Nunn & Linden v Ingles Marketing Pty Ltd
[2010] QCAT 450
•19 August 2010
CITATION:Nunn & Linden v Ingles Marketing Pty Ltd & Ors [2010] QCAT 450
| APPLICANTS: | Mr Andrew Nunn & Ms Michelle Linden |
| RESPONDENTS: | Ingles Marketing Pty Ltd Mr Graeme Angus Ingles Mr Geoffrey Neilson Tucker Mr Graham Walter Beer Mr Herbert Francis Doyle Mr Paul James Manning Franz Lodge McDonald Pty Ltd t/a Real Estate Goldcoast Mr Roland Craig Franz Mr Wayne Perry Lodge Mr Albert Chen |
| APPLICATION NUMBER: | PC013-09 |
MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 22-23 July 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Susan Gardiner, Member |
| DELIVERED ON: | 19 August 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The claim of the Applicants is dismissed 2. Each party bear their own costs. |
| CATCHWORDS : | Property Agents and Motor Dealers Act 2000 s470; claim against fund for false and misleading statements; real estate agent; claim disallowed, insufficient evidence on balance of probabilities that representation made; no order as to costs. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT : | Mr Andrew Nunn in person Ms Michelle Linden in person |
| RESPONDENT: | Mr T Pincus of Counsel for Ingles Marketing Pty Ltd, Mr Graeme Angus Ingles, Mr Graham Walter Beer, Mr Herbert Francis Doyle, Mr Paul James Manning Mr Roland Craig Franz in person Mr Wayne Perry Lodge in person Mr Albert Chen in person |
REASONS FOR DECISION
History
Mr Andrew Nunn and Ms Michelle Linden had been planning to migrate from the United Kingdom to Australia. In furtherance of those plans, in February 2004 they came to Australia to activate their permanent residency visa and to holiday. On 26 February 2004, two days before returning to the United Kingdom, Mr Nunn and Ms Linden met Mr Albert Chen a real estate salesman working for Franz Lodge McDonald Pty Ltd which traded as Real Estate Goldcoast to view properties. Mr Nunn and Ms Linden had met Mr Chen a day or two prior at his real estate office and outlined their requirements for a property at that time.
After these initial discussions, Mr Chen arranged to show Mr Nunn and Ms Linden a number of properties known to him, including a block at the Tee Trees Golf Course Estate. The Tee Trees block was the second block of land Mr Chen showed Mr Nunn and Ms Linden and when they expressed interest in the block, he introduced them to the on-site marketing staff of Ingles Marketing Pty Ltd one of the companies involved in developing the estate. Ingles Marketing Pty Ltd is one of a group of companies (“the Ingles Group”) owned or controlled by Mr Graeme Angus Ingles.
The marketing staff on duty in the Tee Trees estate information centre that particular day were Mr Paul Manning, Mr Herbert Doyle and Mr Graham Beer. Mr Nunn and Ms Linden entered into negotiations with the salesmen about the particular block they saw being lot 425 Tanzen Drive Arundel (“the Tee Trees block”) and about a house to be built on the property as a “house/land package”.
It is agreed by all the parties present that on 26 February 2004, Mr Nunn and Ms Linden were told that there was a golf course to be built at the rear of their block. Mr Nunn and Ms Linden also chose a home to be built on the block.
Mr Nunn and Ms Linden signed a conditional contract that day to purchase the land using a solicitor recommended to them by Mr Chen. The contract purchase price was $325,000.00. The contract for the purchase of the land was with Sandvista Pty Ltd the land owner (another company in the Ingles Group) and was subject to a finance clause. The parties also acknowledged that part of the consideration was that the seller had entered into the contract on the buyer’s agreement to contemporaneously enter a building contract with Ingles Homes (Qld) Pty Ltd, another company in the Ingles Group.
Two days later, Mr Nunn and Ms Linden returned to England to sell their home but ultimately financed the settlement of the land contract on 2 August 2004 by mortgaging their existing UK property.
Because they had difficulties selling the UK home, in November 2005 Mr Ingles and Mr Nunn and Ms Linden agreed through emails that on payment of a sum for the costs then incurred by Ingles Homes (Qld) Pty Ltd under their building contact, Mr Nunn and Ms Linden could withdraw from the contract to build the home. Mr Ingles advised that Sandvista Pty Ltd would not be willing to repurchase the land from Mr Nunn and Ms Linden.
