Sofoulis v Candida Pty Ltd
[2010] WADC 33
•19 MARCH 2010
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SOFOULIS & ANOR -v- CANDIDA PTY LTD & ORS [2010] WADC 33
CORAM: SLEIGHT DCJ
HEARD: 3 MARCH 2010
DELIVERED : 19 MARCH 2010
FILE NO/S: CIV 2173 of 2009
BETWEEN: ROBERT NICHOLAS SOFOULIS
WENDY MICHELLE SOFOULIS
PlaintiffsAND
CANDIDA PTY LTD (ACN 008 903 151)
First DefendantALISTAIR ROBERT MACKINLAY
HEIDI EMERY
Second Defendants
Catchwords:
Appeal - Application by landlord for summary judgment for rent, outgoings and interest - Alleged misleading or deceptive conduct by landlord - Statement as to future matters - Evidentiary onus on promisor - Remedies available to tenants and guarantors
Legislation:
Fair Trading Act 1987
Result:
Appeal dismissed
Representation:
Counsel:
Plaintiffs: Mr M P Bruce
First Defendant : Mr W Chestnutt
Second Defendants : Mr W Chestnutt
Solicitors:
Plaintiffs: Lavan Legal
First Defendant : Mackinlay Solicitors
Second Defendants : Mackinlay Solicitors
Case(s) referred to in judgment(s):
Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332
Bill Acceptance Corp Ltd v GWA Ltd (1983) 78 FLR 171
Clambake Pty Ltd v Tipperary Projects Pty Ltd [No 3] [2009)] WASC 52
Cohen v Centrepoint Freeholds Pty Ltd (1982) 66 FLR 57
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217
Holt v Biroka Pty Ltd (1988) 13 NSWLR 629
Lyons v Kern Konstructions (Townsville) Pty Ltd (1983) 47 ALR 114
Murphy v Overton Investments [2004] HCA 3
Serrata Investments Pty Ltd v Rajane Pty Ltd (1991) ASC 56-092
Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1
SLEIGHT DCJ:
Appeal
This is an appeal against a decision of the Deputy Registrar dismissing an application by the plaintiffs, Mr and Mrs Sofoulis, for summary judgment. The application for summary judgment relates to a claim against a former tenant (and its guarantors) for outstanding rent, outgoings and interest.
The Deputy Registrar dismissed the application on the basis that the first and second defendants had an arguable defence under the provisions of the Fair Trading Act 1987 (WA).
The hearing before me is a hearing de novo (see Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, Malcolm CJ at p 28).
On the basis of the evidentiary material before me I conclude the first defendant and the second defendants do have an arguable defence under the provisions of the Fair Trading Act 1987. Accordingly, the appeal is dismissed. My reasons for doing so are set out below.
Background
Mr and Mrs Sofoulis are the proprietors of commercial premises situated at 2 Sleat Road, Applecross. The first defendant, Candida Pty Ltd, leased the premises pursuant to a written lease document dated 9 June 2004. The second defendants, Mr Mackinlay and Ms Emery, are the directors of Candida and were guarantors under the lease agreement.
The lease commenced on 1 March 2004 with an initial term of four years. It was extended for a further four years by a written extension of lease undated. The extended term commenced on 1 March 2008. On 13 March 2009 Candida, with the consent of Mr and Mrs Sofoulis, surrendered the lease.
The claim for summary judgment by Mr and Mrs Sofoulis comprised of the following:
(i)$92,244.23 being an increase in rent payable pursuant to the terms of the lease for the period 1 March 2008 to 31 August 2008;
(ii)$52,342.53, for rent and outgoings from 1 February 2009 to 13 March 2009;
(iii)Interest on the outstanding amounts.
Candida and its guarantors do not dispute that under the provisions of the lease such amounts were payable.
During the term of the lease and its extension Candida claims that there were water ingress problems and problems with the air‑conditioning units in the premises. Candida claims that both of these problems caused an interference with its use and occupation of the premises.
Candida claims that prior to the extended term being agreed upon, the agent for Mr and Mrs Sofoulis gave an assurance that the water problem and the air‑conditioning problem would be "attended to". Candida claims that, relying upon this assurance, it exercised its option to renew the lease for the second term and raised no objection to an increase in rental pursuant to a rent review process contained in the lease.
