Keys Consulting Pty Ltd v CAT Enterprises Pty Ltd (No 2)
[2017] VCC 1912
•24 January 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-14-02966
| KEYS CONSULTING PTY LTD | Plaintiff |
| v | |
| CAT ENTERPRISES PTY LTD & ORS | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 December 2017 | |
DATE OF JUDGMENT: | 24 January 2018 | |
CASE MAY BE CITED AS: | Keys Consulting Pty Ltd v CAT Enterprises Pty Ltd & Ors (No 2) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1912 | |
REASONS FOR JUDGMENT
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Subject: Damages and other relief
Catchwords: Misleading or deceptive conduct; claims for damages pursuant to s236 Australian Consumer Law; application for further relief to ss237 & 243 of ACL; proper measure of damages; whether amount owing pursuant to contract induced by misleading or deceptive conduct should be reduced to zero.
Legislation Cited: Sections 236, 237, 243 Australian Consumer Law (Schedule 2, Competition and Consumer Act 2010 (Cth); s82 Trade Practices Act 1974;
Cases Cited:Alati v Kruger (1955) 94 CLR 216; Marks v GIO Australia Holdings [1998] 196 CLR 494; Henville v Walker (2001) 206 CLR 401; All Fasteners (WA) v Grant Caple [2007] FCA 1252
Judgment: (1) On or before 1 February 2018, the parties must bring in short minutes to give effect to these reasons. (2) Costs reserved.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R L Moore | Salisbury Advisory Pty Ltd |
| For the Defendants | Mr A W Sandbach | Goldsmiths Lawyers |
HIS HONOUR:
Background
1 On 16 November 2017, I published reasons in which I made determinations as to various causes of action pursued in this proceeding and adjourned the matter for further argument as to the relief which should be granted on the claim and counterclaim in light of my findings. ([2017] VCC 1661)
2 As to the counterclaim, I did not sustain any of the causes of action based upon the common law of contract. I did, however, find to have been established two pieces of misleading and deceptive conduct on behalf of the plaintiff and defendant to counterclaim, Keys Consulting Pty Ltd (“Keys”) relative, in the one case, to the principal sale of business contract, and, in the other, to the second contract between the parties, sometimes referred to colloquially as “Commercial 2”.
3 I incorporate by reference the background narrative and the findings in my principal judgment.
4 The matter came on for further hearing on 12 December 2017 and the parties made their submissions as to the relief to be granted in the circumstances.
5 The causes of action which I sustained and found in favour of the defendant/counterclaimant, CAT Enterprises Pty Ltd (“CAT”), were for misleading or deceptive conduct contrary to s18 of the Australian Consumer Law (“ACL”)
6 At the resumption, Mr Russell Moore, counsel for the plaintiff, submitted:
“[In] an action under section 18 ACL whereby an applicant has been induced to purchase property or a business, damages are often assessed as the difference between the real value of the thing acquired and the price paid for it”.
7 Mr Sandbach, counsel for the defendant/counterclaimant, CAT, endorsed this statement of principle.
8 I turn now to examine the question of what relief should be granted to the counterclaimant, CAT, relative to the proven misleading or deceptive conduct.
The Peninsula Run misleading statement
9 I found that:
“… a (false) representation was made as to the Peninsula Run having a revenue turnover of $100,000-$120,000 per annum and that it was made before the parties agreed on the final price of $450,000.” ([2017] VCC 1661 [173])
10 Mr Moore submitted that the only loss and damage which should be found to have been suffered by CAT as a result of this misleading or deceptive conduct was a loss of $50,000 “being the difference between the purchase price of $450,000 which included the Peninsula Run and $400,000 which Mr Trigg was willing to pay without the Peninsula Run”.
11 He referred to a passage in his cross-examination of Mr Trigg, the principal of CAT, to the effect that CAT would have been willing to purchase the business done by Keys with signage contractor Briner Ads Pty Ltd (“Briner”), excluding work on the Mornington Peninsula for the sum of $400,000. (Transcript (“T”) 643, Line(s) (“L”) 17-29)
12 He said, in those circumstances, I ought not to consider that but for the misleading or deceptive conduct, the principal sale of business transaction would not have taken place. He said, “(t)he misleading statement was operative to produce an increase in the price under the First Sale of Business Agreement not otherwise”.
13 Therefore, according to Mr Moore, the actual loss suffered by CAT was the difference between what it paid ($450,000) and what it was willing to pay ($400,000) for the original business without the Peninsula Run.
