Fenech, George & Anor v Sterling, Robert [1983] FCA 278

Fenech, George & Anor v Sterling, Robert [1983] FCA 278

The applicants suffered loss when, in November 1975, they signed the contract to purchase an interest in the Paradise Waters Estate and paid monies to Robert Sterling Pty Limited as a result of misleading or deceptive conduct in which Robert Sterling was involved. The proceedings commenced on 31 October 1980 were therefore not brought within three years of the accrual of the cause of action. The equitable principle concerning concealed fraud did not postpone accrual or supply an exception to the specific limitation provision in s.82(2). The s.82 claim also failed because the 1977 amendment imposing liability on persons involved in a contravention was not retrospective for pre-1 July 1977...

Jurisdiction
Australia
Judgment Date
13 October 1983
Procedural Posture
Application Under the Trade Practices Act 1974 (cth) Seeking Orders Under Ss.82 and 87(1 A) Arising From Misleading or Deceptive Conduct / Final Judgment on Whether the Proceedings Were Barred by the Limitation Period
Outcome
Application dismissed.
Legal Topics
['misleading or Deceptive Conduct' 'orders for Compensation Under the Trade Practices Act 1974 (cth)' 'accrual of Cause of Action' 'fraud and Limitation Periods' 'retrospective Operation of Statutory Amendments']
['trade Practices' 'consumer Protection' 'limitation of Actions' 'equity'] ['misleading or Deceptive Conduct' 'orders for Compensation Under the Trade Practices Act 1974 (cth)' 'accrual of Cause of Action' 'fraud and Limitation Periods' 'retrospective Operation of Statutory Amendments']

Case Brief

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Procedural Posture

Application Under the Trade Practices Act 1974 (cth) Seeking Orders Under Ss.82 and 87(1 A) Arising From Misleading or Deceptive Conduct / Final Judgment on Whether the Proceedings Were Barred by the Limitation Period

Legal Issues

  1. 1 ['Whether proceedings seeking relief under s.87(1A) were subject to the three year limitation period in s.82(2) of the Trade Practices Act 1974 (Cth).' 'When the cause of action accrued for loss or damage caused by misleading or deceptive conduct in contravention of Part V of the Trade Practices Act 1974 (Cth).' 'Whether the equitable principle that time does not run while fraud remains undiscovered postponed the accrual of the cause of action or otherwise prevented reliance on s.82(2).' 'Whether amendments to s.82 made by the Trade Practices Amendment Act 1977 (Cth) imposed liability on a person involved in a pre-1 July 1977 contravention.']

Ratio Decidendi

The applicants suffered loss when, in November 1975, they signed the contract to purchase an interest in the Paradise Waters Estate and paid monies to Robert Sterling Pty Limited as a result of misleading or deceptive conduct in which Robert Sterling was involved. The proceedings commenced on 31 October 1980 were therefore not brought within three years of the accrual of the cause of action. The equitable principle concerning concealed fraud did not postpone accrual or supply an exception to the specific limitation provision in s.82(2). The s.82 claim also failed because the 1977 amendment imposing liability on persons involved in a contravention was not retrospective for pre-1 July 1977...

Court Disposition

Application dismissed.

Orders

  • ['The application be dismissed.' 'Leave be reserved to the parties to apply for any order as to costs or otherwise as may seem meet.']