Savage v Drivas Lakes P/L
[2014] QMC 2
•24 January 2014
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Savage v Drivas Lakes P/L [2014] QMC 2
PARTIES:
CARMEL ELIZABETH SAVAGE
(plaintiff)
v
DRIVAS LAKES PTY LTD
(defendant)
FILE NO/S:
M13244/10
DIVISION:
Magistrates Courts
PROCEEDING:
Claim
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
24 January 2014
DELIVERED AT:
Brisbane
HEARING DATE:
9 September 2013; 10 September 2013
MAGISTRATE:
Manthey BR
ORDER:
Judgment for the plaintiff
CATCHWORDS:
CLAIM – BREACH OF CONTRACT – Whether damages were suffered from a change of premises
COUNSEL:
Evans for plaintiff
Coveney for defendant
SOLICITORS:
McKays for plaintiff
Herbert Geer for defendant
This is a claim for damages by the Plaintiff for breach of contract in respect of a lease.
At the commencement of the Trial the court was informed that Liability was admitted and the only issue for determination was the quantum of the damages to be awarded to the Plaintiff.
I have read and examined in detail the relevant pleadings and the exhibits. I have considered the written submissions and the numerous authorities relied upon by each party. I have had the opportunity to peruse the transcript of proceedings and I note that both legal representatives refer me to the relevant passages of the transcript throughout their submissions.
The Plaintiff Carmel Elizabeth Savage gave evidence as did Wayne Peter Leslie who was the commercial property manager employed by McGees Property at the time.
The Defence did not call any evidence after I accepted Mr Evans’ objections and ruled that the proposed witness Mr Sorbello could not give evidence.
The Onus
In these proceedings the plaintiff bears the onus of proof.[1] In relation to damages a plaintiff who sues on a breach of contract bears the onus of showing that[2]:
a. The loss or damage was caused by the defendant’s breach (i.e. the loss of the bargain resulted in the damage); and
b. The loss or damage is not too remote.
[1] With the applicable standard being the balance of probabilities test as explained in Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 in particular; Neat Holdings Pty Ltd v Karajan (1992) 110 ALR 449 at 450.
[2]Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286
Facts
The following facts are uncontroversial.
· The plaintiff is a sole trader and since 2006 has run, and continues to run, a ladies dress shop under the name of “Miss Savage”;
· In September 2010, her lease was due to expire and she received notice from her landlord re: to exercise an option to extend the lease;
· On 18 August 2010, the plaintiff contacted the defendant’s letting agent (Wayne Leslie) and inspected the defendant’s shop the (Drivas Premises). At 9.28pm that night, the plaintiff emailed the agent with an offer to rent the shop by way of executing and providing an Agreement to Lease document in the form she was asked to use.
· The following afternoon, the defendant’s agent emailed a formal Letter of Agreement for the plaintiff to sign to which there were some changes, but at 5.22pm the final version was signed by the plaintiff and emailed to the defendant’s agent.
· On that same day (19 August 2010) the plaintiff gave written notice to her current landlord that she would not be exercising the option to extend her previous lease.
· On 20 August 2010, the Offer Letter was forwarded by the agent to the defendant. The agent was then verbally advised that the defendant approved the offer. This approval was communicated to the plaintiff via email and she was asked to pay a deposit.
· At 3.19pm that day, the plaintiff transferred the deposit as requested which the Agent acknowledges receipt of on 23 August 2010;
· On 20 August 2010 the plaintiff posts a letter to her former landlord, which she had pre-prepared and dated 19 August 2010, advising that she would not be renewing the lease for her former premises;
· On 24 August 2010, the plaintiff asked the agent to place a “leased” sign in the shop window. The agent advised later that day that this had been done.
· On 28 August 2010 she become suspicious that there may be issues over the lease after receiving a text message from a friend advising that another person is being shown through the Drivas Premises and she emailed the agent;
· On 30 August 2010 she is informed by Leslie that the “landlord has inadvertently accepted an offer to lease” from another agent and that her proposed lease for the shop would not be proceeding;
· On 10 September 2010, the defendant refunded the plaintiff’s deposit;
· On 30 September 2010 her lease of the Former Premises expired and she was left without any premises until the commencement of her New Premises lease on 7 October 2010;
· From 7 October 2010 to 25 October 2010 she is unable to resume normal trading due to the need to locate new premises, sign a new lease and fitout the New Premises to a standard that is appropriate for her business.
