Dorado v Mener Group Pty Ltd - [2021] WADC 1

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   DORADO -v- MENER GROUP PTY LTD [2021] WADC 1
CORAM:   GLANCY DCJ
HEARD:   27-30 JULY 2020
DELIVERED          :   15 JANUARY 2021
FILE NO/S:   CIV 4771 of 2018
BETWEEN:   ALEXANDER DORADO
First Plaintiff
AND
GIUSEPPINA DORADO
Second Plaintiff
AND
MENER GROUP PTY LTD
First Defendant
AND
TODD JAMES BUCKLEY
Second Defendant

Catchwords:

Misleading and deceptive representations and conduct - Liability of director and employee of company - Was director a mere conduit

Legislation:

Australian Consumer Law (sch 2) Competition and Consumer Act 2010 (Cth), s 4(1)(a), s 4(2), s 18, s 19, s 236, s 237, s 243
Fair Trading Act 2010 (WA), s 75
Supreme Court Act 1935 (WA)
Trade Practices Act 1974 (Cth), s 52, s 82

Result:

Judgment for the plaintiffs in the sum of $77,368.19

Representation:

Counsel:

First Plaintiff	:	Mr G A Lacerenza
Second Plaintiff	:	Mr G A Lacerenza
First Defendant	:	Not applicable
Second Defendant	:	In person

Solicitors:

First Plaintiff	:	Lacerenza G. A. & Assoc
Second Plaintiff	:	Lacerenza G. A. & Assoc
First Defendant	:	Not applicable
Second Defendant	:	Not applicable

Case(s) referred to in decision(s):

3Meg.com Pty Ltd v TM & SM Pike Pty Ltd [2012] WASCA 128
Berry v CCL Secure Pty Ltd [2020] HCA 27; (2020) 94 ALJR 715
Browne v Dunn (1893) 6 R 67
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592
Caffey v Leatt-Hayter [No 3] [2013] WASC 348
Campbell v Back Office Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304
Cleary v Australian Co-operative Foods Ltd (No 2) [1999] NSWSC 991; (1999) 32 ACSR 701
Dominelli Ford (Hurstville) Pty Ltd v Karmot Auto Spares Pty Ltd (1992) 38 FCR 471
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Global Sportsman Pty Ltd v The Mirror Newspapers Pty Ltd (1984) 2 FCR 82
Googe v Spoljaric [2017] WADC 99
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1998) 39 FCR 546
Henville v Walker [2001] HCA 52; (2001) 206 CLR 459
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494
National Exchange Pty Ltd v Australian Securities & Investments Commission [2004] FCAFC 90; (2004) 49 ACSR 369
NEA Pty Ltd v Magenta Mining Pty Ltd [2005] WASC 106 (S)
Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd [2011] WASCA 76
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
Smart v Prisoner Review Board (WA) [2012] WASC 48
Travel Compensation Fund v Tambree [2005] HCA 69; (2005) 224 CLR 627

GLANCY DCJ:

Introduction and outcome

For reasons set out in the judgment under the heading 'Pleadings', the plaintiffs' action against the first defendant was discontinued at the commencement of the hearing. I have therefore referred to Mener Group Pty Ltd as 'Mener Group' throughout these reasons for decision and have referred to Mr Todd Buckley, who was the second defendant as 'the defendant'.
The factual background to this matter was not in dispute.
In 2015 the plaintiffs, Mr and Mrs Dorado, engaged Mener Group to arrange and complete the subdivision of a property they owned at 86 Dorothy Street, Gosnells (the property). A subdivision of the property into five lots was initially contemplated. The defendant, was the sole director and shareholder of Mener Group and all communication about the subdivision of the property was between Mr and Mrs Dorado and the defendant. Before Mener Group was engaged, the defendant indicated to the plaintiffs that the cost of the work to be undertaken by Mener Group which would give effect to the subdivision, would be approximately $129,250.
Between 17 March 2015 and 6 June 2016 the plaintiffs paid Mener Group $77,368.19 in four instalments, or progress payments. While some minor works were undertaken at the property, none of the formal processes required to progress the subdivision (for example, the making of an application for subdivision approval) were ever undertaken. Despite this, the defendant repeatedly assured the plaintiffs that matters were in hand, that actions had been taken by Mener Group to progress the subdivision and that subdivision approval was imminent.
By mid-September 2018 no subdivision approval had been made, let alone granted, very little work had been done at the property, various explanations had been given for the lack of progress, the relationship between the plaintiffs and the defendant broke down and the agreement between the plaintiffs and Mener Group was ended.
The plaintiffs have brought an action in this court seeking damages in the sum of $77,368.19 for misleading and deceptive representations made by the defendant in the course of trade or commerce contrary to the Australian Consumer Law (sch 2) Competition and Consumer Act 2010 (Cth) (ACL) and/or the Fair Trading Act 2010 (WA) (the FT Act).
For the reasons set out below I have found the defendant liable to the plaintiffs in the sum of $77,368.19.

Parties

The plaintiffs were represented by counsel at the hearing. The defendant was self-represented.
The principles relating to litigants in person were stated by Gething DCJ in Googe v Spoljaric.[1] These principles have been widely accepted and can be briefly summarised as follows:
1.A litigant in person should be afforded some latitude and the documents in which he articulates his case should be approached with some flexibility:  Smart v Prisoner Review Board (WA);[2]
2.The court needs to be careful to ensure that if he has a case that it is not denied because of a poorly expressed document or submissions:  Ibrahim v The Honourable Justice Carolyn Martin;[3] and
3.At the same time the court must ensure that any latitude given does not work an injustice to the other party:  Glew v Frank Jasper Pty Ltd.[4]
[1] Googe v Spoljaric [2017] WADC 99 [13] - [15].
[2] Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[3] Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [31] (Beech J).
[4] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].
I was conscious of and applied those principles throughout the trial. In an effort to ensure that the defendant understood the trial process he was provided with information about the trial process and how to conduct his action before the trial commenced. A copy of the material provided to him is annexed to this judgment marked Annexure A.

