Marston & Cook Pty Ltd v Sensis Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 9883 of 2004

MARSTON & COOK PTY LTD	Plaintiff
v
SENSIS PTY LTD	Defendant

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JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 – 13, 16 – 19 June 2008
DATE OF JUDGMENT:	18 December 2008
CASE MAY BE CITED AS:	Marston & Cook Pty Ltd v Sensis Pty Ltd
MEDIUM NEUTRAL CITATION:	[2008] VSC 568

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CONTRACT – claim by plaintiff real estate agent for damages for breach of contract arising from errors in entries in the Yellow Pages – whether letter containing defendant’s standard terms and conditions received by plaintiff – whether defendant’s breaches of contract caused the plaintiff to lose opportunities to earn sales commissions – assessment of damages for loss of sales commissions

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms G Schoff	Russell Kennedy
For the Defendant	Mr J. W.S. Peters SC with Mr B L Reilly	Mallesons Stephen Jaques

HIS HONOUR:

Introduction

The plaintiff carries on the business of a real estate agency in Flemington and Moonee Ponds. The defendant is the publisher of the “Yellow Pages” telephone directory. The plaintiff claims damages alleged to have flowed from errors contained in entries relating to the plaintiff’s business that appeared in the 2002 and 2003 editions of the Yellow Pages. The claim is primarily based on alleged breach of contract.

The total damages claimed by the further amended statement of claim dated 11 June 2008 was $954,375.87 but, in the course of closing submissions, it emerged that the plaintiff’s claim was reduced to something in the region of $290,000 for loss of the opportunity to earn sales commissions, together with certain alleged consequential losses.

The plaintiff has operated a real estate agency business in Flemington since about 1989 and from 1993 its business premises were situated at 274-276 Racecourse Road, Flemington (“the Flemington office”). In December 1993 the business had five employees and by the beginning of 1998 there were some eleven employees.

Prior to the occurrence of the errors in question, the plaintiff had for some years advertised its business in the Yellow Pages both alphabetically under “M” and in the Real Estate Agents’ locality guide under “Kensington” and “Flemington.” The telephone number of the Flemington office, so advertised, was “9376 2211.”

In 2001 the plaintiff purchased the real estate agency business of Sherlock Homes Pty Ltd carried on from premises at 2 Holmes Road, Moonee Ponds (“the Moonee Ponds office”).

The Melbourne edition of the Yellow Pages (“the Yellow Pages”) for 2002 incorrectly advertised the plaintiff’s telephone number for the Flemington office as “9736 2211” (instead of 9376 2211) and incorrectly listed the Moonee Ponds office details under “Flemington” and “Kensington”[1] in the locality guide and the Flemington office details (with the incorrect telephone number) under “Moonee Ponds” in the locality guide.
[1]This error was not pleaded.

The plaintiff learned of these errors in June 2002 when Lisa Stevens, the proprietor of a business known as “Pip Squeakz Recycle” telephoned to say that she had been receiving between 5 to 10 calls per day on her business telephone (with the number 9736 2211) for the plaintiff.

The defendant had already learned of the error from Ms Stevens and had agreed to compensate her but it had failed to advise the plaintiff. It was the plaintiff that complained to the defendant.

Having received the plaintiff’s complaint, the defendant agreed to give the plaintiff a credit of $1000 towards the cost of advertising in the 2002 Yellow Pages and $1000 towards the cost of advertising in the 2003 Yellow Pages.

Despite all of this, the defendant inexplicably repeated the same errors in the 2003 Yellow Pages.

Issues

The plaintiff alleged that in mid to late 2001 there was an agreement between the plaintiff and defendant that the plaintiff’s real estate business would be advertised in the 2002 Yellow Pages in a form containing the details set out in the plaintiff’s further amended statement of claim (“the statement of claim”).[2] The plaintiff alleged that this agreement was to be implied from the defendant’s invoices to the plaintiff. On the other hand, in its further defence to the statement of claim (“the defence”), the defendant said that the agreement was partly oral and partly in writing. Insofar as oral, it was said to be constituted by a telephone conversation on or about 27 July 2001 between Mr Graham McCormick of the defendant (“McCormick”) and a representative of the plaintiff named “Vivienne”. Insofar as in writing, it was said to be contained in a document dated 27 July 2001 entitled “Advertising Program” and certain terms and conditions upon which part of the Advertising Program was printed.[3]
[2]See para 6 of the statement of claim.
[3]See para 6 of the defence.

The defendant relied upon the following alleged terms and conditions of that agreement:

“(a)A requirement that the customer take the time to check all its advertising carefully to make sure that all details are correct (page 1 of the Advertising Program).
(b)[The defendant] regrets that it cannot rectify errors or omissions after close of advertising for the Directory. However, if the customer promptly notifies [the defendant] of an error or omission in the customer’s Printed Product caused by [the defendant], [the defendant] may at its discretion refund all or part of the price (clause 2.4)
(c)Where the Price is less than $40,000, [the defendant] warrants that it will use due care and skill in relation to the provision of the Produce. However, [the defendant] does not warrant at the Directory will be free from errors or omissions (clause 8.1).”

The defence (as amended) abandoned reliance on certain other alleged terms and conditions.[4]
[4]Clauses 8.3 and 8.4.

The said contractual issues may be briefly summarised as comprising the following questions. Did the plaintiff receive a letter from the defendant dated 27 July 2001? If so, did that letter have printed on it on the reverse side, inter alia, the above terms and conditions? If so, did those terms and conditions form part of any contract between the plaintiff and the defendant and how are they to be interpreted?

The defendant relied on the above contractual defences only in relation to the errors in the 2002 Yellow Pages and not in relation to the errors in the 2003 Yellow Pages. In relation to the 2002 Yellow Pages, the defendant also alleged contributory negligence by the plaintiff.

Apart from the foregoing, the principal matters relied upon by the defendant related to whether the plaintiff had proved that the errors had caused any loss and damage and, if so, how much.

The plaintiff’s claim for damages as ultimately framed (apart from consequential losses) was as follows. The total sales commission earned by the plaintiff in 2001 was $749,054. The plaintiff put this year forward as “the base year.” The plaintiff then relied on evidence that the annual value of sales in the “relevant market” had increased in the year 2002 by 3.31% and in the year 2003 by 1.76%. If those percentages were applied to the actual sales commission earned in the base year, a calculation could be made as to the commission that the plaintiff “should have earned” in those years but for the errors in the Yellow Pages. The calculation[5] of damages was thus as follows:
[5]The actual sales commissions earned by the plaintiff in 2001 – 2003 and the percentage figure appropriate for the plaintiff’s direct variable costs were all proven and are not in dispute. Some minor corrections have been made to the figures handed up.

2001 2002 (3.31%) 2003 (1.76%) Total

Base Year $749,054

Sales Commission that should have been earned $773,847 $762,237

Plaintiff’s actual sales commission $546,912 $492,289

“Lost” sales commission $226,935 $269,948 $496,883

Less direct variable costs at 41% $203,722

Estimated loss $293,161

The plaintiff put an alternative calculation on the basis that there was no increase in the annual value of sales in the “relevant market” in 2002 and 2003. That calculation, otherwise using the same methodology, resulted in an estimated loss of $270,756.

Background Facts

Jason Paul Marston (“Mr Marston”) was and is the sole director of the plaintiff.

Mr Marston testified that the plaintiff’s business had increased from year to year and that, in order to facilitate its growing needs, the plaintiff commenced extensive renovations of its Flemington office in early 1998. The renovations were on a large scale but the business continued to be conducted in the premises while they were being carried out.

Mr Marston testified that this extensive renovation “had an expected yet significant impact on [the plaintiff’s] business for the duration of the renovation period which commenced in early 1998 and was not completed until late 2000.” He said that the plaintiff’s operations were “hampered on a scale ranging from moderate to severe” during the renovation period.

Mr Marston explained that there was a deleterious impact on the plaintiff’s business as a result of the renovations for three main reasons. The first reason was that he was the highest income earner in the business but the renovations took up a very substantial part of his time. In hindsight, he said, he should have employed a project manager. The second reason was the effect of the physical appearance of the Flemington office and the impact that he believed this had on the perception of the business held by customers and potential customers. The third reason related to the disruption effects upon staff by reason of dust, noise and other distractions. I accept Mr Marston’s evidence that these renovations did have a significant adverse impact on the plaintiff’s business but it is not possible and probably not necessary to quantify that effect.

The parties treated the fact and impact of these renovations as of some relevance and importance because they were advanced by Mr Marston as an explanation for the decline in the income and profitability of the plaintiff’s business in the period 1998 to late 2000. There was considerable cross-examination of Mr Marston, and the introduction of some documentary evidence, in relation to when the renovations were substantially completed and no longer having any adverse effects on the plaintiff’s business. Mr Marston referred to some renovation works continuing in 2000 which he specified as being constituted by works to a staircase and a few other items. I am satisfied on the whole of the evidence that the renovations were substantially completed in late 1999 and that, certainly by mid-2000, they were no longer having any adverse effect on the plaintiff’s business.

The plaintiff also began looking for a suitable business to purchase as a second office and had identified that business by early 2001. As I have said, the plaintiff purchased a real estate agency in Moonee Ponds and this purchase was settled on 1 April 2001 and the plaintiff commenced operations in the Moonee Ponds office the next day.