14 Mr Moore submitted that to order a refund of the whole price paid under the relevant contract would amount to rescission. He said since:
“CAT cannot return in specie that which it acquired under the contract, the business as acquired is no longer in existence. The Court cannot now `do practical justice’ between the parties”.
He referred to Alati v Kruger (1955) 94 CLR 216, 223-24.
15 Mr Sandbach contended that the introduction of the Peninsula Run and the false representation as to its value was used by Mr Scaturchio to “get the deal over the line”. He submitted that, whilst it may have been demonstrated that Mr Trigg and CAT would have been prepared to purchase the original business for $400,000, it was not demonstrated that Mr Scaturchio and Keys would have been prepared to sell for that amount. He said the introduction of the Peninsula Run by Keys was undertaken precisely to get the price for the undertaking which it was selling to CAT up to $450,000.
16 According to Mr Sandbach, I should find that conformably to the finding made in my principal judgment that the defendants’ expert, Mr Cusack, was correct in valuing the enterprise sold under both of the relevant contracts at zero, a full refund of the monies outlaid by CAT was appropriate. According to normal damages principle, in particular, the principle enunciated in Mr Moore’s written outline and endorsed on behalf of the defendant by Mr Sandbach and quoted above. It was therefore unnecessary, he said, to establish that the circumstances for a rescission existed. The entitlement to a refund derived from normal damages principles.
17 The power to award damages for misleading and deceptive conduct relied upon here derives from s236 of the ACL (Schedule 2, Competition and Consumer Act 2010 (Cth)):
“Actions for damages
(1) If:
(a)a person (the claimant) suffers loss or damage because of the conduct of another person; and
(b) the conduct contravened a provision of Chapter 2 or 3;
the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.
(2)An action under subsection (1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued.”
18 We should also note sections 237 and 243 of the ACL, which provide as follows:
“237 Compensation orders etc. on application by an injured person or the regulator
(1) A court may:
(a) on application of a person (the injured person) who has suffered, or is likely to suffer, loss or damage because of the conduct of another person that:
(i) was engaged in a contravention of a provision of Chapter 2, 3 or 4; or
(ii) constitutes applying or relying on, or purporting to apply or rely on, a term of a contract that has been declared under section 250 to be an unfair term; or
(b) on the application of the regulator made on behalf of one or more such injured persons;
make such order or orders as the court thinks appropriate against the person who engaged in the conduct, or a person involved in that conduct.
Note 1: For applications for an order or orders under this subsection, see section 242.
Note 2: The orders that the court may make include all or any of the orders set out in section 243.
(2) The order must be an order that the court considers will:
(a) compensate the injured person, or any such injured persons, in whole or in part for the loss or damage; or
(b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the injured person or any such injured persons.
(3) An application under subsection (1) may be made at any time within 6 years after the day on which:
(a) if subsection (1)(a)(i) applies—the cause of action that relates to the conduct referred to in that subsection accrued; or
(b) if subsection (1)(a)(ii) (a) if subsection (1)(a)(i) applies— the declaration referred to in that subsection is made.”
243 Kinds of orders that may be made
Without limiting section 237(1), 238(1) or 239(1), the orders that a court may make under any of those sections against a person (the respondent) include all or any of the following:
(a)an order declaring the whole or any part of a contract made between the respondent and a person (the injured person) who suffered, or is likely to suffer, the loss or damage referred to in that section, or of a collateral arrangement relating to such a contract:
(i) to be void; and
(ii)if the court thinks fit—to have been void ab initio or void at all times on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);
(b) an order:
(i)varying such a contract or arrangement in such manner as is specified in the order; and
(ii)if the court thinks fit—declaring the contract or arrangement to have had effect as so varied on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);
(c)an order refusing to enforce any or all of the provisions of such a contract or arrangement;
(d)an order directing the respondent to refund money or return property to the injured person;
(e) except if the order is to be made under section 239(1)—an order directing the respondent to pay the injured person the amount of the loss or damage;
(f) an order directing the respondent, at his or her own expense, to repair, or provide parts for, goods that had been supplied by the respondent to the injured person;
(g)an order directing the respondent, at his or her own expense, to supply specified services to the injured person;
(h) an order, in relation to an instrument creating or transferring an interest in land, directing the respondent to execute an instrument that:
(i)varies, or has the effect of varying, the first mentioned instrument; or
(ii)terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the first mentioned instrument.”
