Prieston v Warwick John Williams Pty Ltd

By a summons filed on 23 December 2016, Anna Prieston (“the appellant”) seeks orders in the following terms arising from a determination of Magistrate Atkinson in the Local Court on 6 December 2016:

The summons was supported by an affidavit of Stephen Pirintji of 3 July 2017 which was read without objection. A Court Book containing the entirety of the relevant material was admitted and marked Exh. A.

Counsel for the appellant before this Court acknowledged that the terms in which the summons had been pleaded were fundamentally deficient. In particular, no order for leave was sought, in circumstances where (at least in respect of some of the grounds relied upon) leave was arguably required. In these circumstances, counsel for the respondent invited me to dismiss the summons as on the basis that it was incompetent. Ultimately, the hearing proceeded on the basis that the appellant’s primary position was that each of the grounds relied upon raised a question of law or at the very least, a question of mixed fact and law. To the extent that any ground fell into the latter category, it was the appellant’s position that leave should be granted.

In these respects, ss. 39 and 40 of the Local Court Act 2007 (NSW) are relevant. Those sections are in the following terms:

It should also be noted that in respect of some of the grounds, counsel for the appellant submitted that there was no evidence to support the factual conclusions that the Magistrate reached. Such a proposition involves a question of law: Azzopardi v Tasman UBE Industries Pty Limited (1985) 4 NSWLR 139. However, it is also necessary to bear in mind that want of logic is not synonymous with error of law. As long as there is some basis for an inference, or in other words as long as the particular inference is reasonably open there is no place for judicial review because no error of law has taken place. This is so, even if that inference appears to have been drawn as a result of illogical reasoning: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 356 per Mason CJ.

Moreover, a finding of fact which is supported by at least some evidence does not reveal an error of law even if it was made by ignoring the probative force of the evidence which is all one way, or even if it could be described as perverse or one which no reasonable person could have made: Azzopardi at 155-156 per Glass JA. Where judgment is formed on the basis of conflicting indicators, it will be difficult if not impossible to establish a “no evidence” ground of review: L & B Linings Pty Limited v WorkCover Authority of NSW [2012] NSWCA 15 at [34] per Basten JA cited in Insurance Australia Limited v O’Shannessy [2015] NSWSC 1047; (2015) 72 MVR 1 at [61] per Beech-Jones J.

The appellant is the owner of a property located at 188 Victoria Street Drummoyne (“the premises”). He husband manages her business affairs pursuant to an enduring Power of Attorney executed by her.

The appellant entered into an agreement (“the agreement”) with Warwick John Williams Pty Limited (“the respondent”), pursuant to which the respondent undertook to manage the premises. Clause 6 of the agreement provided that in doing so, the respondent was required to seek references from any prospective lessee(s).

In or about November 2011 the respondent identified a Ms Panayiotou (“the tenant”) as a prospective lessee. It was the appellant’s case that she and a representative of the respondent subsequently had a conversation, in the course of which the appellant enquired as to whether it was thought that the tenant would be suitable. It was the appellant’s case that during the course of that conversation she said words to the effect:

Negotiations were then entered into regarding improvements to be undertaken to the premises. At tenant’s request, the appellant agreed that prior to the commencement of any lease she would:

In December 2011, the appellant executed a lease with the tenant in respect of the premises, to commence on 15 February 2012. It is common ground between the parties that notwithstanding the terms of the agreement, the respondent did not obtain any references from the tenant prior to the lease being executed. Following the commencement of the lease, the tenant commenced to raise a number of issues, and make various claims and demands upon the appellant about the premises, in addition to those set out at [10] above. The issues which were raised included (but were not limited to) dampness in the premises.

In or about May 2012 a conversation took place between the appellant’s husband and a Mr Davies on behalf of the respondent, in the course of which Mr Davies conceded that no written references had been obtained from the tenant prior to the execution of the lease. The unchallenged evidence before the Magistrate was that the conversation was to the following effect:

Following that conversation, the appellant’s husband assumed the management of the premises. The appellant later became aware that the tenant had brought proceedings against a previous landlord which had been settled by way of a deed, the terms of which were confidential.

