Cachia v Dwyer & Eden Realty, t/as, Shire Real Estate

[2006] NSWSC 1254

CITATION:	CACHIA v. DWYER & EDEN REALTY, trading as, SHIRE REAL ESTATE [2006] NSWSC 1254
HEARING DATE(S):	Monday 10 July 2006
JUDGMENT DATE :	24 November 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	Appeal dismissed. Plaintiff to pay the defendant's costs
CATCHWORDS:	MAGISTRATES – APPEALS FROM MAGISTRATES – appeal limited to appeal against a judgment or order erroneous in law – whether plaintiff able to establish error in point of law – whether the Magistrate’s finding that a statement was “equivocal” can be said to have been erroneous in point of law – no error demonstrated. - CONTRACT – no term in agency agreement specifying that the premises be leased to a certain class of persons – no breach of the agreement. - TRADE PRACTICES – misleading and deceptive conduct – misrepresentation to the effect that proposed tenants were not self-employed – damage to leased property – findings in Local Court that damage was caused by tenants and that the statement made by the agent was not misleading.
LEGISLATION CITED:	Property Stock and Business Regulation 2003 Property Stock and Business Act 2002 Local Courts Act 1982 Local Courts (Civil Claims) Act 1970 Trade Practices Act 1974 Fair Trading Act 1987
CASES CITED:	B.P. Refinery (Westernport) Pty. Limited v. Shire of Hastings (1977) 53 ACJR 20 Permanent Trustee Australia Co. Limited v. FAI General Insurance Co. Limited (2001) 50 NSWLR 679 Aaron's Reefs Limited v. Twiss [1896] AC 273 Demagogue Pty. Limited v. Ramensky (1992) 39 FCR 31
PARTIES:	Laurence CACHIA v. DWYER & EDEN REALTY t/as SHIRE REAL ESTATE
FILE NUMBER(S):	SC No. 14572/2005
COUNSEL:	Plaintiff: In person Defendant: N.E. Chen
SOLICITORS:	Plaintiff: N/A Defendant: Tresscox Lawyers
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	2879/04
LOWER COURT JUDICIAL OFFICER :	J. Betts
LOWER COURT DATE OF DECISION:	9 September 2005

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL, J.

FRIDAY 24 NOVEMBER 2006

No. 14572 of 2005

LAURENCE CACHIA v. DWYER & EDEN REALTY, t/as SHIRE REAL ESTATE

JUDGMENT

1 HIS HONOUR: The plaintiff challenges the decision of the Local Court at Parramatta delivered on 9 September 2005 by summons filed in this Court on 30 September 2005. The Local Court dismissed the plaintiff’s claim against the defendant. The claim was one for damages against the defendant as managing agent of certain leased premises of the plaintiff. The facts concerning this claim are considered below. I will first, however, deal with two discrete issues concerning two rulings made by the learned Magistrate concerning a question of evidence and amendment.

2 The plaintiff sought on this appeal to also challenge a ruling of the learned magistrate that an affidavit that had been prepared by the defendant, but not read, did not constitute evidence in the proceedings.

3 The affidavit was that of Jeff Dwyer sworn on 5 May 2005. Mr. Chen of counsel, who appeared for the defendant in the Local Court proceedings, tendered the documents annexed to the affidavit but did so on the basis that they were primary documents that related to dealings between the parties and to leasing inquiries and arrangements. The affidavit of Mr. Dwyer was accordingly inappropriately annexed (Annexure A) to the plaintiff’s affidavit sworn on 28 July 2005. Accordingly, there was no error on the part of the Magistrate in this regard nor in her refusing to allow the plaintiff to call Mr. Dwyer for cross-examination or in refusing to receive the plaintiff’s affidavit evidence in reply to Mr. Dwyer’s affidavit.

4 Similarly, in relation to a further ruling by the Magistrate that she could not cavil with the Registrar’s decision not to grant leave to amend the statement of claim there is no basis for the intervention of this Court. The plaintiff made no application pursuant to Part 33 Rule 9 Local Court (Civil Claims) Rules 1988 for her Honour to review the Registrar’s decision, and indeed, the plaintiff did not seek to put such an application before the Magistrate when the matter arose during the hearing. Accordingly, there was no error on the part of the Magistrate to refuse to entertain the question of the Amended Statement of Claim.

