Coulter v Rampling

[2005] NSWSC 1147

CITATION:	Coulter v Rampling [2005] NSWSC 1147
HEARING DATE(S):	07/11/2005
JUDGMENT DATE :	11 November 2005
JUDGMENT OF:	Hoeben J at 1
DECISION:	(1) The order of the Tribunal rejecting the plaintiff’s claim for loss of rent is set aside.; (2) In lieu thereof there be an order in favour of the plaintiff against the defendant that the defendant pay the plaintiff the amount of $10,800 for loss of rent.; (3) The orders of the Tribunal are otherwise confirmed.; (4) The defendant pay the plaintiff’s costs of these proceedings.

CATCHWORDS:	Appeal from Consumer Trader and Tenancy Tribunal - damages - building contract - "a question with respect to a matter of law" - recovery of rent under Fair Trading Act if property unable to be rented - recovery of pre-judgment interest under Fair Trading Act/Consumer Trader and Tenancy Tribunal Act.
LEGISLATION CITED:	Common Law Practice Act 1867- 1981 (Qld) Consumer Trader and Tenancy Tribunal Act 2001 Environmental Planning and Assessment Act 1979 Fair Trading Act 1987 Home Building Act 1989 Trade Practices Act 1974 (Cth) Queensland Building Services Authority Act 1991
CASES CITED:	Anthanasopoulos & Ors v Moseley & Ors (2001) 52 NSWLR 262 at 267-269 Azzopardi v Tasman UEB Industries Pty Limited (1985) 4 NSWLR 139 at 155B Brown v Jam Factory Pty Limited (1981) 53 FLR 340 at 351 Chapman v Taylor [2004] NSWCA 456 at [33] Fitzgerald v FJ Leonhardt Pty Limited (1997) 189 CLR 215 at 220-221 Frith v Gold Coast Mineral Springs Pty Limited (1983) 65 FLR 213 at 232 Gates v City Mutual Assurance Society Limited (1986) 160 CLR 1 Hellyer Drilling Co v McDonald Hamilton & Co Pty Limited (1983) 51 ALR 177 Hungerfords & Ors v Walker & Ors (1990) 171 CLR 125 Kalokerinos v HIA Insurance Services Pty Limited [2004] NSWCA 312 at [47] MGICA (1992) Pty Ltd v Kenny and Good Pty Ltd and Anor (No 2) (1996) 70 FCR 236 McPhee v S Bennett Limited (1935) 52 WN (NSW) 8 Sanrod Pty Limited & Ors v Dainford Limited (1984) 54 ALR 179 Simonius Visher & Co v Holt and Thompson (1979) 2 NSWLR 322 State of NSW v Moss (2000) 54 NSWLR 536 TN Lucas Pty Limited v Centrepoint Freeholds Pty Limited (1984) 52 ALR 467 Westwood v Cordell (1993) 1 Qd R 277 Zullo Enterprises Pty Limited v Sutton [2000] 2 Qd R 196
PARTIES:	Julie Francis Coulter - Applicant Garry Brian Rampling - Respondent
FILE NUMBER(S):	SC 30066/2004
COUNSEL:	A Crossland - Applicant Dr J Azzi - Respondent
SOLICITORS:	Michael A McKelvey & Associates - Applicant Herbert Weller - Respondent

LOWER COURT JURISDICTION:	Consumer Trader and Tenancy Tribunal of NSW
LOWER COURT FILE NUMBER(S):	HB03/08783 HB04/09224
LOWER COURT JUDICIAL OFFICER :	S Forbes

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Friday, 11 November, 2005

30066/2004 - Julie Francis COULTER v Gary Brian RAMPLING

JUDGMENT

1 HIS HONOUR:

Nature of Claim
These proceedings have been brought pursuant to s67 of the Consumer Trader and Tenancy Tribunal Act 2001 (“the CTTT Act”). Section 67 relevantly provides:

“67(1) If, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law, a party in the proceeding who is dissatisfied with the decision may, subject to this section, appeal to the Supreme Court against the decision.”

The decision appealed from was handed down by the Tribunal on 17 July 2004.

2 Before the Tribunal the plaintiff was successful. She obtained an order for the payment by the defendant to her of $60,365.38 plus costs. The plaintiff submits, however, that the Tribunal erred in rejecting two of her claims for damages:

(i) The claim for loss of rent.

(ii) The claim for pre-judgment interest.

