to the cross-claim, as well as seeking costs and directions for further amendments to the pleadings.

The primary legal issue before the court was whether the applicants' claim for damages based on the respondent's alleged breach of section 52A of the Trade Practices Act 1974 could proceed. Section 52A pertains to the misuse of market dominance and the applicants sought to rely on it in their claim. However, the court found that the applicants' lease agreement for the commercial premises did not fall within the scope of services that could be acquired for personal, domestic or household use or consumption, as required by section 52A. The court also considered whether the applicants' defence to the cross-claim adequately pleaded a case of estoppel.

In his reasons for judgment, Justice Hill held that the applicants' claim under section 52A was not supported by the facts pleaded in their statement of claim, and accordingly, paragraph 14(e) of the statement of claim was to be struck out. The court also found that the applicants' defence to the cross-claim did not adequately plead a case of estoppel and therefore, it was also to be struck out. The applicants were granted leave to amend their pleadings and were directed to file and serve any further amended statements of claim and defence to the cross-claim by a specified date. The court also made orders for costs and directions for further amendments to the pleadings, and the matter was stood over for mention on a specified date.

In conclusion, the court struck out certain paragraphs of the applicants' statement of claim and their defence to the cross-claim, and granted leave for further amendments to the pleadings. The applicants were ordered to pay the respondent's costs of the notice of motion, and the matter was stood over for mention on a specified date. The final orders of the court are as follows: (1) That para.14(e) of the statement of claim be struck out. (2) That the applicants' defence to the cross-claim be struck out. (3) That the applicants pay the costs of the notice of motion, including the costs of the hearing today. (4) That the applicants have leave to further amend the statement of claim and the defence to cross-claim and that such further amended statement of claim and amended defence to cross-claim be filed and served on or before 27 August 1992. (5) Notice of any interrogatories in respect of which leave will be sought is to be given on or before 3 September. (6) That the matter be stood over for mention in the directions list on Friday, 4 September 1992.

Orders