The proceedings in this Court

5 Section 73 of the Local Courts Act 1982 provides for a right of appeal of a limited form and is in the following terms:-

“73 Appeals as of right
(1) A party to proceedings under this Part who is dissatisfied with the judgment or order of a Court sitting in its General Division may appeal to the Supreme Court against the judgment or order, but only as being erroneous in point of law.
(2) …”

6 The question then is whether the plaintiff is able to establish error in point of law with respect to the decision given on 9 September 2005.

The plaintiff’s claim in the Local Court

7 The plaintiff proceeded in the General Division of the Local Court pursuant to the Local Courts (Civil Claims) Act 1970 by way of Statement of Claim issued on 7 October 2004.

8 He alleged that he had retained the defendant to manage a property owned by him at 5 Francis Street, Castle Hill, the management agreement having been executed on 22 March 2004.

9 I note that the plaintiff said that he originally requested the defendant to list his property for lease in or about September 2003 and set out the instructions he gave at that time (paragraph 1 of his affidavit sworn 14 March 2005). The next paragraph refers to events commencing in March 2004. There seems, on that history, to have been a period of approximately five months in which there was no success in locating tenants for the plaintiff’s property.

10 The plaintiff also claimed that the defendant acted in breach of the agreement and was also liable for alleged misleading and deceptive conduct in breach of s.72 of the Trade Practices Act 1974 and s.42 of the Fair Trading Act 1987 (NSW) by reason of representations he claims were made to him.

11 The plaintiff alleged that prior to the lease of the premises being executed, the defendant declined to show him the tenancy application signed by the tenants on 15 March 2004 by reason and purportedly on the basis of statutory provisions ensuring privacy. Mr. McCaw had disclosed in the tenancy application completed by him that he was self-employed with an entity known as Australian Infrastructure Management which was in the business of providing property services. The plaintiff claimed that, had he known the proposed tenant was self-employed, he would not have accepted him. The Tenancy Agreement was entered into on 22 March 2004 and executed on the plaintiff’s behalf as lessor by the defendant.

12 The Statement of Claim alleged breach of the agreement in a number of respects and stated that the premises had been damaged between the months of March and June 2004. The plaintiff claimed that it was not until 28 June 2004 that the plaintiff, following enquiries made by him, ascertained that Mr. McCaw was “self-employed”. The plaintiff alleged that the defendant was in breach of the agreement in the respects set out in paragraphs (a) to (l) on p.5 of the Statement of Claim.

13 In support of the claim under s.52 of the Trade Practices Act and s.42 of the Fair Trading Act, it was alleged that the defendant made misleading and deceptive representations to the effect that Mr. McCaw was an employed person and was not self-employed and that he was a suitable tenant although no proper enquiries had been made to ascertain the tenant’s suitability.

14 The claim for the alleged damage and cost of repair was in the sum of $28,365.08. A separate claim was made for a loss of rental at the rate of $270 per week from the date in June 2004 on which the tenants vacated the premises.

15 The defendant filed a notice of grounds of defence dated 2 December 2004. The defendant specifically denied the allegations made in paragraphs 3, 4, 5 and 6 of the Statement of Claim and otherwise denied that it was liable for the damages claimed.

16 The plaintiff relied upon a series of affidavits sworn on 14 March 2005, 24 March 2005, 20 April 2005 and 28 July 2005 together with evidence given by him at the hearing on 6 September 2005.

17 On the Summons filed in this Court, the plaintiff relied upon the abovementioned affidavits together with the transcript of proceedings before the learned magistrate.

18 The Summons contained 13 paragraphs alleging error by the learned Magistrate. In paragraph 11, the plaintiff alleged that the defendant had failed to perform its management duties and obligations in the following respects:-

“1. Breach of terms of the Management Agency Agreement
2. Unprofessional and deficient performance of the Management Agency Agreement.
3. Negligence in performance of the Management Agency Agreement.
4. Lease the residential property for commercial use .
5. Lease the property to unsuitable tenant.
6. Invalidating owner’s building insurance by leasing property for commercial use.
7. Risking, and cause, damage to the property by leasing property for commercial use.
8. Failed to ensure that the tenant used the residential premises for residential purposes and not for commercial use.”

