AA Technical Services Pty Ltd v Diedler [No 3]
[2024] WASC 287
•14 AUGUST 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: AA TECHNICAL SERVICES PTY LTD -v- DIEDLER [No 3] [2024] WASC 287
CORAM: STRK J
HEARD: 15 MARCH 2024 AND UPON CONSIDERATION OF SUPPLEMENTARY SUBMISSIONS FILED ON 25 JULY 2024
DELIVERED : 14 AUGUST 2024
FILE NO/S: CIV 1653 of 2016
BETWEEN: AA TECHNICAL SERVICES PTY LTD
Plaintiff
AND
JOACHIM GOTTFRIED DIEDLER
First Defendant
PAUL GREGORY MCKENZIE
Second Defendant
Catchwords:
Unconscionable conduct - Statutory unconscionable conduct - Australian Consumer Law - Damages
Legislation:
Competition and Consumer Act 2010 (Cth) sch 2 s 21, s 236
Rules of the Supreme Court 1971 (WA) O 34 r 2, O 36 r 20
Supreme Court Act 1935 (WA), s 32Result:
First and second defendant to pay damages and pre-judgment interest to the plaintiff
Category: B
Representation:
Counsel:
Plaintiff : C J Terren First Defendant : H Q Vu Second Defendant : No appearance Solicitors:
Plaintiff : Roe Legal Services First Defendant : Forbes Kirby Second Defendant : Not applicable Cases referred to in decision:
AA Technical Services Pty Ltd v Diedler [No 2] [2024] WASC 11
Broadway Pty Ltd v Lewis [2012] WASC 373
Foyster v Goynich (No 2) [1984] WAR 91
Goldbay Corporation Pty Ltd v Apthorp [2006] WASCA 84
Henville v Walker (2001) 206 CLR 459
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41, (2002) 210 CLR 109
Lampropoulos v Lynne Kolnik as executor of the will of Gerald Thomas Foley [2010] WASC 193 (S)
McQuillan v J F Thomson (WA) Pty Ltd [1984] WAR 258
Olympic Holdings Pty Ltd v Lochel [2004] WASC 61
Orchard Holdings Pty Ltd v Paxhill Pty Ltd as trustee for Paxhill Trust t/as Property People [2012] WASC 271 (S2)
Pavich v Bobra Nominees Pty Ltd (1988) 84 ALR 285
Province Leader of Oceania Province of Congregation of Christian Brothers v Lawrence [2021] WASCA 77
Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332
Stone v Smith (1887) 35 Ch D 188
Western Australian Planning Commissioner v Arcus Shopfitters Pty Ltd [2003] WASCA 295
Wyzenbeek v Australasian Marine Imports Pty Ltd (in Liq) (2019) 272 FCR 373
Table of Contents
Introduction
The participation of Mr McKenzie
The law
Disposition
Legal fees
AA Technical Services' position
Mr Diedler's position
Disposition
Removal and storage fees
Storage fees
Other removal fees
Relocation expenses
Excess rent and outgoings
Increased salary costs
Seizure Costs
Payment made to AWD Diversified
Payment made to A2B
Interest
Power
Exercise of the discretion
Conclusion and orders
Sch A - Time and disbursement details
Sch B - Calculation of damages
STRK J:
Introduction
1AA Technical Services Pty Ltd as trustee for the Alan Dodd Family Trust was found to be entitled to damages recoverable against Joachim Gottfried Diedler and Paul Gregory McKenzie pursuant to the Australian Consumer Law (sch 2 of the Competition and Consumer Act 2010 (Cth)) s 236, together with interest on all sums pursuant to the Supreme Court Act 1935 (WA): AA Technical Services Pty Ltd v Diedler [No 2] [2024] WASC 11.
2As was recorded in AA Technical Services Pty Ltd v Diedler [No 2] at [1027] - [1028], AA Technical Services' secondary claim, which was successful, focused on the loss of AA Technical Services' property, and AA Technical Services' recoverable damage for the loss of property was assessed to be $199,812.65 (inclusive of GST or $181,647.86 exclusive of GST), after the recovery of the proceeds of sale were taken into account. The assessment was based on a valuation of the property as at 17 January 2014.[1]
[1] AA Technical Services Pty Ltd v Diedler [No 2] [1025].
3As was also recorded at [1028], the damages claimed by AA Technical Services included legal costs, removal and storage fees, relocation expenses and Seizure Costs.[2] At trial, AA Technical Services' claim with respect to such damage was not formally or implicitly abandoned if the primary claim failed, and evidence was tendered in relation to such damage. As was noted at [1029], in order to ensure fairness to the parties, they were given an opportunity to be heard in relation to whether in light of the findings that had been made, these were losses that ought be recovered and, if so, the proper assessment of damages in relation to them.
[2] 'Seizure Costs' was a term defined in AA Technical Services' pleaded claim, and described at [81] of my earlier reasons.
4These reasons concern the damages claimed by AA Technical Services in addition to the claim for loss of property. They should be read with and as if they incorporate the reasons contained in AA Technical Services Pty Ltd v Diedler [No 2], and unless otherwise indicated, capitalised terms have the same meaning in these reasons as there defined.
The participation of Mr McKenzie
5The action was listed for mention on 31 January 2024, allowing the parties an opportunity to consider the delivered reasons and to confer as to next steps. That mention hearing was vacated and relisted on 19 February 2024 at the request of AA Technical Services and Mr Diedler.
6Despite having been sent notice of the same, there was no appearance by Mr McKenzie at the mention hearing on 19 February 2024, which proceeded in his absence. Programming orders were made and the trial was re-listed for a further half day on 15 March 2024.
7Numerous attempts were made by the court to contact Mr McKenzie, without success. Notice of the re-listed trial and the programming orders were sent to his postal and email address for service, in addition notice by voicemail and SMS sent to the telephone number provided by Mr McKenzie in his memorandum of appearance. Among other things, by a letter from the court to Mr McKenzie dated 21 February 2024 sent by post and by email, Mr McKenzie was informed that his attendance on 15 March 2024 was required and if he did not attend, the hearing may proceed in his absence.
8On 15 March 2024, there was again no appearance by Mr McKenzie. Counsel for AA Technical Services pressed that the hearing proceed, with no objection raised on behalf of Mr Diedler.[3] AA Technical Services moved for judgment and for an order that Mr Diedler and Mr McKenzie pay AA Technical Services the sum of $425,186.66 inclusive of pre-judgment interest, together with the sum of $69.89 per day from 15 March 2024 until payment.[4]
[3] ts 792 (15 March 2024).
[4] Plaintiff's minute of proposed orders filed 27 February 2024.
9For reasons given on 15 March 2024,[5] I determined that it was appropriate to exercise discretion to proceed in the absence of Mr McKenzie as contemplated by the Rules of the Supreme Court 1971 (WA) O 34 r 2, having weighed two fundamental considerations: that natural justice must be afforded to a party to litigation; and the paramount objective of litigation, being the just resolution of disputes.[6]
[5] ts 792 - 794 (15 March 2024).
[6] Lexis Nexis, Civil Procedure of Western Australia, vol 1 (171-07-16) [34.2.3], citing Broadway Pty Ltd v Lewis [2012] WASC 373.
10I proceeded cognisant that in the absence of Mr McKenzie, AA Technical Services was required to prove its claim so far as the burden of proof rested upon it, and it was confined to relief clearly pleaded.[7] I took some comfort that there was a contradictor in Mr Diedler, and that the interests of Mr Diedler and Mr McKenzie were aligned in seeking to limit the damages awarded to AA Technical Services against them as persons involved in the contravention of s 21 of the Australian Consumer Law.
[7] Lexis Nexis, Civil Procedure of Western Australia, vol 1 (171-07-16) [34.2.3], citing Stone v Smith (1887) 35 Ch D 188, 190.
11Counsel for AA Technical Services and Mr Diedler were heard in relation to the additional losses sought to be recovered by AA Technical Services from Mr Diedler and Mr McKenzie. I also had the benefit of written submissions filed on their behalf. Mr McKenzie was also afforded the opportunity to make submissions in writing when the court invited the parties to file supplementary submissions. He did not respond to that invitation.
12I accepted the submission made on behalf of AA Technical Services that the fact that Mr McKenzie had refused to engage in the process did not alter the burden or standard of proof, or give less weight to proper concessions made on behalf of Mr Diedler.[8] To the extent that concessions were made on behalf of Mr Diedler in Mr McKenzie's absence, I considered them critically.[9]
[8] Plaintiff's supplementary submissions filed 25 July 2024 par 8.
[9] ts 794 (15 March 2024).
The law
13An overview of statutory unconscionable conduct under the Australian Consumer Law was set out in AA Technical Services Pty Ltd v Diedler [No 2] at [8] to [42]. As was noted at [26], contravention of s 21 of the Australian Consumer Law can result in damages pursuant to s 236. I had regard to the principles applicable to damages pursuant to s 236 of the Australian Consumer Law as had been summarised at [26] to [42].
14Neither counsel suggested that the principles there summarised were not applicable. Rather, in submissions made in support of the categories of damages claimed, counsel for AA Technical Services sought to emphasise that the statutory purpose of s 21 and s 236 of the Australian Consumer Law was to create a statutory prohibition on unconscionable conduct; and that the measure of damages for unconscionable conduct was the loss or damage which arose because of that conduct, which damages were not restricted to loss or damage of which such conduct was the sole cause.[10] Further, counsel for AA Technical Services submitted that the remedial statutory purpose of the Australian Consumer Law would be defeated if AA Technical Services' loss and damage was rejected because some of its costs were caused by a combination of unconscionable conduct intertwined with conduct which, while not unconscionable, had been described variously as 'capricious', 'thuggish' or 'not reasonable'.[11]
[10] Plaintiff's submissions filed 12 March 2024 par 19, citing Wyzenbeek v Australasian Marine Imports Pty Ltd (in Liq) (2019) 272 FCR 373, 392 - 393, [74] - [76]; ts 800 (15 March 2024); plaintiff's supplementary submissions filed 25 July 2024 pars 11 - 12.
[11] Plaintiff's submissions filed 12 March 2024 par 19, referring to AA Technical Services Pty Ltd v Diedler [No 2] [940]. See also AA Technical Services Pty Ltd v Diedler [No 2] [920], [943].
15Counsel for Mr Diedler sought to emphasise that notwithstanding that the court may apply a 'common-sense approach' in assessing whether AA Technical Services should be entitled to certain damages, the 'common-sense approach' still required there to be a logical and rational connection between the unconscionable conduct and the loss or damage claimed, with sufficient particularity.[12] I proceeded on this basis. I also proceeded on the basis that if the causal link between injury and contravention was established, the measure of the compensation for which the section provides, and to which the person bringing the action is entitled, is the amount of the loss or damage sustained, not some lesser amount.[13]
[12] First defendant's submissions filed 5 March 2024 par 11. See also the discussion of the 'common sense approach' in Miller RV, Miller's Australian Competition and Consumer Law Annotated (46th ed, 2024) ACL.236.40, and the cases there referenced.
[13] I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109 [503].
16In addition to the above, in considering AA Technical Services' claim for damages, I was also cognisant that it was required to prove that it had suffered loss or damage on the balance of probabilities.[14] The causal link between injury and contravention had to be established. Further, I was cognisant that s 236 of the Australian Consumer Law operates in many different kinds of case, and contains no stated limitation of the kinds of loss or damage that may be recovered under the section. The wide language of the section is compatible with a legislative desire to broaden the scope of recovery, not to keep it within the bounds of some comparison with the common law.[15] Nor does the section contain an express indication that some kinds of loss of damages are too remote to be recovered.[16]
[14] Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332.
[15] As discussed in Wyzenbeek v Australasian Marine Imports Pty Ltd (in Liq) [74].
[16] Miller RV, Miller's Australian Competition and Consumer Law Annotated (46th ed, 2024) ACL.236.160.
Disposition
17It was convenient to address each claimed category of damage in turn, as referenced in AA Technical Services' particulars of loss and damage.[17] As noted below, at the hearing on 15 March 2024 two of the categories were contentious; some claimed losses were conceded on behalf of Mr Diedler; and not all losses that had been pleaded and particularised on behalf of AA Technical Services were ultimately pressed.
[17] Reproduced in AA Technical Services Pty Ltd v Diedler [No 2] [97].
