Fenech, Georhe & anor v Robert Sterling [1984] FCA 344

TRADE PRACTICES -

misleading or deceptive conduct - action for

recovery of loss or damage suffered as result of contravention -

iamitation period.

Trade Practices Act 1974 55.80, 82 and 87

GEORGE FENECH and JULIAN FENECH v ROBERT STERLING

No. G 344 of 1983

Woodward, St. John and Spender JJ.

Sydney 29 October 1984

IN_ THE FEDERAL COURT OF AUSTRALTA ) )

NEW SOUTH WALES DISTRICT REGISTRY ) No. G 344 of 1983 ) GENERAL DIVISION )

BETWEEN:

GEORGE FENECH and JULIAN FENECH Appellants and

ROBERT STERLING Respondent ORDER

JUDGES MAKING ORDER : Woodward, St. John and Spender Jg. DATE OF ORDER : 29 October 13984

WHERE MADE : Sydney

THE COURT ORDERS THAT:

1. The appeal be upheld and the decision of Davies J. sat aside.

2. The matter be remitted to Davies J. to be dealt . with in accordance with these reasons for tudgmenk.

3. The respondent pay the appellants' taxed costs of the appeal.

IN THE FEDERAL COURT OF AUSTRALIA }

. ) so WALES DISTRIC STRY } No. G 344 of 1983

)

)

GENERAL DIVISION

GEORGE FENECH and JULIAN FENECH Appellants and ROBERT STERLING Respondent

JUDGES: Woodward. St. John and Spender JJ.

DATE: 29 October 1984

REASONS FOR JUDGMENT

This appeal raises the short point whether the Particular application made under s.87(1A) of the Trade Practices Act 1974 ('the Act') is subject toa three-year period of limitations. The facts are set out fully inthe judgment of Davies J. (reported in (1983) 51 ALR 205), who heard the application for orders under 5.87(1A) and dismissed it on the ground that the period of limitation did apply and had expired before the application was filed. His Honour also made other

findinas, referred to below, which are not the subject of appeal.

The facts of the case which are relevant for present purposes may be summarized as follows. The appellants, along with a number of other people, were induced by a series of false representations to invest in a large land development project near Ballarat in Victoria. This occurred in 1975. The investors believed they were getting a haif-acre piece of land for themselves, on which one or two houses could be erected, and which would appreciate rapidly in value as the project developed. Pursuant to the contract which the appellants signed on 12 November 1975, they paid a deposit of $650 on the same day and the balance of purchase money, namely $3000, on 21 November 1975. In fact the scheme was little better than a sham, because the company purporting to sell that land, Robert Sterling Pty. Ltd., did not own it, there was no planning permission to use it for residential purposes, no sub-division had been approved, and all the appellants received for their money was a document headed "Memorandum of Title" which proclaimed that they owned "as tenants common, 4/80ths in the whole of the land" which was then imprecisely described by reference to the contract of sale, which in turn spoke only of "20 acres or thereabouts being part of" the