Tamar Management Pty Ltd v James, K.F.D

Trade P-racclces LConsumer Frmeczlonr - clme iimit lmwosed by 5 . 8 2 ( 2 1 far brmcrlnu proceedlnqs under s.82kli -

appLicatlon to strike ouz claims

tar

re l ie r

statute-barred - whether wolnt arauable.

Trade Practices Act. 1974. ss.52. 75B. 82. 87.

Federal Court Rules Order 20 rule 2 .

No. NAG 48 at 1985

L=	:	Sweeney, Sheppard and Beaumont. JJ.
Perth

2 6 September 1385.

IN THE FEEERAL ZGmT GF AUSTMLIA

I I

WESTERN AUSTRALIA	DISTRICT	REGISTRY	I	No. HAG 48 of 1985
1

DIYISICN

GN B E k W FROM B SINGLE JUDGE

OF THE FEIjER&L COURT OF AUSTRALIA

BETWEEN:

MANAGEMENT PTX. LTLi .

First Appellant

JOHN

and

WELLS

Second Appellant

Respondents

MINUTE OF ORDER

c o r n

Sweenep. Sheppard

and Beaumont. JJ.

DATE OF O R D E R :	18 September 1985
WHERE mLj:	Perth

1. The appeal be dismissed

l ..

2. The appellants Day respondents' costs of the

I >

appeal.

Note: Settlement

and

entrv

of orders

dealt

with

Order 36 of the Federal Court Rules.

--__

B . E T E E N :

MANAGE;MEICC FTY. LTD.

First Appellant

and	JirHL4 wGLL_S	'. .
Second Appellant

XNSj

Respondents

XjF&i:	Sweeney. Sheppard and Beaumont. JJ.	:1
GATA!a:	L0 September 1985

THE CSmT:

Sn 18 September 1585. we

dismissed

thls

, .

_ .

appeal wlth costs and lndlcated that we would publish our

reasons later. These are those reasons.

'hrnar

Manacrement P%?. Ltd. and

John Wells. the

:-.

appellants. by leave uranted. apuealed aualnst the dismlssal

t I '

by a.

slncrle Judue or?

26 rpr l l 1385 o t thelr applicaclon for

che dlsmlssal ot proceedlngs brouuht aaainst them by the responaents, Kmusley Frederlck Tjavld James. Jlll Maxme

James. band Maxwe11 James. Ee%er Norman James and Pallambee

Fty. Ltd.

Shortly stated. the apDellants' application was

' .

damaue under

s.82(1~ map be commenced at

any

tune within

three	p?ars	after the date on which the cause of actlon
accrued	I .

The respondents'

amended

statement

claim

lenathy and we do not propose to refer to all

of it.

For

.-.

present pumoses. It wlll sutflce

l f we refer to those parts

of lt whlch were summarlsed m the reasons of the learned

Judue. However.

It should be noted at the outset that th=

statement si clalm seeks

rellef

not

onlv

acralnst

the

crppellants but also auainst Australia

& New Zealand

Banklna

Group Limited I "the bank"

j .

The bank was not made

a party

t o

the applicatlon the sub3ect

o t

this appeal. We were

informed that the bank dld not wlsh	to	be heard on the
appeal.

The learned

Judae

summarlsed

the

r levant

allegations in the amended statement

of clam as follows:

The

respondents are farmers and for nearly

years they

I .

have dealt

with the bank throuuh Its Katannlna branch. In

1 3 8 ~ . thev claim. chey souaht the advlce

of the bank

c'onnestlon wlth a

vroposal

t o purcnase a tarm known as

,	_
2 .

3 -

r.irj-Lkxlns

isr

9 crlce

in + I I S ~ S B 851

S ~ , G G L ~ , ~ G C I .

The

bank awnsed them chat they jhoula abcaln

a ioan throuuh che

. I

first appellant and that the first appeilant could procure

che necessary loan for then.

The

respondents proceeded to

mter lnco a contract to buv "Bibikina" and over

a perlod 01

same months

r,he

bank

assured

them

that

aloan

was

rorchcomrna from che

r i r s t . aFpelLant. In or about October

1386 che

bank arlvlsed the reswondents %o anplv

to it for a

loan of 51.500.0UG. gendma the procurement

ot a loan by the

first appellant throuuh Its manaalng director. the second

appellant. The respondents did

so and

as a

result they

executed mortqaqes over various properties.

The amended statement of claim then pleads that

"its conduct as aforesald" the bank enaaued in

conduct in

trade or commerce which was

misleadmu or deceptlve or

likelv to mislead or deceive contrarv to s.52 of the Act.

