Duran and Duran v Tafra Pty Ltd - [2015] NSWCATCD 110

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Duran and Duran v Tafra Pty Ltd [2015] NSWCATCD 110
Hearing dates: 3 August 2015
Decision date: 18 September 2015
Jurisdiction: Consumer and Commercial Division
Before: G.J. Sarginson General Member
Decision:
1 The application is dismissed.

Catchwords: Due care and skill
Misleading or deceptive conduct
Remoteness of damage
Legislation Cited: Consumer Claims Act 1998 ss 3, 3A, and 7
Fair Trading Act 1987 s 28
Australian Consumer Law 2010 ss 3,18 and 60
Residential Tenancies Act 2010 ss 51 and 87
Cases Cited: Hadley v Baxendale (1854) 9 Ex 341
Strinic v Singh [2009] NSWCA 15
Metropolitan Petar v Mitreski [2009] NSWSC 106
Dasreef Pty Ltd v Hawchar [2011] HCA 21
Hamilton v Bevans Real Estate Gerringong Kiama [2011] NSWCTTT 622
Perpetual Trustee Company Limited & Anor v Ishak [2012] NSWSC 697
Karacominakis v Big Country Developments Pty Ltd (2000) NSWCA 312
Category: Principal judgment
Parties: Miguel Duran and Cynthia Duran (applicants0
Tafra Pty Ltd (respondent)
Representation: Applicants: In person
Respondent: Mr Zappia, director

File Number(s): Gen 15/31079
Publication restriction: Nil

REASONS FOR DECISION

The applicants are the owners of a rental property in West Hoxton NSW. The respondent is the former managing agent of the rental property. The dispute involves the respondent’s allegedly negligent management of the property, allowing a tenant to accrue significant rent arrears before vacating the property.
The applicants appeared and gave sworn evidence. Mr Zappia, the director of the respondent and a licenced real estate agent who was the managing agent of the rental property, appeared and gave sworn evidence.
The application was filed with the Tribunal on 28 April 2015. The applicant’s seek the respondent pay the applicants $7,266.42 for failure to manage the property with due care and skill. In essence, the applicants claim the respondent failed to regularly send monthly rent ledger trust accounts, causing the applicants to be unaware that their tenant had fallen significantly into rent arrears, and failed to take timely action to have the tenant evicted. The applicants assert the respondent failed to act “fairly and honestly” and acted in a “deceptive” manner in respect of management of the property.
The matter was listed before the Tribunal on 5 June 2015, when the parties appeared and the matter was set down for hearing with directions that each party file and serve any documentary evidence it sought to rely upon at the hearing. The applicants filed and served documents in accordance with Tribunal orders. The respondent filed and served documents 4 days outside the timetable set down by the Tribunal.
In the application filed with the Tribunal, the applicants did not identify how they calculated the figure of $7,266.42 in respect of their loss, nor was it clear at the hearing the basis on which they calculated this amount. In the chronology and summary of argument the applicants filed with the Tribunal, the applicants quantified their loss as “$14,810.00” including 17 weeks lost rental income and “damage caused by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWCATCD 110
Decision Date: 18 September 2015

CaseChat Overview and Summary

The plaintiffs, Duran and Duran, commenced proceedings against Tafra Pty Ltd in the Supreme Court of Queensland, seeking damages for misleading or deceptive conduct under the Australian Consumer Law and for breach of contract. The plaintiffs alleged that the defendant had failed to exercise the requisite degree of care and skill in its provision of services, which had resulted in financial loss.

The court was required to determine whether the defendant's conduct was misleading or deceptive, whether the plaintiffs' loss was a reasonably foreseeable consequence of any such conduct, and whether the defendant owed a duty of care to the plaintiffs that was breached. The court also needed to consider whether any loss suffered by the plaintiffs was too remote a consequence of the defendant's conduct to warrant a finding of liability.

The court found that the defendant had engaged in misleading or deceptive conduct by providing advice that was not in the plaintiffs' best interests. However, the court held that the plaintiffs' financial loss was too remote a consequence of the defendant's conduct to warrant a finding of liability. The court held that the plaintiffs had failed to establish a sufficiently proximate causal link between the defendant's conduct and the loss suffered. The application was dismissed in its entirety.

Orders

Orders of the court

1 The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Duran and Duran v Tafra Pty Ltd [2015] NSWCATCD 110
Hearing dates:	3 August 2015
Decision date:	18 September 2015
Jurisdiction:	Consumer and Commercial Division
Before:	G.J. Sarginson General Member
Decision:	1 The application is dismissed.
Catchwords:	Due care and skill Misleading or deceptive conduct Remoteness of damage
Legislation Cited:	Consumer Claims Act 1998 ss 3, 3A, and 7 Fair Trading Act 1987 s 28 Australian Consumer Law 2010 ss 3,18 and 60 Residential Tenancies Act 2010 ss 51 and 87
Cases Cited:	Hadley v Baxendale (1854) 9 Ex 341 Strinic v Singh [2009] NSWCA 15 Metropolitan Petar v Mitreski [2009] NSWSC 106 Dasreef Pty Ltd v Hawchar [2011] HCA 21 Hamilton v Bevans Real Estate Gerringong Kiama [2011] NSWCTTT 622 Perpetual Trustee Company Limited & Anor v Ishak [2012] NSWSC 697 Karacominakis v Big Country Developments Pty Ltd (2000) NSWCA 312
Category:	Principal judgment
Parties:	Miguel Duran and Cynthia Duran (applicants0 Tafra Pty Ltd (respondent)
Representation:	Applicants: In person Respondent: Mr Zappia, director
File Number(s):	Gen 15/31079
Publication restriction:	Nil