Mr Nunn and Ms Linden finally sold their UK home and migrated to Australia in May 2006. On their arrival in South East Queensland some 21 months after settling the land contract, Mr Nunn and Ms Linden found the golf course was not built.
On about 7 June 2006 Mr Nunn and Ms Linden listed the Tee Trees property for sale with another unrelated agent. The property was listed at an asking price of $310,000 and an auction set for July 2006. Before the auction, Mr Nunn and Ms Linden accepted an offer of $275.00, signing a contract on 7 July 2006. This contract settled on about 7 August 2006.
Application
10. The application is by way of a claim against the claim fund set up under the Property Agents and Motor Dealers Act 2000 (PAMDA Act) to provide compensation to any person who suffers financial loss due to their dealings with persons regulated under this Act[1]. The applicants, Andrew Nunn and Michelle Linden, make the claim against Ingles Marketing Pty Ltd, Mr Graeme Angus Ingles, Mr Geoffrey Neilson Tucker, Mr Graham Walter Beer,Mr Herbert Francis Doyle, Mr Paul James Manning, Franz Lodge McDonald Pty Ltd t/a Real Estate Goldcoast, Mr Roland Craig Franz, Mr Wayne Perry Lodge and Mr Albert Chen.
[1] S10 (2) (f) of the PAMDA Act
11. The respondents broadly fall into two groups. The first group is associated with the real estate agent Mr Chen, the first agent seen by the applicants on the day the contract was signed. Mr Chen was employed by Franz Lodge McDonald Pty Ltd a licensed real estate corporation t/a Real Estate Goldcoast. Mr Roland Craig Franz and Mr Wayne Lodge were Directors of that Company.
12. The second group of respondents are those associated with Mr Ingles and his group of companies. Ingles Marketing Pty Ltd was a licensed real estate corporation and Mr Graeme Ingles was an executive officer of this corporation. Mr Geoffrey Neilsen Tucker was a Director of Ingles Marketing Pty Ltd. Mr Graham Walter Beer, Mr Herbert Francis Doyle and Mr Paul James Manning were licensed real estate employees of Ingles Marketing Pty Ltd.
13. On 23 October 2006, the applicants lodged with the Office of Fair Trading a claim in the sum of $125,075.00 against the fund under the PAMDA Act. The claim was lodged on the approved form within the time limits[2]. On 3 June 2009, the claim was referred to the then Commercial and Consumer Tribunal (the predecessor to this Tribunal) for determination.
[2] specified by s. 472 (1) of the PAMDA Act
Events Giving Rise to the Claim
14. The application is under section 470(1)(e) of the PAMDA Act by persons who claim to have suffered a financial loss as a result of their dealings with a relevant person (here the respondents) who held real estate licences under the PAMDA Act. In particular, the claim is for an alleged breach of s 574 of the PAMDA Act, the applicants saying that a licensee or registered employee of the licensee made a false or misleading representation in relation to their purchase of the Tee Trees block. For these purposes, a relevant person is defined under section 469 of the Act as a licensee or a licensee’s employee or agent or a person carrying on business with the licensee.
15. The referred claim is supported by an investigator’s report dated 5 January 2009 from Mr Geoff Price who was the Principal Investigations Officer for the Gold Coast Regional Office of Fair Trading. This report attaches a number of documents.
Elements of Claim
Contravention of s 574
16. Under s574 of the PAMDA Act, a licensee or registered employee must not represent in any way to someone else anything that is false or misleading in relation to the letting, exchange or sale of property. A false or misleading representation in relation to the sale of property includes the wilful concealment of a material fact in the representation [3].
[3] s. 574 (8)
17. At the commencement of the hearing, Mr Nunn on behalf of himself and Ms Linden, confirmed that they were not alleging that there were any representations made by a concealment of a material fact but rather they were relying on direct representations made by various sales representatives.
18. The representations alleged by Mr Nunn and Ms Linden fall into two categories. The first is alleged representations made by Mr Chen. The second is alleged representations made by Mr Manning, Mr Doyle and Mr Beer, the Ingles sales staff.