Pleadings

This trial commenced as an action brought by the plaintiffs, against Mener Group, as the first defendant, and Mr Todd Buckley, as the second defendant. Damages were sought for breach of contract and breach of the ACL and/or the Act.
At the commencement of the trial the plaintiffs discontinued the action against the first defendant which, on 26 March 2020, had been placed into liquidation.[5] It was also said that as a consequence, the claim for breach of contract was no longer pursued.[6] Pursuant to an order of the court the plaintiff was required to file an amended statement of claim which was intended to reflect the discontinuance against Mener Group and any consequential changes to the statement of claim. While an amended statement of claim was filed, it continued to include a prayer for damages for breach of contract. Despite that, the plaintiffs did not pursue a breach of contract claim and a re‑amended statement of claim which deleted the claim for damages for breach of contract was filed on the last day of the trial.[7]
[5] ts 11 (27 July 2020) and the notice of discontinuance filed 30 July 2020.
[6] ts 11 (27 July 2020).
[7] Re-amended statement of claim filed 30 July 2020.
In each version of the statement of claim filed in these proceedings, including the re-amended statement of claim, the plaintiffs' claim against the defendant was expressed to be for loss and damage particularised as follows:
1.The sum of $77,368.19 paid for no consideration or work that was not done;[8] and
2.Further costs that will be incurred to do the work to subdivide the property and loss of profit due to the delay in subdividing the property particulars of which will be rendered.[9]
[8] Re-amended statement of claim filed 30 July 2020, par 17(a).
[9] Re-amended statement of claim filed 30 July 2020, par 17(b).
Despite that, the plaintiffs' counsel expressly disavowed the claim for the cost of work required to complete the subdivision and for loss of profits caused by the delay in subdividing the property, stating that the plaintiffs' only claim was for the sum of $77,368.19 on the basis that they had paid that sum for no consideration or for work that was not done.[10]
[10] ts 34 - ts 35 (28 July 2020), ts 133 (29 July 2020) and ts 232 (30 July 2020).
On the pleadings the claim is put on two bases. First, that the defendant made certain pleaded misleading and deceptive representations (the representations) in the course of trade or commerce which resulted in the plaintiffs paying $77,368.19 to Mener Group for work which was not performed. Second, that the defendant engaged in misleading and deceptive conduct by making the representations, regularly providing 'purported' updates relating to the performance of the agreement, issuing invoices to and seeking payment from the plaintiffs for works or services purporting to have been supplied pursuant to the agreement and by his silence during the period February 2015 to December 2015 in failing to advise the plaintiffs that Mener Group was not intending to perform the agreement.
On the morning of the commencement of the trial, in response to the amended statement of claim, the defendant provided the court with a hand written amended defence. Despite the court asking for the document to be typed and filed, that has not occurred. At the hearing, the defendant orally made some further amendments to his defence.[11] The end result was that the defendant admitted the following facts:
[11] ts 23 (28 July 2020).
1.At all material times Mener Group was a trading corporation within the meaning of the ACL and was engaged in providing to owners of property, the services required for the subdivision of their property.
2.The defendant was at all material times the sole director and shareholder of Mener Group.
3.On or about 16 February 2015 the plaintiffs engaged Mener Group to 'organise, provide and produce the subdivision of the property and to deal with companies, contractors, service providers, the Ministry of Planning and relevant Government Departments for the subdivision strata plan and survey of the property'.
4.The engagement was made pursuant to an agreement which was partly written and partly oral.
5.The agreement contained the following express or implied terms:
(a)Mener Group and/or the defendant as the employee was to organise, provide and produce the subdivision of the property from one lot to five lots;
(b)Mener Group and/or the defendant as the employee would draft and file an application for subdivision with the City of Gosnells (the City);
(c)Mener Group and/or the defendant as the employee would liaise with and file an application for subdivision with the Western Australian Planning Commission (the WAPC);
(d)Mener Group and/or the defendant as the employee would carry out the works with due care and skill;
(e)Mener Group and/or the defendant as the employee would carry out the works within a reasonable time.
6.The plaintiffs made the payments set out in the following table to Mener Group in respect of the purported subdivision of the property:

Invoice date

Payment date

Amount

Description of payment

17.02.2015

19.02.2015

$8,000

Deposit

11.03.2016

13.03.2016

$4,675

Western Australian Planning Commission submission fee

31.03.2016

04.04.2016

$29,665

Stage 1 works

06.06.2016

13.12.2016

$35,028.19

Storm water disposal, carry out plumbing 06.06.2016 works for new soak wells and joining pipework to suit, carrying out works as per site layout drawing S001, allow for excavation as requirements for installation, greater drains, soak well, storm water materials and labour

7.Mener Group and/or the defendant, as employee, made the following representations to the plaintiffs:
(a)that contact would be made with the WAPC to discuss the option of retaining the existing house on the property and that contact would be made with the City to check on issues relating to the proposed subdivision and that once he had further information he would contact the plaintiffs to discuss the process by which they could keep the existing house and develop the remainder of the block. That representation was communicated by the defendant to the plaintiffs by an email sent on or about 17 January 2015 (First Representation);
(b)that the defendant was waiting to be contacted by the WAPC regarding the possibility of developing three blocks at the rear of the property, retaining the house at the front for the time being with the intention of creating two additional blocks at the front of the property by subdividing that portion of the property at a later time (effectively, a change from the initial five lot subdivision to a four lot subdivision). That representation was communicated by the defendant to the plaintiff by an email sent on 20 January 2015 (Second Representation);
(c)that the defendant had spoken to the City and been advised that the rear of the property could be subdivided and the existing home retained and developed into two lots at a later time although, because the previous development application had expired, it would be necessary to submit another application. That representation was communicated by the defendant to the plaintiffs by an email sent on or about 28 January 2015 (Third Representation);
(d)that a development application would be submitted to the City with the proposed subdivision plan and that an email had been received from the WAPC that morning regarding the splitting of the subdivision into two stages. That representation was communicated by the defendant to the plaintiffs by an email sent on 17 February 2015 (Fourth Representation);
(e)a proposed subdivision plan for the property was provided by the respondent to the plaintiffs on or about 5 March 2015 (Fifth Representation);
(f)that there would be an update on the application for subdivision within three weeks and that the defendant had spoken to the WAPC and been told that once the WAPC had received the application from the City it would be a straightforward application and that the conditions of approval would be made available within a short period of time. That representation was communicated by the defendant to the plaintiffs by an email sent on 13 April 2015 (Sixth Representation); and
(g)that as soon as abolition of the City's TPS 20 fee was approved by the WAPC, an application for subdivision would be lodged with the WAPC. That representation was made in an email sent by the defendant to the plaintiffs on 29 June 2015.

Although the hand written amended defence did not make matters clear, it became apparent in discussions which took place before the plaintiffs' opening address that the defendant admitted that all of the representations were representations as to future matters[12] but denied that:
[12] ts 23 (28 July 2020).
1.Mener Group breached the express and implied terms of the agreement by failing to carry out the works within a reasonable time or at all;
2.at all material times during the period from 13 February 2015 to 10 December 2015 the defendant and Mener Group by their conduct were misleading and deceptive or were likely to mislead or deceive the plaintiffs:
(a)in making the agreement to undertake the subdivision of the property;
(b)in making the representations which were false;
(c)by acting consistently with the performance of the agreement including by:
(i)regularly meeting with and emailing the plaintiffs purporting to provide updates relating to the performance of the agreement;
(ii)issuing invoices and seeking payment from the plaintiffs for work or services purporting to have been supplied pursuant to the agreement;
3.Mener Group or the defendant were misleading or deceptive by their silence during the period February to December 2015 in failing to or neglecting to advise the plaintiffs that Mener Group was not intending to honour or perform the agreement; and
4.the conduct of Mener Group as pleaded and admitted was conduct in the course of trade or commerce which was misleading or deceptive or likely to mislead or deceive contrary to s 18 of the ACL and s 19 of the FT Act.[13]
[13] ts 22 - ts 23 (28 July 2020).
The defendant also denied that his conduct caused the plaintiffs to suffer any loss or damage.
In his opening submission the defendant made clear that his position was that he was not responsible for any losses suffered by the plaintiffs because, in all of his communications with the plaintiffs he was an employee of Mener Group acting as a mere conduit, passing on information about the progress of the subdivision which had been given to him by other employees of Mener Group in circumstances where he had no knowledge that the information he was passing on was incorrect.[14]
[14] ts 160 - ts 163 (29 July 2020).
The defendant also submitted that work to the value of approximately $52,000 was in fact carried out and, therefore, that it could not be said that no work towards the subdivision of the property had been done.[15] His submission was that the majority of the costs went on administrative tasks which could not be seen on site rather than physical works on site.[16]
[15] ts 163 (29 July 2020).
[16] ts 164 (29 July 2020).