Legal fees
18AA Technical Services had included in its particulars of loss and damage a claim for legal fees in the amount of $26,377.96.[18] The claim related to the fees incurred by AA Technical Services for legal services obtained with respect to its dealings with AWD Diversified, Mr Diedler and Mr McKenzie, being separate to the fees incurred in the prosecution of this proceeding.
[18] Plaintiff's particulars of loss and damage filed 6 September 2021 par 1(b), reproduced in AA Technical Services Pty Ltd v Diedler [No 2] [97], sub-par (b).
AA Technical Services' position
19On 15 March 2024, counsel for AA Technical Services informed the court that recovery of the lesser amount of $25,309.46 was pressed,[19] and that the bundle of invoices issued by Roe Legal Services which had been tendered into evidence was relied upon.[20] AA Technical Services also relied upon the significant volume of correspondence to and from Roe Legal Services that had been tendered in the course of the trial in support of its claim.[21]
[19] Plaintiff's submissions filed 27 February 2024 par 12; ts 803 (15 March 2024).
[20] Exhibit 434; ts 804 (15 March 2024).
[21] Plaintiff's submissions filed 27 February 2024 par 16, referring to exhibits 170, 195, 197 - 200, 209 - 212, 214 ‑ 215, 225, 228, 246, 291, 294 - 297, 300, 302, 304, 306 - 316, 319, 321- 323, 329 - 337, 345, 360 - 365, 367 ‑ 368, 370 - 375, 379 (presented as a non-exclusive list of what AA Technical Services contended were relevant tendered documents).
20While the invoices tendered were for services provided from 9 August 2013 to 28 November 2014 (according to the time details recorded in the invoices), AA Technical Services' position was that the legal fees incurred for services provided from 10 October 2013 to 28 November 2014 were incurred because of the established unconscionable conduct, and were recoverable as damages.
21On behalf of AA Technical Services, it was submitted that:
(a)findings had been made concerning unconscionable conduct spanning the following periods:[22]
[22] Plaintiff's submissions filed 27 February 2024 par 14.
(i) 10 October 2013 to 16 January 2014 (in respect of conduct described as the 'Unilateral Alteration Conduct');
(ii) 25 November 2013 (in respect of conduct described as the 'Bank Guarantee Conduct');
(iii) 17 January 2014 to April 2014 (in respect of conduct described as the 'Refusing Access Conduct'); and
(iv) 30 April 2014 to 5 May 2014 (in respect of conduct described as the 'Seizure Conduct');
(b)AA Technical Services incurred the claimed legal costs because of the conduct of AWD Diversified (through Mr Diedler and Mr McKenzie). That is:[23]
(i)were it not for the 'Unilateral Alteration Conduct' or the 'Bank Guarantee Conduct', AA Technical Services would not have had to spend money on lawyers seeking advice in relation to the status of the lease, the bank guarantee, or whether they were in arrears or not;
(ii)were it not for the 'Refusing Access Conduct', AA Technical Services would not have had to spend money on lawyers trying to organise access to the Leased Premises to recover its property; and
(iii)were it not for the 'Seizure Conduct', AA Technical Services would not have had to spend money trying to stop the removal of its property from the Leased Premises and then trying to recover the seized property; and
(c)using the 'common-sense approach', the legal fees were incurred as a direct result of the conduct of AWD Diversified (through Mr Diedler and Mr McKenzie), were compensable, and fell within the scope of claimable damages under s 236 of the Australian Consumer Law.[24]
[23] Plaintiff's submissions filed 27 February 2024 par 19.
[24] Plaintiff's submissions filed 27 February 2024 par 20, referring to AA Technical Services Pty Ltd v Diedler [No 2] [30] and the cases there cited (at footnote 21).
22It was acknowledged on behalf of AA Technical Services that the correspondence that had been sent to and from Roe Legal Services on its behalf in the relevant periods did not exclusively concern conduct that was found to have been unconscionable, as not all of the conduct that had been complained of had been found to be unconscionable. It was submitted that while the costs incurred in responding to unconscionable conduct were 'intertwined and unable to be severed', that ought not be a barrier to recovery of the loss as the relevant unconscionable conduct did not have to be the sole cause of the damage, merely a cause of the damage.[25]
[25] Plaintiff's submissions filed 27 February 2024 pars 17 - 18, citing I &L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [157]; and referring to AA Technical Services Pty Ltd v Diedler [No 2] [32] and Henville v Walker (2001) 206 CLR 459 [156]. See also ts 802 (15 March 2024).
Mr Diedler's position
23Mr Diedler opposed damages being ordered for any of the legal costs claimed. On behalf of Mr Diedler it was submitted that:[26]
9.1. First, there is no evidence which establishes with any specificity or particularity how each of the Unilateral Alteration Conduct, Bank Guarantee Conduct, Refusing Access Conduct and Seizure Conduct caused the plaintiff to incur the costs set out in in each line item in each of the invoices the subject of the Legal Costs.
9.2Secondly, the Legal Costs relate to both the unconscionable conduct and non-unconscionable conduct and are intertwined and cannot be severed (which the plaintiff already concedes).
9.3Thirdly, some of the Legal Costs appear to relate to general legal advice received in the ordinary course of business, which are unrelated or sufficiently linked to the unconscionable conduct found by the Court.
[26] First defendant's submissions filed 5 March 2024 par 9, which submissions were developed at ts 807 ‑ 813 (15 March 2024).
Disposition
24AA Technical Services had included in its claim for damages a claim for legal fees incurred from 10 October 2013 to 28 November 2014, which it said were incurred because of established unconscionable conduct. It was established that AA Technical Services sought legal advice and incurred liability for legal services rendered in that period. As was recorded in AA Technical Services Pty Ltd v Diedler [No 2] at [550], there was documentary evidence of AA Technical Services having sought legal advice from Roe Legal Services from August 2013. The documentary evidence there referenced was the tendered bundle of invoices issued by Roe Legal Services to AA Technical Services,[27] and the earliest time entry recorded in the invoices in the bundle was on 9 August 2013.[28]
[27] Exhibit 434.
[28] Exhibit 434 (page 3188).
25Each tax invoice within the bundle was issued to 'AA Technical Services Pty Ltd as trustee for the Alan Dodd Family Trust trading as CBD Health Spa'. Each recorded a tax invoice number and date of invoice. The first invoice in the bundle was dated 29 August 2013, the last was dated 1 December 2014.[29]
[29] Exhibit 434 (pages 3188 and 3211).
26Each tax invoice also contained 'time details' by reference to date; fee earner; description of work performed; rate applied; number of units of time spent; and amount. Save for redacted entries, the time details recorded in each invoice in the relevant period (identified by AA Technical Services as being 10 October 2013 to 28 November 2014) are reproduced at sch A to these reasons. The amounts there recorded are the amounts incurred for the provision of legal services exclusive and inclusive of GST; and the amounts after the application of any discount that was applied to the tax invoice, exclusive and inclusive of GST.
27In additional to the legal fees, the invoices also included a description of the disbursements the costs of which were charged to AA Technical Services. Save for redacted entries, the disbursement details recorded in each invoice in the relevant period are also reproduced at sch A to these reasons. The amounts there recorded are the amounts incurred exclusive and inclusive of GST.
28As noted above, some of the invoices in the bundle recorded legal services and disbursements for which the description, rate applied, number of units of time spent and amount had been redacted and the cost of which had not been included in the claim. Only legal services and disbursements the cost of which formed part of AA Technical Services' claim for damages are reproduced at sch A to these reasons.
29There was also evidence that the invoices rendered by Roe Legal Services were paid by AA Technical Services. The documents tendered into evidence included bundles of various bank statements, which included a NAB Cheque Account statement for the period 1 to 28 February 2014;[30] and Commonwealth Bank statements for a business line of credit account held by AA Technical Services for the statement periods 6 October 2014 to 5 January 2015, and 6 January 2015 to 5 April 2015.[31] The bank statements recorded payments made by AA Technical Services to Roe Legal Services in the total amount of $26,698.16, and recorded that:
(a) on 21 February 2014, $1,595 was paid by AA Technical Services to Roe Legal Services (which was the total amount invoiced on 20 February 2014 for work performed in the period 4 February 2014 to 18 February 2014 inclusive of GST);[32]
(b) on 3 September 2014, $20,000 was paid by AA Technical Services to Roe Legal Services;[33]
(c) on 10 October 2014, $1,989.90 was paid by AA Technical Services to Roe Legal Services (which was the total amount invoiced on 30 September 2014 for work performed in the period 1 September 2014 to 22 September 2014 inclusive of GST and disbursements);[34]
(d) on 13 November 2014, $2,460.26 was paid by AA Technical Services to Roe Legal Services (which was the total amount invoiced on 31 October 2014 for work performed in the period 2 October 2014 to 21 October 2014 inclusive of GST and disbursements);[35] and
(e) on 5 December 2014, $653 was paid by AA Technical Services to Roe Legal Services (which was the total amount invoiced on 1 December 2014 for work performed in the period 10 November 2014 to 28 November 2014 inclusive of GST and disbursements).[36]
[30] Exhibit 443 (page 3281).
[31] Exhibit 465 (pages 3354 - 3358).
[32] Exhibits 443 (page 3281), 434 (page 3195).
[33] Exhibit 465 (page 3353) (which document was also included in the bundle of documents at exhibit 216 (page 2353)).
[34] Exhibits 465 (page 3354) (which document was also included in the bundle of documents at exhibits 377 (page 2886), 433 (page 3142), 443 (page 3288); see also exhibit 434 (page 3207).
[35] Exhibit 465 (page 3355) (which document was also included in the bundle of documents at exhibits 461 (page 3343), 216 (page 2354), 433 (page 3143)); see also exhibit 434 (page 3209).
[36] Exhibit 465 (page 3356) (which document was also included in the bundle of documents at exhibits 216 (page 2355), 433 (page 3144)); see also exhibit 434 (page 3211).
Legal advice sought in response to the 'Unilateral Alteration Conduct' and the 'Bank Guarantee Conduct'
30In support of its claim, AA Technical Services referred to and relied upon the findings that had been made concerning unconscionable conduct of the nature, and spanning the four periods, described at [21(a)] above.
31As to the 'Unilateral Alteration Conduct':
(a)AA Technical Services had complained that AWD Diversified unilaterally altered the 10 day term arrangement. It did so when on 10 October 2013, AWD Diversified issued AA Technical Services with an invoice calculated on the basis of 20 days of occupation of the Leased Premises (not on the basis of the 10 day term arrangement); and on 30 October 2013, when AWD Diversified issued AA Technical Services with an invoice in the amount of $45,564.86 (again not on the basis of the 10 day term arrangement);[37]
(b)AA Technical Services had also complained that by text message from Mr McKenzie to Mr Paul Dodd at or around 6.28 pm on 16 January 2014, Mr McKenzie on behalf of AWD Diversified demanded that if AWD Diversified did not receive $20,000 by the following morning, AA Technical Services would be 'shut down' without warning;[38]
(c)AWD Diversified's conduct in unilaterally altering terms was found to reveal a disregard for the legitimate interest that AA Technical Services had in its occupation of the Leased Premises pursuant to the 10 day term arrangement, and given their respective bargaining positions, was found to be unreasonable and unfair, and as such was unconscionable in all of the circumstances. The complete disregard of the position of AA Technical Services and promotion of its own interests had taken the conduct of AWD Diversified outside of the norm;[39] and
(d)Mr Diedler and Mr McKenzie were both found to have been involved in the invoicing alterations and had expressly approved the same.[40]
[37] AA Technical Services Pty Ltd v Diedler [No 2] [903].
[38] AA Technical Services Pty Ltd v Diedler [No 2] [908].
[39] AA Technical Services Pty Ltd v Diedler [No 2] [910], [983].
[40] AA Technical Services Pty Ltd v Diedler [No 2] [911].
32As to the 'Bank Guarantee Conduct':
(a)AA Technical Services had complained that on or about 25 November 2013 AWD Diversified drew down on the bank guarantee provided by AA Technical Services in the amount of $43,436.84, and had applied the bank guarantee to the December 2013 rental and outgoings obligations of AA Technical Services, which amounts were not yet due or payable;[41]
(b)it was established that AWD Diversified had made a demand on the bank guarantee on 25 November 2013, and the bank guarantee was honoured by the Commonwealth Bank of Australia on or about 4 December 2013, which paid the guarantee amount to AWD Diversified in circumstances where AWD Diversified was not entitled to so demand;[42] and
(c)the conduct of AWD Diversified in drawing down on the bank guarantee was found to be unconscionable, and it was found that both Mr Diedler and Mr McKenzie were involved with and had approved the draw down of the bank guarantee.[43]
[41] AA Technical Services Pty Ltd v Diedler [No 2] [921].
