Luck v Browne [2001] FCA 467

FEDERAL COURT OF AUSTRALIA

Luck v Browne [2001] FCA 467 GAYE LUCK (FORMERLY KUPERMAN) v ROSLYN BROWNE, HONEYCOMBES TOWNSVILLE PTY LTD ACN 050 419 068, SIMON HORNE, DEBBIE GILCHRIST AND COLIN BROWNE V 393 OF 2000 DOWSETT J 26 APRIL 2001 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY V 393 OF 2000

BETWEEN: GAYE LUCK (FORMERLY KUPERMAN)

APPLICANT

AND: ROSLYN BROWNE

FIRST RESPONDENT

HONEYCOMBES TOWNSVILLE PTY LTD ACN 050 419 068

SECOND RESPONDENT

SIMON HORNE

THIRD RESPONDENT

DEBBIE GILCHRIST

FOURTH RESPONDENT

COLIN BROWNE

FIFTH RESPONDENT

JUDGE: DOWSETT J

DATE: 26 APRIL 2001

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 The second, third and fourth respondents, by notice of motion, seek dismissal of these proceedings as against them. The solicitor who appeared on the motion said that he appeared on behalf of the second respondent. This may have been an inadvertent error given that the third and fourth respondents appear to have been employees of the second respondent. In any event, this matter can be resolved when judgment is delivered. I will proceed upon the basis that these respondents are, in effect, identical, the most favourable position for the applicant. 2 The applicant's claim arises out of a tenancy agreement for a period of six months from 20 March 1997, entered into with the first respondent over a home unit in Townsville. The second respondent was the real estate agent which negotiated the agreement, or at least introduced the applicant to the property. As I have said, the third and fourth respondents were employees of the second respondent. Broadly speaking, the applicant asserts that whilst resident in the premises, she became ill as the result of the presence of fibreglass particles and now suffers from numerous medical conditions which are adversely affecting her health and will continue to do so. She alleges that the fibreglass particles came from the ceiling material in the unit. She claims against the various respondents in contract and in tort, including claims for negligence, breach of the Trade Practices Act 1974 (Cth), the Fair Trading Act 1989 (Qld) and the Residential Tenancies Act 1994 (Qld). 3 The only contract alleged is that between the applicant and the first respondent, entered into on 20 March 1997. Clearly, the applicant contracted with the first respondent as disclosed principal. Neither the second respondent nor its employees can be liable on that contract. This claim must fail. Most of the other claims appear to rely upon allegations of misrepresentation by one or other of the second, third and fourth respondents. The only alleged representations which might found a cause of action are: · that the ceiling tiles in the premises were Cane-ite; · as to the period of notice required pursuant to the Residential Tenancies Act prior to inspection; · as to the capacity in which the fifth respondent was to carry out an inspection of the premises; and · that the ceiling material was not hazardous, this representation having been made by a builder on 31 July 1997. 4 Other matters of complaint appear to be: · failure to pay the applicant's bond to the Residential Tenancies Authority within the prescribed period; and · the allegations made to the Residential Tenancies Authority that the premises were dirty when vacated and required cleaning, the cost of which should be met from the applicant's bond. 5 These allegations must be understood in the context of the applicant's actual occupation of the premises. The tenancy commenced on 20 March 1997. On 8 June 1997 the applicant left the premises and commenced to reside elsewhere. She claims to have returned to the premises on 25 July and to have resided thereafter in the garage, "only entering the unit for necessities and to decontaminate goods and chattels, to pack up for removal and only ever whilst wearing a toxic dust respirator mask …". Thus her residence in the premises was for a period of about two and a half months. She commenced proceedings in the Small Claims Tribunal in late May which resulted in an order being made on 2 June 1997, terminating the tenancy. For a reason which is difficult to identify, the applicant applied on 19 June for a re-hearing of those proceedings, seeking a variation in the reasons given for termination. It seems that the termination order was rescinded but her claim was dismissed. 6 The applicant complains of the representation that the ceiling material was Cane-ite, which representation was allegedly made on or about 21 March 1997. Given that the agreement was made on or about 20 March 1997, it cannot be said that the applicant entered into the tenancy agreement in reliance upon it. The applicant could only recover damages for any such misrepresentation if she could show that she would have left the premises had it not been made. It seems that she decided to take the tenancy without knowing anything about the ceiling material. Thus it would be very difficult for her to demonstrate that she remained there in reliance upon a representation made after the tenancy had commenced. Had there been no representation, she would presumably have also stayed. It may be that she means to plead that she sought and received reassurance as to the composition of the ceiling tiles, but that has not been pleaded. 7 The second "misrepresentation" is as to the requirement for notice of entry by the landlord. There is simply no pleaded loss which could be said to be caused by this "misrepresentation", nor is it possible to imagine any. In any event the argument appears to be as to whether the landlord sought to enter "to make routine repairs or to carry out maintenance of the premises" (requiring twenty-four hours' notice) or to "inspect the premises …", for which seven days' notice would be required. Such a claim is not maintainable in tort in the absence of any plea of damage. Although the applicant asserts that she has suffered greatly as a result of the respondents' conduct, there is no possible causal connection between these acts and the injuries pleaded. The plea is frivolous. There is an associated allegation of entry by a tradesman, but again no loss is pleaded as a result of this act. 8 The next matter relates to the identity of the fifth respondent. He is the first respondent's brother and worked for a building company, Leightons. The first respondent caused him to inspect the premises, presumably in connection with the applicant's complaint. The applicant alleges misrepresentation as to whether he was inspecting in his capacity as a Leightons employee or otherwise. Even on the applicant's case as pleaded, it seems likely that there was a misunderstanding on the part of the second respondent or its servants as to the capacity in which the fifth respondent was to carry out the inspection. Again, there is no possible causal connection between this conduct and the damage pleaded. This claim is not able to be made out and is frivolous. 9 There is an associated allegation that the second respondent represented that a report had been received by Leightons when in fact it had been received from the fifth respondent. For similar reasons there is nothing in this point. It is clear that the applicant, from an early stage, doubted whether there was any relevant association between the fifth respondent and Leightons. There is also a complaint that the second respondent dishonestly represented that it had misunderstood the capacity in which the fifth respondent was acting. For similar reasons there is nothing in this point. 10 As to the other matters, even if the second respondent was in breach of any obligation pursuant to the Residential Tenancies Act in failing to lodge the bond, there is no allegation of any loss as a result of such conduct. The bond must eventually have been lodged, for a subsequent application was made on behalf of the first respondent for access to it in connection with cleaning costs. As to the assertion allegedly made to the Residential Tenancies Authority that the bond should be applied in payment of cleaning costs, this cannot be a misrepresentation for the purposes of the Trade Practices Act or the Fair Trading Act. Section 67 of the Residential Tenancies Act requires the Authority to offer the tenant an opportunity to respond to such an allegation. The applicant could only suffer loss if any dispute as to entitlement to the bond was resolved against her. Such loss could not be a basis for a claim under the Trade Practices Act or the Fair Trading Act. In any event, once again there is no possible causal relationship between the alleged conduct and the damage pleaded. 11 I consider that the statement of claim in its present form fails to raise any cause of action as against the second, third and fourth respondents and that it is also frivolous. I will hear submissions as to appropriate orders. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.