The Plaintiff’s claim is that she lost the bargain being the right to occupy and use the Drivas Premises from 23 September 2010 and seeks damages for breach of contract consisting of a number of “heads” of damage which I will address later.
Mr Evans at the commencement of proceedings stated:
There is no claim for loss of goodwill, diminution in value of the business, or similar types of claim. It is not a claim for loss of profits, per se. It is a claim comparing what she has, in fact, suffered as a loss and been forced to pay or not receive, compared to what she would’ve paid had her original bargain proceeded.[3]
[3] T 1-22
The law (damages)
In his submissions Mr Evans referred me to a number of authorities which I accept as stating the applicable law in this regard[4]and I will refer to the relevant passages.
[4] Closing Submissions - Plaintiff 41 to 56
As this claim relates to a lease the ordinary principles of contract law apply to the breach of a lease[5]. The primary objective of damages in contract is to compensate a party for the actual loss suffered as a result of the other party’s failure to perform the contract, [6] being to put the injured party in the position they would have been in had the contract been performed.[7] 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”.[8]
[5]Gumland Property Holdings Pty Limited v Duffy Bros Fruit Market (Campbelltown) Pty Limited (2008) 234 CLR 237 at [58], Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 at 29 per Mason J.
[6]The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 98
[7]Robinson v Harman (1948) 1 Ex 850
[8]Fink v Fink (1946) 74 CLR 127 at 143; see also New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 at [72].
Nominal damages may still be awarded if a person breaches the contract (and no more), and substantial damages may be awarded even if they unable to be precisely calculated when a party proves that they suffered a quantifiable loss.[9]
[9]Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286 at 301.
The law with respect to damages for breach of contract was succinctly summarised in The Commonwealth v Amann Aviation Pty Ltd where Brennan J stated:
“Where a contract is rescinded for breach, the innocent party loses the benefit of performance of the contract so far as the contract remains unperformed. And there may be other losses resulting from the breach. The rule in Hadley v Baxendale prescribes the condition on which damages can be awarded in respect of a loss sustained by reason of a breach of contract:
“Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, ie, according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.”
......
The measure of damages prescribed in Robinson v Harman ensures that the parties to the contract are kept to the benefits and the burdens of the contract they have made: the plaintiff recovers no more than the net benefit he would have received under the contract; the defendant acquires no right to profit by his breach.”
I note where the Queensland Court Appeal stated in Riggall v Thompson[10]:
“…the correct approach to damages was to allow the costs which flowed from the breach rather than costs which would have been incurred in any event…”
[10] [2010] QCA 144, at [15].
Reliance damages were awarded in Commonwealth v Amann Aviation Pty Ltd[11]where the onus of proof in such cases was considered at some length, Mason CJ and Dawson J stating[12] :
“… a plaintiff has a prima facie case for recovery of wasted expenditure once it is established that the expense was incurred in reliance of a promise of the party in breach, there being a failure of performance by that party … it is just and fair that the repudiating party should bear the onus of showing that the party not in breach would have made a loss on the contract.”
[11] [1991] HCA 54; 174 CLR 64.
[12] at 89.
I note that Amann Aviation was referred to in the following passage in Olympic Holdings v Lochel[13]where McClure J stated:
A plaintiff is entitled to damages for loss of any foreseeable chance or opportunity of benefit that can be causally linked to the breach. Recovery extends to the loss of a chance which was not promised (as in this case) but which would nevertheless have been created by performance of the contract: Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54 ; (1991) 174 CLR 64 at 91–92, 102, 118–120; Sellars v Adelaide Petroleum NL [1994] HCA 4 ; (1994) 179 CLR 332 at 349.
[13] [2004] WASC 61 at [121] – [123].
In Commonwealth of Australia v Silverton Ltd[14] which concerned the loss of a sublease, Higgins J applied the he ordinary principles of contract law relating to assessment of damages stating:
[14] (Unreported, Supreme Court of the Australian Capital Territory, 1997, Higgins J).
That is, it is the loss of the bargain which is to be compensated for, see Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17.