Shortly thereafter, on or about 1 May 2001, the plaintiff’s then office manager, on instructions from Mr Marston, ordered by telephone from the defendant some additional entries to be published in the 2002 Yellow Pages relating to the Moonee Ponds office. The order was recorded by a sales consultant employed by the defendant on a document containing material in relation to advertising for the previous business that had operated from the Moonee Ponds office. This order was subsequently cancelled in circumstances to which I will later refer.

Mr Marston testified that the quarter ended June 2001 was the best trading period that the plaintiff had enjoyed for some years. The plaintiff was working without constraint, with improved facilities, and a two office network. The majority of the staff (at that stage comprising five estate agents plus Mr Marston, two receptionists, two property managers and a bookkeeper) continued to be at the Flemington office but the Moonee Ponds office also had two estate agents, a property manager and a receptionist. Mr Marston also frequently attended the Moonee Ponds office. Mr Marston said that the plaintiff’s telephone number at its Flemington office (9376 2211) was a very significant asset of the plaintiff.

Mr Marston testified that the plaintiff’s business operated in Flemington, Kensington, Moonee Ponds, Ascot Vale, Essendon, Maribyrnong, North Melbourne and West Melbourne.

The evidence indicates that the Yellow Pages directory for a particular year was printed and distributed in about November or December of the previous year as a result of orders from customers obtained earlier in that previous year.

Graham John McCormick (“McCormick”) was a telephone sales consultant employed by the defendant including in the year 2001. In about February of each year he received a workload list of existing customers of the defendant who had advertised in the Yellow Pages in the previous year – this was received by him electronically. Each year the list he received would identify about seven hundred Melbourne-based customers who had purchased advertising at a cost of less than about $2000 in the previous Yellow Pages and the majority of them would be customers with whom he had not dealt before. Over the next few months he would then contact them by telephone. The cut-off date was in August. Until late 2001 the computer program or system used by the defendant was called “IDS.” Contracts and advertising programs were generated, printed and sent out to customers as a result of entries made into IDS by telephone sales consultants. McCormick’s practice was to make entries in IDS via a computer terminal on his desk during or shortly after each telephone conversation with a customer. The plaintiff was allocated to McCormick for the 2002 Yellow Pages.

As earlier indicated, the plaintiff advertised in the Yellow Pages from 1993 to 2001 in much the same way, giving the address of the Flemington office and its phone number in the alphabetical listing and in the locality guide for Flemington and for Kensington. The advertisements were placed by telephone. I am satisfied that a representative of the defendant would telephone and that, after checking with Mr Marston, the plaintiff’s staff member would tell the defendant’s representative that the entries would be “ the same as last year.”

On Wednesday 18 April 2001 McCormick telephoned the plaintiff and left a message for the plaintiff’s then receptionist, “Vivienne.” On Thursday 19 April 2001 McCormick received a telephone call from the plaintiff. He was told that the plaintiff had opened an office in Moonee Ponds and wanted to increase its “advertising spend” for the 2002 Yellow Pages and he was asked to call back on Monday.[6]
[6]On Monday 23 April 2001 he called back and left a message. He called back again and left messages on 1 May and 11 May 2001.

On 10 July 2001 McCormick telephoned the plaintiff and spoke to Vivienne who told him that the plaintiff was proposing to increase its advertising spend to about $3000. On 27 July 2001 he had a further conversation with her in which she authorised such increased advertising and gave McCormick instructions as to the changes and additions that were required from the entries in the 2001 Yellow Pages. The defendant conceded that the errors complained of by the plaintiff, to which I have already referred, that were subsequently published in the 2002 Yellow Pages, were entered in the defendant’s database prior to or on 27 July 2001 as a result of an operator error. It was common ground that it was unnecessary to identify the particular operator.

The next thing that happened was that McCormick selected an option that was available in IDS to send a “general confirmation” to the plaintiff (and the computer records confirm that he did this). A “general confirmation” was a letter setting out the advertising program and other details that would be sent to the plaintiff. McCormick testified that , as was usual, he did not see the letter that was generated by the computer program prior to it being sent to the plaintiff.

The evidence shows that a letter dated 27 July 2001 was generated and that it was a standard form letter of a type which was then printed and sent to customers by an external mailing house. The standard letter thanked the customer for advertising in the Yellow Pages directory and then stated, inter alia:

“Now your customers will be able to contact you at the most important time of all – when they’re ready to buy.
You will find full details of your advertising program on the following pages. Please take the time to check all your advertising carefully to make sure that all details are correct.
…
Over the page you will find the terms and conditions of our agreement.”

Andrew Thomas Argent gave evidence on behalf of the defendant, and I generally accept, that such letters were printed on stock paper that the defendant provided to the external mailing house which, at that time, had the defendant’s terms and conditions printed on the back of the first page thereof. I accept that in July 2001 the terms and conditions included the following:

“2.4We regret that we cannot rectify errors or omissions after close of advertising for the Directory. However, if you promptly notify us of an error or omission in your Printed Product caused by us, we may at our discretion refund all or part of the Price.
…
8.1Where the Price is less than $40,000, we warrant that we will use due care and skill in relation to the provision of the Product. However, neither we nor Telstra warrant that the Directory will be free from errors or omissions.”

A copy of the letter dated 27 July 2001 said to have been sent to the defendant was generated from the relevant computer archives on 17 May 2002. The third page of the letter set out the proposed entries for the 2002 Yellow Pages and contained the various errors of which the plaintiff complains in this proceeding.

Mr Marston testified in substance that he had never seen the letter dated 27 July 2001 and that, so far as he was aware, the plaintiff had never received it. He said that, given that it was addressed to him and also that it was of a contractual nature, it would have provided to him had it been received at the Moonee Ponds office. Apart from him being shown the letter, he said that the plaintiff’s filing procedure was such that if the letter had been received at the Moonee Ponds office, it would have been forwarded to the Flemington office and filed either on the Yellow Pages file or attached to a relevant invoice and filed together with the invoice. Mr Marston testified that “a thorough search of [the plaintiff’s] relevant files with nil result confirms that the letter … never arrived at [the plainitff’s] Moonee Ponds office.”

He added that the errors in the advertising contents were glaring errors that he would have immediately recognised if he had seen the letter.

On or about 27 August 2001 the plaintiff received a letter of that date from the defendant addressed to its Moonee Ponds office. The letter said that according to the defendant’s records the plaintiff’s account number 110274310 was in arrears in the sum of $542 and asked for a cheque.

On or about 10 September 2001, the plaintiff received a further letter from the defendant addressed to the plaintiff’s Moonee Ponds office stating that its account was in arrears in the sum of $1566.30.

Ellen Dimitrijevic (“Ellen”) was employed as Office Manager of the plaintiff from 12 September 2001 to the end of May 2002. All accounts came to her both for the Flemington office and for the Moonee Ponds office. Shortly after she commenced employment her attention was drawn to the two letters from the defendant dated 27 August 2001 and 10 September 2001.

The letter from the defendant dated 27 August 2001 has numerous notations written on it by Ellen. One such note reads “Urgent.” Another note reads “rang and asked for proof Yellow Pages.” Another series of notes appear to record details of the advertising entries ordered by the plaintiff (but not the contents of such entries). At the top of the letter is a stamp “Faxed” and a date written in of “21/9/01” and lower down a note “From: Ellen Dimtrijevic – Office Manager M+C P/L.” At the bottom of the letter Ellen had written “Please cancel this advertising. Duplicates with paid advertising on Customer ID 620856122. Please recredit payment of $379.40 to a/c No. 103205050.”[7]
[7]Account number 110274310 appears to have related to the first order for advertising concerning the Moonee Ponds office – this was the order that was cancelled. The account for which the credit was sought was the continuing advertising account of the plaintiff that had operated from and in relation to its Flemington office for some years.

Although Ellen had no positive recollection of the circumstances, she testified that, having looked at her notations on the letter dated 27 August 2001, she believed that she had noticed the anomaly with the account number and telephoned the defendant asking for a proof of the advertisements to which the amount outstanding related. Ellen testified that she did not believe that she had received such a proof because, if she had, she would have attached it to this document. Ellen further testified that she had been shown a copy of the defendant’s letter to the plaintiff dated 27 July 2001 and that she did not recall having ever seen that document before and that, if she had, she believed that she would not have asked for the proof to be sent to her as she did on or about 21 September 2001.

In relation to her notes on the letter dated 27 August 2001 about the advertising entries, she initially testified that she thought that these were based upon instructions from Mr Marston about the type of advertisements that were supposed to be in the 2002 Yellow Pages and that she had spoken about them with somebody at the defendant called “Beth.”[8] However, in cross-examination, when it was suggested to her that these notes came from her looking at the letter dated 27 July 2001, she answered (although subsequently conceding that that was possible): “No, I would disagree with you. Somebody would have spoken to me on the phone.”
[8]The name “Beth” is also written on the letter.

Having regard to the foregoing, I am satisfied that Ellen did not have or see the letter from the defendant dated 27 July 2001 in September 2001 or at any other relevant time. I am satisfied that she asked for a proof of the plaintiff’s proposed advertising for the 2002 Yellow Pages because she had no such proof or other printed information as to the contents thereof. I am further satisfied that she (and the plaintiff) never received such a proof or other printed information showing the contents of the plaintiff’s said proposed advertising. I am satisfied that her notes on the said letter dated 27 August 2001 as to the types of entries required by the plaintiff were made as a result of a telephone conversation with a representative of the defendant named “Beth.”

