Murphy v Overton Investments Pty Limited [2002] FCAFC 129

FEDERAL COURT OF AUSTRALIA

Murphy v Overton Investments Pty Limited [2002] FCAFC 129 CONTRACT – Contracts Review Act 1980 (NSW) – unjust contracts – lease of unit in retirement village – representation that figures on which weekly maintenance fee was calculated covered all expenditure incurred in operating the village – representation false – primary Judge finds that lease affected by "procedural injustice" – whether primary Judge erred in concluding that the unjust consequences of the procedural injustice could be avoided by giving the lessees a reasonable opportunity to dispose of their lease – whether primary Judge erred in finding that the lease was not substantively unjust in permitting the village manager to recoup legal and accounting fees. ESTOPPEL - cross-claim by manager for recovery of maintenance fees in the Supreme Court of New South Wales – defences to cross-claim rely on Contracts Review Act - judgment entered against lessees but contemplates fresh applications in Federal Court - whether Supreme Court judgment precludes reliance on Contracts Review Act claim in Federal Court. Trade Practices Act 1974 (Cth), s 82 Contracts Review Act 1980 (NSW), ss 4(1), 7(1), 8, 9, 12, 16 Federal Court of Australia Act 1976 (Cth), s 27, Pt IVA Retirement Villages Act 1999 (NSW) Federal Court Rules, O 52 r 22 Supreme Court Rules, Pt 72 Murphy v Overton Investments Pty Ltd [2000] FCA 801, referred to. Overton Investments Pty Ltd v Murphy [2001] NSWCA 183, referred to. Re Wakim; Ex parte McNally (1999) 198 CLR 511, cited. Murphy v Overton Investments Pty Ltd (2001) 112 FCR 182, referred to. Australian Securities and Investment Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559, cited. Murphy v Overton Investments Pty Ltd [2001] FCA 1725, referred to. Murphy v Overton Investments Pty Ltd, unreported, 3 September 1998, referred to. Murphy v Overton Investments Pty Ltd, unreported, 10 December 1998, referred to. Murphy v Overton Investments Pty Ltd, unreported, 17 August 1999, referred to. Murphy v Overton Investments Pty Ltd [1999] FCA 1123, referred to. Blair v Curran (1939) 62 CLR 464, cited. Baltic Shipping Co v Merchant "Mikhail Lermontov" (1994) 36 NSWLR 361, cited. Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421, cited. Allesch v Maunz (2000) 203 CLR 172, followed. Warren v Coombes (1979) 142 CLR 531, cited. Abalos v Australian Postal Commission (1990) 171 CLR 167, cited. State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588, cited. Cabal v United Mexican States (2001) 108 FCR 311, followed. Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, followed. West v AGC (Advances) Ltd (1986) 5 NSWLR 610, cited. Elders Rural Finance Ltd v Smith (1996) 41 NSWLR 296, cited. Antonovic v Volker (1986) 7 NSWLR 151, cited. Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256, cited. Lovell v Lovell (1950) 81 CLR 513, cited. Gronow v Gronow (1980) 144 CLR 513, cited. Norbis v Norbis (1986) 161 CLR 513, cited. Esanda Finance Corporation Ltd v Tong (1997) 41 NSWLR 482, cited. JOHN JAMES MURPHY & ANOR v OVERTON INVESTMENTS PTY LIMITED N 1664 OF 2001 LINDGREN, SACKVILLE & STONE JJ SYDNEY 16 MAY 2002