Adamson & Anor v The ANI Corporation Ltd, (trading as Capital Motors) [1987] FCA 485

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TUBQMENT NoA8S nena

LIMITED DILSTRIBUTLON CATCHWORDS

Trade Practices Act, s.52 - Practice & Procedure - Application to strike out - Limitation period under s.82.

Trade Practices Act 1974, s.52

ADAMSON & ANOR. -V- THE ANI CORPORATION LIMITED trading as CAPITOL MOTORS

NSW G. 136 of 1987

Burchett J. Sydney 7 September 1987

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IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY No. G.136 of 1987

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GENERAL DIVISION

BETWEEN: ROBERT ADAMSON First Applicant AND:

DOROTHY HEWETT LILLEY

Second Applicant z =]

THE ANI CORPORATION LIMITED trading as CAPITOL MOTORS

Respondent

REASONS FOR JUDGMENT

BURCHETT J.

This is a motion on notice to strike out a statement of claim. Originally, the applicants sued three respondents, but on 22 May 1987 I ordered that the claims against two of them be struck out. The motion was then argued on behalf of the

respondent The ANI Corporation Limited.

The statement of claim 1s not very precisely pleaded, but the respondent's motion was argued only upon the grounds which will appear. The applicants allege that the respondent, in

the course of its business as a motor dealer, displayed in its

2.

showroom a second hand motor vehicle with a placard indicating that the vehicle was for sale at a particular price. The applicants negotiated to purchase the vehicle for $15,990-00, but instead of actually doing so, they agreed with the respondent that the transaction would be completed by a lease finance arrangement under which the vehicle would be transferred to Australian Guarantee Corporation Limited by the respondent and leased from that company by the applicants. The transaction was carried out and the applicants obtained possession of the motor car. These events occurred in May 1983, but in March 1987, when the lease was about to expire and the property in the motor car was about to be obtained by the applicants, the vehicle was seized by the police. The applicants claim that it had been stolen prior to their acquisition of it, and that the respondent did not have property in it and was not entitled to sell it at any material time. They claim (inter alia) damages for breach of s.52 of the Trade Practices Act 1974 and for breach of contract. Both of these claims are based on the proposition that the display of the motor car for sale in the respondent's showroom, and the negotiations entered into for its sale by a salesman of the respondent, involved an implied representation that the motor car was the property of the respondent, or that the respondent was entitled to sell it and in a position to confer a good title to it pursuant to such an arrangement as that in fact entered