The issues

As can be seen from the above, the primary issues which fall to be resolved are:
1.Were the defendant's representations or conduct misleading or deceptive?
2.If so, was the defendant a mere conduit for Mener Group?
3.Did the plaintiffs rely on the misleading and deceptive representations or conduct?
4.Did the representations cause the plaintiffs to suffer loss and damage?
5.If so, what is the extent of the plaintiffs' loss and damage?

Misleading or deceptive conduct - the law

Section 18 of the ACL, provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or likely to mislead or deceive.[17] Such conduct can include the making of representations.
[17] Section 18 is in the same terms as the former s 52 of the Trade Practices Act 1974 (Cth). Decisions concerning s 52 of the Trade Practices Act remain relevant when considering s 18 of the ACL.
Section 4(1)(a) of the ACL provides that if a representation is made about future matters and there is no reasonable ground for the making of that representation, the representation is taken to be misleading. Section 4(2) of the ACL provides that a defendant is taken not to have reasonable grounds for making the future representation unless evidence to the contrary is adduced.
Conduct will be misleading or deceptive if, when considered as a whole, it had a tendency to lead a person into error.[18] It is not necessary for there to have been an intention to mislead or deceive in order for conduct to be misleading or deceptive.[19]
[18] Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, 198 ‑ 199 (Gibbs CJ) cited with approval by French CJ in Campbell v Back Office Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 [25].
[19] Global Sportsman Pty Ltd v The Mirror Newspapers Pty Ltd (1984) 2 FCR 82, 88.

Whether conduct is misleading or deceptive is a question of fact. The issue is to be determined objectively taking into account all of the surrounding facts and circumstances.[20]
[20] Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd [2011] WASCA 76 [218] - [227].
In cases involving representations this will usually involve determining:
1.whether the pleaded representation was made; and
2.whether the established representation was misleading or deceptive.
A statement that is literally true may be misleading and deceptive.[21]
[21] National Exchange Pty Ltd v Australian Securities & Investments Commission [2004] FCAFC 90; (2004) 49 ACSR 369 [49] - [52].
Where a statement is capable of more than two meanings, it will be likely to mislead or deceive if one meaning which is reasonably open is misleading or deceptive.
An expression of opinion that conveys no more than the opinion held is not misleading or deceptive merely because it is subsequently found to be incorrect.[22]
[22] Global Sportsman Pty Ltd v The Mirror Newspapers Pty Ltd (88).
Non-performance of a promise when the time for its performance arrives does not, of itself, establish that the promisor did not intend to perform the promise when it was made or that the promisor's intention lacked any or any adequate foundation.[23]
[23] Global Sportsman Pty Ltd (88).
The offending conduct need not be the sole cause of a plaintiff's loss or damage. It is sufficient that it pays a causal part in a plaintiff's loss or damage.
An employee, agent or director will be directly liable for any misleading conduct they engage in even though the conduct was done on behalf of the employer, principal or company, subject to the question of whether the employee, agent or director merely acted as a corporate organ, binding the company but not that person individually.[24]
[24] Cleary v Australian Co-operative Foods Ltd (No 2) [1999] NSWSC 991; (1999) 32 ACSR 701 [54], [56] and [57].
Whether a loss has been suffered as a consequence of the misleading or deceptive conduct is a separate question to be resolved subsequent to the issue of whether the representation was made, although characterisation of the conduct may involve the assessment of its notional effects, judged by reference to context.[25]
[25] Caffey v Leatt-Hayter [No 3] [2013] WASC 348 [24].
Where the conduct complained of is directed at an individual, a court will need to take account of the matters of fact which each party knew about the other as a result of their dealing and conversations when determining the character of the conduct complained of, in particular, when determining whether it was misleading or deceptive.[26]
[26] Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 [37].
The principles related to reliance and causation were summarised by Beech JA in Caffey v Leatt-Hayter [No 3]. Those relevant in this case are set out at [36] - [44] below.
In order to recover damages a plaintiff must establish that the loss or damage was suffered because of the conduct in contravention of the relevant Act.[27] While the expression 'because of' is to be understood as referring to the common law practical or common sense concept of causation, more recent cases have said that causation is to be determined by reference to the subject, scope and purpose of the cause of action with the result that the determination of whether a particular loss has been caused by conduct which contravened the Act, it is necessary to consider the Act as it relates to the particular circumstances of the case.[28]
[27] s 236, s 237(1) of the ACL; s 82 of the Trade Practices Act; s 75 of the FT Act.
[28] Travel Compensation Fund v Tambree [2005] HCA 69; (2005) 224 CLR 627 [30], [45].
Reliance, in this case, is an element of causation. That is, the question is whether the plaintiffs have suffered loss as a result of misleading and deceptive conduct of the defendant. Where there is no reliance upon the contravening conduct, the plaintiff has no case.
The contravening conduct need not be the sole cause of the loss and damage. It is sufficient for the plaintiff to demonstrate that contravention was a cause of the loss and damage.[29]
[29] I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109 [31], [33], [57], [61], [69].
Causation is to be determined subjectively, having regard to the effect of the misrepresentation upon the plaintiff.[30] Assertions made by the plaintiff in hindsight in the context of litigation are to be treated with caution. Consideration should therefore be given to the objective material in assessing the probability that the misrepresentation influenced the plaintiff's conduct at the time.[31]
[30] NEA Pty Ltd v Magenta Mining Pty Ltd [2005] WASC 106 (S) [128] - [129].
[31] Dominelli Ford (Hurstville) Pty Ltd v Karmot Auto Spares Pty Ltd (1992) 38 FCR 471.
Reliance and causation are able to be inferred[32] even in circumstances where there is direct evidence as to reliance, and even in circumstances where that direct evidence is rejected. The issue of reliance is to be determined in light of the whole of the surrounding facts and circumstances established by the evidence.[33]
[32] 3Meg.com Pty Ltd v TM & SM Pike Pty Ltd [2012] WASCA 128 [63].
[33] Campbell [102].
The fact that a plaintiff could have discovered the truth had he or she made proper inquiries, but was careless, does not preclude a finding of reliance.[34]
[34] Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1998) 39 FCR 546, 558, 559.
Section 243 of the ACL provides for a wide range of orders that the court can make following contravention of that Act by misleading or deceptive conduct. Section 237 of the ACL allows a court to make an order compensating the injured person 'in whole or in part for the loss or damage'. Section 236 of the ACL allows for recovery of damages.
The plaintiff has the onus of establishing that the loss or damage was suffered 'because of the conduct' which contravened the ACL. The standard of proof to be applied by the court is the balance of probabilities.
The plaintiff also has the evidential burden of establishing the existence and amount of the loss or damage suffered as a result of the misleading or deceptive conduct.[35] As their Honours Justice Gageler and Justice Edelman said in Berry v CCL Secure Pty Ltd[36] 'the plaintiff bears the ultimate burden of establishing both the required connection with the contravention and quantum by inferences drawn from the whole of the evidence'.
[35] Berry v CCL Secure Pty Ltd [2020] HCA 27; (2020) 94 ALJR 715 [28].
[36] Berry v CCL Secure Pty Ltd [65].
It is not necessarily helpful to equate remedies under the ACL with remedies for breach of contract, tort, or any other particular claim under the general law.[37] That notwithstanding, such remedies may be a useful guide. The High Court has concluded that in most cases the measure of damages in tort is an appropriate guide in assessing damages under s 82 of the Trade Practices Act (Cth), the predecessor to the ACL.[38]
[37] Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494.
[38] Henville v Walker [2001] HCA 52; (2001) 206 CLR 459.

