COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.(1)

CWDS
  Limitation of Actions  -  foreign currency loan  -  applicants giving
security by way of mortgage for borrowing  -  whether applicants first
suffered loss on entry into mortgages  -  alternatively whether damage first
suffered on the earliest rollover date after the decline in value of the
Australian dollar.
  Trade Practices Act 1974 ss.52,82,87
  Limitation Act 1969 (N.S.W.)s.14

HRNG
SYDNEY
#DATE 20:2:1991
  Counsel for the Applicants:        Mr L.G. Foster
  Solicitors for the Applicants:     Hannaford Smith (Neutral Bay NSW)
  Counsel for the Respondent:        Mr S.P. Charles QC and Mr M.A. Pembroke
  Solicitors for the Respondent:     Allen Allen and Hemsley

ORDER
  Counsel bring in short minutes of declarations and orders to give effect to
the Court's reasons for judgment and directions for the further prosecution of
the application.
  The matter be stood over to a date to be fixed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.

JUDGE1
  When this matter came into the list on 13 December last there was for
hearing a notice of motion seeking the striking out of the proceedings or, in
the alternative, the striking out of paragraphs 1 - 12 inclusive of the
statement of claim.  A problem with applications to strike out pleadings is
that the applicant must clearly demonstrate the absence of a cause of action
or ground of defence;  if he does not, the application must fail even though
it may eventually be found that the point upon which he relied was good.  See
Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel
Industries Inc. v. Commissioner for Railways (N.S.W.)(1964) 112 CLR 125.
After some discussion about this matter counsel for the respondent, whose
notice of motion it was, filed a defence in which the point relied upon was
taken as a point of law.  Thereupon, I ordered that the question raised by the
point of law be determined prior to the determination of any other question in
the case.
2.  The action is one in which the applicants sue the respondent for damages
for causes of action in negligence and for breach of s.52 of the Trade
Practices Act 1974.  Counsel were in agreement that, in relation to both
causes of action, damage was the gist of the action.
3.  The action is for negligent advice said to have been given and false
representations said to have been made in negotiations which led the first
applicant to borrow a substantial amount of money from the respondent in Swiss
francs.  The story is a familiar one in this Court. The value of the
Australian dollar depreciated against the Swiss franc with the consequence
that the transaction has resulted in at least the first applicant suffering
substantial loss and damage.
4.  Although there has been tendered a statement of agreed facts together with
some letters and other documents, the parties are not in agreement about the
detail of conversations had between representatives of the applicants and
officers of the respondent.  For present purposes, there is no need to resolve
the conflict of evidence which there is because, in relation to the point at
issue, the parties have agreed that I should accept the version of the facts
set out in the statement of claim.  It is the respondent's submission that, if
one does, one must reach the conclusion that the applicants' causes of action
are statute barred.
5.  The assumed facts of the matter may be summarised as follows.  On 15 March
1984 the respondent represented to the applicants that the Swiss franc was the
most stable foreign currency in which to borrow funds, that the rate of
exchange between the Swiss franc and the Australian dollar had been steady for
some time and that there was a small or negligible real risk of an adverse
movement of the rate of exchange between the Australian dollar and the Swiss
franc.  In or about June or July 1984 the respondent made further
representations to the applicants.  These included a representation that the
respondent had the capacity and expertise to, and would, "advise the
applicants on foreign currency borrowing and dealing".  The statement of claim
alleges that the applicants acted on the faith of these various
representations and also that they were false and misleading and were made
negligently.
6.  On the 14 August 1984 the respondent wrote to the second applicant in his
capacity as Managing Director of the first applicant informing him that the
respondent had approved an offshore loan to refinance the first applicant's
existing offshore facility and to provide additional working capital.  The
Australian equivalent of the amount of the loan was to be $700,000, the
borrower was to be the first applicant and the term of the loan was to be five
years from drawdown with rollovers each 90 or 180 days.  Repayment was to be
by one payment upon expiry of the term.  Interest was to be payable in arrears
on each rollover.  Security was to be provided by an equitable mortgage from
the first applicant, a mortgage of real estate by the third applicant, which
was the trustee of the second applicant's family trust, and a mortgage by the
second applicant over other real property.  The terms and conditions offered
by the respondent were accepted on 20 August 1984. On 28 August 1984 the
respondent wrote the directors of the first applicant a more detailed letter
setting out specifically the terms upon which the facility would be made
available.  It is unnecessary to refer to the detail of this letter.