19 It will be seen that the entitlement to damages arises upon proof of misleading and deceptive conduct and proof that the plaintiff has suffered “loss or damage because of the conduct of” the defendant.
20 Mr Moore submitted that as to section 82 of the Trade Practices Act 1974, the predecessor of s236 of the ACL, Gummow J said:
“Section 82 has at least five discrete elements. First, it identifies the legal norms for contravention of which the action under the section is given. Secondly, it identifies those by and against whom that action lies. Thirdly, the section specifies the injury for which the action lies as the suffering of loss or damage. Fourthly, it stipulates a causal requirement that the plaintiff's injury must be sustained ‘by’ the contravention. Finally, the measure of compensation is ‘the amount of’ the loss or damage sustained has at least five discrete elements. First, it identifies the legal norms for contravention of which the action under the section is given. Secondly, it identifies those by and against whom that action lies. Thirdly, the section specifies the injury for which the action lies as the suffering of loss or damage. Fourthly, it stipulates a causal requirement that the plaintiff's injury must be sustained ‘by’ the contravention. Finally, the measure of compensation is "the amount of" the loss or damage sustained.” (Marks v GIO Australia Holdings [1998] 196 CLR 494 at 526 [95])
21 Mr Moore’s submissions represents a departure from the case which he advanced at the main trial. In my principal judgment, I record Mr Moore as having stated:
“… that the last offer by CAT and Mr Trigg before the $450,000 price under the original business sale agreement was accepted was $370,000. Allocation of a further $50,000 by reference to the alleged valuation of the Peninsula Run at that figure “would have put any counter-offer at $420,000 … the counter-offer of $450,000 bears no relationship to the inclusion of the Peninsula Run at a price of $50,000.” ([2017] VCC 1661, [166])
22 Mr Moore did not identify any passage in Mr Scaturchio’s evidence, where he said that he would have sold the enterprise, the subject of the principal agreement, minus the Peninsula Run for some $400,000.
23 The initial asking price for Keys’ work for Briner, excluding the Peninsula Run but including a motor vehicle, was $495,000. (Principal judgment [32])
24 Following an offer by Mr Trigg and CAT to purchase this business for $370,000, excluding the truck and various tools and before the price of $450,000 was agreed upon, Mr Trigg received a call from Keys’ business broker offering the Peninsula Run as an additional item for the price of $450,000. Despite later denials, Mr Scaturchio admitted in his initial evidence-in-chief before the lengthy adjournment caused by Mr Trigg’s cardiac problems, that he saw the Peninsula Run “as a money making exercise; seeing something for sale and trying to on sell it to someone else.” (T85, L24-26, principal judgment [49])
25 The objective was to have Mr Trigg and CAT increase their offer from $370,000 and to accept the counteroffer from Keys and Mr Scaturchio to sell the enterprise, including the Peninsula Run, for $450,000.
26 In those circumstances, I accept the submission put by Mr Sandbach that in the absence of distinct evidence from Mr Scaturchio of a willingness to have sold for $400,000, I should conclude that, absent the introduction of the Peninsula Run and the misleading or deceptive claims for its turnover, the parties would not have agreed upon a price. As Mr Scaturchio himself said, it was “just a sweetener to get the deal over the line”. (T254, L16)
27 Once this conclusion is made in accordance with the basic principle, the proper measure of damages is the difference between the price which CAT, as the representee of the misleading or deceptive conduct, contracted to pay and the true value of what was purchased.
28 Mr Moore did not submit, as he did with respect to another piece of misleading or deceptive conduct which I found the plaintiff had engaged in, that as to this first item there was no reliance by CAT.
29 What, then, was the value of the enterprise which was sold under the first or principal sale of business agreement?
30 For reasons given in my principal judgment, I accepted as correct the opinion of Mr Cusack that, upon analysis, this enterprise had no value. Prima facie, therefore, the entire $300,000 paid by CAT to Keys should be awarded to CAT as damages suffered by reason of Keys’ misleading or deceptive conduct.
31 As explained above, had the misleading or deceptive conduct not been engaged in, the transaction would not have occurred and CAT would not have outlaid these monies to purchase what, according to the opinion of Mr Cusack, was a worthless enterprise.
32 Mr Moore submitted that, since rescission would not be granted because of the inability to restore the parties to their former position, it would be wrong to make an award of damages which mimicked a rescission without the ability to do practical justice by restoring the parties to their original position.