Alleged representations made by Mr Chen
19. In a letter to Mr Franz at Real Estate Goldcoast on 22 June 2006, the applicants alleged that
“We decided to purchase the land on the basis of Mr Chen’s professional expertise and advice. We were also advised that this would be a particularly good investment and the land was for sale at a very good price.”
20. In particular the applicants alleged in that letter that Mr Chen:
- Advised that the land would overlook the 18th hole of the golf course;
- Advised that they would “never lose out with the land/house package offered by Ingles“.
22. Mr Chen gave evidence to the Tribunal that:
· He did not recall much about the day with the applicants;
· He was aware of the property because it was in his office data base and was one of the properties that fitted the applicants’ requirements;
· He had never been to the block and, on the day the applicants viewed the land, he stopped at the sales office on the way to the block to get directions;
· He only knew information as disclosed in the promotional material for the land provided by the Ingles Group;
· When it became clear that Mr Nunn and Ms Linden were interested in the block he drove them back to the Ingles Group sales office;
· He stayed at the sales office while the applicants discussed the property but did not overhear the whole conversation as when they were discussing the house package, he had made himself coffee in another part of the office.
23. Mr Chen gave evidence that he discussed property and property trends generally with Mr Nunn and Ms Linden while he was showing them properties. He also said he discussed the proposed golf course which he had knowledge of because of the marketing information from the estate. Mr Chen denied making any specific representations to Mr Nunn and Ms Linden about the specific block or about the timing of the development of the golf course.
24. Mr Chen denied giving any representations about the block overlooking the 18th hole of the golf course. When viewing the land, both he and the applicants were looking at the map provided by the sales team for the estate which marked the golf course and the position of the block. Mr Chen also said that any discussion about the value of land as an investment would have been of a general nature only and he denied giving any specific advice about the particular block or a house/land package.
25. At the hearing, Mr Nunn and Ms Linden both agreed in their evidence that, despite their allegations in their letter to Mr Franz as director of Real Estate Goldcoast, (Mr Chen’s employer at the time), Mr Chen did not make any representations about the timing for the development of the golf course and that they did not rely on Mr Chen’s professional expertise and advice in deciding to buy the land. They agreed that opinions offered by Mr Chen were by way of discussions about trends in real estate in general terms and not specifically relating to the block they were viewing or to any land/house package under consideration by them. It was their oral evidence to the Tribunal that they did not decide to buy the land until after they had visited the Ingles Group sales office.
26. They agreed that Mr Chen accompanied them to the sales office but was not present for all of the discussions that took place at that time. Mr Chen said once the applicants started discussing the details of the home itself he went to another area to make coffee as his interest was only in the purchase of the land.
27. Mr Nunn gave evidence that the letter to Mr Franz was written after discussions with an officer from the Office of Fair Trading and was meant to be an initial “peg in the ground”. Mr Nunn also conceded that the applicants’ letter to Mr Franz made no mention of a time frame for the building of the golf course as a representation by Mr Chen. Mr Nunn said the representation about the time frame was made to them after Mr Chen moved away form the discussions.
28. On the evidence of Mr Chen and of concessions of Mr Nunn and Ms Linden, the Tribunal is satisfied that Mr Chen made none of the representations alleged by the applicants in their letter to Mr Franz of 22 June 2006.
Alleged representations by Mr Graham Beer, Mr Herbert Doyle and Mr Paul Manning
29. In a letter to Mr Ingles and the Ingles Group (QLD) on 25 June 2006, the applicants alleged that
“We decided to purchase the land on the basis that (according to your staff and Mr Chen) this would be a particularly good investment and the land was for sale at a very good price.”
30. In particular the applicants alleged to Mr Ingles that:
- The Ingles staff advised that the land would overlook the 18th hole of the golf course and a premium price was paid for the land on the basis of a golf course;
- They were advised that they would “never lose out with the/land house package offered by Ingles“.
Again, there was no mention in this letter to Mr Ingles of a representation about a time frame for the building of the golf course by the Ingles sales staff.
31. All parties agree that there was a representation about the building of a golf course. The golf course was clearly marked on the map of the estate. The map also clearly sited the placement of the block that interested the applicants as backing onto the golf course and the 18th hole. The estate itself was named “Tee Trees Estate”. Where the parties differ is as to whether there were any further representations made.
