Aughton v Wilkie

[2010] NSWSC 1462

CITATION:	AUGHTON v WILKIE [2010] NSWSC 1462
HEARING DATE(S):	6 and 7 December 2010
JUDGMENT DATE :	16 December 2010
JUDGMENT OF:	Tamberlin AJ at 1
DECISION:	1. Judgment for the plaintiff in the sum of $280,000. 2. The defendant to pay the plaintiff’s costs. 3. The Cross-Claim is dismissed with costs.
CATCHWORDS:	FAIR TRADING ACT 1987 (NSW) – s 42 – misleading and deceptive conduct – whether misrepresentations made as to ownership of land – non-disclosure of encumbrances on land – whether reliance on representations – causation – whether plaintiff informed of true position prior to investment - TRUSTS – whether arrangements as to investment gave rise to an equitable charge or trust – whether any interest in land created
LEGISLATION CITED:	Fair Trading Act 1987 (NSW), ss 42, 68
CATEGORY:	Principal judgment
CASES CITED:	Campomar Socieadad, Limitada v Nike International Ltd (2000) 202 CLR 45 Gould v Vaggelas (1985) 157 CLR 215 I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109 March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 Winterton Constructions Pty Ltd v Hambros Australia Ltd (1992) 39 FCR 97
PARTIES:	Robert David Aughton – Plaintiff Brent Alan Wilkie - Defendant
FILE NUMBER(S):	SC 2009/287365
COUNSEL:	Plaintiff in person J-J Loofs – Defendant
SOLICITORS:	Plaintiff self-represented John McDonald & Partners - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

TAMBERLIN AJ

16 December 2010

2009/287365 ROBERT DAVID AUGHTON v BRENT ALAN WILKIE

JUDGMENT

1 HIS HONOUR: In his Statement of Claim, the plaintiff (Mr Aughton) claims that the defendant (Mr Wilkie) holds two parcels of land at Tweed Heads, namely Lots 30 and 31 in Deposited Plan 1073293 (the land) in trust for him and that he has an entitlement under such trust to an amount of $280,000 plus 50% of the net sale proceeds of the land together with a share of rental income. As an alternative he claims that the land is subject to a charge to secure the above amounts and he also claims damages. He seeks an order that a trustee be appointed for sale and that the land be sold and that there be a consequent accounting in respect of the proceeds. By way of further alternative relief he claims damages pursuant to s 68 of the Fair Trading Act 1987 (NSW) (Fair Trading Act) on the basis that the defendant has engaged in misleading and deceptive conduct primarily by making false representations.

2 By his Amended Cross-Claim the defendant (Mr Wilkie) seeks damages under the Fair Trading Act on the ground that Mr Aughton made false representations as to his ability to complete the project with a period of sixteen weeks.

OVERVIEW

3 During the months of September 2005 through to December 2006 there were discussions and correspondence between Mr Aughton and the defendant and his wife, Mrs Jo-Anne Wilkie, which resulted in the payment by Mr Aughton of $280,000 as an investment in the development of the land at South Tweed Heads.

4 On 8 December 2006 Mr Aughton provided a bank cheque for $280,000 made out in favour of an entity known as the Chelsea Investment Trust (the Trust). This is a discretionary trust and Mr Wilkie at all relevant times was the Trustee. The primary beneficiaries of that Trust are Mr and Mrs Wilkie. Mrs Wilkie was present at a number of discussions between the husband and Mr Aughton in relation to the proposed investment. At all times the Trust was the owner of the land on which the construction of two houses was proposed to be and which has now been carried out.

5 The land was purchased in December 2004 for a total amount of $565,000 and as at December 2006 it was subject to mortgages to the National Australia Bank in the sum of $445,869.76 (CB 509).

6 There is a central factual dispute between the parties as to whether there was disclosure by Mr or Mrs Wilkie to Mr Aughton of the fact that the title to land was in the Chelsea Investment Trust and was not in the ownership of Chelsea Investments Queensland Pty Ltd (CIQ) and also whether the land was mortgaged to the National Australia Bank or was unencumbered. CIQ was registered in Queensland on 2 June 2006 and went into liquidation on 22 October 2010. At all material times Mr Wilkie was the controlling mind of CIQ.

