Arcadi, Peter Paul & Anor v Colonial Mutual Life Insurance & Anor [1984] FCA 192

Arcadi, Peter Paul & Anor v Colonial Mutual Life Insurance & Anor [1984] FCA 192

The applicants' claim is not so clearly untenable as to warrant dismissal at this interlocutory stage. The time at which loss or damage was suffered and consequently when the cause of action accrued raises questions of fact that should proceed to trial. Neither paragraphs 13 nor 14 of the respondents' defence should be struck out at this stage. Judgment is entered for the first respondent on the cross-claim due to admissions but execution is stayed.

Parties
Applicant: Peter Paul Arcadi; Applicant: Domenic Staltari; First Respondent: Colonial Mutual Life Assurance Society Limited; Second Respondent: Joseph Charles Learmonth Duffy Pty Ltd
Jurisdiction
Australia
Judgment Date
12 July 1984
Procedural Posture
Trade Practices / Property Dispute / Interlocutory Judgment on Motions; Cross Claim Judgment
Outcome
Applicants' claim not dismissed at this stage; judgment for the first respondent on the cross-claim, with stay of execution; applicants' motion to strike out paragraphs dismissed.
Legal Topics
Misleading or Deceptive Conduct, Limitation Periods, Leaseholding, Statutory Cause of Action, Strike Out Application
Trade Practices Property Law Misleading or Deceptive Conduct Limitation Periods Leaseholding Statutory Cause of Action Strike Out Application

Case Brief

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Parties

Peter Paul Arcadi

Applicant

Domenic Staltari

Applicant

Colonial Mutual Life Assurance Society Limited

First Respondent

Joseph Charles Learmonth Duffy Pty Ltd

Second Respondent

Procedural Posture

Trade Practices / Property Dispute / Interlocutory Judgment on Motions; Cross Claim Judgment

Legal Issues

  1. 1 Whether applicants' claim is statute-barred under s.82(2) of the Trade Practices Act 1974
  2. 2 When the cause of action for misleading or deceptive conduct under s.52 accrues
  3. 3 Whether paragraphs 13 and 14 of the respondents' defence should be struck out

Ratio Decidendi

The applicants' claim is not so clearly untenable as to warrant dismissal at this interlocutory stage. The time at which loss or damage was suffered and consequently when the cause of action accrued raises questions of fact that should proceed to trial. Neither paragraphs 13 nor 14 of the respondents' defence should be struck out at this stage. Judgment is entered for the first respondent on the cross-claim due to admissions but execution is stayed.

Court Disposition

Applicants' claim not dismissed at this stage; judgment for the first respondent on the cross-claim, with stay of execution; applicants' motion to strike out paragraphs dismissed.

Orders

  • Respondents' motion to dismiss applicants' claim dismissed.
  • Applicants' motion to strike out paragraphs 13 and 14 of defence dismissed.