Avis & Anor v Mark Bain Constructions Pty Ltd [2011] QSC 80
PARTIES:
BS2488 of 2007 CAROL LYNETTE AVIS (plaintiff) v MARK BAIN CONSTRUCTIONS PTY LTD ACN 010 846 385 (defendant)
BS2491 of 2007 BARNSCAPE PTY LTD ACN 077 636 367 (plaintiff) v MARK BAIN CONSTRUCTIONS PTY LTD ACN 010 846 385 (defendant)
FILE NO/S:
2488 of 2007 2491 of 2007
DIVISION:
Trial
PROCEEDING:
Claim
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
11 April 2011
DELIVERED AT:
Brisbane
HEARING DATES:
15 – 19 February 2010 31 March 2010 16 April 2010 31 May 2010 – 1 June 2010 3 June 2010 Further submissions received 15 June 2010, 22 June 2010 and 25 June 2010
JUDGE:
Atkinson J
ORDERS:
The first defendant in BS2488 of 2007 pay the plaintiff the sum of $283,917 as compensation under s 82 of the Trade Practices Act 1974 (Cth);
The first defendant in BS2491 of 2007 pay the plaintiff the sum of $216,483 as compensation under s 82 of the Trade Practices Act 1974 (Cth).
The court will hear submissions about orders to be made in each matter as to interest and costs.
CATCHWORDS:
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – ENFORCEMENT AND REMEDIES – ACTIONS FOR DAMAGES – ASSESSMENT OR AVAILABILITY OF DAMAGES – PARTICULAR CASES – DAMAGES ARISING OUT OF PURCHASE OF LAND OR BUSINESS OR LEASE – where plaintiffs separately entered into a contract to purchase a luxury apartment off the plan from the developer vendor – where, in entering the contract, plaintiffs relied on representations made by the real estate agent that the ocean view from the apartment would be uninterrupted – where contracts settled and plaintiffs were dissatisfied with their view as it was obstructed by a new building – where plaintiffs claimed that the representations with respect to the view were false, misleading and deceptive in contravention of s 52 and s 53A Trade Practices Act1974 (Cth) – where plaintiffs instituted proceedings against the developer on the basis that the real estate agent was its agent duly authorised to make these representations – where the defendant contended that the real estate agent was only authorised to market the apartments for sale – whether the representations made by the real estate agent fell within the scope of its actual or apparent authority
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – STATEMENT OF CLAIM – where at trial the pleadings particularised the plaintiffs’ damage on the basis of loss of investment opportunity – where, at the beginning of the trial, the plaintiffs and first defendant compromised proceedings against the second defendants/third party real estate agents on the basis of the plaintiffs’ pleadings as they then were – where after the trial concluded the plaintiffs sought leave to amend pleadings and broaden the particulars of damage – where witnesses were recalled and further evidence led…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Avis v Mark Bain Constructions Pty Ltd [2011] QSC 80
Case
[2011] QSC 80
Decision Date
CaseChat Overview and Summary
The plaintiffs, Avis, entered into contracts with the developer, Mark Bain Constructions Pty Ltd, to purchase luxury apartments off the plan. They claimed that the real estate agent, acting as an agent for the developer, made representations about an uninterrupted ocean view, which turned out to be obstructed by a new building. The plaintiffs sought damages for the developer's alleged contravention of the Trade Practices Act 1974 (Cth) by making false, misleading, and deceptive representations. The developer argued that the real estate agent was not authorised to make such representations. The plaintiffs also sought to amend their pleadings to include claims of lost investment opportunity, which the developer opposed on the basis of prejudice. Additionally, the plaintiffs sought to introduce evidence of similar representations made to a non-party, which the developer argued was not sufficiently relevant.
The court had to determine whether the real estate agent was authorised to make the representations, whether the plaintiffs could amend their pleadings to include claims of lost investment opportunity, and whether the evidence of similar representations was admissible. The court also had to assess whether the claim of lost opportunity was sufficiently certain for damages to be assessed on that basis and whether the compromise with the third-party real estate agents affected the quantum of damages.
The court found that the real estate agent had the apparent authority to make the representations about the ocean view. It also held that the plaintiffs could amend their pleadings to include claims of lost investment opportunity, despite the developer's opposition, as the amendment did not prejudice the developer's case. The court found the evidence of similar representations to be relevant and admissible. It concluded that the claim of lost investment opportunity was sufficiently certain for damages to be assessed on that basis. Lastly, the court found that the compromise with the third-party real estate agents did not affect the quantum of damages that should be awarded.
The court ordered the developer to pay the plaintiffs compensation under s 82 of the Trade Practices Act 1974 (Cth) in the amounts of $283,917 and $216,483 respectively. The court reserved the matter of interest and costs for further submissions.
Orders
Orders of the court
The first defendant in BS2488 of 2007 pay the plaintiff the sum of $283,917 as compensation under s 82 of the Trade Practices Act 1974 (Cth);
The first defendant in BS2491 of 2007 pay the plaintiff the sum of $216,483 as compensation under s 82 of the Trade Practices Act 1974 (Cth).
The court will hear submissions about orders to be made in each matter as to interest and costs.