As a result of Ellen’s faxed request to cancel the plaintiff’s May 2001 advertising order, the plaintiff received from the defendant an invoice dated 17 October 2001 giving the plaintiff a credit as at 26 September 2001 of $1192.40.[9]
[9]The result was that an amount of $379.40 was due to be repaid by the defendant to the plaintiff and in fact it was repaid, albeit some 15 months later.

On or about 13 March 2002, the plaintiff received a letter from the defendant of that date. In that letter, the defendant thanked the plaintiff for advertising in the Yellow Pages. The letter, which comprised 3 pages, said that full details of the advertising program were on the following page but, in fact, the letter, apart from indicating that the number and type of entries listed in the letter, being those contained in the 2002 Yellow Pages, were to be also contained in the 2003 Yellow Pages and showing the charges for each entry, did not set out the actual contents of any of these entries. The letter also said that “Over the page you would find the terms and conditions of our agreement” but in fact there were no terms and conditions on the reverse of the letter. Mr Marston testified, and I accept, that there were no terms and conditions separately inserted with the letter either.[10] The letter referred to an amount payable but not yet due for 2003 of $2654.30.[11]
[10]There was evidence that, at about this time, the defendant was moving from the practice of printing its terms and conditions on the reverse of the first page of such letters to the practice of providing its terms and conditions on a separate insert.
[11]The letter listed monthly instalments payable over a period from April 2002 to October 2002.

Mr Marston testified that he was handed the letter from the defendant dated 13 March 2002 and wrote the word “Ellen” on it so that she would check the contents and Ellen wrote on the letter “checked out” with her initials. At this time Mr Marston (and the plaintiff) were unaware of any errors in the 2002 Yellow Pages. Ellen left her employment with the plaintiff at the end of May 2002 and at that time she also was unaware of any errors relating to the plaintiff in the 2002 Yellow Pages.

Lisa Patricia Stevens (“Stevens”) was at all relevant times and is the owner and manager of a business known as “Pip Squeakz Recycle” operating in Mt Evelyn, Victoria. The telephone number of that business was and is “9736 2211.”

In early 2002, Stevens started to receive telephone calls which she subsequently learned to be calls for the plaintiff. Stevens testified that she would answer telephone calls to her business by identifying her business name. Despite that, Stevens testified, some callers would proceed to ask questions about properties and other real estate matters or would ask for the plaintiff. She said that she gathered from this that the plaintiff was a real estate agency.

Stevens could not recall how she ascertained the correct telephone number for the plaintiff, but having ascertained it, she testified that she used to politely redirect callers to the correct telephone number of the plaintiff.

Stevens estimated that she would have received, on average, between 5 to 10 telephone calls per day from early 2002 which were calls for the plaintiff. In addition, she said, there were further calls where the caller hung up after she had identified her business name. Stevens was unable to say how many of these calls there were.

Stevens testified that she notified the defendant of this matter in about April or May 2002 and was then told that the telephone number for the plaintiff was incorrectly listed as the telephone number of her business.

In late May 2002, the defendant apologised to Stevens “for any dissatisfaction felt as a result of your dealings with us” and confirmed arrangements to provide her business with a free entry in the next edition of the Yellow Pages. Despite this, the defendant did not notify the plaintiff of the problem.

Mr Marston testified that, in about June 2002, he received a telephone call from Stevens and that Stevens told him that the plaintiff’s phone number had been incorrectly listed in the Yellow Pages as being the phone number of her business and that she was receiving between 5 and 10 telephone calls per day for the plaintiff plus hang-ups which she assumed were callers seeking the plaintiff who, having dialled the wrong number, hanged up when she answered “Pip Squeakz Recycle.”

Mr Marston testified that, although he was flabbergasted at the time to learn of the error, he considered that it explained what he had already recognised to be a drop in the plaintiff’s business since its dramatic improvement after the renovations and the purchase of the Moonee Ponds office. In that regard, Mr Marston said that, by about March 2002, he had noticed that new business enquiries by telephone were definitely less than in 2001 and that he had, as a result, engaged a firm, “Publicity Works,” to prepare advertising material for the plaintiff.

After Stevens’ telephone call, Mr Marston said that he noted the errors relating to the plaintiff in the 2002 Yellow Pages, the most critical of which was the error relating to the telephone number of the Flemington office.

Mr Marston instructed Ellen, and subsequently her successor, Meredith Logan, to communicate with the defendant concerning the errors. Negotiations ensued between the plaintiff and the defendant, with Logan relaying proposals to Mr Marston and he giving her instructions. Eventually the plaintiff agreed to accept from the defendant a credit of $1000 in relation to the 2002 order and the same amount in relation to the 2003 order.

In December 2002, when the 2003 Yellow Pages arrived, Logan observed, and informed Mr Marston, that all of the same errors had been repeated. At trial, the defendant conceded that someone within its organisation was told in 2002 to correct the errors relating to the plaintiff for the entries to be published in the 2003 Yellow Pages and the defendant further conceded that the errors had not been corrected and that it was responsible for the failure to do so.

As a result of the same errors appearing in the 2003 Yellow Pages, Stevens testified that throughout 2003 she continued to receive, on average, between 5 to 10 telephone calls per day for the plaintiff plus additional “hang-up calls.”

The contractual defence

The first factual question that needs to be determined is whether the defendant has established that the plaintiff received the letter dated 27 July 2001 with the defendant’s terms and conditions printed on the reverse side of the first page thereof.

Some further evidence that was adduced in relation to that question needs to be mentioned.

The defendant called as a witness Patricia Allison who is a Relationship Manager employed by Computershare Communication Services Ltd and has been employed by that company and its predecessors (“Computershare”) for many years. Allison was familiar with Computershare’s procedures being an Account Executive employed by it between 2000 and 2002 and one of her clients was the defendant. During that time, Allison was responsible for “ensuring that all daily files sent by [the defendant] to Computershare were processed printed and lodged with Australia Post for mailing.” Allison was also responsible for “monitoring changes to [the defendant’s] design (that is, document layout) and stock (that is, the particular paper stock used for printing documents of [the defendant]) and ensuring that the correct design and stock was used.” Allison also referred to Computershare’s business records in order to support her evidence.

Allison testified that, since early 2000, the defendant on a daily basis transferred a data file containing customer information to Computershare for the printing and mailing of its Customer Correspondence Packs (“CCP”). The data was transferred electronically every morning and then processed by a Computershare computer program designed specifically for the printing of the defendant’s CCPs. A “run number” was allocated by Computershare to each data file received from the defendant. This allowed Computershare to track all printing jobs done for the defendant.

Allison testified that, after the correspondence in a particular run number was processed by the Computershare computer program, the correspondence was, in the ordinary course of business, printed and delivered to Computershare’s mail room where staff were responsible for packing the same. Staff were given printing and mailing instructions to ensure that each item of correspondence was printed on the correct stock and the correct inserts (if any) were mailed with it.

Allison said that she believed that her instructions were followed, in particular because no complaints had been received from the defendant in the relevant period and Computershare kept complaint records.

Allison testified that from 2000 onwards, the first page of all CCPs on the defendant’s letterhead had the defendant’s terms and conditions pre-printed on the reverse side and the other pages were printed on “follower” paper that did not have the terms and conditions printed on the reverse. At some time, she said, the practice changed and the terms and conditions were included with the correspondence as a separate insert. Allison believed that the date of that change was around February 2002.

Allison testified that the mail was collected from Computershare by Australia Post at about 5.30 pm each day and that Computershare received a lodgment document from Australia Post for each run number. She said that the data file transferred by the defendant to Computershare on 28 July 2001 included a CCP addressed to the plaintiff and this was included in “run number 1935”. This run covered 2432 customers. A copy of the CCP (that is, a copy of the defendant’s letter dated 27 July 2001) had been retrieved from Computershare’s archive system. A postage lodgment summary showed the lodging of run number 1935 for posting on 31 July 2001.

Despite the foregoing evidence based on business records and business practice, it is, of course, possible that the particular letter to the plaintiff dated 27 July 2001 was, for one reason or another, never mailed to the plaintiff. Even if the letter was posted to the plaintiff, it is possible, as sometimes happens, that it went astray in the mail.

I am not satisfied that the plaintiff ever received the letter from the defendant dated 27 July 2001. On the contrary, I am satisfied that it is more probable than not that the plaintiff never received that letter. I found Mr Marston to be an honest witness notwithstanding his understandable inclination to seek to buttress the plaintiff’s damages claim. I accept Mr Marston’s evidence that he had never seen the letter dated 27 July 2001 and that, for the reasons that he gave,[12] the plaintiff never received it. The finding that the plaintiff never received that letter is further supported by the evidence given by Ellen which showed that the letter was not in the plaintiff’s possession or filing system in September 2001. Of course, it is possible that it was received at the Moonee Ponds shortly after 31 July 2001, never forwarded to Mr Marston, and somehow mislaid, or that some other misadventure occurred to the letter prior to September 2001, but the evidence does not suggest that any such possible explanations are probable.
[12]See para [37] – [38] above.

