Rex Development Pty Ltd v Interval Finance Ltd & Ors [1987] FCA 303

Rex Development Pty Ltd v Interval Finance Ltd & Ors [1987] FCA 303

The applicant's statement of claim is defective by failing to plead essential allegations necessary for a cause of action under s.52(1) Trade Practices Act 1974 (Cth), such as the sixth respondent's absence of belief, lack of foundation, or recklessness in making future-oriented representations. The defects do not justify summary dismissal or staying the proceedings but warrant striking out specified paragraphs and allowing the applicant opportunity to amend. The evidence does not establish entitlement to summary judgment against the first, second, or third respondents as essential elements are lacking.

Parties
Applicant: Rex Developments Pty. Ltd.; First Respondent: Interval Finance Ltd.; Second Respondent: International Leisure Time Counsellors (Aust.) Pty. Ltd.; Third Respondent: First Indemnity Limited; Fourth Respondent: John William Lloyd Gibbs; Fifth Respondent: David Anthony Baird Masterton; Sixth Respondent: Spedley Securities Limited
Jurisdiction
Australia
Judgment Date
12 June 1987
Procedural Posture
Civil / Interlocutory Motions: Motion to Stay or Dismiss, Motion for Summary Judgment
Outcome
Both motions dismissed: proceedings against sixth respondent not stayed or dismissed; applicant's motion for summary judgment dismissed.
Legal Topics
Trade Practices Act 1974 (cth) S.52(1), Breach of Contract, Summary Judgment, Strike Out Application
Commercial Law Contract Law Consumer Protection Law Trade Practices Act 1974 (cth) S.52(1) Breach of Contract Summary Judgment Strike Out Application

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Parties

Rex Developments Pty. Ltd.

Applicant

Interval Finance Ltd.

First Respondent

International Leisure Time Counsellors (Aust.) Pty. Ltd.

Second Respondent

First Indemnity Limited

Third Respondent

John William Lloyd Gibbs

Fourth Respondent

David Anthony Baird Masterton

Fifth Respondent

Spedley Securities Limited

Sixth Respondent

Procedural Posture

Civil / Interlocutory Motions: Motion to Stay or Dismiss, Motion for Summary Judgment

Legal Issues

  1. 1 Whether the applicant's statement of claim discloses a reasonable cause of action against the sixth respondent under s.52(1) Trade Practices Act 1974 (Cth)
  2. 2 Whether the claim for breach of contract can proceed against the sixth respondent without a proper cause of action under the Act
  3. 3 Whether summary judgment should be granted to the applicant against the first, second and third respondents

Ratio Decidendi

The applicant's statement of claim is defective by failing to plead essential allegations necessary for a cause of action under s.52(1) Trade Practices Act 1974 (Cth), such as the sixth respondent's absence of belief, lack of foundation, or recklessness in making future-oriented representations. The defects do not justify summary dismissal or staying the proceedings but warrant striking out specified paragraphs and allowing the applicant opportunity to amend. The evidence does not establish entitlement to summary judgment against the first, second, or third respondents as essential elements are lacking.

Court Disposition

Both motions dismissed: proceedings against sixth respondent not stayed or dismissed; applicant's motion for summary judgment dismissed.

Orders

  • The motion of the sixth respondent to stay or dismiss the proceedings against it pursuant to Order 20, rule 2 Federal Court Rules is dismissed.
  • Paragraphs 2, 2h and 25 of the applicant's statement of claim are struck out.