Petkovska v Westpoint Realty - [2003] FMCA 382

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PETKOVSKA v WESTPOINT REALTY & ANOR

[2003] FMCA 382

TRADE PRACTICES – Misleading and deceptive conduct – misdescription of real estate – whether purchaser was shown the wrong property – loss and damage – no valuation evidence – alternative evidence of loss.

Trade Practices Act 1974 (Cth), ss.52, 53A, 82

Brown v Jam Factory Pty Ltd (1981) 53 FLR 340
Henville v Walker (2001) 206 CLR 459
Neilsen v Hempston Holdings Pty Ltd (1986) ATPR 40-686
Yorke v Lucas (1985) 158 CLR 661
Zoneff v Elcom (1990) 94 ALR 445

Applicant:

MARIA PETKOVSKA

First Respondent:

WESTPOINT REALTY (NSW) PTY LTD

trading as Raine & Horne (Fairfield)

Second Respondent:

RAY TRIMBOLI

File No:

SZ1348 of 2002

Delivered on:

15 September 2003

Delivered at:

Sydney

Hearing dates:

19 – 21 August 2003

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicant:

Mr C Evatt

Mr M Rollinson

Solicitors for the Applicant:

Carters Law Firm

Counsel for the Respondent:

Mr B McManus

Solicitors for the Respondent:

Colin Biggers & Paisley

ORDERS

The Court declares that the first respondent breached s.52 of the TPA when its servant or agent, Ray Trimboli, falsely represented to the applicant that a garage she inspected at 19 Equity Place, Canley Vale, belonged to unit number 10, inducing her thereby to purchase that unit.
The first respondent is to pay damages to the applicant in the sum of $3,794, plus pre-judgment interest from 2 December 1999 to the date of this judgment, at the rate of 10.5 per cent.
The application against the second respondent is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1348 of 2002

MARIA PETKOVSKA

Applicant

And

WESTPOINT REALTY (NSW) PTY LTD

(trading as Raine & Horne Fairfield)

First Respondent

RAY TRIMBOLI

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application pursuant to s.52 of the Trade Practices Act 1974 (Cth) (“the Trade Practices Act”) and under the accrued jurisdiction of the Court claiming damages. In addition to claiming a breach of s.52 the applicant asserts that the respondents were negligent. It is alleged that the second respondent aided, abetted, counselled or procured the alleged contravention of s.52 by the first respondent and was directly or indirectly knowingly concerned in that contravention. Further, the application seeks declarations relating to breach of contractual duty and negligence. The application was filed on 20 December 2002.
On the same day the applicant filed a statement of claim in support of the application. The statement of claim asserts that the first respondent by itself and through its servant or agent, the second respondent represented to the applicant that a home unit, being number 10 situated at 19 Equity Place, Canley Vale, had a certain garage as part of the property and that the garage was misrepresented. It is alleged that the applicant was shown a certain garage by the second respondent prior to purchasing the property and that the second respondent represented to the applicant that the garage shown to the applicant was the garage that belonged to unit 10. The applicant asserts that the representations made by the second respondent were false, misleading and deceptive in that the garage shown to the applicant and represented as belonging to unit number 10 was in fact the garage belonging to unit 7. It is asserted that the garage in fact belonging to unit 10, which the applicant purchased, contains a large water tank which occupies much of the space of the garage and renders it too small for the applicant’s purposes.
The respondents deny the alleged representations and do not admit that the applicant has suffered any inconvenience, loss or damage in relation to any such representations. The respondents also assert in their defence filed on 13 May 2003 that the applicant has failed to mitigate her loss in that she has failed to bring proceedings against the solicitor who acted for her on the purchase.