[42] AA Technical Services Pty Ltd v Diedler [No 2] [922] - [923].
[43] AA Technical Services Pty Ltd v Diedler [No 2] [924] - [925].
33There was evidence that legal advice was sought by AA Technical Services in response to the 'Unilateral Alteration Conduct' and the 'Bank Guarantee Conduct', which included:
(a)the email communication sent on 14 October 2013 by Mr Kennedy to Mr Diedler and Mr McKenzie, copied to Mr Paul Dodd with the subject 'CBD Plans', the text of which was reproduced in my earlier reasons.[44] Reference was made in that email communication to the taking of independent legal advice in circumstances where it had been asserted that AA Technical Services was in default of its lease, and various threats had been made;
[44] AA Technical Services Pty Ltd v Diedler [No 2] [585]; exhibit 135 (page 2108).
(b)Mr Kennedy's evidence given in the course of cross‑examination that he recalled that legal advice was being taken around the time the email communication referred to above was sent, 'sort of mid towards the end of 2013';[45]
[45] AA Technical Services Pty Ltd v Diedler [No 2] [586]; ts 244 (21 September 2021).
(c)Mr Paul Dodd's evidence to the effect that he recalled having received an invoice for rent dated 10 October 2013, which was an invoice for rent for a period longer than 10 days, and that after receipt of that invoice, advice had been sought from Mr Andrew Mason. Further, that AA Technical Services had:[46]
[46] Exhibit 133; ts 284 (22 September 2021).
… continued to - to seek advice of our best path to proceed with but also address paying - paying it to maintain the - the business as a going concern.
(d)the invoice issued by Roe Legal Services to AA Technical Services on 31 October 2013, which included two time entries on 14 October 2013. The description of the work performed on 14 October 2013 was 'Attending on client' and 'Email advice on lease to client';[47]
(e)the letter sent on 19 December 2013 by Roe Legal Services to AWD Diversified which referred to the dispute that had arisen as to the rent and variable outgoings payable by AA Technical Services to AWD Diversified. Further and among other things, Roe Legal Services noted in that letter that they were:[48]
… instructed that in relation to the amounts due for the month of December 2013 [AWD Diversified had] drawn upon the bank guarantee provided by our clients and that [AWD Diversified] did so before the December rental and variable outgoings were due and payable and before our client had an opportunity to tender payment of the December rental and variable outgoings. Please note that our client disputes your entitlement to have used (sic) of the bank guarantee.
(f)the invoice issued by Roe Legal Services to AA Technical Services on 30 December 2013, which included three time entries, one on 3 December 2013, and two on 17 December 2013. The description of work performed was 'General Attention response on email and confer with client and email to counsel in relation to documents', 'Attending client' and 'Drafting letter to AWD', respectively;[49] and
(g)the invoice issued by Roe Legal Services to AA Technical Services on 31 January 2014, which included two time entries on 16 January 2014. The description of work performed on 16 January 2014 was 'Phone Call from P Walker & P Dodd, reviewing lease for relevant clauses and the draft letter to the Landlord together with the default letter of December 13' and 'Phone Call to P Walker'.[50]
[47] Exhibit 434 (page 3189); see also sch A to these reasons.
[48] Exhibit 170 (page 2215).
[49] Exhibit 434 (page 3191); see also sch A to these reasons.
[50] Exhibit 434 (page 3193); see also sch A to these reasons.
34There was sufficient evidence to be satisfied that legal advice had been sought by AA Technical Services in response to the 'Unilateral Alteration Conduct' and the 'Bank Guarantee Conduct'. Indeed, this finding was consistent with the submissions made on behalf of AWD Diversified, which included the following:[51]
We know that … on the evidence, the plaintiff was receiving legal advice at all times or at least had the access to legal advice. And it should be inferred that, at all material times, the plaintiff was receiving legal advice in relation to issues such as the redevelopment notice and the lease, and its rights under the lease generally.
[51] ts 661 (30 September 2021).
35Further, in the context of submissions made as to whether the alteration of payment terms was unreasonable, counsel for AWD Diversified made the following submission:[52]
Requiring the plaintiff to pay rent in accordance with the terms of the lease and the 10-day arrangement was not an unreasonable, unnecessary term. And, I suppose, on top of that, we could say that the 20 and 30-day invoices were also, in those circumstances that existed at the time, not unreasonable. And your Honour will recall the email of 19 July 2013 that has been referred to. It says:
It is imperative that the payments are received on the due dates. Otherwise, we have no alternative but to terminate this agreement with immediate effect.
The plaintiff was capable of understanding all of the documents that were before it. It received legal advice in relation to them, certainly before the end of the dispute. We submit that there's no undue influence, pressure exerted, unfair tactics that were used by the landlord. (Emphasis added.)
[52] ts 696 - 697 (30 September 2021).
36The legal costs sought to be recovered by way of an award of damages for advice obtained prior to AA Technical Services being locked-out of the Leased Premises (that is, during the period when the 'Unilateral Alteration Conduct' and the 'Bank Guarantee Conduct' occurred) were very modest. The total cost for legal services rendered from 14 October 2013 to 16 January 2014 was $1,661 (inclusive of GST or $1,510 exclusive of GST), and there was no claim for disbursement charges incurred in that period.
37I accepted that the legal fees incurred from 14 October 2013 to 16 January 2014 were incurred because of the 'Unilateral Alteration Conduct' and the 'Bank Guarantee Conduct' of AWD Diversified. Having regard to the evidence before the court as to when the invoices rendered by Roe Legal Services were paid by AA Technical Services,[53] there was sufficient evidence to reasonably infer and be satisfied that AA Technical Services' loss of $1,661 (inclusive of GST or $1,510 exclusive of GST) occurred on 3 September 2014, when AA Technical Services paid $20,000 to Roe Legal Services.
[53] See [29] above.
38In all of the circumstances, there was sufficient connection between the conduct and the damage suffered for the latter to be regarded as 'because of' the former. Counsel for Mr Diedler pressed for the court to review the invoices relied upon critically, in light of all of the evidence before the court.[54] I did so. Counsel also suggested that the court might have regard to what proportion of the plaintiff's claims were successful and apply a percentage discount to the claim for damages with respect to the legal costs incurred.[55] I did not consider such an approach to be supported by the authorities. While the unconscionable conduct occurred in a broader context of dealings as between AWD Diversified and AA Technical Services, having given careful consideration to the findings made and the evidence described at [33] above, I was satisfied that the 'Unilateral Alteration Conduct' and the 'Bank Guarantee Conduct' were sufficient causes of the whole of the loss claimed to have been suffered by AA Technical Services. I was satisfied that the whole of that loss was a consequence of the established unconscionable conduct, to the requisite standard.
[54] ts 812 - 813 (15 March 2024).
[55] ts 811 (15 March 2024).
39Further, I was satisfied that it had been established that AA Technical Services suffered loss or damage because of the conduct of AWD Diversified which was in breach of the Australian Consumer Law, such loss falling within the scope of claimable damages under s 236 of the Australian Consumer Law; and that there was a sufficient connection between the unconscionable conduct of AWD Diversified (through Mr Diedler and Mr McKenzie), and the damage suffered by AA Technical Services. Legal responsibility for the loss suffered ought be vindicated by an award of damages, giving effect to the purpose of s 21 and s 236 of the Australian Consumer Law.[56]
[56] I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [26].
Legal advice sought in response to the 'Refusing Access Conduct'
40As to the 'Refusing Access Conduct':
(a)AA Technical Services had complained that AWD Diversified failed to reasonably facilitate AA Technical Services removing its property from the Leased Premises when:[57]
[57] AA Technical Services Pty Ltd v Diedler [No 2] [945].
(i) on 29 April 2014 it locked the basement carpark and fire escape stairwell and turned off the lifts, which affected the ability of the AA Technical Services to retrieve its property;
(ii) between late January 2014 and 30 April 2014 AWD Diversified, through Mr Diedler and Mr McKenzie, refused AA Technical Services access to the ground floor of the Leased Premises to allow AA Technical Services to remove its property from the ground floor despite AA Technical Services having been willing and able to do so;
(iii) throughout January to April 2014 AWD Diversified, through Mr Diedler and Mr McKenzie, did not allow Marand Transport or AA Technical Services to remove AA Technical Services' property from the ground floor of the Leased Premises until the first floor of the Leased Premises was cleared;
(iv) throughout January to April 2014 AWD Diversified, through Mr Diedler and Mr McKenzie, on several occasions failed to allow AA Technical Services access to the Leased Premises to remove AA Technical Services' property despite request; and
(v) throughout January to April 2014 AWD Diversified, through Mr Diedler and Mr McKenzie, denied AA Technical Services access to its property at the Leased Premises;
(b)the conduct complained of was established, as it was found that:
(i)AWD Diversified had denied AA Technical Services access to the Leased Premises to retrieve its property, and the evidence did not support a finding that AA Technical Services had not attempted to recover its property;[58]
(ii)AWD Diversified had sought to exploit its unfair bargaining position. It had acted unjustly, without a proper basis to deny access, and capriciously as it varied the unreasonable conditions it insisted upon from time to time; and
(iii) AWD Diversified's conduct was unconscionable, and Mr Diedler and Mr McKenzie were involved with and expressly or implicitly approved the same.[59]
[58] AA Technical Services Pty Ltd v Diedler [No 2] [946].
[59] As to the findings described at [40(b)(ii) and (iii)] of these reasons, see AA Technical Services Pty Ltd v Diedler [No 2] [959], [984] - [988]; see also [944], [717] - [718].
41There also was evidence that legal advice was sought by AA Technical Services in response to the 'Refusing Access Conduct', which included:
(a)the evidence of Mr Alan Dodd, who among other things, described how he came to learn that AA Technical Services had been locked-out of the Leased Premises, and what transpired after the lock-out.[60] Mr Alan Dodd gave evidence to the effect that after having been informed of the lock-out, he immediately contacted Roe Legal and said 'please sort';[61]
[60] As was recorded at AA Technical Services Pty Ltd v Diedler [No 2] [119], [120].
[61] ts 143 (20 September 2021).
(b)Mr Alan Dodd's email communication of 24 January 2014 to Mr Diedler, in which Mr Alan Dodd, among other things, reiterated that Mr Diedler was to communicate with AA Technical Services through Roe Legal Services;[62]
(c)the email communication from Roe Legal Services sent on 29 January 2014 to Mr Diedler, in which Mr Paul Sheiner of Roe Legal Services recorded that he was instructed that his client '… owns the equipment and fittings at the premises and intends to take action in relation to that equipment and the tenancy. It disputes that the landlord has any right to remove or otherwise deal with this property';[63]
(d)the email communication sent on the same date by Roe Legal Services to Mr Diedler in response to Mr Diedler's email sent on 31 January 2014, in which Mr Sheiner recorded, among other things, that AA Technical Services did 'not agree that [AWD Diversified had] the right to deal with their property as alleged or on any other basis';[64]
(e)the letter dated 6 February 2014, by which Roe Legal Services on behalf of AA Technical Services requested access to the Leased Premises within 14 days to remove its equipment, fittings and other property;[65]
(f)the email communications sent by Roe Legal Services on 12 February 2014, by which Mr Diedler was asked to advise a date and time that AA Technical Services could attend the Leased Premises to remove equipment belonging to it;[66]
(g)in response to Mr Diedler's various communications of 13, 14 and 17 February 2014, the demands made by Roe Legal Services on behalf of AA Technical Services for access to the Leased Premises to remove its property;[67]
(h)the various communications as between AA Technical Services and AWD Diversified to which Roe Legal Services was copied;[68]
(i)the email communications sent from 9 April 2014 to 11 April 2014 as between Mr Diedler and Mr Mason of Roe Legal Services concerning access;[69]
(j)the various communications as between Roe Legal Services and Lawton Gillon, who on 26 February 2014 confirmed receipt of instructions to act for AWD Diversified;[70] and
(k)the tax invoices issued by Roe Legal Services to AA Technical Services on 31 January 2014, 20 February 2014, 29 March 2014 and 30 April 2014, and the various time entries reproduced in the invoices.[71]
[62] Exhibit 203.
[63] Exhibits 209 (page 2335), 212 (page 2339).
[64] Exhibit 215 (page 2344).
[65] Exhibit 225.
[66] Exhibits 237, 239.
[67] Exhibits 241 - 245, 247, 248.
