Supreme Court New South Wales Medium Neutral Citation: Prieston v Warwick John Williams Pty Ltd [2017] NSWSC 1577 Hearing dates: 12 May 2017 Date of orders: 21 November 2017 Decision date: 21 November 2017 Jurisdiction: Common Law Before: Bellew J Decision: 1. The proceedings are dismissed. 2. Absent agreement as to costs, the parties are to provide written submissions, not exceeding two pages in length, by 28 November 2017. Catchwords: APPEAL – Appeal from decision of Magistrate in the Local Court in proceedings involving a dispute over a management agreement – Whether grounds raised questions of law or questions of mixed fact and law – Where appellant asserted in respect of some of the grounds that there was no evidence to support the Magistrate's findings – No ground of appeal made out - Proceedings dismissed Legislation Cited: Civil Liability Act 2002 (NSW) Local Court Act 2007 (NSW) Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Azzopardi v Tasman UBE Industries Pty Limited (1985) 4 NSWLR 139 Insurance Australia Limited v O'Shannessy [2015] NSWSC 1047; (2015) 72 MVR 1 L & B Linings Pty Limited v WorkCover Authority of New South Wales [2012] NSWCA 15 Panayiotou v Prieston [2013] NSWADT 273 State Rail Authority v Earthline Constructions (1999) 160 ALR 588; [1999] HCA 3 Category: Principal judgment Parties: Anna Prieston – Appellant Warwick John Williams Pty Limited - Respondent Representation: Counsel: E Chrysostomou – Appellant T E O'Brien - Respondent Solicitors: Argus Lawyers – Appellant Torq Murray Law – Respondent File Number(s): 2016/389119 Publication restriction: Nil Decision under appeal Court or tribunal: Local Court of NSW Jurisdiction: Civil Date of Decision: 6 December 2016 Before: Magistrate Atkinson File Number(s): 2016/364190 Judgment INTRODUCTION 1. By a summons filed on 23 December 2016, Anna Prieston ("the appellant") seeks orders in the following terms arising from a determination of Magistrate Atkinson in the Local Court on 6 December 2016: 1. appeal allowed; 2. judgment of the Court below be set aside; 3. an order that that (sic) the respondent pay the appellant $53,820.62; 4. in the alternative, that this Court assess damages; 5. in the alternative, the matter be returned to the Local Court of NSW for re-hearing in respect of quantum only; 6. the respondent pay the appellant's costs. 1. The summons was supported by an affidavit of Stephen Pirintji of 3 July 2017 which was read without objection. A Court Book containing the entirety of the relevant material was admitted and marked Exh. A. 2. Counsel for the appellant before this Court acknowledged that the terms in which the summons had been pleaded were fundamentally deficient. In particular, no order for leave was sought, in circumstances where (at least in respect of some of the grounds relied upon) leave was arguably required. In these circumstances, counsel for the respondent invited me to dismiss the summons as on the basis that it was incompetent. Ultimately, the hearing proceeded on the basis that the appellant's primary position was that each of the grounds relied upon raised a question of law or at the very least, a question of mixed fact and law. To the extent that any ground fell into the latter category, it was the appellant's position that leave should be granted. 3. In these respects, ss. 39 and 40 of the Local Court Act 2007 (NSW) are relevant. Those sections are in the following terms: 39 Appeals as of right (1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law. (2) A party to proceedings before the Court sitting in its Small Claims Division who is dissatisfied with a judgment or order of the Court may appeal to the District Court, but only on the ground of lack of jurisdiction or denial of procedural fairness. 40 Appeals requiring leave (1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court. (2) A party to proceedings before the Court sitting in its General Division who is dissatisfied with any of the following judgments or orders of the Court may appeal to the Supreme Court, but only by leave of the Supreme Court: (a) an interlocutory judgment or order, (b) a judgment or order made with the consent of the parties, (c) an order as to costs. 1. It should also be noted that in respect of some of the grounds, counsel for the appellant submitted that there was no evidence to support the factual conclusions that the Magistrate reached. Such a proposition involves a question of law: Azzopardi v Tasman UBE Industries Pty Limited (1985) 4 NSWLR 139. However, it is also necessary to bear in mind that want of logic is not synonymous with error of law. As long as there is some basis for an inference, or in other words as long as the particular inference is reasonably open there is no place for judicial review because no error of law has taken place. This is so, even if that inference appears to have been drawn as a result of illogical reasoning: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 356 per Mason CJ. 2. Moreover, a finding of fact which is supported by at least some evidence does not reveal an error of law even if it was made by ignoring the probative force of the evidence which is all one way, or even if it could be described as perverse or one which no reasonable person could have made: Azzopardi at 155-156 per Glass JA. Where judgment is formed on the basis of conflicting indicators, it will be difficult