Candida says that Mr and Mrs Sofoulis did not remedy the water problem and the air‑conditioning problem. Candida contends Mr and Mrs Sofoulis acted in a misleading or deceptive way contrary to s 10 of the Fair Trading Act 1987 by giving the undertaking that these problems would be "attended to". As a consequence of the misleading or deceptive conduct Candida contends it suffered loss or damage in the form of a reduced enjoyment of the benefits of the lease. Further, the failure of Mr and Mrs Sofoulis to remedy the water problem and the air‑conditioning problem led to a surrender of the lease with consequential costs in relocating.
Candida states that at the trial the Court will be asked to make an order under s 77 of the Fair Trading Act 1987 to the extent necessary to compensate Candida for its loss or damage by either:
(1)declaring those portions of the lease under which Mr and Mrs Sofoulis claim an entitlement for rent, outgoings and interest void; or alternatively
(2)varying the terms of the lease [or making an order refusing to enforce the lease] to the extent necessary to compensate Candida for its loss or damage.
Mr and Mrs Sofoulis claim that their claim for rent, outgoings and interest stands alone and that given that there is no dispute of such entitlements under the provisions of the lease they should be given summary judgment against both Candida and its guarantors. It is further argued that there is no evidence of misleading or deceptive conduct during the currency of the extension of lease.
Principles of application for summary judgment
Before considering the issues raised by this appeal it is necessary to identify the general principles applicable on an application for summary judgment. They can be summarised as follows:
1.The procedure is designed to deal with cases that are not fit for trial at all (Three Rivers District Council v Bank of England(No 3) [2003] 2 AC 1).
2.The power to order summary judgment must be exercised with great care and should never be exercised unless it is clear there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99.
3.The applicant for summary judgment assumes the burden of persuading the Court that the claim is a good one, that there is no defence to it, that leave to defend should not therefore be granted and that judgment should be given for the plaintiff. The party showing cause against the application assumes an evidentiary burden by that process but the overall legal burden of persuasion remains upon the applicant: Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18 at 23.
5.Even if the facts which are established are inconclusive, if it is not possible to say without doubt on the whole of the material that there is no question to be tried, there should be leave given to defend: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99.
6.The fact that the transaction is intricate does not disentitle the plaintiff to relief in a clear case. Extensive argument may be necessary to demonstrate that there is no question that ought to be tried: Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332 at 334.
Terms of the lease
The starting point in the application for summary judgment by Mr and Mrs Sofoulis are the provisions of the lease.
It is not in dispute that under the terms of the lease [which were incorporated in the extension of lease document creating the second term] Candida had an obligation to pay a rental, outgoings and pay interest on outstanding amounts. Further, these payments were guaranteed by the second defendants, Mr Mackinlay and Ms Emery.
The written lease agreement contained the following further relevant provisions (which were incorporated in the extension of lease agreement):
(a)The landlord was responsible to repair damage to "items of a capital nature" unless the landlord reasonably believed it was impracticable or undesirable to do so (cl 6.2 of the lease).
(b)The landlord and the tenant had respective rights of termination of the lease should the landlord not intend to repair or fail to repair items it was obliged to repair (cl 6.5 of the lease).
(c)If the premises were damaged the tenant was entitled to adjustments to the rental to the extent the damage interfered with the tenant's use of the premises (cl 6.8 and cl 6.9 of the lease).
(c)The tenant and guarantors were not entitled to set‑off any amounts the landlord owed to them whether under the lease or not, against any amount the tenant owes the landlord under the lease (cl 10.1 and cl 11.3.1 of the lease and cl 5.3.1 of the extension of lease).
(d)The rent was to be reviewed annually which included a review of the rent at the commencement of the extension of lease based upon the market rental value (cl 1.4 and Sch 2 of the lease).
Water problem
The affidavits filed by the first and second defendants against the application for summary judgment particularised the alleged water problem in the leased premises as follows:
(a)In about July 2004 Mr Mackinlay noticed water ingress in the northern and southern ends of the premises on the ground floor. He continued to monitor the water problem thereafter and noticed it became worse particularly with increasing rainfall. It significantly affected three offices on the ground floor.
(b)In June 2006 Ms Heidi Emery noticed that the water problem in her office had become so bad that the water actually rose on top of the carpet. Her computer was damaged and had to be replaced. A professional carpet cleaner was engaged to extract water from the carpet.
