Lashansky v Bruvecchis Pty Ltd (ACN 054 177 427) - [2004] FCA 837

FEDERAL COURT OF AUSTRALIA
Lashansky v Bruvecchis Pty Ltd (ACN 054 177 427) [2004] FCA 837
PRACTICE AND PROCEDURE – trade practices – misleading or deceptive conduct – alleged promise by shopping centre tenant to provide financial assistance to group litigation by other tenants against landlord – no relevant implied representation – no pleaded causal connexion to actionable loss and damage – no reasonable prospect of repleading – statement of claim struck out – application dismissed.
Trade Practices Act 1974 (Cth)
ROBERT JAMES LASHANSKY v BRUVECCHIS PTY LTD (ACN 054 177 427) AND JOSEPH BRUNI
W 79 OF 2004
FRENCH J
29 JUNE 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W79 OF 2004

BETWEEN:

ROBERT JAMES LASHANSKY
APPLICANT

AND:

BRUVECCHIS PTY LTD
(ACN 054 177 427)
FIRST RESPONDENT

JOSEPH BRUNI
SECOND RESPONDENT

JUDGE:

FRENCH J

DATE OF ORDER:

29 JUNE 2004

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.        The statement of claim be struck out.
2.        The application be dismissed.
3.        The applicant pay the respondents’ costs of the application.
Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W79 OF 2004

BETWEEN:

ROBERT JAMES LASHANSKY
APPLICANT

AND:

BRUVECCHIS PTY LTD
(ACN 054 177 427)
FIRST RESPONDENT

JOSEPH BRUNI
SECOND RESPONDENT

JUDGE:

FRENCH J

DATE:

29 JUNE 2004

PLACE:

PERTH

REASONS FOR JUDGMENT
ON MOTION TO STRIKE OUT STATEMENT OF CLAIM

On 21 April 2004, Robert James Lashansky filed an application claiming damages and other relief for misleading or deceptive conduct against Bruvecchis Pty Ltd (‘BPL’) and its director, James Bruni. A statement of claim was filed at the same time.
On 26 May 2004, the respondents filed a motion seeking orders that the statement of claim be struck out and that the action be dismissed under O 20 r 2 on the grounds that:
‘1.1no reasonable cause of action is disclosed;
1.2the proceeding is frivolous and vexatious;
1.3the proceeding is an abuse of the process of the Court.’
According to the statement of claim BPL was a tenant at the Colonnade Shopping Centre carrying on a bakery and cafe business from November 1995 until the end of 1997. Mr Lashansky is a solicitor currently suspended from practice in the State of Western Australia. Early in 1997 he was asked by Mr Bruni, on behalf of BPL, to assist him with regard to a tenancy dispute with the owners and managing agents of the shopping centre. According to Mr Lashansky, after several months of investigation, he formed the view that BPL and other tenants had valid claims under the Trade Practices Act 1974 (Cth) against the owner of the shopping centre, Lyrical Holdings Pty Ltd, and its leasing agents, Realmark Pty Ltd and Chesterton Pty Ltd.
According to pars 9 and 10 of the statement of claim various meetings of potential litigants were held and it was eventually decided by a number of…

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: [2004] FCA 837
Decision Date: 29 JUNE 2004

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Lashansky v Bruvecchis Pty Ltd (ACN 054 177 427) involved a dispute regarding a statement of claim filed by the plaintiff, Mr Lashansky, against the defendant, Bruvecchis Pty Ltd. The plaintiff sought to challenge the validity of certain contracts and related proceedings that had been executed by the defendant. The court was tasked with determining whether the plaintiff had standing to bring the proceedings and if the claims were properly before the court.

The primary legal issues that the court had to resolve were whether Mr Lashansky had standing to challenge the contracts in question and whether the claims raised in the statement of claim were justiciable. The court considered whether Mr Lashansky had a sufficient connection to the contracts or the entities involved to bring the proceedings and whether the claims related to matters that could be decided by the court.

In examining the matter, the court found that Mr Lashansky did not have standing to bring the proceedings as he did not have a sufficient connection to the contracts or the entities involved. The court held that the claims were not justiciable and that the plaintiff's interests were not directly affected by the contracts or the proceedings. Consequently, the court held that the statement of claim was an abuse of process and ordered that it be struck out. The court further dismissed the application and ordered that the applicant pay the respondents’ costs of the application.

The court's decision in Lashansky v Bruvecchis Pty Ltd (ACN 054 177 427) serves as a reminder of the importance of standing in legal proceedings and the need for a sufficient connection between the party bringing the proceedings and the subject matter of the dispute. The court's decision also highlights the importance of ensuring that claims are justiciable and capable of being decided by the court.

Orders

Orders of the court

1. The statement of claim be struck out.

2. The application be dismissed.

3. The applicant pay the respondents’ costs of the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W79 OF 2004

BETWEEN:	ROBERT JAMES LASHANSKY APPLICANT
AND:	BRUVECCHIS PTY LTD (ACN 054 177 427) FIRST RESPONDENT JOSEPH BRUNI SECOND RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	29 JUNE 2004
WHERE MADE:	PERTH

JUDGE:	FRENCH J
DATE:	29 JUNE 2004
PLACE:	PERTH