if not impossible to establish a "no evidence" ground of review: L & B Linings Pty Limited v WorkCover Authority of NSW [2012] NSWCA 15 at [34] per Basten JA cited in Insurance Australia Limited v O'Shannessy [2015] NSWSC 1047; (2015) 72 MVR 1 at [61] per Beech-Jones J. THE BACKGROUND TO the APPELLANT'S case 1. The appellant is the owner of a property located at 188 Victoria Street Drummoyne ("the premises"). He husband manages her business affairs pursuant to an enduring Power of Attorney executed by her. 2. The appellant entered into an agreement ("the agreement") with Warwick John Williams Pty Limited ("the respondent"), pursuant to which the respondent undertook to manage the premises. Clause 6 of the agreement provided that in doing so, the respondent was required to seek references from any prospective lessee(s). 3. In or about November 2011 the respondent identified a Ms Panayiotou ("the tenant") as a prospective lessee. It was the appellant's case that she and a representative of the respondent subsequently had a conversation, in the course of which the appellant enquired as to whether it was thought that the tenant would be suitable. It was the appellant's case that during the course of that conversation she said words to the effect: Get references and do the usual checks. If they stack up, we'll offer her the lease. 1. Negotiations were then entered into regarding improvements to be undertaken to the premises. At tenant's request, the appellant agreed that prior to the commencement of any lease she would: 1. install an additional electricity meter box; 2. repair rust holes; and 3. paint an awning over the premises, 1. In December 2011, the appellant executed a lease with the tenant in respect of the premises, to commence on 15 February 2012. It is common ground between the parties that notwithstanding the terms of the agreement, the respondent did not obtain any references from the tenant prior to the lease being executed. Following the commencement of the lease, the tenant commenced to raise a number of issues, and make various claims and demands upon the appellant about the premises, in addition to those set out at [10] above. The issues which were raised included (but were not limited to) dampness in the premises. 2. In or about May 2012 a conversation took place between the appellant's husband and a Mr Davies on behalf of the respondent, in the course of which Mr Davies conceded that no written references had been obtained from the tenant prior to the execution of the lease. The unchallenged evidence before the Magistrate was that the conversation was to the following effect: Appellant's husband: I can't stand this anymore, you seem to have found us the tenant from hell. Davies: She seemed alright at first, I didn't think she would turn out like this. Appellant's husband: What checks did you make about her before you brought her to us? Davies: I knew that she rented premises across the road, she seemed alright. Appellant's husband: Did you obtain any written references? Davies: No. Appellant's husband: Did you at least check with her previous landlord or his agent? Davies: No, Roger Mikhail was managing her previous tenancy. If I'd asked him about her, he may have claimed that she was his introduction. Appellant's husband: That's not good enough, Craig. You could have done better. I'm taking over the management of this tenancy now so that I can try to sort out the problems. 1. Following that conversation, the appellant's husband assumed the management of the premises. The appellant later became aware that the tenant had brought proceedings against a previous landlord which had been settled by way of a deed, the terms of which were confidential. 2. Attempts were made by the appellant to resolve the tenant's various complaints about the premises, without success. Ultimately, the tenant commenced proceedings against the appellant in what was then known as the Administrative Decisions Tribunal ("ADT"). The matter was heard by Deputy President Higgins on 23 and 24 May 2013. In a judgment delivered on 29 November 2013 the proceedings were dismissed: Panayiotou v Prieston [2013] NSWADT 273. The appellant subsequently sought costs of the proceedings. That application was dismissed by Senior Member Higgins. That decision was later confirmed by an appeal panel. THE LOCAL COURT PROCEEDINGS 1. Against the background outlined above, the appellant commenced proceedings by filing an amended statement of claim against the respondent in the Local Court seeking damages: 1. for breach of contract; 2. for negligence; and 3. pursuant to the Australian Consumer Law. 1. The basis of the appellant's case was that the respondent had made a number of representations to the appellant which were misleading or deceptive, or likely to mislead or deceive. 2. In a reserved judgment delivered on 6 December 2016, the Magistrate awarded damages in favour of the appellant as follows: 1. a sum of $1.00 in respect of the claim for breach of contract; 2. a sum of $1.00 in respect of the claim under the Australian Consumer Law; and 3. a sum of $1.00 in respect of the claim for misleading and deceptive conduct. 