It follows that the Commonwealth is entitled to be placed, so far as money can do it, in the position it would have been in had the sublease continued uninterrupted. That entitles it to recover wasted expenditure and expenditure in excess of that required or likely to have been required if the sublease had continued. In so doing, it may be assumed that expenditure undertaken to enable use to be made of the Centre, would have represented value for money compared with equivalent accommodation elsewhere, see The Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64.
This is not a case in which "loss of profits" is relevant.
What is relevant is whether any expenditure incurred flows from the breach or whether it is too remote, see Koufos v C Czarnikow Ltd [1969] 1 AC 350.
Of course, had alternative accommodation of equivalent standard not been available elsewhere at the same or less real cost, the Commonwealth would be entitled to recover the difference. Further, temporary relocation expenses, if they would not otherwise have been incurred, are also recoverable. Incidental damage, such as interest foregone on that expenditure, is also, in principle, recoverable.
It is important to allow only additional costs and expenses, otherwise a plaintiff will be overcompensated, see, for example, Baltic Shipping Company v Dillon (1993) 176 CLR 344. The latter case denies recovery to the Commonwealth for mere disappointment, inconvenience or loss of aesthetic appeal. Indeed, no such claim is made.
Although damages are calculated by reference to the loss caused by the breach, I note that not all loss which can be causally linked to the breach is compensable. Loss will not be the subject of an award of damages if it is too remote. The rule enunciated in Hadley v Baxendale[15] is that a loss caused by a breach of contract will not be too remote if it:
“… may be fairly and reasonably considered either [as] arising naturally, that is, accordingly to the usual course of things, from such breach of contact itself or . . . may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.”
[15](1854) 9 Exch 341 at 354.
This rule has been restated, in C Czarnikow Ltd v Koufos,[16] as requiring that:
“… on the information available to the defendant when the contract was made, he should, or the reasonable man in his position would, have realised that such loss was sufficiently likely to result from the breach of contract to make it proper to hold that the loss flowed naturally from the breach or that loss of that kind should have been within his contemplation.”
[16][1969] 1 AC 350 at 385.
I note that the above passage has been adopted in a number of decisions of the High Court of Australia, including Wenham v Ella.[17] This case also illustrates that there is a duty on a plaintiff to take reasonable steps to minimise losses.[18] In saying that, a defendant may establish that a plaintiff has acted unreasonably by failing to take reasonable steps to reduce the plaintiff’s loss[19] and the burden of proving a failure to mitigate rests with the defendant.[20]
[17](1972) 127 CLR 454 at 471–2 per Gibbs J.
[18] Ibid at 463
[19] See e.g. Sotiros Shipping Inc v Sameiet Solholt (The Solholt) [1983] 1 Lloyd’s Rep 605 at 608
[20] See e.g. TC Industrial Plant Pty Ltd v Robert’s Queensland Pty Ltd (1963) 180 CLR 130 AT 138.
The Evidence
The evidence clearly shows that the reason the plaintiff was seeking to move from her Former Premises was to expand so as to include a sublease to a hairdresser within her shop in order to bring in more customers for longer periods into her shop which had a consequence increase in trade.
I accept the Plaintiff’s evidence that the Drivas Premises was particularly suited to this expansion with very little fit out or cost being required, and that the agent Leslie was informed of this. In relation to the New Premises I accept that this property was the Plaintiff’s only viable option on such late notice despite the fact that she had a number of concerns which Mr Evans referred to in his closing submissions:[21]
[21] Closing Submissions - Plaintiff, at paragraph 34
i. It was “cement pit” and “completely substandard” compared to the Drivas Premises;
ii. It required a significant fit out, as opposed to just being able to effectively walk into the Drivas Premises;
iii. Was larger than she needed, as her stock levels then and now are the same. Hence, the extra space was just an additional cost or burden. A burden the she continues to carry;
iv. She would have to, and did, retrench her full time shop assistant so that she could pay for the additional costs that she had to incur – being costs that she would not have incurred had she not lost the right to occupy the Drivas Premises as per the Agreement to Lease;
v. It did not come with a car park, which had been included in the Drivas Lease;
vi. Its location was not in the prime spot for walk by trade, being that location of the Drivas Premises, which was opposite the only significant car parking in the area;
I accept that the Plaintiff moving into the New Premises was reasonable, and I note that Mr Coveney conceded this when he stated “I don’t think anyone suggests for a moment that Ms Savage was under – was being unreasonable by continuing her business in the next premises.”[22]
[22] T 1-46, at para 35
In relation to both the Drivas Premises and the New Premises I accept the evidence of Wayne Leslie, agreeing with the Mr Evans’ assessment of his evidence in his closing submissions[23]:
[23] Closing Submissions - Plaintiff, at paragraph 32-33
32. In particular, Leslie gave evidence:
a. That the Drivas Premises:
i. Was previously a ladies dress shop;
ii. Had a particularly suitable existing fitout which required almost no alteration for the plaintiff to occupy;
iii. Was located only a few doors down the street, on the same side of the road, as the plaintiff‟s Former Premises;
iv. By reference to the admitted documents that he confirmed was the relevant agreement to lease, came with a car park;
v. Was larger than the Former Premises, such that it could accommodate the plaintiff‟s planned expansion of her business to include an area that was to be sub-let to a hairdresser.