19 In paragraphs 9 to 15 of the Summons, it is alleged that there was failure by the defendant to make full disclosure to the plaintiff that the tenant was self-employed. In that regard, it was said that the defendant failed to show the plaintiff the tenant’s application for tenancy and a contention was made by the plaintiff (Ground 13) that the defendant deceived him in presenting the male tenant as not being self-employed.

20 I have had the benefit of extensive written and oral submissions made by the plaintiff on the hearing of the Summons and a written outline of submissions on behalf of the defendant supplemented by oral submissions.

The affidavit evidence

21 The plaintiff’s affidavits were in many respects unsatisfactory and included references to conversations without providing direct speech as to what precisely was said on some matters and contained inadmissible statements (eg., paragraph 13 of the plaintiff’s affidavit sworn 28 July 2005, “I was deceived by the defendant …” etc).

22 In his affidavit sworn on 28 July 2005, the plaintiff stated (paragraph 9) that on or about 9 March 2004, Mr. Dwyer urged him to accept an application of a “couple with one child” but that he continued to reject the application because the tenant was self-employed. His affidavit in this respect was not in proper form as it did not provide in direct speech precisely the full extent of what was said by Mr. Dwyer or by the plaintiff himself.

23 In his affidavit sworn on 14 March 2005, the plaintiff refers only to two discussions with the defendant about “a couple with one child” as interested prospective tenants, namely, on or about 1 and 12 March 2004. In his affidavit sworn 28 July 2005, he refers to three such communications, including one said to have occurred “on or about 9 March 2004”.

24 On or about 12 March 2004, the plaintiff claimed that Leanne Charles and Mr. Dwyer had told him that the couple with the child wanted to lease the property and that he worked at Castle Towers Shopping Centre. He said, in his affidavit sworn 28 July 2005 (paragraph 11), that he gave tentative approval subject to enquiries about the tenants proving satisfactory.

25 Prior to the Management Agency Agreement being executed by the plaintiff and the defendant on 22 March 2004, the following events occurred:-

(a) The tenancy application was signed by the tenants on 15 March 2004.

(b) The defendant obtained copies of the tenants’ drivers’ licences on or about that date.

(c) The defendant obtained a letter dated 17 March 2004 from the employer of Mrs. McCaw, Waterco Limited, which verified her current earnings as a gross salary of $50,000 per annum.

(d) On 17 March 2004, Sappideen Accountant Services in a letter addressed to the defendants confirmed that Australian Infrastructure Management had been running at a profit over the previous 18 months and had grown steadily with growth predictions indicating a 43% increase in earnings over the previous trading year. On the then current projections, the expected profit for the business for the current financial year was stated to be $65,000.

(e) On 22 March 2004, the Residential Tenancy Agreement was entered into with Mr. and Mrs. McCaw.

26 On 22 March 2004, Mr. Jeff Dwyer of the defendant agency wrote to the plaintiff confirming that a lease had been signed with the tenants and that:-

“We have confirmed the new tenants’ employment and checked all references provided by them.
Please find enclosed a copy of the Residential Tenancy Agreement signed by our office on your behalf.”

27 On 22 March 2004, the plaintiff sent a facsimile to Mr. Dwyer stating:-

“I have had a discussion with the prospective tenants whom you introduced to me (David) regarding changing colours of walls to match their furniture. They use the term ‘colour schemes’!
I am uneasy about their bona fides. My discussion with them has raised questions and alarms; feelings borne out of long experience.
Please make sure you check and satisfy yourself about their previous leasing history …
…
We do not want problems. Some of the worst tenants appear most congenial at first.”

28 Correspondence commenced in April 2004 between the plaintiff and the defendant as to various activities the plaintiff complained about concerning the use of the property. In a later letter of 10 May 2004, the plaintiff expressed his disappointment “that it appears that you have not checked the rental history of this tenant carefully enough. This tenant is sure to have had a history of such errant behaviour, and I would have been spared all this work and anxiety …”.