It follows that the defendant’s contractual defence and the allegation of contributory negligence both fail. It is unnecessary to decide what the contractual position would have been if the plaintiff had received the defendant’s letter dated 27 July 2001. In the end, the defendant did not advance any other answer to the plaintiff’s allegations of breach of contract constituted by the errors in the 2002 and 2003 Yellow Pages and accepted that the only remaining questions, if the contractual defence and the allegation of contributory negligence failed, related to whether any damage was caused to the plaintiff and, if so, how much, as a result of the defendant’s breaches of contract. Again, it is unnecessary to determine precisely when and how the contracts between the plaintiff and the defendant for the entries in the 2002 and 2003 Yellow Pages were concluded as it was common ground that the defendant owed a contractual obligation to the plaintiff to insert particular information in those directories in accordance with the plaintiff’s instructions and had failed to do so in the respects alleged. The question therefore is whether the plaintiff has made out a case in breach of contract for more than nominal damages and, if so, how much.

Evidence relating to damages

The plaintiff’s damages claim is primarily based upon an alleged loss of opportunity to earn sales commissions. Evidence said to relate to that topic was adduced from Mr Marston himself and from a number of expert witnesses.

Mr Marston testified that potential clients measured success in a real estate business by the number of listings held and sales made by that business. He said that prospective vendors generally flocked to the agency that had the greatest presence in the market (i.e. the most listings) because that agency would be attracting the greatest numbers of prospective purchasers. He added that a successful real estate agency would be expected to enjoy a higher conversion rate for listed properties.

Mr Marston testified that a successful rate of conversion from listings to sales had a beneficial effect upon the ability to charge higher commission and the attraction and retention of successful sales staff (staff usually had a modest retainer and depended on earning commission on sales). He said that a successful agency with numerous listings would not need to contribute to vendor advertising and it also had sufficient campaigns running at any given time to maintain a steady stream of buyer enquiries. He said that, with an unsuccessful real estate agency, the momentum ran in the opposite direction.

In very general terms, Mr Marston referred to his perceptions as to the increase in the plaintiff’s business from 1991 to 1997, the decrease in its business during the renovations, the increase after that and the decline in business while there were errors in the Yellow Pages and the subsequent increase in business when these errors were corrected. He supported that view by reference to data as to sales of real estate achieved by the business which showed a decline in the number of sales in 1999 and 2000 from earlier years, an increase in 2001, a significant fall in 2002 and 2003 and a gradual improvement thereafter. He also produced data as to the sales commissions earned for the Flemington office and for the Moonee Ponds office in the relevant years showing a broadly similar pattern.

Mr Marston testified in substance that the plaintiff’s business had a high “conversion rate” of listed properties to sales and that some 90 to 95% of properties listed would be sold.

Mr Marston said that the errors in the 2002 and 2003 Yellow Pages were “the only constant of business disadvantage during the post-renovation period.” However, I think that the cross-examination of Mr Marston exposed a number of other factors that might have affected the plaintiff’s business performance in 2002 and 2003. There was evidence that the plaintiff had substantial work from a number of developers over the years but that that work had declined from 1999 onwards, although Mr Marston added that from 2000 onward the plaintiff had listed numerous properties in such developments for re-sale. There was also evidence of significant instability and lack of continuity in the plaintiff’s sales staff in the period 2001 – 2003. Again, there was evidence of the entry into the relevant market of a number of new competitors.

In relation to telephone calls that were or might be received by the plaintiff, Mr Marston said that he had kept no records over the years of the number of such calls, their source, or the nature of the caller. He said that telephone calls generally to his office would include suppliers, existing tenants, prospective tenants, possible purchasers, people seeking valuations and other kinds of advice, existing vendors and potential vendors. He said that telephone calls from potential buyers of listed properties generally came as a result of advertising in “The Age” or local newspapers or as a result of the plaintiff’s telephone number being obtained from the plaintiff’s website (“the oldest serving website in the district – 1996”). However he said that the internet, in 2002 and 2003, was, unlike today, not a very strong medium. He said that vendor enquiry was not related to the foregoing, indicating, I think, that calls from vendors having no previous relationship or connection with the plaintiff were more likely to derive from telephone directory entries.

The plaintiff called evidence from Geoffrey Charles Webster, a director of HLB Mann Judd, Accountants and Business Advisors. One aspect of Mr Webster’s evidence related to the financial performance of the plaintiff’s business. However there were difficulties about this evidence because cross-examination of Mr Marston disclosed that, during the relevant period, the plaintiff was experiencing liquidity problems arising as a result of borrowing for the purchase of the Moonee Ponds business and also from causes external to the plaintiff’s real estate business. For this and other reasons, Mr Webster’s evidence was not ultimately relied upon in relation to damages.[13]
[13]He also gave evidence about the direct variable costs of the plaintiff which was ultimately not in dispute.

The plaintiff called, as an expert witness, Bradley Evan Brown, the Director and Chief Executive Officer of Fletcher & Parker (Balwyn) Pty Ltd, a real estate agency business. The defendant called as, as an expert witness, Professor Terry Burke, the Professor of Housing Studies at Swinburne University of Technology. Mr Brown and Professor Burke produced a number of reports that were tendered in evidence, the later ones of each commenting on earlier reports given by the other.

Mr Brown was asked about the growth rate in the plaintiff’s market for the calendar years 2001 – 2006 (the plaintiff’s market for this purpose being treated as Flemington, Kensington, West Melbourne, North Melbourne, Moonee Ponds and Ascot Vale). Mr Brown prepared a schedule showing the total number of residential house sales for all agents and for the plaintiff in that market and also included in that schedule a separate extraction of the same information relating to Moonee Ponds. Mr Brown said that he had prepared the schedule, so far as the information for covering all agents was concerned, with information received from the Department of Sustainability and Environment (“DSE”). He said that the schedule showed that the plaintiff’s market share had declined in the years 2001 – 2003 (but the decline commenced in 1998) and then began to increase again in 2004 and following years.

Mr Brown said that it did not make sense to see the plaintiff’s market share drop given that a second office had opened in Moonee Ponds in 2001 with an established presence in the market.

Mr Brown said that the number of listings that an agency had in an area would impact on other areas in which it operated. He said that the suburbs covered by the plaintiff were all close together and “far from distinct entities” so that a decline, say, in Flemington or Moonee Ponds, in the number of listings would have a negative effect throughout the plaintiff’s market.

Mr Brown said that the fact that, since the errors in the Yellow Pages were corrected, the plaintiff’s market share had risen considerably in each year and to a level more than double that of the years when the errors were present was “significant.”

Mr Brown was in effect asked to what extent any telephone calls not received as a result of the errors in the Yellow Pages could have related to enquiries other than from persons wanting to list a property. He said he found this question too difficult to provide a quantifiable answer.

Mr Brown said that in real estate business “boards get boards” meaning that if an agency was advertising one property for sale, people would see that sale board and might provide the agent with other listing opportunities. He said that buyers often had homes to sell giving an agent further listing opportunities. The same principle that applied to sale boards also applied to advertising in the print media. Lost listings would lead to losses of subsequent opportunities for more listings. The concept of “boards get boards,” he said, was an accepted industry fact in the Australian real estate industry. Mr Brown said that, in choosing an agent to market their development, developers also looked to agencies with market share, and that was often determined by profile in the marketplace. He said that, with less presence in the area, opportunities for additional business could easily have been lost without ever knowing about it. He said, in effect that, lost calls meant not only opportunities directly lost but also further opportunities lost as a result of a reduced presence in the market.

Mr Brown was asked about the expected business impact of opening a second office. He said this could not be quantified without substantial surveys but that he considered that the effect of opening another office near an existing office, with a recognized and respected brand, was such that one would expect to see an increase in the number of listing opportunities and hence sales generated. Mr Brown said that he would be surprised, provided that nothing else significant happened (such as the loss of key sales people or bad publicity) that sales numbers for both offices did not increase. He said that the popularity of franchising a brand name in the estate agent business supported this view.

Mr Brown said that the total number and value of sales of residential real estate in the relevant market from 2001 to 2006 and the percentage increase and decrease in the same, using 2001 as a base year, was as follows:[14]
[14]The parties agreed that these figures were accurate.

Year Number of sales Percentage increase or decrease in the number of sales Value of sales Percentage increase or decrease in the total value of sales

2001 3471 100.00% $1,031,311,328 100.00%

2002 3038 87.53% $1,065,422,799 103.31%

2003 2731 78.66% $1,049,416,019 101.76%

2004 2303 66.35% $904,101,715 87.76%

2005 2435 70.15% $925,177,192 89.71%

2006 2236 64.42% $949,467,702 92.06%

The above table showed that the number of sales in the relevant market decreased in 2002 and further decreased in 2003 (and even further decreased on average in the three following years). On the other hand, the value of sales slightly increased in 2002, fell back a little in 2003, although remaining more than in 2001, and substantially decreased thereafter. The increase in the value of sales in 2002 over 2001 was 3.31% and the increase in the value of sales 2003 over 2001 was 1.76%. I note that these percentage increases in the value of sales for the years 2002 and 2003 are the origin of the percentages relied upon by the plaintiff in calculating its final damages claim.