1. The cause of action in negligence was dismissed. THE GROUNDS OF APPEAL 1. At the commencement of the hearing counsel for the appellant informed the Court that ground 1 was not pressed. In addition, ground 3 was amended and limited to the terms set out below. Ground 2 – The learned Magistrate erred by drawing the wrong inferences of fact from the primary facts The evidence before the Magistrate 1. Included in the evidence before the Magistrate was an affidavit of the appellant's husband of 29 April 2016. In paragraph [15] he recounted a conversation he had with the tenant in or about August 2012 after the tenant had complained about dampness at the premises. According to Mr Prieston that conversation was to the following effect: Prieston: Okay. Show me where the damp is coming from. Tenant: It's coming from the awning. Prieston: But the awning's outside. Tenant: Yes, but it's getting inside and its ruining my stock and affecting my business. Prieston: Show me where the damp is. Tenant: It's there on the shop window. Prieston: That's just condensation on the glass. Turn on the aircon and it will go away. Tenant: No it's not. Its damp. Even the floorboards are softening and going stringy. Prieston: Look, I am jumping and down on the floor floorboards and there's no springiness. Tenant: I have filmed you on my mobile phone to show that the floorboards are springy. My business is ruined. You and your wife are liable. It's lessors' responsibility. Prieston: Patty, I really don't want all this trouble. If you are looking for some sort of discount on your rent, please just tell me. I am sick of all this constant whinging and arguing between us. I just want us to get along and be friends. 1. Mr Prieston stated (at [16]) that the tenant then went to the police to make application for an apprehended violence order against him but "was talked out of it by the police and/or Craig Davis". 2. Mr Prieston was cross-examined at some length before the Magistrate in respect of these matters. He was asked (commencing at T36 L11): Q: After you took over managing the premises, you and the tenant had a disagreement around August 2012, is that right? A: We had an agreement. Q: You and the tenant had a disagreement, didn't you, in around 2012? A: We had an – no, we had an agreement. Q: When you were managing the property ultimately didn't the tenant apply for an AVO against you? A: After the agreement. Q: So you had a conversation with her, is that right? A: Yes. Q: And you say an agreement was reached, is that right? A: Yes. Q: After that conversation, she filed for an AVO against you? A: Yes. Q: Do you remember what the basis of the AVO was? A: I think it was sexual or something. Q: It's fair to say on the basis of her filing for that AVO that your relationship was not good. A: I thought it was fine until that point, yes. Q: That was August 2012. In fact she commenced the ADT proceedings against you less than a month later, is that right? A: Yes. Well, if it's in my - - Q: In your affidavit you give evidence that it might have been Mr Davies who convinced her to drop the AVO? A: That's just – I speculated that, yes. Q: You thought it was the police or Mr Davies, you weren't sure? A: Or both. Q: You agreed before that before the tenant entered into the lease you agreed with her that various works would be carried out on the premises. A: Yes. Q: Including installing a new electricity metre? A: Mm mm. Q: And repairing and restoring the awning? A: Mm mm. Q: Before the end of the rent free period? A: Okay. Q: Now, those works weren't completed in time, were they? A: No. The Magistrate's reasons 1. Commencing at [41] of her reasons the Magistrate dealt with the claim for damages for breach of contract and noted (inter alia) that there was no dispute that the respondent had failed to carry out the necessary reference checks and that by failing to do so, the respondent had breached the agreement. Her Honour also observed (again at [41]) that the appellant would ordinarily be entitled to damages for the breach. Having noted (at [42]) that the appellant had not sought general damages in relation to her claim for breach of contract, but had instead particularised her damages by reference to the costs that she incurred in relation to the proceedings in the ADT, her Honour went on to say the following (commencing at [43]): 43. In my view Ms Prieston has failed to prove on the balance of probabilities that she is entitled to the amount of damages that she has sought on the basis that they are too remote. 44. As can be seen from the above discussion, Mr Prieston wanted to get a tenant for the premises and was prepared to make financial concessions in order to achieve that result. 45. Even if he had asked for references, it is by no means certain that the agent would have been able to find out about the true nature of the relationship between Ms Panayiotou and her former landlord, given that there was an agreement that neither of them would disclose details about their settlement. 46. There were problems on both sides of landlord/tenant relationship. 