Reiffel v ACN 075 839 226 Ltd [2001] FCA 392

Reiffel v ACN 075 839 226 Ltd [2001] FCA 392

The strike-out application was dismissed because, having regard to Karedis and Blacker, the applicant had an arguable case that in a pooled hotel investment the ultimate income result and consequent loss were not readily ascertainable at the time of entry into the transactions; therefore it was not appropriate to summarily strike out the Trade Practices Act claims as statute barred.

Jurisdiction
Australia
Judgment Date
28 March 2001
Procedural Posture
Trade Practices Act Claim; Interlocutory Motion to Strike Out Parts of the Amended Statement of Claim / Interlocutory Motion Under O 11 R 16 of the Federal Court Rules
Outcome
The third respondent's strike-out motion was dismissed; other motions were stood over; costs reserved.
Legal Topics
['strike Out' 'statute Barred Claims' 'ascertainment of Loss or Damage' 'misleading or Deceptive Conduct']
['trade Practices' 'civil Procedure' 'limitation of Actions'] ['strike Out' 'statute Barred Claims' 'ascertainment of Loss or Damage' 'misleading or Deceptive Conduct']

Case Brief

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Procedural Posture

Trade Practices Act Claim; Interlocutory Motion to Strike Out Parts of the Amended Statement of Claim / Interlocutory Motion Under O 11 R 16 of the Federal Court Rules

Legal Issues

  1. 1 ['Whether pars 27 to 34 of the amended statement of claim should be struck out on the basis that the Trade Practices Act 1974 (Cth) claims were statute barred.' 'Whether, in the circumstances of a pooled hotel investment, loss or damage was crystallised when the transactions were entered into or only when loss or damage was reasonably ascertainable.']

Ratio Decidendi

The strike-out application was dismissed because, having regard to Karedis and Blacker, the applicant had an arguable case that in a pooled hotel investment the ultimate income result and consequent loss were not readily ascertainable at the time of entry into the transactions; therefore it was not appropriate to summarily strike out the Trade Practices Act claims as statute barred.

Court Disposition

The third respondent's strike-out motion was dismissed; other motions were stood over; costs reserved.

Orders

  • ["The third respondent's motion to strike out pars 27-34 (inclusive) of the Amended Statement of Claim was dismissed." 'All other motions stood over to 18 April 2001.' 'Costs reserved.']