The terms of the Management Agency Agreement

29 The relationship between the plaintiff and the defendant was a contractual one. The Management Agency Agreement sets forth the terms and conditions upon which the defendant was authorised to lease and manage the property.

30 Given the plaintiff’s allegations that he had indicated that he did not wish to lease the property to self-employed tenants who had applied previously, it is important to consider the terms of the agreement.

31 Paragraph 1 of the agreement authorised the defendant, as agent, “… to exclusively let and manage all or part of the above premises under the following terms or as agreed upon in writing”. There are then inserted details as to the rental and the amount of the rental bond. The agreement is expressed to begin on 19 March 2004.

32 The agreement sets out “agent’s duties”. These are stated to include the duty to obtain references from prospective tenants. There is no restriction on the authority to lease in terms of the class or type of tenant to whom the property may be let in order to determine whether its terms contained any limitation of this kind on the defendant’s authority to lease.

33 The agreement also contains an authority conferred upon the defendant as agent, including authority and power in the defendant to “choose a tenant as and when required”. It also includes the power to “enter into and sign tenancy agreement”. There is again no restriction placed upon the defendant’s contractual authority as to who or what class or person may lease the property.

34 There is a handwritten notation in the schedule of disbursements to the agreement that “all work contact the Principal”. There is no entry made under the heading “special instructions” and again there is no restriction on the authority of the defendant to lease the premises to specified classes of tenants and no restriction specified as to self-employed tenants.

35 In the decision of the learned Magistrate (transcript, 9 September 2005 at pp.2 to 7), the primary facts and the documents as to the enquiry made by the defendant as to the financial standing of the McCaws are referred to in some detail. The Magistrate expressed the view that appropriate enquiries were made by the defendant in relation to the prior tenancies of the applicants, in particular, as to their financial situation. There was ample evidence to support that conclusion and certainly no error of law has been demonstrated in relation to that finding. The Magistrate also referred to the references obtained, which supported the prospective tenants as satisfactory applicants for tenancy and that they were subsequently approved by the plaintiff himself.

36 The plaintiff sent a facsimile on 22 March 2004 to Mr. Dwyer of the defendant agency referred to above (paragraph [27]).

37 The plaintiff stated, as earlier mentioned, that Ms. Charles and Mr. Dwyer had refused to give him a copy of the Application for Tenancy which included details as to the tenant’s employment history and other details and this by reason of “privacy laws”.

38 In his affidavit of 14 March 2004, the plaintiff confirmed that after he entered into a Management Agreement on 22 March 2004 that it was not until June 2004 that he found out that Mr. McCaw was in fact a self-employed person. He referred to Mr. McCaw’s business card which describes him as “Managing Director of Australian Infrastructure Management” specialising in commercial and residential maintenance, cleaning and on site management.

39 The plaintiff said that it was not long after the commencement of the lease that he saw a quantity of soil under the kitchen window and that the clothes hoist had been removed. He subsequently alleged that the tenant had used a heavy trailer to hit a paling fence, although it does not appear that this was based on his own personal observation.

40 The affidavit goes on to refer to other damage detected on inspection and that on 14 May 2004, the defendant as agent issued a Termination Notice to the tenants.

41 In his affidavit sworn 24 March 2005, the plaintiff annexed a copy of the Residential Tenancy Agreement made on 22 March 2004 as well as a copy of an estimate of rectification and other works described in a quotation issued by “Spinner’s, Building Services”. The affidavit also annexes a series of correspondence passing between the plaintiff and the defendant.

Findings by the Magistrate

42 The Magistrate found that Mr. Cachia originally engaged Shire Real Estate in September 2003, that the formal rental management agreement was entered into on 22 March 2004 between Shire Real Estate and himself and on that date, a tenancy agreement was entered into on his behalf with the McCaws pursuant to which the property at 5 Francis Street, Castle Hill was leased.

43 The Magistrate proceeded on the basis that the central issue arising in the proceedings was the issue of causation of damage to the leased property at 5 Francis Street, Castle Hill. Mr. Cachia claimed damages on two grounds:-

(a) The cost of rectifying damage to the property.

(b) Alleged loss of rental income for the period commencing from when the McCaws vacated the premises.