Attempts were made by the appellant to resolve the tenant’s various complaints about the premises, without success. Ultimately, the tenant commenced proceedings against the appellant in what was then known as the Administrative Decisions Tribunal (“ADT”). The matter was heard by Deputy President Higgins on 23 and 24 May 2013. In a judgment delivered on 29 November 2013 the proceedings were dismissed: Panayiotou v Prieston [2013] NSWADT 273. The appellant subsequently sought costs of the proceedings. That application was dismissed by Senior Member Higgins. That decision was later confirmed by an appeal panel.

Against the background outlined above, the appellant commenced proceedings by filing an amended statement of claim against the respondent in the Local Court seeking damages:

The basis of the appellant’s case was that the respondent had made a number of representations to the appellant which were misleading or deceptive, or likely to mislead or deceive.

In a reserved judgment delivered on 6 December 2016, the Magistrate awarded damages in favour of the appellant as follows:

The cause of action in negligence was dismissed.

At the commencement of the hearing counsel for the appellant informed the Court that ground 1 was not pressed. In addition, ground 3 was amended and limited to the terms set out below.

Included in the evidence before the Magistrate was an affidavit of the appellant’s husband of 29 April 2016. In paragraph [15] he recounted a conversation he had with the tenant in or about August 2012 after the tenant had complained about dampness at the premises. According to Mr Prieston that conversation was to the following effect:

Mr Prieston stated (at [16]) that the tenant then went to the police to make application for an apprehended violence order against him but “was talked out of it by the police and/or Craig Davis”.

Mr Prieston was cross-examined at some length before the Magistrate in respect of these matters. He was asked (commencing at T36 L11):

Commencing at [41] of her reasons the Magistrate dealt with the claim for damages for breach of contract and noted (inter alia) that there was no dispute that the respondent had failed to carry out the necessary reference checks and that by failing to do so, the respondent had breached the agreement. Her Honour also observed (again at [41]) that the appellant would ordinarily be entitled to damages for the breach. Having noted (at [42]) that the appellant had not sought general damages in relation to her claim for breach of contract, but had instead particularised her damages by reference to the costs that she incurred in relation to the proceedings in the ADT, her Honour went on to say the following (commencing at [43]):

There was some degree of confusion as to the precise basis upon which the appellant advanced this ground. In written submissions it was submitted that her Honour’s findings at [48] were “serious and quite improper”. In particular, it was submitted that:

It was further submitted that her Honour’s findings amounted to little more than “conjecture and speculation” and that in these circumstances, her Honour had fallen into error.

The oral submissions were put somewhat differently. Counsel initially advanced two submissions in support of this ground, namely that:

When specifically asked (at T9 L35) to articulate, in precise terms, the error on which this ground was based, counsel for the appellant responded by saying:

Counsel then confirmed that it was the appellant’s case that the Magistrate had erred by drawing an inference in circumstances where there was no evidence to support it (at T10 L8-12). Counsel further submitted that in order to conclude that one inference was preferable to another, such a conclusion must be based on “something …more than merely the surrounding facts” (at T11 L21-24).

Counsel for the respondent submitted that nothing put in support of ground 2 disclosed any appellable error, however categorised. It was submitted that properly construed, the Magistrate’s judgment at [48] did not incorporate any positive finding. Further, and in response to the suggestion by counsel for the appellant that there was “no evidence” of certain facts, counsel for the respondent submitted that there was certainly evidence (as set out above) not only of the fact that an application for an AVO was contemplated, but that Mr Prieston’s understanding of the basis of it was that it was “sexual in nature”.

Given the way in which this ground was ultimately put, I am satisfied that it involves a question of law. However, the ground has no merit for a number of reasons.