7.  On 4 September 1984 there was a meeting of the directors of the first
applicant at which it was resolved that it agreed to borrow from the
respondent's Singapore branch the sum of $A700,000 upon the terms of the
respondent's letter dated 28 August 1984.  Also on 4 September 1984 the first
applicant wrote to the respondent informing it of the resolution.
8.  On 5 September 1984 the second applicant gave the respondent a registered
first mortgage over property in Woollahra, a Sydney suburb. On the same day
the third applicant gave the respondent a mortgage over property at Crows
Nest. The mortgage given by the third applicant was given in consideration of
accommodation made available by the respondent to the first applicant.  The
consideration given for the mortgage entered into by the second applicant was
also accommodation to be made available by the respondent to the first
applicant.  The mortgage given by the second applicant was apparently
discharged on 29 October 1985.
9.  On 6 September 1984 the first applicant did a number of things.  It paid
the respondent the sum of $3,500 being the amount of the establishment fee
charged by the respondent for the facility.  It drew down the loan from the
respondent.  The sum involved was CHF1,435,000 of which CHF943,445.91 was paid
at the first applicant's direction to Canada Imperial Bank of Commerce (Asia)
Limited.  The balance was credited to the first applicant's bank account.
Also on 6 September 1984 the first applicant gave to the respondent an
equitable mortgage over the whole of its assets and uncalled capital as
security for the loan.  The first applicant also undertook not to repay
shareholders' loans without the respondent's prior consent.
10.  Paragraph 12 of the Statement of Claim is as follows
      "As a result and in consequence of the said contraventions
      of the Trade Practices Act, (as amended), of the said
      breaches of duty and of the said warranty, the applicants
      acted as pleaded in paragraph 5 above and thereby suffered
      loss and damage when there were adverse movements in the
      rate of exchange between the Australian Dollar and the Swiss Franc."
Paragraph 5 was a paragraph in which it was alleged that the applicants
accepted the respondent's offer to lend the first applicant Swiss francs and
that the applicants gave the various mortgages to which I have referred.
11.  In its defence the respondent denied the making of the representations
relied upon by the applicant and the allegations made in a number of other
paragraphs including paragraph 12.  It is unnecessary to refer to the balance
of the defence except for paras. 8 and 9 which are as follows
   "8.   In further answer to the claims made in paragraphs 2 to 8
         and paragraph 12 of the Statement of Claim, Westpac says
         that those claims are statute barred by reason of the
         provisions of s.s. 82(2) and 87(1CA)(b) of the Trade
         Practices Act, (Cth) 1974.
   9.    In further answer to the claims made in paragraphs 9 to 12
         of the Statement of Claim, Westpac says that those claims
         are statute barred by reason of the provisions of s14 of the
         Limitation Act (NSW) 1969."
12.  Section 14 of the Limitation Act 1969(NSW) so far as it is material
provides, inter alia, a limitation period of six years running from the date
on which the cause of action first accrues to the plaintiff in a cause of
action founded on tort.  Subsection 82(2) of the Trade Practices Act provides
that an action under subsection 82(1) of that Act may be commenced at any time
within three years after the date on which the cause of action occurred.
Subsection 82(1) is the subsection which vests in persons such as the
applicants here rights to sue for damages for breach, inter alia, of s.52 of
the Trade Practices Act.  Subsection 87(1CA) imposes a similar limitation
period in respect of actions brought under s.87 of the Act.  The applicants
have claimed relief under that section.
13.  The loan was drawn down, as I have mentioned, on 6 September 1984.  The
respondent's letter of 28 August 1984 set out in section 3 provisions
concerning the payments of interest.  The interest period was to be six months
unless the first applicant should give notice prior to the commencement of an
interest period that the interest period was to be of three months duration.