b. That the Current Premises:
i. Were not immediately suitable to the plaintiff, being essentially an “empty shell as such they had no fittings or fixtures and it was a concrete floor so the premises would require substantial amount of fit-out to get them ready for occupation”;
ii. Were significantly larger than the Drivas Premises, being “way too large for her use and not cost effective. In other words it was over her budget”;
iii. Were on the other side of the street, which is some distance from the Former Premises;
iv. Were not opposite the primary car parking area for the shopping precinct.
33. In cross examination, Leslie also gave evidence to the effect that:
a. He had looked for other premises to offer the plaintiff;
b. The only one that he thought came close to being suitable in the area was the New Premises;
c. The Plaintiff would not deal with McGees, and him, in finding the New Premises which he put down to the bad taste that the breach of the Agreement of Lease by the defendant had caused.
Plaintiffs Claim – Heads of Damage
The Plaintiff claims damages under the following heads:
Holding Costs
The Plaintiff claims the amount of $6,811.05 being the costs associated with having to make minimum purchase orders despite being closed for a period, and then having to sell the items she was required to buy at a discount after she re-opened.
Storage and Transportation Costs
Mr Coveney in his closing submissions concedes this claim.[24]
[24] Closing Submissions - Defendant, at paragraph 39
Additional Lease Costs
The Plaintiff claims the amount of $39,287.42 being the additional rent that she has had to incur as compared to what she would have paid had the defendant completed on the bargain and she entered into the Drivas Premises.
Additional Car Parking Costs
The Plaintiff claims the amount of $2,497.36 being the costs she was forced to obtain as the Current Premises did not have a car park, whereas the Drivas Premises came with two car parks.
Additional Fit Out Costs
The Plaintiff claims the amount of $28,079.49 being the additional amount that she was forced to pay to bring the Current Premises up to scratch, as opposed to the very minimal work that was required to occupy the Drivas Premises.
Interests Costs
The Plaintiff claims the amount of $10,759.08 being her additional borrowing costs which she was forced to put on credit cards until she paid them off.
Loss of Revenue and Trade
The Plaintiff claims the amount of $14,099.00 being the loss of revenue that she would have receipted during the period she was closed.
In his Closing Address under the heading titled “The Evidence”[25] and in his submissions in Reply under the heading titled “Heads of Damage”[26], Mr Evans addresses each of the heads of damage, directing me to the relevant transcript passages, and setting out his reasons why I should accept the Plaintiff’s version. His submissions were concise and addressed each of the heads of damage.
[25] Closing Submissions - Defendant, paragraphs 29 to 40
[26] Plaintiff’s Submissions in Reply, paragraphs 21-73
Defendant’s Case
The Defence did not call evidence.
Mr Coveney in his Closing Address under the heads of damage titled “Stockholding costs”, “Additional Lease Costs and Car Parking”, and “Fit out costs and interest” submitted the reasons why each of these claims should be rejected.
It would appear from the evidence and the pleadings that the defendant raises two defences (for which they bear the onus):
a. Asserting[27] that any damages claimed are unreasonable in the circumstances; and
b. The pleaded Betterment Argument[28] where the defendant bears the onus of showing that the relevant “commensurate benefit” occurred as a matter of fact.