Factual Background

3 The application before the CTTT arose out of a written building contract (“the contract”) whereby the defendant was to undertake building works (“the works”) at the rear of the plaintiff’s property at 45 Seaview Street, Balgowlah. The works comprised both alterations to the existing house (“the alterations”) and the construction of an additional room (“the extension”).

4 The contract under which the defendant was to be paid $55,753.90 for the works was entered into on 22 October 2001.

5 Between 22 October 2001 and March 2002 inquiries were made both by the plaintiff and by her husband as to when the works would be commenced. The defendant responded that he was waiting for approval from Manly Council. The works commenced in or about March 2002 after the defendant advised that approval had been obtained from Council.

6 The works were performed without development consent by Council and contravened s76A of the Environmental Planning and Assessment Act 1979 (“EPA Act”):

“76A(1) If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
(a) Such a consent has been obtained and is in force, and
(b) The development is carried out in accordance with the consent and the instrument.”

7 The failure to obtain a development consent from Council was entirely the fault of the defendant. In that regard the Tribunal found that the plaintiff was a wholly innocent party. The plaintiff did not learn until 20 August 2002 that no approval had been obtained for the works. Up to that time the defendant had been representing that all necessary approvals had been obtained.

8 The defendant never held a building license appropriate for carrying out the works, although he represented that he did. Consequently the contract was not able to be enforced by the defendant (pursuant to ss 4and 10 of the Home Building Act (HBA)). Under that same Act (s10(3)(a)) the defendant was “liable for damages and subject to any other remedy in respect of a breach of the contract …”.

9 The Tribunal accepted that the quality of the workmanship in relation to the construction of the additional room was so poor that the plaintiff “had no viable option but to have the whole of the works carried out by the respondent demolished”.

10 Payments had been made from time to time by the plaintiff in response to claims by the defendant for progress payments under the contract:

24 October 2001	$ 2,787.00
16 May 2002 - first progress claim	$16,737.93
21 June 2002 - second progress claim	$20,024.97
Total	$39,549.90

11 On 5 September 2002 the Council issued a “Notice of Intention to Issue an Order”. The terms of the intended order were:

“To demolish the new family room extension and reinstate the rear of the existing building …”.

On 19 December 2002 the Council issued to the plaintiff a demolition order in those terms.

12 On 28 February 2003 the time for complying with the demolition order was extended by Council to 18 April 2003. Subsequently a further extension was granted to 23 July 2003. The demolition of the works relating to the extension was completed by 21 August 2003.

13 Although no specific finding was made by the Tribunal to this effect, the evidence is clear that from at least 5 September 2002 (being the date of the Notice of Intention to Issue Order) the premises were not habitable and therefore were not able to be leased. Not only were the premises subject to the demolition order but the quality of the works was so defective as to preclude occupation by a tenant. That situation continued after the extension had been demolished.

14 Against that background the following additional findings were made by the Tribunal:

(i) The defendant was guilty of misleading and deceptive conduct under s42 of the Fair Trading Act 1987 (FTA) when saying that he had applied for consent to the Council and had obtained such consent and when asserting that he had an appropriate building licence.

(ii) The defendant was in breach of the contract by failing to obtain a Development Consent and in failing to carry out the works in a proper and workmanlike fashion.

15 The damages awarded in favour of the plaintiff were calculated on the following basis:

(i) In relation to the moneys paid by the plaintiff to the defendant ($39,549) the plaintiff was entitled to a refund less the amount of $10,679.48 which was referable to the alterations. This amounted to $27,869.52.

(ii) The cost of rectifying the alterations. This amounted to $11,459.60.

(iii) The costs of demolishing the extension. This amounted to $21,036.26.

Claim for loss of rent

16 The Tribunal dealt with this matter as follows:

“The claimed rent is from 1 September 2002 to 1 December 2003, being 65 weeks at $550 per week. The evidence relied upon in respect of establishing the reasonable market rent, is that of Mr Esposito. There was no effective evidence by the respondent or his witnesses in answer to Mr Esposito’s evidence.
Tribunal Findings

· As previously stated, the contract is unenforceable by the proprietor in respect of its severable illegal portion (the construction of the extensions) but otherwise it is enforceable by the proprietor.

· The pro forma contract document does provide, at clause 5, a precise opportunity for the parties to insert in the document, an agreed completion time for the work. It is common ground however, that the relevant space in the contract has been left blank intentionally. The words “subject to Council approval” were written next to the blank space. The inclusion of those words suggests an accepted indeterminacy, or unpredictability, as to the probable result of submitting an application to council. The words imply that not only is it agreed that the proposal may not be approved at all but that, even if approved, there is no ability to accurately or reliably predict as to when that time might be.