Clause 5.02 of the letter provided that the first applicant might prepay the
loan in full on any interest payment date prior to the termination date by
giving thirty days prior notice.  It will be seen that the interest payment
dates were 6 March and 6 September of each of the five years of the period of
the loan.  It followed that rollover dates occurred on 6 March and 6 September
1985, 1986 and so on.
14.  The Australian dollar was floated towards the end of 1983. For the period
of twelve months or so that followed it maintained its value with the
consequence that when the first rollover date, 6 March 1985, arrived there was
no significant difference between the value which the Australian dollar had
had as regards the Swiss franc in September 1984 and its value six months
later.  Thereafter, however, the position changed.  The Australian dollar lost
ground steadily so that by the second rollover date on 6 September 1985 the
amount needed to repay the loan in Australian dollars was  substantially more
than $700,000. The position continued to worsen in succeeding months
particularly throughout 1986.
15.  These proceedings were commenced on 7 September 1990 more than six years
after the giving of the mortgages and the drawdown on 6 September 1984 and
more than six years since the respondent had made any representations or given
any advice about the transaction.
16.  It was the primary submission of counsel for the respondent that both the
cause of action in negligence and the cause of action based on a breach of the
Trade Practices Act were time barred because more than six years (and thus
more than 3 years) had elapsed since the applicants first suffered loss on or
before 6 September 1984.  If that submission were rejected, counsel for the
respondent submitted that loss was certainly suffered at the time of the
second rollover on 6 September 1985.  It was submitted that the applicants had
then suffered damage because of the fall in the value of the Australian dollar
which had occurred during the second rollover period.  Whether they left the
loan in Swiss francs, converted it into another currency or brought it back on
shore, their loss, although then less than it became in later years, was
clearly established, so that their cause of action under the Trade Practices
Act had then arisen and the limitation periods provided for in ss.82 and 87 of
the Trade Practices Act had commenced to run.  On this view of the matter,
however, the cause of action based on negligence was not time barred because
it had been brought within six years of its arising.
17.  Counsel for the applicants submitted that no cause of action arose until
the applicants' losses crystallised when the loan had to be repaid on 6
September 1989.  One could not tell whether the transaction would result in
losses or not until then because it was always possible in the fluctuating
international money market that the Australian dollar might by the time the
applicants were obliged to repay the principal in 1989 have regained its
value.  Alternatively, counsel for the applicants put a submission similar to
that put secondarily by counsel for the respondent, namely, that the cause of
action arose at the time of the second rollover with the consequence that,
although the cause of action based on the Trade Practices Act was barred, that
based on the cause of action for negligence was not.
18.  The primary submission made by counsel for the respondent was based upon
the view that the moment that each of the applicants entered into the
respective mortgages given by them on 5 or 6 September 1984,  each had
suffered some damage because each had acted to its or his detriment.  Counsel
relied strongly upon the decision of the English Court of Appeal in Forster v.
Outred and Co. (1982) 1 WLR 86. In that case the plaintiff had executed a
mortgage in the presence of the defendants who were her solicitors. The
mortgage charged her property as security for a loan made by a company to her
son who subsequently went bankrupt.  The plaintiff was forced to repay the
son's losses and sued the defendants for negligence and breach of contract in
failing properly to advise her at the time the mortgage was executed.  There
was some failure on the plaintiff's part to prosecute the action.  An
application to dismiss the action for want of prosecution followed and another
writ was issued.  A question for the Court of Appeal was whether the second
action was time barred.  The period of limitation was six years and more than
seven years had elapsed from the time of the original advice before the second
action was commenced.  The Court of Appeal held that damage was an essential
ingredient of the action in negligence but that the plaintiff had suffered
actual damage when she executed the mortgage and she was subjected to a
liability which might mature into financial loss. Accordingly, her cause of
action occurred at the time she entered into the mortgage notwithstanding that
she did not actually become liable for the repayment of the loan until a
demand was made some years later.