33 Mr Moore referred to the statement by Gleeson J in Henville v Walker (2001) 206 CLR 401, 470 [18] that in assessing damages under s82 of the Trade Practices Act and now under s236 of the ACL:
“The task is to select a measure of damages which conforms to the remedial purpose of the statute and to the justice and equity of the case. … The principles of common law, relevant to assessing damages in contract or tort, are not directly in point. But they may provide useful guidance, for the reason that they have had to respond to problems of the same nature as the problems which arise in the application of the Act. They are not controlling, but they represent an accumulation of valuable insight and experience which may well be useful in applying the Act.”
34 The result is that there is ample flexibility to assess damages to do substantial justice without being constrained absolutely by any general principle.
35 I accept Mr Moore’s submission that it would be wrong to assess damages without allowing for any benefits which may have been derived from the transaction by CAT.
36 By reference to calculations made by Mr Trigg and appearing in the defendants’ Supplementary Court Book at 135, Mr Sandbach submitted that no benefit in excess of $52,000 could be said to have been derived.
37 Mr Trigg’s calculations show CAT sustaining a loss of $53,263.07 against invoicing of $520,372.90. It was common ground that there were further billings of approximately $300,000 made by Keys directly to Briner, which had not been accounted for to CAT, with the result that some $105,000 was payable by Keys to CAT, subject to offset entitlements claimed by Keys. It was the allowance for that further $105,000 which, on Mr Sandbach’s calculations, would have led to the surplus in favour of CAT of $52,000 approximately.
38 Mr Moore, however, drew attention to a folder of “Briner documents” which had been produced upon subpoena from Briner and which were summarised as showing total billings to Briner by CAT of $859,831.63. These documents had been unchallenged by CAT.
39 In those circumstances, according to Mr Moore, the figures derived by Mr Trigg in the defendants’ Supplementary Court Book at 135, could not be relied upon. Mr Moore noted the evidence from Mr Trigg that there were no tax returns for the relevant years for him or for CAT. In those circumstances, he submitted, the burden of inability to prove should fall upon CAT rather than Keys.
40 For the reasons already given, I believe the prima facie measure of damages relative to this piece of misleading or deceptive conduct should be $300,000. That figure must be reduced to reflect the derivation of benefits by CAT. I accept that Mr Trigg’s calculations cannot be relied upon. In circumstances where a prima facie measure of damages has been established based upon expert evidence, it cannot be right to conclude that no finding can be made and the defendant counterclaimant’s damages claim on this point should fail based upon the uncertainty.
41 Doing the best I can, I conclude that CAT should be regarded as having derived a benefit of some $100,000 from the transaction and subject to issues of consequential loss to which I will turn later, $200,000 should be the measure of damages for this first piece of misleading or deceptive conduct.
The “other part of business” representation
42 The other piece of misleading or deceptive conduct which I found established was that Mr Scaturchio said to Mr Trigg words to the effect that:
“(a)‘There’s another part of the business you should buy also, it’s the other part of the commercial work from Briner’;
(b)‘It’s turning over $250,000 per year and costs $100,000 to employ two guys and a further $20,000 operating costs – that’s a profit of about $130,000 per year’.” ([198] of the principal judgment)
43 There was an admission by Keys and Mr Scaturchio that “in or about mid-July [Mr Scaturchio] informed [Mr Trigg], in words to the effect, that he could now buy the other part of the commercial work that Expert Extensions were doing for Briner…” ([200] of principal judgment)
44 Mr Moore submitted that this finding entailed no more than that Keys and Mr Scaturchio agreed that they offered to sell the other part of the work which Expert Extensions was doing for Briner, not that the sale would entail a transfer to CAT of all of Briner’s commercial work.
45 Certainly, this is not the way that Mr Trigg understood what was being offered to him. The relevant evidence is quoted at [67] of the principal judgment. The key passage is:
“… I sickeningly realised that I had not, in fact, bought all of Briner’s commercial work.”
46 In fact, according to the managing director of Briner, at the relevant time, there were three or four contractors doing Briner’s commercial work. It always obtained competitive quotes. There was, therefore, no incumbent contractor. ([206] of principal judgment).
47 The reference in the admitted representation to the “other part of the commercial work” indicates that what was being offered was all of the Briner commercial work except that which was already being sold to CAT under the principal agreement. This is the way in which Mr Trigg understood it, and correctly so.
48 Mr Moore referred to Mr Trigg’s evidence that he saw it as prudent to purchase this “other part” because it would prevent any:
“ambiguous line in the sand over which, if I didn't purchase it, work would drift, I felt reasonably sure, out of contract 1 and invisibly into contract 2 and I would be left with nothing.” (T539, L20-23)
49 This is not, however, inconsistent with his view that he was being offered, as former Expert Extensions commercial work, the whole of Briner’s commercial work except what had already been agreed to be sold under the principal agreement.
