Case: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191
Outcome: cited
In my view the applicant lacks standing in respect of this claim. Any claims in respect of the matters pleaded are vested in the trustee in bankruptcy. My reasons are as follows: a. Sections 51AA and 52 Trade Practices Act apply to conduct of corporations. The only conduct referred to in this Count is that of the third respondent, Mr Hare who is obviously an individual. b. The statement of claim does not, in respect of ss 51AA or 52 , draw a nexus between the alleged conduct of Mr Hare and the corporate respondents. Unlike in relation to the claim that the applicant was harassed by Mr Hare acting as agent for all respondents in breach of s 60 , no responsibility for alleged unconscionable conduct or misleading or deceptive behaviour by Mr Hare is attributed to the corporate respondents. Accordingly, there is no evidence that the corporate respondents acted unconscionably towards the applicant within the meaning of s 51AA in terms of this Count. Similarly, to the extent that the applicant was misled by Mr Hare, this appears to be conduct for which the other respondents were not responsible (note Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 per Gibbs CJ at 199 and Mason J at 211). c. Although the applicant claims that the third respondent, as agent for all of the respondents, coerced him contrary to s 60 , the conduct in breach of s 60 is neither pleaded nor particularised. It is not possible to ascertain from the pleading how the respondents allegedly acted in breach of s 60 other than claims by the applicant that he was misled. This does not in my view in any way entail harassment or coercion. d. Similarly to Count 2 the claim of the applicant again is in substance in relation to financial injury. In a somewhat telling statement, the applicant in par 260 claims 'relief from the payment of principal and interest and costs claimed by the respondents due to the deception and unconscionable conduct of the respondents'. Again, this is illustrative of the fact that the applicant seems to fail to appreciate that he is now a bankrupt, and any payments of this nature are now the concern of his trustee in bankruptcy. e. Although the applicant claims compensation for personal injury in par 261, the nature of the personal injury is not particularised, nor is a nexus drawn between the alleged conduct of the respondents and any injury he has suffered. I refer to comments in this regard I made earlier in this judgment in relation to Count 1. 43 In my view this Count is embarrassing as: a. There is nothing to suggest that the person identified in the count was a witness in any matter before any court. b. There is nothing to suggest that the person identified in the count had anything of relevance to say in respect of any issues in contention between the applicant and the respondents. c. The 'court case' in par 271 is not identified. d. No personal injury or wrong suffered by the applicant is identified and accordingly it is impossible to comprehend the standing of the applicant in respect of this matter. 44 In my view the material in this Count does not give rise to any cause of action, including any cause of action in respect of which the applicant has standing. In relation to particularisation of damage, I refer to comments in this regard I made earlier in this judgment in relation to Count 1. 45 Similarly to Count 2, although the applicant claims that he suffered 'personal injury' in respect of this conduct of the respondents, the substance of this complaint is that he suffered financial injury in respect of transactions involving the Charles Street factory development site 'as a result of being the victim of fraud and deception' (par 295). Wrongs identified by the applicant in this Count include that contrary to promises and any authority 'the Trustees' sold the site (par 283); the respondents deprived the applicant of profit and his interest in the property (pars 284, 286-290); various deceptions prevented the applicant paying debts to the respondents (pars 284 and 292); the fifth and sixth respondents sold the property for $1.477 million; and had the respondents not deceived the applicant he would not have entered into the agreement (par 293). In my view the applicant lacks standing in respect of this claim because: a. Although the applicant claims that the respondents breached s 60 Trade Practices Act , conduct in breach of s 60 is not articulated. b. To the extent that a claim exists under ss 51AA and 52 Trade Practices Act in respect of these facts, it clearly belongs with the applicant's trustee in bankruptcy. c. No personal injury or wrong is articulated, no nexus is identified between the alleged conduct and personal injury or wrong suffered by the applicant, and I refer to comments I made earlier in respect of Count 1 in this regard. 46 Similarly to Count 2, although the applicant claims that he suffered 'personal injury' in respect of this conduct of the respondents, the substance of this complaint is that he suffered financial injury in respect of transactions involving the Robert Street house subdivision site 'as a result of being defrauded, tricked and the victim of crime' (par 315). Claims with respect to financial damage have clearly vested in the applicant's trustee in bankruptcy.