19.  Counsel for the defendant submitted that the plaintiff had suffered
actual damage when she signed the mortgage deed because she then encumbered
her interest in the mortgaged property and subjected herself to liability for
her son's debts.  That argument was accepted by the Court of Appeal.
Stephenson L.J. discussed a number of authorities. He concluded by saying (p
98):-
      "Although there is no more direct authority than those cases
      among those which have been cited to us, I would accept Mr
      Stuart-Smith's (counsel for the defendant) statement of the
      law and would conclude that, on the facts of this case, the
      plaintiff has suffered actual damage through the negligence
      of her solicitors by entering into the mortgage deed, the
      effect of which has been to encumber her interest in her
      freehold estate with this legal charge and subject her to a
      liability which may, according to matters completely outside
      her control, mature into financial loss - as indeed it did.
      It seems to me that the plaintiff did suffer actual damage
      in those ways;  and subject to that liability and with that
      encumbrance on the mortgage property was then entitled to
      claim damages, not, I would think, an indemnity and probably
      not a declaration, for the alleged negligence of the
      solicitor which she alleges caused her that damage.  In
      those circumstances her cause of action was complete on
      February 8, 1974, and the writ which she issued on March 25,
      1980, was issued too late to come within the six years'
      period of limitation."
Dunn L.J. said (p 100):-
      "In this case, as soon as she executed the mortgage the
      plaintiff not only became liable under its express terms but
      also - and more importantly - the value of the equity of
      redemption of her property was reduced.  Before she executed
      the mortgage deed she owned the property free from
      encumbrances;  thereafter she became the owner of a property
      subject to a mortgage.  That, in my view, was a quantifiable
      loss and as from that date her cause of action against her
      solicitor was complete, because at that date she had
      suffered damage.  The actual quantum of damages would, of
      course, depend on events between that date and the date when
      the damages had finally to be assessed, but the cause of
      action was complete when she executed the mortgage, without
      proof of special damage."
Sir David Cairns was of the same opinion (p 100)
20.  Forster v. Outred and Co. was one of a number of authorities referred to
in the judgment of the Full Court of this Court in Jobbins v. Capel Court
Corporation Limited (1989) 91 ALR 314.  The case is authority for a number of
propositions including the principle that, where damage  is an essential
element of a cause of action, the suffering of some damage will in general
start time running even though the damage continues to grow.  Forster's case
was cited as authority for that proposition.  It was decided that a
plaintiff's unawareness of the existence of his cause of action does not
prevent it accruing and further that a new cause of action does not arise
where fresh loss arises from the same basic wrong.  The members of the Court,
as I have mentioned, referred to Forster's case and cited passages from the
judgment of Dunn L.J.;  see p 317.
21.  During the argument there was some discussion whether Forster's case
ought to be followed in Australia.  I confess to having some misgivings about
its underlying reasoning.  If one analyses its facts, it may be said that the
plaintiff acted to her detriment by reducing the value of her interest in the
property when she entered into the mortgage.  But in truth and reality she had
not then lost anything. Only when the son defaulted and became bankrupt was
the plaintiff bound to repay his indebtedness to the company.  If he had
repaid it, she would never have been called upon to pay anything and the value
of her interest in the property would have remained undiminished.  If this
view were correct, her loss arose, not at the time of the entry into the
mortgage, but at the time of the son's default.  So here, one could not have
said with certainty that the first applicant had suffered loss until it became
bound to repay the indebtedness in 1989.
22.  It was suggested that the application of Forster's case in Australia
would lead to a situation developing in which solicitors acting for parties
who may have been misled or negligently advised in relation to mortgage
transactions, would need, as a matter of precaution, to issue writs within
applicable limitation periods even though it could not be ascertained with any
degree of certainty whether the mortgagor would in fact suffer loss because
the time for repayment of the mortgage had not arrived.  I agree that there
may be practical difficulties in some cases but I think that the usual
requirement to pay interest at periodical intervals would itself be a cause of
some damage at an early stage in most cases even if the view were taken that
entering into the mortgage did not itself occasion loss.  Be that as it may,
it seems to me that I should follow Forster's case because it has been
referred to with approval by a Full Court of this Court.