44 The Magistrate determined that the sole cause of the damage to the property was the alleged actions of the tenants and that such damage was not shown to have been caused by any act or omission by the agent.

45 In respect of the second ground, the Magistrate found that there was no evidence as to the loss of rental income.

46 The plaintiff conceded that he approved the McCaws as tenants but asserts that he did so on the basis that the agent had represented to him that the proposed tenants were not self-employed. In particular, he pointed to the statement made on behalf of Shire Realty that “the tenant works at Castle Towers Shopping Centre”, as a representation that the tenant was not self-employed. The Magistrate held that this statement was “equivocal” stating that the statement could mean that the tenant “could be a retailer there, could be [a] subcontractor there or contractor”. In other words, the statement was held not to be an unequivocal representation. The Magistrate, accordingly, concluded that the statement was not misleading.

47 The Magistrate also found that the plaintiff was of the belief that the agent was obliged to arrange for repairs to be made to the property and that as a result of that misunderstanding he failed to attempt to mitigate his losses by arranging for the repairs to be made for the premises to be re-let.

48 The Magistrate also found that the agent had made the appropriate inquiries in relation to the proposed tenants in respect of both their prior tenancies and their financial situation.

49 Her Honour held that the plaintiff had failed to establish on the evidence, that any misleading statement or misrepresentation was made by or on behalf of Shire Real Estate. The Magistrate also held that the plaintiff had failed to establish that there had been any breach of the management agreement. Accordingly, the plaintiff’s claim was dismissed and the plaintiff ordered to pay costs as assessed by the Registrar.

The present proceedings: whether an error of law established

50 Central to the plaintiff’s case that there was an error of law in the Magistrate’s decision is that the defendant breached the agreement entered into with the plaintiff and further, or in the alternative, the defendant, by its employees, misrepresented the status of the tenants insofar as they did not disclose or they concealed the fact that the male tenant was a self-employed person.

(a) Breach of contract

51 The terms of the Management Agreement, of course, govern and determine the contractual rights and obligations of the parties. I have earlier referred, in this respect, to the fact that the contract was silent as to any restriction or limitation on the defendant’s authority to lease the premises to any particular person or class of person. That, of itself, renders problematical the plaintiff’s contention that the defendant acted in breach of contract. That, however, as Mr. Chen of counsel observed, was not a matter upon which the learned Magistrate made any finding. It nonetheless remains an issue in the proceedings brought by way of appeal in this Court. However, if there was no breach of contract, the issue of causation would not then arise. I am firmly of the view that the plaintiff did not establish any breach of the agreement with the defendant. The defendant had clear authority to lease to the tenants whether one of them was self-employed or not. The breach of contract allegations must fail.

52 Insofar as the claim rested upon an alleged breach of contract, namely the Management Agreement, it is clear that the defendant was not in breach of any express term or condition of the agreement for the reasons I have stated above. In other words, the plaintiff was not in a position to identify any particular term of the agreement said to have been breached. The terms, as earlier observed, did not impose any restriction upon the defendant’s authority.

53 The plaintiff pleaded and relied upon implied terms going to a large number of matters including implied terms as to good faith, the carrying out of necessary enquiries, compliance with reasonable and lawful instructions etc.

54 There are well-established requirements that must be satisfied before a court may determine the existence of implied terms, especially in a written commercial agreement such as the management agreement: B.P. Refinery (Westernport) Pty. Limited v. Shire of Hastings (1977) 53 ACJR 20. There is no basis established in this case that would satisfy the implication of any of the terms pleaded. This was a case involving a straight-forward management agreement in which there was no basis for the agent’s authority to be limited, by implication, as the plaintiff contended.

(b) Section 52 of the Trade Practices Act 1974 (Cth); Section 42 of the Fair Trading Act 1987 (NSW)

55 The central finding made by her Honour was essentially that any alleged representations were equivocal and not such as to constitute misrepresentation or a breach of any term or condition of the contract. I will return to this issue below.

56 Section 52 of the Trade Practices Act 1974 (Cth) provides as follows:-

“(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”

57 A person who suffers loss or damage “by conduct of another person” done in contravention of s.52 “may recover the amount of that loss or damage by action against that other person”: s.82(1), Trade Practices Act.

