Siemelink, A.J. & Anor. v Alexandrou Estates

[1985] FCA 411

Re: ADRIAN JAN SIEMELINK and RENEE SIEMELINK-KNAPP
And: ALEXANDROU ESTATES PTY. LTD. and JOHN ALEXANDROU
No. G41 of 1984
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
Forster J.

CATCHWORDS

Practice and Procedure - Statement of claim amended to include claim of relief pursuant to s.75B Trade Practices Act with respect to second respondent - application to strike out relevant paragraph of statement of claim - whether introduced fresh cause of action against second respondent - whether beyond limitation period fixed by s.82(2) Trade Practices Act.

Trade Practices Act : ss. 52, 53A, 75B, 82

Weldon v. Neal (1887) 19 Q.B.D. 394

HEARING

ADELAIDE
#DATE 27:8:1985

ORDER

1. The application be dismissed with costs.

JUDGE1

The second respondent (Alexandrou) has applied by notice of motion for an order that the statement of claim delivered on 18th July 1985 be struck out against him and that he be dismissed from the action. The ground of the application is that the statement of claim seeks relief against Alexandrou pursuant to s.75B of the Trade Practices Act with respect to conduct alleged to have taken place between the months of November 1981 and 19th May 1982 being more than three years prior to 18th July 1985. It is argued therefore that the claim against Alexandrou is outside the limitation period fixed by s.82(2) of the Trade Practices Act and is barred.

1. The initial application in this matter was issued on 14th November 1984 and claimed "damages for misleading and deceptive conduct as defined in s.52 of the Act and damages for the making of a false and misleading statement contrary to s.53A of the Act". The application does not specify that both the claims are made against both respondents but in the absence of any suggestion that one only of the respondents is claimed against, I think that the application means that both claims are made against both respondents and it should be so interpreted.

2. The statement of claim was filed and delivered on 20th November 1984. This statement of claim was poorly drawn and has since been amended twice. The first statement of claim alleged that Alexandrou is a director and shareholder of the first respondent and was employed by it as a real estate agent. It was also alleged that the first respondent is an incorporated company involved in trade and commerce. It is alleged that the applicants appointed the first respondent to sell a surburban house property as a result of representations made by Alexandrou as to price expected to be realised on sale, which representations were said to be untrue, misleading and deceptive. The statement of claim also contained an allegation that both respondents were guilty of negligent misstatement. Damages are claimed generally. This statement of claim mentions no particular section of the Trade Practices Act and indeed makes no reference to the Act at all.

3. The final statement of claim filed and delivered on 18 July 1985 alleges representations made by the first respondent which are substantially the same as the representations alleged in the first statement of claim to have been made by Alexandrou. It is pleaded that the making of these representations "was conduct which was misleading or deceptive or alternatively likely to mislead or deceive contrary to s.52 of the Trade Practices Act" and "were false and misleading statements contrary to s.53(A)(1)(b) of the Act". The statement of claim goes on to plead in para. 14 -
   
   

"Contrary to Section 75B of the Act John Alexandrou was a person who aided and abetted counselled or

procured or was knowingly concerned in or a party to the conduct referred to in paragraphs 7, 12 and 13 hereof and in particular made the oral

representations referred to in the said

paragraph".

This paragraph or anything like it referring to s.75B of the Trade Practices Act had not previously been pleaded.

1. It is argued on behalf of Alexandrou that para. 14 introduces for the first time a fresh cause of action against him. This fresh cause of action arose, because of the dates between which representations were made, more than three years prior to the making of the amendment and therefore the claim against Alexandrou should be struck out. Weldon v. Neal (1887) 19 QBD 394 is referred to. If it is right to say that para. 14 introduces a fresh cause of action for the first time then it is my view that this argument may succeed. However for reasons which follow I do not think a fresh cause of action is introduced by para. 14.

2. The application, as I have said, claims (inter alia) damages against both respondents pursuant to ss. 52 and 53A of the Trade Practices Act. It is true that the original statement of claim, whilst setting out the representations now complained of, pleads that Alexandrou made them. Although it is not specifically pleaded, it is a clear inference that he made them as a director, shareholder and employee of the first respondent. Although the first statement of claim makes no reference to the Trade Practices Act the application claims damages for breaches of s.52 and 53A of the Act. The statement of claim alleges that "in the premises the applicants have suffered loss and damages" and claims damages together with interest and costs. This seems to me to be a tolerably clear claim that with respect to contraventions of s.52 and 53A of the Act damages are claimed pursuant to s.82 of the Act. Section 82(1) of the Trade Practices Act is as follows -
   
   

"A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV of V may recover the amount

of the loss or damage by action against that other person or against any person involved in the

contravention."

1. Section 75B is simply an interpretation of the words "a person involved in a contravention" and it is probably unnecessary to plead it. Whether this be so or not, it seems to me plain that to plead this section as the last statement of claim does, raises no fresh cause of action and simply pleads what has already been pleaded inelegantly and perhaps to some extent inadequately. Inelegant and to some extent inadequate the first statement of claim undoubtedly was, but on a proper reading of it it is clear that a claim was made against Alexandrou with respect to respresentations made by him. Whatever the deficiencies of the first statement of claim may be Alexandrou can have been in no doubt the claims were made against him with respect to the representations. It therefore seems to me to be somewhat unreal to claim now that the latest statement of claim introduces a cause of action against Alexandrou for the first time.

2. In the circumstances the application at present before me should be dismissed with costs.