23.  I need next to determine whether the present case can be distinguished
from Forster's case.  If one looks at the position of the first applicant and
omits, for the moment, the position of the second and third applicants, I
think the cases are distinguishable.  The first applicant suffered no loss at
the moment of drawdown.  It is true that it had entered into the equitable
mortgage earlier referred to, but it received the equivalent in Swiss francs
of $A700,000.  Thus its asset position was no different after the transaction
than it was before.  The value of its assets and undertaking was not affected.
It owed the bank $700,000 but that sum was paid either to it or to another
bank on its behalf to discharge an earlier indebtedness.  The position of the
plaintiff in Forster's case was quite different.  She diminished the value of
her interest in the property by entering into a transaction which made her
responsible for her son's debt.  She received nothing in return.  I therefore
take the view that Forster's case is not an authority which obliges me to hold
that the first damage suffered by the first applicant occurred when it entered
into the equitable mortgage given to the respondent on 6 September 1984.
24.  The position of the second and third applicants is more difficult.  They
are in a position, at least as far as the evidence discloses, closely similar
to that of the plaintiff in Forster's case. The second applicant gave a
mortgage over real estate owned by him in consideration of the accommodation
afforded to the first applicant.  The mortgage given by the  third applicant
was given for a similar consideration.  In the result each of the second and
third applicants worsened their position when they entered into the mortgages
given by them because they received nothing to counterbalance the liability to
the bank for the first applicant's indebtedness which they then assumed.
25.  Unlike the transaction in Forster's case, however, this transaction
involved the three applicants in carrying out separate but interconnected
transactions to achieve one end, a loan of money in Swiss francs to the first
applicant.  The representations were made to the first applicant in his
capacity as Managing Director of the first applicant and in his personal
capacity.   It would appear on the facts as pleaded that he also acted as
agent for the third applicant.
26.  There is no evidence before me as to the precise relationship between the
first and second applicants or the first and third applicants.  As the
evidence presently stands, I do not feel able to determine whether it would be
right to say that the second and third applicants are in fact in a position
different from that of the first applicant and similar to that of the
plaintiff in Forster's case.  I am satisfied that at least the action in
negligence brought by the first applicant is not time barred.  In these
circumstances I think, especially bearing in mind the absence of detailed
evidence about the relationship, that it would be premature to decide at this
stage that the action brought by the second and third respondents was statute
barred.  In any event, because of the nature of the transaction, it may be
that when the entirety of the evidence is taken, it will be found that the
second and third applicants may not be entitled to damages at all but are
nevertheless necessary parties to the action.
27.  It is then necessary to consider whether the action became time barred at
the time of the second rollover on 6 September 1985 or when the loan fell due
for repayment on 6 September 1989.  If the applicants suffered damage on 6
September 1985, then the trade practices causes of action are barred even
though the negligence action is not.  I confess that I have not found this an
easy problem, but bearing in mind the principles propounded by the Full Court
in the Jobbins case, I think that the better view is that the applicants did
suffer damage at or about the time of the second rollover because of the
substantial fall in the value of the Australian dollar which had then
occurred.  That was the view adopted by Cole J. in the Supreme Court of New
South Wales in Ralik Pty. limited v. Commonwealth Bank of Australia
(unreported, 14 August 1990); see p 126.
28.  I say "better view" because I confess that my mind has fluctuated about
the matter.  In many ways I am attracted to the proposition that, although
hindsight shows that the Australian dollar never recovered its former value
after the second rollover date, one could not have known at that time that the
trend which had set in was irreversible.  There is much to be said for the
view that it was only when it was time to repay the loan in 1989 that one
could say that losses had in fact been suffered.  I feel constrained, however,
to take the view that the material date was 6 September 1985 because of the
decision in the Jobbins case.