58 Prima facie, damage flowing from breach of the obligation not to mislead or deceive in trade or commerce is recoverable under the Trade Practices Act. However, there is a primary issue. Was there a misleading or deceptive statement made by the defendant?

Incomplete representations – “misrepresentation by silence or omission”

59 In these proceedings the plaintiff alleges that the defendants misled and deceived the plaintiff by failing to provide the plaintiff with complete or comprehensive information in relation to the employment status of the proposed tenants.

60 It is alleged that the defendants were aware that the plaintiff regarded self-employed persons as unsuitable tenants, for the reason that the plaintiff considered that self-employed tenants might use the residential premises for commercial purposes and thereby occasion more damage to the premises by working from home.

61 The agency agreement required the defendants to locate suitable tenants to whom the plaintiff’s premises might be leased. The defendants were aware of the Plaintiff’s views as to persons who he considered “unsuitable tenants”.

62 The defendants, as noted earlier, recommended as tenants, a husband and wife, to the plaintiff and advised him that the husband was employed at Castle Towers, a shopping centre in Castle Hill, Sydney, and that the wife was employed with a business in Rydalmere, Sydney.

63 It is alleged that the husband was not in fact “employed” at Castle Towers but was instead “self-employed”.

64 This is not a case in which the plaintiff pleaded the existence, in addition to the Management Agreement, of a collateral warranty whereby the defendant represented or warranted at the time of making the contract that it would not enter into a leasing agreement on behalf of the plaintiff with a self-employed person. The case that was brought is that set out in the Statement of Claim dated 7 October 2004. The agreement referred to was the agreement of 22 March 2004 and the particulars of the express terms identify the agreement and assert that there was a term that the defendant would carry out all enquiries to determine whether a prospective tenant was “not self-employed”. However, the Statement of Claim did not, as I have stated, put the claim upon the basis of collateral warranty.

65 Accordingly, the claim based upon breach of contract was misconceived.

Misrepresentation

66 In order for the plaintiff to establish that there was misrepresentation such as to provide a remedy, it was necessary for him to identify precisely the words or conduct by the defendant that amounted in law to a representation and reliance by the plaintiff upon it.

67 In Permanent Trustee Australia Co. Limited v. FAI General Insurance Co. Limited (2001) 50 NSWLR 679, the Court considered the meaning of “misrepresentation” for the purposes of s.26 of the Insurance Contracts Act 1984 (Cth). In Permanent Trustee Australia Co. Limited v. FAI General Insurance Co. Limited (supra), Handley, JA. (with whom Meagher and Powell, JJA. agreed) said at 701 ([115]):-

“A so-called misrepresentation by omission or silence cannot occur in a vacuum. There can be no misrepresentation without communication, and it is misleading to speak of a misrepresentation by omission or silence. What is meant is that the omission or silence as to some matter makes what is actually stated a misrepresentation. The representation does not ‘re-present’ the truth because it is incomplete, and as a result is a misrepresentation. The incomplete statement is the misrepresentation, not the silence or omission as such . There was a ‘statement’ in this case and that is sufficient for this decision.” (Emphasis added.)

68 Accordingly, it is accepted that a person may make a misrepresentation by making an incomplete statement that omits information such that the statement in fact constitutes a misrepresentation: Permanent Trustee Australia Co. Limited v. FAI General Insurance Co. Limited (supra) at 701 ([115]). See also Aaron’s Reefs Limited v. Twiss [1896] AC 273 at 281; Demagogue Pty. Limited v. Ramensky (1992) 39 FCR 31 at 32.

69 In Demagogue (supra), Black, CJ. summarised the principles as follows:-

“Although ‘mere silence’ is a convenient way of describing some fact situations, there is in truth no such thing as ‘mere silence’ because the significance of silence always falls to be considered in the context in which it occurs. That context may or may not include facts giving rise to a reasonable expectation, in the circumstances of the case, that if particular matters exist they will be disclosed.”

70 In these proceedings, the question is whether there was a failure to disclose the male tenant’s work status. If there was a relevant failure to disclose did that give rise to the damage claimed?