It is alleaed aualnst the tirst apnellant that in or about

#June 1385 the second appellant. actlnu on behalf of the

first

mpellant. represented

t o the respondents that the

first appellant

was able to obtain ior them

a lonu term low

interest rate loan whlch woula enable them to flnance the

purchase of "Blbikinu"

. The amended statement ot clam

rurther Pleads that between about

Julv 1986

and about

Januarv 19&2 the

second

appellant

made

further

representatlons to the resDondents that the first appellant was able to wrocure the loan. Eor various reasons. which it

is unnecessary

to detall. che respondents allecre that the

conduct or the first appellant as pleaded was mlsleadinu or

r :

' I .

The	claim auainst the appellants pleaded in the

I .

amended statement of claim 1s an? in damaues only.

The

c l a m auainst the bank Is t o r damaues but in addition the seswondents seek varlous declaratlons and an order settmu

aslde a

mortqaqe ulven bp the resDondents In favour

of the

, 'i

bank. The siunlficance of the

distlnctlon for present

purnoses 1s

that. the claim

aaainst the appellants is made

..I

under s.02(11 of the Act ,md no relief is souuht aqalnst them in the amended statement o t claim under 5.87. Thus the

questlon directly at Issue In Fenech v. Sterlin-g

(1984) 57

&R	38 did not arlse berore the learned Judae.	So far as he	-.
!.
t

was

concerned.

the

question

of limitation was to be

detcrmined

solely

reterence

s . 8 2 ( 2 )

the

Act.

However. we note that. after the learned Judae's decislon in

,: ..

this appllcation. the respondents filed a notice

of motion

seekmu further amendments to their amended statement

claim by lncludina clalm for

damaues

aqainst

the

appellants under	s.07 o t the Bct.	That motion has not yet
been determined.

The

alleuations auainst the awpellants are

to be

round prlnclnallv in paras.24-269 or

the amended statement

cjf clam.

'The dates ldentlfled In those parauraphs are "In

ar about June 1980" (Para.Z.lr, "un or about the

18 July

- _

’ I Parb. & & A I ,

‘5ecween abour

18th Julv 1986

and about

0 - I,

Januarv i?8aL

or abour, 8th Auaust 1960” and “between

I .

2ct1 inn?, 3uth	Ausust l380” tall In wara.24BJ. Acknowledging	i	’ .
!. .

char ?,here

1s sane rlsxlbllitv

in the dates pleaded. they

at‘? dll 2arlirr chan three gears oefore 12 November 1984

I r;he

ilate

of comrnencemenc ar oroceedings bv

the

reswondents), save

f o r anv relevanr, dates between November

1561 and January 1382.

Before the learned Judae. the respondents contended

that para.24

of the amended statement of claim pleads that

in or about June 1580 the second appellant. acting on behalf

or- the first appellant. represented to the respondents that

the first appellant was able to obtain

long term low

interest rate loan to finance the purchase of “Bibiking“: and that the appellants admlt that after Februarv 1981 the

respondents suffered serious consequences

as a result of

thelr lnabllltv

to meet the commltments which thev had

unaertaken to the bank In €+bruarv 1961 and the consequent sale of most of thelr oropertles. (The date of the

mortuauee S sale 1 s

not Pleaded In the amended statement of

clam but It may be Inferred from para.26 that the sale took

place shortly after 3 March 1Y83) .

Ln paras.

L9 and 30 of

the amended statement of claim the respondents pleaded that

they

suffered

loss by

reason of the

sale of their

propertles. The damaaes they claimed were based on the dirrerence between the position thev would have been In as

at JCI

June 1984

had the rewresentatlons not been made to

them and th?lr actual wosltlon

at that date. They contended

'I.

AppLyinq the test laid down by Barwlck C.J. in

General Sceel Cndustries Lnc

v. cg&mlsslo_ner for Ftallwavs

~ [ ~ S W I

115hJ1 l12 C.L.R. 125 at

D-130. that the Court must be

satlsried that the "case

1s so

clearly untenable that It

cannot eosslblp succeed". h15 Honour was not persuaded that

the respondsnts cause

action

aqamst the appellants

under the provisions of the Act was clearly out	of time. In
this connectlon. the learned Judue referred to various

factual Issues as to the date at which pariicular

loss or

damaae was suffered and to matters

of law as to the meaninu

and application of s.82(2~ or the Act. which were thrown	up
by the pleadlnus. in support of his conclusion that the

proceedinus should not be

dismissed at that staue.

In our opinion. the learned Judae was correct ln

his rerusal to accede to the	amellants	application t o r the	!
reasons ne uave.
i i

The aeneral prlnclples to be applled

In 5 case such

ds thls have been stated

~n these terms -

" . . . .under

the

modern

system

pleadina

.... upon an application to strlke

I '

In challenulnu the decislon of

the learned Judue.

the appellants accept that a cause of action under

3.82

dccrues not when there 1s a contraventlon of 5.52. but when

loss	or damaue is sutfered in consequence and that this

miuht occur some tlme after concravention

(see Brcadi v.

tolonl&l

Mutual Assurance Societv Limited

(1984) B.T.P.R.