The evidence

The application is supported by affidavits by the applicant, her husband Trajce Petkovski (both filed on 15 May 2003), an affidavit of Risto Joseski filed on 20 May 2003 (an acquaintance of the applicant), and an affidavit of Lubica Petkovska (the applicant’s daughter), also filed on 15 May 2003. All of these deponents were cross-examined on their affidavits, the applicant, her husband and Mr Joseski being assisted by a Macedonian interpreter.
Ms Petkovska deposes that on approximately 2 October 1999 she attended Raine & Horne Real Estate at 55 Smart Street, Fairfield with her husband and saw a unit advertised in the window with a selling price of $94,000. The unit was at Equity Place, Canley Vale. She deposes that she went into the office with her husband and spoke to a secretary there and expressed her interest in purchasing the property. The employee there described the unit and arranged for an agent to contact the applicant and her husband for an inspection. The following day the agency called by telephone to advise that an inspection had been arranged on or about 5 October 1999 at 11.00am. It was arranged that the applicant and her husband would meet the agent at the property.
The applicant deposes that on that day she went with her husband, her daughter, her mother-in-law and Mr Joseski to the property. They met the real estate agent who introduced himself as Ray Trimboli. Mr Trimboli showed the applicant and the others through each room of the unit and then the applicant’s husband asked to see the garage downstairs.
The applicant deposes that they all went downstairs to the lock-up garage and the agent attempted to open the door with a key but was unable to do so. A further inspection was arranged for another day two or three days later. On this occasion the applicant again attended the property with her husband, her daughter, her mother-in-law and Mr Joseski. Mr Trimboli again took each of the persons through every room of the unit and on this occasion opened the garage door to enable them to inspect the garage. The applicant deposes that her husband expressed a liking for the garage as it was big enough for the family car as well as all of his tools. He expressed interest in the purchase and made an offer. A small holding deposit of $250 was paid at that time.
The applicant deposes that there was no number on the outside of the garage to identify which unit it belonged to. She deposes that there was no water tank in the garage. She deposes that Mr Trimboli represented that the garage they had seen was the garage belonging to unit 10. The following day Mr Trimboli contacted the applicant’s husband to advise that the offer was acceptable to the vendor. The purchase proceeded.
The applicant deposes that contracts were exchanged on 21 October 1999. The applicant had retained a solicitor to undertake the purchase. The solicitor Marika Vukmirica arranged a final inspection prior to settlement on 2 December 1999. The applicant deposes that she attended the final inspection with her husband, her daughter and her mother-in-law. This was approximately two days prior to settlement. Mr Trimboli also attended and he once again showed those present through the unit and again took them down to the lock up garage. The applicant deposes that Mr Trimboli showed them the same lock up garage as he had on the prior occasion and that the garage contained no water tank. The sale was completed on 2 December 1999.
The applicant deposes that after settlement when she and her husband had moved into the property they discovered that there was a large water tank situated at the back of the garage which prevented them from parking their car in the garage. She deposes that the garage that in fact belonged to unit 10 was not the garage she had been shown was the garage in fact belonging to unit 7, which did not contain a large water tank.
In oral examination in chief the applicant stated that it was her husband who first discovered the reality of the situation. He told her about it when he had discovered that the garage was not that which they had anticipated. Mr Evatt, for the applicant, showed her a number of photographs (exhibits A1 – A4) showing the two garages in question. The applicant identified the two garage and identified two water tanks in the garage belonging to her. The photographs show no water tanks in the other garage. The applicant stated that her husband’s intention was to store his tools of trade in the garage as well as the family car (a Datsun Bluebird). She stated that there was insufficient space in the garage belonging to unit 10 to store the car and the tools. Mr Petkovski is a tiler by trade and has a number of tools of trade relating to that trade. The applicant stated that it was physically possible to put the Datsun Bluebird into the garage but that it was difficult to get out of the car once it was in the garage. She stated that it was impossible to store tools in the garage if the car was there. She also stated that she was depressed as a result of the problem with the garage and that the situation caused quarrels between her and her husband. She stated that the problem of the car and the tools was the main issue.
Under cross-examination the applicant admitted that the Datsun Bluebird was written off in an accident two years ago and that she and her husband had not owned a car since then.
The applicant was shown other photographs of the garages. She denied suggestions that the garage she was shown by Mr Trimboli was the garage she in fact owns, which has a brick wall in front of the water tanks. She also denied suggestions that the garage she saw had mesh on one side but not the other side. She insisted that the garage had mesh on both sides. The applicant was asked by Mr McManus (for the respondents) to identify the garage she was shown from a photograph showing the outside of all of the garages: exhibit R1. She identified the garage she was shown as the seventh garage from the right. This was marked on the photograph with a small blue circle. Later, the applicant was asked to identify on the same photograph the garage she in fact owns. She identified the fourth garage from the left, which was marked with a blue cross.
Mr McManus showed the applicant the contract for the purchase of the property. The applicant stated that she had never seen it before. She also stated that she was not shown a plan of the property contained in the contract. The applicant was shown another photograph of the interior of her garage: exhibit R3. This shows the garage containing the applicant’s husband’s tools. The applicant stated that although there appeared to be more room in the garage for the storage of tools, space had been kept free on the perimeter of the garage to enable her husband to build solid walls on both sides of the garage, for additional privacy.
I asked the applicant whether she had a key to the garage she owns. She said that she had no key for the internal access to her garage because she has no internal access to her garage. She stated that there is a door from her unit to the garage area but this opens into the garage belonging to unit 11. The door is locked and she does not have a key for it. She states that she does have a key for the roller door on the front of her garage. The applicant stated that when she and the others inspected the garage Mr Trimboli opened the garage roller door. He pointed out the back access from the interior of that garage. This was not the garage belonging to unit 10 (or unit 11).
The applicant explained that access to the water tanks at the back of her garage is via the garage belonging to unit 11. There is a connecting door. She stated that there had been a number of requests for access to the water tank area but that she does not have a key to the connecting door.
The applicant was asked why she had waited so long to bring proceedings about this matter. She stated that the problem was originally raised with the solicitor who acted on the purchase but she was unable to do anything. Other solicitors were then instructed to deal with the matter but the applicant was dissatisfied with them and withdrew her instructions. She stated that approximately two years passed before her present solicitors were instructed. The applicant admitted that she did not write to either of the respondents about the problem of the garage after she and her husband discovered the problem. She states that she did confront Mr Trimboli in person and accused him of lying to her. She stated that Mr Trimboli told her that he could not do anything and that she could take him to court.

