MCG Quarries Pty Ltd v Beach [2017] FCA 1601

MCG Quarries Pty Ltd v Beach [2017] FCA 1601

The respondents had not shown that MCG Quarries had no reasonable prospect of success. The reply pleading and Mr Green's affidavit raised a triable causation issue as to whether Mt Gellibrand understood the lease term as preventing purchase of stone from MCG Quarries, including for Mooleric Road. There was also a triable issue on the proper construction of the MCG Planning Permit conditions and whether they precluded sale of rock or stone to Mt Gellibrand for the Mooleric Road upgrade. Because MCG Quarries sought damages or compensation as well as declaratory relief, removal of the term from the leases did not make the proceeding futile.

Jurisdiction
Australia
Judgment Date
21 December 2017
Procedural Posture
Proceeding Alleging Contravention of S 45 of the Competition and Consumer Act 2010 (cth) and Unconscionable Conduct Within the Meaning of S 21 of Sch 2 to the Competition and Consumer Act 2010 (cth) / Respondents' Application for Summary Judgment Pursuant to S 31 a of the Federal Court of Australia Act 1976 (cth) and R 26.01 of the Federal Court Rules 2011 (cth)
Outcome
Respondents' application for summary judgment dismissed.
Legal Topics
['summary Judgment' 'no Reasonable Prospect of Success' 'competition and Consumer Act 2010 (cth) S 45' 'unconscionable Conduct' 'lease Terms' 'planning Permit Conditions' 'causation of Loss and Damage']
['practice and Procedure' 'competition and Consumer Law'] ['summary Judgment' 'no Reasonable Prospect of Success' 'competition and Consumer Act 2010 (cth) S 45' 'unconscionable Conduct' 'lease Terms' 'planning Permit Conditions' 'causation of Loss and Damage']

Case Brief

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Procedural Posture

Proceeding Alleging Contravention of S 45 of the Competition and Consumer Act 2010 (cth) and Unconscionable Conduct Within the Meaning of S 21 of Sch 2 to the Competition and Consumer Act 2010 (cth) / Respondents' Application for Summary Judgment Pursuant to S 31 a of the Federal Court of Australia Act 1976 (cth) and R 26.01 of the Federal Court Rules 2011 (cth)

Legal Issues

  1. 1 ['Whether the proceeding should be summarily dismissed on the basis that MCG Quarries was not lawfully able to supply stone to Mt Gellibrand from the quarry because conditions attached to the MCG Planning Permit had not been satisfied.' 'Whether the term in the leases caused loss or damage to MCG Quarries, including by precluding supply of stone for the upgrade to Mooleric Road.' 'Whether there remained utility in relief where the respondents stated that they would not rely on the term and the leases had been varied to remove it.']

Ratio Decidendi

The respondents had not shown that MCG Quarries had no reasonable prospect of success. The reply pleading and Mr Green's affidavit raised a triable causation issue as to whether Mt Gellibrand understood the lease term as preventing purchase of stone from MCG Quarries, including for Mooleric Road. There was also a triable issue on the proper construction of the MCG Planning Permit conditions and whether they precluded sale of rock or stone to Mt Gellibrand for the Mooleric Road upgrade. Because MCG Quarries sought damages or compensation as well as declaratory relief, removal of the term from the leases did not make the proceeding futile.

Court Disposition

Respondents' application for summary judgment dismissed.

Orders

  • ["The respondents' application for summary judgment pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth) be dismissed." 'The respondents to pay the costs of the applicant, such costs to be taxed in default of an agreement.']