[68] Exhibits 268, 269, 270, 273, 274, 278, 279, 280, 281, 282, 285, 286, 287, 289, 290, 295, 298, 299, 301, 303.
[69] Exhibit 294.
[70] Exhibits 253, 254, 255, 257, 259, 260, 261, 292, 296, 297, 300, 302, 304, 306, 307, 308, 309, 310, 311, 312, 313, 314.
[71] Exhibit 434; see also sch A to these reasons.
42In I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd,[72] the court observed that as was recognised in Henville v Walker,[73] there may be cases where it will be possible to say that some of the damage suffered by a person following a contravention of the Trade Practices Act 1974 (Cth) (and by analogy the Australian Consumer Law) was not caused by the contravention. But because the relevant question is whether the contravention was a cause of (in the sense of materially contributed to) the loss, cases in which it will be necessary and appropriate to divide up the loss to particular causative events are likely to be rare.[74]
[72] I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [53].
[73] Henville v Walker 474 [35], 481 ‑ 483 [65] - [72], 493 [106], 509 [153], 510 [166].
[74] Referred to in Wyzenbeek v Australasian Marine Imports Pty Ltd (in Liq) [75].
43While not expressly raised on behalf of Mr Diedler, in Mr McKenzie's absence it was necessary to give careful consideration to whether AA Technical Services suffered damage because of the 'Refusing Access Conduct' from 17 January 2014 to 29 April 2014 as was claimed, or only from 29 January 2014 to 29 April 2014. I critically examined the period 17 to 29 January 2014 cognisant that when AA Technical Services was locked‑out of the Leased Premises on 17 January 2014, it initially focused upon securing re-entry into the Leased Premises so as to continue to trade the CBD Health Spa Business. It incurred legal costs to further that end, but in circumstances where the conduct of AWD Diversified in locking out AA Technical Services was found, on balance, not to have been unconscionable.[75] Whereas from 29 January 2014, the focus of AA Technical Services had shifted to securing access to the Leased Premises so as to remove its property, which access was denied and then significantly curtailed. AA Technical Services incurred legal costs to further that end, in circumstances where the conduct of AWD Diversified in refusing AA Technical Services access to retrieve its property from the Leased Premises was found to have been unconscionable.[76]
[75] AA Technical Services Pty Ltd v Diedler [No 2] [943].
[76] AA Technical Services Pty Ltd v Diedler [No 2] [944].
44Having given careful consideration to the matter, including the period of 17 to 29 January 2014, I accepted that the legal fees incurred from 17 January 2014 to 29 April 2014 were incurred because of the 'Refusing Access Conduct' of AWD Diversified. This was not a case where it could be found that the 'Refusing Access Conduct' did not materially contribute to some part of the loss claimed in that period. While AA Technical Services' early efforts had been focused on securing re‑entry to the Leased Premises so as to recommence trading, the conduct complained of was established. AWD Diversified had denied AA Technical Services access to the Leased Premises from 17 January 2014. Re‑entry was denied in circumstances where AWD Diversified claimed to be owed in excess of $113,000 on 20 January 2014, an amount significantly higher than the amount outstanding.[77] Legal costs were incurred in an effort to secure re-entry to the Leased Premises. The contravention was a cause of (in the sense of materially contributed to) the loss suffered and sought to be recovered by way of an award of damages for legal services provided between 17 January 2014 and the end of April 2014.
[77] AA Technical Services Pty Ltd v Diedler [No 2] [717], [795] - [808].
45The quantum of legal costs sought to be recovered by way of an award of damages for the legal services provided between 17 January 2014 and 29 April 2014 was again relatively modest. The total cost of legal services performed in that period was $14,899.50 (inclusive of GST or $13,545 exclusive of GST), before any discount was applied.
46A discount of $1,438.64 (exclusive of GST) was applied to the total legal fees described in the tax invoice issued by Roe Legal Services to AA Technical Services on 29 March 2014 (that is, it was applied to the total amount of $5,075 exclusive of GST recorded for legal services provided in the period 19 February 2014 to 27 March 2014).[78] That is, a discount of 28.35%.
[78] Exhibit 434 (page 3197).
47A further discount of $3,000 (exclusive of GST) was applied to the total legal fees described in the tax invoice issued by Roe Legal Services to AA Technical Services on 30 May 2014 (that is, it was applied to the total amount of $7,760 exclusive of GST recorded for the period 29 April 2014 to 27 May 2014).[79] That is, a discount of 38.66%.
[79] Exhibit 434 (page 3201).
48While legal fees were incurred on 30 April 2014, I was not satisfied that they were incurred because of the 'Refusing Access Conduct'. This is because the description of work performed on 30 April 2014 as was recorded in the invoice issued by Roe Legal Services on 30 May 2014 referenced the removal of equipment, and as such appeared to most appropriately be legal advice sought and given in response to and because of the 'Seizure Conduct' (which is discussed below).[80]
[80] Exhibit 434 (page 3201); see also sch A to these reasons.
49After the discounts, the total cost incurred by AA Technical Services for legal services rendered exclusive of GST from 17 January 2014 to 29 April 2014 was:
Date range
Amount
Amount
after discount17 January 2014 to 31 January 2014
$4,625
$4,625
4 February 2014 to 18 February 2014
$1,450
$1,450
19 February 2014 to 27 March 2014
$5,075
$3,636.24
30 March 2014 to 28 April 2014
$1,955
$1,955
29 April 2014
$400
$245.36
Total (exclusive of GST)
$13,505
$11,911.60
50After the discount was applied, the cost of the legal services provided to AA Technical Services from 17 January 2014 to 29 April 2014 was $13,102.76 (inclusive of GST or $11,911.60 exclusive of GST).
51Again, in all of the circumstances, there was sufficient connection between the conduct and the damage suffered for the latter to be regarded as 'because of' the former. While the unconscionable conduct occurred in a broader context of dealings as between AWD Diversified and AA Technical Services, the 'Refusing Access Conduct' was a sufficient cause of the loss suffered by way of legal costs incurred from 17 January 2014 to 29 April 2014 in the amount of $13,102.76 (inclusive of GST or $11,911.60 exclusive of GST). Again, to the requisite standard, I was satisfied that this loss was a consequence of established unconscionable conduct.
52Having regard to the evidence before the court as to when the invoices rendered by Roe Legal Services were paid by AA Technical Services,[81] there was sufficient evidence to reasonably infer and be satisfied that AA Technical Services' loss occurred on 21 February 2014 with respect to the payment of $1,595 (the total amount invoiced on 20 February 2014 for the work performed in the period 4 February 2014 to 18 February 2014 inclusive of GST); and on 3 September 2014 with respect to the payment of $11,507.76 (when AA Technical Services paid $20,000 to Roe Legal Services).
[81] See [29] above.
53I was satisfied that AA Technical Services suffered loss or damage because of the conduct of AWD Diversified in breach of the Australian Consumer Law, such loss falling within the scope of claimable damages under s 236 of the Australian Consumer Law; and when regard was had to the evidence summarised at [41] above, there was established a sufficient connection between the unconscionable conduct of AWD Diversified (through Mr Diedler and Mr McKenzie), and the damage suffered by AA Technical Services. Further, I was satisfied that an award of damages in favour of AA Technical Services in this amount would give effect to the purpose of s 21 and s 236 of the Australian Consumer Law.
Disbursements invoiced on 31 January 2014
54AA Technical Services also incurred the cost of disbursements charged by Roe Legal Services in this period. In the invoice issued on 31 January 2014, a total charge of $35.64 (inclusive of GST or $32.40 exclusive of GST) was incurred for disbursements for the provision of company extracts.[82]
[82] Exhibit 434 (page 3193); see also sch A to these reasons.
55While AA Technical Services acknowledged that the company extracts referenced in the invoice were not in evidence before the court, it submitted that the uncontested evidence before the court was the invoice dated 31 January 2014.[83]
[83] Plaintiff's supplementary submissions filed 25 July 2024 par 18.
56I accepted that there was sufficient evidence to be satisfied that on behalf of AA Technical Services, Roe Legal Services incurred costs in the amount of $16.20 each to obtain current company extracts, and those costs were invoiced as disbursements to AA Technical Services. Having regard to the evidence before the court as to when the invoices rendered by Roe Legal Services were paid by AA Technical Serivces,[84] there was sufficient evidence to reasonably infer and be satisfied that AA Technical Services' loss occurred on 3 September 2014 with respect to the payment of $35.64 (inclusive of GST).
[84] See [29] above.
57On behalf of AA Technical Services, it was submitted, and I accepted, that the disbursements recorded in the invoice, on the balance of probabilities, related to the legal services provided in January 2014, which legal services were incurred because of the 'Refusing Access Conduct'.[85] It was further submitted on behalf of AA Technical Services that obtaining current company extracts was an inherently reasonable step in the provision of legal advice concerning corporations, and the commencement of legal proceedings against a corporation, and that the recovery of such disbursements as compensable damage ought rise or fall with the recovery of the other entries in the invoice. I found the submissions made to be persuasive, also noting that unlike other invoices, the invoice of 31 January 2014 had not been redacted. That is, there were no time entries for legal services recorded on the invoice of 31 January 2014 that AA Technical Services did not seek to recover by way of an award of damages because the services were not provided (and therefore the costs were not incurred) because of established unconscionable conduct.
[85] Plaintiff's supplementary submissions filed 25 July 2024 par 19.
58On balance, applying a common‑sense approach, I was satisfied that the disbursements were incurred because of the 'Refusing Access Conduct', and were compensable.
Legal advice sought in response to the 'Seizure Conduct'
59As to the 'Seizure Conduct':
(a)AA Technical Services had complained that:
(i) on 30 April 2014 AA Technical Services arrived at the Leased Premises and found that a storage company was removing the property of AA Technical Services from the ground floor of the Leased Premises;
(ii) between 30 April 2014 and 2 May 2014 AWD Diversified through Mr Diedler and Mr McKenzie caused the property of AA Technical Services to be removed from the Leased Premises by removal business A2B and stored by A2B; and
(iii) on 30 April 2014 AWD Diversified discovered that its property was taken to a storage facility owned by A2B;[86]
(b)it was established that property of AA Technical Services was removed from the Leased Premises and was taken to be stored at another location, and this was discovered by AA Technical Services;[87]
(c)AA Technical Services complained that AWD Diversified seized its property in circumstances where it ought not have, having referred to and relied upon 14 matters. The circumstances complained of in which the removal occurred were also established on the evidence;[88]
(d)the conduct of AWD Diversified in this period was found to have been characterised by a substantial departure from what was generally commercial behaviour to the extent that it was properly characterised as offensive. When considered as a whole, AWD Diversified's conduct was unconscionable;[89]
(e)it was established that commencing on 30 April 2014, AA Technical Services through Mr Diedler and Mr McKenzie caused property owned by AA Technical Services to be removed from the Leased Premises by A2B and stored.[90] Mr Diedler had instructed the maintenance company he used, Yokkers, to arrange removal, and the removal of AA Technical Services' property from the Leased Premises took place under Mr Diedler's supervision;[91]
(f)Mr Diedler was found to have been directly involved in organising the removal of property from the Leased Premises.[92] If not expressly, Mr McKenzie implicitly approved the removal to the property from the Leased Premises from 30 April 2014;[93] and
(g)the established unconscionable conduct of AWD Diversified was found to have been carried out by one or both of Mr Diedler and Mr McKenzie, and occasionally at their direction, with their implicit or express agreement. Mr Diedler and Mr McKenzie were each found to have been persons involved in contravention of the Australian Consumer Law.[94]
[86] AA Technical Services Pty Ltd v Diedler [No 2] [965].
[87] AA Technical Services Pty Ltd v Diedler [No 2] [966].
[88] AA Technical Services Pty Ltd v Diedler [No 2] [967] - [968].
[89] AA Technical Services Pty Ltd v Diedler [No 2] [973].
[90] AA Technical Services Pty Ltd v Diedler [No 2] [753].
[91] AA Technical Services Pty Ltd v Diedler [No 2] [753], [972].
[92] AA Technical Services Pty Ltd v Diedler [No 2] [754], [755], [972].
[93] AA Technical Services Pty Ltd v Diedler [No 2] [754].
[94] AA Technical Services Pty Ltd v Diedler [No 2] [988].
