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 Owen JJ (at 155), the action depends

upon showing that a person has suffered harm or loss as the

positive acts of another.	inevitable consequence of the unlawful intentional and
The decision of Kitano v The Commonwealth of A u s t r u (1974) 129 CLR 151, distinguished Beaudesert on the grounds that it was necessary that the inevitable consequence of the act be the causation of loss to the plaintiff.
It is said here that the wrongful act in question is a breach of s .52A of the Trade Practices Act 1974. The fact
that a breach of s.52A of the Trade Practices Act was intended to be raised only became apparent on the face of the pleading when they were amended on 14 July 1992 by leave of the court. However, sub-sec.(5) provides that s.52A applies only when the services to which that section refers are:

"of a kind ordinarily acquired for personal, domestic or household use or

consumption " .

No facts at all are pleaded which would signify that the services in question, namely the provision of the leasehold premises in a shopping arcade for purposes of the applicants conducting a sandwich business, are personal. It is obvious that they are not domestic or that there is no question of domestic or household use or consumption. Counsel for the applicants in the proceedings submitted that because the applicants were persons it could be the case that the premises were acquired for personal purposes and that this was

proceedings rather than being dealt with in a strike out	a matter of fact which should be left for the hearing of the	application.
Although reference was not directly made to it, underlying the submission was the decision of the High Court in General Steel Industries Inc v Commissioner for Railwavs JN.S.W.1 (1964) 112 CLR 125 at 129-30 where it is made clear that a strike out application will not be acceded to if there
was a real question of fact to be determined.
With respect, there is nothing in the statement of claim as presently framed which in any way pleads the possibility of there being a personal use of the demised premises, and on the statement of claim as it presently stands, in my view, no cause of action is disclosed and the case is one where the appropriate paragraph should be struck out.
I note in respect of the other matters dealt with in the notice of motion that the applicants to the proceedings do not rely upon para.l2(c) of the further and better particulars of 6 April 1992.
Further, it is conceded that the applicants' defence to the cross-claim does not, as presently pleaded, raise facts which could found an estoppel or perhaps more accurately
estoppel . It is therefore conceded that para.11 of the leaves up in the air what facts are relied upon to found an
applicants' defence to the cross-claim should be struck out with the applicants being given the right to amend its defence to the cross-claim so as to appropriately plead estoppel.
Two further matters in the notice of motion before me deal with costs of a directions hearing on 3 July 1992 and
of a hearing of an application to remit the matter to the County Court. In both of these matters cost orders were made by the judge hearing the matter, and it is not, in my view, appropriate for these matters to be reconsidered.
The applicants to the proceedings have, however, been substantially unsuccessful in the present proceedings and should pay the respondent's costs of the notice of motion.

I would accordingly make the following orders:

(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.

(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.

I certify that this and the
preceding five (5) pages
are a true copy of the Reasons

for Judgment herein of his Honour

Mr Justice Hill.

Associate: $?,&&c,.,./

Date: 6 ~u~'st 1992

Solicitors	Home Wilkinson & Lowry
for Applicants:
Counsel and Solicitors	MS E. Wentworth instructed by
for Respondent:	Minter Ellison
Date of Hearing:	6 August 1992
Date Judgment Delivered:	6 August 1992