40-4731.

The appellants then submlt that the

loss or damaue

alleued to have been suffered bp

the respondents commenced

on one or other of the

followmu dates:

( 1 1 un 1 8 J u l y 1980 when the

respondents exscuted the

contract to purchase "Blbiklnu":

~ Z J

14 days after 10 July 1989:

c5r Gn l1 Auaust 1980 when the respondents borrowed

$25.000 from the bank:

( 4 )

iJn 31

Auusust 1980 when the respondents borrowed a

further $71.755 from the bank and lost the riuht to

vlthdraw from the contract:

( 5 1 By February L381 when the

respondents

eftected

settl?.nsnc,

t!:~ purcnase iihl

at. TrLe sam? t ~ m ?

borrowea a furcher sl.5C1u.ljulj fram ?he bank under

bill line iasllltv

ta complete the purchase and

Sxecuted the securlt1es prevlcrusly mentloned.

73.u~. the appellants araue. February

1981 was the

Latest: date Irom which the

loss or damacre alleuedly suttered

the

respondents

could

have

commenced.

Then

submitted that, as a matter oi construction of s.SZt 2 1 . It

is the date ot commencement oi the loss or damacre whlch is the relevant date for fixinu the moment of the accrual of

the cause of actlon. It is sald that the reasonlna

of the

House of Lords in Pirelli

Generauableworks Limited v.

Oscar Faber & Partners C19833 2 B.C. 1 and of the Enulish	. :
I 'i

Court of Appeal in Forster

v. Outred & Co. C19823 2 A1l.E.R.

753 provides a proper analoqy for present purposes.

Blthouah Pirelli and Forster were concerned with	I.
.I

the

interpretatlon

a d

application

statutes

. I

limltatlon. on anv view of the matter it

1s an open questlon

whether the rule

in Ijarlev Maln Collierv

Co.

v. Mitchell-

tlY8b) l1 App.Cas.lZi LS awpllcable m a partlcular case

\ s e e the dlscusslon

Brennan. J.

In m e Councll of r,he

Shire o t Sutherland v. Hevman, Hiah Court. unreported. 4

July 1385 at pp.72-3). More importantly. on any view of the

present case. it

1s a difficult question whether that rule

can or should be applied to

a provlsion such

5.82 .

To wut

matter

its

lowest

from

the

- -

~ ? ~ = o r . , ~ e ~ . ~ : j

s:cnactJ:rtc. ::E

sccnc+t- ccr.sccuzclon .3r

3 . d ~ i

L !

is ac presenc very much an m e n yuesrlm.

50 r a r as we are

aware. there 1 s . s s

yzt. no aurhorlty squarely in polnt and

authorities I n other arsas.

such as Faarscer. dealinu wlch

liaDllity under the ueneral aw for professlonal negligence.

i-,

may well be distinuulsnable.

It is unnecessary to pursue

chese

dif ricult

questluns.

Thelr

mere

statement

1.5

sufticient

indicace

that the

learned

Judue

riuhtly

refused the application.

If it

were necessarv. it could be added that.

additlon to the auestlon

the proper lnterpretation of

s.82(2)

already mentloned. It would seem that

further

question wlll

arlse as to Its appllcation to the facts

the present case havma regard to the circumstance that the

security given to the bank

was based upon

a bill line

facility which provided

for roll-overs at variable rates of

interest.

This raises

the

point.

one

of construction.

whether m February 1981. the respondents and the bank

entered Into one entlre contract

that connection or

whether they embarked upon

fresh transaction on each

I!.

occasion

the

b i l l

was

rolled

(see K.D. Morris & Sons

Frorxletarv Limited (In Liauldation) v.	Bank of Oueensland
t1980) L46 C.L.R. 165,.

Given the arquable character

of the leual questions

have mentloned.

it musc tollow

that the learned Judue

I	correctly retused the appellants applicatlon.
I

! . #

. .

_ .

" I

l	, m L . d	oe n-2r,eci	char. upon tnit assumpclon that	! '
I
!',,

chin acralnst, th? appellants under

s . 3 2 ( 1

Gas out 01 time by reason of rhe provlsions of s.82t21. che aDrtLlants further submlctea that the Court had no accrued !urlsalctlon to cntertaln any other claims acralnst them

under the

creneral

aw.

In the

circumstances.

it is

unnecessary far us co deal 31th this submlsslon.

For	these reasons. we Qismlssed the appeal with

costs.

Counsel

and

Solicitors

Mr.

S. Owen-Conway

was

for Appellants:

instructed

by Corser

and

Corser

Counsel

and

Solicitors

Mr.

A . J .

Templeman

was

€or Respondents:	instructed by Picton-Warlow
Fl Co.

, I

Ijates of hearmu:

17 and 18 September 1985

v -

Date Judqnent Delivered:	18 September 1985	. .
.-.

[1985] FCA 480

18 Sep 1985