[27] Per Walsh JA in Currie v Dempsey [1967] 2 NSWLR 532 at 539 to the effect that “He who asserts must prove” what they assert
[28]pleaded in paragraph 8(c) which is then referenced again in 9(d)
Damages unreasonable?
As I have stated above, I have accepted the submissions of Mr Evans in relation to damages and for those reasons I find that the damages claimed are reasonable, and I reject the Defendant’s submissions in this regard.
Betterment Argument
In Harbutt’s Plasticine v Wayne Tank & Pump Co Ltd[29] Ord Denning MR considered the principle of “betterment” stating:
But when this mill was destroyed, the plasticine company had no choice. They were bound to replace it as soon as they could, not only to keep their business going, but also to mitigate the loss of profit (for which they would be able to charge the defendants). They replaced it in the only possible way, without adding any extras. I think they should be allowed the cost of replacement. True it is that they got new for old: but I do not think the wrongdoers can diminish the claim on that account. If they had added extra accommodation or made extra improvements, they would have to give credit.
[29] [1970] 1 All ER 225.
The onus is upon the defendant to prove the improvement or betterment.[30] In the present case the betterment argument consists of making a comparison between the New Premises and the Drivas premises, not a comparison between the Former Premises and the New Premises. Mr Evans submits that the betterment argument should fail for the following reasons[31]:
[30]Roberts v Rodier & Ors [2006] NSWSC 282; Thomas v Powercor Australia Limited [2011] VSC 586; Hardware Services Pty Ltd v Primac Association Limited [1988] 1 Qd R 393.
[31] Closing Submissions – Plaintiff.
63. The defendant is unable to link any increase in profit to the change in location of the plaintiff‟s business. This was not suggested in any way at trial.
64. No suggestion to this effect was put to the plaintiff in cross examination.
65. In fact, the increase in profit that she made over the following years could be attributed to a number of factors. The unchallenged evidence points to the fact that this increase in profit would have been made had she been in the Drivas Premises and moreover suggests that had she occupied the Drivas Premises it would have been greater. She has been conservative in this proceeding by not seeking to claim for this potential loss.
66. Indeed, the evidence of the plaintiff about increasing her trade by having a hairdresser in her store was not challenged. This hairdresser concept would have existed in both the Drivas Premises and the New Premises. It did not exist in the Former Premises so any comparison with the Former Premises is not a fair comparison. It would be misleading as it would be comparing different types of businesses.
67. Further, the evidence of Wayne Leslie was to the effect that having larger premises does not mean that higher profit levels would result.
68. It is unchallenged that the plaintiff’s stock levels remained unchanged. Hence, all that occurred with the plaintiff being force to have larger premises, being the New Premises, was that had to support a greater expense burden.
69. In addition, the evidence supports the view that it was the Drivas Premises that was the more suitable property. This is supported by the fact that:
a. The location of the Drivas Premises was superior in that it had higher exposure and traffic levels from being directly across from the Stones Corner Shopping Village;
b. The Drivas Premises due to its smaller size, would have had less overheads;
c. The plaintiff carried the same stock levels as she did in the Former Premises.
70. All of the evidence points against any betterment.
71. Regardless, the defendant failed to discharge its onus as no evidence was lead in this regard.
72. Lastly, the argument even if the court were to accept that a discount should be made for “betterment” by the Plaintiff, no effort whatsoever has been made to qualify same. It is, at its highest, purely speculation.
Speculation Argument
73. This defence is incorrect in law[32].
[32] As the court has an obligation to determine damages, even if speculative in nature; it does only to weight. Fink v Fink (1946) 74 CLR 127 at 143; see also New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 at [72].
74. It is also inaccurate in fact as the plaintiff has given evidence of her continued occupation of the New Premises since 7 October 2010 and of the actual loss that she has suffered.
75. There is little, if any, speculation required by the court as it is uncontested evidence that she still occupies the New Premises and of the loss that she has suffered by not having occupied the Drivas Premises (as per her bargain).
76. Regardless, damages often require a degree of speculation.
77. Insofar as the damages claimed in this case are speculative, this does not prevent them from being recoverable.[33] Indeed the court has a duty to seek to make an appropriate award, even if the quantification of that award is hard or involves a degree of speculation.