47. Ms Prieston had not done what she had promised to do in a timely fashion and Ms Panayiotou was clearly dissatisfied about this. 48. Mr Prieston became directly involved in managing the tenancy and the relationship apparently deteriorated even further, to the point where Ms Panayiotou considered applying for an AVO against him. Whilst Mr Prieston apparently views this as being evidence of that Ms Panayiotou was a difficult person, another more plausible inference is that he behaved in such a way that he caused Ms Panayiotou to be fearful for her personal safety. By comparison, there is no evidence that she contemplated taking such action in relation to her former land lord. Submissions of the appellant 1. There was some degree of confusion as to the precise basis upon which the appellant advanced this ground. In written submissions it was submitted that her Honour's findings at [48] were "serious and quite improper". In particular, it was submitted that: 1. her Honour had given no reasons for her conclusion as to why the competing inference she had identified was more plausible; 2. it had not been put to the appellant that she had behaved in such a way that would have caused the tenant to fear for her safety; 3. there was no evidence upon which it was open to her Honour to conclude that an application for an Apprehended Violence Order had been made on the basis that the tenant had feared for her personal safety. 1. It was further submitted that her Honour's findings amounted to little more than "conjecture and speculation" and that in these circumstances, her Honour had fallen into error. 2. The oral submissions were put somewhat differently. Counsel initially advanced two submissions in support of this ground, namely that: 1. "it was never put to the plaintiff…that the cause of the AVO was the fear for (the tenant's) safety" (at T8 L37-39); and 2. there was "no evidence before the Court for her Honour to have concluded that it was because she feared for her personal safety" (at T8 L41-42). 1. When specifically asked (at T9 L35) to articulate, in precise terms, the error on which this ground was based, counsel for the appellant responded by saying: That (her Honour) considered it more plausible that – the more probable inference that the reason the AVO was obtained, which went nowhere, I might add, as I understand it, there's no evidence of it anywhere, was that because this particular tenant feared for her personal safety. 1. Counsel then confirmed that it was the appellant's case that the Magistrate had erred by drawing an inference in circumstances where there was no evidence to support it (at T10 L8-12). Counsel further submitted that in order to conclude that one inference was preferable to another, such a conclusion must be based on "something …more than merely the surrounding facts" (at T11 L21-24). Submissions of the respondent 1. Counsel for the respondent submitted that nothing put in support of ground 2 disclosed any appellable error, however categorised. It was submitted that properly construed, the Magistrate's judgment at [48] did not incorporate any positive finding. Further, and in response to the suggestion by counsel for the appellant that there was "no evidence" of certain facts, counsel for the respondent submitted that there was certainly evidence (as set out above) not only of the fact that an application for an AVO was contemplated, but that Mr Prieston's understanding of the basis of it was that it was "sexual in nature". Consideration 1. Given the way in which this ground was ultimately put, I am satisfied that it involves a question of law. However, the ground has no merit for a number of reasons. 2. Firstly, to the extent that the appellant complained of an absence of reasons being given by the Magistrate, there was no ground of appeal which asserted that the Magistrate's reasons were inadequate. 3. Secondly, accepting that the ground was advanced on the basis that there was no evidentiary support for the inference drawn by the Magistrate, there was certainly evidence in the cross-examination of Mr Prieston that the basis of the application for the AVO was "sexual or something". That evidence clearly supported the inference which was drawn by the Magistrate. 4. Thirdly, the complaint made by the appellant that an inference must be based on "something…more than merely the surrounding facts" overlooks the fact that fundamentally, an inference is a conclusion of fact which is rationally drawn from a combination of other facts. 5. It follows that this ground is not made out. Ground 3 – The learned Magistrate erred by finding as fact that it was "by no means certain" that: i) the appellant would have found out the true nature of the tenant's relationship with the previous landlord; ii) the appellant would have been able to predict the likelihood of such litigation even if it was aware of the previous dispute with the previous landlord; iii) even if the references (sic) checks were carried out the appellant would have known of the confidential deed of settlement; in the absence of evidence of those facts. The Magistrate's reasons 1. In the course of oral submissions, counsel for the appellant abandoned particulars (i) and (iii) of ground 3, leaving only (ii). 