Mr Brown said that general industry practice, when looking at market share, was to focus on the number of sales rather than the value of sales. The number of sales was a constant when trying to determine how many leads a company had and how many they were able to convert and sell whereas, with value of sales, one sale of a very high value property could skew the whole result. Mr Brown said that he believed that the number of sales was “a far more valid figure” when looking at true market share.

Mr Brown said that it was not at all valid to suggest that value of sales in a relevant market could be compared to the commissions earned by a single company in that market, let alone the entire number of companies within that market. He said that they were so many factors involved when looking at the commission earned on a single sale, let alone the total sales, for a company. For example, a new company entering the market might lower its commissions to attract business and other companies might then match that new company so as to maintain their market share. This could cause significant changes from year to year in the commissions received. Another example would be sales off the plan in larger developments which would often be done at a much lower overall commission .

Mr Brown said that he had calculated the market share of the plaintiff in the relevant market[15] based on the sales by the plaintiff (from its records) compared with the total residential sales[16] by all agents in that market and that he had also calculated and compared the plaintiff’s total value of sales with the total value of sales in that market. Mr Brown performed this exercise for the period from 1990 to 2006 but I reproduce as a Schedule to this judgment an extract from Mr Brown’s table covering the period 1996 to 2006.
[15]Ascot Vale, Essendon, Essendon North, Essendon West, Flemington, Kensington, Marybrinong, Moonee Ponds, North Melbourne and West Melbourne.
[16]All house sales, unit sales and vacant land sales as derived from DSE data.

The data reproduced in the schedule shows a decline in the plaintiff’s number of sales in 2002 as compared with 2001 and 1999 and earlier years. The data shows an even greater decline in the plaintiff’s number of sales in 2003 as compared with 2001 and all earlier years. However, when this decline in 2002 and 2003 is considered in relation to the plaintiff’s share of sale numbers in the relevant market, the plaintiff’s performance is only very slightly worse than the market as a whole. Thus, the plaintiff’s market share based on number of sales for the years 2000 to 2004 was, in percentages 2.37, 2.19, 2.07, 1.77 and 2.78.

When cross-examined, Mr Brown said that he was not in a position to identify any factors explaining the consistent decline in the plaintiff’s market share from 1997 to 2003.

When one turns to the value of sales (an approach not favoured by Mr Brown), the data reproduced in the schedule shows that the plaintiff’s performance was inferior to the market as a whole in all years from 1998 to 2003. However, the plaintiff’s performance was significantly less inferior to the market as a whole in 2002 as compared to all other years in which its performance was inferior. In 2003, the plaintiff’s performance was less inferior compared to all other years in which its performance was inferior, except 2001. On the other hand, the plaintiff’s performance was significantly superior to the market as a whole from 2004 to 2006.

I note that Mr Brown was also challenged as to his adoption in his first report of the year 2001 as a base year. He justified this by saying that he had assumed that the renovations had continued up to late 2000 and that only after that normal operations had recommenced. However he agreed that the number of sales by all agents in the relevant market as a whole in the year 2001 seemed to be unusually high.

Professor Burke has a national and international reputation in the housing area. Much of his research was about housing market analysis. He has conducted considerable research into the Melbourne and inner Melbourne housing market and is very familiar with the relevant data and statistics that are available. Professor Burke started with the assumption that the plaintiff’s market was in the same areas identified by Mr Brown.

Professor Burke was asked to provide an opinion as to the appropriateness of the plaintiff adopted the 2001 calendar year as the base year for its calculation of its losses in light of the volume of sales in the relevant markets and sub-markets in the years 1999 – 2005.

Professor Burke said that the year 2001 was an aberration relative to previous and subsequent years. In terms of sales volume and value, 2001 was a peak year, which meant that there was little chance of estate agents operating in this market experiencing any growth in sales commission in 2002 and 2003 compared to 2001. He considered that any estate agent operating in the relevant market would have expected a fall in sales commission in 2002 and 2003.

Professor Burke expressed a very broad opinion that there was no evidence that the plaintiff’s sales commission was negatively affected by any problems associated with telephone listings and, to the contrary, that the plaintiff actually outperformed the relevant property market in the contested years 2002 and 2003.

Professor Burke said, looking at the market performance of the plaintiff in Moonee Ponds where the new office was opened, that there would appear to be a case for arguing that there was some aberrant performance for 2003 perhaps resulting from loss of telephone contacts. He suggested that the estimated gross loss of commission, putting aside any other factors that might have affected sales performance, was in the region of $49,000.

In relation to whether the number of sales or the value of sales was the significant matter to be considered, Professor Burke said that sales commission was a function of the volume of sales, the price of dwellings and the mix of dwellings sold in a given year.[17] In most years it was the volume (i.e. number) of sales that was the most important driver, as this tended to be more erratic, exhibiting patterns of rises and falls, whereas prices tended to increase from year to year.
[17]For example, houses typically had a higher value than units, he said.

In a further report, Professor Burke made a distinction not made in his first report. Professor Burke said that the plaintiff had a traditional market that performed more or less consistently (in Flemington, Kensington and Ascot Vale), a new market from its new office (Moonee Ponds and Essendon) and a small North and West Melbourne market. He expressed the view that there was no evidence that the plaintiff’s sales commission was affected in its traditional market, which accounted for the bulk of sales and that the plaintiff actually outperformed the market in that area in 2002 and 2003. The new market was such that any loss of sales would be marginal, he said – not any more than around 5 dwellings. Finally, he said, the North and West Melbourne market was not important until after the relevant period.

He repeated that the Moonee Ponds market arguably showed aberrant performance in 2003 perhaps resulting from loss of telephone contacts, but amounting to “less than $40,000” gross commission. However, he said, in effect, that he did not express this view with any confidence for reasons that he gave.

Professor Burke again emphasised that the plaintiff’s traditional market turned down quite sharply after 2001 so that any estate agent operating in that market should reasonably have expected to experience a downturn.

Professor Burke said that the value of sales commissions received was another measure of market performance but that he agreed with Mr Brown that number of sales was a better measure of market share than value of sales. Nevertheless, he said, as a complementary data source it was also useful to look at the value of sales. Doing so, Professor Burke said that he found that, on the basis of sales commissions received as well as the number of actual sales, the plaintiff had performed better than its traditional market had performed in 2002 and 2003.

Professor Burke was challenged in cross-examination in relation to his concentration in his second report on the plaintiff’s “traditional market,” an approach which seemed to assist the defendant’s cause and which he had not adopted in his first report. Although I was not particularly impressed with his explanation of what appeared to be a “late shift”, I nevertheless found his actual reasoning on this aspect reasonably persuasive, given that something like 95% of the plaintiff’s sales were in what he described as the plaintiff’s traditional market over the period from 1990 to 2001.

Loss of opportunity to earn sales commissions - submissions

The plaintiff said that the settled rule was that mere difficulty in estimating damages did not relieve a court from the responsibility of estimating them as best it could.[18] Where the defendant had failed to advertise the plaintiff’s business, the contract being one to advertise, the plaintiff might recover the amount of business profit lost though the estimate would necessarily be approximate.[19] In such a case, damages were inherently difficult to assess and guesswork was permissible.[20]
[18]Citing The Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64, 83 per Mason CJ and Dawson J, 102 per Brennan J, 125 per Deane J, 135, 138 per Toohey J and 158 per Gaudron J.
[19]Citing Marcus v Myers (1895) 11 TLR 327.
[20]Citing J.L.W. (Vic.) Pty Ltd v Tsiloglou [1994] 1 VR 237, 241-2 per Brooking J.

The plaintiff submitted that both the plaintiff and defendant reasonably expected and contemplated that the plaintiff would earn revenue by way of sales commission as a result of advertising in the Yellow Pages. This arose from the very nature of the agreements to provide advertising services. In the case of the 2003 Yellow Pages, the defendant had also stated in its letter dated 13 March 2002 that “now your customers will be able to contact you at the most important time of all – when they’re ready to buy.”

The plaintiff also relied upon a brochure published by the defendant in January 2005 entitled “real estate agents[21] connect with Sensis.” McCormick identified the brochure as a document that sales consultants used in explaining the benefits of advertising in the Yellow Pages. In the brochure, the defendant says that “[b]etween June 2002 to November 2002 and April 2003 and May 2004, we spoke to consumers across Australia, in Sydney, Melbourne, Brisbane, Adelaide and Perth, who had recently conducted a search for a business within your industry … Have a look through this brochure, and help yourself to the insights and knowledge we’ve discovered about your industry.”
[21]A footnote in the brochure states “Relates to business advertising under the Yellow Pages headings “Real Estate Agents” & “Real Estate Agents – Locality Guide”.”

The brochure, inter alia, made the following statements, some of a general nature and some based on the surveys conducted:

· As anyone in the Real Estate industry knows, prospective customers are constantly searching for the right services. When those prospects start looking for businesses like yours, you want to be sure you’ve done all you can to make it easy for them to find you. That’s where Sensis comes in. Sensis manages the Yellow Pages [and other directories]… So when potential customers are looking for you, they are likely to start with Sensis products. Sensis has been undertaking research that is sure to be of interest to you. As you’ll see, it shows that Australian consumers have been using Sensis products to find Real Estate Agents like you.

· When conducting searches for “Real Estate Agents,” 29% of surveyed searches were conducted using Yellow Pages products. Even better, of those searches, 94% ended up contacting the supplier(s) they found.

