Federal Court of Australia|1991-02-20|Before: Sheppard J

Re Magman International Pty Limited; Michael Brian Shirley; and Anirama Pty Limited v Westpac Banking Corporation [1991] FCA 41; 100 ALR 575 (20 February 1991)

Re: MAGMAN INTERNATIONAL PTY LIMITED; MICHAEL BRIAN SHIRLEY; and ANIRAMA PTY

Limitation of Actions - foreign currency loan - applicants giving security by way of mortgage for borrowing - whether applicants first suffered loss on entry into mortgages - alternatively whether damage first suffered on the earliest rollover date after the decline in value of the Australian dollar.

Limitation Act 1969 (N.S.W.)s.14

Solicitors for the Applicants: Hannaford Smith (Neutral Bay NSW)

Counsel for the Respondent: Mr S.P. Charles QC and Mr M.A. Pembroke

Solicitors for the Respondent: Allen Allen and Hemsley

Counsel bring in short minutes of declarations and orders to give effect to the Court's reasons for judgment and directions for the further prosecution of the application.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

When this matter came into the list on 13 December last there was for hearing a notice of motion seeking the striking out of the proceedings or, in the alternative, the striking out of paragraphs 1 - 12 inclusive of the statement of claim. A problem with applications to strike out pleadings is that the applicant must clearly demonstrate the absence of a cause of action or ground of defence; if he does not, the application must fail even though it may eventually be found that the point upon which he relied was good. See Dey v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 and General Steel Industries Inc. v. Commissioner for Railways (N.S.W.)(1964) [1964] HCA 69; 112 CLR 125. After some discussion about this matter counsel for the respondent, whose notice of motion it was, filed a defence in which the point relied upon was taken as a point of law. Thereupon, I ordered that the question raised by the point of law be determined prior to the determination of any other question in the case.

2. The action is one in which the applicants sue the respondent for damages for causes of action in negligence and for breach of s.52 of the Trade Practices Act 1974. Counsel were in agreement that, in relation to both causes of action, damage was the gist of the action.

3. The action is for negligent advice said to have been given and false representations said to have been made in negotiations which led the first applicant to borrow a substantial amount of money from the respondent in Swiss francs. The story is a familiar one in this Court. The value of the Australian dollar depreciated against the Swiss franc with the consequence that the transaction has resulted in at least the first applicant suffering substantial loss and damage.

4. Although there has been tendered a statement of agreed facts together with some letters and other documents, the parties are not in agreement about the detail of conversations had between representatives of the applicants and officers of the respondent. For present purposes, there is no need to resolve the conflict of evidence which there is because, in relation to the point at issue, the parties have agreed that I should accept the version of the facts set out in the statement of claim. It is the respondent's submission that, if one does, one must reach the conclusion that the applicants' causes of action are statute barred.

5. The assumed facts of the matter may be summarised as follows. On 15 March 1984 the respondent represented to the applicants that the Swiss franc was the most stable foreign currency in which to borrow funds, that the rate of exchange between the Swiss franc and the Australian dollar had been steady for some time and that there was a small or negligible real risk of an adverse movement of the rate of exchange between the Australian dollar and the Swiss franc. In or about June or July 1984 the respondent made further representations to the applicants. These included a representation that the respondent had the capacity and expertise to, and would, "advise the applicants on foreign currency borrowing and dealing". The statement of claim alleges that the applicants acted on the faith of these various representations and also that they were false and misleading and were made negligently.