2. In her judgment, the Magistrate said (at [50]): 50. Unlike what occurred in relation to Ms Panayiotou's dispute with her former landlord (i.e. it settled without the need for a final hearing), the ADT/NCAT proceedings involving Ms Prieston ran to a final hearing and an appeal. It was by no means certain that Mr Prieston or his wife would have been able to predict the likelihood of such litigation even if they had been made aware of Ms Panayiotou's dispute with her former landlord. Interestingly, Mr Preston (sic) took no action to sue for breach of contract after he became aware of the agent's failure to conduct reference checks. It was only after the events referred to above had occurred that Mr Prieston decided to commence the current proceedings. Submissions of the appellant 1. In short, counsel for the appellant submitted that there was no evidence to support any of the factual findings set out at [50] of her Honour's judgment and, in particular, the finding which was referred to in (ii) of this ground. Submissions of the respondent 1. Counsel for the respondent submitted that nothing contained at [50] of her Honour's judgment amounted to a positive finding. It was submitted that properly construed, her Honour was articulating that she was not persuaded of certain matters that the appellant was required to prove. Consideration 1. Even accepting that, as articulated, this ground involves a question of law, I am not persuaded that the impugned passage of the Magistrate's reasons contain any factual finding. The Magistrate was doing no more than expressing a view that she could not be satisfied of certain matters. Even if the impugned passage were elevated to a finding, such a finding would be sound. As a matter of common sense, no litigant can predict the outcome of any litigation. 2. It follows that this ground is not made out. Ground 4 – The learned Magistrate erred by finding as fact that the litigation only arose in certain circumstances in the absence of evidence of that fact [J60] and in so doing, failed to give proper weight to the unchallenged evidence that the tenant started complaining to the appellant almost immediately after entering into the lease and making various demands [J14]; and where to do so would have affected the verdict (emphasis in original). The Magistrate's reasons 1. At [14] of her judgment, the Magistrate said: Mr Prieston says that the tenant started complaining about the property almost immediately and making various demands. He says that he spoke to Mr Davies in or about May 2012 and it was at this time that he ascertained that Mr Davies had failed to obtain any written references from Ms Panayiotou. 1. At [40] the Magistrate said: When considering whether or not Ms Preston (sic) has proven her claim on the balance of probabilities it is relevant to note that … The events in question occurred a number of years ago ….; … Despite agreeing to carry out work before Ms Panayiotou took occupation of the premises, Mr Prieston failed to ensure that it was carried out; [I]t was only after Mr Prieston took over management of the premises that Ms Panayiotou considered applying for an apprehended violence order in relation to Mr Preston (sic); commenced proceedings in the ADT for Ms Prieston's failure to carry out the agreed works. (The ADT proceedings were commenced on 5 October 2012, approximately 10 months after the lease was signed). 1. At [60] the Magistrate said: 60. The ADT/NCAT litigation only arose after: • the Priestons failed to carry out the work on the premises as promised • Mr Prieston had taken over the management of the property • Mr Prieston had had an interaction with Ms Panayiolou (sic) the nature of which left her contemplating applying for an AVO. Submissions of the appellant 1. Once again there was some degree of confusion as to the precise basis which the appellant advanced this ground. 2. In oral submissions, counsel expressly accepted that at [60] of her judgment, the Magistrate was doing nothing more than stating, as a fact, that the litigation in question only arose after the three stated events had taken place. Counsel accepted that in doing so, the Magistrate had accurately reflected the evidence. The following exchange then took place between myself and counsel (at T17.19 – T17.23): HIS HONOUR: If that's what she's saying, do you accept that there was evidence to support the propositions in each of the three bullet points in paragraph 60? CHRYSOSTOMOU: Not to the extent that she says that it was solely -- HIS HONOUR: She doesn't use that word. 1. Ultimately, and in circumstances where: 1. this ground asserted an error in a finding or findings of fact; 2. counsel for the appellant expressly accepted that there was evidence to support each of the three factual findings referred to by the Magistrate (at [60]); and 3. counsel also expressly accepted that the relevant litigation arose after each of those events, 1. the ground was advanced on the basis that the Magistrate had "failed to give sufficient weight, or any weight, to the evidence that this tenant had already agitated or started making complaints about the premises before that time". Counsel submitted that a failure to give proper weight to evidence amounted to an error of law and cited, as authority for that proposition, State Rail Authority v Earthline Constructions (1999) 160 ALR 588; [1999] HCA 3. Submissions of the respondent 1. Counsel for the respondent submitted that the conclusions reached by the Magistrate were open on the evidence, and that the inferences drawn by the Magistrate were plainly available. Consideration 1. I am not satisfied that this ground raises a question of law, nor am I satisfied that raises a question of mixed fact and law. The effect of counsel's express concession (at [46](ii) above) amounts to an acceptance of the fact that the findings made by the Magistrate were supported by the evidence. Moreover, the Magistrate clearly had regard to the fact that the tenant made complaints before the lease was entered into. So much is clear from her Honour's reference to the failure on the part of the plaintiff to carry out work on the premises. 