· Across all Yellow Pages headings, in 61% of surveyed searches where a supplier was contacted and a purchase made, Yellow Pages products were considered an “indispensable” tool.

· When people look for Real Estate Agents, they do more than just search – they actually go on to contact, and buy from, the Real Estate Agents they find. Here’s the proof, ALL of the 29% of searches for Real Estate Agents using Yellow Pages products, resulted in a contact to at least one Real Estate Agent that they found. Of the surveyed searches that ended up making contact with a Real Estate Agent, 57% intended to, or made, an ongoing or one-off purchase.[22]

[22]I would understand the word “purchase” in relation to real estate agents to be used in a wide sense so as to include such matters as the purchase by a prospective vendor of real estate agency services e.g. listing a property for sale.

A bar graph in the brochure indicated that, of those surveyed, 17% used a Yellow Pages directory to search for, and to contact, real estate agents.

The plaintiff submitted that, on the basis of the “admissions” or material contained in the defendant’s brochure, it should be concluded that 57% of the telephone calls intended for the plaintiff but received by Pip Squeakz represented an opportunity for the plaintiff to earn income (including sales commission). The plaintiff submitted that, whilst it might be inferred that some (perhaps many) callers were redirected by Pip Squeakz to the plaintiff, if such callers were vendors, they might be reluctant to entrust the listing of their properties with an agent whose telephone number was not correctly stated in the Yellow Pages.

The plaintiff submitted that, on the evidence, there was a flow-on effect of any loss of listing opportunities or sales on a real estate agency. Every listing and sale led to further opportunities and, thus, every lost listing or sale meant further missed opportunities.

In relation to the error with respect to the locality guide, the plaintiff submitted that it would have appeared to persons looking for an agent in the Moonee Ponds area that the plaintiff was not a local agent as its Flemington office was identified rather than its Moonee Ponds office.

The plaintiff said that its sales commission revenue in 2002 and 2003 was less than in 2001 and that this was attributable to the defendant’s breaches of contract, there being no other apparent cause of the decline. The plaintiff submitted that it was possible to measure its loss by reference to the sales commissions it could reasonably be expected to have earned (less the cost of earning those commissions). The plaintiff argued that, after the renovations, the plaintiff’s business had recovered in 2001 but, despite the opening of the Moonee Ponds office, in 2002 and 2003 the recovery ceased and the plaintiff experienced a decline in its business. After 2004, when the advertising errors were corrected, the business resumed its historic pattern of growth.

The plaintiff said that, in 2002, the business sold a decreased number of properties although it increased its performance in the relevant market, but, in 2003, the number of sales and the performance of the business in the relevant market both deteriorated. In the following years, the plaintiff had sold an increasing number of properties and had outperformed its relevant market in every year.

The plaintiff advanced a calculation of its damages as set out in para [17] above.

The defendant said that the plaintiff had to establish the loss of a chance and the value of that chance.[23] The loss of this chance had to be proved as a matter of causation and then assessed in relation to a number of contingencies.
[23]Citing Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, 353 – 355 per Mason CJ, Dawson, Toohey and Gaudron JJ, 367-8 per Brennan J and a number of other authorities (some turning on quite distinctive and different fact situations: Aerial Advertising Co. v Batchelors Peas Ltd [1938] 2 All ER 788, Sensis Pty Ltd v McMaster-Fay [2005] NSWCA 163.

The defendant submitted that the year 2001 was not an appropriate base year. The renovations had finished by October 1999. The evidence showed that 2001 was an unusual year in terms of the number of sales and that the market shrank thereafter.

The defendant emphasised that the evidence supported a consideration of the number of sales rather than the value of sales when looking at market share and market performance.

The defendant submitted that it was not an inevitable conclusion that the plaintiff must have suffered some loss. There were many reasons why a person might look for an estate agent in the Yellow Pages only one of which was the desire to list a property for sale. Stevens of Pip Squeakz had not kept any records of the number of calls received and they could have been less than her “estimated average” of 5 to 10 calls per day. There was no evidence that the persons who were politely redirected by Stevens did not then go on to call the plaintiff at its correct number. It could not be assumed that, even if the caller was a prospective vendor, the business would have been won by the plaintiff.

The defendant said that the contents of its brochure and the survey referred to within had “limited value.” It did not describe the reasons why people were seeking to contact an estate agent and resulting telephone calls could be made for any number of reasons.

In relation to the plaintiff, the defendant submitted that developers and local owners would not use the Yellow Pages as the plaintiff had a market presence in the area, and dealt with developers regularly and that local owners would know the plaintiff’s telephone number from local boards, newspapers advertisements, and the like.

The defendant submitted that the court was “left with speculation” as to the reasons for the calls to Pip Squeakz and as to the number of such callers who did not thereafter call the plaintiff’s office.

The defendant argued that the plaintiff had failed to provide any survey evidence to substantiate its claims.

The defendant further submitted that, if any opportunities were lost, it was appropriate to discount the value of the opportunity to reflect the chance that the particular opportunity would not have come to fruition.

The defendant said that the plaintiff’s records revealed that the conversion rate of “initial valuations of ultimate sales” was approximately 32%. The issue was the conversion from valuations to listings and from listings to sales rather than lost opportunities. I will say at once that I reject this particular submission. Insofar as it is comprehensible, the factual basis for it and the analysis contained in a table produced by the defendant in final submissions were not adequately canvassed with Mr Marston.[24]
[24]See transcript pages pp. 256 – 258.

The defendant submitted that any under-performance in the market by the plaintiff was likely to have occurred as a result of the entry of additional competitors, the plaintiff’s cash flow problem, the lack of an established sales team in the years 2002 and 2003 and the drying up of development opportunities in the years 2000 and following.

Loss of opportunity to earn sales commissions – the law

In The Commonwealth of Australia v Amann Aviation Pty Ltd,[25] Mason CJ and Dawson J said:[26]

“The general rule at common law, as stated by Parke B in Robinson v Harman, is "that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed". This statement of principle has been accepted and applied in Australia.
The award of damages for breach of contract protects a plaintiff's expectation of receiving the defendant's performance. That expectation arises out of or is created by the contract. Hence, damages for breach of contract are often described as "expectation damages". The onus of proving damages sustained lies on a plaintiff and the amount of damages awarded will be commensurate with the plaintiff's expectation, objectively determined, rather than subjectively ascertained. That is to say, a plaintiff must prove, on the balance of probabilities, that his or her expectation of a certain outcome, as a result of performance of the contract, had a likelihood of attainment rather than being mere expectation.
In the ordinary course of commercial dealings, a party supplying goods or rendering services will enter into a contract with a view to securing a profit, that is to say, that party will expect a certain margin of gain to be achieved in addition to the recouping of any expenses reasonably incurred by it in the discharge of its contractual obligations. It is for this reason that expectation damages are often described as damages for loss of profits. Damages recoverable as lost profits are constituted by the combination of expenses justifiably incurred by a plaintiff in the discharge of contractual obligations and any amount by which gross receipts would have exceeded those expenses. This second amount is the net profit.
…
The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v Schiffmann Menzies J went so far as to say that the "assessment of damages ... does sometimes, of necessity involve what is guess work rather than estimation". Where precise evidence is not available the court must do the best it can. And uncertainty as to the profits to be derived from a business by reason of contingencies is not a reason for a court refusing to assess damages.”

[25](1991) 174 CLR 64

[26](1991) 174 CLR 64, 80-81, 83 (citations omitted).

In the same case, Brennan J said:[27]

“Unexpressed benefits are frequently of an intangible kind or are otherwise of uncertain value but difficulty in evaluating a contractual benefit is no barrier to recovery of damages where the defendant is bound to provide the benefit but has failed to do so. Their Honours observed that "if the contract had been performed, the plaintiff would have had a real chance of winning the prize, and it seems proper enough to say that that chance was worth something". In Fink v Fink , Dixon and McTiernan JJ said:
"Where there has been an actual loss of some sort, the common law does not permit difficulties of estimating the loss in money to defeat the only remedy it provided for breach of contract, an award of damages."

[27](1991) 174 CLR 64, 102 (citations omitted).

And in the same case, Deane J said:[28]

“In some circumstances, the determination of what proportionate figure represents the extent of the chance or possibility of benefit or detriment and the assessment of what would represent fair and just compensation for an actual loss of that benefit or an actual sustaining of that detriment is relatively straightforward. Where that is so, there is little difficulty in assessing damages for the loss of the chance of the benefit or for the existence of the possibility of detriment. In other circumstances, the assessment of damages for the loss of such a chance or for the existence of such a possibility may be fraught with difficulty and attended by uncertainty. The mere fact that damages cannot be assessed without difficulty and uncertainty does not, however, relieve a court from the responsibility of attempting to assess them as best it can.”

[28](1991) 174 CLR 64, 125 (citations omitted).

And in the same case, Toohey J said:[29]

“However, to say as a general proposition that it is for the plaintiff to prove his damages is not to say that, in some instances, damage may not be inferred or presumed. Nor is it to fail to recognize that the quantification of damages is "in many cases no more than an approximation lacking in mathematical or economic accuracy or sufficiency" or even that the assessment of damages "does sometimes, of necessity, involve what is guess work rather than estimation" . It is now almost a century since Bowen LJ said in Ratcliffe v Evans:
"As much certainty and particularity must be insisted on ... in ... proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry."

