Subiaco Cinemas Pty Ltd v Delegate Holdings Pty Ltd
[1999] WASC 43
SUBIACO CINEMAS PTY LTD -v- DELEGATE HOLDINGS PTY LTD & ANOR [1999] WASC 43
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 43 | |
| Case No: | CIV:2014/1998 | 22 APRIL 1999 | |
| Coram: | MASTER SANDERSON | 1/06/99 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Amendment of statement of claim allowed | ||
| PDF Version |
| Parties: | SUBIACO CINEMAS PTY LTD DELEGATE HOLDINGS PTY LTD SECURE PARKING (WA) PTY LTD |
Catchwords: | Practice and procedure Application for summary judgment by defendant Turns on its own facts |
Legislation: | Rules of the Supreme Court 1971, O 16 Trade Practices Act 1974, s 52 |
Case References: | Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 Taco Co v Taco Bell (1982) 42 ALR 177 Yorke v Lucas (1985) 158 CLR 661 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
DELEGATE HOLDINGS PTY LTD
First Defendant
SECURE PARKING (WA) PTY LTD
Second Defendant
Catchwords:
Practice and procedure - Application for summary judgment by defendant - Turns on its own facts
Legislation:
Rules of the Supreme Court 1971, O 16
Trade Practices Act 1974, s 52
Result:
Amendment of statement of claim allowed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr M C Hotchkin
First Defendant : Mr P A Kyle
Second Defendant : Mr P A Kyle
Solicitors:
Plaintiff : Hotchkin Hanly
First Defendant : Kyle & Co
Second Defendant : Kyle & Co
Case(s) referred to in judgment(s):
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233
Taco Co v Taco Bell (1982) 42 ALR 177
Case(s) also cited:
Yorke v Lucas (1985) 158 CLR 661
(Page 3)
1 MASTER SANDERSON: This is the second defendant's application for summary judgment. On the first return date the matter was programmed through to a special appointment which was set for 23 March 1999. During the course of the hearing counsel for the defendant indicated that he wished to seek leave to amend the statement of claim. On that basis the hearing of the summary judgment application was adjourned and the plaintiff was ordered to file a minute of proposed further amended statement of claim. That minute was filed on 13 April 1999. When the matter came back on for hearing on 22 April 1999 argument centred on whether the plaintiff should be given leave to amend in terms of the minute. Thus, although notionally this is an application by the defendant for summary judgment, it has turned into a pleading summons. That is the way that it has been approached by both parties.
2 The claim relates to a cinema complex located at 500 Hay Street, Subiaco. These premises are defined in the statement of claim (par 2(b)) as "the Complex". The Complex comprises a number of cinemas and a car park. The cinemas are leased by the plaintiff from the first defendant for a period of 10 years on certain terms and conditions. The plaintiff says that between 1 December 1995 and 18 June 1996 the first defendant represented to the plaintiff that the car park would be exclusively available to patrons of the cinemas and tenants of the complex and that patrons of the cinemas and tenants of the complex would be permitted to park their vehicles in the car park free of charge (see par 6).
3 The plaintiff says that it entered into the lease of the cinemas in reliance upon these representations. (I should also add that there are other contractual claims. I am simply concentrating on the amendments proposed in the minute of 13 April and to which the second defendant objects.) The plaintiff says that the first defendant has entered into an agreement with the second defendant to allow the second defendant to operate the car park forming part of the Complex as a commercial fee-paying car park for members of the public. By the amended par 14(c) of the minute, the plaintiff pleads that the second defendant has been and continues to cause its agents to put notices on the windscreen of cinema patrons parking in the car par to the effect that fees must be paid for parking in the car park. There then appears par 14A and par 14B which, taken together, form the linchpin of the action against the second defendant. They are in the following terms:
"14A By reason of the matters pleaded in paragraph 14 hereof, the Second Defendant represented and continues to
(Page 4)
- represent to members of the public that it is lawfully entitled to:
(a) permit vehicles to park in the Car Park;
(b) levy fees on the owner or driver of the vehicle to park in the Car Park;
(c) impose sanctions or take action against the owner or driver of the vehicle to ensure that it pays the fees levied or purported to be levied by the Second Defendant on the owner or driver of the vehicle.