Credibility of witnesses

Having set out the law which is to be applied in determining this case, I turn then to make findings about the credibility of the witnesses who gave evidence in the trial. In order to do so, it is necessary to recount some of the evidence given by those witnesses.
Mrs Dorado gave evidence on behalf of the plaintiffs. In addition, Mr Rechichi, a qualified architect and builder gave expert evidence on behalf of the plaintiffs. His expert report was tendered by consent.[39] The plaintiffs also called Mr Raymond James, an employee of the Department of Planning, Lands and Heritage, which is the administrative arm of the WAPC, and Mr Andrew Lefort from the City to give evidence.
[39] Exhibit 46 (Architectural Report 86 Dorothy Street Gosnells WA 6000 dated 19 December 2019).
I find that Mrs Dorado gave evidence in an honest and forthright way. I find that Mrs Dorado had a good memory of the events in question. She did not embellish her evidence and there was no inconsistency between her evidence and that which was established by the documents tendered in the trial or the evidence given by the other witnesses whose evidence I accept. There was also nothing in her demeanour that caused me to think she was anything other than a witness of truth.
Mrs Dorado's evidence was that she had trusted Mr Buckley[40] and had believed what he had said regarding the progress of the subdivision of her property. Her evidence was that when very little work had been done after nearly two years, and she seemed to be getting excuses for the delay, she started to question what Mr Buckley had been telling her. She said:[41]
Because when we first had the meeting with Todd, he had said 12 to 18 months. And I thought that was reasonable. We then did agree to wait till the TPS got abolished so I didn't take that into account. But from December 2015 till 2017 there was very little that was done. And all we were getting was excuses towards the end.
[40] ts 40, ts 57 (28 July 2020).
[41] ts 54 (28 July 2020).
Her evidence was that towards the end she wrote to the WAPC and the City and received responses informing her that no approvals or applications had been made.[42] Mrs Dorado said she was 'shocked' to learn that that was the case.[43] She said that ultimately she and her husband tried to negotiate taking over the work from Mr Buckley and that they also tried to negotiate a refund of money which they had paid for work which had not been done. Her evidence was that Mr Buckley had offered to refund to her certain sums, but ultimately no agreement was able to be reached and the relationship broke down, she consulted a lawyer and did not speak to Mr Buckley again. Her evidence was that no money was ever repaid.[44]
[42] Exhibit 42 (letter to Mrs Dorado from the WAPC dated 18 October 2018).
[43] ts 54 (28 July 2020).
[44] ts 31, ts 53 - ts 57 (28 July 2020).
Mr James gave evidence that on 30 June 2020 he had carried out a search of the WAPC's records in relation to planning approvals which had been sought in relation to the property.[45] When asked in examination-in-chief:[46]
… [C]an you tell us … if the outcome of your search in any way located any matter or thing or application for approval with regards to property … being 86 Dorothy Street Gosnells by the Mener Group Pty Ltd and/or Todd James Buckley?
Mr James replied:[47]
No, there was nothing. Nothing at all.
[45] ts 80 (28 July 2020).
[46] ts 80 (28 July 2020).
[47] ts 80 (28 July 2020).
The defendant took no issue with the credibility of Mr James, who I find to have been a witness of truth.
Likewise, the credibility of Mr Lefort was not in issue in these proceedings. Mr Lefort gave evidence that the City's records show that the only communication recorded between Mr Buckley and the City was an email from Mr Buckley sent on 5 July 2017 in which Mr Buckley informed the City that he was proposing to undertake a five lot subdivision of the property and inquiring about issues relating to stormwater.[48] Mr Lefort gave evidence that there was no record of the City having responded to Mr Buckley's email. Mr Lefort also gave evidence that the City had a record of an email received from a Mr Kevin Gu of Prompt Engineering dated 24 July 2017[49] requesting similar information about how excess stormwater should be treated at the property.[50] His evidence was that the City responded to Mr Gu by email on 27 July 2017 stating that the site was suitable for soakwells and requesting that contact be made with the City to discuss the matter further.[51] He gave evidence that the City's records show that on 18 October 2018 the City responded to an email it had received from Mrs Dorado by which it informed her that it had received no record of any subdivision approval referrals on the property.[52] Mr Lefort also gave evidence that the City had no record of an application for subdivision of the property having been made.[53]
[48] ts 85 (28 July 2020), exhibit 41.
[49] ts 85 (28 July 2020), exhibit 41.
[50] ts 86 (28 July 2020).
[51] ts 85 (28 July 2020), exhibit 41.
[52] ts 90 (28 July 2020).
[53] ts 90 (28 July 2020).
I find Mr Lefort to have been a witness of truth. His evidence that the City had no record of an application for approval to subdivide the property having been referred to it by the WAPC is consistent with the evidence of Mr James that the WAPC did not have a record of any such application having been made.
I also regard Mr Rechichi to have been an honest, accurate and reliable witness who gave his evidence in a forthright manner. No issue was taken as to his credibility.
So far as the defendant was concerned, I find he was a witness who lacked credibility. In order to explain why that is so, it is necessary to refer to much of the evidence given in this matter.
The defendant's evidence was that he had made inquiries of both the WAPC and the City in respect to the subdivision of the property.[54] His evidence in cross‑examination was that prior to 16 February 2015, when the agreement between Mener Group and the plaintiffs was signed, he had verbal conversations with 'a gentleman called TOK' at the WAPC as he had promised the plaintiffs he would.[55] He also gave evidence that he had had phone discussions with persons at the City.[56] He accepted that he had no records of those discussions. He also gave evidence in cross-examination that that the City had no records of the phone calls because they did not keep records of telephone discussions but only kept records of emails.[57] In his submissions the defendant contended that the fact that the WAPC had no record of any communications with him, or anyone else on behalf of the Mener Group, in respect to the property did not necessarily establish that phone discussions between them had not taken place. He submitted that the absence of records may have been a consequence of deficient record keeping by the organisations. He also submitted that the practice of those organisations may have been that a file would not be created until such time as an application for planning approval was lodged, with the result that general inquiries would not be recorded because there was no file against which to make a record.
[54] ts 187 (29 July 2020).
[55] ts 186 (29 July 2020).
[56] ts 187 (29 July 2020).
[57] ts 187 (29 July 2020).
I accept that an absence of records would not necessarily mean that the defendant had not contacted either the WAPC or had more discussions with the City than those of which a record was kept. The fact that neither of the defendant's possible explanations for the absence of records were put to the witnesses from the WAPC or the City by the defendant in cross-examination, advances the matter very little because, as a litigant in person, it might be that Mr Buckley simply failed to properly appreciate the requirements of the rule in Browne v Dunn.[58] However, Mr James' evidence directly contradicts the defendant's hypothetical explanations, at least in so far as an absence of records at the WAPC is concerned. In his evidence‑in‑chief Mr James said that the WAPC's practice is to create a file where an application is made and to create a reference where a preliminary inquiry is made. His evidence was that all communications about subdivision proposals are captured on their electronic document system. He said:[59]
