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

[1985] FCA 480

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 as

statute-barred - whether wolnt arauable.

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

Federal Court Rules Order 20 rule 2 .

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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
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G x m DIYISICN I

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GN B E k W FROM B SINGLE JUDGE OF THE FEIjER&L COURT OF AUSTRALIA

BETWEEN: ? & T 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

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1. The appeal be dismissed

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2. The appellants Day respondents' costs of the I >

appeal. .

Note: Settlement and entrv of orders is dealt with in

Order 36 of the Federal Court Rules.

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B . E T E E N : T W MANAGE;MEICC FTY. LTD.

First Appellant

and	JirHL4 wGLL_S	'. .
Second Appellant

XNSj :

Respondents

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

THE CSmT: Sn 18 September 1585. we dismissed thls

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appeal wlth costs and lndlcated that we would publish our

reasons later. These are those reasons.

'hrnar Manacrement P%?. Ltd. and John Wells. the

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appellants. by leave uranted. apuealed aualnst the dismlssal

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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

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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 .

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The respondents' amended statement of claim is

lenathy and we do not propose to refer to all of it. For

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present pumoses. It wlll sutflce l f we refer to those parts

of lt whlch were summarlsed m the reasons of the learned I

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 40 years they

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have dealt with the bank throuuh Its Katannlna branch. In

1 3 8 ~ . thev claim. chey souaht the advlce of the bank in

c'onnestlon wlth a vroposal t o purcnase a tarm known as

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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

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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 I, m -

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 by

"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 l8 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

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The claim auainst the appellants pleaded in the

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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

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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	-.
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was concerned. the question of limitation was to be

detcrmined solely by reterence to s . 8 2 ( 2 ) of the Act.

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

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this appllcation. the respondents filed a notice of motion

seekmu further amendments to their amended statement of

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

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ar about June 1980" (Para.Z.lr, "un or about the 18 July

- _ 7 ’ I Parb. & & A I , ‘5ecween abour 18th Julv 1986 and about

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Januarv i?8aL , or abour, 8th Auaust 1960” and “between

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2ct1 inn?, 3uth	Ausust l380” tall In wara.24BJ. Acknowledging	i	’ .
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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 a long term low

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

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respondents suffered serious consequences as a result of

thelr lnabllltv to meet the commltments which thev had

I	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
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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

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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 of 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

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his rerusal to accede to the	amellants	application t o r the	!
reasons ne uave.
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The aeneral prlnclples to be applled In 5 case such

ds thls have been stated ~n these terms -

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" . . . .under the modern system Of

pleadina .... upon an application to strlke

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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": or

~ Z J 14 days after 10 July 1989: or

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: or

( 5 1 By February L381 when the respondents eftected

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settl?.nsnc, t!:~ purcnase iihl at. TrLe sam? t ~ m ?

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

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

by the respondents could have commenced. Then It 1s

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	. :
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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.
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the interpretatlon a d application statutes f of . 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 by 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

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present case. it 1s a difficult question whether that rule

can or should be applied to a provlsion such as 5.82 .

To wut he matter at its lowest from the

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~ ? ~ = 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

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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 to indicace that the learned Judue riuhtly

refused the application.

If it were necessarv. it could be added that. in .. ._

additlon to the auestlon of the proper lnterpretation of . ,'

s.82(2) already mentloned. It would seem that a further

question wlll arlse as to Its appllcation to the facts of

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 In that connection or

whether they embarked upon a fresh transaction on each

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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

! xe have mentloned. it musc tollow that the learned Judue

I	correctly retused the appellants applicatlon.
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l	, m L . d	oe n-2r,eci	char. upon tnit assumpclon that	! '
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chin acralnst, th? appellants under s . 3 2 ( 1 t

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.

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Ijates of hearmu: 17 and 18 September 1985

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Date Judqnent Delivered:	18 September 1985	. .
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