Nella, J.B. & Ors v. Kingia Pty Ltd & Ors [1986] FCA 306

Nella, J.B. & Ors v. Kingia Pty Ltd & Ors [1986] FCA 306

Although the s.82 limitation applies to claims against persons alleged to be involved in a contravention under s.75B, the respondents' limitation defence did not justify dismissal of the s.82 claim on this motion. The applicants pleaded continuing loss and asserted loss calculable at the end of the lease, and there was no factual material or clear abuse of process sufficient to dismiss or strike out the claim at this stage.

Jurisdiction
Australia
Judgment Date
10 July 1986
Procedural Posture
Trade Practices Act Proceeding Alleging Misleading or Deceptive Conduct and Common Law Claims Arising From Purchase of Hotel Business / Motion by Fourth, Fifth and Sixth Respondents to Dismiss the Proceeding or Alternatively the S.82 Claim as Statute Barred
Outcome
Motion dismissed.
Legal Topics
['misleading or Deceptive Conduct' 'involvement in Contravention Under S.75 B' 'damages Under S.82' 'orders Under S.87' 'strike Out or Dismissal for Abuse of Process' 'accrued Jurisdiction']
['trade Practices' 'consumer Protection' 'practice and Procedure' 'limitation of Actions'] ['misleading or Deceptive Conduct' 'involvement in Contravention Under S.75 B' 'damages Under S.82' 'orders Under S.87' 'strike Out or Dismissal for Abuse of Process' 'accrued Jurisdiction']

Case Brief

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Procedural Posture

Trade Practices Act Proceeding Alleging Misleading or Deceptive Conduct and Common Law Claims Arising From Purchase of Hotel Business / Motion by Fourth, Fifth and Sixth Respondents to Dismiss the Proceeding or Alternatively the S.82 Claim as Statute Barred

Legal Issues

  1. 1 ['Whether the limitation in s.82(2) of the Trade Practices Act 1974 applies to persons alleged to be involved in a contravention within s.75B.' "Whether a pleaded limitation defence is a sufficient basis to dismiss or strike out the applicants' s.82 claim against the fourth, fifth and sixth respondents." 'Whether the s.82 claim against the fourth, fifth and sixth respondents was a clear case of abuse of process.' 'Whether alleged continuing loss after purchase could prevent summary dismissal of the s.82 claim at this stage.']

Ratio Decidendi

Although the s.82 limitation applies to claims against persons alleged to be involved in a contravention under s.75B, the respondents' limitation defence did not justify dismissal of the s.82 claim on this motion. The applicants pleaded continuing loss and asserted loss calculable at the end of the lease, and there was no factual material or clear abuse of process sufficient to dismiss or strike out the claim at this stage.

Court Disposition

Motion dismissed.

Orders

  • ['The motion by the fourth, fifth and sixth respondents filed 11 June 1986 be dismissed.' "The costs of the motion be the applicants' costs in the cause."]