6. On the 14 August 1984 the respondent wrote to the second applicant in his capacity as Managing Director of the first applicant informing him that the respondent had approved an offshore loan to refinance the first applicant's existing offshore facility and to provide additional working capital. The Australian equivalent of the amount of the loan was to be $700,000, the borrower was to be the first applicant and the term of the loan was to be five years from drawdown with rollovers each 90 or 180 days. Repayment was to be by one payment upon expiry of the term. Interest was to be payable in arrears on each rollover. Security was to be provided by an equitable mortgage from the first applicant, a mortgage of real estate by the third applicant, which was the trustee of the second applicant's family trust, and a mortgage by the second applicant over other real property. The terms and conditions offered by the respondent were accepted on 20 August 1984. On 28 August 1984 the respondent wrote the directors of the first applicant a more detailed letter setting out specifically the terms upon which the facility would be made available. It is unnecessary to refer to the detail of this letter.

7. On 4 September 1984 there was a meeting of the directors of the first applicant at which it was resolved that it agreed to borrow from the respondent's Singapore branch the sum of $A700,000 upon the terms of the respondent's letter dated 28 August 1984. Also on 4 September 1984 the first applicant wrote to the respondent informing it of the resolution.

8. On 5 September 1984 the second applicant gave the respondent a registered first mortgage over property in Woollahra, a Sydney suburb. On the same day the third applicant gave the respondent a mortgage over property at Crows Nest. The mortgage given by the third applicant was given in consideration of accommodation made available by the respondent to the first applicant. The consideration given for the mortgage entered into by the second applicant was also accommodation to be made available by the respondent to the first applicant. The mortgage given by the second applicant was apparently discharged on 29 October 1985.

9. On 6 September 1984 the first applicant did a number of things. It paid the respondent the sum of $3,500 being the amount of the establishment fee charged by the respondent for the facility. It drew down the loan from the respondent. The sum involved was CHF1,435,000 of which CHF943,445.91 was paid at the first applicant's direction to Canada Imperial Bank of Commerce (Asia) Limited. The balance was credited to the first applicant's bank account. Also on 6 September 1984 the first applicant gave to the respondent an equitable mortgage over the whole of its assets and uncalled capital as security for the loan. The first applicant also undertook not to repay shareholders' loans without the respondent's prior consent.

10. Paragraph 12 of the Statement of Claim is as follows

"As a result and in consequence of the said contraventions

of the Trade Practices Act, (as amended), of the said

breaches of duty and of the said warranty, the applicants

acted as pleaded in paragraph 5 above and thereby suffered

loss and damage when there were adverse movements in the

rate of exchange between the Australian Dollar and the Swiss Franc."

Paragraph 5 was a paragraph in which it was alleged that the applicants accepted the respondent's offer to lend the first applicant Swiss francs and that the applicants gave the various mortgages to which I have referred.

11. In its defence the respondent denied the making of the representations relied upon by the applicant and the allegations made in a number of other paragraphs including paragraph 12. It is unnecessary to refer to the balance of the defence except for paras. 8 and 9 which are as follows

"8. In further answer to the claims made in paragraphs 2 to 8

and paragraph 12 of the Statement of Claim, Westpac says

that those claims are statute barred by reason of the

provisions of s.s. 82(2) and 87(1CA)(b) of the Trade

Practices Act, (Cth) 1974.

9. In further answer to the claims made in paragraphs 9 to 12

of the Statement of Claim, Westpac says that those claims

are statute barred by reason of the provisions of s14 of the

Limitation Act (NSW) 1969."

12. Section 14 of the Limitation Act 1969(NSW) so far as it is material provides, inter alia, a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff in a cause of action founded on tort. Subsection 82(2) of the Trade Practices Act provides that an action under subsection 82(1) of that Act may be commenced at any time within three years after the date on which the cause of action occurred. Subsection 82(1) is the subsection which vests in persons such as the applicants here rights to sue for damages for breach, inter alia, of s.52 of the Trade Practices Act. Subsection 87(1CA) imposes a similar limitation period in respect of actions brought under s.87 of the Act. The applicants have claimed relief under that section.