Every time an application's made a file is created, or at the very least a reference, if it's a preliminary inquiry. All this is placed within the objective system, which is the Electronic Document Records Management System, the EDRMS, which is approved by the State Records Commission. So we're obligated to put everything within that system.
[58] Browne v Dunn (1893) 6 R 67.
[59] ts 81 (29 July 2020).
I reject the defendant's evidence that he had made inquiries of the WAPC at any time. I also reject his evidence that he made inquiries of the City other than the inquiry of which there is a record dated 5 July 2017. I do so for the following reasons:
1.there are no records of any such discussions kept either by the defendant or the relevant authority;
2.insofar as the evidence regarding the WAPC is concerned, the defendant's theory about the absence of records is directly contradicted by Mr James' evidence about the WAPC's record keeping practices; and
3.that the defendant was untruthful in this regard is consistent with the view that I have taken in relation to other aspects of his evidence, to which I will now turn.
The defendant gave evidence that he was merely passing on information in relation to the progress of the subdivision which he himself had obtained from other employees who worked for Mener Group. However, he did not identify by name or position any of the people from whom he said he obtained any of the information and he did not produce any records of the Mener Group which may have established the existence of any other employees. When asked in cross‑examination to name the employees of Mener Group, the defendant only gave evidence that a registered builder, Mr Ivan Mikic, was employed by Mener Group for a time.[60] In cross‑examination the defendant said he could not produce any company records establishing the existence of any other employees because he had no access to the records because Mener Group is in liquidation, although he accepted that discovery had been provided before Mener Group was placed into liquidation.
[60] ts 180 (29 July 2020).
Further, apart from his own statement to that effect, the defendant adduced no evidence to support his own evidence that he had received any of the information contained in the representations from any other person. By that I mean that no emails or any other documents by which the information was communicated to him were discovered and no former employees were called to give evidence to corroborate the defendant's account of having been provided with the information which he communicated to the plaintiffs.
In cross-examination the defendant put to Mrs Dorado that he had assigned to her a customer liaison officer who was to be the interface between her and Mener Group. Mrs Dorado denied that had ever occurred. The defendant did not himself give evidence that he had assigned the plainitffs a customer liaison officer.
I reject the defendant's evidence that it was Mener Group's employees who provided him with the information which he merely passed on to the plainitffs. It was implausible in circumstances where he did not, in his evidence, identify by name any person from whom he said he obtained the information, and was unable to name any employees of Mener Group apart from Mr Mikic. In light of the fact that he was the sole director and shareholder of Mener Group I would have expected him to be able to name its former employees had there been any. I also find his explanation that he could not obtain the records because of Mener Group having been placed into liquidation disingenuous given that the discovery in this matter was completed before Mener Group was placed into liquidation. Further, the defendant's evidence was not corroborated by any documents or other witnesses and, insofar as it concerned the question of the appointment of a liaison officer by the defendant, it was directly contradicted by Mrs Dorado, who I have found to have been a truthful witness.
The defendant maintained that he was not misleading the plaintiffs when he emailed them in February 2015[61] informing them that he had received an email from the WAPC regarding the 'split subdivision of their block' (a reference to the proposal to proceed with a four lot subdivision at the time with the possibility of subdividing the lot on which the existing house would be located into two at a later time). He maintained that he had received an email from the WAPC about that issue despite Mr James' evidence that the WAPC had no records of any communication with anyone about the property at the relevant time. In cross-examination the defendant said he could not produce the email from the WAPC because Mener Group was in liquidation and he had no access to the company's records. As I have already noted, his affidavit of discovery was completed before Mener Group went into liquidation. It did not include any such email. In light of those matters I find the defendant's evidence that he had received the email from the WAPC in February to be untrue.
[61] Exhibit 9 (email February 2015).

The defendant's closing submission was that his only involvement with Mener Group was limited to financial backing of the company.[62] He said that he had no decision making powers within Mener Group.[63] The fact that the defendant was a litigant in person may explain his failure to give evidence to that effect and to confine that statement to submissions. That latitude aside, that statement is implausible in circumstances in which he was the sole director and shareholder of Mener Group. It is also contrary to the established facts, given that all communications about the proposed subdivision of the property took place between the defendant, himself and the plaintiffs.
[62] ts 235 (30 July 2020).
[63] ts 235 (30 July 2020).
The defendant's evidence was that in every communication he had with the plaintiffs he was merely passing on information about the progress of the works, which information had been provided to him by others within Mener Group.[64] Yet the emails which the defendant accepts that he wrote to the plaintiffs speak in the first person about communication with the WAPC and the City about the proposed subdivision. By way of example, emails sent by the defendant include the following statements: 'I have spoken to the council',[65] 'I have spoken to the WAPC',[66] 'I have followed up with the WAPC'[67] (emphasis added).
[64] ts 184 (30 July 2020), (and see the defendant's closing oral submissions ts 235 (30 July 2020).
[65] Exhibit 5 dated 28 January 2015.
[66] Exhibit 11 dated 13 April 2015.
[67] Exhibit 12 dated 29 June 2015.
Given that the defendant was the director and sole shareholder, given he was writing in the first person, given his failure to produce records identifying the existence of employees (apart from the builder Mr Mikic), given he did not call any former employees to give evidence that they provided him with the information conveyed to the plaintiffs and in circumstances where I have already rejected other aspects of his evidence, I find the defendant's evidence that he was merely passing on information provided to him by others entirely lacking in credibility.
On the basis of the matters set out above individually and in combination, I find that the defendant by his evidence, endeavoured to minimise his involvement in the matter, and gave untruthful evidence that apart from having had one discussion with the City in February he was merely passing on information which had been provided to him by others in Mener Group.