[29](1991) 174 CLR 64, 138 (citations omitted).

In J.L.W. (Vic.) Pty Ltd v Tsiloglou,[30] Brooking J discussed a range of authorities relating to the question of guesswork being involved in an assessment of damages and commented:[31]

“There is no rigid dividing line between cases in which guesswork is permissible in assessing damages and cases in which it is not. The borderline between guesswork and rational assessment is itself indistinct, as is the line between evidence that is "precise" (the Permanite Case dictum) and evidence that is not. In Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 57 ALR 167, at 182-3, (to which Tadgell J. has drawn my attention) the Full Federal Court thought the case to be one in which precise evidence of the loss was not obtainable, so that if the trial judge found that the plaintiffs had suffered some loss he must do his best to quantify the loss even if "a degree of speculation and guesswork" was involved.”

[30] [1994] 1 VR 237 (Brooking, Tadgell and J D Phillips JJ).

[31][1994] 1 VR 237, 243.

In relation to loss of opportunity to earn income as a result of a breach of contract, both parties referred to statements of principle by the High Court in Sellars v Adelaide Petroleum NL.[32] In that case it was stated in the majority judgment:[33]
[32](1994) 179 CLR 332.
[33](1994) 179 CLR 332, 353-356, 368 per Mason CJ, Dawson, Toohey and Gaudron JJ (citations omitted).

“It may be that Sykes, Gates and Norwest are to be treated as cases which turn primarily on the issue of causation which is ordinarily governed by the general civil standard of proof. The distinction between proof of causation and damages was emphasized in Hotson v East Berkshire Area Health Authority. There Lord Ackner stated that the first issue that fell to be determined was that of causation. This was to be determined on the balance of probabilities. Once liability was established, the assessment of the plaintiff's loss could proceed, taking into account any reductions arising from the uncertainty of future events. When the issue of causation turns on what the plaintiff would have done, there is no particular reason for departing from proof on the balance of probabilities notwithstanding that the question is hypothetical.
In Johnson v Perez, Brennan J (dissenting) adopted an approach similar to that suggested by Norwest. In Johnson, the plaintiff sued his solicitor for negligence in allowing the plaintiff's cause of action against a third party to become statute barred. His Honour said:
"[T]he court must find whether or not he has lost something of value. If he would have failed in the original action, he has lost nothing; if he would have succeeded, he has lost what he would have received at the time he would have received it. ... Or, if it is doubtful whether or not he would have succeeded in the action and it is not probable that the action would have been compromised, the court assessing the damages must determine as best it can on the balance of probabilities whether the plaintiff would have succeeded (and, if so, to what extent) or failed."

On the other hand, in a similar situation, the English Court of Appeal, in Kitchen v Royal Air Force Association, concluded that the plaintiff had been deprived of a cause of action which had some value. Parker LJ observed:
"If the plaintiff can satisfy the court that she would have had some prospect of success, then it would be for the court to evaluate those prospects, taking into consideration the difficulties that remained to be surmounted."

In Amann , Deane J expressed a similar view, saying:
"[A] plaintiff whose action against a third party has become statute-barred by reason of a defendant solicitor's breach of contract may recover damages by reference to the court's assessment of what the chance of success in the action against the third party would have been even though that assessment is 50 per cent or less."

Of course, Johnson, Kitchen and the example given by Deane J are cases of breach of contract.
In New Zealand, the Court of Appeal has held that a commercial opportunity lost as a result of the defendant's negligence is compensable and that it is to be evaluated by reference to the degree of probabilities or possibilities. In Takaro Properties Ltd v Rowling, the negligent refusal of the Minister to consent to the issue of shares to a foreign corporation led to the failure of property development which the plaintiff was to undertake with funds to be provided by the share issue as well as other finance. The plaintiff sought to recover damages for the lost commercial opportunity. The trial judge rejected the claim on the ground that causation was not established because, although it was possible that the development would be profitable, on the probabilities it would be unprofitable. The Court of Appeal held unanimously that the trial judge was in error. The correct approach, according to the Court of Appeal, was to ascertain, first, whether, in the absence of the negligent conduct, there was some prospect of success and then to value the lost opportunity by reference to the degree of probabilities or possibilities. The Privy Council reversed the decision of the Court of Appeal but on a ground which is not of present relevance. The Court of Appeal subsequently adopted the same approach in Craig v East Coast Bays City Council .
Notwithstanding the observations of this Court in Norwest, we consider that acceptance of the principle enunciated in Malec requires that damages for deprivation of a commercial opportunity, whether the deprivation occurred by reason of breach of contract, tort or contravention of s 52(1), should be ascertained by reference to the court's assessment of the prospects of success of that opportunity had it been pursued. The principle recognized in Malec was based on a consideration of the peculiar difficulties associated with the proof and evaluation of future possibilities and past hypothetical fact situations, as contrasted with proof of historical facts. Once that is accepted, there is no secure foundation for confining the principle to cases of any particular kind.
On the other hand, the general standard of proof in civil actions will ordinarily govern the issue of causation and the issue whether the applicant has sustained loss or damage. Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities. It is no answer to that way of viewing an applicant's case to say that the commercial opportunity was valueless on the balance of probabilities because to say that is to value the commercial opportunity by reference to a standard of proof which is inapplicable.
The conclusion which we have reached on this question finds support in other considerations. The approach results in fair compensation whereas the all or nothing outcome produced by the civil standard of proof would result in the vast majority of cases in over-compensation or under-compensation to an applicant who has been deprived of a commercial opportunity. Furthermore, it is an approach which conforms to the long-standing practice of taking into account contingencies in the assessment of damages.”

And in Sellars, Brennan J said:[34]
[34](1994) 179 CLR 332, 365-7 (citations omitted).

“As the existence and assessment of the value of a valuable opportunity usually depend on an evaluation of hypothetical situations or future possibilities, it is clear that the manner in which a plaintiff discharges the onus of proving his case is different from the manner in which he would discharge it if an issue depended upon the existence of historical facts. In Malec v J C Hutton Pty Ltd Dawson J and I observed:
"Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past."

We cited what Lord Diplock said in Mallett v McMonagle :
"The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards."

In Malec Deane, Gaudron and McHugh JJ said:
"When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured."

These observations relate not so much to the standard of proof as to the way in which a court views the material bearing on the issues for determination. They can affect the determination not only of the issues of loss and its assessment but also the issue of causation.
…
There is no reason why the balance of probabilities should not be the standard of proof required to establish both causation and the existence of a loss, though that standard is inappropriate to the assessment of the amount of a loss where the assessment is merely an evaluation of future possibilities.
…
Although the issue of a loss caused by the defendant's conduct must be established on the balance of probabilities, hypotheses and possibilities the fulfilment of which cannot be proved must be evaluated to determine the amount or value of the loss suffered. Proof on the balance of probabilities has no part to play in the evaluation of such hypotheses or possibilities: evaluation is a matter of informed estimation.”

Did the defendant’s breach of the contract cause the plaintiff to suffer a loss of opportunity to earn sales commissions?

The defendant could hardly deny, and did not seek to deny, the general proposition that advertising in the Yellow Pages was of commercial value to a real estate agent. That somewhat obvious proposition is buttressed (if that were necessary) by the material contained in the defendant’s brochure and the survey material summarised therein.

The evidence is that, over a period of about two years, as a result of the defendant’s breaches of contract, some thousands of telephone calls intended for the plaintiff went instead to Pip Squeakz Recycle. When the calls were answered by the announcement of that business name, the callers were at first informed simply that they had a wrong number. At some point they began to be “politely redirected” to the correct telephone number. Throughout the period a number of callers simply hung up.

There was understandably no evidence as to how many of the callers who were redirected in fact persisted and made telephone contact with the plaintiff. It is likely that some did and some did not. There was of course no evidence as to how many of those callers who hung up subsequently made telephone contact with the plaintiff but it is perhaps unlikely that many of them did. It is undeniable that a number of the callers would have been prospective vendors seeking to list a residential property for sale.

In the light of the foregoing, I would conclude simply upon the basis of common sense and ordinary human experience that some prospective vendors who telephoned this wrong number were lost to the plaintiff as listing opportunities and that some of those listing opportunities would have resulted in actual listings and, in turn, listings that resulted in sales, earning commissions for the plaintiff. In my opinion, it is an inevitable conclusion on the balance of probabilities that the plaintiff not only lost a number of opportunities to earn sales commission as a result of these misdirected telephone calls but also lost commission that would have flowed from some of those opportunities.

In addition, the evidence shows that a loss of listings in all probability leads to a loss of further listing opportunities and further commissions on sales. As Mr Brown said, “boards get boards.”

I am therefore satisfied that the plaintiff has suffered not only a loss of opportunity to earn profit, but an actual loss of profit, of some value as a result of the defendant’s breaches of contract.

Assessment of damages

I think that the particular calculation advanced by the plaintiff[35] fails at a number of points. I am not satisfied, for the reasons advanced by Professor Burke to which I have referred that 2001 is an appropriate base year. I am not satisfied that it is a correct approach to attempt to assess the plaintiff’s losses (if any) by reference to the value of its sales and the total value of sales in the relevant market. It was the opinion both of Mr Brown and of Professor Burke that the number of sales rather than the value of sales was the relevant and appropriate consideration.
[35]See paras [17] and [18] above.