32. The first allegation of a representation about time for the building of the golf course is made by Mr Nunn (and supported by Ms Linden) in his witness statement to the Office of Fair Trading dated 23 June 2008. Mr Nunn states that “They told us that the golf course would be built in about 12 months”. In his oral evidence Mr Nunn explained that it was only after the officer from the Office of Fair Trading asked them questions in the course of his investigation that Mr Nunn and Ms Linden realised the importance of the alleged representation about time.
33. Neither Mr Nunn nor Ms Linden could recall which of the sales staff made the representation. Mr Nunn gave evidence that he was sceptical about this time frame. He said in his experience he doubted that the golf course would be “built” within 12 months as he realistically believed it took longer than that to construct a golf course.
34. It is appropriate at this point in these reasons to identify one event that was occurring concerning the Ingles Group and the marketing of the Tee Trees Estate around this time.
The 2008 ACCC Action
35. In an open letter dated 28 May 2003, Mr Graeme Ingles advertised that the Ingles Group had received approval from the Gold Coast City Council in December 2002 to construct the golf course at the Tee Trees Estate. He also advised that major construction had been delayed due to the drought but that at the date of the letter, the 17th hole had been completed, the 9th and 18th holes had bulk earth works completed and lakes constructed with work commencing shortly thereafter to complete these two holes. The remainder of the work was awaiting tender results and would commence as soon as the tenders had been received. He also advised that a fultime green keeper had been employed.
36. Between 28 May and August 2003, this letter was distributed widely to potential purchasers, on-site sales staff at the estate and real estate agents in and around the Gold Coast region.
37. In proceedings before the Federal Court in 2008, the Australian Competition and Consumer Commission (“the ACCC”) alleged that in this 2003 letter the Ingles Group represented that:
· They had received approval from the Gold Coast City Council to construct the golf course in December 2002;
· The sole or primary cause of delay of major construction of the golf course was the drought;
· Tenders had been called for the bulk of the earthworks for the completion of the golf course and were awaiting the tender results;
· Bulk earthworks for the completion of the golf course would commence once tenders had been received;
· By implication, the construction of the golf course would soon be well under way and would not be subject to any significant delays.
38. The ACCC alleged these representations were misleading or deceptive or likely to mislead or deceive in that, as at 28 May 2003:
· The Gold Coast City Council had not granted an approval which permitted the Ingles Group to commence or complete construction of the golf course;
· Only preliminary operational works had been approved which required various further steps to be taken and extensive further information to be provided before final approval of the construction of the golf course could be granted;
· Major construction was delayed because of the above;
· Tenders had not been called for and the Ingles Group was not then awaiting the results of a tender process;
· The golf course was likely to be subject to further significant delays;
· The Ingles Group did not have reasonable grounds for making the representations.
39. On 5 September 2008, Mr Graeme Ingles for himself and on behalf of the Ingles Group entered into an enforceable undertaking for the purposes of s 87B of the Trade Practices Act 1974 (Cth) admitting the conduct alleged by the ACCC and consenting to orders being made against them in the proceedings filed in the Federal Court of Australia.
40. It is agreed by all parties that Mr Nunn and Ms Linden did not receive a copy of the letter of 28 May 2003 in their negotiations in February 2004.
41. However, in their evidence, two of the three sales persons, Mr Manning and Mr Doyle said they were aware of the letter and Mr Manning stated that if previous purchasers of blocks came in to complain about the progress of the golf course, he would show them the letter. Mr Manning gave the information in the letter a “shelf life” of about 12 months.
42. Mr Manning denied ever telling the applicants that the golf course would be built within 12 months. Mr Manning had been working on an adjacent residential estate prior to commencing selling on the Tee Trees Estate. He had watched a golf course being built adjacent to the prior estate and was well aware of the length of time required to build a course. Mr Manning attended sales meetings with Mr Ingles about every 2 weeks for about an hour. At those meetings information was given as to the whole estate including the golf course.
43. Mr Manning never told anyone when the course would be built because he did not know himself. He stated that he had a humorous “spiel” he used when people asked which involved talking about it being built in their “life-time’.
44. Mr Manning agreed with Nr Nunn that it would be an obvious question for any prospective buyer and that he was asked it a lot. He stated however that he did not know the answer and therefore never made any representations about the time frame. Mr Manning had been in the area selling land since 2001 and stated he had seen very little progress on the golf course from then till the purchase by the applicants. He would not have been able to give them any time frames.
