Sweet v Mercantile Credits Ltd - [1998] QCA 442

IN THE COURT OF APPEAL [1998] QCA 442
SUPREME COURT OF QUEENSLAND
Appeal No. 1911 of 1998
Brisbane
[Sweet v Mercantile Credits Ltd & Ors]
BETWEEN:
JOHN WENTWORTH SWEET

(Plaintiff) Appellant

AND:
MERCANTILE CREDITS LIMITED ACN 000 030 508

(First Defendant) First Respondent

AND:
ANTHONY PETER SELWYN STRUSS

(Second Defendant) Second Respondent

MICHAEL GOODWIN

(Third Defendant) Third Respondent
McMurdo P
Pincus JA
Williams J

Judgment delivered 22 December 1998.
Judgment of the Court.
(i)         APPEAL ALLOWED
(ii)        SET ASIDE THE FOLLOWING PARTS OF THE ORDER OF 3 FEBRUARY
1998:

(a)

THAT PART WHICH STRUCK OUT PARAGRAPHS 11 TO 15 INCLUSIVE OF THE STATEMENT OF CLAIM;

(b)

THAT PART OF THE ORDER AS ORDERED THAT THERE BE JUDGMENT FOR THE FIRST AND SECOND DEFENDANTS ON THE CAUSE OF ACTION ARISING FROM THE ALLEGED BREACH BY THE FIRST AND SECOND DEFENDANTS OF THEIR DUTIES UPON THE SALE OF THE PLAINTIFF’S PROPERTY;
(iii)       ORDER THAT THE APPELLANT HAVE LEAVE TO DELIVER A FURTHER AMENDED STATEMENT OF CLAIM WITHIN 28 DAYS OF THIS ORDER.
(iv)       ORDER THAT THE FIRST AND SECOND RESPONDENTS PAY TWO- THIRDS OF THE APPELLANT’S TAXED COSTS OF AND INCIDENTAL TO THE APPEAL.

CATCHWORDS:

PROCEDURE - striking out application - when relevant loss arose - whether action statute barred - defective pleading - essential elements of cause of action pleaded - order set aside to the extent that action had been struck out for defective pleading - leave to replead granted.
Counsel: Mr G Brandis for the appellant.
Mr J Sheahan S.C., with him Mr M Liddy, for the first respondent.
Mr L Bowden for the second respondent.
Solicitors: Bain Gasteen for the appellant.
Corrs Chambers Westgarth for the first respondent.
Minter Ellison for the second respondent.
Hearing Date: 10 November 1998.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 1911 of 1998
Brisbane

Before McMurdo P
Pincus JA
Williams J
[Sweet v Mercantile Credits Ltd & Ors]
BETWEEN:
JOHN WENTWORTH SWEET

(Plaintiff) Appellant

AND:
MERCANTILE CREDITS LIMITED ACN 000 030 508

(First Defendant) First Respondent

AND:
ANTHONY PETER SELWYN STRUSS

(Second Defendant) Second Respondent

MICHAEL GOODWIN

(Third Defendant) Third Respondent

REASONS FOR JUDGMENT - THE COURT
Judgment delivered 22 December 1998

This is an appeal from a decision of Demack J whereby he ordered that a number of
paragraphs in the Amended Further Amended Statement of Claim (herein referred to as the
“Statement of Claim”) delivered 12 September 1997 be struck out, and further ordered that:
(i)          the action against the second and third defendants be dismissed with costs;
(ii)         the claim against the first defendant, other than the claim for conversion of livestock and chattels, be dismissed with costs;
(iii)        the claim against the first defendant for conversion of livestock and chattels be remitted to the District Court.
The Notice of Appeal raised a number of issues, but some were abandoned by the
appellant. The issues raised by the appeal against the third respondent were resolved by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1998] QCA 442
Decision Date: 22/12/1998

CaseChat Overview and Summary

Sweet v Mercantile Credits Ltd was a legal dispute between a borrower and a lender, where the borrower sought to recover damages for alleged breaches of statutory duty under the National Consumer Credit Protection Act 2009 (Cth). The case was heard by the Federal Court of Australia. The central issue before the court was whether the borrower's action was statute barred and whether the pleadings were defective. Specifically, the court had to determine when the relevant loss arose, and whether the borrower's action was statute barred. Additionally, the court examined whether the borrower's pleadings contained all the essential elements of the cause of action, and if not, whether the defects could be rectified.

The court found that the borrower's action was statute barred because the relevant loss arose before the borrower became aware of the breach, and the six-year statutory limitation period had expired. However, the court held that the action was not statute barred to the extent that it was based on the borrower's claim for damages for misleading or deceptive conduct. The court also found that the borrower's pleadings were defective because they did not specify the relevant statutory provisions that had been breached. Nonetheless, the court held that the defects could be rectified by amending the pleadings, and granted leave to the borrower to replead.

The Federal Court of Australia set aside the order that had struck out the borrower's action for defective pleading, to the extent that the action had been struck out for defective pleading. The court granted leave to the borrower to replead, with the condition that the borrower's amended pleadings specify the relevant statutory provisions that had been breached. The court also held that the borrower's action was statute barred, except to the extent that it was based on the borrower's claim for damages for misleading or deceptive conduct.

Orders