2. It follows that leave to appeal in respect of this ground should be refused. Ground 5 – The learned Magistrate erred in failing to find that the respondent's breach of duty was causative of the appellant's loss and damage being the costs of the ADT/NCAT proceedings. The Magistrate's reasons 1. Commencing at [57] the Magistrate said the following: 57. The difficulty for Ms Prieston is proving on the balance of probabilities that she would not have suffered the damages that she has pleaded in her statement of claim but for the agent's breach of its duty of care, as contemplated by s. 5D of the Civil Liability Act. 58. As indicated earlier, the property has been vacant for a while and Mr Prieston conceded that he wanted to get a tenant for it. He says now that he would never have entered into the lease if he knew about Ms Panayiotou's history. This assertion might have more creditability if he had taken legal action soon after he became aware of the agent's failure to carry out reference checks. Instead, he terminated the management agreement and took over management of the property himself. He only commenced this litigation when it became apparent that a costs order would not be forthcoming from NCAT. 59. It is by no means certain that even if the reference checks had been carried out, the Priestons would have been able to find out the details concerning the confidential deed of settlement. 60. The ADT/NCAT litigation only arose after: • the Priestons failed to carry out the work on the premises as promised • Mr Prieston had taken over the management of the property. • Mr Prieston had had an interaction with Ms Panayoulou (sic) the nature of which left her contemplating applying for an AVO. 61. The Priestons were represented by experienced legal practitioners in the ADT/NCAT proceedings and it is reasonable to infer that she was given the relevant advice concerning the making of costs orders in the ADT/NCAT. 62. The Priestons chose to be legally represented in the ADT/NCAT even though Ms Panayioutou was not, and it was by no means certain that they would get a costs order in their favour even if they were successful in the defence of the claim. They chose to appeal the ADT's decision not to make a costs order and were unsuccessful. 63. Too many other factors came into play before the Priestons found themselves in the situation where they had to pay their own legal costs in the ADT/NCAT proceedings. Many of these factors related to decisions that were made by the Priestons themselves. I am not satisfied on the balance of probabilities that but for the breach of duty of care by the agent, Ms Prieston would not have been left in the situation where she had to bear her own costs of the ADT/NCAT proceedings. 64. As Ms Prieston has failed to prove a necessary aspect of her claim in negligence, her claim in that regard must fail. Submissions of the appellant 1. Counsel for the appellant submitted that her Honour erred by solely applying the "but for" test of causation at [57] of her judgment, and had failed to turn her mind to the entirety of the statutory test contained in s. 5D of the Civil Liability Act 2002 (NSW) ("the CLA") and in particular to the provisions of s. 5D(1)(b). 2. Counsel for the appellant further submitted that her Honour's reasons reflected a form of hindsight reasoning which was specifically precluded by s 5D(3)(a). Submissions of the respondent 1. Counsel for the respondent submitted that it was clear that the Magistrate was aware of the provisions of s. 5D of the CLA and had applied them. Counsel further submitted that the Magistrate had found against the appellant in terms of factual causation (s. 5D(1)(a)) and pointed out that there was no challenge to that finding. He submitted that in these circumstances, the Magistrate was not bound to consider the scope of liability issue raised by s. 5D(1)(b). Consideration 1. Section 5D of the CLA Is in the following terms: General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation" ), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability" ). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 1. Even accepting that this ground raises a question of law, it is a ground which in my view cannot succeed for a number of reasons. 2. To begin with, it is plain that her Honour was aware of s. 5D. She expressly referred to it. 3. Moreover, the gravamen of the appellant's complaint was not that her Honour erred in her consideration and conclusion of factual causation under s. 5D(1)(a), but rather that she did not specifically consider the scope of liability as provided for in s 5D(1)(b). The difficulty for the appellant in advancing that position is that at [63], her Honour effectively concluded that factual causation was not made out. The appellant makes no complaint about that finding. Having so found, and because of the fact that it was necessary for the appellant to establish the matters set out in s. 5D(1)(a) and (b), the Magistrate was not required to consider the latter. 