Akmoline Pty Ltd v H.R.C. Servit Pty Ltd & Ors [1987] FCA 715

JUDGMENT No. M157 BT.

>a CATCHWORDS Practice and procedure - action for breaches of provisions

contained in Part V of the Trade Practices Act 1974 against personal respondents - failure to plead that such respondents were "involved in a contravention" of the Part - whether leave to amend application and statement of claim should be granted in the

light of the fact that the causes of action were statute-barred.

Trade Practices Act 1974, ss. 52, 53, 75B and 82

AKMOLINE PTY LI v. H.R.C. SERVIT PTY LIMITED and ORS.

No. G81 of 1987

Coram: Sheppard J. Place: Sydney Date : 27 November 1987

IN THE FRDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY No. G66 of 1987

— ewe we

GENERAL DIVISION

BETWEEN: AKMOLINE PTY LIMITED Applicant AND:

H.R.C. SERVIT PTY LIMITED and ORS,

Respondents

CORAM: SHEPPARD J. DATE : 27 NOVEMBER 1987

REASONS FOR JUDGMENT

HIS HONOUR: This is a notice of motion seeking an order that the whole of the amended statement of claim as against the fourth respondent, Mr. Kenny, be struck out. The principal application is one in which the applicant sues three companies and four natural persons, including Mr. Kenny. The amended application filed on 13 August 1985 claims the following, amongst other

velief:-

"L. A declaration that the respondents and each of them have contravened Sections 52, 53(a), (aa), (c) and (f) of the Trade Practices Act 1974 as amended.

2. Damages for breach or breaches of the aforesaid provisions of the Trade Practices Act 1974 as amended and/or damages for breach of contract and/or damages for

misrepresentation".

The causes of action with which I am concerned in this motion are

those arising under the Trade Practices Act 1974.

The amended statement of claim is somewhat lengthy, and toa degree complex, but for present purposes it is enough to refer to paragraphs 5, 7, 7A and 8. Paragraph 5 alleges that by contract made on or about 8 June 1983 between the applicant on the one part and the first and/or second and/or sixth and/or seventh respondents on the other part, the said respondents agreed, inter alia, to sell and/or supply to the applicant a computer accounting and management system described as the "H.R.C. Hospitality Management Package" comprising computer software and hardware management and accounting expertise and point of sale terminals for the highly efficient operation and management of the restaurants known as the Argyle Tavern, Lowenbrau Keller, The Garrison Restaurant and Bunratty Castle situated at 18 Argyle Street, the Rocks, Sydney and known as the Argyle Tavern complex.