Firstly, to the extent that the appellant complained of an absence of reasons being given by the Magistrate, there was no ground of appeal which asserted that the Magistrate’s reasons were inadequate.

Secondly, accepting that the ground was advanced on the basis that there was no evidentiary support for the inference drawn by the Magistrate, there was certainly evidence in the cross-examination of Mr Prieston that the basis of the application for the AVO was “sexual or something”. That evidence clearly supported the inference which was drawn by the Magistrate.

Thirdly, the complaint made by the appellant that an inference must be based on “something…more than merely the surrounding facts” overlooks the fact that fundamentally, an inference is a conclusion of fact which is rationally drawn from a combination of other facts.

It follows that this ground is not made out.

In the course of oral submissions, counsel for the appellant abandoned particulars (i) and (iii) of ground 3, leaving only (ii).

In her judgment, the Magistrate said (at [50]):

In short, counsel for the appellant submitted that there was no evidence to support any of the factual findings set out at [50] of her Honour’s judgment and, in particular, the finding which was referred to in (ii) of this ground.

Counsel for the respondent submitted that nothing contained at [50] of her Honour’s judgment amounted to a positive finding. It was submitted that properly construed, her Honour was articulating that she was not persuaded of certain matters that the appellant was required to prove.

Even accepting that, as articulated, this ground involves a question of law, I am not persuaded that the impugned passage of the Magistrate’s reasons contain any factual finding. The Magistrate was doing no more than expressing a view that she could not be satisfied of certain matters. Even if the impugned passage were elevated to a finding, such a finding would be sound. As a matter of common sense, no litigant can predict the outcome of any litigation.

It follows that this ground is not made out.

At [14] of her judgment, the Magistrate said:

At [40] the Magistrate said:

At [60] the Magistrate said:

Once again there was some degree of confusion as to the precise basis which the appellant advanced this ground.

In oral submissions, counsel expressly accepted that at [60] of her judgment, the Magistrate was doing nothing more than stating, as a fact, that the litigation in question only arose after the three stated events had taken place. Counsel accepted that in doing so, the Magistrate had accurately reflected the evidence. The following exchange then took place between myself and counsel (at T17.19 – T17.23):

Ultimately, and in circumstances where:

the ground was advanced on the basis that the Magistrate had “failed to give sufficient weight, or any weight, to the evidence that this tenant had already agitated or started making complaints about the premises before that time”. Counsel submitted that a failure to give proper weight to evidence amounted to an error of law and cited, as authority for that proposition, State Rail Authority v Earthline Constructions (1999) 160 ALR 588; [1999] HCA 3.

Counsel for the respondent submitted that the conclusions reached by the Magistrate were open on the evidence, and that the inferences drawn by the Magistrate were plainly available.

I am not satisfied that this ground raises a question of law, nor am I satisfied that raises a question of mixed fact and law. The effect of counsel’s express concession (at [46](ii) above) amounts to an acceptance of the fact that the findings made by the Magistrate were supported by the evidence. Moreover, the Magistrate clearly had regard to the fact that the tenant made complaints before the lease was entered into. So much is clear from her Honour’s reference to the failure on the part of the plaintiff to carry out work on the premises.

It follows that leave to appeal in respect of this ground should be refused.

Commencing at [57] the Magistrate said the following:

Counsel for the appellant submitted that her Honour erred by solely applying the “but for” test of causation at [57] of her judgment, and had failed to turn her mind to the entirety of the statutory test contained in s. 5D of the Civil Liability Act 2002 (NSW) (“the CLA”) and in particular to the provisions of s. 5D(1)(b).

Counsel for the appellant further submitted that her Honour’s reasons reflected a form of hindsight reasoning which was specifically precluded by s 5D(3)(a).

