Case: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 ; (2006) 70 IPR 146
Outcome: cited
There have been varied opinions as to whether that basis can be applied by Australian courts without the High Court qualifying Poulton 89 CLR 540. As it happens, most negative opinions have been expressed by judges of this Court, eg Allstate Life Insurance Company v Australia and New Zealand Banking Group Ltd [1994] FCA 814 ; National Mutual Property Services (Aust) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514 ; Chapman v Luminis Pty Ltd (No 4) [2001] FCA 1106 ; (2001) 123 FCR 62 ; Deloitte Touche Tohmatsu v Cridlands Pty Ltd [2003] FCA 1413 ; (2003) 134 FCR 474 ; and Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 ; (2006) 70 IPR 146. A number of those and other authorities are analysed by McDougall J, who took the wider view, in Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2004] NSWSC 1041 ; (2004) 220 ALR 267. 37 The statutory claims remain to be considered. Counsel for the plaintiffs ultimately conceded that he could find no support for assignability of these causes of action. That is correct. That relieves me from deciding the point. I should say that the concession would follow, directly or indirectly, from a long line of authority in this Court that is against assignment of a claim for damages pursuant to s 82 of the Trade Practices Act 1974 (Cth) commencing with Park v Allied Mortgages Corp Ltd (1993) ATPR (Digest) 46-105. Those cases were recently reviewed and followed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 ; (2006) 70 IPR 146 at [50] [58] in relation to claims made pursuant to s 82 for breaches of s 52 and s 51AC of the Trade Practices Act . 38 It follows that the purported assignment of each cause of action is ineffective. I should add that if the assignment is ineffective, it is so for all purposes. It follows that Tosich retains the causes of action regardless of the deed. That transaction has no relevant impact upon his claims. There is no evidence as to the arrangements between Tosich and All Saints in the eventuality of the assignment being ineffective. Such evidence would be as irrelevant to this case as would any other side arrangements between parties such as insurance. 39 Aon directly pleads limitation defences. The defendants adopt a "coat-tails" approach. Aon has taken the running on the issue. The starting point is that Tosich was reintroduced to the proceeding as a plaintiff by amendment on 18 May 2007. The next step is that 18 May 2007 is taken to be the date of the commencement of the proceeding by Tosich by virtue of O 6 r 11(3) of the Federal Court Rules . It is then contended that all relevant causes of action accrued on or about 6 November 2000 when the money was paid by Tosich. The last step is that each cause of action is barred, either by particular limitations in the Corporations Law or by the Limitation Act 1969 (NSW), applicable by virtue of s 79 of the Judiciary Act 1903 (Cth). There is little to recommend such a result. It would be a triumph of form over substance. Tosich commenced the proceeding on 27 November 2003, well within all potential limitation periods. All Saints was substituted for Tosich as plaintiff by order of the Court on 19 April 2006 claiming to be an assignee of the Tosich causes of action. The substantive causes of action remained the same at all times. Thus, the defendants faced the same causes of action at all times. The cross-defendants faced the same cross-claims at all times. However, lack of merit alone is not an answer to the point.