What was done towards the subdivision of the property?

Even the defendant accepts, and I am satisfied to the requisite standard and so find, that no application for subdivision of the property was ever lodged with the WAPC or the City by either the defendant or Mener Group.
Mr Rechichi, a qualified architect and registered builder with extensive experience in subdivisions and their cost, gave expert evidence both orally and in writing about the process of subdivisions of land in the City and the approvals which are required to be sought and given before a lawful subdivision can occur. His expert report is exhibit 46. His evidence was that:
1.an application for subdivision is required to be made to the WAPC with the payment of the appropriate fees and proposed subdivision drawings;
2.the City requires that the application made to the WAPC be submitted with stormwater and drainage layout drawings prepared by a qualified hydraulic engineer; and
3.once received the WAPC facilitates the provision of the application to stakeholders for their approval (or otherwise) including the City which is required to determine whether the proposed subdivision meets its Town Planning Scheme.[68]
[68] Exhibit 46, pages 16 - 17.
He gave evidence that, having reviewed this matter, even if an application for approval to subdivide the property had been made to the WAPC, no approval for subdivision could have been given. This was because the application was required to be accompanied by hydraulic plans and none had been prepared.[69] The defendant agreed that no drainage plans had been prepared.[70]
[69] ts 151 (29 July 2020).
[70] ts 208 (29 July 2020).
The defendant and Mrs Dorado both gave evidence that some work was done at the property. That work was work that would have had to be done to progress the physical works required for subdivision of the property to be effected.
Mrs Dorado gave evidence that some work had been carried out at the property by persons organised through Mener Group.[71] Mrs Dorado gave evidence that a temporary fence was erected between the existing house and the back of the property,[72] that some trees were removed,[73] that some clearing was done[74] and that soakwells were delivered and for the most part subsequently removed, although one had been partially dug in although not covered with its lid.[75] Her evidence was that the pool which previously existed on the site had been removed but her evidence, which I accept, was that she and her husband were partly responsible for the removal of the pool from the property and that removal was not entirely undertaken by Mener Group or its contractors. Her evidence was that the area where the pool had been had not been filled in and was now a hole filled with weeds and the panels which had surrounded the pool had not been removed from the property.[76]
[71] His evidence suggested that some of the people involved were subcontractors. How they were engaged is irrelevant for present purposes.
[72] ts 107 (29 July 2020).
[73] ts 52 (28 July 2020).
[74] ts 53 (28 July 2020).
[75] ts 111, ts 116 (29 July 2020).
[76] ts 113 - ts 114 (28 July 2020).
In cross-examination, the defendant accepted that the plastic pool has been cut into pieces by the plaintiffs.[77]
[77] ts 213 - ts 214 (29 July 2020).
The defendant gave evidence that Mener Group had been able to complete certain works on the site without approvals. He referred to them as 'internal works on the site'.[78] He elaborated, saying:[79]
Specific works completed on site were earth moving, removal of trees, fencing, engineering reports, hydraulic reports, drafting of plans, administrative works in relation to appropriate applications to the City of Gosnells and Western Australian Planning Commission. Also contact to Water Corp - or West Australian Water Corp.
[78] ts 173 (29 July 2020).
[79] ts 173 (29 July 2020).
When asked in cross-examination if he had discovered or brought with him to produce in evidence the hydraulic report or any draft plans the defendant responded as follows:
No. This material has been provided to the City of Gosnells on a number of occasions and I believe yesterday Mr Lefort confirmed they had been in talks with Prompt Engineering and their employee in relation to that. … Subdivision works on that site have been completed to a certain point. I agree that not all works have been done. However the works were not completed due to the plaintiff cancelling on 31 August by a verbal conversation via phone.
I do not accept the defendant's evidence that hydraulic plans were provided to the City. It is not borne out by the City's records, no such plans have been produced by the defendant and no‑one from Prompt Engineering has been called to give evidence to corroborate the defendant's evidence that any such plans were completed.
Mr Rechichi gave evidence that he inspected the property on 14 January 2019 and took photos of the property which form part of his expert report. Part of the purpose for doing so was to ascertain the works which had been done towards the subdivision of the property and the works which would be required to be undertaken in order to complete a four lot subdivision of the property. In his report he notes that he was provided with a copy of a surveyed drawing which had been produced by Cottage and Engineering Surveys dated 16 February 2010 which identified the features located on the property at that time. He compared it with the condition of the property at the time of his inspection. He says that he was instructed that no works towards subdivision of the property were carried out in connection with the 2010 subdivision proposal although planning approval was granted on 28 June 2010. He reported that he was instructed that between August 2010 and January 2015 the property and the existing house lay in its existing state.[80] That underlying factual assumption was consistent with the evidence given by Mrs Dorado about the state of the property before she and her husband entered into the arrangement with Mener Group. I accept her evidence on that issue and therefore I accept that the factual basis of Mr Rechichi's report is correct.
[80] Exhibit 46, page 16.
Mr Rechichi identified that a new Colorbond fence had been constructed on the proposed new boundary of the subdivision.[81] He also noted in his report that the old carport which is in the rear of the yard had not been removed and had been fenced around.[82] In evidence he said that that subdivision of the property into a four lot subdivision is not possible while the carport is retained.[83] In his oral evidence and in his report Mr Rechichi said that although the shed itself had been removed, the concrete pad from the shed had not been removed and that its removal would be necessary for subdivision to occur.[84] He also gave evidence that the site had not been cleared and compacted and made ready for earthworks for the new dwellings.[85] Mr Rechichi gave evidence that some soakwells for the stormwater had been laid but had not been interconnected as is required, lids had not been installed and the stockpile of fill had not been backfilled over them.[86] He also gave evidence that although the pool had been removed, the area from which it was removed had not been filled and the concrete blocks which had surrounded the pool had been left in piles on the side.[87] In cross‑examination Mr Rechichi accepted that there may have been some changes in the extent of the vegetation on the land between the time when the Mener Group and Mr and Mrs Dorado's agreement came to an end and 14 January 2019 when his inspection occurred. That is, he accepted that some vegetation which had been cleared by Mener Group may have regrown.
[81] Exhibit 46, figure 3.
[82] ts 146 (29 July 2020), exhibit 46, page 22.
[83] ts 146 (29 July 2020), exhibit 46, page 22.
[84] ts 146 (29 July 2020).
[85] ts 146 (29 July 2020).
[86] ts 147 (29 July 2020).
[87] ts 112 (28 July 2020).
Mr Rechichi's report summary was as follows:[88]
Having completed a visual inspection and assessment of the development on the subject property it is our opinion that:
The land is not adequate for commencement of new construction.
There are large excavation pits that must be backfilled and compacted, and the lot must be cleared and prepared for its next intended use.
The overall condition of the property in accordance with our standard indicators and relative to the age of the property is considered to be: 'unacceptable'.
[88] Exhibit 46, page 6.
Mr Rechichi expressed his expert opinion, as a qualified and experienced builder, as to the cost of each item of work which had been undertaken at the property and for which the plaintiffs had been billed by Mener Group. He noted that there was some dispute about who had carried out some of the work; in particular the removal of the shed and the removal and disposal of the swimming pool, but accepted that was not a matter for him to resolve. He expressed the view that the cost of some items was reasonable, payment for items which had not occurred at all was unjustified and the amount charged for some items was excessive.[89]
[89] Exhibit 46, pages 21 - 29.
Mr Rechichi gave evidence that given the relatively minor works which had been undertaken on the property and the fact that the work which had been undertaken was generally 'incomplete and not done in an acceptable manner, it is necessary to redo most of the work'.[90] He estimated that the total value of works done was around $16, 578.[91] He estimated that the work required to be completed now to undertake a four lot subdivision would cost approximately $128,671.75.[92]
[90] Exhibit 46, page 30.
[91] Exhibit 46, page 26.
[92] Exhibit 46, page 32.
The defendant neither gave nor adduced any evidence about the value of the works which were actually carried out although he made a submission that the actual works on site, which 'involved fencing, clearing, partial installation of soak wells, rubbish removal, tipping fees' amounted to $33,138.[93] He then claimed, additional to that he had incurred administrative costs.[94]
[93] ts 165 (29 July 2020).
[94] ts 165 (29 July 2020), the cost of the administrative tasks was not quantified.