13. The loan was drawn down, as I have mentioned, on 6 September 1984. The respondent's letter of 28 August 1984 set out in section 3 provisions concerning the payments of interest. The interest period was to be six months unless the first applicant should give notice prior to the commencement of an interest period that the interest period was to be of three months duration. Clause 5.02 of the letter provided that the first applicant might prepay the loan in full on any interest payment date prior to the termination date by giving thirty days prior notice. It will be seen that the interest payment dates were 6 March and 6 September of each of the five years of the period of the loan. It followed that rollover dates occurred on 6 March and 6 September 1985, 1986 and so on.

14. The Australian dollar was floated towards the end of 1983. For the period of twelve months or so that followed it maintained its value with the consequence that when the first rollover date, 6 March 1985, arrived there was no significant difference between the value which the Australian dollar had had as regards the Swiss franc in September 1984 and its value six months later. Thereafter, however, the position changed. The Australian dollar lost ground steadily so that by the second rollover date on 6 September 1985 the amount needed to repay the loan in Australian dollars was substantially more than $700,000. The position continued to worsen in succeeding months particularly throughout 1986.

15. These proceedings were commenced on 7 September 1990 more than six years after the giving of the mortgages and the drawdown on 6 September 1984 and more than six years since the respondent had made any representations or given any advice about the transaction.

16. It was the primary submission of counsel for the respondent that both the cause of action in negligence and the cause of action based on a breach of the Trade Practices Act were time barred because more than six years (and thus more than 3 years) had elapsed since the applicants first suffered loss on or before 6 September 1984. If that submission were rejected, counsel for the respondent submitted that loss was certainly suffered at the time of the second rollover on 6 September 1985. It was submitted that the applicants had then suffered damage because of the fall in the value of the Australian dollar which had occurred during the second rollover period. Whether they left the loan in Swiss francs, converted it into another currency or brought it back on shore, their loss, although then less than it became in later years, was clearly established, so that their cause of action under the Trade Practices Act had then arisen and the limitation periods provided for in ss.82 and 87 of the Trade Practices Act had commenced to run. On this view of the matter, however, the cause of action based on negligence was not time barred because it had been brought within six years of its arising.

17. Counsel for the applicants submitted that no cause of action arose until the applicants' losses crystallised when the loan had to be repaid on 6 September 1989. One could not tell whether the transaction would result in losses or not until then because it was always possible in the fluctuating international money market that the Australian dollar might by the time the applicants were obliged to repay the principal in 1989 have regained its value. Alternatively, counsel for the applicants put a submission similar to that put secondarily by counsel for the respondent, namely, that the cause of action arose at the time of the second rollover with the consequence that, although the cause of action based on the Trade Practices Act was barred, that based on the cause of action for negligence was not.

18. The primary submission made by counsel for the respondent was based upon the view that the moment that each of the applicants entered into the respective mortgages given by them on 5 or 6 September 1984, each had suffered some damage because each had acted to its or his detriment. Counsel relied strongly upon the decision of the English Court of Appeal in Forster v. Outred and Co. (1982) 1 WLR 86. In that case the plaintiff had executed a mortgage in the presence of the defendants who were her solicitors. The mortgage charged her property as security for a loan made by a company to her son who subsequently went bankrupt. The plaintiff was forced to repay the son's losses and sued the defendants for negligence and breach of contract in failing properly to advise her at the time the mortgage was executed. There was some failure on the plaintiff's part to prosecute the action. An application to dismiss the action for want of prosecution followed and another writ was issued. A question for the Court of Appeal was whether the second action was time barred. The period of limitation was six years and more than seven years had elapsed from the time of the original advice before the second action was commenced. The Court of Appeal held that damage was an essential ingredient of the action in negligence but that the plaintiff had suffered actual damage when she executed the mortgage and she was subjected to a liability which might mature into financial loss. Accordingly, her cause of action occurred at the time she entered into the mortgage notwithstanding that she did not actually become liable for the repayment of the loan until a demand was made some years later.