7 On 8 December 2005 the bank cheque for $280,000 provided by Mr Aughton was transferred to a term deposit account of Chelsea Investment Trust shortly after it was first deposited into another Chelsea Investment Trust account.

8 In early June 2006 Tweed Shire Council gave approval to the construction of a two-storey building on each of the lots. Work began on the construction in July 2006. However, progress was slow and in August 2006 new plans were submitted to Council for a single rather than a two-storey building because it was considered the two-storey project was no longer viable. These plans were not approved until December 2006 and they had the effect of substantially reducing the size of the buildings and delaying the project. The evidence indicates that the market price for such homes was lessening in this period.

9 By that time it became clear that further money was required as Mr Aughton’s contribution had been fully spent. On 7 December 2006 Mr Wilkie borrowed a further $250,000 from the National Australia Bank.

10 On 17 May 2007 one of the houses was completed. There were subsequently disagreement between the parties and Mr Aughton gave up his responsibilities as Project Manager and left the property in July 2007 when the other building had not been completed. The second building was completed in December 2007. The premises were rented in November 2007 and January 2008 respectively.

11 Mr Wilkie has attempted to sell the properties, at first off the plan and later after construction, but these efforts were unsuccessful and the properties remain unsold.

12 In August 2007 it appears an offer of $530,000 was received for the property and did not result in a sale. Each property is currently listed for sale at $480,000.

13 On 18 December 2008 Mr Aughton lodged caveats on the titles to each of the lots. The caveats indicate that the registered proprietor is Mr Brent Alan Wilkie and the position is that he holds as Trustee for the Chelsea Investment Trust. The interest claimed in the caveat is as follows:

“THE CAVEATOR PAID TO CHELSEA INVESTMENTS PTY LTD, A COMPANY OWNED AND CONTROLLED BY THE REGISTERED PROPRIETOR, THE SUM OF $280,000.00 WHICH THAT COMPANY WAS TO USE TO DEVELOP THE LAND THE SUBJECT OF THE CAVEAT, WHICH WOULD THEN BE SOLD AND THE PROCEEDS DISTRIBUTED ON THE BASIS THAT THE LAND WOULD BE HELD ON TRUST FOR THE CAVEATOR AND THE REGISTERED PROPRIETOR. THOSE MONIES WERE USED TO DEVELOP THE LAND BUT IN CONTRAVENTION OF THAT AGREEMENT THE REGISTERED PROPRIETOR HOLDS THE TITLE IN HIS NAME AND REFUSES TO SELL THE LAND AND DISTRIBUTE THE PROCEEDS. IN THE CIRCUMSTANCES THE REGISTERED PROPRIETOR HOLDS TH3 [sic] LAND ON TRUST FOR THE CAVEATOR AND THE LAND IS ALSO, OR ALTERNATIVELY, SUBJECT TO A CHARGE IN FAVOUR OF THE CAVEATOR WHICH ENTITLES HIM TO LODGE A CAVEAT.”

14 On 9 March 2010 the solicitor for Mr Wilkie wrote to Mr Aughton’s solicitor seeking withdrawal of the caveats on the basis they were having an adverse affect on the sale of the properties. This was not agreed to.

15 The solicitor for Mr Aughton has ceased to act and he appeared for himself on the hearing.

16 In the interim period on 30 June 2009 Mr Aughton filed a Summons seeking the relief referred to above and on 10 October 2009 filed the Statement of Claim.

17 Mr Wilkie has filed an Amended Cross-Claim in which he claims damages for misleading and deceptive conduct under the Fair Trading Act referred to above. The damages claimed are holding costs, loss of anticipated profit and loss of rental.

1. Whether the following representations were made:

(a) that at the time of the investment in December 2005 a company known as Chelsea Investment Queensland Pty Ltd (CIQ) a company of which Mr Wilkie was a director was the owner of the land;
(b) that the land at that time was unencumbered;
(c) that the investment of $280,000 would be placed in the trust account for use in the construction of houses on the land;
(d) that Mr Aughton would remain as a director of CIQ for the term of the investment.


2. Whether any of the above representations were false or misleading.

3. Whether the defendants used the funds provided by Mr Aughton for any purpose other than the construction of the project.

