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Chamberlain v Independent Group Pty Ltd [2003] ACTCA 10 | Case summary | Zoe

ACTACTCA

Chamberlain v Independent Group Pty Ltd [2003] ACTCA 10

[2003] ACTCA 10

Court of Appeal (ACT)|2003-04-22|Before: Higgins CJ, Madgwick JJ, Crispin J

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At a glance

Source facts

Court

Court of Appeal (ACT)

Decision date

2003-04-22

Before

Higgins CJ, Madgwick JJ, Crispin J

Source

Original judgment source is linked above.

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

TERENCE JOHN CHAMBERLAIN, PETER LAWRENCE CROWLEY, JOHN DAVID BRADLEY, PHILIP RAYMOND SMITH, CHRISTOPHER JOHN CROWLEY, WILLIAM BRIAN LOFTUS, THOMAS FRANCIS MEAGHER, NICHOLAS JOHN SYMONS, KEITH ARTHUR BRADLEY, ALFONSO DEL RIO, ANNE MARIE PROCTOR, JOHN SNELL, ROSEMARY ELIZABETH TOWNSEND and SALLY JOAN SHEPPARD v GRACE CARLISLE

And

INDEPENDENT GROUP PTY LIMITED v GRACE CARLISLE

[2003] ACTCA 10 (22 April 2003)

EXPIRATION OF TIME LIMIT – Trade Practices Act 1974 (Cth) – Limitation Act 1985 (ACT) – limitation period commencement – time of purchase – subsequent events – cause of action based on breach of contract – cause of action based in tort – amendment to statement of claim – new cause of action.

Trade Practices Act 1974 (Cth), s 82(2)

Limitation Act 1985 (ACT), s11(1)

Weldon v Neal [1887] 19 QBD 394

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority (1995) 129 ALR 401

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 15 – 2002

No. ACTCA 16 - 2002

No. SC 885 of 1999

Judges: Higgins CJ, Gray and Madgwick JJ

Court of Appeal of the Australian Capital Territory

Date: 22 April 2003

IN THE SUPREME COURT OF THE ) No. ACTCA 15 - 2002

) No. ACTCA 16 – 2002

AUSTRALIAN CAPITAL TERRITORY ) No. SC 885 of 1999

)