29.  In the course of my consideration of the matter I have looked at the
judgment of Deane J in Hawkins v. Clayton (1988) 164 CLR 539.     In the
course of his judgment his Honour referred (p 587) to the judgment of the
Supreme Court of Canada in Central Trust Co. v. Rafuse (1986) 31 DLR (4th) at
pp 535-6.  Later his Honour said (p 588)
      "The position is different in cases where all or some of the
      damage, be it in the form of physical injury to person or
      property or present economic loss, is directly sustained in
      the sense that it does not merely reflect diminution in
      value or other consequential damage which occurs or is
      sustained only when a latent defect which has existed at all
      relevant times becomes manifest.  In those cases, damage is
      sustained when it is inflicted or first suffered and the
      cause of action accrues at that time.  I do not read the
      passage in the judgment of the Court in South Australia v.
      Johnson ((1982)42 ALR 161) upon which the plaintiff relied
      as intended to effect any considered qualification of that
      general rule.  In so far as Rafuse establishes a different
      general rule for Canada in relation to the operation of
      Statutes of Limitation, I am not persuaded that it should be
      followed in this country.  That is not, of course, to say
      that the general rule may not be subject to qualification in
      some special circumstances or that its application may not
      involve unresolved difficulties in special categories of
      case (e.g., cases where all that is involved at the time of
      a tortious act is a risk of future economic loss): cf.
      Schlosser, "Some Recent Developments in the Law of
      Limitation of Actions, Concurrent Liability and Pure
      Economic Loss", Alberta Law Review, vol. 25 (1987), 388, at
      pp 393-394.
30.  The article in the Alberta Law Review to which his Honour referred is not
of assistance in relation to the present matter nor do I think that one can
solve the problem here by picking up his Honour's suggestion that the general
rule may be subject to qualification in some special circumstances.  I see no
warrant for making the facts of this case an exception to the general rule.
31.  In the result then I have formed the view that the first applicant's
cause of action based on negligence is not time barred.  I am not able to
conclude on the state of the evidence whether the causes of action in
negligence upon which the second and third applicants rely are time barred.  I
am satisfied that the causes of action relied upon by each applicant for
breach of the Trade Practices Act are time barred.
32.  I do not propose now to make any order.  Rather I shall stand the matter
over for a short time to give counsel an opportunity of considering what I
have said.  When the matter is again in the list counsel are to bring in short
minutes of declarations and orders to give effect to my decision and of
directions for the ongoing prosecution of the matter.  I shall then also deal
with the question of costs.
SUPPLEMENTARY REASONS FOR JUDGMENT
33.  When this matter was in the list for mention this morning, counsel for
the applicants drew my attention to the fact that when I published reasons for
judgment on 20 February last I had omitted to deal with one aspect of his
submissions in relation to s.87 of the Trade Practices Act 1974.  The
application claims relief under s.87 of the Act in the following terms:-
      "The applicants' claim:
      (a)   an order pursuant to S.87 of the Trade Practices
            Act, 1974 (C'wlth) (as amended) varying the
            terms of the mortgages given by the second and
            third applicants to enable them and each of them
            to set-off as against any alleged indebtedness
            to the respondent the amount of such set-off as
            is alleged in the Statement of Claim;"
34.  Until 1986, s.87 of the Act did not provide a person complaining of a
breach of one of the provisions of Part V of the Act with a remedy unless a
proceeding had been instituted pursuant to a provision of Part VI of the Act
other than s.87 itself.  So much was established by the decision of the High
Court in Sent v. Jet Corporation of Australia Pty. Limited (1986) 160 CLR 540.
There the Court said:-
      "For these reasons, the better view is that compensatory
      relief under sub-s. (1A) can be applied for and granted only
      if a proceeding is instituted or has been instituted under
      or for an offence against a provision of Pt VI other than s.
      87 in respect of conduct engaged in in contravention of Pt
      V.  Thus sub-s. (1) provides for the discretionary granting
      of compensatory relief in favour of parties to such
      proceedings and sub-s. (1A) provides for the discretionary
      granting of compensatory relief in favour of persons who may
      not be parties to such proceedings but who make applications
      in such proceedings.  In either case the power to grant
      relief under s. 87 is dependent on the institution of
      proceedings under a provision of Pt VI other than s. 87."
