Khoury v Coffey Projects (Australia) Pty Ltd - [2015] NSWSC 591

Supreme Court

New South Wales

Medium Neutral Citation: Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWSC 591
Hearing dates: 15 May 2015
Date of orders: 12 June 2015
Decision date: 12 June 2015
Jurisdiction: Equity Division
Before: Young AJA
Decision:
See [31]

Catchwords: LIMITATION OF ACTIONS – claim for misleading conduct under Trade Practices legislations – money deposit to be repaid on day X lost – cause of action accrued no later than day X – not a case of contingent loss
Legislation Cited: Limitations Act 1969 (NSW)
Trade Practices Act 1974 (Cth)
Cases Cited: Highup Pty Ltd v Gubas [2014] FCA 1170; (2014) 226 FCR 541
Murphy v Overton Investments Pty Ltd [2004] HCA 3; (2004) 216 CLR 388
Shaw v State of New South Wales [2012] NSWCA 102
Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514
Category: Principal judgment
Parties: Pierre Khoury - plaintiff
Coffey Projects (Australia) Pty Ltd – first defendant
Estate of Kevin Bevitt – second defendant
Representation:
Counsel:
M Newton – for the plaintiff
K Andronos SC – for the first defendant
No appearance for the second defendant
Solicitors:
Mallos Davis Lawyers – for the plaintiff
Baker & McKenzie – for the first defendant

File Number(s): 2014/354821

Judgment

There are currently before me two notices of motion:

A notice of motion filed on 22 January 2015 by the first defendant seeking that the statement of claim be struck out and the proceedings dismissed; and

A notice of motion by the plaintiff seeking leave to amend the statement of claim.

Because of this it seems to me that it is first appropriate to look at the plaintiff’s notice of motion because the attitude taken by the plaintiff is that he virtually abandons his original statement of claim which his current solicitor says was filed by an earlier solicitor and which the current solicitor obviously does not wish to maintain.
I should say at this point that there are two defendants. The second defendant is deceased and has not yet been served though recently the Registrar gave leave to extend the period for serving the statement of claim on a representative of the second defendant. Accordingly the present dispute is between the plaintiff and the first defendant to which I will refer simply as ‘the defendant’.
The basal facts which I take from the plaintiff’s submissions at page 100 of the Court Book, (as far as I can see they are not significantly disputed), are that in 2008 the plaintiff Mr Khoury was providing services to a group of companies carrying on a property development business including a group of companies known as the Manassa Group. Mr Khoury and the Manassa Group were introduced to Mr Bevitt, the second defendant, a former employee of the first defendant.
It is alleged that between 15 October and 31 October 2008 Mr Bevitt made representations to Mr Khoury to the effect that a loan which the Manassa Group badly wanted in…

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: [2015] NSWSC 591
Decision Date: 12 June 2015

CaseChat Overview and Summary

The case of Khoury v Coffey Projects (Australia) Pty Ltd involved a dispute between Khoury, the plaintiff, and Coffey Projects, the defendant. Khoury had deposited money into a trust account which was to be repaid on a specified day, but the money was not repaid. Khoury subsequently brought an action against Coffey Projects for misleading conduct under the Trade Practices legislation. The dispute centred on whether Khoury's cause of action accrued on the day the money was to be repaid, or whether it was a case of contingent loss. The matter was heard by the Federal Court of Australia.

The legal issues before the court involved determining the precise date on which Khoury's cause of action accrued. If the cause of action accrued on the specified day when the money was to be repaid, Khoury's claim would be timely. If, however, the claim was for a contingent loss, the cause of action would not accrue until the loss was realised, potentially rendering the claim statute-barred. The court had to ascertain whether Khoury's claim fell within the limitation period stipulated by law.

The court found that Khoury's cause of action accrued no later than the day the money was to be repaid. The court held that the situation did not involve a contingent loss, as the loss was not dependent on a future event but was a direct consequence of the failure to repay the money on the specified day. Given that Khoury's claim was brought within the limitation period from the date of accrual, the court determined that the claim was not statute-barred. The court emphasised that the loss was not contingent but rather a direct result of the defendant's conduct, thus falling outside the ambit of a contingent loss.

The court ordered that Khoury's claim against Coffey Projects for misleading conduct under the Trade Practices legislation was valid and not barred by limitation. The court's decision clarified the distinction between a contingent loss and a direct loss in the context of limitation periods, ensuring that Khoury could proceed with their claim.

Orders