Bennett, Evan Alfred & Anor v Grandwise Pty Ltd & Anor Grandwise Pty Ltd & Anor v Westfield Shopping Centre Management Co (Vic) Pty Ltd [1998] FCA 644

Bennett, Evan Alfred & Anor v Grandwise Pty Ltd & Anor Grandwise Pty Ltd & Anor v Westfield Shopping Centre Management Co (Vic) Pty Ltd [1998] FCA 644

Westfield did not demonstrate with the certainty and confidence required on a strike out application that the Bennetts' loss was suffered, or was reasonably ascertainable, before the relevant limitation date. The limitation issue was not a clear case suitable for summary determination, so the impugned paragraphs of the cross-claim were not struck out.

Jurisdiction
Australia
Judgment Date
22 May 1998
Procedural Posture
Trade Practices Act and Fair Trading Act Proceeding With Cross Claim for Contribution Under the Wrongs Act 1958 (vict) / Cross Respondent's Notice of Motion to Strike Out Paragraphs 11, 12 and 13 of the Cross Claim
Outcome
The cross-respondent's notice of motion was dismissed with costs.
Legal Topics
['misleading or Deceptive Conduct' 'limitation Period Under S 82(2) of the Trade Practices Act 1974' 'reasonably Ascertainable Loss' 'strike Out Application' 'no Reasonable Cause of Action' 'frivolous, Vexatious or Abuse of Process']
['trade Practices' 'fair Trading' 'practice and Procedure' 'limitation of Actions' 'contribution'] ['misleading or Deceptive Conduct' 'limitation Period Under S 82(2) of the Trade Practices Act 1974' 'reasonably Ascertainable Loss' 'strike Out Application' 'no Reasonable Cause of Action' 'frivolous, Vexatious or Abuse of Process']

Case Brief

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Procedural Posture

Trade Practices Act and Fair Trading Act Proceeding With Cross Claim for Contribution Under the Wrongs Act 1958 (vict) / Cross Respondent's Notice of Motion to Strike Out Paragraphs 11, 12 and 13 of the Cross Claim

Legal Issues

  1. 1 ['Whether paragraphs 11, 12 and 13 of the cross-claim were statute barred.' 'Whether the cross-claim paragraphs disclosed no reasonable cause of action or were frivolous, vexatious, an abuse of process, or liable to cause prejudice, embarrassment or delay.' 'When the Bennetts suffered loss and damage, or when such loss was reasonably ascertainable, for limitation purposes.']

Ratio Decidendi

Westfield did not demonstrate with the certainty and confidence required on a strike out application that the Bennetts' loss was suffered, or was reasonably ascertainable, before the relevant limitation date. The limitation issue was not a clear case suitable for summary determination, so the impugned paragraphs of the cross-claim were not struck out.

Court Disposition

The cross-respondent's notice of motion was dismissed with costs.

Orders

  • ["The cross respondent's notice of motion dated 29 April 1998 be dismissed." "The cross respondent pay the cross claimants' costs of the notice of motion."]