2. The part of the applicant's case which is attacked as being out of time is that which sets up a claim under s.52 and s.53A of the Trade Practices Act 1974 based on representations claimed to have been made in 1985. The application was filed on 20 February 1989, and Mr Wilson, for the respondents, says that the representations complained of were made and caused loss before 20 February 1986 - i.e. more than three years before the application was filed.

3. The significance of the three years is that s.82(2) of the Trade Practices Act requires an action for damages of the kind here in question to be commenced "within three years after the date on which the cause of action accrued". Under s.87(1CA), the same time limit applies to applications of this kind brought in reliance on s.87(1A), which allows the Court in a case of this sort to make in favour of a successful applicant -

"... such order or orders as the Court thinks

appropriate against the person who engaged in the

conduct or a person who was involved in the

contravention (including all or any of the orders

mentioned in sub-section (2)) if the Court

considers that the order or orders concerned will

compensate the person who made the application ...

in whole or in part for the loss or damage, or will

prevent or reduce the loss or damage suffered, or

likely to be suffered, by such a person".

4. Section 87(1A) is, in a sense, ancillary to s.87(1) insofar as the latter includes a power to make orders, expressed in much the same way:

"... such order or orders as it thinks appropriate

against the person who engaged in the conduct or a

person who was involved in the contravention

(including all or any of the orders mentioned in

sub-section (2) of this section) if the Court

considers that the order or orders concerned will

compensate the first-mentioned person in whole or

in part for the loss or damage or will prevent or

reduce the loss or damage."

5. The "first-mentioned person" in the part of s.87(1) which I have quoted is such a person as the present applicant.

6. It is not very clear why s.87(1CA) does not expressly impose a three year limit for s.87(1) claims, as well as s.87(1A) claims. However, the general intention seems to be to limit both in the same way, as may be deduced from the fact that s.87(2) says:

"The orders referred to in sub-sections (1) and (1A)

are ..."

and then lists a series of possible orders, such as declarations and the like. The draftsman seems to have thought that he caught s.87(1) claims in the three year net with the s.87(1A) claims. Although the intention could certainly have been made clearer than it has been, I think a claim of a kind mentioned in s.87(1A) has a three year time limit even if it could have been (or has been) brought under s.87(1) instead.

7. Here, the application seeks damages for breach of s.52 and a declaration declaring the relevant agreement, to be discussed below, to be void. The representation alleged to be made by the second respondents was that a certain sum was owing in 1978 under a mortgage (the subject of this dispute) so that by 22 October 1985 when the representations were made, the balance owing under the mortgage was in excess of $150,000. The first respondent is alleged to have represented by letter on 21 November 1985 that the balance owing under the mortgage was $153,623.48, when in fact no money was owed. In my opinion, the applicant's Trade Practices Act claims cannot succeed unless brought within three years after the day on which the cause of action accrued.

8. The applicant entered into an agreement on 23 October 1985, containing provisions as follows.

9. By clause 1.1, the first respondent assigned to the applicant its interest in certain deeds of charge, and the mortgage (mentioned above) given by a company called Co-ownership Land Development Pty Ltd in favour of the first respondent. Under clause 3.1, the first respondent agreed to sell certain land to the applicant for $3,471,000, plus certain interest. The price was made payable by an initial $20,000 deposit, with a further $80,000 to be paid within seven days of ratification of the agreement under clause 7. Under clause 3.3, when the first respondent became able to give title and notified the applicant of that fact, completion of the sale was to take place within sixty days.

10. Clause 7 made the agreement subject to ratification at a meeting of members of the first respondent.

11. Clause 10 required the applicant to pay on ratification a sum of $15,000 and also moneys due under the mortgage mentioned above, with a limit of $150,000.

12. The events of significance for present purposes which occurred before 20 February 1986, i.e. outside the three year limit, were the representations complained of (22 October 1985 and 21 November 1985), the making of the agreement (23 October 1985), the ratification of the agreement (19 November 1985) and the payment of the sum of $150,000 mentioned in clause 10 (29 November 1985). It was argued, in effect, that the applicant's damage had accrued at the latest on 29 November 1985, when the sum in question was paid.

13. The argument advanced by Mr Hanson Q.C., who led Mr Carrigan for the applicant, was that the true date of accrual of the cause of action was either 1 May 1986 or 28 November 1986. The significance of these dates was that on the former the land mentioned in the agreement was sold to a person other than the applicant, by public auction, and the significance of the latter was that on that date the second sale was completed. Mr Hanson drew attention to the wording of clause 10(b) of the agreement between the applicant and the first respondent just referred to, providing for payment of the amount due under the mortgage up to a limit of $150,000. The clause went on:

"Such payment shall be paid by the purchaser and

accepted by the vendor as part payment and on

account of the purchase price provided for in

Clause 3.1 and the balance of purchase price

payable shall be rendered accordingly Provided

However that should this Agreement be not

completed such payment shall not be refundable by

the vendor to the purchaser."