Trajce Petkovski

Mr Petkovski, in his affidavit, corroborates the applicant’s evidence concerning the purchase of the property and the inspection of the garage. He deposes as to the history of the relevant events in terms that are consistent with the applicant’s affidavit. In addition, he deposes that when the sale was completed on 2 December 1999 he was handed the keys to the property. Just prior to moving in he went to put some of his tools in the garage and opened the garage roller door with the key. He saw that there was a car parked in it. He deposes that a lady (who he believes was from unit 4) came out on to her balcony and told him that the garage did not belong to his unit and that his garage was a few doors down. He then went to the garage she had pointed out and attempted to open the garage door with the same key. He was unable to do so and the key broke in the lock. He deposes that he then asked his next door neighbour (unit 11) to show him his garage as there was no barrier between the two garages. It was then that he saw the water tank(s) in the garage and the limited space remaining. He deposes that he was unable to park his car in the garage. He deposes that he then rang Mr Trimboli and told him of the water tank(s). He deposes that he told Mr Trimboli that he had shown him the wrong garage.
In oral examination in chief Mr Petkovski confirmed that, in relation to paragraph 8 of his affidavit, he, the applicant, their daughter, his mother and Mr Joseski all attended on the inspection when they first saw the garage. He stated that the garage was not measured but he judged that it was big enough to take his car and tools. Mr Petkovski was shown a further photograph (exhibit A5) and identified the photograph as showing the area containing the water tanks, when viewed from the adjoining garage belonging to unit 11. Mr Petkovski stated that because the garage was too small to take the car and the tools he rented space in his mother’s garage elsewhere and that he has paid her $20 per week since then. Mr Petkovski stated that the car would fit in the garage but that would leave no room for his tools.
Under cross-examination Mr Petkovksi stated that he parked his Datsun Bluebird on the street rather than in the garage. He confirmed that the car had been written off in an accident two years ago. He was shown exhibit R1 and asked which was the garage he was shown. He identified the garage as the fourth garage from the left, which was the garage marked with the cross, not that marked with the circle. He denied the suggestion that the garage he was shown had a brick wall at the back. He stated that there was a wire mesh fence on one side and nothing on the other side. He stated that at the back of the garage was a wire enclosed tool storage area. Mr McManus asked Mr Petkovski to identify the garage bought by the applicant on exhibit R1. He identified the fifth garage from the right, which I marked with a red triangle. This was different from both the garage marked with the circle and the garaged marked with the cross. Mr Petkovski was shown exhibits R2, R3 and R4. In relation to R3 he confirmed that this showed his garage. From R4 he confirmed that there was space available for additional tools but stated that this had been cleared to enable him to work on the walls of the garage. He stated that that in addition to installing solid walls he was putting in a suspended ceiling to provide space for the storage of his tools. He was also shown exhibit R5, which was a photograph of his mother’s garage. He confirmed that this showed tools stored inside. He confirmed that his mother also stored property in the garage, comprising a bed, boxes and a table. The bed is a folding single bed. He confirmed that his mother does not drive or own a motor car.
Mr Petkovski could not recall being shown the contract of purchase for the property and denied being shown a plan of the property. He confirmed that he could fit his tools in the garage once his suspended ceiling is completed. He also confirmed that he has not worked for the past two years.
In response to questions from me, Mr Petkovski stated that the broken key was still in the lock on the roller door of his wife’s garage. He explained that he now locked the garage with a padlock he had installed. He initially was able to open the garage door from the inside after gaining access from the garage belonging to unit 11.
I asked Mr Petkovski if during any of the three inspections of the property he had tried to go down through the unit into the garage area via the back access door. He said no. I asked him if he did not think that this was strange. He did not agree. He stated that on each occasion that the garage was inspected, or attempted to be inspected, everybody went from the unit outside, around to the front of the garage and to the roller door. He stated that when the garage was inspected Mr Trimboli opened the access door and showed them the immediate area behind the access door but they did not go up into the unit above.
In re-examination Mr Petkovski was asked by his counsel and by me about the suspended ceiling he is constructing. He stated that he is building this out of pressed pine timber, for which he paid $3.10 per metre. He has bought 90 metres. He also stated that for a job of this nature, if he were charging for it as a tradesman, he would charge between $180 and $200 per day for his time. He stated that the job would involve about eight days work. He confirmed that the back access door in the garage area leads into the garage belonging to unit 11 and that there is no access to his wife’s garage directly from her unit.