4. Whether Mr Aughton is entitled to any interest in the land or charge on the land.

5. Whether Mr Aughton is entitled to any damages for acting in reliance on any false representation.

6. Whether the damages claimed were caused by any false representation.

7. Whether Mr Aughton is entitled to claim damages for failing to complete construction of the house within the 16 weeks said to have been represented and if so in what amount.

LEGAL PRINCIPLES

18 The case essentially turns on the representations, discussions, correspondence and conduct of Mr and Mrs Wilkie. The plaintiff relies on s 42 of the Fair Trading Act which provides that a person shall not in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive. In the present case it is not suggested that the parties were not engaged in trade or commerce. Under s 68 of the Fair Trading Act an action lies for damages by a person who suffers loss or damage by conduct that is misleading or deceptive or likely to be misleading or deceptive. Under that provision the plaintiff can recover the amount of loss or damage from any person involved in the contravention. The loss or damage must however be caused by the misleading and deceptive conduct and if there has been no reliance or causation then the amount of loss or damage cannot be recovered.

19 The expression “conduct” is a term of wide import and is not limited to express oral or written representations but implied representations include a course of conduct manifested by action or failure to act. The conduct in question must induce or be capable of inducing error: see Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198. This is a question of fact to be determined on the particular evidence in the specific case. It is not sufficient to establish confusion or the possibility of confusion: see Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177. Intention to deceive or mislead is not a necessary element in the offence, but if it can be shown that the person or corporation intended to mislead a court may be more likely to find that the conduct complained of was misleading: see Campomar Socieadad, Limitada v Nike International Ltd (2000) 202 CLR 45.

20 Silence can amount to misleading conduct where it can be shown to be a relevant circumstance. Although there is no general duty of disclosure in circumstances where a failure to disclose could be misleading then the silence may amount to conduct which is likely to mislead or deceive. What has been referred to as “mere silence” is not of itself sufficient. The courts recognise that parties are entitled to negotiate on a fair and reasonable basis and not disclose all aspects of their dealings. As Hill J observed in Winterton Constructions Pty Ltd v Hambros Australia Ltd (1992) 39 FCR 97:

“… If the circumstances are such that a person is entitled to believe that a relevant matter affecting him or her would, if it existed, be communicated, then the failure to communicate it may constitute conduct which is misleading or deceptive because the person who ultimately may act to his or her detriment is entitled to infer from the silence that no danger or detriment existed.”

21 Depending on the circumstances silence then may be a critical matter on which reliance is or could reasonably be placed to establish misleading and deceptive conduct.

22 In relation to the need for a causal relationship between the deceptive conduct and the loss or damage it is not necessary to show that the conduct is the sole cause of the applicant’s loss or damage. It will be sufficient if it plays a part in the plaintiff’s loss or damage even if only a minor part but the effect of the conduct must not be trivial or insignificant: see I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109; Gould v Vaggelas (1985) 157 CLR 215. In the latter case, Wilson J observed that if the material representation is significantly likely to induce a representee to enter into a contract and the person actually enters into the contract, a fair inference will arise, subject to rebuttal, that the representation operated as an inducement. However, if it can be shown that circumstances were fully explained to the plaintiff or that the plaintiff acted on a self-induced or other erroneous assumption not caused by the representation or acts after having formed his or her own independent judgment, the position may well be that there was no reliance or causation in such circumstances and therefore damages are not recoverable.

23 The courts have approached the question of causation as being essentially a question of fact and degree to be determined by reference to commonsense and practical experience and one into which policy considerations and value judgments necessarily enter: see March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506.

24 I now turn to the first and main issue in the case which concerns the terms of the arrangement between the parties prior to the investment.

SUBMISSIONS AS TO THE ARRANGEMENT

25 Mr Aughton’s case is that he relied on representations by Mr and Mrs Wilkie that the land was owned by CIQ when in fact that company had never owned any land. He also says he was deceived by Mr and Mrs Wilkie into believing that the land was not encumbered whereas in fact it was mortgaged to the National Australia Bank in an amount of over $450,000. He submits that he relied on these representations in making his investment and that if he had known the true position which was that the land was owned by the Trust and/or that it was mortgaged he would not have entered into the arrangement. He therefore claims return of the funds invested.

26 The case advanced for Mr Wilkie is that it was disclosed to Mr Aughton prior to making the investment on 8 December 2005 that the property was encumbered to the National Australia Bank and that Mr Aughton being fully aware of the true position in relation to the title and the nature and extent of the encumbrances has not established that any representation was made as alleged or that it was false or that he relied on it in such a way as to cause loss and damage.