- 14B The Second Defendant's conduct pleaded in paragraph 14 and 14A hereof constitutes misleading and deceptive conduct in breach of Section 52 of the Act [Trade Practices Act 1974], in that the Second Defendant was and is not so lawfully entitled.
Particulars of Falsity
- (a) The Second Defendant at no time had or has the approval of the City of Subiaco to conduct the commercial fee-paying Car Park operation in the manner in which the Second Defendant conducted it, as required under the provisions of the City of Subiaco's Town Planning Scheme.
(b) The Second Defendant's conduct was in breach of the Agreement, the Collateral Contract, the Lease and the Representation."
5 The plaintiff says that it is entitled to maintain its action against the second defendant because the second defendant is engaging in misleading and deceptive conduct in relation to the public generally, rather than in relation to the plaintiff. Reliance is placed on the line of authorities of which the best known are Parkdale Custom Built Furniture Pty Ltd v
(Page 5)
- Puxu Pty Ltd (1982) 149 CLR 191 and Taco Co v Taco Bell (1982) 42 ALR 177. Both these cases concerned conduct which was said to be misleading to the public generally. The Parkdale case provides a good example of how this operates in practice. The facts in this case (as taken from the judgment of Murphy J at 212 - 213) were as follows:
"In this case the appellant, Parkdale, manufactured and sold by wholesale a range of furniture ('Rawhide'), including lounge suite and chairs which were so exact a copy of the outward design of Puxu 'Post and Rail' ('Contour') lounge suite and chairs that they were extremely deceptive (even apparently to an expert). The Parkdale 'Rawhide' range was however much inferior quality to the Puxu 'Contour' range. Although it looked to be the same quality, inferior and weaker material was used where it could not be seen on inspection or would not be noticed. Parkdale sold it with a label which could be tucked into the chair or easily removed."
"Although s 52(1) is intended to protect members of the public in their capacity as consumers of goods and services, competitors may seek an injunction to restrain breaches (s 80(1)(c)). The remedy to prevent deception of the public often has the incidental effect of protecting a competing trader's goodwill which would be also injured by that deception."
7 Murphy J reached the same conclusion. He put the position as follows (at 212):
"The section is designed to prevent deceptive or misleading conduct, or conduct likely to mislead or deceive, by manufacturers and other traders, not to protect manufacturers and other traders from competition. Although the proceedings in this case are instituted by a competitor, that is no barrier."
8 The case pleaded against the second defendant has much in common with, although it is somewhat different from, the cases to which I have referred. In my view it is at least arguable that by claiming to be able to
(Page 6)
- charge for parking when at law it cannot do so, the second defendant is engaging in misleading and deceptive conduct. It is the public generally, or at least members of the public using the car park, who are being or might be mislead and deceived. It is the plaintiff who stands to benefit if they are not so mislead and deceived. But that fact does not prohibit action being brought by the plaintiff under s 52. The second defendant complained that it is nowhere pleaded the plaintiff has suffered any loss as a consequence of the pleaded misleading and deceptive conduct. I am not at all sure that such a plea is necessary. Of course, if a claim for damages is to be maintained, the loss will not only have to be pleaded but proved. But as the pleading stands at present it is at least arguable that injunctive relief could be obtained.
9 There was a further argument raised by the second defendant in relation to whether or not this was a "new" cause of action and whether, therefore, the amendment should be allowed. Very little attention was devoted to this question during the course of submissions. It seems to me, in any event, that the claim under the Trade Practices Act arises out of substantially the same facts as the original cause of action. Even if that is not the case, there seems to be no basis upon which it could be said that the limitation period has expired and so there are no grounds for denying the plaintiff the right to plead the cause of action under the Trade Practices Act: see, generally, Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233.
10 In the circumstances, I would allow the proposed minute of amended statement of claim to stand as the amended statement of claim. It is appropriate that I should dismiss the defendant's chamber summons for judgment. Based upon the statement of claim in its present form, there is clearly an arguable case and there is no basis upon which summary judgment could be awarded in favour of the second defendant.
11 In relation to costs, I will hear the parties.
0
3
0