4. In these circumstances, this ground is not made out. Ground 6 – The learned Magistrate failed to address the pleaded case of the appellant in respect of the statutory claim under the Australia Consumer Law, and in particular failed to address whether: (i) all or any of the pleaded representations were made; and (ii) there was reliance in entering the lease with the tenant and in doing so, erred by applying the wrong legal principles to the facts; [J69]. Ground 7 – The learned Magistrate erred in finding that, while the respondent engaged in misleading and deceptive conduct and breached the consumer guarantees, the appropriate measure of damages are nominal damages. Ground 8 – The learned Magistrate erred, in determining the statutory claim under the ACL, in applying a wrong legal principle in respect of causation and/or reliance to the facts. Ground 9 – Furthermore, in that connection, the learned Magistrate erred in taking into account irrelevancy or giving improper weight to: - i. The appellant's input in the course of the litigation in the circumstances; [J51] ii. Initiating legal action sooner; [J58] iii. The utility (or lack thereof) of any references discovering the terms of a confidential deed between the tenant and previous landlord in circumstances where the appellant's pleaded case was not limited to the confidential deed; and where to do so affected the verdict. Ground 10 – The learned Magistrate erred in the assessment of damages at law and under statute at $3. 1. Because of the way in which the argument progressed, and given that the appellant made a fundamental submission underlying all of these grounds, it is convenient to deal with them together. The Magistrate's reasons 1. When dealing with the claim brought by the appellant pursuant to the Australian Consumer Law the Magistrate said (at [69]): I will not repeat the arguments that I have previously set out about the assessment of damages in relation to Ms Prieston's contract and negligence claims. However, they are equally applicable in relation to a claim for damages under the Australian Consumer Law. Too many other factors intervened between the agent's failure to provide a service with due care and skill and to engage in misleading deceptive conduct, for me to be satisfied on the balance of probabilities, that the appropriate measure of damages for her Australian Consumer Law claim is an amount equivalent to the costs that she incurred in the ADT/NCAT proceedings. The pleadings 1. In light of the terms of these grounds of appeal, and the fundamental submission advanced in support of them, a consideration of the appellant's pleadings before the Court below are also relevant. Paragraphs 19 and following of the amended statement of claim were in the following terms: Statutory claim under the ACL 19. Further or in the alternative, the defendant made the following representations to the plaintiff: (a) it would seek references from the tenants; (b) it was a requirement that it would seek references from the tenant (c) that unless it sought references from the tenant, it must not identify and recommend a tenant; (d) the references were fundamental to any decision to enter into a lease with a tenant; (e) references were important in establishing whether the tenant had or was likely to have any deleterious history to any leasing agreement, such as, inter alia, rent defaults, complaints or otherwise subjecting the landlord to expense, delay and costly litigations; (f) a tenant with a deleterious reference ought not be considered or recommended for a lease' (g) a tenant absence of a reference similarly would not be considered or recommended for lease; and (h) unless the tenant satisfied certain fundament requirements the plaintiff should not enter into a lease with the tenant (the representations) Particulars The representations were partly expressed and partly implied and in writing. The written component of the representations was expressed and made in the Agreement entitled Management Agency Agreement dated 24 August 2006. To the extent that the representations were implied they were implied as a matter of law from the facts and circumstances of the said representations and conduct of the defendant and plaintiff. 20. The representations were made in trade and or in commerce. 21. The representations were misleading or deceptive or likely to mislead or receive: (a) the defendant did not seek a reference from the tenant; (b) the defendant identified and recommended the tenant for lease without seeking a reference from the tenant; and (c) the plaintiff had a reasonably (sic) expectation of being apprised of the failure to obtain the reference prior to entering into the lease. 22. By reason of the making of the representations the defendant constituted conduct which was misleading and deceptive or likely to mislead in contravention of Schedule 2, section 18 of the Australian Consumer Law (the ACL). 23. Further or in the alternative, the defendant as the provider of services to the plaintiff as a consumer, breached its guarantee that the services will be rendered with due care and skill in contravention of Schedule 2, section 60 of the ACL. 24. In reliance on the representations, the plaintiff executed a lease with the tenant in December 2011. 25. By reason of the breaches the plaintiff has suffered loss and damage. 26. The plaintiff claims the relief specified above. 