FEDERAL CIRCUIT COURT OF AUSTRALIA
| LONGMUIR & ANOR v KONSTANTOPOULOS | [2014] FCCA 162 |
| Catchwords: TRADE AND COMMERCE – Competition, fair trading and consumer protection legislation – procedure – jurisdiction. TRADE AND COMMERCE – Competition, fair trading and consumer protection legislation – consumer protection – misleading or deceptive conduct or false representations – particular cases – contract – summary judgment. |
| Legislation: Building Act 1993 (Vic), ss.16(1), 137B, 137C Sale of Land Act 1962 (Vic), s.32 |
| First Applicant: | TROY STEVEN LONGMUIR |
| Second Applicant: | KRISTY FLETCHER |
| Respondent: | HELEN KONSTANTOPOULOS |
| File Number: | MLG 1150 of 2013 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 20 December 2013 |
| Date of Last Submission: | 20 December 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 7 February 2014 |
REPRESENTATION
| Counsel for the Applicants: | Mr McKay |
| Solicitors for the Applicants: | Armstrong Lawyers Pty Ltd |
| Counsel for the Respondent: | Ms Konstantinou |
| Solicitors for the Respondent: | Noble House Lawyers |
ORDERS
Summary judgment be entered for the Applicants on the claim in the sum of $21,984.11.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1150 of 2013
| TROY STEVEN LONGMUIR |
First Applicant
| KRISTY FLETCHER |
Second Applicant
And
| HELEN KONSTANTOPOULOS |
Respondent
REASONS FOR JUDGMENT
On 10 March 2011, the first applicant entered into a contract with the respondent to purchase a 3 bedroom home at Bentleigh East for $640,000. The residence was one of two residences on the property, which was to be subdivided in accordance with a proposed plan of subdivision.
In April 2011, the applicant nominated himself and the second applicant as the joint purchasers under the contract. In late May, the proposed plan of subdivision was registered, subdividing the property into two lots, one containing each of the residences on the property, and enabling the transfer of one lot to the applicants. On 9 June 2011, the applicants completed the contract by paying the respondent the purchase moneys owing and were registered as the joint proprietors of the property on…
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Details
- AGLC
- Longmuir v KONSTANTOPOULOS [2014] FCCA 162
- Case
- [2014] FCCA 162
- Decision Date
CaseChat Overview and Summary
This matter concerned an application for summary judgment brought by the applicant, Longmuir, against the respondent, Konstantopoulos, in the Federal Circuit Court of Australia. The dispute involved a claim for breach of warranty.
The court was required to determine whether the respondent had any reasonable prospect of successfully defending the proceeding, as contemplated by section 17A of the *Federal Circuit Court of Australia Act 1999*. This involved considering the threshold for granting summary judgment under the Act, and whether the respondent's defence met the criteria of having no reasonable prospect of success, even if not entirely hopeless or bound to fail.
The court applied section 17A of the *Federal Circuit Court of Australia Act 1999*, which permits summary judgment if the respondent has no reasonable prospect of successfully defending the proceeding. The judge noted that the applicant had provided an affidavit stating a belief that there was no arguable defence. The court referenced the legislative intent behind similar provisions, such as section 31A of the *Federal Court of Australia Act 1976*, which was to broaden the grounds for summarily disposing of unsustainable cases and to lower the bar for obtaining summary judgment compared to previous common law tests. The court emphasised that the focus must be on the statutory language and the specific test it prescribes.
The court found that there was nothing in the material before it to indicate any prospect of success for the respondent regarding the claim for breach of warranty. Consequently, summary judgment was granted in favour of the applicant.
The court was required to determine whether the respondent had any reasonable prospect of successfully defending the proceeding, as contemplated by section 17A of the *Federal Circuit Court of Australia Act 1999*. This involved considering the threshold for granting summary judgment under the Act, and whether the respondent's defence met the criteria of having no reasonable prospect of success, even if not entirely hopeless or bound to fail.
