e 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 ee IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G.136 of 1987 ie ee ee eed 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 into. The motion to strike out the statement of claim was supported on two grounds: firstly, that the facts pleaded could not give rise to the implied representation alleged; and secondly x terre teers 3. that the claim under the Trade Practices Act was barred by virtue of s.82(2) of the Act which requires an action under (inter alia) Part V to be commenced "within 3 years after the date on which the cause of action accrued." As to the first argument, I can see no substance in it at all. I think it would clearly be open to a Judge hearing this matter to conclude from the display of the motor car as for sale in the respondent's showroom, and the subsequent negotiations in which a sale price was fixed, that the representations alleged were impliedly made; indeed I have some difficulty in understanding how a contrary view could be entertained. That display for sale at a price at least infers some such representation seems to me to be confirmed by the analysis of the problems involved from the point of view of the theory of offer and acceptance in contract law in Fisher v. Belli [1961] 1 Q.B. 394. The respondent's second ground encounters the obstacle that it has been expressly held on more than one occasion that it is not appropriate that a statement of claim be struck out summarily as disclosing no cause of action because the parties sued may have a defence under a relevant limitation statute: James v. Australia & New Zealand Banking Group Ltd (1985) 7 A.T.P.R. 46,574; Geary Nominees Pty Ltd v. Pargas Nominees Pty Ltd (1986) 8 A.T.P.R. 47,898; Elna Australia Pty Ltd v. International Computers (Australia) Pty Ltd (Gummow Jd., unreported, 16 July 1987). 4. At the hearing, it will be necessary to determine when time commenced to run for the purposes of s.82, and it will then be pertinent to consider the cases cited by Gummow J. in the decision last referred to and also the dictum of Spender J. in Ikin v. Same & Lamborghini Tractors of Australia Pty Ltd (1985) 7 A.T.P.R. 46,812 at 46,823: "In my opinion, the entitlement to damage under sec.82 of the Act does not arise at a stage where there is a potentiality of loss: the statutory cause of action arises only when the damage occurs." But even if the applicants' case under the Trade Practices Act 15s ultimately held to be barred, there can be no doubt in the light of the authorities to which I have referred that it could not be stigmatized as a case so insubstantial as not to give rise to a federal matter. Therefore, under the accrued jurisdiction, the applicants might still succeed on their claim in contract. (See Dorotea Pty Ltd v. Vancleve Pty Ltd (Northrop, Jackson & Gummow JJ., unreported, 15 April 1987).) On the face of the matter, that claim appears to be strong. For these reasons, the motion must be dismissed with costs. I direct that the Registrar list the suit on a convenient Wednesday in November in the Part V list for further directions. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. Leo tile Associate Dated: 7 September, 1987. ao ra — mw eee = me emecrm- 7 eee qe pron aeee wae ee ee ee eee cea mee Counsel for the Applicants: Solicitors for the Applicants: Solicitors for the Respondent: Date of hearing: Mr. C.A. Evatt Teakle, Ormsby Associates Mallesons Stephen Jagues 22 May 1987 wae rene se te ee er