19. Counsel for the defendant submitted that the plaintiff had suffered actual damage when she signed the mortgage deed because she then encumbered her interest in the mortgaged property and subjected herself to liability for her son's debts. That argument was accepted by the Court of Appeal. Stephenson L.J. discussed a number of authorities. He concluded by saying (p 98):-

"Although there is no more direct authority than those cases

among those which have been cited to us, I would accept Mr

Stuart-Smith's (counsel for the defendant) statement of the

law and would conclude that, on the facts of this case, the

plaintiff has suffered actual damage through the negligence

of her solicitors by entering into the mortgage deed, the

effect of which has been to encumber her interest in her

freehold estate with this legal charge and subject her to a

liability which may, according to matters completely outside

her control, mature into financial loss - as indeed it did.

It seems to me that the plaintiff did suffer actual damage

in those ways; and subject to that liability and with that

encumbrance on the mortgage property was then entitled to

claim damages, not, I would think, an indemnity and probably

not a declaration, for the alleged negligence of the

solicitor which she alleges caused her that damage. In

those circumstances her cause of action was complete on

February 8, 1974, and the writ which she issued on March 25,

1980, was issued too late to come within the six years'

period of limitation."

"In this case, as soon as she executed the mortgage the

plaintiff not only became liable under its express terms but

also - and more importantly - the value of the equity of

redemption of her property was reduced. Before she executed

the mortgage deed she owned the property free from

encumbrances; thereafter she became the owner of a property

subject to a mortgage. That, in my view, was a quantifiable

loss and as from that date her cause of action against her

solicitor was complete, because at that date she had

suffered damage. The actual quantum of damages would, of

course, depend on events between that date and the date when

the damages had finally to be assessed, but the cause of

action was complete when she executed the mortgage, without

proof of special damage."

20. Forster v. Outred and Co. was one of a number of authorities referred to in the judgment of the Full Court of this Court in Jobbins v. Capel Court Corporation Limited [1989] FCA 538; (1989) 91 ALR 314. The case is authority for a number of propositions including the principle that, where damage is an essential element of a cause of action, the suffering of some damage will in general start time running even though the damage continues to grow. Forster's case was cited as authority for that proposition. It was decided that a plaintiff's unawareness of the existence of his cause of action does not prevent it accruing and further that a new cause of action does not arise where fresh loss arises from the same basic wrong. The members of the Court, as I have mentioned, referred to Forster's case and cited passages from the judgment of Dunn L.J.; see p 317.

21. During the argument there was some discussion whether Forster's case ought to be followed in Australia. I confess to having some misgivings about its underlying reasoning. If one analyses its facts, it may be said that the plaintiff acted to her detriment by reducing the value of her interest in the property when she entered into the mortgage. But in truth and reality she had not then lost anything. Only when the son defaulted and became bankrupt was the plaintiff bound to repay his indebtedness to the company. If he had repaid it, she would never have been called upon to pay anything and the value of her interest in the property would have remained undiminished. If this view were correct, her loss arose, not at the time of the entry into the mortgage, but at the time of the son's default. So here, one could not have said with certainty that the first applicant had suffered loss until it became bound to repay the indebtedness in 1989.

22. It was suggested that the application of Forster's case in Australia would lead to a situation developing in which solicitors acting for parties who may have been misled or negligently advised in relation to mortgage transactions, would need, as a matter of precaution, to issue writs within applicable limitation periods even though it could not be ascertained with any degree of certainty whether the mortgagor would in fact suffer loss because the time for repayment of the mortgage had not arrived. I agree that there may be practical difficulties in some cases but I think that the usual requirement to pay interest at periodical intervals would itself be a cause of some damage at an early stage in most cases even if the view were taken that entering into the mortgage did not itself occasion loss. Be that as it may, it seems to me that I should follow Forster's case because it has been referred to with approval by a Full Court of this Court.