[33]Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83.
I agree with these submissions. The betterment argument is just not supported by the evidence and is purely speculative, the defendant failing to discharge its onus in this regard. I reject it outright.
Mr Evans submits that:
1. The plaintiff relies upon its closing submissions and re-iterates for clarity that:
a. Liability has been admitted such that paragraphs 1 to 18 and 22 of the Amended Statement of Claim are admitted. Hence, the admitted facts are as set out therein;
b. The fact that non-admissions were pleaded by the defendant with respect to damages is not only obvious on the face of the pleadings but were, in the view of the plaintiff, ruled upon by the Court as such when the Court upheld the objections made to the defendant leading evidence from Mr Sorbello;
c. The alleged limited inaccuracies in the closing submissions are not agreed to by the plaintiff and make no difference to the force of the closing submissions.
2. Moreover:
a. The defendant did not call or produce any admissible evidence;
b. The defendant’s cross-examination of the plaintiff’s witnesses was limited.
3. Indeed, the defendant expressly stated:
“Now, today’s trial isn’t going to run on my side adducing evidence which is going to contradict what the plaintiff may or may not have spent. So to that extent, we don’t go any further than what a non-admission gets us in any event, which is no ability to lead evidence to contradict that.”
4. Regardless of the above, paragraphs 23, 24, 25, 26,7 27, 28, 34, 41,8 42, 54, 55, 65 and 66 of the defendant’s submissions raise matters of fact for the first time. This is objected to on the basis that:
a. The defendant has pleaded non-admissions;
b. The defendant did not adduce any evidence;
c. The plaintiff was not cross-examined about such matters such that the defendant is not permitted to raise them as this amounts to a breach of the rule in Browne v Dunn.
5. Further, in addition to the objections already set out, the plaintiff says that no weight should be given to the new facts alleged by the defendant.
6. As was stated by the Court in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation evidence upon which there has been no such relevant cross examination should not usually, as a matter of fairness, be rejected by a tribunal of fact. Hence, the Court ought to accept the plaintiff’s evidence and that of Mr Leslie in full and prefer it over the speculation and comment made by the defendant in their submissions.
Mr Evans submits further that:
Factual Allegations of the Defendant
7. The defendant has used closing submissions to raise matters of evidence for the first time.
8. In Thomas v Van den Yssel,the Full Court of South Australia cited Reid v Kerr (1974) 9 SASR 367 at 374 as authority for the proposition that:
“[i]t is necessary that any contrary version or any relevant new matter which might contradict or qualify the import of his evidence and which it is intended to prove should be put to him.”
9. The defendant has sought to qualify or contradict the plaintiff’s evidence in their closing submissions without having put these matters to the plaintiff in cross-examination.
10. These matters should have been properly raised in cross-examination, affording the opportunity to the plaintiff to respond. This is the fundamental principle enshrined in Browne v Dunn.
11. The essence of the rule in Browne v Dunn was stated in Reid v Kerr as follows:
“Speaking generally, it is essential to the fair conduct of a trial that a party should put to each of his opponent’s witnesses in turn so much of his own case as concerns that particular witness…As a corollary to this, it must also be borne in mind that where it is intended to suggest that a witness is not speaking the truth on a particular matter, his attention should be drawn to what is going to be suggested about it, so he may have an opportunity of explanation.”
12. Further, in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation Justice Hunt stated:
“There are many reasons why it should be made clear, prior to final addresses and by way of cross-examination or otherwise, not only that the evidence of the witness is to be challenged but also how it is to be challenged. Firstly, it gives the witness the opportunity to deny the challenge on oath, to show his mettle under attack (so to speak), although this may often be of little value, Secondly, and far more significantly, it gives the party calling the witness the opportunity to call corroborative evidence which in the absence of such a challenge is unlikely to have been called. Thirdly, it gives the witness the opportunity both to explain or to qualify his own evidence in the light of the contradiction of which warning has been given and also, if he can, to explain or to qualify the other evidence upon which the challenge is to be based.”
13. It has been said to be “wrong, unreasonable or even perverse for a tribunal of fact to reject evidence upon which there has been no relevant cross examination.”
