FEDERAL MAGISTRATES COURT OF AUSTRALIA
| IBRAHIM v CONSIDINE ARCHITECTS | [2008] FMCA 1148 |
| TRADE PRACTICES – Misleading and deceptive conduct – whether Respondent a corporation – whether extended coverage of corporations under section 6 applies – contract for services – alleged misleading and deceptive conduct in relation to payment of superannuation and deduction of taxation – whether conduct in trade or commerce. |
| PRACTICE AND PROCEDURE – Application to set aside orders dismissing application for non-appearance – principles – basis for setting aside orders – whether arguable case on merits. |
| Architects Act 2004 (WA) Business Names Act 1962 (WA) s.7(4) and (5) Federal Magistrates Court Rules 2001 (Cth) rr.13.03A(c), 16.05(2)(a) Trade Practices Act 1974 (Cth) ss.6, 52, 86(1A) |
| J.D. Heydon, Trade Practices Law (Vol 1) (Sydney: Law Book Company) C. Lockhart, The Law of Misleading or Deceptive Conduct (Second Edn) (Chatswood: Lexis Nexis Butterworths, 2003) J.J. Macken, et al, The Law of Employment (5th Edn) (Sydney: Law Book Company, 2002) R.V. Miller, Miller’s Annotated Trade Practices Act (29th Edn) (Sydney: Thomson Lawbook Co, 2008) A Stewart, Stewart’s Guide to Employment Law (Sydney: The Federation Press, 2008) The Shorter Oxford English Dictionary on Historical Principles (Vol. 1) (Oxford: Clarendon Press, 1973) |
| Applicant: | TAREK IBRAHIM |
| Respondent: | CONSIDINE ARCHITECTS |
| File Number: | PEG 58 of 2008 |
| Judgment of: | Lucev FM |
| Hearing date: | 15 August 2008 |
| Date of Last Submission: | 15 August 2008 |
| Delivered at: | Perth |
| Delivered on: | 29 August 2008 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms C Bahemia |
| Solicitors for the Respondent: | Carol Bahemia Lawyers |
ORDERS
The Applicant’s Application in a Case be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 58 of 2008
| TAREK IBRAHIM |
Applicant
And
| CONSIDINE ARCHITECTS |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant applied in the Court’s trade practices…
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- AGLC
- Ibrahim v Considine Architects [2008] FMCA 1148
- Case
- [2008] FMCA 1148
- Decision Date
CaseChat Overview and Summary
The court found that the definitions provided in section 4(1) of the Trade Practices Act were broad and encompassed entities with separate legal personality. However, the court also noted that individual sole traders and partnerships do not fit within the term "body corporate." The respondent provided evidence that Considine Architects was not a body corporate and that Considine himself did not trade as an incorporated body. The court considered this evidence and concluded that Considine Architects did not meet the criteria to be classified as a "corporation" under the Act. Therefore, the claims made by the applicant against Considine Architects could not be recognised under the Trade Practices Act.
The court dismissed the applicant's application in a case, finding that Considine Architects was not a corporation for the purposes of the Act. This decision underscores the importance of correctly identifying the corporate status of entities involved in legal disputes, particularly when statutory definitions and classifications are at issue. The outcome ensures that the application of the Trade Practices Act is limited to entities that meet the specified criteria, maintaining the integrity of the legal framework.
Orders
Orders of the court
1.
The Applicant’s Application in a Case be dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Section 4(1) of the TP Act defines “corporation” as follows:“corporation means a body corporate that:(a) is a foreign corporation;(b) is a trading corporation formed within the limits of Australia or is a financial corporation so formed;(c) is incorporated in a Territory; or(d) is the holding company of a body corporate of a kind referred to in paragraph (a), (b) or (c).”Section 4(1) of the TP Act defines “financial corporation” as follows:“financial corporation means a financial corporation within the meaning of paragraph 51(xx) of the Constitution and includes a body corporate that carries on as its sole or principal business the business of banking (other than State banking not extending beyond the limits of the State concerned) or insurance (other than State insurance not extending beyond the limits of the State concerned).”Section 4(1) of the TP Act defines “foreign corporation” as follows:“foreign corporation means a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and includes a body corporate that is incorporated in an external Territory.”Section 4(1) of the TP Act defines “trading corporation” as follows:“trading corporation means a trading corporation within the meaning of paragraph 51(xx) of the Constitution.” As to the corporate status of the Respondent:a)nothing is said in the Application;b)the Applicant’s First Affidavit contains a reference to “Jeff Considine” and “his partner Phil at the time”;[13]c)there is nothing concerning the corporate structure of the Respondent in the Application in a Case or the Applicant’s Second Affidavit in support of the Application in a Case;d)Considine asserts that:i)he is the proprietor of the “firm Considine Architects”;[14]ii)Jeffrey John Trevor Considine trading as Considine Architects is a registered practising architect in Western Australia in accordance with the Architects Act 2004 (WA);[15]iii)he carries on practice as a registered architect under the name Considine Architects, and that the name Considine Architects is a registered business name under s.7(4) and (5) of the Business Names Act 1962 (WA);[16] andiv)Considine Architects is not a body corporate, and that Considine himself does not trade as an incorporated body.[13] Applicant’s Affidavit, sworn 14 April 2008, para. 6 (“Applicant’s First Affidavit”).[14] Affidavit of Jeffrey John Trevor Considine, dated 21 July 2008, para. 1 (“Considine’s Affidavit”).[15] Considine’s Affidavit, para. 1 and Annexure JJTC1.[16] Considine’s Affidavit, para. 2 and Annexure JJTC2. There is no definition of “body corporate” in the TP Act. However, the “term encompasses any office or group of people recognised at law as having separate legal personality. Corporations whether incorporated under the Corporations Act 2001 or by special statute, come within the [term].”[17] It follows that individual sole traders and partnerships do not come within the term.[17] R.V. Miller, Miller’s Annotated Trade Practices Act (29th Edn) (Sydney: Thomson Lawbook Co, 2008) p. 87, para. 1.4A-10.