27 In order to determine this dispute it is necessary to look more closely at the dealings between the parties prior to 8 December 2005.

28 Although there are many matters raised in this proceeding the matter essentially depends on the terms and conditions of the arrangement agreed to by the parties.

TERMS AS TO THE INVESTMENT OF $280,000

29 There is a direct conflict between the evidence of Mr Aughton and Mr and Mrs Wilkie as to the terms of the discussions prior to the investment.

30 In these circumstances it is helpful to consider the terms of any documents passing between the parties in the relevant period.

31 The centrally important document, which is common ground, form the basis of the arrangement is the letter of 4 November 2005 from Mr Wilkie to Mr Aughton. It is typed on the letter of Chelsea Investments Queensland Pty Ltd and reads:

“CHELSEA INVESTMENTS
QUEENSLAND PTY LTD

4 ^TH November 2005

Mr Robert Aughton
3 Biscay Way
Coombabah
Queensland
4216

Dear Robert,

Re; Letter of intent

As discussed we wish to confirm to you the preliminary conditions of your investment and involvement in Chelsea Investments Queensland Pty Ltd as follows:

You have advised that you are prepared to offer an initial cash investment of $280,000-00 (two hundred and eighty thousand dollars) to be invested in the Development of various construction projects of which C.I.Q currently hold title , in addition C.I.Q will offer you full time employment as it’s Project Manager and additional security for your investment capital not limited to but including the following:

1. You will be issued shares in C.I.Q and nominated as a Director in the company.
2. All assets created during your investment will be vested to the Chelsea Trust administered by C.I.Q and you will be included as a beneficiary of that trust.
3. You are offered the role of Project Manager to oversee and assist in the successful completion of the various construction projects that C.I.Q may enter into during the term of your investment.
4. You will be offered an employment contract detailing all payments and conditions upon your acceptance of this letter of intent.

It is with pleasure to welcome you once again into the activities of our business and we trust that your involvement will prove to be mutually satisfying.

Yours Faithfully

(Signed B A Wilkie)

Brent Wilkie
Director.” (Emphasis added)

32 This letter on a plain and ordinary reading of the language represents that the title to the “construction projects” is held as at 4 November 2005 by CIQ. The reference to “construction projects” should comprise the overall undertaking that is the land and the proposed buildings to be erected on the land which when developed are proposed to be sold, hopefully at a profit and the proceeds distributed. The words “title” and “hold” on their ordinary meaning are referable to “land”. In ordinary usage the words “title” and “hold” are not used as referring to activities or undertakings in which a company is engaged. The reference to a project is to a plan or undertaking or to a course of conduct. One does not “hold title” to a construction project. The language conveys to a reasonable addressee that CIQ is the owner of the land. If it had been intended to convey the carrying out of a project, the reference would rather be to a “project in which the company is engaged or undertaking or proposing to undertake” or language to a similar effect rather than to “title”. An interpretation which depends on the proposition that one can hold title to a construction project is in my view artificial and forced in the circumstances of the present case.

33 The letter on its face is intended to induce confidence in Mr Aughton that his investment of $280,000 will have a degree of security. There is provision for full time employment as Project Manager and there is a reference to “additional security” at large but not limited to certain matters, namely the issue of shares and inclusion as a beneficiary of the trust administered by CIQ. In such a context it is reasonable to infer that on a practical commercial reading of the reference to holding title it would be understood by a reasonable reader that the company in which the investment was to be made owned the land and not Mr Wilkie or the Chelsea Trust of which Mr Wilkie was the trustee and one of the principal beneficiaries.

34 Accordingly, in my view the letter read as a whole and in context leads me to the conclusion that there was a representation that CIQ was at that time the owner of the land.

35 I do not consider that this interpretation is qualified or displaced by the reference in clause 2 to “assets created during the investment” being vested in the Chelsea Trust because this language is referable to future assets and does not detract from the represented position as at 4 November 2005 namely that the company held title as at that date. Accordingly, I find that this representation was made by Mr Wilkie. It is common ground that the representation was false. It is also common ground that Mr Wilkie as 4 November 2005 knew that CIQ did not own the land.

36 The next questions which arise in relation to this representation is whether Mr Aughton relied on this false representation when he made his investment and carried out work on the project and whether the false representation caused the loss or damage to Mr Aughton.

37 Mr Wilkie in substance asserts that there was no reliance or causation because Mr Aughton was fully informed by both Mr and Mrs Wilkie prior to the investment that the land was not owned by the company but rather by the Trust. Mr Aughton strongly disputes these discussions.

38 Mr Wilkie has sworn several affidavits and has been cross-examined by Mr Aughton. Mr Wilkie was an unsatisfactory witness in a number of important respects. He was not open and frank in relation to his status as a bankrupt when dealing with Mr Aughton. He was not forthcoming as to his change of name to the same name as his wife at a time when he was an undischarged bankrupt under the name of Harrison in New Zealand. He significantly altered his sworn evidence in two most important respects without any adequate explanation. For example, in paragraph 5 of his affidavit of 10 June 2010 he deposed to 10 paragraphs of a conversation which he said he had with Mr Aughton and which he altered in his later affidavit to say that the discussions in these 10 paragraphs were between his wife and Mr Aughton. In paragraph 18 of the June affidavit Mr Wilkie admits he did not have another conversation to which he had previously sworn but says was it between his wife and Mr Aughton. He concedes that he had deposed on oath to conversations which were reported to him by his wife as if they were his conversations.

39 In his affidavit of 26 March 2009, in an obvious attempt to discredit Mr Aughton, Mr Wilkie at paragraph 21 swore:

“Shortly after the funds had been deposited I had a conversation with the plaintiff and he said to me words to the following effect, ‘The money came from a drug deal I was involved in with Uncle Frank and his nephew Milan. I helped bring the drugs into New Zealand. The police in New Zealand are still looking for me’.”

40 This conversation is strongly denied by Mr Aughton and there is no note or other record in relation to it.

41 I find it is significant in assessing the credit of Mr Wilkie that there is no evidence from him that he took any steps to respond to this “disclosure” or to protest or take any action in relation to such a disclosure that the moneys were obtained from a drug importation which was apparently criminal. On his version of events, which I emphasise is denied by Mr Aughton, he permitted the money to be used in the project after learning of this.

42 I find that Mr Wilkie is an astute and experienced businessman. He has been bankrupt for a substantial period. He has been engaged in development of land and at the relevant time was a senior project manager in charge of a large retirement village project worth in the order of $40 million. He was made bankrupt in New Zealand and not discharged until 11 December 2009 yet he did not disclose this to Mr Aughton.

43 In addition, the affidavits filed by him purport to record verbatim and in very great detail without any documentary backup, in a number of instances, lengthy conversations which took place many years ago. On their face these points of his affidavits are self-serving and carefully tailored to meet the arguments sought to be advanced in the case.

44 As a consequence of the above matters, I do not accept the evidence of Mr Wilkie where it conflicts with that of Mr Aughton except where it is clearly substantiated by documentary evidence or supported by objectively established facts.

45 In relation to the evidence of Mrs Wilkie I have come to a similar conclusion. I do not accept that she was unaware of her status as a bankrupt in the period between May 2005 and 17 June 2008 which she did not disclose to Mr Aughton. Her affidavit evidence is obviously self-serving and again is somewhat crudely tailored to present a highly contrived case. The evidence is not credible in a number of respects. In particular the conversations purport to record in precise detail over many pages the exact terms of conversation which took place over 4 years ago. This is evident in the detailed material in paragraphs 18-29 of her affidavit of 18 June 2010.

46 It is improbable that Mr Aughton would agree to invest $280,000 in cash in a project when he was to derive one-third of the profit if he had know that the land on which the buildings were to be constructed was almost fully mortgaged and no substantial financial input was to be provided by Mr Wilkie or anyone on his behalf.

47 When asked what the deal was on his understanding at T31 Mr Aughton responded:

“A. The deal was that Mr and Mrs Wilkie had equity at $556,000 in the project. So I put up 280, which was a third. So I was expecting a third share of any profits.”

48 Mr Aughton was not shaken in cross-examination in relation to this evidence. The evidence is inconsistent with the land being owned by the Trust or with any disclosure having been made by Mr and Mrs Wilkie that the land was substantially mortgaged to the National Australia Bank and that the equity to be contributed by them was substantially less than the amount he was led to believe.