14. In this matter, the defendant engages in speculation on a case not put to the plaintiff. Indeed, they go further and seek to have the plaintiff’s evidence as to her actual losses rejected without there being any relevant cross examination about those points.
15. On this basis alone the defendant’s submissions ought to be rejected and judgment entered for the plaintiff as outlined in the closing submissions.
Mr Coveney submits that “The damages awarded are for loss of the bargain, which in the usual case is the difference between the value of the lease to the defendant and the costs to the defendant to obtain other premises.”[34] However, in his Reply Mr Evan’s submitted:
[34] Closing Submissions - Defendant, at paragraph 18
20. Which respect to the defendant’s submission in paragraph 18, the plaintiff:
a. Reiterates that the damages are compensatory in nature;
b. Does not agree with the bald statement to the effect that damages “in the usual case is the difference between the value of the lease to the defendant” – as this is only one possible measure of damages as set out in detail in the plaintiff’s closing submissions.”[35]
[35] Plaintiff’s Submissions in Reply, at paragraph 20
Mr Evans submits that that the Plaintiff repeats and relies up the closing submissions[36], and sets out the reasons why this court should reject the whole of the Defence case.[37]
[36] Plaintiff’s Submissions in Reply, at paragraph 21
[37] Plaintiff’s Submissions in Reply, at paragraphs 22-66
Credibility
Mr Evans in his Closing Address referred me to the relevant passages in the transcript of the evidence of both the Plaintiff and Wayne Leslie and has concisely set out the reasons why I should accept their evidence in their entirety.[38]
[38] At paragraphs 29-40.
I was impressed with the evidence of the Plaintiff and the witness Wayne Peter Leslie who appeared by virtue of a subpoena. I found that both gave their evidence in an honest and forthright manner and cross examination in no way detracted from their evidence in chief. I could detect nothing in their evidence which would cause me to have any doubt upon their respective veracity.
The evidence of the witness Leslie was particularly compelling. I found him to the greater extent an independent witness having no commercial or other interest in the outcome of these proceedings. His evidence was direct, frank and not challenged in cross examination. His evidence corroborated and gave considerable weight to the Plaintiff’s version.
Conclusion
I have considered all of the evidence in some detail in arriving at my decision and if I have referred to certain aspects of the evidence it should not be taken that I have placed undue weight upon those aspects, nor, if I have failed to specifically refer to other aspects, that I have given those aspects little consideration or no weight. Also, the question of any discrepancies and/or inconsistencies; the acceptance and/or rejection of the evidence, or parts of the evidence of a witness, are matters solely for my evaluation in my journey towards this decision.[39]
[39]per Stable J (at page 13) Markland v. Fitzpatrick & Ors (1963) Qd R 12
I have fully considered the submissions by both parties. The submissions by Mr Evans are comprehensive and address fully the reasons why I should accept the Plaintiff’s version and reject the Defence version. After a consideration of all the evidence and the relevant authorities on point I agree with those submissions, rejecting outright the Defence version where it conflicts with the Plaintiff’s.
I am satisfied that the Plaintiff has claimed nothing more than an amount that compensates her for her additional expenditure and losses consequence on the loss of the agreement to lease, being the loss of her bargain. I am satisfied that the Plaintiff took all reasonable steps to minimise her losses, the defendant failing to show that she has acted unreasonably in this regard.
Upon consideration of all of the evidence, the submissions, and the relevant authorities on point I am satisfied in relation to each of the heads of damage that:
a. The damages claimed the Plaintiff all relate to costs which flowed as a consequence of the breach of the Agreement to Lease by the Defendant;
b. The damages are all a direct and reasonable consequence of the plaintiff losing her bargain, being to occupy and use the Drivas Premises from 23 September 2010 for the period of the lease together with its options;
c. The Plaintiff has not claimed for any costs that she would have otherwise incurred had the lease of the Drivas Premises proceeded;
d. The costs claimed are fair and reasonable in the circumstances and reflect an appropriate amount which would put the plaintiff in the position she would have been in had the Agreement to Lease been performed by the defendant.
e. The damages claimed are not too remote;
Accordingly, I find that the Plaintiff has established her claim to the requisite standard and I give Judgment for the Plaintiff against the Defendant in the amounts claimed.
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