Re: MENHADEN PTY. LTD.
And: CITIBANK N.A. No. WA G25 of 1984
(1984) ATPR para 40 - 471 / 1 FCR 542 / 55 ALR 709
Trade Practices
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.(1)
CATCHWORDS
Trade Practices - statement made by bank regarding financial capacity of customer - whether conduct in trade or commerce - no allegation that any member of the public, in the capacity of consumer, had been misled - whether reasonable cause of action disclosed - relevance of fact that information provided gratuitously - security for costs - matters to be taken into account
Trade Practices Act 1974 s.52
Federal Court of Australia Act 1976 s.56
Judiciary Act 1903 s.79
Companies Code (W.A.) s.533
Federal Court Rules 0.20 r.2, 0.29 r.2
Trade Practices - Statement by bank concerning financial capacity of customer - Whether in trade of commerce - Trade Practices Act 1974 (Cth), s. 52.
HEADNOTE
Held: (1) A bank which provides gratuitous advice concerning the availability of finance to one of its clients thereby engages in conduct in trade and commerce.
(2) Section 52 of the Trade Practices Act 1974 (Cth) is not confined in its operation to statements made to the public or an identifiable section of it.
HEARING
Perth, 1984, June 25; July 12. #DATE 12:7:1984
MOTION.
Notice of motion to dismiss an application as failing to disclose a reasonable cause of action and application for security for costs.
D. A. Ipp, for the applicant.
J. G. Fiocco, for the respondent.
Cur. adv. vult.
Solicitors for the applicant: Parker & Parker.
Solicitors for the respondent: Mackinlays Barristers & Solicitors.
G.F.V.
ORDER
1. The respondents' motion that the application
be dismissed for want of jurisdiction or for failing to disclose a cause of action be dismissed.
2. The applicant give security in the amount of
$12,000 for the costs of the respondent of and incidental to these proceedings, in a form to be agreed by the parties, in default of agreement, to be determined by the Court.
3. Further proceedings on the applicant's claim
against the respondent be stayed until security is provided.
4. Liberty be reserved to either party to apply
generally upon 7 days notice to the other party.
5. All question of costs be reserved.
Orders accordingly.
JUDGE1
This is a motion to dismiss the applicant's application as failing to disclose a reasonable cause of action. The motion seeks alternative relief (only if the proceeding is not dismissed) that the applicant provide security for costs. It is convenient to refer to the parties simply as Menhaden and Citibank.2. When the hearing began, counsel for Citibank invited the Court to treat the motion as one for the determination of questions of law pursuant to O.29 r.2 of the Federal Court Rules. In the absence of a defence and a precise formulation of the questions to be determined, I declined to deal with the motion in this way. There are important differences between…
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- Case
- [1984] FCA 193
- Decision Date
CaseChat Overview and Summary
The court examined whether the bank's conduct was part of trade or commerce and whether Menhaden had disclosed a reasonable cause of action. The court held that the bank's statement was made in the course of its business activities and thus fell within the scope of trade or commerce. However, since there was no allegation that any member of the public, acting as a consumer, had been misled by the bank's statement, the court found that Menhaden had not disclosed a reasonable cause of action. The gratuitous nature of the information provided by the bank did not affect the court's analysis.
In light of the above, the court dismissed Citibank's motion to dismiss the application for lack of jurisdiction or for failure to disclose a cause of action. However, the court ordered Menhaden to provide security for costs in the amount of $12,000 and stayed further proceedings until such security was provided. The court also reserved the right for either party to apply generally upon seven days' notice to the other party and reserved all questions of costs.
Orders
Orders of the court
1. The respondents' motion that the application
be dismissed for want of jurisdiction or for failing to disclose a cause of action be dismissed.
2. The applicant give security in the amount of
$12,000 for the costs of the respondent of and incidental to these proceedings, in a form to be agreed by the parties, in default of agreement, to be determined by the Court.
3. Further proceedings on the applicant's claim
against the respondent be stayed until security is provided.
4. Liberty be reserved to either party to apply
generally upon 7 days notice to the other party.
5. All question of costs be reserved.
Orders accordingly.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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