49 I have reached the conclusion that I should not accept her evidence except where it is substantiated by reliable documentary evidence or objectively established facts.

50 I prefer the version of events narrated by Mr Aughton to that of Mrs Wilkie.

51 Mr Aughton was in some respects an unsatisfactory witness having little idea of how to conduct a legal case but I prefer his version of the history leading up to the investment and as to conversations with Mr and Mrs Wilkie largely because they are consistent with the commercial reality of the surrounding circumstances including a concern for security on his part in respect of his investment as reflected in the awareness on the part of Mr Wilkie in sending the letter of 4 November 2005 of the necessity to assure Mr Aughton that he would have “security” for his investment.

52 I am also satisfied that no disclosure was made to Mr Aughton that the properties were encumbered to the extent of over $450,000 or at all at the time when the investment was made and the discussions and correspondence took place in the period preceding the payment by Mr Aughton.

53 The way in which the figure of $280,000 was arrived at has not been satisfactorily explained by Mr and Mrs Wilkie but the two lots were purchased for about $280,000 each and on his version Mr Aughton was to get a one-third share of the profits. This is consistent with an understanding that a similar amount was to be invested by Mr and Mrs Wilkie in the form of providing two unencumbered lots, whereas in fact the asset input on the part of Mr Wilkie was diminished by the existence of the very substantial mortgage over the land.

54 I reject the evidence of Mr and Mrs Wilkie in asserting that the existence, nature and extent of the mortgages was disclosed and I accept the evidence of Mr Aughton that he was unaware of the existence of any encumbrances.

55 I accept that having regard to his background and circumstances at the relevant times including the fact he was living with Mr and Mrs Wilkie, that he trusted and relied on Mr and Mrs Wilkie to disclose relevant matters in respect of his investment because the investment from his point of view was a large one. I accept his evidence that if he had been aware that the property was either encumbered or not owned by the company he would not have paid the amount of $280,000 and would not have entered into the transaction and would not thereby have suffered loss. I consider that his by entry into the transaction he has suffered loss which he would not otherwise have suffered. It is highly improbable that he would have invested $280,000 where the investment was in a company with no substantial assets or title to the land and where the land on which the buildings were to be erected were not owned by CIQ and was substantially encumbered to the National Australia Bank.

56 To sum up, I am satisfied that the above two false representations were made by Mr Wilkie in relation to the title to the land and the non-disclosure of the encumbrance which caused Mr Aughton to enter into the contract and as a consequence suffer the loss of the $280,000 invested.

57 Accordingly, I consider that Mr Aughton has made good his case for recovery of the moneys paid as a consequence of the conduct of Mr Wilkie, namely the amount of $280,000. I consider that he is entitled to a verdict for payment of this amount.

58 In view of my findings on these matters it is unnecessary to consider the other allegations as to representations and misleading and deceptive conduct.

OTHER CLAIMS

59 There is no evidence before me to which Mr Aughton has pointed which could reasonable afford a finding that Mr Aughton had any estate or interest in the land which arises from any trust or equitable charge. I am not persuaded that he has any equitable rights in relation to what has transpired and therefore I find that the caveat cannot be sustained for lack of any relevant interest or right. I decline to make the declaration sought by Mr Aughton in relation to his assertion that he has any proprietary interest in the land. In my view the only claim of Mr Aughton in the present matter sounds in damages.

60 In relation to the Amended Cross-Claim based on allegations that there has been misleading and deceptive conduct by Mr Aughton in the form of making representations as to the date on which the project would be completed, I am not satisfied that such a representation was made as I reject the evidence of Mr and Mrs Wilkie on this point having regard to their lack of credibility and the counter evidence of Mr Aughton which I accept. There were many factors causing the delay including particularly the amendment of the plans which did not secure approval until December 2006. I do not accept that there is any credible evidence that the loss or damage alleged by Mr Wilkie in the Cross-Claim was sustained. I also note there was a necessity to obtain further funds in the course of the project by Mr Wilkie to enable continuance of the project.

CONCLUSION

61 For the above the reasons I find that Mr Aughton has made out a case under s 42 of the Fair Trading Act and that he is entitled to damages in the sum of $280,000. I order the defendant to pay the plaintiff’s costs. I dismiss the Cross-Claim with costs.

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