(c)As from that time Ms Emery relocated to another office and also other staff in nearby offices had to be relocated. From that date until March 2006 three offices were not occupied because they were severely affected by the water problem.
(d)Between about June 2006 and December 2007 repairs were carried out to the premises in an effort to fix the water problem.
(e)During the winter months in 2008 the water problem returned.
Air-conditioning problem
The affidavits filed by the first and second defendants against the application for summary judgment particularised the alleged air‑conditioning problem in the leased premises as follows:
1.Between October 2007 and March 2009 the air-conditioning on the ground floor and first floor either would not operate or would not respond to the thermostat.
2.Mr Mackinlay caused staff to contact the managing agent on numerous occasions to report the air-conditioning problem. On some occasions it appeared that contractors attended and carried out works on the air‑conditioning but the problem was not resolved.
3.The air-conditioning problem became so severe in the summer months, Candida borrowed a portable air-conditioner from a client
4.In early November 2007 Mr Mackinlay instructed staff to raise the state of the air-conditioning with the managing agent. Mr Mackinlay was informed by his staff that the agent said all problems would be "attended to".
5.By November 2008 the air-conditioning units had not been replaced and the air‑conditioning problem had not been resolved. The temperature in Mr Mackinlay's office exceeded 33 degrees Celsius consistently on a thermometer in his office. Throughout the whole of the year 2008 the air‑conditioning problem limited the use of the premises. Candida was unable to sub‑lease part of the premises and some offices were too hot to work in.
6.On 16 January 2009 Candida closed the premises for business because the air-conditioning was not working.
Reliance on the undertaking
The affidavits filed by the first and second defendants against the application for summary judgment particularised as follows the reliance placed upon the alleged undertaking by the agent of Mr and Mrs Sofoulis that the water problem and air‑conditioning problem would be "attended to":
1.On 20 November 2007 Candida confirmed that it wished to exercise its option to extend the lease. Mr Mackinlay states that he would not have exercised the option to extend the lease if he had known the plaintiff would not repair the air-conditioning problem and the water problem had not been adequately remedied.
2.Mr Mackinlay states that he did not object to a rent review in March 2008 because the managing agent had said they would fix the air‑conditioning problem and had sent out contractors to address the problem.
3.Earlier in August 2008 Ms Emery had made inquiries with several air‑conditioning businesses and was told by representatives that the costs of repairing the air-conditioning to the premises would be approximately $100,000 to $120,000.
4.On 16 January 2009 after Candida had closed the premises for business because the air-conditioning was not working, Ms Emery telephoned the managing agent. During this conversation the managing agent told Ms Emery that Mr and Mrs Sofoulis would not be carrying out any substantial repairs to the air-conditioning systems on the premises.
5.In the discussion on 16 January 2009 Ms Emery informed the managing agent that Candida were not prepared to continue to pay rent and outgoings for the premises while it was in a substandard condition. During this discussion the landlord's agents put a proposal to Candida that it surrender the existing lease subject to conditions which included the payment of the outstanding rental adjustments from 1 March 2008.
6.On 27 February 2009 Ms Emery sent an email to the solicitors acting for the landlord stating as follows:
"It is important that both you and the landlord understand that our complaints regarding the air-conditioning system in this building are long-standing. The simple fact of the matter is that the equipment is over 25 years old and requires a substantial investment to modernise it and restore it to 100% functionality. It also seems to us that our concerns regarding the air‑conditioning and other matters have been largely unheeded since the landlord vacated the premises." (A reference to a sub‑lease previously held by Mr and Mrs Sofoulis.)
7.Candida vacated the premises in March 2009. It entered into a lease for alternative premises nearby. Candida maintains that it would not have surrendered the lease from Mr and Mrs Sofoulis if the water problem and the air‑conditioning problem had been resolved. The alternative premises required the installation of a phone system and fitting out of the offices. The telephone system cost approximately $30,000 and the fitting out approximately $50,000.
Did Mr and Mrs Sofoulis in trade or commerce engage in conduct that was misleading or deceptive contrary to s 10 of the Fair Trading Act?
The first component of the contention by Candida that it has a defence to the claim by Mr and Mrs Sofoulis under s 10 and s 77 of the Fair Trading Act 1987 requires a consideration of whether there is evidence that the conduct of Mr and Mrs Sofoulis could constitute misleading or deceptive conduct under s 10 of the Fair Trading Act 1987.