The court applied section 17A of the *Federal Circuit Court of Australia Act 1999*, which permits summary judgment if the respondent has no reasonable prospect of successfully defending the proceeding. The judge noted that the applicant had provided an affidavit stating a belief that there was no arguable defence. The court referenced the legislative intent behind similar provisions, such as section 31A of the *Federal Court of Australia Act 1976*, which was to broaden the grounds for summarily disposing of unsustainable cases and to lower the bar for obtaining summary judgment compared to previous common law tests. The court emphasised that the focus must be on the statutory language and the specific test it prescribes.
The court found that there was nothing in the material before it to indicate any prospect of success for the respondent regarding the claim for breach of warranty. Consequently, summary judgment was granted in favour of the applicant.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Summary judgment applications are to be determined in accordance with s.17A of the Federal Circuit Court of Australia Act 1999 which provides:17ASummary judgment(1) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a) the first party is prosecuting the proceeding or that part of the proceeding; and(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a) the first party is defending the proceeding or that part of the proceeding; and(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:(a) hopeless; or(b) bound to fail;for it to have no reasonable prospect of success.(4) This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section. In this case, there is nothing in the material to indicate any prospect of success on the part of the respondent, with respect to the claim for a breach of warranty. The first applicant has sworn an affidavit saying that he does not believe there is an arguable defence (at para.54 of his affidavit filed 13 November 2013). Traditionally, summary judgment would be given with damages to be assessed or in the amount of the claim if the claim was for a debt or liquidated amount. In some types of cases, such as a claim for personal injuries, there would almost always need to be a hearing to assess the amount of damages. In other cases, even a claim that does not fall within the meaning of “debt or liquidated” demand may be sufficiently certain to enable the Court to be satisfied to the required standard as set out in s.17A (see for example Australian Motor Finance Ltd (Receivers and Managers appointed) v Angeleri (No.3) [2010] FCA 1431, where summary judgment for damages for breach of the corporations law was entered for over $4.8 million). In this regard it must be recognised that references to debts and liquidated demands flowed from the now archaic common law forms of actions. A useful summary of the law with respect to s.31A of the Federal Court of Australia Act 1976, which is in the same vein as s.17A of the Federal Circuit Court of Australia Act 1999, is set out by Tracey J in Deckers Outdoor Corporation Inc v Farley (No 2) [2009] FCA 256; (2009) 176 FCR 33; [2009] AIPC 92-340 at paras.11-12, as follows:SECTION 31A OF THE FEDERAL COURT ACT[11] Section 31A of the Federal Court Act was introduced to extend “the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases”: see Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 at 406 [124] (per Gordon J) (quoting from the Second Reading Speech of the Minister on the Migration Litigation Reform Bill 2005 (Cth)). The section empowers the Court to give summary judgement in favour of an applicant if it is satisfied that the respondent “has no reasonable prospect of successfully defending the proceeding or [a] part of the proceeding”: see s 31A(1)(b). A defence may have no reasonable prospect of success notwithstanding that it is not “hopeless” and not “bound to fail”: see s 31A(3).[12] Plainly, s 31A was, as Lindgren J held in White Industries Aust Ltd v Commissioner of Taxation (2007) 160 FCR 298 at 310 [54], designed “to lower the bar for obtaining summary judgment” from the level that had been fixed by the High Court in Dey v Victorian Railways Commissioners (1949)78 CLR 62 at 91-2 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-130. Although the standard which must be met by an applicant who seeks summary judgment under the Federal Court Act has been expressed in a variety of different ways, where, as here, an application is made under s 31A, the Court is required to give close attention to the statutory language and to apply that test to the exclusion of all others. As Kenny J said in PZ Cussons (International) Ltd v Rosa Dora Imports Pty Ltd (2007) 74 IPR 372; [2007] FCA 1642 at [13]:“The key is to address the statutory question. That is, under s 31A, in order to grant summary judgment, I must be satisfied that the respondents have no reasonable prospects of success in defending the infringement claim. As s 31A(3) makes clear, this does not mean that I must be satisfied that their defence is hopeless or bound to fail.”
Ratio Decidendi
Legal Principle Established
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