Risto Joseski

Mr Joseski is an acquaintance of the applicant and her husband. He deposes that on or around 5 October 1999 he engaged Mr Petkovski to tile his daughter’s kitchen, bathroom and laundry. This was the first time he had met Mr Petkovski. He agreed to give Mr Petkovski a lift from his home to the unit at Canley Vale at the time of the first inspection. He drove Mr Petkovski to the unit and stayed with him during the inspection so that he could drive him back to his house to resume work. Mr Joseski deposes that Mrs Petkovska, her mother‑in‑law and her daughter also attended on this inspection with Mr Trimboli. Mr Trimboli took them all into the unit and showed them every room. Mr Joseski confirms that Mr Trimboli asked to see the garage but Mr Trimboli was unable to open the door. Mr Joseski says that several days later Mr Petkovski asked him again for a lift to the unit for a second inspection and he drove him there. Again, Mr Trimboli took those present through the unit and on this occasion opened the garage door, revealing an empty garage. Mr Joseski deposes that there was no water tank in this garage. He deposes that after this inspection Mr Petkovski made an offer for the property and paid a deposit of $250. He deposes that at no time did Mr Trimboli say that the garage that the parties had inspected did not belong to unit 10. There were no numbers on the outside of the garages to indicate which garage belonged to which unit.

Under cross-examination Mr Joseski was asked to identify from exhibit R1 which garage was inspected. He identified the garaged marked with the cross. He confirmed that only one garage was inspected. He was asked if he sure. He said that he was sure enough. Mr McManus showed Mr Joseski exhibit R2 and asked if that was the garage he had seen. Mr Joseski said no, he did not think it was. Exhibit R2 is the photograph of the interior of the garage belonging to unit 10.

Lubica Petkovska

Lubica Petkovska is the applicant’s daughter. She corroborates her mother’s account of the inspection of the garage on or about 5 October 1999 and the second inspection shortly before the completion of the sale of the property. In oral evidence in chief, Ms Petkovska said that on the first occasion her mother had said that the garage was big enough for their car and her father’s tools. In cross-examination, Ms Petkovska identified the same garage from exhibit R1 as had been identified by Mr Joseski and Mr Petkovski as the garage Mr Trimboli had shown them. She appeared to identify the same garage identified by Mr Petkovski from exhibit R1 as the garage owned by the applicant. She resisted suggestions from Mr McManus, using exhibit R2, that the garage she had seen on the inspections was the garage owned. In re-examination Ms Petkovska stated that there were no numbers on or around the garage doors and that each door was fitted with a lock half way down the roller door at the front of each garage.