Putting aside the question of the best way in which the plaintiff’s business performance might be measured, both sides to some extent approached the question of damages on the same basis, namely, that if one could identify a decline in the plaintiff’s business in the two years in question then, all other things being equal, that decline flowed in whole or in part from the errors in the Yellow Pages. Of course, the plaintiff said that there were no other factors that could have caused the decline. On the other hand, the defendant said that there was no decline relative to the market as a whole but that, if there was, it probably resulted from a number of other factors such as new competitors in the market, the drying up of development sales, the lack of stability in the sales staff, liquidity problems and so on. In addition, the defendant stressed the speculative nature of the contention that sales listing opportunities had been lost and the contingencies affecting those lost opportunities (if any).

In the end, I am not much assisted by the various expert analyses that were provided, although I think that it must be of some significance that the number of sales by the plaintiff in 2003 were by far the lowest in the ten year period from 1996 to 2006 and represented the lowest point in terms of the plaintiff’s market share.

In my opinion, this is a case that of necessity involves guesswork more than estimation and a case where the court must do the best it can in circumstances where precise evidence was not and could not be available. After allowing for all of the contingencies to which reference has been made, I consider that it is reasonable to conclude that the plaintiff lost, as a result of the defendant’s publication of the plaintiff’s incorrect telephone number,[36] additional listings sufficient to have directly generated at least 12 sales over the two years in question. In addition, I consider that those 12 sales would have generated further listings so as to produce at least an additional 3 sales.[37]
[36]I am unable to put a figure on losses (if any) from the other errors.
[37]“Boards get boards.”

The plaintiff’s average sale commission for 2002 and 2003 was $9362.[38] Accordingly, I would assess the plaintiff’s damages in the sum of $82,000 calculated as follows :

Average Commission   $9362.00
x 15 lost sales  $140,032.00
Less 41% direct variable costs       $57,413.12
Damages =   say  $82,000.00
[38]The plaintiff’s total sales commissions were $546,912 (2002) and $492, 289 (2003) and its total sales for the years in question were 111 leading to an average commission of $9362.17.

Consequential losses

The plaintiff claimed a variety of expenses and costs, comprising some six separate heads, alleged to have been incurred by it as a result of the errors in the 2002 and 2003 Yellow Pages. In the end, the plaintiff maintained its claim to only two of these heads which were:

(a)$54,747.00 for additional advertising of the Flemington office paid to Publicity Works to inform clients and potential clients of correct telephone number for Flemington office, made up as follows:

Invoice date Description of work Invoice Amount

27/3/2002 Monthly/fortnightly newsletter $3560.70

28/6/2002 Birthday letter drop $9,351.10

15/8/2002 Snapshot leaflets $3,560.70

28/8/2002 Local Letter drop – “Sold” great result July 2002 $3,251.60

30/10/2002 Presentation Folder $2,380.40

12/11/2002 Assessment booklets $13,457.40

29/11/2002 20 Years campaign for spring $572.00

21/3/2003 Campaign concepts & refresh corporate image $4297.70

25/3/2003 Redesign trust account receipts to suit new livery $240.90

31/3/2003 Local Letter drops March 2003 $7,753.90

18/12/2003 2004 Calendar $6,320.60

Total $54,747.00
(b)$19,378.00 for distribution costs made up as follows:

Year Distribution cost

2002 $942.00

2003 $4989.00

2004 $3233.00

2005 $2652.00

2006 $2905.00

2007 $4657.00

Total $19,378.00

In relation to item (a) above, Mr Marston testified that, having recognised in or about March 2002 that the telephone had been ringing less often than in 2001, he commenced efforts to reverse the decline in business by engaging Publicity Works to advise and assist in increasing the plaintiff’s business. He said that Publicity Works recommended a number of different measures including raising the plaintiff’s profile through a newsletter and various advertising promotions via letter drop, direct mail and the print media. He said that it had not previously been necessary to raise the plaintiff’s profile in these ways. He said that each of the items of expenses claimed were considered by him to be referable to addressing the decline in business caused by the defendant’s errors in the Yellow Pages.

In relation to item (b) above, Mr Marston said that the newsletters, letters and leaflets produced by Publicity Works were distributed in the various suburbs (which he named) constituting the plaintiff’s market at a cost of $22 plus GST per thousand and that the costs over the years 2002 to 2007 were as set out above.

In relation to item (a), the defendant submitted that there were two issues concerning this head of damage.

First, the additional advertising was likely to have defrayed the effect of the errors in the Yellow Pages and that, as such, any lost sales would be cancelled out by the additional advertising.

Second, much of the advertising was recurrent advertising.

In that regard, I note that Mr Marston implicitly conceded in cross-examination that Publicity Works had been employed over the years, for example, “to establish our original livery of that day” and “to create a fairly strong profile for us for the two offices and that’s probably the most we ever spent.” Mr Marston explained that “[w]e had a mini media campaign which we probably hadn’t done before and that was done in April 2001. I’m not sure of the remaining parts of 2001 but we are not big spenders in promotion normally.” He then accepted that $28,000 was spent in 2001 “the large majority of that I would expect to be for the two new offices as the launch campaign.” He said that he had not kept records of expenditure with Publicity Works for the years prior to 2001.

In relation to item (b) above, the defendant submitted that these costs would have been incurred in any event and that no accounts had been tendered which would enable the courts to determine what related to additional advertising to inform potential clients of the correct telephone number and what related to general advertising of a recurrent nature.

Ultimately, I am not satisfied that the whole of the claimed expenditure under these two heads of damages was undertaken in order to counteract or remedy the errors in the Yellow Pages or that much of it was not advertising expenditure of the kind normally undertaken from time to time by the plaintiff. I am satisfied, however, that at least some of the expenditure was undertaken as a result of the defendant’s errors. The difficulty is that the plaintiff is unable to demonstrate that any such expenditure undertaken in order to counteract or remedy the errors in the Yellow Pages did not generate additional real estate agency business of all kinds sufficient to at least recoup the expenditure. Accordingly, I am not satisfied that the plaintiff has incurred any relevant loss. The plaintiff did have an alternative misleading conduct claim under the Trade Practices Act that is unnecessary to analyse because I do not consider that the plaintiff could do any better as to damages thereunder.

Conclusion

For the foregoing reasons, the plaintiff is entitled to a judgment for damages in the sum of $82,000. I will hear submissions as to interest and costs.

SCHEDULE

2006 2005 2004 2003 2002 2001 2000 1999 1998 1997 1996 Year

2236 2435 2303 2713 3038 3471 2619 2905 2622 2829 2276 Relevant Market (B Source)

119 82 64 48 63 76 62 118 149 207 163 Marston and Cook Sales (A source)

5.32% 3.37% 2.78% 1.77% 2.07% 2.19% 2.37% 4.06% 5.68% 7.32% 7.16% Marston and Cook Market Share

45.12% 28.13% 33.33% (23.81%) (17.11%) 22.58% (47.46%) (20.81%) (28.02%) 26.99% 22.56% Marston and Cook Annual Sales Increase (decrease)

(8.17%) 5.73% (15.11%) (10.70%) (12.47%) 32.53% (9.85%) 10.79% (7.32%) 24.3% 15.59% Relevant Market (B Source) Annual Sales Increase (Decrease)

53.29% 22.39% 48.45% (13.11%) (4.63%) (9.95%) (37.61%) (31.6%) (20.7%) 2.7% 6.96% Marston and Cook Performance compared to relevant market Superior (inferior)

2001	2002 (3.31%)	2003 (1.76%)	Total
Base Year	$749,054
Sales Commission that should have been earned	$773,847	$762,237
Plaintiff’s actual sales commission	$546,912	$492,289
“Lost” sales commission	$226,935	$269,948	$496,883
Less direct variable costs at 41%	$203,722
Estimated loss	$293,161

Year	Number of sales	Percentage increase or decrease in the number of sales	Value of sales	Percentage increase or decrease in the total value of sales
2001	3471	100.00%	$1,031,311,328	100.00%
2002	3038	87.53%	$1,065,422,799	103.31%
2003	2731	78.66%	$1,049,416,019	101.76%
2004	2303	66.35%	$904,101,715	87.76%
2005	2435	70.15%	$925,177,192	89.71%
2006	2236	64.42%	$949,467,702	92.06%

Invoice date	Description of work	Invoice Amount
27/3/2002	Monthly/fortnightly newsletter	$3560.70
28/6/2002	Birthday letter drop	$9,351.10
15/8/2002	Snapshot leaflets	$3,560.70
28/8/2002	Local Letter drop – “Sold” great result July 2002	$3,251.60
30/10/2002	Presentation Folder	$2,380.40
12/11/2002	Assessment booklets	$13,457.40
29/11/2002	20 Years campaign for spring	$572.00
21/3/2003	Campaign concepts & refresh corporate image	$4297.70
25/3/2003	Redesign trust account receipts to suit new livery	$240.90
31/3/2003	Local Letter drops March 2003	$7,753.90
18/12/2003	2004 Calendar	$6,320.60
Total	$54,747.00

Year	Distribution cost
2002	$942.00
2003	$4989.00
2004	$3233.00
2005	$2652.00
2006	$2905.00
2007	$4657.00
Total	$19,378.00

[2008] VSC 568

18 December 2008