23. I need next to determine whether the present case can be distinguished from Forster's case. If one looks at the position of the first applicant and omits, for the moment, the position of the second and third applicants, I think the cases are distinguishable. The first applicant suffered no loss at the moment of drawdown. It is true that it had entered into the equitable mortgage earlier referred to, but it received the equivalent in Swiss francs of $A700,000. Thus its asset position was no different after the transaction than it was before. The value of its assets and undertaking was not affected. It owed the bank $700,000 but that sum was paid either to it or to another bank on its behalf to discharge an earlier indebtedness. The position of the plaintiff in Forster's case was quite different. She diminished the value of her interest in the property by entering into a transaction which made her responsible for her son's debt. She received nothing in return. I therefore take the view that Forster's case is not an authority which obliges me to hold that the first damage suffered by the first applicant occurred when it entered into the equitable mortgage given to the respondent on 6 September 1984.

24. The position of the second and third applicants is more difficult. They are in a position, at least as far as the evidence discloses, closely similar to that of the plaintiff in Forster's case. The second applicant gave a mortgage over real estate owned by him in consideration of the accommodation afforded to the first applicant. The mortgage given by the third applicant was given for a similar consideration. In the result each of the second and third applicants worsened their position when they entered into the mortgages given by them because they received nothing to counterbalance the liability to the bank for the first applicant's indebtedness which they then assumed.

25. Unlike the transaction in Forster's case, however, this transaction involved the three applicants in carrying out separate but interconnected transactions to achieve one end, a loan of money in Swiss francs to the first applicant. The representations were made to the first applicant in his capacity as Managing Director of the first applicant and in his personal capacity. It would appear on the facts as pleaded that he also acted as agent for the third applicant.

26. There is no evidence before me as to the precise relationship between the first and second applicants or the first and third applicants. As the evidence presently stands, I do not feel able to determine whether it would be right to say that the second and third applicants are in fact in a position different from that of the first applicant and similar to that of the plaintiff in Forster's case. I am satisfied that at least the action in negligence brought by the first applicant is not time barred. In these circumstances I think, especially bearing in mind the absence of detailed evidence about the relationship, that it would be premature to decide at this stage that the action brought by the second and third respondents was statute barred. In any event, because of the nature of the transaction, it may be that when the entirety of the evidence is taken, it will be found that the second and third applicants may not be entitled to damages at all but are nevertheless necessary parties to the action.

27. It is then necessary to consider whether the action became time barred at the time of the second rollover on 6 September 1985 or when the loan fell due for repayment on 6 September 1989. If the applicants suffered damage on 6 September 1985, then the trade practices causes of action are barred even though the negligence action is not. I confess that I have not found this an easy problem, but bearing in mind the principles propounded by the Full Court in the Jobbins case, I think that the better view is that the applicants did suffer damage at or about the time of the second rollover because of the substantial fall in the value of the Australian dollar which had then occurred. That was the view adopted by Cole J. in the Supreme Court of New South Wales in Ralik Pty. limited v. Commonwealth Bank of Australia (unreported, 14 August 1990); see p 126.

28. I say "better view" because I confess that my mind has fluctuated about the matter. In many ways I am attracted to the proposition that, although hindsight shows that the Australian dollar never recovered its former value after the second rollover date, one could not have known at that time that the trend which had set in was irreversible. There is much to be said for the view that it was only when it was time to repay the loan in 1989 that one could say that losses had in fact been suffered. I feel constrained, however, to take the view that the material date was 6 September 1985 because of the decision in the Jobbins case.

29. In the course of my consideration of the matter I have looked at the judgment of Deane J in Hawkins v. Clayton (1988) 164 CLR 539. In the course of his judgment his Honour referred (p 587) to the judgment of the Supreme Court of Canada in Central Trust Co. v. Rafuse (1986) 31 DLR (4th) at pp 535-6. Later his Honour said (p 588)

"The position is different in cases where all or some of the

damage, be it in the form of physical injury to person or

property or present economic loss, is directly sustained in

the sense that it does not merely reflect diminution in

value or other consequential damage which occurs or is

sustained only when a latent defect which has existed at all

relevant times becomes manifest. In those cases, damage is

sustained when it is inflicted or first suffered and the

cause of action accrues at that time. I do not read the

passage in the judgment of the Court in South Australia v.