35.  The Court also said (p 546) that, although s.87 contained no time
limitation, the proceeding on which the power to grant relief under s.87
depended would be barred if it were instituted outside the time, if any,
limited for instituting that proceeding.
36.  The decision of the High Court in Sent was modified by amendments made to
the Trade Practices Act by the Statute Law (Miscellaneous Provisions) Act
(No.2) 1986;  see Schedule 1.  The amendments inserted a new subsec. (1C) into
the Act.  This provided that an application might be made under subsec. (1A)
of s.87 in relation to a contravention of Part V notwithstanding that a
proceeding had not been instituted under Part V1 in relation to that
contravention.  A new subsec. (1CA) referred to in the earlier judgment
provided that an application under subsec. (1A) might be commenced (omitting
contraventions giving rise to causes of action under s.52A) at any time within
three years after the day on which the cause of action accrued.
37.  Subsection 87(1A) was first inserted into the Act in 1977 but it has been
the subject of amendment on a number of occasions thereafter, most recently in
1986.  It empowers the Court, on the application of a person who has suffered,
or is likely to suffer, loss or damage by conduct of another person that was
engaged in in contravention of a provision of Part V of the Act, to make such
order or orders as it thinks appropriate including orders mentioned in subsec.
(2) of the section, if the Court considers that the order or orders will
compensate the applicant for relief in whole or in part for his loss or damage
or will prevent or reduce that loss or damage.
38.  In Keen Mar Corporation Pty. Limited v. Labrador Park Shopping Centre
Pty. Limited (1988) ATPR Case 40-853 Pincus J dealt with a case which arose
prior to the 1986 amendments to the Act to which I have referred.  He decided
that, if the claim for the amount of loss or damage was barred by subsec.
82(2) of the Act, a claim made for the same loss and damage under s.87 was
also barred notwithstanding that at that time there was no limitation period
provided for in s.87.  He thought that this conclusion followed as a result of
the High Court's decision in the Sent case.
39.  I have decided in the earlier judgment that the applicants in this case,
on the assumptions that were made, suffered some damage in September 1985 with
the consequence that their causes of action both for negligence and breaches
of s.52 of the Trade Practices Act arose then. As the Act then stood the claim
made by the applicants pursuant to s.87 could not have been maintained in the
absence of the claim made by them under s.82.  In the view I take of the
matter their claim under s.82 is time barred and it must follow that their
claim under s.87 whether based on subsec. (1) or on subsec. (1A) is also time
barred.
40.  Counsel for the applicants sought to argue that the decision of Pincus J
in Keen Mar was distinguishable because it dealt only with a money claim and
not with a claim for the variation of a mortgage which is the claim made here.
But I do not consider that the result in a case such as this could be any
different from that arrived at in a case such as Keen Mar.  At the relevant
time no relief under s.87 could be claimed unless relief were also claimed
under another provision of Part V1 of the Act such as s.82.
41.  In the course of argument there was reference to the limitation period
provided for in subsec. 87 (1CA) but, in the view I take of the matter, that
can have no relevance.  That subsection was inserted into the Act in 1986
along with the new subsec. (1C) which for the first time empowered applicants
to seek relief under s.87 notwithstanding that no claim for relief was made
under any other provision.  Subsections (1C) and (1CA) are procedural in
character but they affect substantive rights.  In my opinion they are to be
likened to the provision considered by the High Court in Maxwell v. Murphy
(1957) 96 CLR261 with the consequence that they do not apply to causes of
action which came into existence prior to the coming into force of the
subsections in 1986.  Furthermore, subsec. (1CA) is consequential upon subsec.
(1C) and applies to limit time in respect of cases brought under that
subsection.  Upon the basis that the causes of action in the present case
arose in 1985, neither subsection has any application and the position is
governed by the provisions of the Act as they were before the two subsections
became part of the Act.
42.  For the foregoing reasons I reject the submission based on s.87 made on
behalf of the applicants with the consequence that my conclusions are as
stated in the earlier judgment.