45. Mr Manning remembered the applicants particularly because they were buying the most expensive block on the estate and proposing to build the biggest house and make it even bigger. The home they chose had not been built on that estate to that time.
46. Mr Doyle also had been selling land on an adjacent estate prior to commencing at Tee Trees. He had watched a golf course being built adjacent to the prior estate and was well aware of the length of time required to build such a course. Mr Doyle denied ever telling the applicants that the golf course would be built within 12 months. He stated he knew it could not be built during that period and that it was 12 months from the completion of the courses before it could be played on to allow time for the grass to grow etc. He said he did tell people this at times but that this was the only reference to 12 months that he could recall.
47. Mr Doyle also recalled the applicants. He recalled they had come from the UK and that they were considering a very expensive home of a kind that had not been built on the estate before. He said he warned Mr Nunn and Ms Linden about overcapitalising with the proposed home and swimming pool.
48. Mr Doyle also attended 2-3 weekly sales meetings. He was aware of the 2003 letter but did not provide it to potential purchasers because it was not a conclusive letter. He did not give time frames because he did not know them.
49. Mr Beer also denied giving the applicants any representation about the time in which the golf course would be built. He said he knew there was to be a golf course but did not know when. He never saw the open letter dated 28 May 2003 and was unaware of its existence. He agreed he may have told them property was generally a good investment and that a question by prospective buyers about the time frame for the gold course was an obvious question.
50. Mr Beer did say he had heard Mr Doyle talk sometimes to people about a 12 month period but that it was in the context of how long after completion you were able to use a golf course, not how long it took to build it.
51. Under cross-examination, Mr Nunn conceded that none of the sales staff said that they would not lose out in relation to the specific block they were considering but only in relation to land as a generic investment. Mr Nunn said he and Ms Linden did not buy the property as an investment. They purchased the property to build their family home, to live in and to raise their family.
52. Mr Nunn agreed that one or more of the Ingles sales staff had cautioned him and Ms Linden to be careful not to overcapitalise as they were proposing the most expensive home on the most expensive block in the estate and then adding upgraded extras such as a swimming pool.
53. On the evidence before it, the Tribunal is not satisfied that, on the balance of probabilities, the representation that the golf course would be built within 12 months was made by any the Ingles sales staff present on the day the contract was signed by the applicants.
54. The Tribunal is satisfied because:
· Neither Mr Nunn nor Ms Linden can recall which sales representative was alleged to make the statement;
· Mr Chen did not overhear any statement to this effect although it is conceded that he was not present for the whole of the conversation. Mr Chen’s evidence was however that he moved away to get coffee and out of earshot of the conversation only once the parties started discussing the house details;
· Mr Nunn said the representation about the time frame was made to them after Mr Chen moved away form the discussions. This Tribunal is not satisfied that this is an accurate recollection by Mr Nunn. It is more likely that discussions about the timing for the golf course would have happened during the period of the conversation that involved discussions about the land rather than the house details.
· As put by Mr Nunn in his cross-examination to each of the three salesmen, this was an obvious question concerning the land and each of the salesmen conceded that it was asked often. It would be expected to be discussed when discussing the purchase of the land not the details of the house to be built on it.
· Mr Manning, Mr Doyle and Mr Beer gave constant, consistent and plausible evidence which was not challenged under cross-examination as to why they would not be able to give an answer to a question they had conceded was an obvious question to be asked by any prospective purchaser.
· The applicants stood out in the memory of all three salesmen because of the size of the home they were proposing to build on the block and the advice to Mr Nunn and Ms Linden that they may be overcapitalising by building that house and extras on that block. Mr Nunn conceded that they were advised that they may be overcapitalising.
· Because of this, it is likely that all three salesmen had a clearer memory of the day than they would have for other less memorable purchasers.
· In other evidence given by the applicants, (in particular by Mr Nunn), it was conceded at the hearing that statements alleged to be made were either not made or made in a more general form than was the initial allegation. Because of this, questions are reasonably raised about the accuracy of the applicants’ memory of the events that took place. Overall, where there are discrepancies in the accounts of the applicants and the three respondents, ( Mr Manning, Mr Doyle and Mr Beer) the evidence of the respondents is preferred as a more accurate recollection of the conversations.
