FEDERAL COURT OF AUSTRALIA
Kondratenko v Kennards Storage Management Pty Ltd [2024] FCA 913
File number(s): QUD 18 of 2024 Judgment of: MEAGHER J Date of judgment: 15 August 2024 Catchwords: PRACTICE AND PROCEDURE – application for summary judgment pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1) of the Federal Court Rules 2011 (Cth) – whether the applicant has a reasonable prospect of successfully prosecuting the proceeding – whether a reasonable cause of action is disclosed – whether the proceeding is frivolous or vexatious – whether the proceeding constitutes an abuse of process – where applicant entered into a storage space hire agreement with the first respondent – where applicant claims non-compliance with Australian Consumer Law on the basis of incorrect billing statements – where any alleged overcharges credited – where first respondent apologised for the statement of account that omitted to include relevant entries – where no reasonable cause of action disclosed – where proceedings commenced for an improper purpose – summary judgment granted in favour of the respondents Legislation: Competition and Consumer Act 2010 (Cth)
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules 2011 (Cth)
Personal Injuries Proceedings Act 2002 (Qld)
Cases cited: Ashby v Slipper (2014) 219 FCR 322; [2014] FCAFC 15
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11
Birch v National Australia Bank Ltd; Campbell v Illawarra Gold Club (No 5) [2014] NSWSC 949
Crocker v Toys ‘R US (Australia) Pty Ltd (No 3) [2015] FCA 728
Hamilton v Oades (1989) 166 CLR 486
New Asian Shipping Co Ltd v Omar Farooq Sultan [2005] QSC 228
Pathmanathan v Healthscope Operations Pty Ltd [2020] FCA 65
Pickering v Centrelink [2008] FCA 561
Re Cameron [1996] 2 Qd R 218
Shumack v Commonwealth of Australia [2009] FCA 775
Spencer v The Commonwealth of Australia (2010) 241 CLR 118
Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1
Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 43 Date of hearing: 23 May 2024 Counsel for the Applicant: The Applicant appeared in-person Counsel for the Respondents: Ms HL Lilley Solicitor for the Respondents: Piper Alderman ORDERS
QUD 18 of 2024 BETWEEN: KONSTANTIN KONDRATENKO
Applicant
AND: KENNARDS STORAGE MANAGEMENT PTY LTD
First Respondent
SAM KENNARD, CEO OF KENNARDS SELF STORAGE
Second Respondent
ORDER MADE BY:
MEAGHER J
DATE OF ORDER:
15 AUGUST 2024
THE COURT ORDERS THAT:
1.Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1) of the Federal Court Rules 2011 (Cth), judgment be entered in favour of the respondents in relation to the whole of the proceeding.
2.Within 7 days of the date of this order, the applicant advise the first respondent and its solicitor of a…
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- Case
- [2024] FCA 913
- Decision Date
CaseChat Overview and Summary
The court found that the applicant's claims were without merit and that the proceeding was frivolous and vexatious. The court examined the evidence provided by both parties and concluded that the applicant had no reasonable prospect of success in prosecuting the proceeding. The court noted that the first respondent had already credited any alleged overcharges and had apologised for the error in the statement of account. The court also found that the applicant's claims were contradicted by the available documents and other materials, and that the proceeding was commenced for an improper purpose. As such, the court granted summary judgment in favour of the respondents.
The court ordered that judgment be entered in favour of the respondents in relation to the whole of the proceeding. The applicant was required to advise the first respondent and its solicitor of a date, time, and location for the return of his remaining possessions within seven days of the date of the order. If the applicant did not comply with the order, the first respondent was authorised to dispose of the applicant's remaining possessions in the manner provided for in the Storage Agreement. The applicant was also ordered to pay the respondents' costs as agreed or assessed.
Orders
Orders of the court
1. Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1) of the Federal Court Rules 2011 (Cth), judgment be entered in favour of the respondents in relation to the whole of the proceeding.
2. Within 7 days of the date of this order, the applicant advise the first respondent and its solicitor of a date, a time during business hours and a location within 15 kilometres of 1 Olympic Circuit, Southport Queensland that his remaining possessions may be returned to him.
3. If the applicant does not comply with order 2, the first respondent may dispose of the applicant’s remaining possessions in the manner provided for in the Storage Agreement dated 27 October 2023.
4. The applicant pay the respondents’ costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In Pathmanathan v Healthscope Operations Pty Ltd [2020] FCA 65 at [8], Steward J helpfully summarised the principles relating to summary judgment: (1) the legislative purpose of s 31A is to strengthen “the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases”: Second Reading Speech of the Migration Litigation Reform Bill 2005 (Cth); (2) the moving party bears the onus of persuading the court that the opponent has no reasonable prospect of success: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 at 271 [46] per Reeves J.; Crayford Freight Services Ltd v Coral Seatel Navigation Co (1998) 82 FCR 328 at 333 per Burchett, Ryan and Marshall JJ; (3) assessment of whether a proceeding or a part of a proceeding has no reasonable prospect of success will necessarily require: (i) identification of the cause of action pleaded; (ii) identification of the pleaded facts said to give rise to that cause of action; (iii) a review of the evidence (if any) tendered in support of the claim for judgment; (iv) identification of the defence pleaded; (v) identification of any facts pleaded which are said to give rise to the defence; and (vi) a review of the evidence (if any) tendered in defence of the claim: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 at 406 –407 [126] per Gordon J.; (4) once a moving party has established a prima facie case that the opponent has no reasonable prospect of success, the opposing party must respond by pointing to specific factual or evidentiary disputes that make a trial necessary; general or non-particularised denials will be insufficient to defeat the motion; Jefferson Ford Pty Ltd at 407 [127] per Gordon J. citing Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [22] per French J. (as his Honour then was); (5) summary disposition of a proceeding is authorised on a variety of bases. It will, for example and without limitation, be appropriate in a case: (i) in which the pleadings disclose no reasonable cause of action and their deficiency is incurable; (ii) in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and in any case which might be propounded by permissible amendment; or (iii) that is “frivolous or vexatious or an abuse of process”: Spencer v Commonwealth (2010) 241 CLR 118 at 131 [22] per French CJ and Gummow J.;(6) the determination of a summary dismissal application does not require a mini-trial based upon incomplete evidence to decide whether a proceeding is likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial: Cassimatis at 271 [46] per Reeves J.; and(7) an application for summary dismissal is likely to succeed if the moving party is able to demonstrate that the applicant’s success in the proceeding relies upon a question of fact that can be truly described as “fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials”: Cassimatis at 272 [47] per Reeves J.CONSIDERATION