14. The argument for the applicant was that, as long as the contract between the applicant and the first respondent dated 23 October 1985 remained on foot, the applicant had an interest under the contract and a credit towards the purchase price. Counsel argued that it could not be said, as long as the contract remained on foot, that the applicant suffered any loss by paying the money and that the applicant suffered no loss until its interest under the contract was extinguished when the $150,000 became irretrievably lost.

15. It is true that the applicant's contractual position as purchaser worsened with respect to the $150,000 when completion of the agreement for sale became impossible, but it does not follow, as it seems to me, that the applicant had no cause of action under s.52 at any earlier time. In Keen Mar Corporation Pty Ltd v. Labrador Park Shopping Centre Pty Ltd (1988) ATPR 40-853, where execution of leases was induced by statements made in breach of s.52, I said:

"I think the cause of action accrues by the time the

applicant has entered into the relevant

transaction; where the applicant has taken a lease,

that will be not later than the execution of the lease."

16. I added that I thought the words "date on which the cause of action accrued", in the statute, were intended to have a meaning akin to that worked out under earlier time limitation statutes.

17. When the Keen Mar case went to the Full Court, only one member of the Court found it necessary to deal with the limitation point; Spender J. expressed the view that the relevant date was the date of execution of the lease: see [1989] FCA 46; (1989) ATPR (Digest) 46-048 at p 53,156.

18. It was not suggested in argument that the view adopted in the Keen Mar case was incorrect, but I have nevertheless reconsidered it and the appellate decisions on which it was based. In Elna Australia Pty Ltd v. International Computers (Australia) Pty Ltd [1987] FCA 230; 75 ALR 271, without arriving at a final view, Gummow J. suggested that perhaps several distinct claims might flow from a contravention of Part IV or Part V of the Trade Practices Act.

19. The tendency has been to construe statutes of limitation as not contemplating that a new cause of action will arise every time there is a fresh loss from the same basic wrong. The celebrated exception is The Darley Main Colliery Company v. Mitchell (1886) 11 App Cas 127. Lord Halsbury said at pp 132, 133:

"No one will think of disputing the proposition that

for one cause of action you must recover all

damages incident to it by law once and for ever. A

house that has received a shock may not shew all

the damage done to it, but it is damaged none the

less then to the extent that it is damaged, and the

fact that the damage only manifests itself later on

by stages does not alter the fact that the damage

is there; and so of the more complex mechanism of

the human frame, the damage is done at a railway

accident, the whole machinery is injured, though it

may escape the eye or even the consciousness of the

sufferer at the time; the later stages of suffering

are but the manifestation of the original damage

done, and consequent upon the injury originally

sustained."

20. The reason for the Darley Main Colliery principle under which a new cause of action accrues with every fresh subsidence consequence upon excavation, is:

"that there is no abstract right in the plaintiff to

the support of the soil, so that the withdrawal of

support does not create a wrong by itself, but only

when the damage ensues ..." per Hood J. in Green v.

Walkley (1901) 27 VLR 503 at 507.

21. Whether or not this quiets any doubts about the logic or validity of the distinction made in the Darley Main Colliery case, it is the general principle stated by Lord Halsbury, rather than the exception, which has prospered during the century since he stated it.

22. The negligent engineer may be sued by his principal when damage first occurs, but there is no new cause of action when it first becomes manifest, or when the structure falls down: Pirelli General Cable Works Ltd v. Oscar Faber & Partners (a firm) (1983) 2 AC 1.

23. It is true that the date of accrual of the cause of action for damages or rescission based upon a breach of s.52 of the Trade Practices Act is not necessarily to be equated to that in a suit in negligence. But, since the legislature used the expression "day on which the cause of action accrued" in s.87(1CA) of the Trade Practices Act and a similar expression in s.82(2), without saying how that day should be determined, it would seem to follow that the intention was that the established law with respect to other statutory limitation provisions should be applied. Since "most causes of action for negligence first accrue when the plaintiff first suffers damage caused by the defendant's breach of duty" (see Hawkins v. Clayton (1988) 164 CLR 539 at 561), I assume the same applies to causes of action based, not on negligent misstatement, but on s.52 of the Trade Practices Act.

24. To return to the facts of the present case, assuming that the applicant is right and the $150,000 was paid for a worthless mortgage, then the applicant was, immediately after it paid the money, entitled to recover it back; its cause of action was then, if not earlier, complete. The fact that in 1986 the applicant's contractual position worsened by operation of clause 10(b) did not create any new cause of action under s.52 of the Trade Practices Act, nor indeed affect the quantum recoverable.

25. I have, for these reasons, come to the conclusion that the cause of action based upon s.52 is statute barred. Since there is no procedural objection advanced to my giving effect to that view now, I propose to do so. I should remark, however, that although the application filed relies solely upon the Trade Practices Act, the statement of claim appears to raise fraud (para.6(d)) and there are also two related Supreme Court actions which have been ordered to be heard with the application I have been discussing. The litigation remains alive.

26. It will be ordered that claims A1, A2 and B1 in the application filed on 20 February 1989 be struck out. I shall hear the parties on costs.