Johnson ((1982)42 ALR 161) upon which the plaintiff relied

as intended to effect any considered qualification of that

general rule. In so far as Rafuse establishes a different

general rule for Canada in relation to the operation of

Statutes of Limitation, I am not persuaded that it should be

followed in this country. That is not, of course, to say

that the general rule may not be subject to qualification in

some special circumstances or that its application may not

involve unresolved difficulties in special categories of

case (e.g., cases where all that is involved at the time of

a tortious act is a risk of future economic loss): cf.

Schlosser, "Some Recent Developments in the Law of

Limitation of Actions, Concurrent Liability and Pure

Economic Loss", Alberta Law Review, vol. 25 (1987), 388, at

pp 393-394.

30. The article in the Alberta Law Review to which his Honour referred is not of assistance in relation to the present matter nor do I think that one can solve the problem here by picking up his Honour's suggestion that the general rule may be subject to qualification in some special circumstances. I see no warrant for making the facts of this case an exception to the general rule.

31. In the result then I have formed the view that the first applicant's cause of action based on negligence is not time barred. I am not able to conclude on the state of the evidence whether the causes of action in negligence upon which the second and third applicants rely are time barred. I am satisfied that the causes of action relied upon by each applicant for breach of the Trade Practices Act are time barred.

32. I do not propose now to make any order. Rather I shall stand the matter over for a short time to give counsel an opportunity of considering what I have said. When the matter is again in the list counsel are to bring in short minutes of declarations and orders to give effect to my decision and of directions for the ongoing prosecution of the matter. I shall then also deal with the question of costs.

33. When this matter was in the list for mention this morning, counsel for the applicants drew my attention to the fact that when I published reasons for judgment on 20 February last I had omitted to deal with one aspect of his submissions in relation to s.87 of the Trade Practices Act 1974. The application claims relief under s.87 of the Act in the following terms:-

"The applicants' claim:

(a) an order pursuant to S.87 of the Trade Practices

Act, 1974 (C'wlth) (as amended) varying the

terms of the mortgages given by the second and

third applicants to enable them and each of them

to set-off as against any alleged indebtedness

to the respondent the amount of such set-off as

is alleged in the Statement of Claim;"

34. Until 1986, s.87 of the Act did not provide a person complaining of a breach of one of the provisions of Part V of the Act with a remedy unless a proceeding had been instituted pursuant to a provision of Part VI of the Act other than s.87 itself. So much was established by the decision of the High Court in Sent v. Jet Corporation of Australia Pty. Limited [1986] HCA 35; (1986) 160 CLR 540. There the Court said:-

"For these reasons, the better view is that compensatory

relief under sub-s. (1A) can be applied for and granted only

if a proceeding is instituted or has been instituted under

or for an offence against a provision of Pt VI other than s.

87 in respect of conduct engaged in in contravention of Pt

V. Thus sub-s. (1) provides for the discretionary granting

of compensatory relief in favour of parties to such

proceedings and sub-s. (1A) provides for the discretionary

granting of compensatory relief in favour of persons who may

not be parties to such proceedings but who make applications

in such proceedings. In either case the power to grant

relief under s. 87 is dependent on the institution of

proceedings under a provision of Pt VI other than s. 87."

35. The Court also said (p 546) that, although s.87 contained no time limitation, the proceeding on which the power to grant relief under s.87 depended would be barred if it were instituted outside the time, if any, limited for instituting that proceeding.

