Nock Son & Company Pty Ltd v Seymour Holdings Pty Ltd

[1989] FCA 539

JUDGMENT No. .534~....&9.-

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) No. 97 of 1989

GENERAL DIVISION 1

BETWEEN:  NOCK SON AND COMPANY PTY
LIMITED

Appliant

AND :  SEYMOUR HOLDINGS PTY
LIMITED and ORS.

Respondents

27 July 1989

REASONS FOR JUDGMENT

LOCKHART J.:

This is a motion by the third respondent, a firm of solicitors carrying on practice in Victoria, seeking to strike out paragraphs 16 and 20 of the statement of claim together with the consequential parts of paragraph 23 of the statement of claim.

Those paragraphs relate to a claim by the applicants

pursuant thereto under S. 82 of the Trade Practices Act 1974.

against the third respondents asserting a contravention of S.

52 of the Trade Practices Act 1974 and a clalm for damages

The statement of claim alleges, broadly speaklng,two causes of action against the third respondents, one based in common law negligence and the other based on contravention of S. 52. I need not recite the facts as pleaded in the statement of claim.

It is sufficient to say for present purposes that the alleged causes of action arise out of alleged knowledge by the third respondents of the contents of a balance sheet pursuant to whlch it is said the applicant relied and suffered damage, all relating to the sale of a share held by the applicant in a company, Haddenfield Holdings Pty Limited.

The basis on which it is sought to strike out the statement of claim insofar as it asserts a cause of action based on S. 52 is that the claim is inevitably statute barred and reliance is placed upon certain authorities ~ncluding the decision of another Judge of this Court in Keen Mar Cor~oration Ptv Limited v Labrador Park ShoDDina Centre Pty

Llmited (1988) ATPR 40-853.

Counsel for the applicant resists the motion on the basis that there is a strongly arguable question to be tried which should await the final hearing. In short, the third respondents state that the date from which the limitation period runs is the date on which the relevant agreement between the applicant and the first and second respondents was entered into, namely 6 January 1986, and the proceeding was commenced by the filing of an application on 1 March 1989.

The applicant asserts that the relevant date is substantially later in the year 1986, indeed a point of time where the three year limitation period for which sub-s.82(2)

provides is still running and certainly had not expired when
this proceeding was commenced.

In my view there is indeed a very arguable question to be tried on this question of when the limitation period dld commence to run. It is, I think, quite inappropriate to deal with this in a strike-out application, more particularly as the facts which are relied upon by the parties to found the cause of action based on section 52 at least substantially overlap the facts as alleged in the statement of claim

relating to the cause of action based on negligence.

In these circumstances I cannot see inconvenience to the parties that would arise if this whole question were to be dealt with at the trial when the judge who hears the trlal ln the light of all the evidence can then determine the questions of law which have been briefly but succinctly argued before me this morning by counsel for both the applicant and the third respondents.

Accordingly I decline to order that paragraphs 16, 20 and the relevant parts of 23 of the statement of claim be struck out and rather than dismiss the motion shall stand it over to the trial. Costs of the motion should be the applicant's cost in the proceeding.

I certify that this and the preceding

three ( 3 ) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

Dated:  27 July 1989

Counsel for the Applicant:	Miss A. Bowne
Solicitors for the Applicant:	Allen Allen & Hemsley
Solicitors for the Respondent:	Abelitis & Co.

Date of Hearing:	27 July 1989
Date of Judgment:	27 July 1989