50 Mr Moore submitted that Mr Trigg “wanted to be sure that whatever commercial work Keys was doing [presumably for Briner], would be his”.
51 In my view, what Mr Trigg wanted to be satisfied of was at least that, and that further, that whatever commercial work Briner work was offering would be his or CAT’s, that was the effect of the representation. Insofar as Mr Moore submits that with respect to this second piece of misleading or deceptive conduct, no reliance has been established. I reject that submission.
52 As to the Second Business Sale Agreement, Mr Sandbach, on behalf of CAT, submitted that this agreement should be modified so as to cancel the outstanding purchase price and the liability to pay for training fees of $75,000. These orders, he submitted, should be made pursuant to s243(b) of the ACL. Mr Moore resisted any such order on the basis that it was “not pleaded in the counterclaim” and was equivalent to rescission. Mr Moore submitted that Mr Cusack’s nil valuation of Keys’ business failed to take into account billing of $250,000 per year for the business formerly carried on by Expert Extensions and total billings by CAT to Briner of $859,831.63. In making this submission, Mr Moore necessarily invited me to go back on the finding that I have already made in my principal judgment accepting Mr Cusack’s opinion. Given that no orders have been authenticated, the court is not functus officio and I have a discretion to revisit the finding made in the reasons already published. I need not consider the principles upon which such discretion should be exercised because I am of the view that Mr Cusack’s opinion should be accepted, despite the matters now urged by Mr Moore.
53 First, Mr Cusack’s fundamental point did not depend upon any particular level of billing. It was based upon the fact that the business had only one customer – Briner. Whatever one might say as to the effectiveness of the Ace contract with respect to residential business, as to commercial business there was no ongoing contractual commitment, in writing or otherwise, obliging Briner to continue referring its business to any successor to Expert Extensions, Sign Install or Keys. This led Mr Cusack to apply a nil capitalisation. Secondly, in Mr Cusack’s evidence quoted at [331] of the principal judgment, the regime for carrying out commercial work whereby the work that was done by Mr Scaturchio for Keys or Sign Install, with those parties receiving the lion’s share of the payment and only 30 per cent referred to in the invoice documentation of the “CAT tax” being payable to CAT, meant that the work was unprofitable.
54 I am fortified in my acceptance of Mr Cusack’s assessment of the value of the Expert Extensions business at nil by the thought that only a couple of weeks prior to the sale of this undertaking by Keys to CAT, it was purchased from Expert Extensions for a price that allocated nil to goodwill.
55 Accordingly, this Second Business Sale Agreement was, upon the findings that I have made, procured by Keys by misleading or deceptive conduct. It entailed CAT committing to pay substantial amounts of money for a business which, upon the expert evidence which I have accepted, was worthless. Again, I accept the submission made by Mr Sandbach that Mr Trigg and CAT received no worthwhile training under the Second Business Sale Agreement. The only training which he received was with respect to residential work, and he received this from Mr De Bono. That was referable to the principal contract and not the second contract. The orders advocated by Mr Sandbach should therefore be made. They may be regarded as contemplated by the prayer for “further of other orders”.
Consequential losses
56 Additionally to the principal pieces of relief discussed above, CAT sought damages under s236 of the ACL with respect to a number of consequential items. First, there was a Ford Transit vehicle purchased for $25,500. Mr Sandbach submitted that this amount should be awarded as damages because the truck was purchased “as a direct consequence of the business purchase. CAT would not have incurred that expense but for the misleading and deceptive conduct of the contravenors.” Mr Moore contended no such damages should be awarded. He said:
“The proper measure of damages for this item could be the purchase price of the truck ($25,000) less its market value (if any) at date of sale or sale value (which hasn’t occurred). As a consequence, no loss has been proved.”
He referred to All Fasteners (WA) v Grant Caple [2007] FCA 1252 [33]. I accept Mr Moore’s submission that no award should be made for the purchase price of the Ford Transit. Mr Moore conceded that, if CAT’s larger counterclaims succeeded, the cost of “insurance ..., repairs and transfer” for the Ford Transit, $8,550.80 should be awarded.