Ray Trimboli

Mr Trimboli is the second respondent. At the relevant time he was employed by the first respondent as an estate agent. Mr Trimboli deposes that the first respondent was retained to sell unit 10, 19 Equity Place, Canley Vale by the then owner. He also referred to the contract for the sale of the property. This was tendered at trial by Mr McManus: exhibit R6.
Mr Trimboli deposes that his normal practice, after entering into an agency agreement with a vendor, was to obtain a set of keys from the vendor. He deposes that he has reviewed the sales records held by the first respondent and has ascertained that no other unit in the block at 19 Equity Place, Canley Vale, was listed for sale at the time. He deposes that at an inspection his invariable practice would be to have the necessary keys with him. He also deposes that he would make sure that the correct garage had been inspected by checking the number on the door of the unit with the number on the garage. However, Mr Trimboli states that he has no recollection of showing unit 10 to the applicant, nor any member of her family, although as the selling agent, if the unit was inspected he would have accompanied any such inspection. Mr Trimboli deposes that as no other unit was for sale he would not have had keys for any other unit or garage. Mr Trimboli confirms that the property was sold to the applicant at a price of $90,000. Mr Trimboli no longer works for the first respondent.
In oral examination-in-chief Mr Trimboli stated that the first respondent was not the managing agent for any other unit in the block at 19 Equity Place at the relevant time. No other property in the block had been listed with the first respondent for either sale or lease. He also stated that it was most unlikely that a garage key he held would open more than one garage door in the same block.
Under cross-examination Mr Trimboli said that if there were no numbers on the garages at the block he would have checked the deposited plan to establish which was the correct garage. He could not, relying upon his own recollection, confirm that that is what he did do, but stated that that was his practice. Mr Trimboli doubted that he could have had the wrong garage key in his possession but agreed with me that this was possible, in the sense that anything was possible. He had no independent recollection. He could not remember having a confrontation with the applicant at Fairfield following the sale of the property and agreed with Mr Evatt that if such a confrontation had occurred he would have remembered it.

The view

Because of some conflict of evidence about the location of the relevant garages and some uncertainty in the evidence about the interior layout of the garage areas and rear access to the garages, I considered it desirable to conduct a view. In addition, I considered it desirable to inspect the modification works to the applicant’s garage being carried out by Mr Petkovski, with a view to establishing the cost and nature of those works. The view was conducted on site in the presence of the applicant, her husband and her daughter, as well as Mr McManus and the solicitor for the applicant.
Upon inspection, it was apparent that all of the garages, with the exception of the garage owned by the applicant, were essentially the same. They comprise space for a single motor vehicle with a wire mesh wall on one side and nothing on the other side, so that two properties share an open space between two wire mesh walls. In the centre of this space, roughly on the border between each set of two garages is a rear access door which simply leads to the back of the building. There is no internal access to dwelling units from the garages. The garage owned by the applicant is different in that instead of a wire mesh storage cage located at the rear of the garage there is a brick wall with a set of doors to the right, which I was told contained the two water tanks. We were unable to open the doors to this area to check this.
Mr Petkovski is in the course of modifying the applicant’s garage area by building solid walls on both sides of the garage and also building a false wooden ceiling running most of the length of the garage. Mr Petkovski is also building shelving on the side wooden walls. He stated that this was to enable him to store his tools and also to provide security in the garage area. Mr Petkovski stated that the whole job involved 11-12 days work, and that he had worked the equivalent of eight full days on it so far. The work was incomplete. He told me that within the water tank area there was approximately six inches clearance to the back wall from the tanks and about two feet clearance to the brick wall to the front of the tanks.
We were able to ascertain by inspection that the garage area belonging to unit 7 is a typical garage area. We also noted on inspection that there was no broken key in the lock on the roller door of the garage belonging to unit 10. However, we also noted that Mr Petkovski had installed a bolt and padlock at the bottom left hand corner of the roller door, which he stated was necessary because he had no key for the roller door.
Mr Petkovski stated that the wire storage cage which exists in each of the other garages is not very secure and he would have put a solid covering around the cage in order to provide security and privacy for his tools in storage. He stated that he would also have put in a suspended ceiling and shelving within the caged area. I estimated that the area occupied by each wire mesh cage was about 20 per cent of the whole area in each garage. The length of the garage areas was noted. A standard garage area has a length of 17 feet, 11 inches, or 5.45 metres from the door to the wire cage. The garage belonging to unit 10 has a length of 16 feet or 4.9 metres to the brick wall in front of the water storage tanks. The difference is 55 centimetres. We observed that there was room in the garage belonging to unit 10 for a small car.

