The plaintiff, Reid International Pty Ltd
(Reid), purchased a commercial premises in South
Perth in June 2004 (Property). The Property was
advertised for sale with 6 car bays. Reid was unaware, both before
and for a considerable time after the sale, that the Property
really only came with 4 car bays. The additional two bays belonged
to a neighbouring unit. This was discovered in March 2012 when the
owner of the neighbouring unit placed 2 disused cars in the bays to
prevent Reid from using them.
The defendants to the action were Ron Farris Real Estate Pty Ltd
(RFRE), the real estate agent engaged by the
vendors to sell the Property, and Christopher Farris, the sales
representative for RFRE. Reid commenced proceedings against the
defendants on 24 March 2015, alleging that the defendants made
misleading and deceptive representations in contravention of the
Australian Consumer Law and seeking damages.
The defendants applied to have the action summarily dismissed on
the basis that the action was commenced outside of the limitation
period, or alternatively, on the basis that the delays between the
sale of the Property and the commencement of the action were such
that the continuation of the action would amount to an abuse of the
process of the court.
The defendants argued that the loss and damage occurred when
Reid acquired the Property. On that basis, the defendants said that
the 6 year limitation period started running in June 2004, and
therefore Reid had commenced the action outside of the limitation
Reid argued that the loss and damage was contingent, and only
crystallised in March 2012 when the owner of the neighbouring
property placed a disused car in each of the two bays. Therefore,
it said that the action was commenced within the 6 year limitation
In light of the court's general reluctance to resolve
limitation issues in interlocutory proceedings, Acting Master
Gething did not make any finding in respect of the issue, rather he
dismissed the action on the basis that it was an abuse of
Abuse of process
The court has the inherent power to dismiss or stay an action
notwithstanding that is was regularly commenced and the plaintiff
has complied with all applicable rules and orders of the court.
In deciding to dismiss the action on the basis that the delays
between the sale of the Property and the commencement of the action
were such that the continuation of the action would amount to an
abuse of the process of the court, Acting Master Gething
the length of the delay;
the explanation for the delay;
the hardship to the plaintiff if the action was dismissed and
the cause of action left statute-barred;
the prejudice to the defendant if the action was allowed to
proceed notwithstanding the delay; and
the conduct of the defendant in the litigation.
Acting Master Gething noted that Reid provided no explanation
for the approximate 3 year delay between realising that the
Property only came with 4 parking bays and commencing proceedings
against the defendants.
In relation to prejudice to the plaintiff, Acting Master Gething
noted that even if the action was dismissed, Reid would still be
able to pursue the action it had commenced against the owner of the
neighbouring unit for a proprietary interest in the parking
In relation to prejudice to the defendants, Acting Master
Gething put considerable weight on evidence that the first
defendant's files and records related to the sale of the
Property had been destroyed, and that the second defendant's
ability to recall the events related to the sale of the Property
had diminished over time. He considered that, in all the
circumstances, it would be oppressive to the defendants to allow
the action to be pursued.
There is yet to be a published decision in relation to
A party who discovers at a later time that it may have a cause
of action related to a transaction should act to protect its
interests as soon as possible. Failure to do so exposes a party to
the possibility that the claim will be dismissed, even though the
proceedings have been commenced within the relevant limitation
period and the plaintiff has complied with all of the rules and
directions of the court.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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