1. In written submissions provided to the Magistrate, counsel for the appellant (at [54]) encapsulated these pleadings in the following propositions: [54] The plaintiff's case is that the representations, expressed and implied, that the defendant would seek references from prospective tenants, was misleading or deception because: (i) the defendant did not do so; (ii) the defendant identified and recommended the tenant without seeking a reference; and (iii) the plaintiff has a reasonably (sic) expectation of being apprised of the failure to obtain the reference prior to entering into the lease (and so as to allow the plaintiff an opportunity to decline the prospective tenant. [55] Whether particular conduct is misleading or deceptive is a question of fact to be determined in the context of the evidence as to the alleged conduct and to the relevant surrounding facts and circumstances. [56] Intention is irrelevant. In relation to 44(iii) the essential question is whether in all the circumstances constituted by acts, omissions, statements or silence, there has been conduct likely to mislead or deceive. [58] Even though specific evidence of reliance is not essential for proof of causation, the plaintiff's case is that had it known of the tenant's history of complaints he would have accepted the tenant as a lessee of the premises. [59] In the present case, the defendant's conduct constituted conduct and breach of section 18 of the ACL. [60] In the premise, the plaintiff is entitled to compensation by reason of section 236, section 237 and/or 243 ACL. [61] Finally the assessment of compensation or damages is not limited by the common law concept of damages or loss. It is broader. … [69] I will not repeat the arguments that I have previously set out about the assessment of damages in relation to Ms Prieston's contract and negligence claims. However, they are equally applicable in relation to her claim for damages under the Australian Consumer Law. Too many other factors intervened between the agent's failure to provide a service with due care and skill and to engage in misleading and deceptive conduct, for me to be satisfied on the balance of probabilities, that the appropriate measure of damages for her Australian Consumer Law claims is an amount equivalent to the costs that she incurred in the ADT/NCAT proceedings. Submissions of the appellant 1. Counsel for the appellant submitted, in respect of each of grounds 6-10, that the Magistrate had failed to properly address the appellant's pleaded case in respect of the claim pursuant the Australian Consumer Law. He specifically submitted that the Magistrate did not address, at any point, the issue of reliance, or the pleaded representations themselves. Submissions of the respondent 1. Counsel for the respondent emphasised that the appellant's pleaded case for damages pursuant to the ACL was aligned with the other claims, and that the issue of causation was common to the entirety of those claims. It was submitted that the issue of causation had been properly addressed and adjudicated upon by the Magistrate. 2. Counsel for the respondent further submitted that the Magistrate had, at [54] of her reasons, had obviously directed attention to the essence of the appellant's case. He also pointed to what the Magistrate had said at [69] which, he submitted, made it clear that she had considered the entirety of the evidence and submissions. Consideration 1. Accepting, for present purposes, that one or more of these grounds raise a question of law or a question of mixed fact and law, they each rely upon the fundamental proposition that the Magistrate failed to "engage" with the appellant's pleaded case. I am not able to accept that submission for two principal reasons. 2. Firstly, it must be recognised that although the appellant advanced three separate causes of action, there was a considerable degree of factual overlap between them. In those circumstances there was a commensurate overlap between the issues that they raised and the submissions which were made by the appellant in support of them. That circumstance was properly recognised by the Magistrate at [69] of her reasons, in which the Magistrate adopted the reasoning process that she had adopted in respect of the causes of action other than that pursued under the Australian Consumer Law. 3. Secondly, what was effectively a truncated version of the appellant's cause of action under the Australian Consumer Law appeared at [54] of the written submissions which were put before her. It is important that the Magistrate's judgment be read as a whole. When that approach is adopted, it is not open to assert that her Honour failed to engage with the appellant's pleaded case. In my view, she engaged in a comprehensive review of the evidence, and set out, in some detail, the path of reasoning which she adopted to arrive at her conclusions. As counsel for the respondent pointed out, much (if not all) of the evidence, and many (if not all) of the issues, were relevant to each of the causes of action relied upon by the appellant. It was clearly open to her Honour to apply the factual findings she had reached in respect of one cause of action to another. 4. For these reasons, each of these grounds fails. The notice of contention 1. The respondent filed a notice of contention but in the circumstances, it is not necessary for me to consider it. ORDERS 1. I make the following orders: 1. The proceedings are dismissed. 2. Absent agreement as to costs, the parties are to provide written submissions, not exceeding two pages in length, by 28 November 2017. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 November 2017