Submissions

Mr Evatt did not press the contractual and negligence claims. He does press the claim based upon a breach of s.52 of the Trade Practices Act. Mr Evatt submits that the issue is essentially one of fact. He submits that the applicant should succeed if she can establish that she was shown the wrong garage and was induced thereby to enter into the contract of purchase of the property. He submits that it does not matter that some other person (for example, the solicitor who acted for the applicant on the purchase) may also be at fault: Henville v Walker (2001) 206 CLR 459. Mr Evatt accepts that the applicant is under a duty to mitigate her loss and submits that the work being carried out by the applicant’s husband meets that duty of mitigation. He conceded that the title of the property is in the applicant’s name only and that the tools stored in the garage belong to the applicant’s husband. He submits that the applicant’s husband could also have been an applicant, but he is not. Mr Evatt points out that Mr Trimboli cannot remember what occurred on the sale of the property and submits that the evidence presented for the applicants as to what occurred should be accepted.
Mr Evatt concedes that the applicant has a problem in terms of evidence of loss. The applicant has obtained a valuer’s report but it was served very late. In view of my ruling that I would permit the first respondent to present its own expert valuation evidence if Mr Evatt sought to rely upon the applicant’s valuer’s report served on the respondent immediately before the hearing, he did not rely on the report. I have not seen it. Instead, the applicant relies upon the available evidence of economic and non economic loss. The evidence of economic loss is the money the applicant’s husband has paid to his mother for the rental of space in her garage and the cost of the renovations to the garage area. To this Mr Evatt would add damages for inconvenience and vexation.
Mr McManus presented written submissions and also made oral submissions. He points to inconsistencies in the applicant’s evidence, in terms of identification of the relevant garages from photographs, Mr Petkovski’s claim that the broken key was still in the lock in the roller door of the garage to unit 10 (it was not on inspection), and Mr Petkovski’s claim that he was unable to park his car in the garage (the applicant, under cross-examination, admitted that the car had been parked in the garage on occasion). There were other more minor inconsistencies. Mr McManus also submits that the applicant’s explanation of her delay in bringing proceedings is unsatisfactory. He submits that I should conclude that the applicants were shown the correct garage and that they simply missed the existence of the water tanks, given that they were concealed behind a brick wall. He submits that the applicant, if dissatisfied with the purchase, should have brought proceedings against her solicitor. He submits that the applicant’s claim, if true, draws attention to fault on the part of the solicitor acting for her, which breaks the chain of causation. He submits that, in any event, no liability should be found against Mr Trimboli as there is no evidence that he acted intentionally: Yorke v Lucas (1985) 158 CLR 661.
On the question of loss or damage, Mr McManus submits that the appropriate measure of damage is loss of value and notes that no valuation evidence has been presented. He submits that on the weight of evidence I should conclude that there has always been room in the garage belonging to unit 10 for the storage of all of Mr Petkovski’s tools and that, after Mr Petkovski’s car was written off in an accident, he had no further need for space in the garage for a motor vehicle. He also submits that Mr Petkovski has no need for a new work vehicle, given that he has been unable to work for the last two years due to an injury. He submits that I should not award any amount for the cost of renting space in Mr Petkovski’s mother’s garage as this was unnecessary and the arrangement is not an arm’s length one. He further submits that the awarding of damages for the cost of the renovations to the garage of unit 10 would be unsafe, as the suspended ceiling being built by Mr Petkovski could have been constructed straight into the concrete ceiling of the garage and the construction of solid walls is unnecessary. He also noted that Mr Petkovski would have undertaken renovations to make the wire cage secure, in any event, if he had have had one.
Mr McManus opposes any award for non-economic loss on the basis that this is trivial and that there has been significant delay in bringing proceedings. He submits that no amount should be awarded for vexation or, if an amount is awarded, it should not be more than $1,000: Zoneff v Elcom (1990) 94 ALR 445 at 467 and 469.
Mr McManus submits that whatever the outcome in respect of the first respondent, Mr Trimboli should not be found liable and should be awarded his costs, which he submits should be taken to be half the costs of both respondents.