36. The decision of the High Court in Sent was modified by amendments made to the Trade Practices Act by the Statute Law (Miscellaneous Provisions) Act (No.2) 1986; see Schedule 1. The amendments inserted a new subsec. (1C) into the Act. This provided that an application might be made under subsec. (1A) of s.87 in relation to a contravention of Part V notwithstanding that a proceeding had not been instituted under Part V1 in relation to that contravention. A new subsec. (1CA) referred to in the earlier judgment provided that an application under subsec. (1A) might be commenced (omitting contraventions giving rise to causes of action under s.52A) at any time within three years after the day on which the cause of action accrued.

37. Subsection 87(1A) was first inserted into the Act in 1977 but it has been the subject of amendment on a number of occasions thereafter, most recently in 1986. It empowers the Court, on the application of a person who has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of a provision of Part V of the Act, to make such order or orders as it thinks appropriate including orders mentioned in subsec. (2) of the section, if the Court considers that the order or orders will compensate the applicant for relief in whole or in part for his loss or damage or will prevent or reduce that loss or damage.

38. In Keen Mar Corporation Pty. Limited v. Labrador Park Shopping Centre Pty. Limited (1988) ATPR Case 40-853 Pincus J dealt with a case which arose prior to the 1986 amendments to the Act to which I have referred. He decided that, if the claim for the amount of loss or damage was barred by subsec. 82(2) of the Act, a claim made for the same loss and damage under s.87 was also barred notwithstanding that at that time there was no limitation period provided for in s.87. He thought that this conclusion followed as a result of the High Court's decision in the Sent case.

39. I have decided in the earlier judgment that the applicants in this case, on the assumptions that were made, suffered some damage in September 1985 with the consequence that their causes of action both for negligence and breaches of s.52 of the Trade Practices Act arose then. As the Act then stood the claim made by the applicants pursuant to s.87 could not have been maintained in the absence of the claim made by them under s.82. In the view I take of the matter their claim under s.82 is time barred and it must follow that their claim under s.87 whether based on subsec. (1) or on subsec. (1A) is also time barred.

40. Counsel for the applicants sought to argue that the decision of Pincus J in Keen Mar was distinguishable because it dealt only with a money claim and not with a claim for the variation of a mortgage which is the claim made here. But I do not consider that the result in a case such as this could be any different from that arrived at in a case such as Keen Mar. At the relevant time no relief under s.87 could be claimed unless relief were also claimed under another provision of Part V1 of the Act such as s.82.

41. In the course of argument there was reference to the limitation period provided for in subsec. 87 (1CA) but, in the view I take of the matter, that can have no relevance. That subsection was inserted into the Act in 1986 along with the new subsec. (1C) which for the first time empowered applicants to seek relief under s.87 notwithstanding that no claim for relief was made under any other provision. Subsections (1C) and (1CA) are procedural in character but they affect substantive rights. In my opinion they are to be likened to the provision considered by the High Court in Maxwell v. Murphy (1957) 96 CLR261 with the consequence that they do not apply to causes of action which came into existence prior to the coming into force of the subsections in 1986. Furthermore, subsec. (1CA) is consequential upon subsec. (1C) and applies to limit time in respect of cases brought under that subsection. Upon the basis that the causes of action in the present case arose in 1985, neither subsection has any application and the position is governed by the provisions of the Act as they were before the two subsections became part of the Act.

42. For the foregoing reasons I reject the submission based on s.87 made on behalf of the applicants with the consequence that my conclusions are as stated in the earlier judgment.

Limitation Act 1969(NSW)

Re Magman International Pty Limited; Michael Brian Shirley; and Anirama Pty Limited v Westpac Banking Corporation [1991] FCA 41; 100 ALR 575

At a glance

Court

Decision date

Before

Source

Judgment (60 paragraphs)

Re Magman International Pty Limited; Michael Brian Shirley; and Anirama Pty Limited v Westpac Banking Corporation [1991] FCA 41; 100 ALR 575 (20 February 1991)

Parties

Legislation Cited (6)

Cases Cited (4)