Lean v Tumut River Orchard Management Ltd [2003] FCA 269

FEDERAL COURT OF AUSTRALIA

Lean v Tumut River Orchard Management Ltd [2003] FCA 269

PRACTICE AND PROCEDURE – whether application should be dismissed or statement of claim should be struck out as failing to disclose any cause of action – whether pleading defective – whether reasonably arguable that a claim for damages based on misleading or deceptive conduct gives rise to an equitable set-off in respect of moneys owing under contract – whether reasonably arguable that an assignee of such contractual entitlements takes its rights subject to such equitable set-off – applicant's claims reasonably arguable, but part of statement of claim struck out with leave to re-plead – alternative application to transfer proceedings to the New South Wales Registry of the Federal Court – relevant factors – proceedings retained in Western Australia for time being.

Trade Practices Act 1974 (Cth), s 52, 82, 87 National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 applied Phillip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 applied Fencott v Muller (1983) 152 CLR 570 applied Re Wakim; Ex parte McNally (1999) 198 CLR 511 applied Tomlinson v Cut Price Deli Pty Ltd (1992) 38 FCR 490 referred to Ferro Corporation (Aust) Pty Ltd v International Pools Pty Ltd (1993) 30 NSWLR 539 referred to Re Kleiss; Ex parte Kleiss v Capt'n Snooze Pty Ltd (1996) 61 FCR 436 referred to AWA Ltd v Exicom Australia Pty Ltd (1990) 19 NSWLR 705 referred to AMP Society v Specialist Funding Consultants Pty Ltd (1991) 24 NSWLR 326 referred to Murphy v Zamonex Pty Ltd (1993) 31 NSWLR 439 referred to Doherty v Murphy [1996] 2 VR 553 referred to Ghirardi v Allregal Corp Pty Ltd [2001] WASCA 366 referred to Oraka Pty Ltd v Leda Holdings Ltd (1997) ATPR 41-558 referred to Krambousanos v Jedda Investments Pty Ltd [1996] FCA 144 referred to Young v Kitchin (1878) 3 Ex D 127 referred to Sun Candies Pty Ltd v Polites [1939] VLR 132 referred to Government of Newfoundland v Newfoundland Railway Co [1888] 13 App Cas 199 referred to Lawrence v Hayes [1927] 2 KB 111 referred to Jedda Investments Pty Ltd v Krambousanos (1997) 72 FCR 138 referred to Southern Textile Converters Pty Ltd v Stehar Knitting Mills Pty Ltd [1979] 1 NSWLR 692 referred to Mitchell v Purnell Motors Pty Ltd [1961] NSWR 165 referred to General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 applied