Dionisatos v Property Holdings (NSW) Pty Limited t/as Green Real Estate

[2025] NSWSC 169

Supreme Court

New South Wales

Medium Neutral Citation:

Dionisatos v Property Holdings (NSW) Pty Limited t/as Green Real Estate [2025] NSWSC 169

Hearing dates:

10 March 2025

Date of orders:

10 March 2025

Decision date:

10 March 2025

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

(1)   Appeal allowed, to the extent set out at (2) below.

(2)   Orders ii and iii made by Magistrate Reiss on 15 May 2024 and the Local Court’s monetary order made on that date are set aside, in their place the Court orders that:

(a) The appellant pay the respondent the amount of $23,065 plus interest of $2,987.19, representing pre-judgment interest from 19 July 2022 to 15 May 2024 at the rate prescribed by rule 6.12(8) of the Uniform Civil Procedure Rules 2005 (NSW).

(b) The appellant to pay interest on the amount at (a) above from 16 May 2024 under section 101 of the Civil Procedure Act 2005 (NSW).

(3)   For the avoidance of doubt, these Orders do not affect costs orders made in the Local Court proceedings being proceedings 2022/00269745.

Catchwords:

APPEALS – appeal from Local Court to Supreme Court – damages for loss of chance – where parties have agreed and seek consent orders – orders granted

Legislation Cited:

Local Court Act2007 (NSW)

Supreme Court Act1970 (NSW)

Cases Cited:

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26

Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54

Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4

Category:

Principal judgment

Parties:

Gerasimos (Jerry) Dionisatos (Plaintiff)
Property Holdings (NSW) Pty Limited t/as Green Real Estate (Defendant)

Representation:

Counsel:
P Moorhouse (Plaintiff)
M Ward (Defendant)

Solicitors:
Nazarian Law (Plaintiff)
JemmesonFisher (Defendant)

File Number(s):

2024/216732

Publication restriction:

Nil

JUDGMENT

1. Mr Dionisatos left Green Real Estate in June 2022 and went to work for a competitor. Green Real Estate successfully pursued his alleged breach of the three-month post-employment restraint provisions of his employment contract in the Local Court, with damages awarded in its favour. They were pursued on the basis of the loss of a chance of selling three properties and earning associated commissions.

2. Mr Dionisatos challenged the Local Court’s decision on appeal to this Court, seeking leave to appeal. The Local Court Act2007 (NSW) gives parties a right of appeal in respect of questions of law and with leave, in respect of questions of mixed law and fact: ss 39 and 40. The parties arrived at a settlement which allowed the appeal in part and asked the Court to make consent orders reflecting their agreement. Section 75A of the Supreme Court Act1970 (NSW) applies to such appeals.

3. It was necessary for them, however, to establish that the Court had power to make the agreed orders, before they could be entered. Having heard the parties I was satisfied that Mr Dionisatos should be granted the leave which he requires and that the orders the parties agreed should be made.

4. These are the reasons for that conclusion.

5. There was no issue on the written submissions which the parties had advanced that the reasons given by Reiss LCM were unclear. Green Real Estate had thus filed a notice of contention which sought to support his Honour’s decision for other reasons. Given the agreement reached it was not necessary to consider this.

6. What lay in issue between the parties on the appeal included whether Green Real Estate had suffered any loss by reason of Mr Dionisatos’ breach of the agreement. That turning on the question of Green Real Estate’s loss of the chance of earning certain commissions. Whether his Honour had erred in his approach to questions of onus was also in issue.

7. The parties’ resolved their differences on the basis that his Honour’s orders be set aside and instead, Mr Dionisatos be ordered to pay Green Real Estate a considerably lesser sum.

8. Reiss LCM’s lengthy judgment explained the agreed facts, the evidence which had been led, the submissions advanced and factual findings which he made. He observed at [51] that “Given the clear and multifaceted breaches of the restraint provisions by Dionisatos, many of which are actually or effectively conceded, the key issue in dispute between the parties is on the question of damages.”

9. His Honour then turned to give an extensive explanation of the applicable caselaw in relation to loss of a chance and onus. The explanation given for the orders made were confined, however, to:

“62.   As can be seen from Amman Aviation, there is a difference between the issue of working out an entitlement to damages based on the concept of loss of chance, the issue of working out the quantum of the damages, and then the consideration of any appropriate discount for contingencies.