· The contract is also silent on the inclusion of any genuine pre-estimate of the proprietor’s likely losses, or damages, which would be suffered if the completion of the works were delayed. This omission is, in my view, intentional because any claim for delay would not be able to be calculated because it would have to be pivoted about an agreed time for completion, which time was omitted intentionally. In addition, any proper analysis has to wrestle with the applicability of the damages claimed in the context of the majority of the contract being unenforceable by the proprietor.

· In my view, in all the circumstances, the losses claimed under the contract must fail as being too remote. The contract is silent on the subject and I am not persuaded that the damages claimed are of a type which may be reasonably be supposed to have been in the contemplation of the parties at the time they made the contract.

· Furthermore, and in the alternative, I am not persuaded that the damages claimed are recoverable as a result of any special circumstances under which the contract was actually made which were communicated to the respondent or known to both parties.

· Nor am I persuaded that the damages claimed are properly recoverable under the FTA. Although I accept that it is clearly established that the builder made a number of misrepresentations: including those about his licence and Council approval; the loss of rent claimed, is in my view, not sufficiently related to the misrepresentations made. Although I accept that the proprietor would probably not have entered into a transaction, if it was not for the fact that she was induced by the misrepresentations made, it is not enough to show that the losses claimed would not have occurred but for the transaction. The loss must flow directly from the inducement.

· Consequently, in my view there is insufficient evidence to persuade me that the proprietor is entitled to any of the damages claimed either under the FTA or under the contract.”

17 The plaintiff submitted that the Tribunal erred in finding that from the plaintiff’s point of view any part of the contract was unenforceable and in that regard relied upon Fitzgerald v FJ Leonhardt Pty Limited (1997) 189 CLR 215 at 220-221. If that was correct then the loss of rent flowed directly from the breach of contract and was a matter within the “reasonable contemplation” of the plaintiff and defendant. As such it was recoverable as damages for breach of contract.

18 The plaintiff put an alternative claim based on the decisions in Westwood v Cordell (1993) 1 Qd R 277 and Anthanasopoulos & Ors v Moseley & Ors (2001) 52 NSWLR 262 at 267-269. Those cases, it was submitted, were authority for the proposition that where damage is suffered to property the measure of the loss is equal to the value of the loss of rent for the property over the period that it is uninhabitable.

19 The final submission put on behalf of the plaintiff was that the Tribunal had erred in finding that the loss of rent was not recoverable pursuant to the FTA in that the loss did not flow directly from the inducement. The plaintiff accepted that the test had been correctly stated by the Tribunal but submitted that it had been wrongly applied to the facts as found.

20 The defendant’s response to the summons as a whole was that it did not raise a matter of law. Reliance was based upon Chapman v Taylor [2004] NSWCA 456 at [33]:

“To establish an error of law by the senior member, it was necessary to show that he applied a wrong principle of law. That could be shown either from what he said, or because the ultimate result, associated with the facts that he expressly or impliedly found, indicates that he must have applied the wrong principle of law.”

21 Reliance was also placed upon Kalokerinos v HIA Insurance Services Pty Limited [2004] NSWCA 312 at [47]:

“A decision on “a question with respect to a matter of law” in s67(1) must be a decision on something which arose or was in issue or was debated in the proceedings; something which had to be decided in order to dispose of the proceedings, whether or not it was expressly referred to in the decision. The Tribunal may decide on such an issue without overtly referring to it … express advertence to the matter of law is not necessarily required, and the decision might be with respect to a matter of law even though the matter of law is not mentioned, if some decision with respect to it was necessarily involved in the decision.”

22 In relation to the claim for loss of rent, it seems to me that “a question with respect to a matter of law” is raised. In the contract claim, the question of the enforceability of the contract and whether this form of damage is recoverable raises issues of law as does the entitlement to damages under the FTA. Accordingly I reject that challenge to the summons by the defendant.

23 In relation to the enforceability or otherwise of the contract, the defendant relied upon Zullo Enterprises Pty Limited v Sutton [2000] 2 Qd R 196 which considered s42 of the Queensland Building Services Authority Act on the enforceability of a contract to carry out building work. Section 42 of that Act is similar in a number of respects to s76A of the EPA Act. There McPherson JA observed:

“A person who is not appropriately licensed is prohibited from carrying out a contract to do building work. Indeed, the prohibition applies whether or not there is any contract at all to do the work. Carrying out such work is prohibited by s42(1) irrespective of whether it is done gratuitously or without any binding agreement.” (para 3)

McPherson JA distinguished Fitzgerald v FJ Leonhardt on the basis that the prohibition in that case was not absolute.