60It was also established that:
(a)on about 23 May 2014 AA Technical Services and AWD Diversified came to an agreement regarding the payment of some of the costs claimed by AWD Diversified in the amount of $8,301.59. AA Technical Services paid $8,301.59 by way of bank cheque to AWD Diversified on 26 May 2014, following which AWD Diversified allowed AA Technical Services to discuss with A2B the recovery of its property;[95]
(b)on 26 May 2014 Mr Diedler authorised A2B to provide AA Technical Services its property, took the cheque for $8,301.59 and immediately left;[96]
(c)despite the agreement that was reached between the parties as to the payment of the costs of removal, A2B refused to release to AA Technical Services its property as it had not been paid by AWD Diversified, and it took some months before Marand Transport was able to take possession of the property;[97]
(d)AA Technical Services was able to take possession of some but not all of its property from 26 to 28 May 2014. Access to the remainder was denied until further payment was received. Agreement was reached on 13 October 2014 as between AA Technical Services and A2B, and upon payment of a further $3,500 to A2B, the remainder of AA Technical Services' property was released to it on or about 14 October 2014.[98]
[95] AA Technical Services Pty Ltd v Diedler [No 2] [761].
[96] AA Technical Services Pty Ltd v Diedler [No 2] [762].
[97] AA Technical Services Pty Ltd v Diedler [No 2] [762], [764].
[98] AA Technical Services Pty Ltd v Diedler [No 2] [765].
61It was AA Technical Services' position that were it not for the 'Seizure Conduct', AA Technical Services would not have had to instruct Roe Legal Services to try to stop the removal of its property from the Leased Premises, nor would it have had to take steps to recover the seized property (and it would not have incurred legal fees in doing so).
62There was evidence that legal advice was sought by AA Technical Services from Roe Legal Services in response to the removal of its property from the Leased Premises, and that Roe Legal Services acted on instructions from AA Technical Services to recover the property, which included:
(a)the email communication from Mr Paul Walker to Mr Mason sent on 30 April 2014 concerning the removal of AA Technical Services' property from the Leased Premises;[99]
[99] Exhibit 315.
(b)the communications between Roe Legal Services and Lawton Gillon on 28 April 2014 and 2 May 2014, by which it was communicated on behalf of AA Technical Services that if any equipment was removed from the Leased Premises it should be delivered to AA Technical Services;[100]
[100] AA Technical Services Pty Ltd v Diedler [No 2] [756], referring to exhibits 313 (page 2705), 316.
(c)the invoice issued by Roe Legal Services to AA Technical Services on 30 May 2014, particularly the time entry for 30 April 2014, the description of work performed being 'General Attention removal of equipment - emails and communications with client';[101]
[101] Exhibit 434 (page 3201); see also sch A to these reasons.
(d)the correspondence sent by Lawton Gillon to Roe Legal Services on 7 May 2014, which concerned AWD Diversified then seeking to charge AA Technical Services $38,070 for removal and storage costs, and by which Lawton Gillon also put AA Technical Services on notice that if it did not comply with AWD Diversified's demand for reimbursement and make arrangements to collect its property from where it was then stored, AWD Diversified intended to sell AA Technical Services' property so as to recover its costs of removal and storage;[102]
[102] AA Technical Services Pty Ltd v Diedler [No 2] [757], referring to exhibit 319.
(e)the correspondence dated 20 May 2014, by which Roe Legal Services informed Lawton Gillon that they had instructions to apply to the court for an injunction to restrain AWD Diversified from selling or otherwise dealing with AA Technical Services' property and equipment, and for delivery up of the property and equipment. In that correspondence, Roe Legal Services noted that papers were being prepared to be filed on 21 May 2014 and an urgent hearing would be sought;[103]
[103] AA Technical Services Pty Ltd v Diedler [No 2] [759], referring to exhibit 321.
(f)the letter dated 21 May 2014 from Lawton Gillon to Roe Legal Services outlining proposals suggested on behalf of AWD Diversified to avoid a contested interlocutory injunction application in circumstances where AWD Diversified maintained the right to sell the property of AA Technical Services;[104]
[104] Exhibit 322.
(g)the letter dated 21 May 2014, by which Roe Legal Services among other things, informed Lawton Gillon that the amount claimed for removal and storage was not agreed and was considerably higher than market rate;[105]
[105] AA Technical Services Pty Ltd v Diedler [No 2] [759], referring to exhibit 323.
(h)the email communications from Lawton Gillon to Roe Legal Services sent on 22 and 23 May 2014, by which a proposal was communicated on behalf of AWD Diversified to AA Technical Services and negotiated;[106]
[106] Exhibits 329, 330, 332, 335.
(i)the invoice issued by Roe Legal Services to AA Technical Services on 30 May 2014, particularly the time entries for 19 to 22 May 2014 which concerned the preparation of court documents for the foreshadowed injunction application, and the time entry which concerned 'settlement of matter';[107]
[107] Exhibit 434 (page 3201); see also sch A to these reasons.
(j)the letter dated 24 July 2014 from Roe Legal Services to A2B, and the response received on 25 July 2014;[108]
[108] Exhibits 345, 361.
(k)the invoice issued by Roe Legal Services to AA Technical Services on 31 July 2014, particularly the time entries which recorded the instructions received and actions undertaken in furtherance of the recovery of the property of AA Technical Services from A2B;[109]
(l)the email communication from Mr Mason to Mr Alan Dodd sent on 4 August 2014 attaching a draft letter and updating the client;[110]
(m)the letter dated 6 August 2014 from Roe Legal Services to A2B, and the responses received on 13, 15, and 19 August 2014;[111]
(n)the letter dated 21 August 2014 from Roe Legal Services to A2B, and the response received on 27 August 2014;[112]
(o)the invoice issued by Roe Legal Services to AA Technical Services on 28 August 2014, particularly the time entries which recorded the instructions received and actions undertaken in furtherance of the recovery of the property of AA Technical Services from A2B;[113]
(p)the letter dated 2 September 2014 from Roe Legal Services to A2B, and the response received on 9 September 2014;[114]
(q)the invoice issued by Roe Legal Services to AA Technical Services on 30 September 2014, particularly the time entries which recorded the instructions received and actions undertaken in furtherance of the recovery of the property of AA Technical Services from A2B;[115]
(r)the email communications between Roe Legal Services and A2B on 13 October 2014;[116]
(s)the invoice issued by Roe Legal Services to AA Technical Services on 31 October 2014, particularly the time entries which recorded the instructions received and actions in furtherance of the recovery of the property of AA Technical Services from A2B;[117] and
(t)the various email communications to Mr Mason and to which Mr Mason was copied concerning the storage and recovery of the property of AA Technical Services.[118]
[109] Exhibit 434 (page 3203); see also sch A to these reasons.
[110] Exhibit 361.
[111] Exhibits 363, 364, 365, 367, 368.
[112] Exhibits 370, 372.
[113] Exhibit 434 (page 3205); see also sch A to these reasons.
[114] Exhibits 373, 374.
[115] Exhibit 434 (page 3207); see also sch A to these reasons.
[116] Exhibits 378, 379.
[117] Exhibit 434 (page 3209); see also sch A to these reasons.
[118] Exhibits 327, 329, 333, 334, 335, 336, 337, 338, 362, 371, 375.
63The legal costs sought to be recovered by way of an award of damages for advice obtained between 30 April 2014 and 28 November 2014 (that is, from 30 April 2014 to 5 May 2014 when the 'Seizure Conduct' occurred and in the months that followed) were again relatively modest. The total cost of legal services performed in the period 30 April 2014 to 28 November 2014 before any discount was applied was $13,475 (inclusive of GST or $12,250 exclusive of GST).
64As is noted at [47] above, a discount of $3,000 (exclusive of GST) was applied to the total legal fees described in the tax invoice issued by Roe Legal Services to AA Technical Services on 30 May 2014 (that is, it was applied to the total amount of $7,760 exclusive of GST recorded for the period 29 April 2014 to 27 May 2014).[119] That is, a discount of 38.66%.
[119] Exhibit 434 (page 3201).
65After the discounts, the total cost incurred (and sought to be recovered) by AA Technical Services for legal services rendered exclusive of GST from 30 April 2014 to 28 November 2014 was:
Date range
Amount
Amount
after discount30 April 2014 to 27 May 2014
$7,360
$4,514.62
14 July 2014 to 28 July 2014
$1,125
$1,125
1 August 2014 to 21 August 2014
$1,375
$1,375
1 September 2014 to 11 September 2014
$1,470
$1,470
9 October 2014 to 20 October 2014
$640
$640
13 November 2014 to 28 November 2014
$280
$280
Total (exclusive of GST)
$12,250
$9,404.62
66I was satisfied that AA Technical Services had taken legal advice in the period from 30 April 2014 to 28 November 2014, and had incurred costs in doing so. There was ample documentary evidence in the form of email communications, letters, and time entries recorded in the invoices issued by Roe Legal Services in the relevant period to be satisfied of the same.
67Having regard to the evidence before the court as to when the invoices rendered by Roe Legal Services were paid by AA Technical Services,[120] there was sufficient evidence to reasonably infer and be satisfied that AA Technical Services' loss occurred on 10 October 2014 with respect to the payment of $1,617 (of the $1,989.90 invoiced on 30 September 2014 for the work performed in the period 1 September 2014 to 22 September 2014 inclusive of GST and disbursements); on 13 November 2014 with respect to the payment of $704 (of the $2,460.26 invoiced on 31 October 2014 for the work performed in the period 2 October 2014 to 21 October 2014 inclusive of GST and disbursements); on 5 December 2014 with respect to the payment of $308 (of the $653 invoiced on 1 December 2014 for the work performed in the period 10 November 2014 to 28 November 2014 inclusive of GST and disbursements); and on 3 September 2014 with respect to the payment of $7,716.08 (of the amounts invoiced on 30 May 2014, 31 July 2014 and 28 August 2014).
[120] See [29] above.
68It is otherwise convenient to deal with the claim with respect to losses said to have been incurred because of the Seizure Conduct in three parts.
Legal fees incurred from 30 April 2014 to 28 May 2014
69The first part concerns legal fees incurred from 30 April 2014 to 28 May 2014.
70I readily came to the conclusion that the legal fees incurred from 30 April 2014 (when the property of AA Technical Services was removed from the Leased Premises) to 28 May 2014 (when Mr Diedler contacted A2B and further confirmed that AA Technical Services was authorised to remove its property from the storage premises of A2B),[121] were incurred because of the 'Seizure Conduct' of AWD Diversified. Before any discount was applied, legal fees were incurred in this period in the amount of $8,096 (inclusive of GST or $7,360 exclusive of GST). After the application of the discount that had been given by Roe Legal Services, legal fees were incurred in this period in the amount of $4,966.08 (inclusive of GST or $4,514.62 exclusive of GST).
[121] Exhibits 336, 337.
71I was satisfied that there was again, in all of the circumstances, sufficient connection between the conduct and the damage suffered for the latter to be regarded as 'because of' the former. While the unconscionable conduct occurred in a broader context of dealings as between AWD Diversified and AA Technical Services, the 'Seizure Conduct' from 30 April 2014 to 5 May 2014 was a sufficient cause of the loss claimed to have been suffered by way of legal costs incurred in that period, and beyond to 28 May 2014. I accepted that if it were it not for the 'Seizure Conduct', AA Technical Services would not have had to engage Roe Legal Services to try on its behalf to stop the removal of its property from the Leased Premises, and then pursue recovery of the seized property (and it would not have incurred legal fees in doing so). There was established a causal connection between AWD Diversified's conduct and the loss alleged to have been suffered by AA Technical Services. There was a sufficient evidentiary foundation to be satisfied that AWD Diversified's conduct was a cause of AA Technical Services' loss.
72Further, I was satisfied that AA Technical Services suffered loss because of the conduct of AWD Diversified in breach of the Australian Consumer Law, such loss falling within the scope of claimable damages under s 236 of the Australian Consumer Law; and that there was a sufficient connection between the unconscionable conduct of AWD Diversified (through Mr Diedler and Mr McKenzie), and the damage suffered by AA Technical Services by way of legal fees incurred from 30 April 2014 to 27 May 2014 (the last time entry in the invoice issued by Roe Legal Services to AA Technical Services on 30 May 2014). There was also sufficient evidence to reasonably infer and be satisfied that AA Technical Services' loss occurred on 3 September 2014 with respect to the payment of $4,966.08 (of the $5,501.32 invoiced on 30 May 2014 for the work performed in the period 29 April 2014 to 27 May 2014).
