Mongan v Sambevski - [2009] VSC 140

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6861 of 2008

PETER MONGAN	Appellant
v
LOU SAMBEVSKI	First Respondent
and
BOBBY SAMBEVSKI	Second Respondent

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JUDGE:	SMITH J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 March 2009
DATE OF JUDGMENT:	16 April 2009
CASE MAY BE CITED AS:	Mongan v Sambevski & Anor
MEDIUM NEUTRAL CITATION:	[2009] VSC 140

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Appeal from VCAT – claim for moneys invested in reliance on representations of appellant – misleading and deceptive conduct – misrepresentations as to present and future matters – unsuccessful challenge to findings and whether reasonably open.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Black	McNamaras
For the Respondents	Mr P Lithgow	Hall & Wilcox

HIS HONOUR:

The Appeal

This is an appeal from the decision of the Victorian Civil and Administrative Tribunal made on 27 May 2008 in proceedings brought by Lou Sambevski and Bobby Sambevski (the brothers) against Peter Mongan (Mongan) alleging misleading and deceptive conduct under the Fair Trading Act 1999 (the Act). On that date, the Tribunal ordered Mongan to pay to the brothers, the sum of $35,000.00 each. Costs were reserved.

The original proceeding – the relevant facts as found

For a period of over 10 years prior to July 2004, Mongan had assisted the brothers and their wives and family members with taxation and other business affairs. He did not have formal qualifications and was not registered as a tax agent. He was throughout the 10 years employed by an accountant who was registered as a tax agent. He also assisted the first respondent with company documents.

In July 2004, two meetings occurred. The first occurred on 10 July 2004 and involved Mongan and the brothers, together with the latter's wives and sister. They provided him with instructions for the preparation of their taxation returns. Mongan remained for a meal or drinks. He raised with them the possibility of them investing in a project to convert the Grandview Hotel, West Brunswick, to apartments. The Tribunal found that at this meeting[1]
"the Respondent informed them…that he would be an investor in the project, as would be the developer Gary Stewart. And in so saying, I am satisfied, he meant them to understand he was committed."
[1]Reasons [16].
The second meeting occurred on 18 July 2004. The same people were present. The principal purpose of the meeting was a further discussion about the hotel development. Mongan produced three documents;, an outline of proposed development costs and projected sales, projected income and expense statement concerning the operation of the hotel, and a series of concept drawings of the development. It was common ground that the third document, the drawings, had been prepared by an architect. There was a dispute on the evidence as to whether Mongan had said he had prepared the other two documents. The Tribunal did not resolve this issue saying this was not necessary and found that Mongan had put them forward

"to provide information upon which…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Mongan v Sambevski

Details

AGLC: Mongan v Sambevski [2009] VSC 140
Case: [2009] VSC 140
Decision Date: 16 April 2009

CaseChat Overview and Summary

Mongan v Sambevski is an appeal against a decision of the Victorian Civil and Administrative Tribunal (VCAT) concerning a claim for money invested by the appellant, Mongan, in reliance on representations made by the respondent, Sambevski. The appellant sought compensation for losses incurred due to the respondent's alleged misleading and deceptive conduct. The dispute centred around the validity of the representations made by Sambevski, which the appellant claimed were misleading in both present and future contexts.

The legal issues that the court had to address were whether the representations made by Sambevski were indeed misleading and deceptive and if VCAT's findings regarding these representations were reasonably open and should be upheld. Specifically, the court needed to determine if the findings made by VCAT regarding the misleading nature of Sambevski's representations were justified and whether there was any error in VCAT's approach to assessing the reasonableness of these findings.

The court examined the evidence and arguments presented to VCAT, considering the nature and effect of the representations made by Sambevski. It assessed whether the findings made by VCAT were open to the tribunal given the evidence presented. The court found that VCAT's conclusions were supported by the evidence and that the tribunal had not erred in its assessment of the misleading nature of Sambevski's representations. The appeal was dismissed, affirming VCAT's findings that the respondent's conduct was indeed misleading and deceptive.

The court's decision upheld the findings and orders of VCAT, which included that Sambevski was liable for the misrepresentations and should compensate Mongan for the losses incurred. The appeal was dismissed, and the original decision of VCAT was confirmed.

Orders