63.   Of course, there is no certainty that Green’s would have been able to secure the owners as full clients going forward or that they would have sold the property on their behalf. It calls for a high degree of speculation based on the known facts before the court.

64.   In respect to the retaining or gaining or regaining agency agreement with the owners of the three properties, it was submitted on behalf of Dionisatos that the clients did not want to go with Green's anyway. Even if this is so, the breaches of the employment contract by Dionisatos where a big part of this. Whilst having a strong connection with Dionisatos, Mr Wilkins gave no evidence of being dissatisfied with Green’s. Ge gave evidence of being dissatisfied but this was at odds with her letter terminating the agency agreement. On the other hand, there was no evidence from Green’s that they made efforts to have Ge or Mr and Mrs Wilkins to stay with them and sell their properties through them. Nor do they have any supportive evidence from Ma or her Guo that they would have been able to sign them up as actual clients. It is very speculative, but I conclude that if not for the breaches by Dionisatos there was a reasonable chance that the owners would have sold their properties through Green’s, even though it may have only been a 25% chance at best.

65.   It was submitted on behalf of Green’s that there is no evidence that it was unlikely that the properties would have sold and that on the evidence the property in fact sold very quickly through Stone’s. It does appear likely that Green's would also have been able to sell the properties quickly and at a good price. The probability of this occurring may have been 80% or higher.

66.   In this case neither party argued the issue of a percentage discount to account for contingencies or probabilities. Further, as the breaching party, the onus was upon Dionisatos to establish a basis for a discount, but he failed to do so. I therefore make no deduction for contingencies or probabilities.

67.   I therefore find for Green’s and make orders for the payment of the amounts based on the likely commission as claimed by Green’s and based on the actual sale price achieved at Stone’s. The defence have not challenged the calculations of those amounts as presented on behalf of the Plaintiff in final submissions or the basis upon which they are made. The amounts of commission claimed are $24,552.00 for the Gilda Street property, $35,850.00 for the James Street property and $31,860.00 for the Wharf Road property. The total amount claimed is $92,262.00. The formal orders of the court are set out below.”

10. The obligation to give reasons is that explained in DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at [32]-[33]. Not only must the reasons given identify the principles of law applied and the main factual findings on which the judge acted, they must resolve the parties’ factual and evidential contests by explaining how competing arguments were dealt with and why the conclusions reached were arrived at, by applying the law found, to the facts found and explaining how the result followed.

11. Despite the extensive reasons given, the parties agree that his Honour’s reasoning was unclear, containing as it did apparent contradictions. But that it did reveal errors in relation to issues which had to be decided. They including in respect of onus and the calculation of damages for the loss of a chance, his Honour having misunderstood what was decided in Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54.

12. That explaining their agreement on this appeal and the orders which they ask the Court to make, which have the result that the Local Court’s order that Mr Dionistas pay Green Real Estate some $92,262 plus interest is set aside and instead, he is ordered to pay it $23,065 plus interest.

13. I was satisfied by all that was advanced that the Court did have the power to grant Mr Dionistas the leave he required and to make the orders which the parties had agreed.

14. As Green Real Estate accepted, the onus fell on it not only to establish the breaches of contract it pursued, but the damages it claimed it had suffered as the result of the loss of the chance on which it advanced its case: Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 368; [1994] HCA 4.

15. Having concluded that Green Real Estate had only a 25% chance, at best, of selling the three properties in issue, as the parties agreed, it was simply not open to order Mr Dionisatos pay it the entire commission it would have earned, if it had sold the properties, as his Honour did. The money orders which the parties agreed reflect the conclusion which his Honour arrived at, about the chance which had been lost.

Orders

16. For these reasons, I granted Mr Dionisatos leave to appeal and by consent, ordered that:

1. Appeal allowed, to the extent set out at (2) below.

2. Orders ii and iii made by Magistrate Reiss on 15 May 2024 and the Local Court’s monetary order made on that date are set aside, in their place the Court orders that:

1. The appellant pay the respondent the amount of $23,065 plus interest of $2,987.19, representing pre-judgment interest from 19 July 2022 to 15 May 2024 at the rate prescribed by rule 6.12(8) of the Uniform Civil Procedure Rules 2005 (NSW).

2. The appellant to pay interest on the amount at (a) above from 16 May 2024 under section 101 of the Civil Procedure Act 2005 (NSW).

3. For the avoidance of doubt, these Orders do not affect costs orders made in the Local Court proceedings being proceedings 2022/00269745.

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Decision last updated: 10 March 2025