24 I am of the opinion that the approach in Zullo Enterprises Pty Limited v Sutton more appropriately fits the facts and legislation in this case. Accordingly, no error of law has been disclosed in the Tribunal’s finding that so much of the contract as related to the construction of the extension was unenforceable.

25 The defendant identified another problem in relation to the plaintiff’s claim for loss of rent based on breach of contract. It was the finding by the Tribunal that:

“I am not persuaded that the damages claimed are of a type which may be reasonably be supposed to have been in the contemplation of the parties at the time they made the contract … Furthermore, and in the alternative, I am not persuaded that the damages claimed are recoverable as a result of any special circumstances under which the contract was actually made which were communicated to the respondent or known to both parties.”

The defendant submits that these are findings of fact which bind the plaintiff.

26 Although the plaintiff sought to meet this finding by the Tribunal by reference to evidence that such information was conveyed to the defendant, in proceedings of this kind which can only relate to “a question with respect to a matter of law”, such submissions do not assist. This is clear from the adoption by Glass JA in Azzopardi v Tasman UEB Industries Pty Limited (1985) 4 NSWLR 139 at 155B of the following statement of principle:

“The question of whether there is any evidence of a particular fact is also a question of law: … but if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law, unless, of course, there is some law which provides that the particular evidence, when given, is to be taken to establish the facts. If a tribunal which has exclusive jurisdiction to determine facts decides that it does not accept the evidence tendered as establishing a particular fact, its decision, apart from the exceptional case which I have just mentioned, is conclusive. In that case the party upon whom the burden of proving the fact lies must fail. There is no rule of law that such a tribunal must believe the evidence, because it is all one way. It can accept all, or some or none of it.” ( McPhee v S Bennett Limited (1935) 52 WN (NSW) 8.)

27 It seems to me that this finding of fact by the tribunal operates as a complete bar to the plaintiff establishing error in relation to “a question with respect to a matter of law” in relation to the claim for loss of rent based on breach of the contract.

28 In relation to the claim under the FTA, the defendant submitted that the claim for loss of rent was simply too remote and did not “flow directly from the inducement” (MGICA (1992) Pty Ltd v Kenny and Good Pty Ltd and Anor (No 2) (1996) 70 FCR 236). In addition the defendant submitted that there was insufficient evidence to enable a calculation of the loss of rent to be carried out.

29 The principles applicable to the assessment of damages under the FTA are reasonably clear and derive from cases under the Trade Practices Act 1974 (Commonwealth) (TPA).

30 Under s68 FTA an injured party can only recover actual loss. The measure of damages in tort is usually the appropriate measure of damages in most cases involving deceptive and misleading conduct and the making of false statements (Gates v City Mutual Assurance Society Limited (1986) 160 CLR 1, Brown v Jam Factory Pty Limited (1981) 53 FLR 340 at 351).

31 In relation to the appropriate measure of damages for consequential loss:

“Applicants who establish a cause of action under … are entitled to those losses which are the immediate result of the offending conduct and also to consequential losses if sufficiently direct.” ( Frith v Gold Coast Mineral Springs Pty Limited (1983) 65 FLR 213 at 232).

The losses, however, must be shown to be due to the misrepresentation.

32 As the tribunal found, the need to demolish the premises was due directly to the misrepresentations by the defendant that he had development consent. The absence of such consent led to the order for demolition. A direct consequence of such demolition, it seems to me, would be the time taken to demolish the premises and the time taken to recondition or rebuild the premises so as to “reinstate the rear of the existing building” in accordance with the demolition order. The plaintiff would as a result, be deprived of the use of the premises while this was being done.

33 Counsel for the plaintiff frankly conceded that the claim before the tribunal of 65 weeks for loss of rent between 1 September 2002 and 1 December 2003 (being 65 weeks) was arbitrary and was not based on evidence. He modified the claim to one for 40 weeks loss of rent on the basis that it would take 4 months to demolish the extensions and obtain Council approval for new extensions (the evidence of Mr Pearson, the Council’s Manager of Regulatory Services) and 6 months to construct a new extension similar to that envisaged in the original contract (based on the evidence as to the length of time taken to construct the unauthorised extension).