Were the representations misleading or deceptive

Before the agreement between Mener Group and the plaintiffs was entered into, the defendant had made the First, Second and Third Representations.
The First Representation was that contact would be made with the City and the WAPC to check on issues relating to the subdivision. There is no direct evidence that at the time that representation was made the defendant knew that no such contact would be made.
But, the law is that where a representation is as to future matters and there is no reasonable ground for the making of it, that representation is taken to be misleading. A defendant is taken not to have reasonable grounds for making a future representation unless evidence to the contrary is adduced.
The defendant adduced no evidence in this trial that he had a reasonable basis for representing to the plaintiffs that contact would be made with those authorities. In the absence of such evidence, I find that the First Representation was misleading.
The Second and Third Representations were to the effect that the defendant had made contact with the WAPC and was waiting to hear back from them and that he had spoken to the City and had been told that a four lot subdivision would be possible but a new development application would be required.
In evidence the defendant said that he was passing on information from other persons who worked in his company. But the Third Representation was that he himself had spoken to the City.[95]
[95] Exhibit 5.
The Second Representation, that he was waiting to hear back from the WAPC, in my view implies that it was he who had called them. In any event, apart from the assertion that he relied on information provided by other employees of Mener Group, the defendant adduced no evidence as to the existence of other employees at Mener Group (apart from Mr Mikic) and no evidence of who it was he says had called the WAPC and who he said had told him that a call from the WAPC was expected.
For the reasons set out above, I have rejected the defendant's evidence about the Second and Third Representations. I am satisfied to the requisite standard and I find that the Second Representation and the Third representations were untrue and misleading or deceptive.
The Fourth Representation was made by email of 17 February 2015.[96] It informed the plaintiffs that an email had been received from the WAPC regarding the splitting of the subdivision into two stages and that a development application would be submitted to the City with the proposed subdivision plan.
[96] Exhibit 9.
While I am unable to find that the defendant never intended that Mener Group would undertake the subdivision, that does not bear upon the issue of whether the representations as to future matters were misleading or deceptive.
I find that in its entirety the Fourth Representation suggested to Mr and Mrs Dorado that the application for a four lot subdivision would shortly be submitted to the City who had, it said, indicated it was likely to be approved.
I am satisfied to the relevant standard and find that, the assertion that there had been communication with the WAPC about the proposed subdivision, that it was likely to be approved and that an application would soon be submitted, was false and misleading and deceptive.
I am unable to find that the Fifth Representation was misleading or deceptive. The provision to the plaintiffs of a subdivision plan for the property on 5 March 2015, although essentially a copy of work prepared by others in connection with the subdivision application made and approved in 2010, would tend rather to suggest that the defendant had some intention that Mener Group would eventually complete the work which it had agreed to do for the plaintiffs.
I am satisfied to the requisite standard and I find that whatever the defendant's intention with respect to Mener Group being able to complete a subdivision of the property, the Sixth Representation was misleading and deceptive. I have rejected the defendant's evidence that he was passing on information provided to him by other employees of Mener Group as implausible. I find that he had no reasonable grounds for informing the plaintiffs that he had spoken with the WAPC and had been told that once the application was received from the City conditions of approval would be made within a short period of time. Indeed, in light of the evidence from the WAPC and the City that no application had been submitted to them and that they had no record of any communication with any persons regarding the proposed subdivision of the property, and the defendant's failure to produce records of such an application or communications having been made, or of the existence of any employees, given the lack of any evidence from any former employee of Mener Group being given to corroborate the defendant's evidence that he was merely passing on information provided by others and my finding in relation to his lack of credibility, I am positively satisfied that the defendant knew that the Sixth Representation was not true. It was a representation that was, therefore, misleading and deceptive.

Was the conduct of Mener Group and the defendant misleading and deceptive?

I also find that, while the defendant may have been hopeful of completing the subdivision of the property at some time in the future, his conduct, including purporting to regularly update the plaintiffs as to the progress of the proposed subdivision but being untruthful while doing so, was misleading and deceptive.

Did the plaintiffs rely on the misleading and deceptive representations and the misleading and deceptive conduct and did it cause the plaintiffs to suffer loss?

The question of reliance on a representation and causation of loss are closely related: Sellars v Adelaide Petroleum NL.[97] It is a question of fact for the court to determine whether any or some or all of the representations as to future matters and misleading and deceptive conduct contributed to the decision by the plaintiffs to enter the agreement with Mener Group and to make any or all of the payments to it when requested.
[97] Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, 348.
Mrs Dorado gave evidence that she trusted the defendant and believed him when he said the things that constituted each representation.[98] She said she started to get concerned in 2018 because very little had been done on at the property by them although the defendant had initially told them the entire process was likely to take 12 - 18 months.[99] Her evidence was that the last meeting with the defendant was in August 2018 and that it was at about the time that she wrote to the City and the WAPC inquiring as to whether planning permissions had been given for the subdivision of the property.[100] Mrs Dorado gave evidence that she and her husband were shocked to learn that no application for subdivision approval had been made given what they had been told the defendant.[101]
[98] ts 40, ts 57 (28 July 2020).
[99] ts 54 (28 July 2020).
[100] ts 55 (28 July 2020).
[101] ts 55 - ts 56 (28 July 2020).
Mr Dorado gave evidence that she and her husband both worked and had two children to care for, one of whom had certain disabilities. Her evidence was that they thought that subdividing the property and selling some of the blocks created through that process was a way in which the family could get ahead.