Disbursements invoiced on 30 May 2014
73AA Technical Services also incurred the cost of disbursements charged by Roe Legal Services in this period. In the invoice issued on 30 May 2014, a total charge of $265.32 (inclusive of GST or $241.20 exclusive of GST) was incurred for disbursements for the provision of four current and seven historical company extracts.[122] Having regard to the evidence before the court as to when the invoices rendered by Roe Legal Services were paid by AA Technical Services,[123] there is sufficient evidence to reasonably infer and be satisfied that AA Technical Services' loss occurred on 3 September 2014 with respect to the payment of these disbursement costs.
[122] Exhibit 434 (page 3201); see also sch A to these reasons.
[123] See [29] above.
74In short, AA Technical Services submitted that the time details for the legal services provided in May 2014 primarily concerned the preparation of papers for an injunction; and the basis for injunctive relief (which application was not in the end filed) was disclosed in the letter sent by Roe Legal Services to Lawton Gillon on 20 May 2014, in which Mr Mason of Roe Legal Services recorded, among other things, that he was:[124]
… instructed to apply to restrain [AWD Diversified] from selling or otherwise dealing with [AA Technical Services'] property and equipment and for delivery up of the property and equipment. Papers are being prepared to be filed tomorrow and an urgent hearing sought.
[124] Exhibit 321; plaintiff's supplementary submissions filed 25 July 2024 pars 24 - 25.
75AA Technical Services submitted that the clear and obvious inference to be drawn in light of the above was that the company extracts were obtained for the purposes of an application for injunctive relief. Further, it was noted that that the proposed injunction was to restrain what was ultimately the Seizure Conduct from occurring, in the face of the Refusing Access Conduct; and absent the Refusing Access Conduct (and then the threats to undertake the Seizure Conduct), AA Technical Services would not have instructed Roe Legal Services to seek to restrain AWD Diversified, and it would not have incurred the costs of the related disbursements.
76Again, a very modest amount is claimed. I found the submissions made on behalf of AA Technical Services to be persuasive. I also took comfort that unlike other invoices, the 30 May 2014 invoice had not been redacted. There was no evidence that legal services were provided in this period in addition to the services provided because of the established unconscionable conduct. It was therefore possible to infer that the company extracts were obtained to be used in the preparation of papers for injunctive relief. In the end, adopting a common sense approach, I was satisfied that these were costs incurred because of the established unconscionable conduct of AWD Diversified, and as noted above, the loss was suffered on 3 September 2014.
Legal fees incurred from 14 July 2014 to 20 October 2014
77The second part concerns the legal fees incurred from 14 July 2014 to 20 October 2014 in the amount of $5,071 (after discount and inclusive of GST or $4,610 after discount and exclusive of GST). Having regard to the evidence before the court as to when the invoices rendered by Roe Legal Services were paid by AA Technical Services,[125] there was sufficient evidence to reasonably infer and be satisfied that AA Technical Services' loss with respect to the invoices rendered on 31 July 2014 and 28 August 2014 occurred on 3 September 2014; AA Technical Services' loss with respect to the invoice rendered on 30 September 2014 occurred on 10 October 2014; and AA Technical Services' loss with respect to the invoice rendered on 31 October 2014 occurred on 13 November 2014.
[125] See [29] above.
78It was AA Technical Services' position that this loss occurred because of the 'Seizure Conduct' of AWD Diversified. As noted above, Mr Diedler opposed damages being ordered for these (or any of the) legal costs claimed for the reasons summarised at [23] above.
79Again, it was necessary to give careful consideration to whether there was a sufficient connection between the 'Seizure Conduct' and the damage claimed to be suffered by way of legal fees incurred from 14 July 2014 to 20 October 2014 for them to be regarded as 'because of' the unconscionable 'Seizure Conduct'.
80As to the circumstances in which legal services were obtained in this period, I noted as follows.
81As noted above, it was established that AA Technical Services' property had been removed from the Leased Premises and taken to A2B storage facility, where it was stored at the instruction of AWD Diversified; and on about 23 May 2014 AA Technical Services and AWD Diversified came to an agreement regarding the payment of some of the costs claimed by AWD Diversified in the amount of $8,301.59.
82It was established that Mr Diedler received payment from AA Technical Services on 26 May 2014 and then authorised A2B to provide AA Technical Services with its property. There was evidence that A2B received payment for the storage of AA Technical Services' property from AWD Diversified up to 2 June 2014.[126]
[126] Exhibits 360 (page 2834), 368 (page 2861).
83As to how Mr Diedler communicated to A2B that he authorised A2B to provide AA Technical Services with its property, it was Mr Diedler's evidence that after he took the cheque from AA Technical Services, he then went to the receptionist at A2B and told the receptionist that A2B could release the equipment, and after doing so, he left.[127] There was no evidence of Mr Diedler having in writing authorised A2B to release the equipment. Further, Mr Diedler accepted that he was not told by A2B that A2B would release to AA Technical Services its property,[128] and he also accepted that he took no further action to ensure that A2B acted upon his authorisation.[129]
[127] ts 557 (28 September 2021); as noted in the plaintiff's supplementary submissions filed 25 July 2024 par 32.
[128] ts 557 (28 September 2021).
[129] ts 558 (28 September 2021).
84Mr Paul Dodd's evidence was that Marand Transport attended the premise of A2B to collect AA Technical Services' property on about 26 May 2014 and was turned away.[130] The tax invoice rendered by Marand Transport dated 11 June 2014, particularly the description of services provided on 26 May 2014, supported Mr Paul Dodd's account.[131]
[130] ts 298 (22 September 2021).
[131] Exhibit 462.
85On 27 May 2014, Mr Mason of Roe Legal Services wrote to Mr Diedler and informed him that A2B had refused to allow AA Technical Services to remove the equipment without his authority, and (among other things) demanded that Mr Diedler without delay contact A2B and authorise A2B to allow AA Technical Services to remove its property without further impediment.[132]
[132] Exhibit 336 (pages 2779 - 2780).
86On 28 May 2014 Mr Diedler responded to Mr Mason of Roe Legal Services concerning the removal of AA Technical Services' property from the premises of A2B.[133] While it was Mr Diedler's evidence that he took no further action to ensure that A2B acted upon his authorisation,[134] by his email of 28 May 2014 Mr Diedler informed Mr Mason that:
(a)Mr Diedler had that day contacted A2B;
(b)AA Technical Services had been authorised to remove its property from the A2B premises, as per Mr Diedler's earlier instructions;
(c)storage of AA Technical Services' property at A2B had been paid until 30 May 2014;
(d)Mr Diedler understood that AA Technical Services had instructed A2B to transport its property from the premises of A2B and to seek payment from Mr Diedler in relation to the cost of transportation; and
(e)Mr Diedler would not meet the cost of transportation.
[133] Exhibit 336 (page 2779).
[134] ts 558 (28 September 2021).
87AA Technical Services was able to take possession of some but not all of its property between 26 to 28 May 2014, consistent with the finding that on 26 May 2014 Mr Diedler had authorised A2B to provide AA Technical Services with its property.[135]
[135] Exhibit 462, 360, 345 (page 2818), 368 (page 2861).
88Despite the agreement that had been reached as between AA Technical Services and AWD Diversified, A2B refused to release the remainder of the property to AA Technical Services until it received additional payment (which AWD Diversified refused to pay). It was some months until Marand Transport was able to take possession of the remainder of the property on behalf of AA Technical Services (after further payment was made by AA Technical Services to A2B). Legal fees were incurred by AA Technical Services in securing recovery.
89Tendered into evidence was correspondence as between AA Technical Services and A2B in which it was asserted on behalf of A2B that:
(a)A2B had received payment for the storage of AA Technical Services' property from AWD Diversified up to 2 June 2014;[136]
(b)A2B incurred labour costs in transporting sea containers (in which AA Technical Services' property was being stored) from the A2B storage facility to the premises of Marand Transport. I understood that the movement of the sea containers occurred between 26 and 28 May 2014;[137]
(c)Ms Glenda Dodd had been quoted $2,000 as the cost of transporting some of AA Technical Services' property stored at A2B to the premises of Marand Transport, and credit card details had been requested of Ms Glenda Dodd and were provided to A2B;[138]
(d)the transport cost was invoiced in the amount of $2,002.77;[139] and
(e)A2B was entitled to payment of the transport cost for the movement of the sea containers between 26 and 28 May 2014, and that payment was to be received before AA Technical Services would be permitted to remove the remainder of its property from the A2B storage facility. Furthermore, until payment was received, and the property removed, storage fees would continue to accrue.[140]
[258] Lexis Nexis, Civil Procedure Western Australia, vol 1 (202-04-24) [1185.2], citing Province Leader of Oceania Province of Congregation of Christian Brothers v Lawrence [59], [115].
Exercise of the discretion
233As to whether to exercise discretion to order that pre-judgment interest be paid, I weighed in the balance the nature of the proceeding, and the context in which it had been established that AA Technical Services was entitled to damages. That is, certain conduct of AWD Diversified had been found to have been such a departure from the norm that it was unconscionable in all of the circumstances, and Mr Diedler and Mr McKenzie were each found to be persons involved in the contraventions of the Australian Consumer Law.
234An award of pre-judgment interest up to the date of the judgment pursuant to s 32 of the Supreme Court Act is an award of interest in the nature of damages, and thus understood, it is an element in the attainment of the object of damages, namely, to compensate a claimant for the injury sustained. The complained of unconscionable conduct was egregious. In all the circumstances, it was entirely appropriate that AA Technical Services be compensated for having been kept out of the money which theoretically was due to it at the date the various losses were suffered.
235Further, I did not consider the absence of power under the Australian Consumer Law to award interest on damages awarded pursuant to s 236 to weigh against the exercise of the discretion pursuant to s 32(1) of the Supreme Court Act. As noted above, there is no provision which precludes an award of interest on damages awarded pursuant to s 236 by operation of the Supreme Court Act, or otherwise.
236Having considered whether to order interest at all (and being satisfied that more complete justice between the parties would be advanced by such an order), further discretions arose. First, as to the interest rate to be applied; secondly, as to the amount on which interest ought accrue (which may be an amount less than the whole of the judgment); and thirdly, over what period interest ought run.[259]
[259] Province Leader of Oceania Province of Congregation of Christian Brothers v Lawrence [60], citing Foyster v Goynich (No 2) [1984] WAR 91, 92, and also referring to McQuillan v J F Thomson (WA) Pty Ltd [1984] WAR 258, 259.
Rate of interest that ought be applied
237As to the rate of interest to be applied, AA Technical Services moved for pre-judgment interest on all sums awarded at 6%,[260] and no submission was made in support of or in opposition to the application of that rate.
[260] Plaintiff's submissions filed 27 February 2024 par 32.
238The Rules of the Supreme Court O 36 r 20 provides that when computing interest for the purposes of the Supreme Court Act s 32, subject to any evidence adduced, the court may use, as a guide, the rate of interest prescribed from time to time for the purposes of s 8 of the Civil Judgment Enforcement Act. The Civil Judgments Enforcement Regulations 2005 (WA) prescribes at 6% pa to be the rate of interest for the purposes of s 8(1)(a) of the Civil Judgment Enforcement Act. There was no change in the prescribed rate over the period that AA Technical Services sought that interest run.
239In circumstances where no submission was made as to the appropriate rate of interest, and no evidence to the contrary was adduced, it was appropriate that discretion be exercised to apply the rate of 6% pa in calculation of pre-judgment interest.
The amount on which interest ought accrue
240As to the amount on which interest ought accrue, it was appropriate in all of the circumstances that it accrue on all of the damages assessed in AA Technical Services' favour. An award of interest operates to ensure that the claimant receives a current equivalent of money's worth,[261] and an order that interest will accrue on all of the damages assessed will best achieve this end.
[261] Province Leader of Oceania Province of Congregation of Christian Brothers v Lawrence [60].
241Weighing in the balance all of the circumstances, I found that the purpose or object of s 32 of the Supreme Court Act (that is, to do more complete justice between the parties), was advanced and was in no way hindered by an award of pre-judgment interest on each head of damage or loss as had been assessed.
The period interest ought run
242As to what period the interest ought run, by its terms, s 32 of the Supreme Court Act permits an order for interest that commences from the date that the relevant cause of action arose. It may be awarded for the whole or part of the certain period - the 'period between the date when the cause of action arose and the date when the judgment takes effect'.[262]
[262] Supreme Court Act s 32(1); Province Leader of Oceania Province of Congregation of Christian Brothers v Lawrence [59].