Reasoning

The present application is clearly within the limited jurisdiction of this Court under the Trade Practices Act in that the amount that could be awarded is certainly less than $200,000. The issues are:
a)Did the respondents made false representations contrary to the Trade Practices Act?
b)Did the applicant rely upon those representations if so made?
c)Has the applicant suffered loss or damage as a result of such reliance?
d)What is the effect of the conduct of the applicant and her solicitor?
Section 52(1) of the Trade Practices Act provides that:
A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
Section 52(2) provides that:
Nothing in the succeeding provisions of [that] division of the Trade Practices Act shall be taken as limiting by implication the generality of sub section (1).
Section 52 is a comprehensive provision which does not purport to create liability, but rather establishes a norm of conduct. There is no real doubt that s.52 applies to the promotion and sale of land as well as goods or services, although s.53A makes specific provision in relation to false representations and other misleading or offensive conduct in relation to land.
The respondents contend that no false representations were made in this matter. The difficulty they face, however, is that Mr Trimboli cannot remember what happened. The evidence of the applicant, her husband, her daughter and Mr Joseski is that they were shown the wrong garage on two occasions by Mr Trimboli. Their accounts are generally consistent and plausible, although it is not apparent how Mr Trimboli came by a key which opened the garage door to the unit 7 garage but which did not open the door to the garage belonging to unit 10. The applicant was unable to identify correctly the garage she says she was shown from exhibit R1 but neither was she able to correctly identify her own garage from the photograph. Her other three witnesses all identified the garage belonging to unit 7 as the garage they were shown. It appears from the view that none of the applicant’s witnesses correctly identified from exhibit R1 the garage belonging to the applicant. To the extent that that means anything, it indicates how readily one can be confused in identifying a garage from a row of garages which, when the doors are closed, have no distinctive individual features. There is no numbering on the garages. It would be very easy to make a mistake.
Mr Trimboli accepted my suggestion that it was possible, in the sense that anything is possible, that he got the wrong key from the vendor. He thought that he would have checked the location of the correct garage from the deposited plan but he has no independent recollection that he did so. Unfortunately for the applicant, Mr Petkovski’s evidence that the key he obtained upon settlement fitted the lock of the garage belonging to unit 7 but broke in the lock of the garage belonging to unit 10, could not be verified because no part of the key remains in the lock. However, the existence of a bolt and padlock at the base of the door, in order to lock the door, supports his and the applicant’s evidence that they have no key for the lock in the roller door.
Each of the applicant’s witnesses were adamant that they were shown a garage which contained a wire mesh storage area at the back. On the balance of probabilities I find that this is what happened. Probably, the applicant and other members of her family and Mr Joseski were shown the garage belonging to unit 7. They were not shown the garage belonging to unit 10. I accept the evidence of Mr and Mrs Petkovska that they found the property attractive because the garage area had an enclosed area in which tools could be stored as well as a space sufficient to take the motor vehicle that they then owned. I find that the applicant was induced by Mr Trimboli’s representation that the garage inspected was the garage that belonged to unit 10, to enter into the contract to purchase the property. There is no evidence that Mr Trimboli knew that the representation was false when he made it. Mr Trimboli was, of course, the human agent through which the first respondent acted in promoting the sale of the property. However, in the absence of any evidence that Mr Trimboli was aware that his representations were false at the time that he made them, I am unwilling to conclude that he was knowingly concerned in a contravention of s.52. His lack of knowledge does not excuse the first respondent from vicarious liability but it does excuse Mr Trimboli personally.
The applicant seeks damages under s.82 of the Trade Practices Act. An applicant, under s.82, must show that she has suffered loss or damage by the conduct of another person that constitutes a contravention of Part V of the Trade Practices Act. This has been interpreted to mean that the loss or damage must be caused by reason of or as a result of that contravening conduct. Accordingly, it is only loss or damage that is caused by the contravening conduct which can be recovered under s.82. That is, there must be a causal connection between the conduct and the loss for which the applicant seeks to be compensated. Generally, the causal link will not be broken because of a failure on the part of the applicant to take reasonable care: Neilsen v Hempston Holdings Pty Ltd (1986) ATPR 40-686. The applicant and Mr Petkovski both denied looking at the plan attached to the contract of sale. A careful examination of that plan would have identified that the garage they had seen was not the right garage. However, I accept their evidence that they did not look at it. The respondents contend that the chain of causation is broken by the apparent failure of the solicitor who acted for the applicant on the sale to draw her attention to the plan. On the available evidence, I am unable to conclude that there was any material failure on the part of that solicitor. The solicitor was acting upon instructions and had no reason to believe that the applicant may have been shown the wrong garage. In addition, the applicant and her husband are Macedonian immigrants and their knowledge of English is very limited. There may have been communication difficulties. I find that the chain of causation was not broken by any act or omission of the solicitor acting on behalf of the applicant on the sale.
It remains for me to determine what loss has been suffered by the applicant and what appropriate damages should be paid.
Section 82 does not itself set out how a court is to assess the amount of any loss or damage suffered by an applicant. There is no requirement that loss or damage be assessed in any different way than under the general law and neither is there any necessary restriction to common law conceptions as to the nature and extent of any damages recoverable. Financial loss as well as physical injuries to persons or property is clearly recoverable. It seems well settled that the measure of damages under s.82 approximates the damages recoverable in tort and in most cases, especially those involving misleading or deceptive conduct and the making of false statements, the measure of damages in tort is appropriate. In Brown v Jam Factory Pty Ltd (1981) 53 FLR 340 at 351, Fox J set out the proper approach to the assessment of damages:
The correct way to approach the assessment of damages in this case, in my view, is to compare the position in which the applicants might have been expected to be if the misleading conduct had not occurred with the situation they were in as a result of acting in reliance on that conduct.