34 I have a number of difficulties with that calculation. The order of the Council which had to be complied with was for demolition and reinstatement. The decision to obtain approval for a further extension and then construct it, was a separate and independent decision which was made by the plaintiff. It was not something which flowed directly from the demolition of the unauthorised extension. Accordingly, the damages which flowed directly from the demolition order relate to the additional time taken to demolish the unauthorised extension and the time which would have been taken to reinstate the rear of the premises to its original condition.

35 There is no direct evidence as to the length of time it took to actually demolish the unauthorised extension, although it appears it may have taken a month (para [12] hereof). There is no direct evidence as to how long it would have taken to reinstate the rear of the premises as distinct from constructing a further extension. Given the evidence as to the extent of the bad workmanship, including concreting over plumbing connections and drainage connections, considerable time would have been required to reinstate the premises. Even though the evidence on this issue is not as precise as one would wish, the Court ought not refrain from making an assessment of damages where it is clear that an entitlement exists (State of NSW v Moss (2000) 54 NSWLR 536). In this case I assess the additional delay which occurred as a result of the need to demolish the unauthorised extension and reinstate the rear of the premises to be approximately 20 weeks.

36 In that regard I agree with the submission of the plaintiff that, in accordance with Anthanasopoulos v Mosley, the most appropriate way to value this loss because the plaintiff was deprived of the use of the premises for that period of time, is by reference to market rental as deposed to in the evidence of Mr Esposito, ie $540 per week.

37 It follows that I find that the Tribunal did err in not awarding any damages to the plaintiff calculated by a reference to loss of rent in respect of the breaches of the FTA found against the defendant. In my opinion the plaintiff was entitled to such damages calculated on the basis I have indicated, ie $10,800.

38 I have referred to the decision in Anthanasopoulos v Mosley as providing a useful guide as to how damages under the FTA ought be calculated. That, it seems to me, is the only way in which that decision and Westwood v Caldwell can be used in the proceedings. Those cases do not provide a separate right or entitlement to damages as was at least implicitly submitted on behalf of the plaintiff. The facts of those cases involve claims for damages based on tort, affecting either land or property. No claim in tort was raised by the plaintiff before the Tribunal and accordingly cannot be raised in these proceedings.

Claim for pre-judgment interest

39 The Tribunal dealt with this matter as follows:

“The amount sought is stated to be interest for the period 25 February 2003 to 24 February 2004 at a rate of 9%.
It is unclear as to the intended proper basis of this aspect of the claim.
The only mention in the contract (at clause 29) of interest being payable is in circumstances where monies are outstanding to the builder.
There is no entitlement to claim interest under the FTA and the only entitlement to interest under the CTTT Act is as interest on a judgment debt.
In the circumstances I am not persuaded that there is any entitlement by the proprietor to the interest sought and consequently this aspect of the claim is dismissed.”

40 Neither counsel appearing in these proceedings appeared before the Tribunal. Nevertheless it is apparent from the comments by the Tribunal and from the written submissions of the applicant provided to the Tribunal, that a general claim for interest was made based on the entirety of the claim for damages by the plaintiff, ie $128,941.26. No basis for the claim was specified. I infer from the comments by the Tribunal that no specific submissions were made in relation to interest.

41 It was conceded by counsel for the plaintiff that no basis for the rate of 9% per annum was established. Both counsel accepted that if I found there was an entitlement to interest, the appropriate rate would be 5.5% per annum.

42 The plaintiff’s submissions accepted that there was no entitlement to interest under the contract and no specific entitlement under the FTA or the CTTT Act. The plaintiff submitted that the entitlement to interest arose as a separate head of damage and reliance was placed upon the decision of Fitzgerald J in Sanrod Pty Limited & Ors v Dainford Limited (1984) 54 ALR 179. That case involved a claim for damages based on misleading or deceptive conduct in breach of s52 TPA. At pp 190-191 of the judgment this was said:

“It remains to consider the quantum of the applicants’ damages which was not made the subject of any detailed argument. The starting point is the total paid by way of deposits credited to the contract, namely $42,000. The applicants also claimed an amount referred to as “interest”, presumably related either to the cost of borrowing the deposit monies or to lost income from the investment of those sums. The respondent, far from disputing such a claim, itself contended for a power in the court to award interest pursuant to s72 of the Common Law Practice Act 1867- 1981 (Qld), as applied by s79 of the Judiciary Act 1903 on the damages which it claims.
It is unnecessary to hold that the Court has such a power. Questions of both foreseeability and causation enter upon the question of interest on, or by way of, damages at common law: see Simonius Visher & Co v Holt and Thompson (1979) 2 NSWLR 322 and it is by no means unlikely that similar problems, however described, will have to be confronted in determining the ambit of ss 82 and 87 of the Act: see Hellyer Drilling Co v McDonald Hamilton & Co Pty Limited (1983) 51 ALR 177. An example of the application of the common law attitude is to be found in TN Lucas Pty Limited v Centrepoint Freeholds Pty Limited (1984) 52 ALR 467.
However, whatever may be the position otherwise in respect of damages under the Act, I can myself perceive no difficulty in accepting that, when money is paid in consequence of misleading conduct, the loss suffered by that conduct includes not only the money paid but also the cost of borrowing that money or the loss from its investment, as the case may be: Frith v Gold Coast Mineral Springs Pty Limited (1983) ATPR 40-339 affirmed (1983) 47 ALR 547. Interest awarded as a component of damages in such circumstances is not for loss of the use of the money awarded as damages, but for loss of the use of the money paid over in consequence of the misleading conduct and is directly related to the misleading conduct.
The absurdity of any other conclusion is well indicated by the present case.”

43 In the present proceedings the plaintiff’s claim for interest has been significantly modified from that presented to the Tribunal. The claim now made is in respect of the two progress payments of 16 May and 21 June 2002. The plaintiff submitted that no credit should be allowed for the value of the alterations, that interest should be compound and that it should be payable up to 27 July 2004, being the date of the CTTT judgment.

44 The defendant submits that the awarding of interest is discretionary, that there has been no error identified in the Tribunal’s approach to interest and accordingly this aspect of the plaintiff’s claim ought fail. The defendant also submitted that this aspect of the summons did not raise “a question with respect to a matter of law”.

45 It seems to me that a finding that there is no entitlement to interest does raise “a question with respect to a matter of law”. This finding by the Tribunal did not depend upon any preliminary findings of fact but was based upon there being either a lack of power or a lack of entitlement. These are matters of law.

46 I am of the opinion that the submission of the plaintiff is correct. Based on the approach of Fitzgerald J there would have been an entitlement of the plaintiff to “interest” calculated by reference to the two progress payments. I disagree with the plaintiff that no allowance should be made for the amount of $10,679.48 referable to the alteration. I also reject the submission that such “interest” should be calculated on a compound basis. Accordingly, absent other considerations, there would have been an entitlement to the plaintiff of an additional amount of approximately $3,334.00.

47 My reservation in relation to this part of the plaintiff’s claim is because of the way in which the matter was raised in the Tribunal. The claim was put purely on the basis of interest for the loss of the use of the money awarded as damages. The Tribunal quite properly rejected that claim for the reasons indicated (para 39). In these proceedings the claim has been put on a different basis. Although it is referred to as a claim for “interest” in reality it is a claim for a separate head of damage, ie for the loss of the use of the money paid over in consequence of the misleading conduct in a way somewhat analogous to that considered by the High Court in Hungerfords & Ors v Walker & Ors (1990) 171 CLR 125.

48 Since the claim for “interest” was not put before the Tribunal in this way, and since no submission to that effect was put to the Tribunal, it is difficult to see how the conclusion of the Tribunal that there was no entitlement to “interest” was a decision on “a question with respect to a matter of law” when the Tribunal was not asked to decide that issue. I am of the opinion that it is not open to the plaintiff to raise in these proceedings a different claim to that which was raised before the Tribunal. That is in effect what is being done. The plaintiff is bound by the way in which the matter was conducted on her behalf in the Tribunal. Put another way, no error of law has been identified in the way in which the Tribunal decided the claim for “interest” given the way in which that claim was raised before it. Accordingly the plaintiff’s claim for pre-judgment “interest” fails.

Conclusion

49 For the above reasons the plaintiff has succeeded in her claim for additional damages calculated by reference to rent loss as a direct result of the defendant’s misleading and deceptive conduct in breach of s42 FTA.

50 The orders which I make are as follows:

(1) The order of the Tribunal rejecting the plaintiff’s claim for loss of rent is set aside.

(2) In lieu thereof there be an order in favour of the plaintiff against the defendant that the defendant pay the plaintiff the amount of $10,800 for loss of rent.

(3) The orders of the Tribunal are otherwise confirmed.

(4) The defendant pay the plaintiff’s costs of these proceedings.

**********