Lawler v L.E. Stewart Invest (Banksia) Pty Limited [1995] FCA 1183

1D

JUDGMENT No. mIty seccessseees #H. COURT U

wW_S S TRY No. NG 61 of 1995

BETWEEN: DENISE LA Ss Applicants

AND: A Ss INV

(BANKSTIA) PTY LIMITED & ORS Respondents REGISTRY 4 APRIL 1995 S_ FOR JU

OC :

This is a motion by the respondents for an order that the proceeding be removed to the District Court of New South Wales pursuant to s. 86A of the Trade Practices Act 1974; or in the alternative that the proceedings be cross-vested to either the Supreme Court of New South Wales (pursuant to the provision of the Jurisdiction of Courts (Cross-Vesting) Act 1987) or, as the motion has been treated though not expressed to be cross-— vested, to the District Court of New South Wales (pursuant to

s. 10 of the Jurisdiction of Courts (Cross-Vesting) Act 1987).

The motion is opposed by the applicants. In the course of debate the following important point has arisen. The application seeks damages against the respondents pursuant to 8. 84 of the Trade Practices Act, and s. 68 of the Fair Trading Act 1987 (NSW) (the equivalent NSW section). If

damages were the only relief sought the matter would be one

which could be heard by the District Court of New South Wales within its monetary limit in the assessment of damages. But the application also seeks, in order 3, a recision of certain contracts, and in order 4, a repayment of the moneys said to

be due under those contracts.

The statement of claim which has been filed by the applicants pleads the customary matters that lead to a case for damages under s. 82 of the Trade Practices Act and the equivalent under the Fair Trading Act (NSW) but it also pleads, in paragraphs 17 to 20, a case based on the recision of the relevant agreements by the applicants. There is a certain lack of comity between the application and the statement of claim, but reading as best one can at this stage of the case it does seem that the applicants are asserting a case for a recision of the relevant agreements and for the