In this case I was not presented with any valuation evidence. I do not know if there is any difference in value between what the applicant thought she was getting and what she in fact got. However, the applicant’s husband, at the relevant time, was working as a tiler and had (and retains) a large number of tools of trade. At the time of the purchase of the property they also owned a Datsun Bluebird motor vehicle. The evidence also establishes to my satisfaction that the garage belonging to unit 10 was not large enough to accommodate both the tools and the motor vehicle. The weight of evidence (and the view) establishes that the garage was large enough to accommodate either the tools or the motor vehicle. The garage area was, prior to the renovation works being carried out by Mr Petkovski, insecure but so would have been the garage area belonging to unit 7. Mr Petkovski conceded as much. He would have needed to carry out renovations to make the wire cage area secure in any event. However, if the applicant had got what she expected, Mr Petkovski would have only had to secure the wire cage area, not the whole garage. I accept Mr Petkovski’s evidence about the cost of the work he is undertaking, which I estimate to be $2,293. He is entitled to recover that amount, discounted by 20 per cent to reflect the work that would have been necessary to secure the wire cage area in any event.
Given the lack of security in the garage area, it would have been necessary for Mr Petkovski to store anything of particular value in his mother’s garage while he was carrying out renovation work to the wire cage area, if there had been one. It is possible that some tools might still have had to have been stored at his mother’s garage, if the main garage area at unit 10 was occupied by the motor vehicle. I accept Mr Petkovski’s evidence that he is paying $20 per week to his mother for the use of space in her garage. That is not an arm’s length agreement, but $20 per week is a modest sum for the rental of such space. If the applicant had purchased property containing a garage with a wire mesh storage area it would have taken Mr Petkovski around a month (working part time when he was not engaged in his business) to secure the wire mesh area.
About one year after the purchase of the property the motor vehicle belonging to the applicant and Mr Petkovksi was written off in an accident. Thereafter, Mr Petkovski did not need a work vehicle because he was injured and could not work. He has not acquired any other vehicle since then. If, as Mr Petkovski contends, he could have stored all of his tools (or at least all of his more important tools) in the wire mesh are, he would have had no continuing need for space in his mother’s garage once the wire mesh area had been secured. Because the garage belonging to unit 10 did not have a separate storage area, Mr Petkovski reasonably required access to his mother’s garage until the time that his car was written off.
Mr and Mrs Petkovski are married and in all probability their finances are merged. The applicant is entitled to recover the cost of Mr Petkovski having to rent space in his mother’s garage for 48 weeks, that is, the period from the notional completion of renovation works to secure the wire cage storage area, and the time when the motor vehicle was written off.
I also accept that the applicant has suffered aggravation and inconvenience as a result of not getting the garage she anticipated.

I accept that the problem over the garage caused problems between her and her husband and caused stress and anxiety. However, the harm caused is quite modest and the applicant’s husband is now dealing with the problem of tool storage. I will award $1,000 by way of non economic loss.
I will also award interest up to judgment at the rate of 10.5 per cent, from the date of the sale of the property. Although the applicant did significantly delay the commencement of these proceedings, I accept her evidence that she placed the matter initially in the hands of the solicitor who had acted on the sale of the property, but that solicitor advised that she was not in a position to pursue the matter. The applicant then put the matter in the hands of another solicitor who she became dissatisfied with. It was only relatively recently that the applicant put the matter in the hands of her present solicitors. In my view, the actions of the applicant were not unreasonable and the resulting delay was not unreasonable. The conduct of the applicant does not disentitle her to damages or pre-judgment interest.
I will hear the parties as to costs.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 15 September 2003