Section 10 of the Fair Trading Act 1987 provides as follows:
"(1)A person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2)Nothing in this part shall be taken as limiting by implication the generality of subsection (1)."
It is not in dispute in this case that Mr and Mrs Sofoulis were engaged in trade or commerce.
Misleading or deceptive conduct will only be misleading or deceptive conduct if it induces or is capable of inducing error [see "Miller's Annotated Trade Practices Act", 30th ed, par 1.52.25, p 489]. The misleading or deceptive conduct relied upon by Candida is the undertaking given by the agent on behalf of Mr and Mrs Sofoulis that the water problem and the air‑conditioning problem would be "attended to". Although, the language of this undertaking is somewhat vague, for the purposes of the summary judgment application I conclude it is arguable at trial that the meaning of this undertaking was that the water problem and the air‑conditioning problem would be fixed by the landlords, Mr and Mrs Sofoulis.
The uncontradicted evidence before me is that Candida relied upon this undertaking in deciding to exercise its option to enter into the extended term. The evidence adduced by Candida was that this undertaking was breached and ultimately led to Candida surrendering the lease.
However, even given the interpretation that the undertaking was to fix the water problem and the air-conditioning problem, a subsequent breach of this undertaking does not necessarily mean that the conduct constituted misleading or deceptive conduct: Serrata Investments Pty Ltd v Rajane Pty Ltd (1991) ASC 56-092. It is not sufficient that Candida may have relied upon the representation in entering into an extension of the lease. The character of a representation said to be misleading or deceptive is to be tested at the time of the representation and not with the benefit of hindsight. What needs to be established against Mr and Mrs Sofoulis is that at the time of the undertaking they did not have any intention to remedy the water problem and air‑conditioning problem or at the very least had a reckless indifference as to whether the promise would be adhered to: Holt v Biroka Pty Ltd (1988) 13 NSWLR 629, Bill Acceptance Corp Ltd v GWA Ltd (1983) 78 FLR 171; Lyons v Kern Konstructions (Townsville)Pty Ltd (1983) 47 ALR 114; Cohen v Centrepoint Freeholds Pty Ltd (1982) 66 FLR 57.
There is no direct evidence presented by Candida that Mr and Mrs Sofoulis did not have an intention to carry out their undertaking as at the date of the undertaking, being early November 2007. Counsel, on behalf of Candida, submitted that notwithstanding this lack of evidence Candida is entitled to rely upon the evidentiary onus that rests upon Mr and Mrs Sofoulis under s 9A of the Fair Trading Act 1987. The section applies to a representation with respect to future conduct. I accept that the alleged representation that the water problem and air‑conditioning problems would be "attended to" is a representation with respect to future conduct. Section 9A provides as follows:
"(1)For the purposes of this Part, where a person makes a representation with respect to any future conduct (including the doing of, or the refusing to do, any act) and the person does not have reasonable grounds for making the representation, the representation shall be taken to be misleading.
(2)The onus of establishing that a person had reasonable grounds for making a representation referred to in subsection (1) is on the person.
(3)Subsection (1) shall not be taken to limit by implication the meaning of a reference in this Part to a misleading representation, a representation that is misleading in a material particular or conduct that is misleading or is likely or liable to mislead."
This provision provides at the very least an evidentiary onus upon Mr and Mrs Sofoulis to establish that they had reasonable grounds for making the alleged undertaking. This onus and how it might operate is well demonstrated in the case of Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217. That case involved the defendant failing to honour a bid at an auction and it was held he had engaged in misleading conduct on the basis that the defendant had failed to adduce evidence that he had reasonable grounds for making an implied representation that he would sign a contract after making a successful bid. Ormiston J at p 240 stated as follows in relation to the effect of legislative equivalents to s 9A of the Fair Trading Act 1987:
"The promisor will be deemed not to have reasonable grounds for making the representation or promise, unless he satisfies the court by evidence to the contrary that he had reasonable grounds for making that representation. He may achieve this, in part, by showing that he had a genuine intention to perform his promise and that he had the ability at the time to perform it, but in the end he must show objectively that he had reasonable grounds for making the representation."
The precise nature of the onus is the subject of some controversy, there being a view that the maker of a statement in respect to a future matter carries only an evidentiary onus and the ultimate onus remains on the party alleging the conduct was misleading [see "Miller's Annotated Trade Practices Act", 30th ed, par 1.51A.5, p 475].