55. Even if the representation had been made (which the Tribunal finds not to have been the case), the Tribunal is not satisfied that Mr Nunn and Ms Linden relied upon it in the purchase of the land. The land was being purchased as a family home not an investment and the applicants were intending to raise their family there not resell it. Even if the representation was made, Mr Nunn did not himself believe a golf course could be built within 12 months in any event.
56. The Tribunal is satisfied under s574 of the PAMDA Act, that none of the following persons, Mr Albert Chen, Mr Paul James Manning, Mr Herbert Francis Doyle or Mr Graham Walter Beer made a false or misleading representation in relation to the sale of property to the applicants concerning their purchase of lot 425 Tanzen Drive Arundel.
57. The compensation application must be dismissed.
Costs
58. At the conclusion of the hearing, Counsel for the Ingles Group sought their costs in the event the application was dismissed. As a Tribunal created by statute, an award of costs is only available under the QCAT Act and therefore requires an examination of the terms of the Act[4].
[4] Tamawood Ltd v Paans [2005] QCA 111 @ [23]; see also Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364
59. Costs can be awarded (under s 102 of the QCAT Act) if the interests of justice require an order to be made[5]. In deciding whether to award costs, the Tribunal may have regard to the following considerations[6] :
[5] s 102(2)
[6] s 102(3)
(a) whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);
(b) the nature and complexity of the dispute the subject of the proceeding;
(c) the relative strengths of the claims made by each of the parties to the proceeding;
(d) for a proceeding for the review of a reviewable decision -
(i)whether the applicant was afforded natural justice by the decision-maker for the decision; and
(ii) whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
(e) the financial circumstances of the parties to the proceeding;
(f) anything else the tribunal considers relevant.
60. These considerations are factors to be taken into consideration not grounds for making an award[7]. Counsel sought specifically to rely on ss102(3) (b) and(c) in support of the costs application.
[7] See Ascot v Nursing & Midwifery Board of Australia op cit at para 9
61. Subsection 102(3)(b) refers to the nature and complexity of the dispute. Counsel relied on the length of the statement of Mr Ingles to support the submission as to complexity. This is not persuasive. The statement is a historical account of the development of the Tee Trees Estate and the golf course. It is long, but apart from refreshing himself on timelines, is knowledge well within the experience of Mr Ingles as it is his development. The nature of the dispute involved around the simple question of whether a false representation was made that a golf course would be built within 12 months. The nature of the dispute was not a relatively complex one.
62. Subsection 102(3) (c) refers to the relative strengths of the claims made by each of the parties. The claim was based on a successful finding that the representation was made and relied upon by the applicants. In this regard the applicants’ failed, but is this failure enough to base an award of costs?
63. The Office of Fair Trading thought there was a justiciable issue when it referred the matter to the then CCT in May of 2009 at the conclusion of its investigation. The Fair Trading Principal Investigator’s report went further than just assessing an issue to be determined and concluded that an event did occur on the balance of probabilities and that there had been a loss. In reaching his conclusion, the investigator did not have the advantage of the whole of the evidence that has now been presented at the hearing of this claim.
64. On balance and on the evidence before them at the time, it was a reasonable decision by the Office of Fair Trading to refer the claim to the Tribunal. It is not in the public interest to deter parties from making a claim to the Office of Fair Trading and for that claim not to be referred to the Tribunal in proper circumstances for fear of a costs award should the decision go against the original claimants.
65. In addition to the submissions under ss102(3) (b) and (c) of the QCAT Act, pursuant to rule 86 of the Queensland Civil and Administrative Tribunal Rules 2009, Counsel also relied on an offer to settle the matter by the Ingles Group contained in a letter to the applicants dated 19 January 2010. The essence of the offer was that the claim be discontinued and that each party bear their own costs. However this rule is also an exercise of a discretion[8]. Having been satisfied, on balance, it was reasonable to refer the claim to the Tribunal, it was also reasonable for the claimants to await the decision of the Tribunal, particularly in light of the findings of the investigation report. For the reasons discussed above and the nature of the offer of settlement, the exercise of the discretion under r 86 is also declined.
[8] R 86 (2)
66. Each party will bear their own costs.
ORDERS
The claim of the Applicants is dismissed
Each party bear their own costs.
0
2
1