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: TERENCE JOHN CHAMBERLAIN

PETER LAWRENCE CROWLEY

JOHN DAVID BRADLEY

PHILIP RAYMOND SMITH

CHRISTOPHER JOHN CROWLEY

WILLIAM BRIAN LOFTUS

THOMAS FRANCIS MEAGHER

NICHOLAS JOHN SYMONS

KEITH ARTHUR BRADLEY

ALFONSO DEL RIO

ANNE MARIE PROCTOR

JOHN SNELL

ROSEMARY ELIZABETH TOWNSEND

SALLY JOAN SHEPPARD

First named Applicants

AND: GRACE CARLISLE

This was an application for leave to appeal on behalf of the fourth defendants (first named applicants) and the second defendant (second named applicant) against a decision of Crispin J handed down on 2 May 2002. The fourth defendants have now resolved their differences with the plaintiff and do not require a decision on this appeal.
That decision refused applications by those defendants that the Second Amended Statement of Claim, pleading causes of action against those defendants (and the third defendant who does not seek leave to appeal) be struck out or, alternatively, that summary judgment be entered in their favour.
This matter is but one of 59 similar cases. All arise out of the purchase of units in the Canberra International Motor Inn, a hotel in respect of which the individual rooms and areas were sub-divided into separate unit titles and sold to various persons including the plaintiff. There had been a sublease to a management company called Jaywood Pty Ltd. As it was explained to Crispin J in the hearing at first instance (at T 8-9) – “They [the purchasers, including the plaintiff] were bound to enter and did enter into what was called a sub-lease to a management company Jaywood Pty Ltd. And Jaywood guaranteed to the plaintiff a rental return for a period of five years from the date of settlement and then after the five year period was expired, the matter was at large. Either the purchasers would have to enter into a further management agreement or some other arrangement would have to be arrived at.” AND further: “… everything went along, as far as the purchasers were concerned, pretty well during the period of the guaranteed rental. But after that lease, sub-lease came to an end, everything fell apart as it were. They weren’t able to re-negotiate. They say the units lost value ….”
The vendor in each case was the first defendant. The second defendant is the real estate agent engaged to find purchasers of those units. The fourth defendants acted as solicitors on the purchases for some purchasers, including this plaintiff.
The second defendant is alleged to have caused the plaintiff to purchase her unit by means of misrepresentations. It is alleged that by reason of those wrongful acts or omissions, the plaintiff has suffered loss and damage.
The contract for the purchase of the unit in question in these proceedings, was executed on 6 August 1993. The purchase was completed on 10 November 1993.
The Originating Application was filed on 17 November 1999. Thus proceedings were commenced more than six years after the completion of the relevant sale.
The second defendants before Crispin J objected to the grant of leave to amend the Statement of Claim, and argued that even if leave to so do was granted, the final Statement of Claim did not disclose any reasonable cause of action and that, in any event, the causes of action purportedly relied upon were statute-barred.
There was clearly a question as to whether any loss or damage had been caused to the plaintiff as a result of the contravening conduct of the second defendant as alleged.
It should be noted that the relevant time bar in respect of claims pursuant to s 82(2) of the Trade Practices Act 1974 (Cth) is six years after the day on which “the cause of action … accrued”.
Otherwise the time bar is that set by the Limitation Act 1985 (ACT). That is, six years from the date on which “the cause of action first accrues to the plaintiff” (s 11(1)).
At the outset, it was not really in doubt that the pleaded allegations of misrepresentation could be arguably supported. The promotional material, at least in so far as self-occupancy was promoted as a feature of the development seems at odds with the terms of the relevant Crown Lease. The other promotional statements may or not be defensible. That would depend on the evidence adduced at the trial.
Similarly, the alleged failures to warn and advise could arguably be perceived as a breach of duty on the part of the second defendant.
The real issues were whether there was any evidence which, if accepted, would establish that the plaintiff had suffered any loss and, even if so, whether there was any evidence to support a finding that such loss was caused by the falsity of the representations or the omissions to advise, as the case may be.
The amendment sought by the plaintiff before Crispin J alleged a false representation that after the expiry of the initial lease to Jaywood Pty Ltd, a capital gain would be realised.
It was argued that to allow this amendment would plead a new cause of action, out of time, contrary to the rule in Weldon v Neal [1887] 19 QBD 394.
Further, it was contended, the previously pleaded causes of action were statute-barred.
Crispin J accepted that insofar as the pleaded causes of action were based on breach of contract, the relevant limitation period commenced to run as from the date of breach. At the latest, that date was when the sale of the unit was completed; a date more than six years prior to the commencement of these proceedings. In that conclusion, his Honour was plainly correct.
His Honour further held, at p 19, par 36: “…[a] cause of action in tort is not complete until the plaintiff has suffered actual loss or damage and the limitation period does not commence to run until that time. The loss or damage must be actual rather than merely contingent or prospective …the damage must be ‘measurable’ …or ‘beyond what can be regarded as negligible’ …Further injury arising from the same tortious act or omission does not give rise to a further cause of action.” That statement of principle was also plainly correct.
However, the plaintiff contended, before his Honour, that no loss was sustained until after the original agreement with Jaywood Pty Ltd expired as, until then, the property had retained, even exceeded, its purchase value.
If that proposition was to be regarded as arguable, no loss would have been sustained until 1998 and the time bar would not have been exceeded.
Whilst accepting that the causes of action pleaded in contract were statute-barred, Crispin J considered that, on that latter basis, it was arguable, if the causal link was established, that the loss complained of occurred in 1998. That is, following the expiry of the Jaywood agreement. Thus leave to amend was granted.
In this Court the second defendant relied upon the lack of any specific allegation of a causal link between the contravening conduct alleged and the damage claimed. The only causal link alleged, being that in par 13 of the Second Amended Statement of Claim, that is – “In reliance upon the representations and induced thereby and not knowing of the Omissions the plaintiff and Gordon Geoffrey Carlisle entered into the contract by reason of which and as a result of subsequent events the plaintiff and Gordon Geoffrey Carlisle suffered loss and damage.”
However, it is simply not the case that the plaintiff relies only on the entry into the contract of sale as causing the loss and damage complained of. There is a reference to “subsequent events”. Of course, one such event is the completion of the sale, which event was outside the relevant limitation periods. However, it might as well be a reference to the events following the expiry of the Jaywood agreement.
Particulars of the “subsequent events” referred to in par 13 were sought, but only by the fourth defendants. The plaintiff declined to give any particulars to them, on the basis that the allegation they referred to related to the other defendants. The allegation against the fourth defendants was, as pleaded in par 19(f): “As a consequence of buying the property and not rescinding or having the contract declared void and obtaining back the purchase price, and as a result of subsequent events, the plaintiff has suffered and continues to suffer losses.”
In accordance with the authorities cited by Crispin J, it is accepted that the time bar is not postponed by the suffering of further losses. Time commences to run when some loss, not merely contingent loss, is sustained. Those statements of principle were accepted by all parties.
It is at least open to conclude that the plaintiff proposes to prove that some subsequent event, or events, within the ambit of reasonable foreseeability arose after completion, so as to cause, for the first time, loss and damage.
The fact that the plaintiff has not been nailed down to particularise those events is the responsibility of the second defendant. It cannot be said that on no conceivable construction of the “subsequent events” could loss and damage have been caused, though none had been suffered upon completion of the relevant sale.
Whether or not that is proven to be so, will depend upon the evidence given of those events occurring after completion of the sale. In our view, it is inappropriate to attempt, without such evidence, to determine that issue against the plaintiff.
It is true that the Statement of Claim, as amended initially without objection, did not, in respect of the fourth defendants refer in par 20(f) (now par 19(f)) to “subsequent events”. However, the particulars of loss then given included loss of income and lost opportunity to invest elsewhere. It is true that the plaintiff had also included an allegation of immediate loss of value of the property. However, that allegation is now sought to be abandoned. Indeed, it seems to be common ground that no such particular of loss could have been established. Such a claim would certainly have been open to challenge as statute-barred. That means that, if the plaintiff is able to prove any loss, it must arise from some event following the purchase of the property. It is possible that losses could have been caused by events including, or following, the expiration of the Jaywood agreement in 1998.
It, therefore, seems to us that Crispin J was right to conclude that the causes of action, (apart from contract), pleaded against the second defendant, are not so clearly statute-barred that judgment should be given for those defendants. Nor is it clear that the amendments sought add any new cause of action, as opposed to abandoning a hopeless one. If it appears that the “subsequent events” were not productive, for the first time, of loss and damage arising from the allegedly contravening acts and omissions predating settlement of the sale, then the plaintiff will fail.
It is trite law that an application such as that rejected by Crispin J should only be acceded to when it is clear that the plaintiff’s cause of action as pleaded is quite hopeless: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. It is also well-settled that it is generally undesirable that supposed legal questions should be separately decided before the facts are known: Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority (1995) 129 ALR 401.
In conclusion, we agree with the orders made by Crispin J and would dismiss this appeal with costs.