243As to the damages for the loss of AA Technical Services' property, I found that AA Technical Services suffered damage because of AWD Diversified's conduct. AA Technical Services established that after the lock-out on 17 January 2014, AWD Diversified acted unjustly, without a proper basis to deny access to the Leased Premises, and capriciously as it varied the unreasonable conditions it insisted upon from time to time. I concluded that AWD Diversified's conduct was unconscionable, and Mr Diedler and Mr McKenzie were involved with and expressly or implicitly approved the same.[263] AWD Diversified also acted unconscionably in removing the property from the Leased Premises on 30 April 2014, which caused AA Technical Services to suffer loss and damage through the loss, damage and destruction of its property.[264]
[263] AA Technical Services Pty Ltd v Diedler [No 2] [959], [984] - [988]; see also [944], [717] - [718].
[264] AA Technical Services Pty Ltd v Diedler [No 2] [960], [972].
244While the assessment of damages was based on a valuation of the property as at 17 January 2014 (the date of the lock-out), AA Technical Services moved for pre-judgment interest for the period commencing 30 April 2014 to the date of judgment.
245While AA Technical Service suffered the loss of use of its property from a date earlier than 30 April 2014, it was established that it suffered damage through the loss, damage and destruction of its property on 30 April 2014, and I had no difficulty in awarding pre-judgment interest from the date promoted on behalf of AA Technical Services, being 30 April 2014.
246As to the damages for legal fees and disbursements incurred, AA Technical Services had calculated interest from the date of invoice.[265] However, when regard was had to the evidence as to when the invoices rendered by Roe Legal Services were paid by AA Technical Services,[266] there was sufficient evidence to be satisfied that AA Technical Services' loss occurred on 3 September 2014 with respect to the payment of $1,661;[267] on 21 February 2014 with respect to the payment of $1,595;[268] on 3 September 2014 with respect to the payment of $11,507.76;[269] on 3 September 2014 with respect to the payment of $35.64;[270] on 3 September 2014 with respect to the payment of $4,966.08;[271] on 3 September 2014 with respect to the payment of $265.32;[272] on 3 September 2014 with respect to the payment of $1,237.50;[273] on 3 September 2014 with respect to the payment of $1,512.50;[274] on 10 October 2014 with respect to the payment of $1,617;[275] and on 13 November 2014 with respect to the payment of $704.[276] It is appropriate and just that pre-judgment interest be paid from the dates of payment of those respective amounts until judgment.
[265] Plaintiff's submissions filed 27 February 2024, Annexure B.
[266] See [29] above.
[267] See [37] above.
[268] See [52] above.
[269] See [52] above.
[270] See [56] above.
[271] See [72] above.
[272] See [76] above.
[273] See [77] above.
[274] See [77] above.
[275] See [77] above.
[276] See [77] above.
247As to the damages for storage fees incurred, when regard was had to the evidence before the court as to when the invoice rendered by Marand Transport was paid by AA Technical Services,[277] there was sufficient evidence to be satisfied that AA Technical Services' loss occurred on 5 November 2014 with respect to the payment of $15,403.54. It is appropriate and just that pre-judgment interest be paid from 5 November 2014 on that amount until judgment.
[277] See [136] above.
248As to the damages for other removal fees incurred, when regard was had to the evidence as to when the invoices rendered by Marand Transport were paid by AA Technical Services, there was sufficient evidence to be satisfied that AA Technical Services' loss occurred on 1 July 2014 with respect to the payment of $121;[278] on 5 November 2014 with respect to the payment of $456.50;[279] on 21 November 2014 with respect to the payment of $423.50;[280] on 21 November 2014 with respect to the payment of $505.44;[281] on 21 November 2014 with respect to the payment of $907.50;[282] on 13 April 2015 with respect to the payment of $1,122.77;[283] on 16 February 2015 with respect to the payment of $1,705;[284] on 15 October 2015 with respect to the payment of $181.50;[285] and on 4 November 2015 with respect to the payment of $968.[286] Again, it is appropriate and just that pre-judgment interest be paid from the dates of payment of those respective amounts until judgment.
[278] See [149] and [152] above.
[279] See [162] and [165] above.
[280] See [169] and [180] above.
[281] See [169] and [180] above.
[282] See [169] and [180] above.
[283] See [182] and [185] above.
[284] See [186] and [189] above.
[285] See [191] and [198]above.
[286] See [191] and [198] above.
249As to damages for Seizure Costs, first, when regard was had to the evidence before the court as to when a bank cheque for $8,301.59 was drawn and presented to Mr Diedler, there was sufficient evidence to be satisfied that AA Technical Services' loss occurred on 26 May 2014.[287] It is appropriate and just that pre-judgment interest be paid from 26 May 2014 until judgment. Secondly, when regard was had to the evidence as to when payment was made to A2B in the sum of $3,500, there was sufficient evidence to be satisfied that AA Technical Services' loss occurred on 14 October 2014.[288]
[287] See [209] above.
[288] See [220] above.
250In all of the circumstances, I was satisfied that the purpose or object of s 32 was more advanced, and was in no way hindered by an award of pre-judgment interest from the respective dates the losses claimed were incurred, and discretion ought to be so exercised.
251The relevant dates and calculations of pre-judgment interest as were promoted on behalf of AA Technical Services were set out in Annexure B to the submissions filed on its behalf on 27 February 2024. While it was Mr Diedler's position that certain costs should not be included in the damages awarded at all, as noted above, no submission was made with respect to the period any interest awarded ought to run.
252I was satisfied that the facts necessary for the exercise of discretion under Supreme Court Act s 32 had been established. Therefore, having assessed that AA Technical Services' recoverable damage for:
(a) the loss of its property was $199,812.65 (inclusive of GST or $181,647.86 exclusive of GST), which loss occurred on 30 April 2014;
(b)the legal fees and disbursements it incurred was:
(i)$1,661 (inclusive of GST or $1,510 exclusive of GST), which loss occurred on 3 September 2014;
(ii)$13,102.76 (inclusive of GST or $11,911.72 exclusive of GST), which loss occurred on 21 February 2014 with respect to the payment of $1,595, and on 3 September 2014 with respect to the payment of $11,507.76 (both amounts inclusive of GST);
(iii)$35.64 (inclusive of GST of $32.40 exclusive of GST), which loss occurred on 3 September 2014;
(iv)$4,966.08 (inclusive of GST or $4,514.62 exclusive of GST), which loss occurred on 3 September 2014;
(v)$265.32 (inclusive of GST or $241.20 exclusive of GST), which loss occurred on 3 September 2014; and
(vi)$5,071 (inclusive of GST or $4,610 exclusive of GST) which loss occurred on 3 September 2014 with respect to the payment of $1,237.50; on 3 September 2014 with respect to the payment of $1,512.50; on 10 October 2014 with respect to the payment of $1,617; and on 13 November 2014 with respect to the payment of $704 (all amount inclusive of GST);
(c)the storage fees it incurred was $15,403.54 (inclusive of GST or $14,003.22 exclusive of GST), which loss occurred on 5 November 2014;
(d)the removal costs it incurred was:
(i)$121 (inclusive of GST or $110 exclusive of GST), which loss occurred on 1 July 2014;
(ii)$456.50 (inclusive of GST or $415 exclusive of GST), which loss occurred on 5 November 2014;
(iii)$423.50 (inclusive of GST or $385 exclusive of GST), which loss occurred on 21 November 2014;
(iv)$505.44 (inclusive of GST or $459.49 exclusive of GST), which loss occurred on 21 November 2014;
(v)$907.50 (inclusive of GST or $825 exclusive of GST), which loss occurred on 21 November 2014;
(vi)$1,122.77 (inclusive of GST or $1,020.70 exclusive of GST), which loss occurred on 13 April 2015;
(vii)$1,705 (inclusive of GST or $1,550 exclusive of GST), which loss occurred on 16 February 2015;
(viii)$181.50 (inclusive of GST or $165 exclusive of GST, which loss occurred on 15 October 2015;
(ix) $968 (inclusive of GST or $880 exclusive of GST), which loss occurred on 4 November 2015;
(e)the Seizure Costs it incurred was:
(i)$8,301.59 (inclusive of GST or $7,546.90 exclusive of GST), which loss occurred on 26 May 2014; and
(ii)$3,500 (inclusive of GST or $3,181.82 exclusive of GST), which loss occurred on 14 October 2014,
it was appropriate to include interest in the sum for which judgment would be given with respect to each amount from the date that each loss occurred. Set out at sch B to these reasons are the interest calculations.
Conclusion and orders
253Having determined that the court would enter judgment in favour of AA Technical Services for the reasons set out above, I considered it appropriate to include interest in the amount for which judgment would be given, and to make an order for post-judgment interest.
254AA Technical Services was entitled to an order for judgment in its favour. Mr Diedler and Mr McKenzie are to pay to AA Technical Services damages in the amount of $416,867.21, an amount inclusive of pre‑judgment interest, together with interest on that sum, the sum of $68.53 per day from 15 August 2024 until payment. I will hear the parties as to costs.
Sch A - Time and disbursement details
Time details:
* denotes that no discount was applied to the amount.
