Dionisatos v Property Holdings (NSW) Pty Limited t/as Green Real Estate

1. [1]

   Mr Dionisatos left Green Real Estate in June 2022 and went to work for a competitor. Green Real Estate successfully pursued his alleged breach of the three-month post-employment restraint provisions of his employment contract in the Local Court, with damages awarded in its favour. They were pursued on the basis of the loss of a chance of selling three properties and earning associated commissions.

2. [2]

   Mr Dionisatos challenged the Local Court’s decision on appeal to this Court, seeking leave to appeal. The Local Court Act 2007 (NSW) gives parties a right of appeal in respect of questions of law and with leave, in respect of questions of mixed law and fact: ss 39 and 40. The parties arrived at a settlement which allowed the appeal in part and asked the Court to make consent orders reflecting their agreement. Section 75A of the Supreme Court Act 1970 (NSW) applies to such appeals.

3. [3]

   It was necessary for them, however, to establish that the Court had power to make the agreed orders, before they could be entered. Having heard the parties I was satisfied that Mr Dionisatos should be granted the leave which he requires and that the orders the parties agreed should be made.

4. [4]

   These are the reasons for that conclusion.

5. [5]

   There was no issue on the written submissions which the parties had advanced that the reasons given by Reiss LCM were unclear. Green Real Estate had thus filed a notice of contention which sought to support his Honour’s decision for other reasons. Given the agreement reached it was not necessary to consider this.

6. [6]

   What lay in issue between the parties on the appeal included whether Green Real Estate had suffered any loss by reason of Mr Dionisatos’ breach of the agreement. That turning on the question of Green Real Estate’s loss of the chance of earning certain commissions. Whether his Honour had erred in his approach to questions of onus was also in issue.

7. [7]

   The parties’ resolved their differences on the basis that his Honour’s orders be set aside and instead, Mr Dionisatos be ordered to pay Green Real Estate a considerably lesser sum.

8. [8]

   Reiss LCM’s lengthy judgment explained the agreed facts, the evidence which had been led, the submissions advanced and factual findings which he made. He observed at [51] that “Given the clear and multifaceted breaches of the restraint provisions by Dionisatos, many of which are actually or effectively conceded, the key issue in dispute between the parties is on the question of damages.”

9. [9]

   His Honour then turned to give an extensive explanation of the applicable caselaw in relation to loss of a chance and onus. The explanation given for the orders made were confined, however, to:

10. [10]

    The obligation to give reasons is that explained in DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at [32]-[33]. Not only must the reasons given identify the principles of law applied and the main factual findings on which the judge acted, they must resolve the parties’ factual and evidential contests by explaining how competing arguments were dealt with and why the conclusions reached were arrived at, by applying the law found, to the facts found and explaining how the result followed.

11. [11]

    Despite the extensive reasons given, the parties agree that his Honour’s reasoning was unclear, containing as it did apparent contradictions. But that it did reveal errors in relation to issues which had to be decided. They including in respect of onus and the calculation of damages for the loss of a chance, his Honour having misunderstood what was decided in Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54.

12. [12]

    That explaining their agreement on this appeal and the orders which they ask the Court to make, which have the result that the Local Court’s order that Mr Dionistas pay Green Real Estate some $92,262 plus interest is set aside and instead, he is ordered to pay it $23,065 plus interest.

13. [13]

    I was satisfied by all that was advanced that the Court did have the power to grant Mr Dionistas the leave he required and to make the orders which the parties had agreed.

14. [14]

    As Green Real Estate accepted, the onus fell on it not only to establish the breaches of contract it pursued, but the damages it claimed it had suffered as the result of the loss of the chance on which it advanced its case: Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 368; [1994] HCA 4.

15. [15]

    Having concluded that Green Real Estate had only a 25% chance, at best, of selling the three properties in issue, as the parties agreed, it was simply not open to order Mr Dionisatos pay it the entire commission it would have earned, if it had sold the properties, as his Honour did. The money orders which the parties agreed reflect the conclusion which his Honour arrived at, about the chance which had been lost.

Orders

1. [16]

   For these reasons, I granted Mr Dionisatos leave to appeal and by consent, ordered that:

   1. (1)

      Appeal allowed, to the extent set out at (2) below.

   2. (2)

      Orders ii and iii made by Magistrate Reiss on 15 May 2024 and the Local Court’s monetary order made on that date are set aside, in their place the Court orders that:

   3. (3)

      For the avoidance of doubt, these Orders do not affect costs orders made in the Local Court proceedings being proceedings 2022/00269745.