71 Insofar as the plaintiff relies upon words constituting representations as to the tenants in question (or either of them), the plaintiff in his affidavit sworn 14 March 2005 (paragraph 4) gave evidence “they told me the tenant was employed at Castle Hills Shopping Centre” (emphasis added). It is noted that the evidence in this respect was not in proper form or given in direct speech. Be that as it may, the plaintiff’s affidavit sworn on 28 July 2005, paragraph 11, does not attribute the same words to Ms. Charles and Mr. Dwyer. In paragraph 11, he states that they said to him “… he worked at Castle Towers Shopping Centre …” (emphasis added). He does not, here, attribute to them the use of the word “employed”. I note also in the written submissions made by the plaintiff at the hearing on 10 July 2006 that he similarly stated (p.2) that Ms. Charles and Mr. Dwyer told him that “… the prospective tenant worked at Castle Towers Shopping Centre …” (emphasis added).

72 The Magistrate, in her decision (p.5), stated:-

“… the statement, and it is not conceded, was said to him that one of the tenants works at Castle Hills Towers, is equivocal could be a tenant (sic) there could be a retailer there, could be a subcontractor there or contractor. It is quite equivocal that fact in those statements if the Court can be satisfied it was indeed said, in my view do not constitute a misleading of the plaintiff.”

73 The question on this appeal is whether or not the Magistrate’s finding as to an equivocal statement was one that can be established as having been erroneous, and more particularly, erroneous in point of law. In that respect, much depends upon the evidence as to what was said to the plaintiff by Ms. Charles and Mr. Dwyer. I have already indicated the variation in the plaintiff’s own evidence in his two affidavits, one of which referred to the word “employed” and the other used the word “worked”. If the plaintiff could not be consistent as to exactly what was said, it would be difficult for any court to reach a conclusion as to the statement that was actually made to the plaintiff.

74 If the word “worked” is to be taken as the evidence as to what was said then there is no doubt, in my opinion, that there was no misrepresentation, for that word would cover “employment” in its ordinary or legal sense but it would also embrace work performed under contracts of services or work undertaken in a self-employed capacity. Given that it was the plaintiff himself who used the term “worked”, this was one basis upon which the proceedings could have been determined adversely to him on the basis that there could have been no misrepresentation.

75 However, if one proceeds upon the plaintiff’s alternative account of the conversation and that the word “employed” was used, I, with respect, agree with the learned Magistrate that that term in ordinary parlance could embrace work undertaken in a self-employed capacity. The Shorter Oxford English Dictionary includes, in respect of the word “employ”: “… pay (a person) to work for oneself or one’s organisation” and “keep … occupied or busy … be engaged in …”.

76 If the word was used in terms that the tenant was employed at a place (Castle Towers Shopping Centre) (rather than for a person), the context of the conversation related by the plaintiff, in my opinion, makes the statement an equivocal one and did not constitute a misrepresentation.

77 It is to be noted that the case was pleaded and conducted upon the basis of an alleged express representation and not a representation arising through the silence or omission of the employees of the defendant agency to disclose information, including information that one of the tenants was self-employed. In certain circumstances, a person may make a misrepresentation by making an incomplete statement that omits information such that the statement in fact constitutes a misrepresentation: Permanent Trustee Australia Co. Limited v. FAI General Insurance Co. Limited (supra) at 701. See also Demagogue (supra) at 32.

78 However, as I have stated, no case was brought by the plaintiff against the defendant upon the basis of silence or material omission.

79 I have concluded that the statement relied upon by the plaintiff did not constitute a misrepresentation and accordingly did not constitute deceptive or misleading conduct as alleged in the Statement of Claim.

80 In circumstances in which the evidence did not establish breach of contract and did not establish the misrepresentation alleged, the plaintiff has not established that the judgment or decision of the learned Magistrate was erroneous in point of law.

81 By reason of the conclusion expressed in that regard, it is strictly unnecessary for me to address the issue of causation raised by the learned Magistrate. It is sufficient to state that, in the circumstances established in these proceedings, I do not consider that the plaintiff established that any damage attributable to the tenants was shown to have been related to any conduct for which the defendant was liable at law.

82 Accordingly, it follows that the appeal should be dismissed. The plaintiff is to pay the defendant’s costs of the proceedings.

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