In this case Mr and Mrs Sofoulis have not produced any evidence that their alleged undertaking to remedy the water problem and air‑conditioning problem was based upon reasonable grounds. In the absence of fulfilling this evidentiary onus I believe Candida has demonstrated that it has an arguable case that the alleged undertaking was misleading.
Loss and damage
Having found that Candida, on the evidence before me, has an arguable case that Mr and Mrs Sofoulis engaged in misleading or deceptive conduct, the next issue is whether such misleading or deceptive conduct gives rise to an arguable defence.
Counsel on behalf of Candida abandoned for the purposes of this appeal any submission that Candida was entitled to rely upon an equitable set‑off by way of damages for misleading or deceptive conduct. This is not surprising for two reasons:
1.Firstly, the only actual financial loss suggested by the affidavits filed by Candida was the cost of relocating after the surrender of the lease. As this occurred after the lease had ended, it is doubtful whether an equitable set-off would be allowed (see Clambake Pty Ltd v Tipperary Projects Pty Ltd [No 3] [2009)] WASC 52 per Heenan J at 154).
2.Secondly, the express provisions of the lease would appear to be sufficiently clear to prevent such an equitable set‑off being claimed (see Clambake's case (supra) at [171 ‑ 180]).
Of course, this will not prevent Candida making a counterclaim for damages for any financial loss suffered. The claim for damages can be made pursuant to s 79 of the Fair Trading Act 1987 based upon the alleged misleading or deceptive conduct but for the purpose of this application is not to be taken into account as a set‑off.
As outlined earlier in this decision, Candida relies upon s 77 of the Fair Trading Act 1987 to contend that it has an arguable case that it should be granted orders in the form of a declaration that the lease provisions upon which Mr and Mrs Sofoulis rely are void or should be varied so as to defeat the claim for rent, outgoings and interest. The relevant provisions contained within s 77 are annexed to the decision.
In order for Candida to qualify and seek orders under s 77(3) of the Fair Trading Act 1987 it will need to establish at trial that it suffered "loss or damage" by virtue of misleading or deceptive conduct.
Counsel for Mr and Mrs Sofoulis contends that Candida has failed to produce any evidence of loss or damage. Further, that Candida has enjoyed the benefits of the lease up to the voluntary surrender of the lease on 13 March 2009 and therefore should pay the full rent, outgoings and interest provided for in the lease.
In support of this contention the plaintiffs rely upon the decision of Heenan J in Clambake's case (supra) where his Honour refused to allow a set‑off in the form of damages against a landlord's claim for rental and outgoings. However, the factual circumstances of Clambake's case were quite different to the present case. In Clambake's case the premises were destroyed by fire. The tenants sought to set‑off damages for the damage caused by the fire against the landlord's rental claim. Central to the decision of Heenan J was that the claim for damages for fire arose after the landlord's entitlement for rental payment had accrued.
In any event, as stated earlier in this decision for the purposes of the application by Mr and Mrs Sofoulis for summary judgment, Candida does not rely upon an equitable set‑off to defeat the summary judgment application but argues that it has an arguable defence that it is entitled to an order under s 77 of the Fair Trading Act 1987 either declaring void the provisions of the extension of lease or an order varying the terms of the extension of lease so as to reduce the plaintiffs' entitlement for rent, outgoings and interest. As to whether the Candida has fulfilled its evidentiary onus that it has suffered a loss or damage as a result of the alleged misleading or deceptive conduct, it is necessary to consider what is meant by "loss or damage" within s 77 of the Fair Trading Act 1987. As mentioned earlier in this decision, counsel for Mr and Mrs Sofoulis argues that Candida has failed to produce any evidence of loss or damage during the period in which the rent, outgoings and interest were payable. However in the High Court decision of Murphy v Overton Investments [2004] HCA 3 the Court held that the expression "loss or damage" within the meaning of the section extended beyond a quantifiable amount of damages and included any detriment suffered by the party seeking relief under the Fair Trading Act 1987 provisions. The case of Candida is that it did suffer a detriment in reliance upon the alleged misleading conduct by enduring a reduced benefit under the lease as result of the water problem and air‑conditioning problem. This claimed detriment was particularised in the affidavits filed on behalf of the defendants and summarised earlier in this decision.
