Not so cool-as-a-(sea)cucumber: Misrepresentation claim against respondent Council statute-barred Not so cool-as-a-(sea)cucumber: Misrepresentation claim against respondent Council statute-barred

Not so cool-as-a-(sea)cucumber: Misrepresentation claim against respondent Council statute-barred

26 November 2018 | Procedure

The appellant operated a commercial sea cucumber hatchery. The appellant commenced proceedings against the respondent Council in relation to alleged misrepresentations it made regarding a new aquaculture precinct, upon which the appellant alleged it relied in agreeing to lease land in the precinct. Upon application from the respondent, the appellant’s statement of claim was struck out and judgment entered for the respondent due to the claim being statute barred.

In Issue

Whether the primary judge erred in striking out the appellant’s statement of claim.

The Background

The appellant and respondent entered into a Development Agreement in October 2006. The Agreement was for the appellant to construct its processing facility at the respondent’s proposed aquaculture precinct. The appellant alleged the respondent made three different representations to the appellant between October 2004 and February/March 2010, relating to development works at the precinct and the construction of necessary utilities. The appellant alleged that the respondent failed to carry out the development works, in breach of its obligation under the Development Agreement, and that the representations were misleading and deceptive. The appellant filed proceedings against the respondent on 8 June 2016.  The appellant was given a number of opportunities to re-plead its case.

The Decision at First Instance

Upon application by the respondent, the appellant’s fifth statement of claim, filed on 1 December 2017, was struck out and the respondent was given judgment in the proceeding, for the reason that any discernible cause of action was statute barred given that the alleged misrepresentations were made over 6 years prior to the filing of the proceedings.

The Issues on Appeal

Whether, amongst the causes of action in the appellant’s fifth statement of claim, there was one which had been pleaded originally and within the relevant limitation period.

Whether that same cause of action, if not originally pleaded, arose out of the same facts or substantially the same facts as an existing cause of action, to fall within r 376(4) of the Uniform Civil Procedure Rules 1999 (Qld).

The Decision on Appeal

The Court of Appeal found that there was no pleading by the appellant of anything being done in reliance on what was said by the respondent.  It was not until the ultimate pleading that the appellant relied upon the third representations (allegedly made in early 2010) as an element of a cause of action. The Court of Appeal was satisfied that this was a new case and not a particularisation of a cause of action previously pleaded. The appellant’s case based upon the third representations contained substantially new facts, and those facts did not plead a viable cause of action. Therefore the second argument based upon r 376(4) could not be accepted. The claim was statue barred and the appeal was dismissed with costs. 

Implications for you

This case is another reminder to ensure proceedings are filed within the limitation period. Plaintiffs/appellants will be unable to rely on their pleaded causes of action where those causes of action are outside the relevant limitation period, or where they arise out of the same facts or substantially the same facts as a statute barred cause of action.

Bluefin Seafoods Pty Ltd v Fraser Coast Regional Council [2018] QCA 300

Daniel McCormack

Daniel McCormack

Special Counsel

Emily Kelly

Emily Kelly

Graduate