Khoury v Sidhu (No. 2) - [2010] FCA 1320

FEDERAL COURT OF AUSTRALIA
Khoury v Sidhu (No. 2) [2010] FCA 1320

Citation: Khoury v Sidhu (No. 2) [2010] FCA 1320

Parties: MANUEL KHOURY and SAMIRA KHOURY v BALDEV SINGH SIDHU, ALLIANCE CAPITAL CORPORATION PTY LTD ACN 102 712 836 and QUEENSLAND DIRECT FINANCE PTY LTD
ACN 112 372 111

File number: QUD 131 of 2009

Judge: GREENWOOD J

Date of judgment: 30 November 2010

Catchwords: PRACTICE AND PROCEDURE – consideration of an application to amend the Defence to raise questions of contribution by the applicants to the amount of the loss or damage suffered by them the subject of their claim – consideration of amendments to the Defence to raise proportionate liability of the respondents – consideration of whether in the exercise of discretion under s 87, arguable defences might be raised that the exercise of the discretion ought to take account of the notion that had the claim been made under s 82 of the Trade Practices Act 1974 (Cth), the amount of the claim would be reduced (if the relevant integers are proved) by the extent to which the applicants are partly responsible for the loss and any judgment in favour of the applicants would not exceed the proportionate liability of the respondents – consideration of whether the making of a claim under s 87 rather than s 82 has the effect that no arguable question arises as to contribution by the applicants to the loss or proportionate liability of the respondents as those matters are relevant only to claims made under s 82 – consideration of whether an arguable basis arises upon which the exercise of the discretion under s 87 might have regard to contribution by the applicants and proportionate liability of the respondents so as to support an amendment to a defence

Legislation: Trade Practices Act 1974 (Cth); ss 52, 82, 82(1B), 87(1), 87(1A), 87(2), 87CB, 87CD
Australian Securities and Investments Commission Act 2001 (Cth); ss 12DA(1), 12BB, 12GF(1B), 12GM(1), 12GM(2), 12GM(7)(e), 12GP

Cases cited: Henville v Walker (2001) 206 CLR 459 - considered
I & L Securities v HTW Valuers (2002) 210 CLR 109 - considered
North East Equity v Proud Nominees [2010] FCAFC 60; (2010) 269 ALR 262 - cited
Woods v De Gabriele & Ors [2007] VSC 177 - cited
BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No. 2) [2008] FCA 1656 - cited
McIlwain v Ramsey Food Packaging Pty Ltd (2006) 221 ALR 785 - cited

Date of hearing: 19 July 2010

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 128

Counsel for the Applicants: Mr Andrew Greinke

Solicitor for the Applicants: Cranston McEachern

Counsel for the Respondents: Mr Andrew Lyons

Solicitor for the Respondents: Plastiras Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 131 of 2009

BETWEEN:
MANUEL KHOURY
First Applicant

SAMIRA KHOURY
Second Applicant

AND:
BALDEV SINGH SIDHU
First Respondent

ALLIANCE CAPITAL CORPORATION PTY LTD
ACN 102 712 836
Second Respondent

QUEENSLAND DIRECT FINANCE PTY LTD
ACN…

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.

Continue reading Khoury v Sidhu (No. 2)

Details

AGLC: Khoury v Sidhu (No. 2) [2010] FCA 1320
Case: [2010] FCA 1320
Decision Date

CaseChat Overview and Summary

The proceeding is one for compensation under the Trade Practices Act 1974 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth) for alleged misleading and deceptive conduct by the respondents in contravention of s 52 of the Trade Practices Act and s 12DA of the ASIC Act. The respondents seek leave to amend their Defence to raise the question of contributory conduct by the applicants and proportionate liability of a concurrent wrongdoer in relation to the loss now claimed by the applicants. The applicants resist the motion. The respondents seek leave to file and rely upon the affidavits of two witnesses sworn in May 2010. The applicants seek leave to issue a subpoena directed to a witness for the respondents to produce his file in its entirety. The applicants also seek leave to subpoena a witness in their case. The Court found that the respondents ought to be given leave to amend their Defence to raise the matters in issue. The Court found that the respondents ought to be given leave to file and rely upon the affidavits sworn in May 2010. The Court found that the applicants ought to be given leave to issue a subpoena to a witness for the respondents. The Court found that the applicants ought to be given leave to issue a subpoena to a witness in their case. Consequential directions orders will be made. The costs of and incidental to the notice of motion of the respondents and that of the applicants will be reserved for later determination upon the making of short submissions.

Orders