James, K.F.D. & Ors v. Australia & New Zealand Banking Group Ltd [1985] FCA 167

James, K.F.D. & Ors v. Australia & New Zealand Banking Group Ltd [1985] FCA 167

The cause of action under s.82 of the Trade Practices Act 1974 accrues at the time loss or damage is suffered, not at the time of the contravention. The applicants' claim may not be statute barred as loss was suffered upon the mortgagee's sale in 1983. The statement of claim is not so clearly untenable as to justify...

Source-derived case information.

Parties
Applicant: Kingsley Frederick David James; Applicant: Jill Maxine James; Applicant: David Maxwell James; Applicant: Peter Norman James; Applicant: Yallambee Pty. Ltd.; First Respondent: Australia & New Zealand Banking Group Limited; Second Respondent: Tamar Management Pty. Ltd.; Third Respondent: John Wells
Jurisdiction
Australia
Judgment Date
26 April 1985
Procedural Posture
Interlocutory Application / Motion to Strike Out Paragraphs and Dismiss Application as Disclosing No Reasonable Cause of Action
Outcome
Motion dismissed
Legal Topics
Misleading and Deceptive Conduct, Statute of Limitations, Pleadings, Strike Out Applications, Damages, Reasonable Cause of Action
Trade Practices Practice and Procedure Misleading and Deceptive Conduct Statute of Limitations Pleadings Strike Out Applications Damages Reasonable Cause of Action

Source-derived case record

Summary, issues, holding and outcome

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Parties

Kingsley Frederick David James

Applicant

Jill Maxine James

Applicant

David Maxwell James

Applicant

Peter Norman James

Applicant

Yallambee Pty. Ltd.

Applicant

Australia & New Zealand Banking Group Limited

First Respondent

Tamar Management Pty. Ltd.

Second Respondent

John Wells

Third Respondent

Procedural Posture

Interlocutory Application / Motion to Strike Out Paragraphs and Dismiss Application as Disclosing No Reasonable Cause of Action

Legal Issues

  1. 1 Whether applicants' claim against Tamar Management Pty. Ltd. and John Wells under the Trade Practices Act 1974 is statute barred
  2. 2 Whether the statement of claim discloses a reasonable cause of action against the second and third respondents
  3. 3 Test to be applied in strike out applications under Order 20 Rule 2 of Federal Court Rules

Ratio Decidendi

The cause of action under s.82 of the Trade Practices Act 1974 accrues at the time loss or damage is suffered, not at the time of the contravention. The applicants' claim may not be statute barred as loss was suffered upon the mortgagee's sale in 1983. The statement of claim is not so clearly untenable as to justify dismissal or striking out, given factual complexities and existing allegations of reliance and loss.

Court Disposition

Motion dismissed

Orders

  • The motion of the second and third respondents filed on 1 March 1985 be dismissed.
  • The costs of the motion be reserved.