Date
Fee Earner
Description
Rate
Units
Amount excl of GST ($)
Amount incl of GST ($)
Amount post-discount excl of GST ($)
Amount post-discount incl of GST ($)
Invoice issued on 31 October 2013
14/10/13
Andrew Mason
Attending on client
400.00
5.00
200.00
220.00
200.00*
220.00*
14/10/13
Andrew Mason
Email advice on lease to client
400.00
5.00
200.00
220.00
200.00*
220.00*
Invoice issued on 30 December 2013
3/12/13
Andrew Mason
General Attention response on email and confer with client and email to counsel in relation to documents
400.00
7.00
280.00
308.00
280.00*
308.00*
17/12/13
Andrew Mason
Attending client
400.00
7.00
280.00
308.00
280.00*
308.00*
17/12/13
Andrew Mason
Drafting letter to AWD
400.00
5.00
200.00
220.00
200.00*
220.00*
Invoice issued on 31 January 2014
16/01/14
Hemachandra Sam
Phone Call from P Walker & P Dodd, reviewing lease for relevant clauses and the draft letter to the Landlord together with the default letter of December 13
350.00
8.00
280.00
308.00
280.00*
308.00*
16/01/14
Hemachandra Sam
Phone Call to P Walker
350.00
2.00
70.00
77.00
70.00*
77.00*
17/01/14
Hemachandra Sam
Attending to telephone calls with P Dodd, P Walker and D Woolfenden, attending meeting with P Dodd, reviewing lease, considering options, reviewing previous correspondence and drafting letter to the Landlord, telephone discussion with the Landlord, email to the Landlord
350.00
55.00
1,925.00
2117.50
1925.00*
2117.50*
17/01/14
Paul Sheiner
General Attention Attending client and settling letter to landlord re re-entry to premises
400.00
20.00
800.00
880.00
800.00*
880.00*
18/01/14
Hemachandra Sam
Phone Call from A Dodd
350.00
1.00
35.00
38.50
35.00*
38.50*
18/01/14
Hemachandra Sam
Considering jurisdiction for an injunction to obtain possession of the premises
350.00
3.00
105.00
115.50
105.00*
115.50*
19/01/14
Hemachandra Sam
Phone Call A Dodd, considering law relevant to termination of leases with uncertain period and drafting email to A Dodd
350.00
19.00
665.00
731.50
665.00*
731.50*
19/01/14
Paul Sheiner
Phone Call Client advising including preparation
400.00
12.00
480.00
528.00
480.00*
528.00*
20/01/14
Hemachandra Sam
Perusing email from the Landlord
350.00
1.00
35.00
38.50
35.00*
38.50*
20/01/14
Paul Sheiner
Phone Call Paul McKenzie - without prejudice conference including preparation
400.00
4.00
160.00
176.00
160.00*
176.00*
20/01/14
Paul Sheiner
Email McKenzie re offer
400.00
2.00
80.00
88.00
80.00*
88.00*
20/01/14
Paul Sheiner
Email Client re offer including phone call
400.00
2.00
80.00
88.00
80.00*
88.00*
24/01/14
Hemachandra Sam
Phone Call from A Dodd and perusing email from A Dodd to the landlord
350.00
3.00
105.00
115.50
105.00*
115.50*
29/01/14
Hemachandra Sam
Perusing email from A Dodd
350.00
1.00
35.00
38.50
35.00*
38.50*
31/01/14
Paul Sheiner
Email Landlord including email to client seeking instructions
400.00
3.00
120.00
132.00
120.00*
132.00*
Invoice issued on 20 February 2014
04/02/14
Hemachandra Sam
Perusing email from A Dodd and previous communications and considering strategy
350.00
3.00
105.00
115.50
105.00*
115.50*
04/02/14
Hemachandra Sam
Perusing previous emails
350.00
2.00
70.00
77.00
70.00*
77.00*
04/02/14
Hemachandra Sam
Drafting email to A Dodds and calculating the arrears
350.00
5.00
175.00
192.50
175.00*
192.50*
04/02/14
Hemachandra Sam
Attending to finalise email to A Dodd
350.00
1.00
35.00
38.50
35.00*
38.50*
05/02/14
Hemachandra Sam
Perusing email from A Dodd
350.00
1.00
35.00
38.50
35.00*
38.50*
05/02/14
Hemachandra Sam
Perusing email from P McKenzie & A Dodd
350.00
1.00
35.00
38.50
35.00*
38.50*
07/02/14
Andrew Mason
General Attention peruse letter and email to client
400.00
2.00
80.00
88.00
80.00*
88.00*
11/02/14
Hemachandra Sam
Perusing email from client and correspondence from the landlord
350.00
1.00
35.00
38.50
35.00*
38.50*
12/02/14
Andrew Mason
General Attention various emails
400.00
5.00
200.00
220.00
200.00*
220.00*
13/02/14
Andrew Mason
Email client and to AA Technical re equipment
400.00
5.00
200.00
220.00
200.00*
220.00*
14/02/14
Andrew Mason
General Attention various emails to Jochen and from Jochen
400.00
4.00
160.00
176.00
160.00*
176.00*
17/02/14
Andrew Mason
General Attention email exchanges with Jochen and clients
400.00
4.00
160.00
176.00
160.00*
176.00*
18/02/14
Andrew Mason
Perusing materials from Dodd
400.00
4.00
160.00
176.00
160.00*
176.00*
Invoice issued on 29 March 2014
19/02/14
Andrew Mason
Email AWD
400.00
2.00
80.00
88.00
57.32
63.05
28/02/14
Andrew Mason
General Attention prepare for meeting
400.00
3.00
120.00
132.00
85.98
94.58
28/02/14
Andrew Mason
Attending on client
400.00
10.00
400.00
440.00
286.61
315.27
28/02/14
Andrew Mason
Drafting spreadsheets
400.00
20.00
800.00
880.00
573.22
630.54
05/03/14
Andrew Mason
Email from Lawton Gillon and to client re meeting
400.00
5.00
200.00
220.00
143.30
157.63
06/03/14
Andrew Mason
Phone Call client
400.00
2.00
80.00
88.00
57.32
63.05
06/03/14
Andrew Mason
General Attention schedules and emails with client and respond to meeting request
400.00
10.00
400.00
440.00
286.61
315.27
07/03/14
Andrew Mason
General Attention schedules
400.00
5.00
200.00
220.00
143.30
157.63
07/03/14
Andrew Mason
Drafting amended schedules
400.00
19.00
760.00
836.00
544.56
599.01
07/03/14
Andrew Mason
General Attention complete tables and email to Lawton Gillon
400.00
10.00
400.00
440.00
286.61
315.27
10/03/14
Andrew Mason
General Attention prepare for meeting
400.00
5.00
200.00
220.00
143.30
157.63
10/03/14
Andrew Mason
Attending on client
400.00
10.00
400.00
440.00
286.60
315.27
10/03/14
Andrew Mason
Attending at meeting with AWD
400.00
10.00
400.00
440.00
286.61
315.27
14/03/14
Andrew Mason
General Attention settlement for removal of equipment - call on clients and Lawton Gillon
400.00
5.00
200.00
220.00
143.30
157.63
18/03/14
Andrew Mason
Email from clients to Jochen
400.00
1.00
40.00
44.00
28.66
31.53
19/03/14
Andrew Mason
Phone Call client
400.00
2.00
80.00
88.00
57.32
63.05
19/03/14
Andrew Mason
General Attention emails and calls with client and Lawton Gillon
400.00
4.00
160.00
176.00
114.64
126.11
20/03/14
Andrew Mason
Phone Call Lawton Gillon
400.00
3.00
120.00
132.00
85.98
94.58
27/03/14
Hemachandra Sam
Phone Call from gym member and email to A Dodd
350.00
1.00
35.00
38.50
25.08
27.59
Invoice issued on 30 April 2014
30/03/14
Hemachandra Sam
Perusing email from A Dodd
350.00
1.00
35.00
38.50
35.00*
38.50*
09/04/14
Andrew Mason
General Attention email to lawton gillon (sic)
400.00
5.00
200.00
220.00
200.00*
220.00*
11/04/14
Andrew Mason
General Attention email to Lawton gillon (sic)
400.00
5.00
200.00
220.00
200.00*
220.00*
15/04/14
Andrew Mason
General Attention emails from client and from lawton gillon (sic), phone call from client
400.00
7.00
280.00
308.00
280.00*
308.00*
16/04/14
Andrew Mason
Email to lawton gillon (sic)
400.00
6.00
240.00
264.00
240.00*
264.00*
17/04/14
Andrew Mason
General Attention various emails with client and with Lawton Gillon
400.00
5.00
200.00
220.00
200.00*
220.00*
24/04/14
Andrew Mason
General Attention settlement discussions
400.00
10.00
400.00
440.00
400.00*
440.00*
28/04/14
Andrew Mason
General Attention various attendances on client and emails to LG re removal of equipment and belongings
400.00
10.00
400.00
440.00
400.00*
440.00*
Invoice issued on 30 May 2014
29/04/14
Andrew Mason
General Attention various attendances throughout day on client and LG - emails and calls
400.00
10.00
400.00
440.00
245.36
269.90
30/04/14
Andrew Mason
General Attention removal of equipment - emails and communications with client
400.00
1.00
40.00
44.00
24.54
26.99
19/05/14
Andrew Mason
General Attention injunction
400.00
40.00
1,600.00
1760.00
981.44
1079.58
19/05/14
Andrew Mason
General Attention injunction
400.00
5.00
200.00
220.00
122.68
134.95
20/05/14
Andrew Mason
General Attention injunction papers - affidavit, summons, writ, undertaking, urgency, conferral letter, instructions from client
400.00
50.00
2,000.00
2200.00
1226.80
1349.48
21/05/14
Andrew Mason
General Attention prepare injunction papers - includes attendance on client, counsel, consider Lawton Gillon letter and other matters
400.00
60.00
2,400.00
2640.00
1472.16
1619.38
22/05/14
Andrew Mason
Email counsel
400.00
2.00
80.00
88.00
49.07
53.98
22/05/14
Andrew Mason
Phone Call client
400.00
2.00
80.00
88.00
49.07
53.98
22/05/14
Andrew Mason
Drafting amendments to Paul Dodd affidavit
400.00
10.00
400.00
440.00
245.36
269.90
22/05/14
Andrew Mason
General Attention settlement of matter
400.00
10.00
400.00
440.00
245.36
269.90
27/05/14
Andrew Mason
Phone Call various calls from client and email to Jochen
400.00
4.00
160.00
176.00
98.14
107.96
Invoice issued on 31 July 2014
14/07/14
Rowan Gallagher
Phone Call from and phone call to G Dodd regarding equipment held by A to B transport
300.00
3.00
90.00
99.00
90.00*
99.00*
15/07/14
Rowan Gallagher
Phone Call from A Dodd regarding A to B transport, confirming instructions
300.00
2.00
60.00
66.00
60.00*
66.00*
16/07/14
Rowan Gallagher
Email to G Dodd regarding details for purposes of sending letter of demand to A to B storage
300.00
2.00
60.00
66.00
60.00*
66.00*
22/07/14
Andrew Mason
Letter to A2B – includes conferral with client, Andrew Crawford and witnesses
400.00
20.00
800.00
880.00
800.00*
880.00*
28/07/14
Andrew Mason
General Attention response to clients
400.00
2.00
80.00
88.00
80.00*
88.00*
28/07/14
Hemachandra Sam
Perusing instructions
350.00
1.00
35.00
38.50
35.00*
38.50*
Invoice issued on 28 August 2014
01/08/14
Hemachandra Sam
Perusing instructions and prepare letter to A2B
350.00
8.00
280.00
308.00
280.00*
308.00*
04/08/14
Andrew Mason
Settling letter of demand
400.00
5.00
200.00
220.00
200.00*
220.00*
06/08/14
Andrew Mason
General Attention confer Andrew Crawford, settle letter and instruct on sending
400.00
5.00
200.00
220.00
200.00*
220.00*
06/08/14
Hemachandra Sam
Phone Call from A Dodd
350.00
1.00
35.00
38.50
35.00*
38.50*
13/08/14
Andrew Mason
General Attention confer with Glenda Dodd and emails to Alan Dodd
400.00
4.00
160.00
176.00
160.00*
176.00*
19/08/14
Rowan Gallagher
Drafting letters to A2B storage regarding offer and response to claim
300.00
10.00
300.00
330.00
300.00*
330.00*
21/08/14
Andrew Mason
Settling letters to A2B
400.00
5.00
200.00
220.00
200.00*
220.00*
Invoice issued on 30 September 2014
01/09/14
Andrew Mason
Attending on client
400.00
10.00
400.00
440.00
400.00*
440.00*
02/09/14
Andrew Mason
Letter to A2B on lien
400.00
20.00
800.00
880.00
800.00*
880.00*
05/09/14
Andrew Mason
General Attention review Go Getta Agreement and phone call to client - advice
400.00
5.00
200.00
220.00
200.00*
220.00*
09/09/14
Hemachandra Sam
Perusing email from A2B Storage & Removals
350.00
1.00
35.00
38.50
35.00*
38.50*
11/09/14
Hemachandra Sam
Perusing email from A2B Removals and Storage and email to A Dodd
350.00
1.00
35.00
38.50
35.00*
38.50*
Invoice issued on 31 October 2014
09/10/14
Andrew Mason
General Attention phone call with A2B and client - negotiate settlement
400.00
4.00
160.00
176.00
160.00*
176.00*
13/10/14
Andrew Mason
General Attention settlement
400.00
3.00
120.00
132.00
120.00*
132.00*
14/10/14
Andrew Mason
General Attention phone calls with client and A2B - finalise settlement
400.00
5.00
200.00
220.00
200.00*
220.00*
20/10/14
Andrew Mason
General Attention confer client, A2B and client
400.00
4.00
160.00
176.00
160.00*
176.00*
Invoice issued on 1 December 2014
13/11/14
Andrew Mason
General Attention equipment - letter of demand
400.00
5.00
200.00
220.00
200.00*
220.00*
28/11/14
Andrew Mason
Phone Call client
400.00
2.00
80.00
88.00
80.00*
88.00*
TOTALS
$27,265
$29,991.50
$22,826.32
$25,108.96
Disbursement details:
Description
Amount excl of GST ($)
Amount incl of GST ($)
Invoice issued on 31 January 2014
Current Company Extract TriSearch automated import - Supplier: Legal First 31/01/14
16.20
17.82
Current Company Extract TriSearch automated import - Supplier: Legal First 31/01/14
16.20
17.82
Invoice issued on 30 May 2014
Current Company Extract TriSearch automated import - Supplier: Legal First 04/06/14
16.20
17.82
Historical Company Extract TriSearch automated import - Supplier: Legal First 04/06/14
25.20
27.72
Historical Company Extract TriSearch automated import - Supplier: Legal First 04/06/14
25.20
27.72
Current Company Extract TriSearch automated import - Supplier: Legal First 04/06/14
16.20
17.82
Historical Company Extract TriSearch automated import - Supplier: Legal First 04/06/14
25.20
27.72
Historical Company Extract TriSearch automated import - Supplier: Legal First 04/06/14
25.20
27.72
Current Company Extract TriSearch automated import - Supplier: Legal First 04/06/14
16.20
17.82
Historical Company Extract TriSearch automated import - Supplier: Legal First 04/06/14
25.20
27.72
Current Company Extract TriSearch automated import - Supplier: Legal First 06/06/14
16.20
17.82
Historical Company Extract TriSearch automated import - Supplier: Legal First 06/06/14
25.20
27.72
Historical Company Extract TriSearch automated import - Supplier: Legal First 06/06/14
25.20
27.72
TOTALS
$273.60
$300.96
Sch B - Calculation of damages
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KO
Associate to the Honourable Justice Strk
14 AUGUST 2024
14
3