57 A claim for the cost of $65,000, being the cost of a Mitsubishi Canter truck acquired for the purpose of the Second Business Sale Agreement, was also made. Mr Sandbach supported this award of damages on the same basis as for the Ford Transit. At trial, Mr Trigg said that this vehicle was never put to any use at all by CAT, which seemed a remarkable thing given the years that have passed. For the same reasons as with respect to the claim for the price of the Ford Transit, this item ought to be rejected as a head of damage.
58 As to the Mitsubishi Canter, Mr Moore conceded that if CAT’s counterclaim were otherwise successful, the following incidental expenses with respect to the Mitsubishi Canter should be allowed:
(a)$2,064 for repairs;
(b)$2,633.46 for repairs;
(c)$1,247 for registration;
(d)$1,264 for insurance;
(e)$1,273.60 for registration.
59 Mr Moore submitted that, as to other claims for expenses, they should not be allowed as “either there is no evidence of payment or [they] were not referred to in evidence”. He took me to a number of these invoices which appeared to be addressed to an entity which was not mentioned at trial at all; namely, “DPZ”. I accept Mr Moore’s submissions as to that.
60 There remained a claim for interest on a chattel mortgage loan taken out to acquire the Mitsubishi Canter. Mr Sandbach submitted that this interest should be awarded as an incidental expense in the amount of $2,201.20 up to the commencement of the proceeding. He submitted further that registration fees of $403 should be awarded. Mr Sandbach continued:
“If the Court is not minded to order payment of the purchase price then interest ought be allowed from date of drawdown up until date of judgment at the rate of $220.12 per month unless the Court finds that CAT ought [to] have sold the vehicle at some earlier time notwithstanding the necessity to clear the title to the vehicle.”
61 During oral argument, Mr Sandbach conceded that, as to interest on the chattel mortgage loan for the Mitsubishi Canter, it would be “double counting” to allow interest after the commencement of the proceeding because [he presumed] the amount of any judgment would attract interest under the Supreme Court Act from the date of commencement of the proceeding. Subject to any further submission that might be made relative to the application of the Supreme Court Act provision, Mr Sandbach’s presumption appears to be correct. It is therefore not obvious to me why the same principle ought not apply if, as is the case, I am not persuaded that CAT should have disposed of the Mitsubishi Canter at an earlier time, “notwithstanding the necessity to clear the title to the vehicle”. Mr Trigg gave no evidence as to the fate of the Mitsubishi Canter other than to say it had been retained and was performing no useful work for him or CAT. There was no evidence given by him to the effect that he considered seeking to dispose of it, but was prevented by the need to achieve a “payout”. In any event, even if that were wrong, in my view, Mr Moore’s submission as to the proper measure of damages is correct, as he explained it, with respect to the Canter as to the Ford Transit.
62 Mr Sandbach, towards the end of his submissions on relief, said:
“Acknowledging that the Court is not minded to allow the claim for $300,000 for two years of income of Mr Trigg as an industrial engineer the Court ought to do the best it can to compensate the injured party for the losses that were sustained as a result of Mr Trigg (and thereby CAT) devoting himself to an unprofitable business by reason of misleading and deceptive conduct. It is clear that Mr Trigg would have worked elsewhere than the sign installation business but for the proscribed conduct. The Court ought allow damages reflecting at least 6 months’ work at the average weekly wage, namely $41,771.60 in total, if no other amount is allowed by way of compensation for the loss of that working time.”
Mr Moore’s response was:
“No claim for average weekly earnings by Mr Trigg were made by him and no evidence was led to support the figure claimed. Therefore this claim should be rejected.”
63 I agree. In addition, it should be noted that whilst Mr and Mrs Trigg are joined in this proceeding as counterclaimants, the only relief which they, as distinct from CAT, seek by way of counterclaim is with respect to the caveat over their residential property. There is no claim before the court on behalf of Mr Trigg for loss of earnings, time wasted or anything of that sort. Therefore, a claim along these lines must necessarily be one belonging to CAT. I accept that if Mr Trigg were obtaining work as an industrial engineer by way of consultancy, it would likely be supplied through the medium of CAT, so that a loss of such consultancy work could be regarded as CAT’s loss. Nevertheless, it cannot be presumed that any employment or calling which Mr Trigg might undertake would be similarly mediated. One at the “average weekly wage” would likely entail loss of wage or salary income by Mr Trigg, rather than by CAT. More pertinently, as Mr Moore noted, a claim along these lines has not been pleaded, whilst the one which was has been rejected.
Orders
64 I will direct the parties to bring in short minutes to give effect to these reasons. Costs are reserved.
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