Having regard to the following:
1.the evidence as to their family situation and the reasons for subdividing the property;
2.the evidence that she trusted the defendant when he told them the subdivision application was likely to be approved and the entire process was likely to take only 12 - 18 months, when he made the pleaded representations and when he asked for money for works that had been done or were to be done; and
3.the fact that they brought the arrangement with Mener Group to an end on learning in late 2018 that no application for subdivision had been made,
I infer both that the plaintiffs wanted the subdivision completed in a timely fashion (albeit that they were prepared to wait until the TSP 20 fee was no longer charged by the City before lodging the application in order to save themselves approximately $20,000) and that they relied upon each of the representations which I have found to be false and misleading when they made the payments to Mener Group which were asked of them.
I find that, having placed their trust in the defendant, the misleading and deceptive representations made by him and his misleading and deceptive conduct in meeting and providing them with untrue 'updates' about the progress of their subdivision, caused the plaintiffs to believe, and to continue to believe, that the City and the WAPC had indicated to him that there would be approval given for the subdivision of the property in the manner contemplated by the plaintiffs, that the subdivision application had been lodged, that the approvals were imminent and that the work to subdivide their property would be completed in a timely fashion.
I find that holding those beliefs caused the plaintiffs to make each payment to Mener Group at the time it was requested. There was no other reason at all for them to make the payments to Mener Group.

Was the defendant responsible for the representations or merely a conduit for Mener Group?

The defendant accepted that he made each of the representations, although as already referred to, he says he was a mere conduit for information provided to him by employees within Mener Group upon whom he relied. I have already explained why I have rejected the defendant's evidence to that effect. It is not supported by other evidence and is implausible.
The defendant was the only person at Mener Group with whom the plaintiffs had any discussions about matters relevant to the subdivision of the property.
For the plaintiffs, the defendant was the living embodiment of Mener Group. He was not merely the organ of Mener Group. He was the only person with whom the plaintiff ever had any discussions about the proposed subdivision of the property. It was he who they trusted when it was agreed that his company would undertake the works necessary to produce the subdivision of the property. It was he who they believed when he said he had spoken to the WAPC and the City about the proposed subdivision and when he said an application for subdivision approval had been made.
I find that, as the human embodiment of Mener Group and the maker of each of the false and misleading representations, the defendant is liable to the plaintiff for damages arising from those representations.

Assessment of damages

I have already set out the law as it relates to damages for false and misleading misrepresentations pursuant to the ACL. While not confined to contractual damages or tortious damages, damages akin to tortious damages are a generally accepted measure of damages in cases of this kind.
It is not in dispute that some work was undertaken on the property. I have referred to the extent of that work above.
Mrs Dorado also gave evidence of some discussions which she had with the defendant by email in August 2018 about moneys he said he was prepared to refund for work which she had paid for but which was not undertaken. She said in evidence that those discussions took place at a time when she and her husband were contemplating taking over completion of the subdivision themselves.
The defendant agreed in evidence that discussions of that nature had occurred but that no money had been repaid.[102]
[102] ts 210 - ts 217 (29 July 2020).
Damages in tort are designed to put the plaintiffs back in the positon they would have been had the tort not occurred.
No evidence was led as to what the plaintiffs intend now to do with the property. It was not said that they want to return the property to the position it was in before they agreed with Mener Group to subdivide it. Nor did Mrs Dorado give evidence that she wishes to proceed with the subdivision. The only evidence before the court as to the cost of doing so comes from Mr Rechichi who estimated the cost of completing a subdivision of the property at $128, 671.75.[103]
[103] Exhibit 46, page 32.
On the basis of the evidence which I accept, I find that the plaintiffs paid a deposit of $8,000 to Mener Group because they believed that the defendant had had discussions with the WAPC and the City before the agreement was entered into with Mener Group that indicated that they were likely to obtain approval for a four lot subdivision of their property. They then made three additional progress payments to Mener Group when requested to do so because they believed the defendant when he told them that the application for subdivision had been made and approval was imminent and that works towards the subdivision were being carried out.
The evidence of Mrs Dorado and Mr Rechichi, which I accept, was that the minor works which were undertaken at the property have left it in what may be best described as a mess. There would be costs involved in returning the property to its pre‑existing condition and in completing the subdivision.
I find that whatever the cost to Mener Group, the works which were undertaken have no value to the plaintiffs.
The plaintiffs paid $77,368.19 to Mener Group and received nothing of value in return. The plaintiffs are to be put in the position they would have been had the misrepresentations not been made and the misleading conduct not occurred.
On that basis I find the defendant liable to the plaintiff in the sum of $77,368.19.

Interest

The plaintiff has claimed 'interest on the sum of $77,368.19 at the rate prescribed from time to time in respect of judgments pursuant to s 32 of the Supreme Court Act 1935 (WA) (SC Act) as amended from 16 February 2015 until payment'.[104]
[104] Prayer for relief cl 1(c) of the re-amended statement of claim.
Section 32 of the Supreme Court Act 1935 (WA) (SC Act) permits the court to order interest to be paid at such rates as it thinks fit on the whole or any part of the money for the whole or any part of the period between the date on which the cause of action arose and the date when the judgment takes effect.
Accordingly, I do not consider that the order sought by the plaintiffs is appropriate in two respects.
First, I do not consider it is appropriate for interest to be paid on the whole of the judgment sum from 16 February 2015. The sum of $77,368.19 was paid in four instalments. The facts which were agreed, and which I found, were that the first payment, being a deposit of $8,000 was made on 19 February 2015. The other payments were made on 13 February 2016, 4 April 2016 and 13 December 2016 respectively. Interest should be calculated on each sum from the date on which it was paid.
Second, s 32 of the SC Act permits the making of an order that interest be paid for the whole or part of any period between the date on which the cause of action arose until the date of judgment not until payment of the judgment as was proposed by the plaintiffs.
I consider it appropriate to make orders that the defendant pay interest on the sums paid by the plaintiffs as from the date on which they were paid at the rate of 6% until the date of judgment.
I will hear the parties as to the appropriate form of orders and as to costs.

Annexure 'A'

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CH
Associate to Judge Glancy
13 JANUARY 2021

Invoice date	Payment date	Amount	Description of payment
17.02.2015	19.02.2015	$8,000	Deposit
11.03.2016	13.03.2016	$4,675	Western Australian Planning Commission submission fee
31.03.2016	04.04.2016	$29,665	Stage 1 works
06.06.2016	13.12.2016	$35,028.19	Storm water disposal, carry out plumbing 06.06.2016 works for new soak wells and joining pipework to suit, carrying out works as per site layout drawing S001, allow for excavation as requirements for installation, greater drains, soak well, storm water materials and labour