Conclusion
On the basis of the above I conclude that Candida has an arguable case that:
1.Contrary to s 10 of the Fair Trading Act 1987, Mr and Mrs Sofoulis had engaged in misleading conduct by giving an undertaking through their agent to remedy the water problem and air‑conditioning problem.
2.Candida relied upon the misleading representation when it entered into the extension of lease.
3.Candida has suffered loss or damage by virtue of the misleading conduct.
4.Pursuant to s 77 of the Fair Trading Act 1987, to compensate Candida for its loss or damage, the Court should either make an order declaring void the provisions of the extension of lease under which the liability for rent, outgoings and interest arises or make an order that they be varied so as to remove Candida's liability.
It follows therefore, given the nature of the possible orders Candida might obtain at trial declaring void or altering the provisions of the lease, that the liability of the guarantors, Mr Mackinlay and Ms Emery to pay the amounts claimed for rent, outgoings and interest might be removed or reduced commensurate with the extent of the reduced liability of Candida [see O'Donovan and Phillips "The Modern Contract of Guarantee", 3rd ed, p 269].
Based on the above I conclude the appeal should be dismissed.
Payment into court
During the course of hearing submissions from counsel I raised the issue as to whether even if I dismissed the appeal an order should be made requiring Candida and/or its guarantors to pay into court the amount claimed by Mr and Mrs Sofoulis for rent, outgoings and interest. I have decided it would be inappropriate for me to make such an order for the following reasons:
1.The general rule is that a defendant should normally be given unconditional leave [Seaman "Civil Procedure Western Australia" (par 14.4.3)].
2.Mr and Mrs Sofoulis did not seek such an order in their application before the Deputy Registrar and nor was the issue raised in written submissions presented on their behalf before me. Counsel appearing for Mr and Mrs Sofoulis only supported the making of such an order after the issue was raised by me.
3.I do not conclude the proposed defence raised by Candida under s 10 and s 77 of the Fair Trading Act 1987 is shadowy and I do not have suspicions that the defendants are acting mala fides: [Seaman "Civil Procedure Western Australia" (par 14.4.3)]. On the evidence before me during the course of the lease Candida raised its concerns as to the water problem and the air‑conditioning problem and ultimately Candida entered into surrender arrangements because the issue was not resolved.
4.Finally, the issue was raised by me without notice and the defendants have had no opportunity to present to me details of their financial positions. Accordingly, I am not in a position to assess whether such an order would create procedural unfairness.
Accordingly, I affirm the order of the Deputy Registrar to grant the first defendant and the second defendants unconditional leave to defend the plaintiff's claim.
Annexure
Section 77 of the Fair Trading Act 1987 relevantly provides as follows:
"(1)Without limiting the generality of section 74 or 75, if, in a proceeding instituted under this Part, or for an offence against this Act, the Supreme Court or the District Court is satisfied that a person has suffered, or is likely to suffer, loss or damage by reason of conduct of another person that contravened a provision of this Act, the Court, whether or not an injunction under this Part or any other relief is granted or any other order is made in those proceedings, may make such order or orders as the Court thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention for the purpose of compensating the first‑mentioned person wholly or in part for the loss or damage or of preventing or reducing the extent of the loss or damage.
(2)Whether or not other proceedings have been instituted under this Act in relation to a contravention, the Court may —
(a)on the application of a person who has suffered, or is likely to suffer, loss or damage by reason of the contravention; or
(b)on the application of the Commissioner on behalf of one or more such persons made with the written consent of each such person,
make orders under this section.
(3)The orders that may be made under this section include —
(a)an order declaring the whole or any part of a contract made between the person who suffered, or is likely to suffer, the loss or damage and the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, or of a collateral arrangement relating to such a contract, to be void and, if the Court thinks fit, to have been void from its beginning or at all times on and after such date, before the date on which the order is made, as is specified in the order;
(b)an order varying such a contract or arrangement in such manner as is specified in the order and, if the court thinks fit, declaring the contract or arrangement to have had effect as so varied on and after such date, before the date on which the order is made, as is so specified;
(c)an order refusing to enforce any or all of the provisions of such a contract or arrangement;
(d)an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to refund money or return property to the person who suffered the loss or damage;
(e)an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to pay to the person who suffered the loss or damage the amount of the loss or damage."
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9
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