Counsel for the respondent submitted that it was clear that the Magistrate was aware of the provisions of s. 5D of the CLA and had applied them. Counsel further submitted that the Magistrate had found against the appellant in terms of factual causation (s. 5D(1)(a)) and pointed out that there was no challenge to that finding. He submitted that in these circumstances, the Magistrate was not bound to consider the scope of liability issue raised by s. 5D(1)(b).

Section 5D of the CLA Is in the following terms:

Even accepting that this ground raises a question of law, it is a ground which in my view cannot succeed for a number of reasons.

To begin with, it is plain that her Honour was aware of s. 5D. She expressly referred to it.

Moreover, the gravamen of the appellant’s complaint was not that her Honour erred in her consideration and conclusion of factual causation under s. 5D(1)(a), but rather that she did not specifically consider the scope of liability as provided for in s 5D(1)(b). The difficulty for the appellant in advancing that position is that at [63], her Honour effectively concluded that factual causation was not made out. The appellant makes no complaint about that finding. Having so found, and because of the fact that it was necessary for the appellant to establish the matters set out in s. 5D(1)(a) and (b), the Magistrate was not required to consider the latter.

In these circumstances, this ground is not made out.

Because of the way in which the argument progressed, and given that the appellant made a fundamental submission underlying all of these grounds, it is convenient to deal with them together.

When dealing with the claim brought by the appellant pursuant to the Australian Consumer Law the Magistrate said (at [69]):

In light of the terms of these grounds of appeal, and the fundamental submission advanced in support of them, a consideration of the appellant’s pleadings before the Court below are also relevant. Paragraphs 19 and following of the amended statement of claim were in the following terms:

In written submissions provided to the Magistrate, counsel for the appellant (at [54]) encapsulated these pleadings in the following propositions:

Counsel for the appellant submitted, in respect of each of grounds 6-10, that the Magistrate had failed to properly address the appellant’s pleaded case in respect of the claim pursuant the Australian Consumer Law. He specifically submitted that the Magistrate did not address, at any point, the issue of reliance, or the pleaded representations themselves.

Counsel for the respondent emphasised that the appellant’s pleaded case for damages pursuant to the ACL was aligned with the other claims, and that the issue of causation was common to the entirety of those claims. It was submitted that the issue of causation had been properly addressed and adjudicated upon by the Magistrate.

Counsel for the respondent further submitted that the Magistrate had, at [54] of her reasons, had obviously directed attention to the essence of the appellant’s case. He also pointed to what the Magistrate had said at [69] which, he submitted, made it clear that she had considered the entirety of the evidence and submissions.

Accepting, for present purposes, that one or more of these grounds raise a question of law or a question of mixed fact and law, they each rely upon the fundamental proposition that the Magistrate failed to “engage” with the appellant’s pleaded case. I am not able to accept that submission for two principal reasons.

Firstly, it must be recognised that although the appellant advanced three separate causes of action, there was a considerable degree of factual overlap between them. In those circumstances there was a commensurate overlap between the issues that they raised and the submissions which were made by the appellant in support of them. That circumstance was properly recognised by the Magistrate at [69] of her reasons, in which the Magistrate adopted the reasoning process that she had adopted in respect of the causes of action other than that pursued under the Australian Consumer Law.

Secondly, what was effectively a truncated version of the appellant’s cause of action under the Australian Consumer Law appeared at [54] of the written submissions which were put before her. It is important that the Magistrate’s judgment be read as a whole. When that approach is adopted, it is not open to assert that her Honour failed to engage with the appellant’s pleaded case. In my view, she engaged in a comprehensive review of the evidence, and set out, in some detail, the path of reasoning which she adopted to arrive at her conclusions. As counsel for the respondent pointed out, much (if not all) of the evidence, and many (if not all) of the issues, were relevant to each of the causes of action relied upon by the appellant. It was clearly open to her Honour to apply the factual findings she had reached in respect of one cause of action to another.

For these reasons, each of these grounds fails.

The respondent filed a notice of contention but in the circumstances, it is not necessary for me to consider it.

I make the following orders: