FEDERAL COURT OF AUSTRALIA

Murphy v Overton Investments Pty Limited [2001] FCA 500

TRADE PRACTICES – Trade Practices Act 1974 (Cth) s 82 – “loss or damage” – requirement of causal link between loss or damage and conduct done in contravention of the Trade Practices Act – measure of damage not to be confined by analogy to other causes of action – measure of damage calculated on the basis of loss actually suffered or likely to be suffered – no compensation for a mere loss of expectation – misleading conduct found by primary judge in representations regarding lease of property to appellants by respondent retirement village – unchallenged evidence of appellants that had they not entered lease with respondent they would have entered lease with another retirement village – whether sufficient evidence before primary judge to calculate loss, if any, to appellants on the basis of misleading conduct – relevance of “rule” in Potts v Miller (1940) 64 CLR 282

TRADE PRACTICES – cause of action – when accrued

ESTOPPEL – equitable estoppel – identification of assumption adopted – whether reasonable and whether sufficiently precise – whether conduct of respondent unconscionable

JURISDICTION – whether s 7(1) of the Contracts Review Act 1980 (NSW) is capable of being exercised by the Federal Court sitting in NSW by virtue of s 79 of the Judiciary Act 1903 (Cth)

WORDS AND PHRASES – “loss or damage” – “injury”

Trade Practices Act 1974 (Cth) ss 4K, 52, 82, 87

Judiciary Act 1903 (Cth) s 79

Contracts Review Act 1980 (NSW) s 7

Misrepresentation Act 1967 (UK)

Potts v Miller (1940) 64 CLR 282, discussed

Hawkins v Clayton (1988) 164 CLR 539, cited

Pritchard v Racecage Pty Ltd (1997) 72 FCR 203, referred to

Marks v GIO Australia Holdings Limited (1998) 196 CLR 494, followed

Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1, considered

Wardley Australia Ltd v Western Australia (1992) 175 CLR 514, considered

Kizbeau Pty Ltd v WG & B Pty Ltd (1995) 184 CLR 281, cited

Toteff v Antonas (1952) 87 CLR 647, considered

Gould v Vaggelas (1985) 157 CLR 215, cited

Smith New Court Securities Ltd v Citibank NA [1997] AC 254, cited

Blacker v National Australia Bank Ltd [2001] FCA 254, referred to

Australian Securities and Investment Commission v Edensor Nominees Pty Ltd [2001] HCA 1, followed

Smith v Smith (1986) 161 CLR 217, distinguished

Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387, followed

Legione v Hateley (1983) 152 CLR 406, considered

Commonwealth v Verwayen (1990) 170 CLR 394, followed

Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd [1972] AC 741, cited

Blomley v Ryan (1956) 99 CLR 362, cited

Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, cited

Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, considered

Christopoulos v Angelos (1996) 41 NSWLR 700, distinguished

Registrar General v Cleaver (1996) 41 NSWLR 713, distinguished

Karedis Enterprises Pty Ltd v Antoniou (1995) 59 FCR 35, cited

Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31, cited

Murphy v Overton Investments Pty Ltd [2000] FCA 801, referred to

NMFM Pty Ltd v Citibank Ltd (No 10) [2000] FCA 1558, referred to

Blacker v National Australia Bank Ltd [2000] FCA 681, referred to

Kenny & Good v MGICA (1992) Ltd (1999) 199 CLR 413, referred to

Tools & Metal Manufacturing v Tungsten Electric [1955] 2 All ER 657, referred to

Bank Negara Indonesia v Haolim [1973] 2 MLJ 3 (PC), referred to

Brikom Investments v Carr [1979] 1 QB 467 (CA), referred to

Austotel Pty Ltd v Franklins Self Serve Pty Ltd (1989) 16 NSWLR 582, referred to

S & E Promotions Pty Ltd v Tobin Brothers Pty Ltd (1994) 122 ALR 637, referred to

Mobil Oil Australia Ltd v Lyndel Nominees Pty Ltd (1998) 153 ALR 198, referred to

Giumelli v Giumelli (1999) 196 CLR 101, referred to

Hughes v Metropolitan Railway Company (1877) 2 App Cas 439, referred to

Birmingham & District Land Co v North Western Railway Co (1888) 40 ChD 268, referred to

Australian Competition & Consumer Commission v CG Berbatis Holdings Pty Ltd (2000) 169 ALR 324, referred to

Olex Focas Pty Ltd v Skoda Export Co Ltd (1996) 134 FLR 331, referred to

Jedda Investments Pty Ltd v Krambousanos (1997) 72 FCR 138, referred to

Krambousanos v Jedda Investments Pty Ltd (1996) 64 FCR 604, referred to

Melverton v Commonwealth Development Bank of Australia (1989) NSW Conv R 55-484, referred to

Begbie v State Bank of New South Wales Ltd (1994) ATPR 41-288, referred to

Australian Competition & Consumer Commission v Chats House Investments (1996) 71 FCR 250, referred to

Gregg v Tasmanian Trustees Ltd (1997) 73 FCR 91, referred to

R v Commonwealth Court of Conciliation & Arbitration; Ex parte Barrett (1945) 70 CLR 141, referred to

Oraka Pty Ltd v Leda Holdings Pty Ltd (1997) ATPR 41-558, referred to

Leda Holdings Pty Ltd v Oraka Pty Ltd (1998) ATPR 41-601, referred to

LBC Laws of Australia [35.9] KE Lindgren

RP Buckley (2000) 8 TPLJ 5

JOHN JAMES MURPHY and DAPHNE MURPHY v OVERTON INVESTMENTS PTY LIMITED

N 715 of 2000

BRANSON, RD NICHOLSON and GYLES JJ

SYDNEY

2 MAY 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be stood over until 16 May 2001 for the purpose of making orders giving effect to these reasons, including orders as to costs.

2.                  The parties provide to the Associate of Branson J, by 9 May 2001, an agreed minute of the orders to be made (including the orders to be made as to costs) and if agreement has not by then been reached, the minutes of orders for which they will respectively contend and brief outlines of submissions in support of the orders.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

BRANSON J:

INTRODUCTION

1                     This appeal from orders made by a judge of the Court (Emmett J) raises for consideration issues which include the nature of the loss or damage which may found an action under s 82 of the Trade Practices Act 1974 (Cth) (“the TPA”), the applicability in the circumstances of this case of what has come to be known as the rule in Potts v Miller (1940) 64 CLR 282, and the power of a judge of this Court to grant relief in reliance on s 7 of the Contracts Review Act 1980 (NSW) (“the Contracts Review Act”).

2                     The learned trial judge, in a preamble to his reasons for judgment, described the background to the proceeding as follows:

“The respondent, Overton Investments Pty Ltd (‘Overton’), owns and operates the Heritage Retirement Village located at 33 Bernard Road, Padstow Heights (‘the Heritage Village’).  By lease dated 20 October 1992 (‘the Lease’), Overton granted a term of 99 years to John James Murphy (‘Mr Murphy’) and Daphne Lucy Murphy (‘Mrs Murphy’).  The Lease relates to Unit 53 in the Heritage Village (‘Unit 53’).  Mr Murphy still resides in Unit 53.  However, Mrs Murphy has become too ill to remain a resident of the Heritage Village and ceased to reside there on 1 April 1997.

Mr and Mrs Murphy claim that prior to entering into the Lease, misleading statements were made on behalf of Overton concerning the extent of their liability under the Lease to contribute to the expenses of operating the Heritage Village.  They say that those statements induced them to enter into the Lease and that, as a consequence, they have suffered loss.  They seek a remedy in respect of that loss.”

3                     At the hearing of the appeal we were informed that Overton no longer owns or operates the Heritage Village.

4                     I shall continue to use in these reasons the defined terms utilised by his Honour with the meanings given to them by his Honour.

5                     In my view, the only ground upon which the appeal succeeds is in respect of his Honour’s determination that he did not in the circumstances of this case, which included that he was exercising federal jurisdiction in New South Wales, have the power to grant relief in reliance on s 7 of the Contracts Review Act.

FINDINGS AT TRIAL

6                     His Honour noted that while Mr and Mrs Murphy relied upon several diverse causes of action, all of the causes of action arose out of the same circumstances.  Namely that Overton made certain representations to Mr and Mrs Murphy, and failed to inform them of certain matters, during the period 27 May 1992 to 27 November 1996.  The Lease is dated 20 October 1992.

7                     Mr and Mrs Murphy contended that certain conduct of Overton between May 1992 to 20 October 1992 contravened s 52 of the TPA.  They alleged, in effect, that Overton induced in them a belief that the estimate given to them of the initial contributions required to be made by them under the Lease (ie $55.71 per week) had been calculated by reference to all expenses being incurred or likely to be incurred in operating the Heritage Village.  On this aspect of the proceeding, his Honour observed:

“Mr Murphy certainly did not believe that the only maintenance fees that he and his wife would ever have to pay would be limited to $55.71 per week.  He understood that the liability to contribute to Outgoings could vary from time to time.  He also understood that the Heritage Village was planned to be self-funding by the residents and understood that nobody would be subsidising the Heritage Village.  It is significant that Mr Murphy did not mention to his solicitor any understanding that he had that Mrs Taylor had made a representation to him that he or Mrs Murphy would always be able to afford to live in the Heritage Village on a single pension.

Nevertheless, it was known to Mrs Taylor and, in any event, a person in the position of Overton offering leasehold interests for sale, as it was doing, must be taken to have known, that it was of importance for a prospective resident in the Heritage Village to make a reliable judgment as to what the commitments of that prospective resident would be if a lease was entered into.  A prospective lessee would have no information as to the likely quantum of maintenance fees payable under a lease other than such as was provided by Overton.  Overton alone had available to it the information upon which any reliable judgment must be founded.

Clearly, no prospective resident could expect any guarantee concerning the level of maintenance fees.  Exceptional circumstances could always arise that could have a significant effect on the maintenance fees that would be payable in the ordinary course.  Fire or other natural disaster, for example, was always at least a theoretical possibility.  Nevertheless, Overton must be taken to have understood that, by furnishing any estimate to a prospective lessee as to the likely quantum of maintenance fees payable by residents, there would be an expectation that Overton would disclose any information known only to it that would be relevant to the making of a judgment as to the reliability of any such estimate.

Mrs Taylor told Mr and Mrs Murphy that the maintenance fee for the unit of the type that Mr and Mrs Murphy were interested in was at that stage $55.71 a week.  That of itself was not misleading or deceptive or likely to mislead or deceive.  That was an accurate statement as at the time it was made.

However, Overton went further.  It furnished Mr and Mrs Murphy with a copy of the Information Booklet.  The Information Booklet was clearly a promotional tool.  Nevertheless, it bore the character of a document included as a source of information.  In referring to Overton’s policy of removing the problems of home maintenance from the resident and stating that all bills had been budgeted for in the maintenance fees, and in describing the items that the maintenance fees had been budgeted to cover, the Information Booklet was calculated to give rise to an expectation that, to the extent that those items and maintenance expenses had not been adequately budgeted for in the estimated maintenance fees, that fact would be disclosed to prospective lessees.

In stating that ‘present budget figures would indicate a level of cost payable’ in respect of a ‘B’ type unit of $55.71 per week, the Information Booklet was calculated to give rise to an expectation that any information that was material or relevant to the reliability of such an estimate would be disclosed.  The fact that expenditure incurred by Overton in order to provide the amenities and facilities referred to in the Information Booklet had not been taken into account in calculating the estimate of maintenance fees payable was material and relevant information.  The failure to disclose that information would be misleading or deceptive to a prospective lessee or would be likely to mislead or deceive a prospective lessee.

…

[T]he statement of an estimate of the outgoings in both the Lease and Information Booklet would fairly give rise to an expectation on the part of a recipient of those documents, who was an intending lessee, that Overton would disclose the fact that expenditure that Overton was entitled to take into account in arriving at that estimate had not in fact been taken into account.  That expectation was clearly not fulfilled.  I consider that, in all of the circumstances, it was misleading or likely to mislead for Overton to furnish the information contained in the Information Booklet, the Lease and the statements attributed to Mrs Taylor about the maintenance fee of $55.71 without disclosing that the estimate was calculated on figures that did not adequately provide for all expenditure actually being incurred in the operation of the Heritage Village.  It was conduct engaged in by Overton in trade or commerce and contravened section 52 of the Trade Practices Act.”

8                     His Honour also found that Overton was in breach of a duty of care which it owed to Mr and Mrs Murphy to ensure the accuracy, to the extent of information available to Overton, of the responses which it gave to questions asked by them concerning the budget for the Heritage Village Maintenance Fund in respect of the period ending June 1993.  To the extent that the budget failed to take account of expenditures being incurred and likely to be incurred, his Honour found that it was inaccurate to the knowledge of Overton.

9                     On the issue of whether Mr and Mrs Murphy suffered loss or damage as a result of Overton’s breach of its duty of care to them, or its conduct in contravention of s 52 of the TPA, his Honour made the following findings.  First, his Honour considered that it was more likely than not that Mr and Mrs Murphy would not have entered into the Lease had they been told that the estimate of maintenance fees did not accurately reflect the expenditure that Overton was incurring in operating the Heritage Village.  Secondly, his Honour found that had Mr and Mrs Murphy been told that the budget was not accurate because it did not take account of all expenditure, it is more likely than not that they would not have entered into the Lease.

10                  It was thus necessary for his Honour to determine whether Mr and Mrs Murphy had suffered any loss as a result of entering into the Lease, and if they did when that loss was suffered.  If the loss, if any, was suffered at the time that they entered into the Lease, Mr and Mrs Murphy’s claims were statute barred.

11                  Mr and Mrs Murphy contended that they suffered loss by reason of Overton’s conduct when they were first required to contribute to the total outgoings of the Heritage Village.  The primary relief that they sought before his Honour was relief under s 87 of the TPA.  They sought an order restricting Overton’s right to recover maintenance fees from them.  As Overton no longer owns or operates the Heritage Village, an order of this nature would now be of limited value.  Alternatively, they sought to quantify their loss by reference to the difference in value of the Lease according to whether maintenance fees are calculated in accordance with Overton’s legal entitlement or whether there is some restriction on Overton’s entitlement to recover full reimbursement for expenditure incurred in operating the Heritage Village.

12                  His Honour noted that there was no claim for damages relating to the consideration of $215,750 paid for the grant of the Lease and no evidence that that consideration was other than a proper consideration for the leasehold interest then acquired.

13                  His Honour referred to evidence which suggested that the value of the Lease at the time of trial was less than the consideration paid for it in 20 October 1992.  However his Honour held that there was no causal connection between any diminution in value in 1996 and the conduct of Overton in 1992.  He found that if the Lease had a lower value because of the right of Overton to recover full reimbursement of expenditure incurred in operating the Heritage Village, that was an inherent characteristic of the Lease when it was granted.

14                  His Honour further noted that there was no evidence that Mr and Mrs Murphy are not receiving value for the maintenance fees that they are paying, and concluded that on that basis there was no loss being incurred by them by reason of the level of maintenance fees that they are liable to pay.

15                  The contention that, as a result of Overton’s conduct, Mr and Mrs Murphy entered into a contract that exposed them to a contingent loss or liability was rejected by his Honour.  His Honour found that the obligation of Mr and Mrs Murphy to contribute to expenditure incurred in operating the Heritage Village was created upon entry into the Lease, and was not affected by Overton’s temporary failure to insist on full performance of that liability.  His Honour said:

“When a claimant is induced by a misrepresentation to enter into an agreement that proves to be to his or her disadvantage, the claimant sustains a detriment, in a general sense, on entry into the agreement.  That is because the agreement subjects the claimant to obligations and liabilities that exceed the value or worth of the rights and benefits that it confers upon the claimant.  However, detriment in that general sense is not universally equated with the legal concept of ‘loss or damage’ – Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 527 (‘Wardley’).  Where a misrepresentation induces a claimant to enter into an agreement to purchase property, the claimant’s loss, apart from any question of consequential damage, is measured by the difference between the price paid or payable under the agreement and value of the property at the date of the agreement – Potts v Miller (1940) 64 CLR 282 at 297-299.  Thus, it would be necessary to compare the value of the benefits that are conferred on Mr and Mrs Murphy by the Lease and the Trust Deed with the value of the obligations imposed upon them.  There is, however, no evidence of any disparity between the two.”

16                  His Honour concluded on the issue of loss or damage:

“If Mr and Mrs Murphy suffered any loss or damage as a consequence of the conduct of Overton in 1992, they did so when they entered into the Lease.  There is, however, no evidence of loss or damage at that time.  Indeed, they have eschewed a case based on any proposition that they suffered loss or damage at that time.  It follows that they have not established any loss or damage as a consequence of the conduct of Overton in 1992 that was in contravention of the Trade Practices Act or in breach of a duty of care owed in furnishing information.”

17                  His Honour went on to conclude that even if Mr and Mrs Murphy had established that they had suffered loss or damage as a consequence of the conduct of Overton in 1992, they would have suffered that loss and damage in 1992 and all causes of action for the recovery of the loss and damage were statute barred at the time that they commenced their respective proceedings.

THE LEASE

18                  Clause 5 of the Lease is headed “Contribution to Outgoings”.  Relevantly it provides:

“(a)     In addition to paying the Lease Price, the Lessee shall … contribute to the Outgoings … in respect of the Premises and the Village and facilities thereof in accordance with this Clause.

(b)        The Lessor may from time to time notify the Lessee of the Lessor’s current estimate of the Lessee’s contribution to the Outgoings … in respect of the Premises and the Village and facilities thereof in relation to any particular period (but not exceeding one (1) year from the date of notification of such estimate) and the Lessee shall thereupon make payment of the amount of such estimated contribution either monthly or at such other intervals and on such dates and in such amounts as the Lessor shall determine.  As soon as practicable after the end of each period in respect of which contribution has been levied, an adjustment shall be made between the Lessor and the Lessee by the payment of any deficiency in the amount of such contribution actually paid by the Lessee to the Lessor or the crediting of any excess by the Lessor against any future such contributions.  All amounts payable by the Lessee pursuant to this Clause shall be paid to the Lessor or as the Lessor may in writing direct.

(c)        Without in any way limiting the generality of the foregoing the Outgoings in respect of which the Lessor may levy contributions shall include provision for:

[there follows a list of items for expenditure]

…

(h)               Any contributions in respect of Outgoings levied by the Lessor under this Clause shall become due and payable to the Lessor … within seven (7) days of receipt of notice of the levy ….

(i)                 Except in the case of manifest error, the Lessee shall be bound by the determination of the Lessor as to the amounts payable by the Lessee in terms of this Clause.”

RELEVANT PROVISIONS OF THE TRADE PRACTICES ACT

19                  Part V of the TPA, which is comprised of ss 51AF-75A, is headed “Consumer Protection”.  Section 52 of the TPA provides:

 “52     (1)        A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

(2)               Nothing in the succeeding provisions of this Division shall be taken as limiting by implication the generality of subsection (1).”

Part VI of the TPA, which is comprised of ss 75B-87C, is headed “Enforcement And Remedies”.  Section 82 and subs 87(1A) and 87(1CA) of the TPA respectively provide:

“82      (1)        A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV, IVB or V or section 51AC may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.

(2)               An action under subsection (1) may be commenced at any time within 3 years after the date on which the cause of action accrued.

87        (1A)     Without limiting the generality of section 80 [which is not here relevant], the Court may, on the application of a person who has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in (whether before or after the commencement of this subsection) in contravention of a provision of Part IVA, IVB or V or on the application of the Commission in accordance with subsection (1B) on behalf of such a person or 2 or more such persons, 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 (including all or any of the orders mentioned in subsection (2)) if the Court considers that the order or orders concerned will compensate the person who made the application, or the person or any of the persons on whose behalf the application was made, in whole or in part for the loss or damage, or will prevent or reduce the loss or damage suffered, or likely to be suffered, by such a person.

87        (1CA)  An application under subsection (1A) may be commenced:

(a)               in the case of conduct in contravention of Part IVA – at any time within 2 years after the day on which the cause of action accrued; or

(b)               in any other case – at any time within 3 years after the day on which the cause of action accrued.”

NOTICE OF CONTENTION

20                  Overton, pursuant to a Notice of Contention, contended that his Honour “erred in concluding that, in all of the circumstances, it was misleading or likely to mislead for Overton to furnish the information contained in the Information Booklet, the Lease and the statements attributed to Mrs Taylor about the maintenance fee of $55.71 without disclosing that the estimate was calculated on figures that did not adequately provide for expenditure actually being incurred in the operation of the Heritage Retirement Village”.  Overton argued that his Honour’s above conclusion was inconsistent with his finding that the statement made by Mrs Taylor, that the maintenance fee for a unit of the type in which Mr and Mrs Murphy were interested was $55.71, was accurate.  For the reasons which his Honour’s recitation of the facts makes plain, there is no inconsistency between the above two findings.  The conduct which his Honour found misleading or likely to mislead was the offering without explanation of a figure in respect of contributions under cl 5 of the Lease which figure, although accurate at the time that it was made, was likely, by reason of the manner of its calculation, to cause a prospective lessee to underestimate his or her potential future liabilities under the clause.  The figure was calculated having regard to Overton’s then policy of not seeking to recover from the contributions paid by lessees the full costs incurred by it in the operation of the Heritage Village.  However, Mr and Mrs Murphy had a potential liability under the Lease, once they had signed it, to pay contributions under cl 5 of the Lease calculated by reference to the full costs incurred by Overton in the operation of the Heritage Village.

21                  I am not persuaded that his Honour’s finding that Overton engaged in conduct that was misleading or deceptive should be disturbed.  It was plainly open to his Honour to conclude, as he did, that the “the Information Booklet was calculated to give rise to an expectation that, to the extent that … items and maintenance expenses had not been adequately budgeted for in the estimated maintenance fees, that fact would be disclosed to prospective lessees” (see [7] above).

22                  Nor do I see any reason to disturb his Honour’s finding that Overton was under a duty of care to Mr and Mrs Murphy to ensure that its response to enquiries made by Mr Murphy with respect to contributions payable under the Lease were accurate to the extent of the information available at that time.  It was plainly open to his Honour to conclude, as he did, that Overton’s responses were provided in circumstances in which it was reasonable for Mr and Mrs Murphy to rely on them and that Overton knew or ought to have known that Mr and Mrs Murphy were likely to rely on them.  The evidence also established, in my view, that it was foreseeable that Mr and Mrs Murphy could suffer harm if Overton’s response was inaccurate and that Mr and Mrs Murphy had a limited capacity to protect themselves by going behind the budget figures provided to them by Overton (Hawkins v Clayton (1988) 164 CLR 539; Perre v Apand (1999) 164 ALR 606).

23                  The Notice of Contention must, in my view, fail.

Loss or Damage

24                  Section 4K of the TPA indicates that the words “loss or damage” in subs 82(1) and 87(1A) are intended to have a wide meaning.  Section 4K provides:

“In this Act:

(a)               a reference to loss or damage, other than a reference to the amount of any loss or damage, includes a reference to injury; and

(b)        a reference to the amount of any loss or damage includes a reference to damages in respect of an injury.”

25                  In Pritchard v Racecage Pty Ltd (1997) 72 FCR 203 at 217, in a judgment with which Spender and Olney JJ agreed, I said:

“I note that in Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594, in the joint judgment of Mason CJ, Deane, Dawson and Gaudron JJ, it was noted, at 600, without comment, that it was not disputed in that case that if the misleading and deceptive conduct alleged was to be attributed to the appellant, the respondent could claim pursuant to s 82 of the TP Act in respect of personal injuries suffered as a consequence of such conduct.  Each of Brennan, Toohey and McHugh JJ appears to have assumed that a claim for personal injuries could be brought in reliance on ss 52 and 82 of the TP Act.  Concrete Constructions (NSW) Pty Ltd v Nelson, in my view, provides some support for the view that s 82 is not to be read, as counsel for the first respondent contended, as excluding claims for personal injuries.

As Toohey J pointed out in Brabazon v Western Mail Ltd (1985) 58 ALR 712 at 719, the words ‘loss or damage’ are wide in their operation (see also Aristotite v Gladstone Park Shopping Centre Pty Ltd (1983) 71 FLR 276; Steiner v Magic Carpet Tours Pty Ltd [1984] ATPR 45,639 at 45,642; Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1986) 65 ALR 500 at 523-525; Baxter v British Airways plc (1988) 82 ALR 298 at 305 and Zoneff v Elcom Credit Union Ltd (1990) 94 ALR 445).

It seems to me that the word ‘injury’ in s 4K of the TP Act is intended to take on its ordinary meaning and not a strict legal meaning.  So understood, it seems to me that s 4K of the TP Act emphasises the width of the expression ‘loss or damage’ appearing in ss 82 and 87 of that Act.  I see no reason to read down the plains words of ss 82(1) and 87(1) of the TP Act by reason of the common law rule in Baker v Bolton.  In my view the rule in Baker v Bolton has no application with respect to claims brought pursuant to ss 82 and 87 of the TP Act.”

26                  In Marks v GIO Australia Holdings Limited (1998) 196 CLR 494 (“Marks”) at [34], McHugh, Hayne and Callinan JJ observed that s 82 of the TPA:

“… contains no stated limitation of the kinds of loss or damage that may be recovered and contains no express indication that some kinds of loss or damage are to be regarded as too remote to be recovered.  Indeed, s 4K may be seen as expanding the kinds of loss or damage that are dealt with in s 82 (and elsewhere in the Act) ….”

At [53] their Honours said:

“It may be that ‘injury’ in s 4K is intended to refer to injury to the person but we do not need to decide if that is so.  Even if ‘injury’ is to be given some wider meaning than personal injury, we do not accept that a person suffers injury simply because a hoped for advantage does not materialise.  The central inquiry is what consequence has the contravention of the Act had on the party in question.  That requires comparison between the position in fact of the party which alleges loss and the position that would have obtained had there been no contravention.”

27                  In Marks at [93] Gummow J expresses the view that “injury” is used in s 4K in the sense of “actionable wrong”.  In the same case at [149], Kirby J after referring to s 4K of the TPA observed:

“The precise differentiation between ‘loss’, ‘damage’ and ‘injury’ is not made clear.  There is no authority on the point.  But it is plain that the legislature has provided for the widest possible definition of adverse consequences flowing from (by) conduct in contravention of provisions of the TP Act. Clearly, therefore, by adding the words ‘damage’ and ‘injury’, the Parliament had a purpose to stress the notion of harm beyond any narrow concept of ‘loss’.”

28                  It seems to me that the weight of present authority is that the words “loss or damage” in ss 82 and 87 of the TPA are intended to carry a wide meaning so as ordinarily to allow for redress wherever a party has suffered adverse consequences by reason of the conduct of another which contravenes a relevant provision of the TPA, provided that such adverse consequences are of a kind which the law recognises as appropriate for financial compensation.

Measure of Loss or Damage

29                  Gaudron J observed in Marks at [9]:

“… it is convenient to note two matters which are clear from the terms of ss 82 and 87.  The first is that for a person to obtain relief under those sections he or she must have suffered loss or damage or, in the case of s 87, be likely to suffer loss or damage.  The second is that there is no punitive aspect to these provisions, they being concerned solely to provide for recovery of ‘the amount of the loss or damage [suffered]’ (s 82) or to ‘compensate’ for or ‘prevent or reduce’ loss or damage (s 87).”

30                  Both subss 82(1) and 87(1A) require that there be a causal link between the loss or damage suffered and the conduct that was done in contravention of the Act.  However, as McHugh, Hayne and Callinan JJ observed in Marks at [38]:

“… once that causal connection is established, there is nothing in s 82 or s 87 (or elsewhere in the Act) which suggests either that the amount that may be recovered under s 82(1), or that the orders that may be made under s 87, should be limited by drawing some analogy with the law of contract, tort or equitable remedies.  Indeed, the very fact that ss 82 and 87 may be applied to widely different contraventions of the Act, some of which can be seen as inviting analogies with torts such as deceit (eg, s 52) or with equity (eg, s 51AA) but others of which find no ready analogies in the common law or equity, shows that it is wrong to limit the apparently clear words of the Act by reference to one or other of these analogies.”

Their Honours did not consider that any of Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1, Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 or Kizbeau Pty Ltd v WG & B Pty Ltd (1995) 184 CLR 281 were authorities to the contrary.

31                  In Marks, Gummow J at [103] also expressed the view that the measure of an applicant’s loss or damage for the purposes of s 82 of the TPA is not to be confined by analogy with other causes of action.  His Honour said:

“As I have indicated earlier in these reasons, what was said by this Court in Gates (and Kizbeau Pty Ltd v WG & B Pty Ltd) does not determine that the measure of compensation which is recoverable in an action under s 82 is confined by analogies with tort or otherwise.  The measure of damages recoverable in actions of a varied nature for which s 82 provides is not to be determined on the basis that the appropriate guide in most cases will be found by asking what would have been the measure if the common law did what it does not do, namely treat as a tort any facts which happen to give rise to an action under s 82.  Analogy, like the rules of procedure, is a servant not a master.” (citations omitted)

32                  Nonetheless, subss 82(1) and 87(1A) are concerned with loss or damage actually suffered, or in the case of subs 87(1A), likely to be suffered.  They do not provide for compensation for a mere loss of expectation (Marks per Gaudron J at [12]; per McHugh, Hayne and Callinan JJ at [47]; Gummow J at [109-111]).  In Marks, McHugh, Hayne and Callinan JJ cited with apparent approval the following passage from the joint judgment of Mason, Wilson and Dawson JJ in Gates v City Mutual Life Assurance Society Ltd at 14-15:

“The disappointed expectations of a person induced by a misrepresentation to believe erroneously that his insurance policy entitles him to the payment of benefits on maturity or on the happening of a certain event are sometimes so great as to encourage the thought that compensation on the basis of lost expectations would be appropriate.  However, neither authority nor principle offer support for adopting this approach.  In all the cases in which a plaintiff has sought to recover damages on the footing that a representation amounts to a collateral contract, a fraudulent misrepresentation or a negligent misstatement, damages for expectation loss have only been awarded when the representation amounted to a collateral contract.  Neither the fact that the representation induces entry into a contract not the fact that it is a statement of the benefits to which the plaintiff will be entitled under that contract is enough to justify compensation for expectation loss.  Just as it is impossible to suppose that there is any difference in the measure of damages in deceit depending upon the nature of the contract into which the plaintiff is induced to enter, so there can be no variation in the measure of damages awarded under the Act for contraventions of ss 52 and 53(g) depending on the nature of the contract.

This conclusion involves no element of injustice to a plaintiff who is entitled to damages reflecting the loss of benefits he would have obtained under a contract which he could and would have entered into but for his reliance on the contravening conduct of the defendant.  Of course he must prove such loss but there is nothing unfair in requiring him to do so.”  (citations omitted)

33                  Moreover, where the conduct found to be misleading and deceptive was not contractual, an applicant is not able to claim to have lost, in effect, a contractual promise or its value.  However, this is not to say that an applicant affected, for example, by a non-contractual misrepresentation can never establish that his or her loss or damage is the same as if the misleading or deceptive conduct were contractual in nature.  If an applicant can establish that, but for the misleading and deceptive conduct, he or she would have entered into a contract that would have returned the benefit that he or she was induced to expect by the misleading and deceptive conduct, his or her loss or damage will ordinarily be the same as if the misleading and deceptive conduct were contractual (Marks per Gaudron J at [20]).  However, importantly for the purposes of this case:

“[t]he bare fact that a contract has been made which confers rights or imposes obligations that are different from what one party represented to be the case does not demonstrate that the party that was mislead has suffered loss or damage.  …

A party that is misled suffers no prejudice or disadvantage unless it is shown that that party could have acted in some other way (or refrained from acting in some way) which would have been of greater benefit or less detriment to it than the course in fact adopted.” (Marks per McHugh, Hayne and Callinan JJ at [47-48])

CLAIMS UNDER THE TRADE PRACTICES ACT 1974 (Cth)

34                  By their respective applications Mr and Mrs Murphy claimed damages pursuant to s 82 of the TPA and various orders under s 87 of the TPA.  By their respective statements of claim they particularised their damage as the loss of value of their leasehold interest and their liability under the Lease for amounts in excess of that represented by Overton.

35                  His Honour accepted that Mr and Mrs Murphy made known to Overton before they entered into the Lease that they were very concerned as to whether they could afford to live in the Heritage Village and that they did not want to commit themselves to something that they could not afford.  It was in that context that his Honour found that the conduct of Overton, which induced an assumption on the part of Mr and Mrs Murphy that, in arriving at the estimate of initial contributions of $55.71 per week, Overton had taken into account all expenditure being incurred in operating the Heritage Village, was misleading and in breach of Overton’s duty of care to Mr and Mrs Murphy.

36                  Mr and Mrs Murphy’s concern about whether they could afford to live in the Heritage Village had little directly to do with the capital value of the Lease or the appropriateness of the consideration to be paid by them for the grant of the Lease.  It was also unrelated to the actual value of the services which they would receive as residents of the Heritage Village.  Their concern was with whether they could reasonably expect to be able to pay from their regular income the contributions to the outgoings of the Heritage Village required by the Lease, including in circumstances in which one of them might have to make such contributions alone and from a single pension.

37                  Under cl 5 of the Lease, Mr and Mrs Murphy have at all times been under an obligation to make the contributions to outgoings for which the clause provides.  However, the clause does not place the Lessor under any obligation to recover from Lessees contributions to all outgoings incurred in the operation of the Heritage Village.  As subcl 5(c) makes plain, the Lessor has a discretion as to the outgoings in respect of which it seeks contribution from Lessees.  It is this discretionary element of cl 5 which presumably gave rise to the conduct by Overton which his Honour found to be both misleading and negligent.  While the Heritage Village was being developed, Overton did not seek to levy contributions in respect of all of the outgoings recoverable by it.  The estimate of initial contributions given to Mr and Mrs Murphy was based on a budget which did not include all recoverable outgoings attributable to the operation of the Heritage Village.  Subsequently, however, Overton did seek to levy contributions in respect of all of the outgoings recoverable by it.

38                  It seems to me that, having regard to the above circumstances, the learned primary judge may have allowed his analysis of the question of whether Mr and Mrs Murphy suffered any loss or damage as a consequence of the conduct of Overton, and if they did when such loss or damage was suffered, to be confined by analogy with the tort of deceit to an inappropriate extent.  It may be that the approach adopted by his Honour is in large part explicable by the claims for relief made by Mr and Mrs Murphy and the way in which their cases were presented.  In any event, in my view, any error of approach made by his Honour in this regard is, for the reasons set out below, without significance to the outcome of the appeal.

39                  Mr Murphy gave evidence before the learned primary judge, which his Honour appears to have accepted, and from which Mr and Mrs Murphy did not seek to resile on appeal, that had he and Mrs Murphy not entered into the Lease, they would have entered a unit in the John Paul Retirement Village, upon which they had paid a deposit, when that unit became available.  They had been on the waiting list to enter the John Paul Retirement Village for three months having been told that they could be on the waiting list “anywhere from 12 to 18 months”.  That is, this was a case in which it was known what the applicants would have done had the respondent not engaged in conduct in contravention of s 52 of the TPA.  As is mentioned in [9] above, his Honour found that it was more likely than not that had Overton given Mr and Mrs Murphy accurate and comprehensive information concerning the expenditure incurred in operating the Heritage Village they would not have entered into the Lease.  Their unchallenged evidence was that if they had not entered into the Lease they would within a relatively short period of time have entered the John Paul Retirement Village.

40                  Since it was known what Mr and Mrs Murphy would have done had Overton not engaged in conduct in contravention of s 52 of the TPA, the question of whether Mr and Mrs Murphy had suffered, or were likely to suffer, loss or damage by reason of Overton’s conduct was susceptible of relatively simple determination.  It principally called for a comparison, at a relevant time or times, between Mr and Mrs Murphy’s actual position under the Lease and the position that they would have been in had they proceeded with their alternative plan to enter the John Paul Retirement Village.

41                  It is possible, for example, that had Mr and Mrs Murphy entered and remained in the John Paul Retirement Village, their costs of doing so, including their ongoing liability towards maintenance of the John Paul Retirement Village, would have exceeded their actual and likely future costs of having entered into the Lease.  It is also possible that had Mr and Mrs Murphy entered and remained in the John Paul Retirement Village, the value of their leasehold interest in a unit in that village might have diminished, for whatever reason, more than the value of the Lease.  If these eventualities were to reflect the true position, Mr and Mrs Murphy would not have suffered, and they would be unlikely to suffer, loss or damage of the kind particularised by them by reason of Overton’s conduct in contravention of s 52 of the TPA.  Such evidence would establish that, notwithstanding Overton’s contravening conduct, Mr and Mrs Murphy are better off than they would otherwise have been in respect of ongoing liabilities for maintenance and the value of their leasehold interest.

42                  However, no evidence was placed before his Honour to establish what would have been Mr and Mrs Murphy’s position had they not entered into the Lease but rather entered the John Paul Retirement Village.  In the circumstances, in my view, his Honour was not in a position to determine whether Mr and Mrs Murphy had suffered, or were likely to suffer, loss or damage of the kind particularised by them by reason of the conduct of Overton which his Honour found to be in contravention of s 52 of the TPA.  Mr and Mrs Murphy did not suffer loss or damage by reason of Overton’s conduct simply because they were induced to underestimate their future liabilities under the Lease, or because they reasonably expected that their liabilities in respect of maintenance fees would be less than in the event proved to be the case, or because the capital value of their lease may have fallen when Overton commenced to rely fully on its rights under cl 5 of the Lease. 

43                  The above approach, in my view, is compelled by the High Court authorities to which I have referred in [29-33] above.  While those authorities make it plain that the measure of an applicant’s loss or damage for the purposes of ss 82 and 87 of the TPA is not to be confined by analogy with other causes of action, including deceit, I consider it appropriate to record that, in my view, Potts v Miller is not authority for the precise proposition formulated by his Honour (see [15] above).  Dixon J, who wrote the leading judgment in Potts v Miller, in the later case of Toteff v Antonas (1952) 87 CLR 647 at 650-651 explained perhaps more clearly than had been done in Potts v Miller, the measure of a plaintiff’s damages where he or she has purchased property under the inducement of a fraudulent representation.  His Honour said:

“In an action of deceit a plaintiff is entitled to recover as damages a sum representing the prejudice or disadvantage he has suffered in consequence of his altering his position under the inducement of the fraudulent misrepresentations made by the defendant.  When what he has been induced to do is to make a purchase from the defendant and part with his money to him in payment of the price, then, if the transaction stands and is not disaffirmed or rescinded, what is recoverable is ‘the difference between the real value of the property, and the sum which the plaintiff was induced to give for it’ per Abbott LCJ Pearson v Wheeler.  As Sir James HannenP in Peek v Derry pointed out, the question is how much worse off is the plaintiff than if he had not entered into the transaction.  If he had not done so he would have had the purchase money in his pocket.  To ascertain his loss you must deduct from the amount he paid the real value of the thing he got.  It may be objected that the point of the application of this doctrine lies in identifying ‘the transaction’ and that what Mayo J has done is to identify it as the purchase of the goodwill and that only.  But what is meant is the transaction into which the representation induced the plaintiff to enter.  The measure of damages in a action of deceit consists in the loss or expenditure incurred by the plaintiff in consequence of the inducement on which he relied diminished by the corresponding advantage in money or moneys worth obtained by him on the other side: Potts v Miller.” (emphasis added, citations omitted)

See also Gould v Vaggelas (1985) 157 CLR 215 per Gibbs CJ at 220-221 and Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 per Brennan J at 535.  For a recent consideration by the House of Lords of the question of the correct measure of damages where a plaintiff has acquired property in reliance or a fraudulent representation by the defendant see Smith New Court Securities Ltd v Citibank NA [1997] AC 254.

44                  I conclude that the “rule in Potts v Miller” will ordinarily establish the amount of the damage suffered by an applicant where the applicant, but for the fraudulent representation, would not have invested his or her funds otherwise but would have retained them.  It is not necessary for present purposes to give consideration to whether in the twenty-first century a plaintiff who has retained his or her funds, or failed to borrow funds, might be required to bring to account interest earned or interest not paid.  The “rule in Potts v Miller”, in my view, has no application, even in an action of deceit, where the evidence establishes that the fraudulent representation did not induce the applicant to purchase property or make an investment but rather induced the applicant to purchase a particular property or make a particular investment in lieu of an identified property or investment that the applicant would otherwise have purchased or made.

45                  The failure of Mr and Mrs Murphy to place relevant evidence before the learned primary judge to show that they had suffered, or were likely to suffer, loss or damage of the kind particularised by them by reason of Overton’s conduct leads inexorably, in my view, to the dismissal of their appeal so far as they seek relief under the TPA.  None of their claims for relief under ss 82 and 87 of the TPA could succeed, as the statutory precondition for relief was not established.

46                  I consider it appropriate to add, however, that in my view, in a case of this kind, an applicant may be able to show that he or she suffered loss or damage within the meaning of the TPA at a time later than the time of entry into the lease. Much will depend on the nature of the applicant’s claim (see the consideration of the principal authorities on when a cause of action under s 82(1) of the TPA is barred by reason of the expiration of the three year limitation period found in s 82(2) in Blacker v National Australia Bank Ltd [2001] FCA 254 (FC). at [57-71]). If the claim is in respect of loss or damage resulting from an alleged diminution in the value of the lease, the time at which the loss or damage was suffered (leaving aside for present purposes the issue of whether the alleged loss or damage was suffered by reason of conduct of the respondent) will depend upon expert valuation evidence.  If that evidence establishes that the value of the lease was affected by the actual level of outgoings payable under it rather than the strict legal position with respect to liability for outgoings, the person may well be able to establish that he or she suffered the relevant loss or damage at the time that the outgoings commenced to reflect the strict legal position.  However, even if it be assumed, contrary to his Honour’s finding, that there was in this case a causal connection between the conduct of Overton and the diminution in the value of the Lease, there was no evidence before his Honour upon which he could find that, had it not been for the conduct of Overton, Mr and Mrs Murphy would have been in a more advantageous position in respect of the capital value of their leasehold interest.  As is mentioned above, it is theoretically possible that the capital value of leases in the John Paul Retirement Village have dropped to an even greater extent than those in the Heritage Village.  There was simply no evidence placed before his Honour on this issue.  In any event, it may be noted that his Honour preferred the valuations of Mr Roberton, who was called by the respondent, to the valuations of the valuer called on behalf of Mr and Mrs Murphy.  Mr Roberton regarded “level of outgoings” as only one of nine primary factors in determining the value of units in the Heritage Village.  In addition, Mr Roberton expressed the opinion, which I understand his Honour to have accepted, that units like Mr and Mrs Murphy’s unit had not suffered a substantial decrease in value after November 1996 as a result of the increase in outgoings.

47                  If the claim is in respect of loss or damage resulting from the incurring of reasonable expenditure consequent upon a decision to terminate the lease because of the higher than expected level of outgoings payable under it, the time at which the loss or damage was suffered (again leaving aside for present purposes the issue of whether the alleged loss or damage was suffered by reason of conduct of the respondent) will ordinarily be the time at which the expenditure was expended or, perhaps, ought reasonably to have been expended.  In the case of such a claim, the applicant may also be able to recover the “excess” outgoings paid before the lease was terminated or ought reasonably to have been terminated.  However, an applicant will not recover under s 82 of the TPA loss or damage which he or she could reasonably have avoided (Finucane v New South Wales Egg Corporation (1988) 80 ALR 486 per Lockhart J at 519; Leigh Enterprises v Transcrete Pty Ltd (1984) ATPR 40-452 per Fitzgerald J at 45,234; Brown v Jam Factory Pty Ltd (1981) 53 FLR 340 per Fox J at 351).  While the authorities speak of a duty to mitigate loss, the basis of that duty is to be found, in my view, in the statutory requirement that the loss or damage recoverable under s 82 be loss or damage suffered “by conduct of another person”.  Where any loss or damage could reasonably have been avoided, it is, in the context of s 82 of the TPA, to be regarded not as loss or damage suffered by reason of the conduct of another, but loss or damage suffered by reason of the unreasonable conduct of the applicant.  Whether a decision made by an elderly person not to limit his or her loss by terminating a lease in a retirement village was, in all the circumstances of a particular case, a reasonable decision will be a question of fact to be determined in the light of the evidence led in that case.  Relevant issues are likely to include the overall financial consequences of any decision to terminate the lease and the likely impact of that decision, and any consequent need to move to another residence, on the physical and mental health of the applicant and, if relevant, his or her spouse, partner or dependants.

48                  The above is not intended to be a comprehensive survey of the kinds of loss or damage which might be suffered in a case of this kind at a time later than the time of entry into the lease.  It is intended to demonstrate the difficulties inherent in seeking to establish in the abstract when one person may have suffered loss or damage by reason of the misleading or deceptive conduct of another.

Negligence

49                  Mr and Mrs Murphy’s claim for damages under the general law for negligent advice was also, in my view, doomed to failure because of the absence of evidence which established that the negligent advice had caused them any damage – or at least any damage at a time that did not mean that their claim was statute barred (Gates v City Mutual Life Assurance Society Ltd at 13).  I do not consider that this is an appropriate case for detailed consideration of the relevance of the “rule in Potts v Miller” to a claim in negligence (but see Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 per Mason CJ, Dawson, Gaudron and McHugh JJ at 530).

Contracts Review Act 1980 (NSW)

50                  The learned primary judge held that the Contracts Review Act does not purport to confer jurisdiction on the Federal Court to grant the relief sought by Mr and Mrs Murphy and that such relief would have to be sought, if at all, in a State court.

51                  Since the date of the decision of the learned primary judge, the High Court has published its judgment in Australian Securities and Investment Commission v Edensor Nominees Pty Ltd (“Edensor”) [2001] HCA 1.  In Edensor the High Court gave consideration to whether the Federal Court, sitting in Victoria, could hear and determine an application under s 737 of the Corporations Law of Victoria notwithstanding that the Corporations Law of Victoria imposed that function on the Supreme Court of Victoria.  By majority (Gleeson CJ, Gaudron, McHugh and Gummow JJ, Kirby J dissenting, Hayne and Callinan not deciding), the High Court held that the effect of s 79 of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) is that, when exercising jurisdiction (necessarily federal jurisdiction) to determine a controversy, the Federal Court has power in the exercise of that jurisdiction to grant a remedy provided by State legislation notwithstanding that the State legislation identifies a particular State court as the forum for the administration of that remedy.

52                  Section 79 of the Judiciary Act provides:

“The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.”

53                  In Edensor at [68] Gleeson CJ, Gaudron and Gummow JJ observed:

“It is well established from the decisions under s 79 of the Judiciary Act,most recently that [sic] in Austral Pacific Group Ltd v Airservices Australia, that a State statute may be applicable as a source of rights and remedies in federal jurisdiction even though, on its own terms, that law identifies only the courts of the enacting State as the courts to provide those remedies.  Indeed, as Gibbs J indicated in John Robertson & Co Ltd v Ferguson Transformers Pty Ltd, were that not so the operation of federal jurisdiction might readily be stultified.  There might be withdrawn from courts exercising federal jurisdiction (including this Court) the effective authority to quell controversies in respect of which, by reason, for example, of the identity of the parties, s 75 of the Constitution had conferred original jurisdiction upon this Court and s 77 empowered the Parliament to grant authority to the other federal courts and to State courts exercising federal jurisdiction.  An attempt by State law to achieve that result would, as to this Court, be repugnant to s 75 of the Constitution.  Where jurisdiction was conferred by a law made by the Parliament in exercise of its powers under s 77 of the Constitution, the State law also would be invalid for inconsistency under s 109 of the Constitution.”  (citations omitted)

Their Honours indicated at [72-74] that particular statutory provisions might be couched in terms which made it impossible for them to be “picked up” by s 79 of the Judiciary Act.  Examples were given of powers not susceptible of exercise as part of the judicial power of the Commonwealth and of powers expressed in terms falling outside s 79.

54                  McHugh J at [129] said:

“The terms of s 79 are mandatory.  Whenever a court – State of federal – is exercising federal jurisdiction in a State or Territory, the laws of that State or Territory are binding on the court unless the Constitution or the laws of the Commonwealth otherwise provide, or those laws are inapplicable to the particular case before the Court.”

At [137] his Honour said:

“The fact that a State statute either expressly or as a matter of construction provides only for State courts to enforce its provisions does not mean that it cannot be ‘picked up’ and applied by s 79 of the Judiciary Act in the exercise of federal jurisdiction.”

55                  Section 7(1) of the Contracts Review Act provides:

“Where the Court finds a contract or a provision of a contract to have been unjust in the circumstances relating to the contract at the time it was made, the Court may, if it considers it just to do so, and for the purpose of avoiding as far as practicable an unjust consequence or result, do any one or more of the following:

(a)               it may decide to refuse to enforce any or all of the provisions of the contract,

(b)               it may make an order declaring the contract void, in whole or in part,

(c)               it may make an order varying, in whole or in part, any provision of the contract,

(d)               it may, in relation to a land instrument, make an order for or with respect to requiring the execution of an instrument that:

(i)         varies, or has the effect of varying, the provisions of the land instrument, or

(ii)        terminates or otherwise affects, or has the effect of terminating or otherwise affecting the operation or effect of the land instrument.”

56                  Section 4 of the Contracts Review Act relevantly defines “Court” to mean the Supreme Court of New South Wales or, within its jurisdictional limits, the District Court of New South Wales.

57                  In my view, s 7(1) of the Contracts Review Act is not a provision incapable of being “picked up” by s 79 of the Judiciary Act by reason of Ch III of the Constitution.  I note that s 87 of the TPA, under which this Court is given a comparably wide discretion in formulating relief, has not been suggested in any of the authorities to offend against Ch III of the Constitution.  Nor do I consider that s 7 of the Contracts Review Act falls outside the categories of State laws which the majority of the High Court in Edensor regarded as falling within the ambit of s 79.

58                  The respondent submitted that:

“One class of case in which, it is submitted, the language of a State statute makes it impossible for s 79 to pick up a statute is where the statute both creates a norm of legal liability and goes on to provide the curial forum which is to administer that remedy: See R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 155, 165-166, referred to in ASIC v Edensor at [66].  That class of case is indistinguishable from Smith v Smith (1986) 161 CLR 217, where curial approval of an agreement under s 31 of the Family Provision Act 1982 (NSW) was held to be a condition precedent to a binding contract, not a justiciable controversy.”

59                  In my view, this submission must be rejected.  Smith v Smith is distinguishable from the present case.  As Gleeson CJ, Gaudron and Gummow JJ pointed out in Edensor at [59-60], an application under s 31 of the Family Provision Act 1982 (NSW) for curial approval was not a justiciable controversy but a condition precedent to a binding contract.  As is illustrated above at [49-50], the majority of the High Court in Edensor made it plain that a State statute may be applicable as a source of rights and remedies in federal jurisdiction even though by its terms, the State statute identifies only a court of the State as the forum for the enforcement of the rights and remedies.

60                  I therefore conclude that, as his Honour was exercising federal jurisdiction in the State of New South Wales, he erred in acting on the basis that he did not have the power to grant relief under s 7 of the Contracts Review Act.  The matter must to this extent by remitted to his Honour for further consideration.

Estoppel

61                  Mr and Mrs Murphy also claimed before the learned primary judge that by reason of its conduct in 1992 Overton was estopped from recovering under the Lease all amounts to which cl 5 gave it an entitlement.  That is, Mr and Mrs Murphy are to be understood to have sought to preclude Overton from asserting its legal rights under the Lease and thereby acting inconsistently with an assumption upon which they acted on entering into the Lease.  This claim is properly to be understood, as his Honour understood it, as a claim of equitable or promissory estoppel (Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387 esp per Brennan J at 415-416 and Gaudron J at 458-459).  In my view, the learned primary judge rightly concluded that no actionable estoppel arose in relation to the conduct of Overton in 1992.

62                  His Honour did not consider that it was possible to characterise any statement made by Mrs Taylor as a promise concerning the future action of Overton or as a promise that Overton would not insist upon its legal rights under the Lease.  His Honour did, however, conclude that the conduct of Overton in 1992 induced an assumption on the part of Mr and Mrs Murphy that, in arriving at the figure of $55.71 per week as the initial contribution level, Overton had taken into account all expenditure being incurred or likely to be incurred in operating the Heritage Village.

63                  It may be that if Overton had subsequently sought to act inconsistently with the assumption adopted by Mr and Mrs Murphy in respect of the initial contribution level, Overton would have been estopped from denying the truth of the assumption for the purpose of recalculating the initial contribution level.  However, Overton did not do this.  Indeed, from 20 October 1992 until 30 June 1994 Mr and Mrs Murphy paid contributions equivalent to $55.71 per week.  What Mr and Mrs Murphy sought, in effect, was to prevent Overton over the entire life of the Lease from claiming contributions in respect of types of expenditure which did not form the basis for the calculation of the $55.71 figure and levels of expenditure out of line with those which did form the basis of that calculation.  If Mr and Mrs Murphy did assume that, in arriving at the figure of $55.71 per week as the initial contribution level, Overton had taken into account all expenditure likely to be incurred in future budget periods in operating the Heritage Village, it was, in my view, unreasonable for them to have done so.  As his Honour recognised, in the life of a retirement village new kinds of expenditures can from time to time be expected to arise and costs incurred in one period may be expected to differ appreciably from costs incurred in another.  To take but a few examples, expenditure on maintenance might be expected to increase as buildings and chattels age; new levels of costs might at any time flow from changed requirements of public authorities; changes in management practices over time might result in changed cost structures; and unprecedented expenditures might arise from accidents and natural disasters.

64                  If the approach is adopted of looking to see if Overton made a promise or representation to Mr and Mrs Murphy as to the expenditure likely to be incurred in future budget periods in operating the Heritage Village (see Legione v Hateley (1983) 152 CLR 406 per Mason and Deane JJ at 435), it seems to me that neither the statements of Mrs Taylor, nor the Information Booklet, nor the statements and the Information Booklet in combination, can be seen as constituting a clear promise or representation as to such expenditure.

65                  The now preferred approach, however, is that of looking to see whether Mr and Mrs Murphy were induced by Overton to adopt an assumption as to the future conduct of Overton (Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 384 per Mason CJ and Wilson J at 397-399; per Brennan J at 413 and per Gaudron J at 458-463; Commonwealth v Verwayen (1990) 170 CLR 394 per Mason CJ at 409-412, Deane J at 444, Dawson J at 452-456, McHugh at 500).  In the circumstances of this case, the assumption would have to be an assumption as to the expenditures which would be incurred in the future operation of the Heritage Village or as to the extent to which such expenditures would be recovered from lessees.

66                  His Honour does not appear to have been able to identify any relevant assumption made by Mr and Mrs Murphy with precision.  On the topic of Mr Murphy’s understanding at the time that he signed the Lease his Honour said:

“It is difficult to reconcile Mr Murphy’s asserted belief that Overton had, through Mrs Taylor, made some promise about the level of maintenance fees with his evidence that he read and understood the provisions of the Trust Deed and the Lease Memorandum and believed that that documentation set out his and Mrs Murphy’s rights and obligations in relation to the Heritage Village.

I am satisfied that he believed and understood that his and Mrs Murphy’s obligations and liabilities were as specified in the legal documentation.  On the other hand, he had a belief or expectation, induced by Overton’s conduct, that in the ordinary course of things, the maintenance fees that he or Mrs Murphy would be called on to pay would not increase disproportionately to increases in the age pension.  Mrs Murphy’s state of mind was not relevantly different.  Their belief and expectation was a factor that they took into account in deciding to enter into the Lease.”

67                  The belief and expectation of Mr and Mrs Murphy as to what they would be called upon to pay “in the ordinary course of things” is, in my view, insufficiently precise to found an estoppel (Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd [1972] AC 741 at 756).

68                  Further it is, in my view, essential to Mr and Mrs Murphy’s claim in estoppel based on an assumption adopted by them as to Overton’s future conduct that it was reasonable of them to adopt and act on the assumption  (Standard Chartered Bank Aust Ltd v Bank of China (1991) 23 NSWLR 164 per Giles J at 180-181 and the cases there considered; Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ at 506).  In my view, was not reasonable in the circumstances, for the reasons identified above in [63], for Mr and Mrs Murphy to have adopted and acted on any precise assumption as to the future contributions that they might be required to pay under the Lease or as to the relationship between such contributions and the age pension.  This is to leave aside the fact that, as Mr and Mrs Murphy may be presumed to have understood, increases in the aged pension are outside the control of Overton.

69                  Moreover, even if an estoppel did arise in the circumstances, it would not have operated to do more than prevent Overton from unjustly departing from the course of action which it had represented that it would adopt.  As Brennan J pointed out in Walton Stores v Maher at 419, in a case of equitable estoppel –

“The element which both attracts the jurisdiction of a court of equity and shapes the remedy to be given is unconscionable conduct on the part of the person bound by the equity, and the remedy required to satisfy an equity varies according to the circumstances of the case.  ...  However, in moulding its decree, the court, as a court of conscience, goes no further than is necessary to prevent unconscionable conduct.”

70                  The learned trial judge found that Overton gave to Mr and Mrs Murphy sufficient notice of its intention to rely on its strict legal entitlements under cl 5 of the Lease to prevent its conduct in relying on those legal entitlements from being unconscionable.  That is, his Honour found that Overton did not unjustly depart from the assumption adopted by Mr and Mrs Murphy.  In my view, his Honour’s finding that the conduct of Overton was not unconscionable was fairly open to him on the evidence and ought not to be disturbed by this Court.  Indeed, in my view, it would be rare in a case such as this that it would be found to be necessary to prevent unconscionable conduct to compel a landlord to provide accommodation on a long term basis to a lessee at a cost to the lessee that is significantly less than the costs incurred by the landlord in providing the accommodation.  The principles of equitable estoppel do not operate by giving contractual force to the assumptions upon which they are founded but by reference to equitable notions of good conscience.

71                  Although counsel for the appellant appeared to suggest otherwise, in my view there is nothing remarkable about the conclusion that Overton engaged in conduct in contravention of s 52 of the TPA but is nonetheless not subject to an estoppel.  Although as Gummow J pointed out in Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 at 38 “numerous recent decisions have developed the general law in a fashion consonant with s 52 [of the TPA]” his Honour did not suggest that the general law will always lead to consequences and provide remedies also obtainable under the TPA.  Indeed, his Honour went on in the same paragraph from which the above quotation is extracted to observe that the scope of the remedies provided in Part VI of the TPA “still provides the means to achieve results beyond those which might be attained at general law”.  It would, it seems to me, be surprising in view of the nature of Part V of the TPA if the position were otherwise.

72                  The ground of appeal concerning the claim of estoppel must also be dismissed.

Unconscionable Conduct

73                  The only grounds of appeal contained in the Notice of Appeal relating to his Honour’s rejection of the appellants’ claims based on unconscionable conduct assert that the learned trial judge erred in holding that:

“Although Mr and Mrs Murphy were at a disadvantage in their dealings with Overton, in the sense that they were unaware of the fact that the estimate of maintenance fees was not based on a calculation that took account of all expenditure that was being incurred by Overton in operating the Heritage Retirement Village, there was no special vulnerability or weakness on the part of Mr and Mrs Murphy.

Overton did not make any unconscientious use of any superior position or bargaining power to the detriment of Mr and Mrs Murphy.”

74                  The submissions made on behalf of Mr and Mrs Murphy to this Court made it plain that, in respect of the above grounds of appeal, they placed reliance on the notion of “special disadvantage” in the sense discussed in Blomley v Ryan (1956) 99 CLR 362 and more recently in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447.  In this regard the learned primary judge stated:

“Mr and Mrs Murphy contend that they were in a position of special disability vis-à-vis Overton because they were misinformed as to the nature and effect of their liability under the Lease.  That conclusion is said to follow from the fact that Overton kept from them the level of expenditure that was being incurred in operating the Heritage Village and was not being taken into account in calculating maintenance fees.  They say that Overton knew that they lacked knowledge and understanding of the entitlement of Overton to increase fees and lacked assistance and advice in entering into the Lease where assistance and advice were plainly necessary.

However, Mr and Mrs Murphy had the assistance of their own independently instructed solicitors.  Mr Murphy carefully considered the provisions of the Lease Memorandum, the Trust Deed and the Lease.  While Mr and Mrs Murphy were not highly educated, Mr Murphy was very perceptive and had a clear understanding of the effect of the documentation intended to regulate the arrangements between Overton on the one hand and Mr and Mrs Murphy on the other hand.  There was no inequality of bargaining power between Mr and Mrs Murphy and Overton.  Mr and Mrs Murphy were under no compulsion to enter into the Lease.”

75                  His Honour’s findings were, in my view, fairly open to him and ought not to be disturbed.  It was not demonstrated before his Honour that Mr and Mrs Murphy were under any “special disadvantage” (as that expression was used by Mason J in Commercial Bank of Australia Ltd v Amadio) in negotiating with Overton.

CONCLUSION

76                  In my view the appeal should be allowed for the limited purpose identified above.  In each matter the order that the application be dismissed should be set aside and the matter remitted to Emmett J for further consideration of the applicant’s claim for relief under the Contracts Review Act.

77                  No submissions were made to this Court as to the present status of the other orders made by Emmett J on 16 June 2000 and as to the appropriateness or otherwise of their now being set aside.  I would direct the parties to seek to reach agreement as to what additional orders, including orders as to costs, ought to be made in the light of this Court’s reasons for judgment.  If agreement cannot be reached, the parties should file and serve short minutes of the orders for which they will contend together with brief submissions in support of such orders.

Associate:

Dated:                                          2 May 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

RD NICHOLSON J:

78                  I have had the benefit of reading in draft the reasons prepared by Branson J and by Gyles J.   I rely on the statement there made of relevant facts and findings.  The following states my reasons on each of the issues addressed in those reasons.

NOTICE OF CONTENTION

79                  I join with Gyles J in agreeing with Branson J that, for the reasons stated by her, the notice fails.

CLAIMS UNDER THE TRADE PRACTICES ACT 1974 (CTH)

80                  This case points to the existence of some difficulty in reconciling the principles stated by the High Court in Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 with the statement of principles in Marks v GIO Australia Holdings Limited (1998) 196 CLR 494. 

81                  On the face of cl 5 of the Lease, there is scope for the application of the approach dictated by Wardley.  While the liability to pay contributions is incurred upon execution of the Lease, that liability is one determined by the application of cl 5.  Matters which are unknown from cl 5 itself are:

(a)                the items in respect of which contribution is sought;

(b)               the period in respect of which any notification of estimated contribution is payable;

(c)                the intervals, dates and amounts of payments if other than monthly;

(d)               whether interest is payable or waived;

(e)                whether any right of set-off has to be exercised;

(f)                 whether any amount is payable different from the initial contribution.

This is not therefore a case where the amount of money to be paid pursuant to the assumed obligation in the agreement is qualified by no factors extrinsic to the agreement save the passing of time:  Wardley at 538 per Brennan J.  Extrinsic factors here are decisions by the Lessor in respect of the matters in pars (a) – (f) above.  Those are not matters upon which the Lease does more than provide a process:  it does not itself provide for the mode of its application in respect of each of those matters.

82                  The assumption of the burden of liability therefore arguably tells nothing of whether an adverse balance has been struck:  Wardley at 527 per Mason CJ, Dawson, Gaudron and McHugh JJ and 537 per Brennan J.  That balance cannot be struck until some or all of the matters in pars (a) – (f) above have been determined.  While the amount payable pursuant to cl 5 remains that of the initial contribution, there is no adverse balance.  It is not necessary that the adverse balance constituting the loss or damage be ascertained; it is sufficient it be reasonably ascertainable: Wardley at 527 per Mason CJ, Dawson, Gaudron and McHugh JJ and 536 per Brennan J.  However, in the case of the application of the provisions of cl 5, it is likely these two positions will coincide.  This is not therefore a case where it is perhaps even necessary to identify extrinsic factors as “contingencies” as in Wardley:  it is sufficient that the effect of the provisions of the Lease do not enable an adverse balance to be struck without reference to extrinsic factors.  The result is that the loss or damage is arguably not suffered until the extrinsic circumstances have transpired, relevantly here that the Lessor has decided to depart from the amount of the initial contribution.

83                  Although considerable reliance was placed on the decisions in Christopoulos v Angelos (1996) 41 NSWLR 700 and Registrar General v Cleaver (1996) 41 NSWLR 713, I agree with Gyles J that those decisions arise in different factual settings.  I do not consider they can be of assistance to the appellants here. 

84                  The decision in Karedis Enterprises Pty Ltd v Antoniou (1995) 59 FCR 35 is an application of the principles in Wardley:  see at 40 per Burchett and Hill JJ and at 45-46 per Sackville J.  However, in Blacker v National Australia Bank Ltd [2001] FCA 254 at 19 par 66 the Full Court (Whitlam, Tamberlin and Sackville JJ) stated that it was not necessarily easy to apply the comments of the High Court made in the special circumstances of Wardley to a case where an applicant who has been induced by misrepresentations to enter a lease, or to purchase a business, seeks damages for the losses flowing from the misleading or deceptive conduct.  The critical question is whether the application of Marks requires a different conclusion in any event.

85                  The relevant circumstances and the findings of fact in this matter accord with those in Marks in at least the following respects.  (1) The loss or damage claimed is the quantum of the increase of outgoings and the diminution in the value of their leasehold interest.  That is, the case of the appellants was “simply that they suffered loss simply by variation of the margin”:  Marks at 504 per Gaudron J.  (2) The relevant documentation in each case permitted a change to the rate from which it is said that the loss or damage arose.  (3) The appellants, like the appellants in Marks, received notification of a proposed increase and elected to accept it.  (4) The appellants took no steps to surrender the Lease and their evidence was that they believed and wanted to believe that the Heritage Village was their last home so they had no thoughts or wishes to go elsewhere.  While there was no opportunity given to them to take alternative steps, as in Marks, that option remained available to them in law. 

86                  The reasoning of all members of the Court in Marks makes apparent that it is to the text of the Act and to the relevant provisions of the Act that the Court’s attention must primarily be directed.  All members of the Court were of the view that, following the finding of causation, neither the amount recoverable under s 82(1) nor the orders which might be made under s 87 are limited by analogy with breach of contract, tort or equitable remedies:  Marks at 503 per Gaudron J; at 510 per McHugh, Hayne and Callinan JJ; at 528 - 9 per Gummow J and at 548 per Kirby J.  The application of both ss 82 and 87 require examination of whether a person has suffered (or, in the case of s 87, is likely to suffer) loss or damage “by conduct of another person” that was engaged in the contravention of one of the identified provisions of the Act.  That inquiry is one that seeks to identify a causal connection between the loss or damage that is alleged has been or is likely to be suffered and the contravening conduct.  It is not in dispute that the kinds of loss or damage in issue may be expanded by application of s 4K of the Act.  The central question is “what loss or damage has been caused by the conduct contravening the Act”:  Marks at 512 per McHugh, Hayne and Callinan JJ.

87                  Addressing that statutory language in the broad manner which its terms allow and which are made apparent in Marks, McHugh, Hayne and Callinan JJ made three statements in their reasons of particular pertinence to the present matter.  The first was at 512:

“It follows, then, that a comparison must be made between  the position in which the party that allegedly has suffered loss or damage is and the position in which that party would have been but for the contravening conduct.  And even this inquiry may not conclude the question.”

The second is at 515:

“It is only if some alternative (less detrimental or more beneficial course) were available, that it can be said that the contract which was made was less valuable to the party that was misled than had been represented – for it is only then that a comparison or value can be made.”

The third is at 515:

“If, as we consider to be the case, the bare fact that making a contract different from what was represented is not loss or damage, something more must be shown to be likely to occur in the future before it can be said that it is likely that loss or damage will be suffered.

Ordinarily this will present the plaintiff with no difficulty.  It will be rare that the difference between what was represented and what was given will not be reflected in some difference in value or other manifestation of actual loss to the party that was misled either now or in the future.  But if it does not, we consider that neither s 82 nor s 87 relief is available.  To the extent that the contrary was held in Demagogue Pty Ltd v Ramensky (81), we consider it to be wrong.”

Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 was a decision of a Full Court of the Federal Court constituted by Black CJ, Gummow and Cooper JJ. 

88                  In Marks, Gaudron J declared herself in substantial agreement with the approach taken by Gummow J:  at 504.  Gummow J was of the view that the exercise by one party of a contractual power to increase the legal obligations of another may be an injury to the second party, which answers the description of “loss or damage” in the first sense in which that phrase is used in s 82, subject to the establishment of the necessary causal link with the requisite contravention of the Act:  at 533.  Kirby J considered that the appellants were worse off and so entitled to recovery.  At 551 he expressed the view that the loss, damage or injury suffered by the borrowers in Marks extended to the loss of the contractual terms which GIO misleadingly and deceptively represented to the borrowers there would be “fixed” for the duration of their contracts.

89                  In my opinion the ratio of the decision in Marks is accurately represented by the three passages quoted from the reasons for judgment of McHugh, Hayne and Callinan JJ.  I also consider that the third such passage quoted above makes patent that there is a critical disagreement between the view of that majority and the views of Gummow J reflected not only in the reasons of each in Marks but also in the disagreement with the reasoning of Gummow J and the other members of the Full Court in Demagogue.  There is therefore a point of principle at issue and in my view it has been resolved in terms of the statement by the majority.  That has the consequence that absent evidence of the comparative character referred to in the above quoted passages of the majority, the appellants are not able to succeed.

90                  I do not consider that the arguable agreement between Gaudron, Gummow and Kirby JJ on the accrual point can affect this view:  see Marks at 530 and 532 per Gummow J and 551 per Kirby J.  Absent the comparative evidence of the type required by the reasoning of the majority in Marks, the appellants cannot succeed even if they were to succeed on the contentions concerning accrual.

91                  The application of the reasoning of the majority is also an answer to the contention that the decision in Karedis and Blacker should lead to a different result. 

92                  I therefore agree with the reasoning of Branson J in relation to the claims under the Act. 

93                  I add that I do not see any material distinction, for the relevant purpose of the application of the ratio in Marks, between the entry into a lease in relation to a leasehold interest of a particular kind in a retirement village or otherwise and the entry into the sale and purchase of property in the same circumstances.

NEGLIGENT ADVICE

94                  Because of the view which I hold in relation to the authoritative application of Marks in relation to the claims under the Act, I share with Branson J the conclusion that the appellants’ claim for damages under the general law for negligent advice cannot succeed because of the absence of the relevant evidence. 

CONTRACTS REVIEW ACT 1980 (NSW)

95                  I agree with the reasons of Branson J and Gyles J and with the conclusion that the appeal should be allowed to the extent of remitting the matter for consideration of the grant of relief under s 7 of the Contracts Review Act.  I consider that follows from a consideration of the reasons for judgment of the High Court in Australian Securities and Investment Commission v Edensor Nominees Pty Ltd [2000] HCA 1.

ESTOPPEL

96                  I agree with the reasons of Branson J on this issue.  I add that I do not consider the findings support a conclusion that the representees could not have resumed their former position; the evidence not addressing that issue.  The case pleaded for the appellants in relation to estoppel was relevantly limited by reference to the occurrence of reasonable notice given by the respondent of any substantial change in the level of outgoings from that previously.  The primary judge considered that was the relevant circumstance in preference to the alternative plea of estoppel for the duration of the Lease.  Furthermore, I do not consider that as a matter of law a warning denying the correctness of an assumption or expectation cannot have effect where a detrimental course has been embarked upon but opportunity to ameliorate or curtail it exists because of the warning: Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387 at 428.  There was no evidence that such opportunity had been lost.

UNCONSCIONABILITY

97                  I also agree with the reasons of Branson J on this issue.  Having regard to the terms of the appellants’ pleadings, it seems to me that the pleading of this issue was all dependent on the issue of “special disadvantage” and accordingly was properly disposed of by the finding of the primary judge to which he was entitled.

CONCLUSION

98                  For these reasons I concur with Branson J that the appeal should be allowed for the limited purpose of remission to the primary judge for further consideration of the applicants’ claim for relief under the Contracts Review Act.

Associate:

Dated:                          2 May 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF

AUSTRALIA

REASONS FOR JUDGMENT

GYLES J:

INTRODUCTION

99                  This is an appeal involving a decision as to applications by each of a husband and wife which were heard together and which relate to the acquisition from the respondent of the right to live in a retirement village known as Heritage Village (“Heritage Village”).  In the body of this judgment I shall not distinguish between the proceedings, and shall refer to husband and wife together as “the appellants”.  As explained in the judgment below, these proceedings are only two of a number brought by other residents at the Heritage Village, and are by way of being test cases.

100               I have had the advantage of reading the judgment of Branson J in draft.  That, and the comprehensive judgment of the trial judge (Murphy v Overton Investments Pty Ltd [2000] FCA 801), relieves me of explaining how the issues arise, and I need only deal with the facts so far as is necessary to explain my position.  As will appear, I have no disagreement with the detailed findings of fact.

101               In my opinion, the transaction entered into by the appellants cannot be viewed simply as the sale and purchase of property.   The parties were involved in much more than a normal vendor and purchaser transaction.  The property in question was a leasehold interest of a very particular kind in a retirement village.  The combined effect of the instruments identified below as the Lease, Memorandum of Lease and an incorporated Trust Deed was to put the respondent in the position where it was lessor to the appellants (and others) of units in, and was the manager of, the Heritage Village with very considerable powers and discretions. 

102               Whilst the term of the Lease is for ninety-nine years, this is misleading.  The Lease terminates upon the death of the lessee (or surviving lessee), with power in the lessor to terminate in the event of various kinds of incapacity or misbehaviour, or in the event of breach of the provisions concerning payment.  The premises (with immaterial exceptions) are to be used solely for the purpose of a permanent home by the lessee, and there is a prohibition against surrendering, assigning, transferring, parting with possession or subletting, save for a limited right to sublet and a regulated right to surrender. 

103               Prior to the commencement of the Lease, the lessees paid an amount of $53,937.50 as so-called “Total Rent”, and an amount of $161,812.50 for so-called “Lease Deposit”.  The Total Rent is deemed to be lent to the lessor to be repaid on surrender or termination, but the lessor is entitled to deduct a monthly amount during the first five years of the lease, being one-twelfth of 20% of the Total Rent.  In other words, it is progressively exhausted over five years.  The Lease Deposit is to be refunded in the event of death or termination and either a Lease Deposit is paid by an incoming tenant or the manager agrees an amount with the lessee which is treated as the new Lease Deposit.  If the new Lease Deposit is greater than the Lease Deposit, the gain is shared equally between the lessor and lessee – in other words, 50% is added to the Lease Deposit at the time of refund.  If there is a shortfall, it is deducted in its entirety from the Lease Deposit before refund – in other words, it is borne entirely by the lessee.  No interest is paid or credited to a lessee in relation to the Total Rent or the Lease Deposit pending refund.

104               The clauses of the Memorandum of Lease which are relevant to the critical question of contributions are as follows:

 “5.      CONTRIBUTION TO OUTGOINGS

(a)               In addition to paying the Lease Price, the Lessee shall, until such time as this Lease shall have been terminated or surrendered and the Refund paid by the Lessor, contribute to the Outgoings and Outgoings of Apartments in respect of the Premises and the Village and facilities thereof in accordance with this Clause.

(b)               The Lessor may from time to time notify the Lessee of the Lessor’s current estimate of the Lessee’s contribution to the Outgoings and Outgoings of Apartments in respect of the Premises and the Village and facilities thereof in relation to any particular period (but not exceeding one (1) year from the date of notification of such estimate) and the Lessee shall thereupon make payment of the amount of such estimated contribution either monthly or at such other intervals and on such dates and in such amounts as the Lessor shall determine.  As soon as practicable after the end of each period in respect of which contribution has been levied, an adjustment shall be made between the Lessor and the Lessee by the payment of any deficiency in the amount of such contribution actually paid by the Lessee to the Lessor or the crediting of any excess by the Lessor against any future such contributions.  All amounts payable by the Lessee pursuant to this Clause shall be paid to the Lessor or as the Lessor may in writing direct.

(c)               Without in any way limiting the generality of the foregoing the Outgoings in respect of which the Lessor may levy contributions shall include provision for:

(there follows a list of items of expenditure)

…

(h)           Any contribution in respect of Outgoings levied by the Lessor under this Clause shall become due and payable to the Lessor or as the Lessor may direct in writing within seven (7) days of receipt of notice of the levy and in respect of any monies not paid on or before the day appointed for payment, the Lessee shall pay interest on the overdue sum from the day appointed for payment of the sum to the time of actual payment at the rate of two percent (2%) per annum above the rate quoted, from time to time, by the State Bank of New South Wales (or such other trading bank as the Lessor may from time to time nominate) on overdraft accommodation on amounts in excess of One Hundred Thousand Dollars ($100,000).  The Lessor may waive payments of interest wholly or in part.  All overdue and unpaid contributions of outgoings (including interest thereon) may be recovered as a debt due to the Lessor in any Court of competent jurisdiction or at the Lessor’s election irrevocably deducted from the Monies Owing or Lease Deposit or Refund.

(i)        Except in the case of manifest error, the Lessee shall be bound by the determination of the Lessor as to the amounts payable by the Lessee in terms of this Clause.

…

(l)                 The Lessor estimates that the initial contribution which the Lessee will be called upon to pay will be the amount shown in Item (6) of the Reference Schedule.  Such amount constitutes an estimate only and is subject to determination and variation from time to time in accordance with this Clause.”

105               Clause 6 of the Reference Schedule is as follows:

“ITEM 6:  ESTIMATED INITIAL OUTGOINGS

Fifty five dollars and seventy one cents ($55.71) per week – pensioner

Sixty dollars and seventy nine cents ($60.79) per week – non-pensioner”

106               The net result is that there is an ongoing relationship between the lessee and the lessor/manager of the Heritage Village, with the lessor/manager having a good deal of power through discretions, and the property acquired is not like a normal fee simple or even a normal leasehold.

107               Counsel for the respondent, by way of overview, submits that the appellants could have put a case to recover the difference between the price paid and the real value of the property in an orthodox fashion if brought in time, and that the way in which the case is now put is contrived in an endeavour to avoid obvious limitations problems.  It is submitted that there is no evidence that either the terms of acquisition or the level of contributions do otherwise than reflect market value, and that any relief will be a windfall.

NOTICE OF CONTENTION

108               As the only significant challenges to the findings of fact are made by the respondent pursuant to a Notice of Contention, it is convenient to deal with that issue first.  The Notice of Contention was as follows:

 “1.     The court erred in concluding (at paragraph 191) that, in all of the circumstances, it was misleading or likely to mislead for Overton to furnish the information contained in the Information Booklet, the Lease and the statements attributed to Mrs Taylor about the maintenance fee of $55.71 without disclosing that the estimate was calculated on figures that did not adequately provide for expenditure actually being incurred in the operation of the Heritage Retirement Village (“the first conclusion”).

2.                  The court erred in that the first conclusion was inconsistent with the finding (at paragraph 180) that the statement made by Mrs Taylor to Mr and Mrs Murphy, that the maintenance fee for the unit of the type that Mr and Mrs Murphy were interested was $55.71 a week, was an accurate statement at the time that it was made (“the second conclusion”).

3.                  The court erred in holding (at paragraph 201) that, in the circumstances, Overton was under a duty, through Mrs Taylor, to take care, if a response was given to an enquiry, to ensure that the response was accurate to the extent of information available to Overton at that time.

4.                  It was not reasonably open to the court to infer that Mrs Taylor’s statement as to the accuracy of the 1992/1993 budget was inaccurate, in so far as the budget failed to take into account expenditures being incurred and likely to be incurred (“the third conclusion”).

5.                  The court erred in that the third conclusion was inconsistent with the second conclusion.

6.                  The court erred in finding that the respondent, by Mrs Taylor, breached a duty of care to Mr and Mrs Murphy, by failing to ensure that her response to the enquiry made by Mr and Mrs Murphy was accurate, because the budget failed to take account of all the relevant expenditure.”

109               I agree with Branson J that these contentions should be rejected.  Nothing put by counsel for the respondent during the hearing caused me to think that there was substance to them.  A re-reading of the transcript of argument and the written submissions of counsel for the respondent reinforces that view.  The findings are primarily of fact well open to the trial judge. To the extent that they are mixed questions of fact and law, no error of law is demonstrated.

misleading conduct – section 52

110               The finding of misleading conduct can be gleaned from the following extracts from the judgment:

 “181.However, Overton went further.  It furnished Mr and Mrs Murphy with a copy of the Information Booklet.  The Information Booklet was clearly a promotional tool.  Nevertheless, it bore the character of a document included as a source of information.  In referring to Overton’s policy of removing the problems of home maintenance from the resident and stating that all bills had been budgeted for in the maintenance fees, and in describing the items that the maintenance fees had been budgeted to cover, the Information Booklet was calculated to give rise to an expectation that, to the extent that those items and maintenance expenses had not been adequately budgeted for in the estimated maintenance fees, that fact would be disclosed to prospective lessees. 

182.     In stating that “present budget figures would indicate a level of cost payable” in respect of a “B” type unit of $55.71 per week, the Information Booklet was calculated to give rise to an expectation that any information that was material or relevant to the reliability of such an estimate would be disclosed.  The fact that expenditure incurred by Overton in order to provide the amenities and facilities referred to in the Information Booklet had not been taken into account in calculating the estimate of maintenance fees payable was material and relevant information.  The failure to disclose that information would be misleading or deceptive to a prospective lessee or would be likely to mislead or deceive a prospective lessee.

189.     That evidence leads inexorably to an inference that the figures upon which the maintenance fee of $55.71 per week was calculated did not adequately provide for all of the expenditure actually incurred or likely to be incurred in the operation of the Heritage Village.  Under the terms of the Lease Memorandum, Overton was entitled to recover the whole of that expenditure from Lessees by way of maintenance fees.

191.     Nevertheless, the statement of an estimate of the outgoings in both the Lease and Information Booklet would fairly give rise to an expectation on the part of a recipient of those documents, who was an intending lessee, that Overton would disclose the fact that expenditure that Overton was entitled to take into account in arriving at that estimate had not in fact been taken into account.  That expectation was clearly not fulfilled.  I consider that, in all of the circumstances, it was misleading or likely to mislead for Overton to furnish the information contained in the Information Booklet, the Lease and the statements attributed to Mrs Taylor about the maintenance fee of $55.71 without disclosing that the estimate was calculated on figures that did not adequately provide for all expenditure actually being incurred in the operation of the Heritage Village.  It was conduct engaged in by Overton in trade or commerce and contravened section 52 of the Trade Practices Act.”

111               The consequence, as found, was as follows:

 “203.I consider that it is more likely than not, therefore, that Mr and Mrs Murphy would not have entered into the Lease had they been told that the estimate of maintenance fees did not accurately reflect the expenditure that Overton was incurring in operating the Heritage Village.  Further, had Mr and Mrs Murphy been told that the budget was not accurate because it did not take account of all expenditure, it is more likely than not that they would not have entered into the Lease.  Indeed, I do not understand Overton to suggest that they would have done so in such circumstances.”

112               The first point raised by the appellants is whether his Honour was correct in finding that any loss or damage suffered by the appellants in consequence of the conduct of Overton in 1992 was suffered when they entered into the Lease, and that there was no evidence of any loss at that time.  The appellants claim that the loss or damage they suffered was, at the earliest, when, as his Honour held, by letter of 27 November 1996 the respondent unequivocally communicated to the appellants a decision to bring all expenditure incurred by it in the operation of the village to the account of the Maintenance Fund for the purpose of levying contributions, or, alternatively, that the loss or damage was sustained when the levy on that basis was actually made in 1997.  The respondent argues that, even if this is a proper approach, the position should have been clear to the appellants in 1994.

113               The essence of his Honour’s reasoning on this point was as follows, which I set out verbatim because of the importance of it to the case:

 “215.   When a claimant is induced by a misrepresentation to enter into an agreement that proves to be to his or her disadvantage, the claimant sustains a detriment, in a general sense, on entry into the agreement.  That is because the agreement subjects the claimant to obligations and liabilities that exceed the value or worth of the rights and benefits that it confers upon the claimant.  However, detriment in that general sense is not universally equated with the legal concept of “loss or damage” – Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 527 (“Wardley”).  Where a misrepresentation induces a claimant to enter into an agreement to purchase property, the claimant’s loss, apart from any question of consequential damage, is measured by the difference between the price paid or payable under the agreement and the value of the property at the date of the agreement – Potts v Miller (1940) 64 CLR 282 at 297-299.  Thus, it would be necessary to compare the value of the benefits that are conferred on Mr and Mrs Murphy by the Lease and the Trust Deed with the value of the obligations imposed upon them.  There is, however, no evidence of any disparity between the two. 

216.     Where, as a result of a wrongdoer’s conduct, a claimant enters into an agreement that exposes him or her to a contingent loss or liability, the claimant sustains no actual damage until the contingency is fulfilled and the loss becomes actual.  Until that happens, the loss is prospective and may never be incurred – Wardley at 532.  However, there is no contingent loss or liability, in that sense, in the present case.  The obligation of Mr and Mrs Murphy to contribute to expenditure incurred in operating the Heritage Village arises under clause 5 of the Lease Memorandum.  That obligation was created upon entry into the Lease.  The fact that Overton was not insisting on full performance of the liability does not affect the existence of the obligation.  It may be that no debt becomes payable by a Lessee until there is notification by Overton as contemplated by clause 5(b).  Nevertheless, the obligation to contribute is incurred once a Lessee enters into a lease. 

217.   Clause 5(a) created an obligation for Mr and Mrs Murphy to “contribute to the outgoings in respect of the premises and the Village and facilities thereof in accordance with this clause”.  Under clause 5(b) Overton was entitled to notify Mr and Mrs Murphy of Overton’s current estimate of their contribution to the outgoings in relation to any particular period.  Mr and Mrs Murphy were thereupon obliged to make payment of the amount of such estimated contribution either monthly or at such other intervals and on such dates and in such amounts as Overton should determine.

218.     However, clause 5(b) also provided that, as soon as practicable after the end of each period, an adjustment was to be made between Overton on the one hand and Mr and Mrs Murphy on the other “by the payment of any deficiency in the amount of such contribution actually paid by [Mr and Mrs Murphy] to [Overton].”  Under clause 5(h) any contribution in respect of outgoings “levied by” Overton under the clause was to become “due and payable” within seven days of receipt of “notice of the levy”.

219.      Thus, the scheme of clause 5 of the Lease Memorandum is to impose an obligation to contribute to expenditure incurred from time to time.  The quantification of that obligation cannot be made until expenditure is actually incurred.  No debt becomes payable until such time as a levy or a calculation of actual expenditure is made and notified to Mr and Mrs Murphy.  While the actual liability to pay a sum of money cannot arise until some act of notifying on the part of Overton, any entitlement of Overton to reimbursement arises out of the Lease.  It is only because of the Lease that Mr and Mrs Murphy become liable to Overton in debt at some future time. 

220.     Mr and Mrs Murphy undertook an obligation to pay maintenance fees in accordance with clause 5 of the Lease Memorandum on 20 October 1992 by reason of their having entered into the Lease.  It was possible that Overton might never have sought to recover full reimbursement of the expenditure incurred by it, as it was entitled under the terms of the Lease.  Nevertheless, the entitlement to recover from Mr and Mrs Murphy existed from the time when the Lease became binding on them.  I do not consider that their obligations under the Lease were contingent in the sense that was referred to in Wardley.

221.If Mr and Mrs Murphy suffered any loss or damage as a consequence of the conduct of Overton in 1992, they did so when they entered into the Lease.  There is, however, no evidence of loss or damage at that time.  Indeed, they have eschewed a case based on any proposition that they suffered loss or damage at that time.  It follows that they have not established any loss or damage as a consequence of the conduct of Overton in 1992 that was in contravention of the Trade Practices Act or in breach of a duty of care owed in furnishing information.”

114               The appellants’ counsel argued that the loss here was a contingent loss or liability as explained in Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 527-533, 537-8, 543-5, 554-8 (“Wardley”).   It is contended that the effect of cl 5 of the Lease is that there is no liability until the lessor determines that a levy is to be made taking all expenses into account, and that it was only when the representation or advice was falsified by the making of a levy taking all expenses into account that the cause of action accrued and loss and damage was sustained for the purposes of ss 52, 82 and 87 of the Trade Practices Act 1974 (Cth).

115               The respondent rejects this, substantially for the reasons expressed by his Honour in the passages set out above.  It is submitted that if the value of the Lease is affected because of the right of the respondent to recover full reimbursement of expenditure incurred in operating the village, that was an inherent characteristic of the Lease when it was granted.

116               It is worth recalling the short facts of Wardley and how the point arose, taken from the headnote to the report (at 515):

 “The State of Western Australia sued Wardley Australia Ltd, Wardley Australia Securities Ltd and others (“Wardley”) in the Federal Court claiming damages for loss alleged to have been suffered by it as a result of misleading and deceptive conduct on the part of Wardley which led it to grant an indemnity to National Australia Bank Ltd against a facility granted by the Bank to Rothwells Ltd.  The statement of claim alleged that at a meeting on Saturday 24 October 1987 representations were made on behalf of Wardley to the effect that Rothwells had very substantial net assets, that it did not suffer a capital deficiency but simply a liquidity problem, and that there were no substantial amounts owed to Rothwells by one Connell or interests associated with him.  In reliance on the representations, which were not true, on 26 October 1987 the State executed the indemnity by which it agreed to indemnify the Bank against any net loss which might arise if Rothwells did not satisfy in full its liability under a bill facility to be granted by the Bank.  In due course the Bank called on the indemnity, and the State disputed its liability.  The dispute was later settled by the State paying the Bank $10.5 million.  On 14 January 1991 the State amended its statement of claim so as to rely on an additional representation made by Wardley at a meeting on Sunday 25 October 1987, to the effect that Rothwells was a sound financial institution which had substantial net assets.  It was pleaded that this was not the case, and that the State had been induced to give the indemnity under the influence of the misleading representations made by Wardley on the Sunday as well as of those made on the Saturday.  French J struck out the amendment on the ground that it pleaded a cause of action which was outside the time limit prescribed by s 82(2)(1).  A Full Court of the Federal Court (Spender, Gummow and Lee JJ) allowed an appeal by the State.  Wardley appealed to the High Court from the judgment of the Federal Court, by special leave.”

117               In Wardley, Mason CJ, Dawson, Gaudron and McHugh JJ said, at 532 (omitting citations):

 “If, contrary to the view which we have just expressed, the English decisions properly understood support the proposition that where, as a result of the defendant’s negligent misrepresentation, the plaintiff enters into a contract which exposes him or her to a contingent loss or liability, the plaintiff first suffers loss or damage on entry into the contract, we do not agree with them.  In our opinion, in such a case, the plaintiff sustains no actual damage until the contingency is fulfilled and the loss becomes actual;  until that happens the loss is prospective and may never be incurred.  A deferred liability may stand in a different position but there is no occasion here to discuss that matter.

In the result, we agree with the decision of von Doussa J in SWF Hoists & Industrial Equipment Pty Ltd v State Government Insurance Commission.  There the insured sued the insurer for loss suffered as a result of a misrepresentation as to the extent of the indemnity or liability coverage provided by a proposed contract of insurance.  His Honour held that actionable actual loss (as opposed to a mere potential for loss) occurred only when the insured was called on by a third party to make payments against which it would have been entitled to be indemnified by the insurer under the contract as represented.  When the events entitling the third party to make the demand for payment occurred and when the insurer indicated, prior to the making of that demand, that it would not indemnify the insured against any such demand, there was no more than a potential for loss.”

and, at 533:

 “The conclusion which we have reached is reinforced by the general considerations to which we referred earlier.  It is unjust and unreasonable to expect the plaintiff to commence proceedings before the contingency is fulfilled.  If an action is commenced before that date, it will fail if the events so transpire that it becomes clear that no loss is, or will be, incurred.  Moreover, the plaintiff will run the risk that damages will be estimated on a contingency basis, in which event the compensation awarded may not fully compensate the plaintiff for the loss ultimately suffered.  These practical consequences which would follow from an adoption of the view for which the appellants contend outweigh the strength of the argument that the principle applicable to the cases in which the plaintiff acquires property (or a chose in action) should be extended to cases where an agreement subjects the plaintiff to a contingent loss.  In such cases, it is fair and sensible to say that the plaintiff does not incur loss until the contingency is fulfilled.”

118               Brennan J said, at 537:

 “…But when the actual loss that a plaintiff suffers depends not only on the making of an agreement but also on circumstances extrinsic thereto, the loss is not suffered until those circumstances have transpired and, in benefit and burden cases, not until the loss is ascertainable. … In claims arising out of misleading or deceptive conduct, as in claims in tort, liability is for loss suffered or damage done, not for loss or damage merely foreseeable, threatened or imminent.  In a case where the relevant loss consists of a pecuniary liability, the liability must be absolute though it is not necessary that the amount be immediately payable.”

119               Deane J said (at 540):

 “…in some of the cases where an action lies in negligence for pure economic loss, no relevant loss is actually sustained or suffered and no cause of action for damages accrues unless and until some actual adverse consequence of the negligence is known or becomes manifest. …

It is not possible to derive from the authorities or from settled principle a simple negative or affirmative answer to the abstract question whether, for the purposes of a limitation provision, the mere incurring of a contingent liability to make a monetary payment in the future suffices to give rise to a cause of action of which loss or damage is a necessary ingredient.”

and (at 542-3):

 “…On balance, it seems to me that the mere assumption of such an isolated and truly contingent liability did not give rise to a factual situation within the prima facie meaning of the words “suffers loss or damage” until the stage was reached where subsequent events gave rise to actual or certain liability or other actual or certain financial detriment (eg a payment made to escape from the contingent liability).”

120               Toohey J said (at 554), after referring to Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 at 14 and a passage from Dixon J in Toteff v Antonas (1952) 87 CLR 647 at 556:

 “…That loss was not and could not have been incurred at the time the indemnity was given and, in my view, it does not avail the appellants to say that on the very day the indemnity was given the State stood to suffer some loss because Rothwells was “hopelessly insolvent”.  The loss or damage for which the State seeks recovery is the loss or damage which it suffered once events had crystallized following the giving of the indemnity.  No doubt Rothwells’ insolvency at the time carried with it the potential for loss as soon as the indemnity was given.  But, of itself, Rothwells’ financial position was not loss or damage actually incurred by the State at that moment;  nor is it the loss or damage for which the State seeks recovery.”

121               The appellants called in aid the decisions of the New South Wales Court of Appeal in Christopoulos v Angelos (1996) 41 NSWLR 700 and Registrar General v Cleaver (1996) 41 NSWLR 713.  These decisions do not substantially advance resolution of the present issue because of the different factual settings, although they do provide some support to the appellants.  The same may be said of the decision of Lindgren J in NMFM Pty Ltd v Citibank Ltd (No 10) [2000] FCA 1558 at pars 1279 to 1281.

122               The appellants relied upon the decision of the Full Court in Karedis Enterprises Pty Ltd v Antoniou (1995) 59 FCR 35.  The short facts are summarised in the headnote as follows:

“In October 1988 the respondents (the lessees) leased from the appellants (the lessors) premises on which they intended to conduct a café.  They traded from December 1988 until February 1991.  In a proceeding commenced by the lessees in November 1992, including a claim under s 82(1) of the Trade Practices Act 1974 (Cth) (the Act), the trial judge found the lessors had contravened s 52 of the Act and awarded damages.  The contravention included misrepresentations made before the lease relating to what the café takings would be.  The damages included trading losses suffered to December 1990.  The judge held the lessees were obliged to wait at least 12 months to see if the takings forecasts were realised before they could show misrepresentations on which to found their action, and their cause of action under s 82(1) of the Act did not accrue until December 1989 at the earliest.  On appeal, the lessors contended, among other things, the judge should have found the claim under s 82(1) was barred by s 82(2) of the Act prior to the commencement of the proceedings.”

123               It was held that there was no loss or damage from the breach of s 52 until it could be said that it was reasonably ascertainable that the purchaser would suffer loss (43D, 45F, 48E).  In my opinion, the decision appealed from here is plainly inconsistent with the decision in Karedis.  Indeed, the present case is a much stronger one than Karedis.  In Karedis the deficiency of the takings which affected value existed at the time of the contract.  It was a contract to purchase a business induced by fraudulent representations, a situation to which Potts v Miller has traditionally been applied.  The problem in Karedis was not one of some later event at the hands of the lessor (such as doubling the rent contrary to assurances), which is the present situation.  There is a question as to whether the decision in Wardley (relied upon by their Honours) justifies the result in Karedis.  However, Karedis was referred to with apparent approval by another Full Court in Blacker v National Bank Ltd [2001] FCA 254 (pars 66-70).

124               The decision in Blacker itself requires some consideration.  In that case, the applicant borrowers were induced to purchase a dairy farm and business by misrepresentations made by the respondent bank.  The misrepresentations were in over-optimistic budgets as to the conduct of the dairy farm and business.  It was no part of the applicants’ case that the value of the dairy farm was less than was paid at the date of acquisition.  The basis of their claim was that they had suffered loss by being induced to borrow monies from the bank which they were ultimately unable to repay because the business proved not to be financially viable.  It will be seen that there are some parallels with the present case.  It was pointed out on appeal in that case that the pleaded case rested on an allegation that the dairy business had been unprofitable from the outset.  Notwithstanding this, the Full Court approved the trial judge’s approach of finding loss when it was reasonably ascertainable by the applicants that they had suffered more than negligible losses as a result of acquiring the business, rather than applying a Potts v Miller approach.  Perhaps not a great deal can be taken from this, as, for the limitation issue on appeal, there was no difference in result as between the two approaches.  The trial judge in that case had directed himself by reference to Karedis (Blacker v National Australia Bank Ltd [2000] FCA 681 at pars 188-197).

125               Before turning to a recent High Court authority, reference should be made to the decision of the House of Lords in Smith New Court Ltd v Citibank NA [1997] AC 254 which is relied upon by the appellants.  That case dealt with damages in deceit.  Lord Browne-Wilkinson expressly left aside the measure of damages for innocent misrepresentation under the Misrepresentation Act 1967 (UK) (267F) and Lord Steyn expressly considered the basis for distinguishing deceit from negligence (279F-281A).  It is not directly in point in relation to the causes of action at issue here.  In any event, review of basic questions as to the measure of damages in the traditional torts is best left to the High Court.  Nonetheless, the decision is a pointer towards a more flexible approach to the assessment of damages.

126               The High Court recently examined  issues relevant to this appeal in the decision in Marks v GIO Australia Holdings (1998) 196 CLR 494.  The facts are summarised in the headnote as follows:

“Borrowers entered into loan facilities with a public company financier in reliance on written representations that interest would be at a specified base rate plus a margin “set” at 1.25 per cent per annum.  They drew down funds under the facilities.  Contrary to the representations, the loan contract enabled the lender to vary the margin on giving ninety days’ notice.  The lender subsequently notified the borrowers that, from a date more than ninety days later, the margin would change to 2.25 per cent per annum.  The lender also gave the borrowers the opportunity to refinance without penalty before that date.  No borrower did so.  The borrowers brought proceedings alleging, inter alia, contravention of s 52 of the Trade Practices Act. At the trial, no borrower said that, if the true terms had been known, he or she would not have borrowed at all or would have entered into alternative arrangements.  The borrowers conceded that, even with the increased margin, the facility was more beneficial to them than any other available.  The judge found that the lender had engaged in misleading or deceptive conduct in contravention of s 52.  The borrowers sought an order pursuant to s 87 varying the facilities to make good the representations or, alternatively, damages under s 82.”

127               There is an important similarity with the present facts in that the misrepresentation which led to the contract was falsified by the representor later taking advantage of a contractual term which gave the representor a discretion.  McHugh, Hayne and Callinan JJ held that the borrowers had not, and were not likely to, suffer loss or damage within the meaning of s 82 or s 87 of the Trade Practices Act.  Gummow J took a different view, and, as a consequence, considered accrual of the cause of action, in the course of which his Honour said:

“105.   … No doubt the contravention of s 52 occurred before entry by the borrowers into their respective contracts.  But any injury which would found their actions under s 82, and for which it would provide a measure of compensation, was contingent or prospective until GIO acted to increase the margin rate and that increase became legally binding upon the borrowers to expand what previously had been their contractual liabilities to GIO.  It follows that, on any footing, the expanded liabilities would not have crystallised until 1 August 1992 when the increased 2.25 per cent became effective.”

After reference to Wardley, his Honour said:

“107.  … It followed that, if the agreement in question generates an executory and contingent liability on the part of the plaintiff, the plaintiff suffers no loss until the contingency is fulfilled and time does not begin to run until that event.  …

108.          In the present case, a cause of action under s 82 would not have accrued in favour of the borrowers before 1 August 1992.  However, before that date, they had been given by GIO an opportunity to escape the imposition of what otherwise would have been an increased contractual liability upon them by taking the steps specified in the GIO letter dated 21 April 1992.  As a practical matter, the imposition of the higher rate upon the borrowers was the sequel to their exercise of choice not to accept the proposal made by GIO.

111.          In reaching these conclusions, I have assumed that, in an appropriate case, the exercise by one party of a contractual power to increase the legal obligations of another may be an injury to the second party, which answers the description of “loss or damage” in the first sense in which that phrase is used in s 82.  It will be for the second party, as an applicant under s 82, to establish the necessary causal link with a contravention of Pt IV or V and to prove the measure of compensation.  In the present case, that causal link could not be demonstrated.”

128               Each of Gaudron J and Kirby J, although in general agreement with Gummow J, did not expressly consider the accrual point.  Kirby J did, however, say:

“156.  … GIO’s final argument was that such loss or damage as occurred was not “by” reason of the contractual liability of the borrowers under their several contracts with GIO.  I disagree.”

129               It is also worth noting that all justices (including those who found no damage) were not prepared to circumscribe relief under the Trade Practices Act by reference to analogies from common law and equity, although there was confirmation of the assistance that those analogies might provide.  This has been reaffirmed in the joint judgment of Kirby and Callinan JJ (a member of each camp) in Kenny & Good v MGICA (1992) Ltd (1999) 199 CLR 413 at 459-461 (pars 125 to 131), a decision to which I shall return in dealing with negligent misstatement, and which also provides support for the appellants on the s 52 claim.

130               I find the analysis by Gummow J set out above to be compelling, and directly applicable to the present circumstances.  The fact that his Honour took a different view as to the existence of loss or damage from some other justices does not affect the point at issue.  In any event, if it matters, it does not appear that Gummow J was in a minority as to loss or damage – the result was three each.  Unless there were compelling reasons not to do so, I would apply the reasoning of Gummow J to the present case, and uphold the gist of the appellants’ argument on this point.  Far from being compelled to a contrary conclusion, the Full Court decision in Karedis (applied in Blacker) would lead to the same result.  Whilst I have reservations as to the reasoning in Karedis as applied to the facts of that case, it is not clearly wrong, and certainly provides no barrier to my application of the reasoning of Gummow J in Marks to this case.  In my opinion, even if (contrary to my view) Marks decides that the change of position of GIO did not amount to actual or likely loss or damage, it does not follow that there was no loss or damage here.  There was no finding in Marks that there was any difference in the ability of the applicant to service the loan in either event, or, that if the representations had not been made, no transaction would have been entered into.  Here, the finding is that affordability of contributions was a critical factor to the decision of the appellants to enter the transactions.

131               I should add that if I am correct in thinking that the decision in Marks was split 3:3 as to what constituted loss or damage for the purposes of s 87, it would follow that, on this issue, Demagogue v Ramensky (1992) 39 FCR 31 remains good law on that issue for the purposes of this Court, regardless of the disapproval of it by McHugh, Hayne and Callinan JJ.  Whatever an individual judge may think of it, it has stood for many years and is not plainly wrong.  It supports the argument for the appellants as to the effect of s 87 of the Act.

132               In my opinion, a change in contributions due (contrary to representations) which adversely affected the affordability of contributions by a lessee in a retirement village does lead to loss or damage within the meaning of Pt VI of the Trade Practices Act.  It is unrealistic to equate entry into a retirement village on the terms here with acquisition of a chattel, a business or the fee simple of commercial real estate.  As his Honour said, the decision by the appellants to sell their home of many years and to buy a leasehold interest in this retirement village was probably one of the most momentous that they made in their joint lives.  Having made that momentous change, to find that, contrary to representations by the lessor/manager, contributions could not be afforded, left them open to termination of the lease for breach, with all of the disruption and cost, let alone the potential for loss of capital, necessarily involved.  In my opinion, this certainly means that they were likely to suffer loss or damage within s 87 from November 1996, and that is sufficient for the purposes of this case. 

133               The argument in principle which is contrary to the above is that, as there is no finding either that the property was worth less than was paid for it, or that the contributions levied from 1997 onwards do not reflect actual costs, to grant relief would be to give the appellants a windfall gain.  That argument was put, but did not prevail, in Marks.  If it did not prevail there, it certainly should not prevail here.  Paying more interest, when there was no “affordability” problem asserted or found, is a vastly different proposition from the position in which the appellants find themselves, being confronted with payments that cannot be afforded, with the immediate risk of removal from their final home.

134               The trial judge was wrong in finding that any loss or damage which was suffered occurred upon entry into the Lease.  In my opinion, operation of cl 5 of the Lease Memorandum depended upon a decision by the lessor to levy on a full recovery basis, not upon the existence of an underlying state of facts which existed at the time of the transactions, as in the classic Potts v Miller case.  Clause 5 imposed an inchoate obligation which was only translated into operation by the act of the lessor in levying contributions.  My disagreement with the judgment below is as to principle rather than primary facts.  In view of the findings of fact which have been made, it is possible and appropriate to go on and consider the time at which loss or damage is sustained, because of the limitations issues which lurk in the background.

135               In my opinion, the appellants were likely to and did suffer loss or damage for relevant purposes when the levy of contributions was made in April 1997 on the basis of full recovery of costs which departed from the misleading representations. I also tend to the view that loss or damage within s 82 was occasioned at the time of the levy of contributions on a full recovery basis.  The other point of view would be that default in payment of contributions is necessary for loss to be sustained.  In my opinion, the loss was occasioned when the appellants were confronted with the obligation to pay.  The risk of termination for breach at that point became real and immediate.

136               If the test is that loss or damage is suffered when it is reasonably ascertained, in my opinion that was no earlier than 27 November 1996 when, as I have said, his Honour found that the respondent unequivocally communicated to the appellants a decision to bring all expenditure incurred by it in the operation of the village to the account of the Maintenance Fund for the purpose of levying contributions.  It may be accepted that the appellants should have appreciated by November 1994 that their assumptions as to the level of contributions may have been wrong, but there is no finding that they were provided then with full disclosure as to the extent of the falsity of the representations, and as to the practical difference between the situation which would result if the representations were true and the situation which would exist if cl 5 were fully applied to the actual circumstances either in 1994 or in the future.  In the absence of such information, the true position could not have been and was not ascertained by the appellants.  In particular, there is no finding that the appellants should have understood in 1994 that they would not be able to afford contributions from then on.

137               With all respect, even if I am wrong, I do not agree that the starting point for the ascertainment of loss or damage is the value of an alternate particular retirement unit elsewhere.  This is a novel approach to  cases such as the present.  The appellants did not, and do not, set out to make that case, and did not call evidence on that basis.  If a comparison is to be made, it should be between no transaction and the transaction entered into, not between an alternative, hypothetical, transaction and the actual transaction.  The point at issue here is whether the real value of the leasehold is assessed at the date of the transaction or at a later time.  To take any different view would be to impose enormous and indeterminate risk on a respondent.  It would also greatly complicate and lengthen cases, both in the preparation and hearing.  An applicant would be encouraged to put forward other alternative profitable investments, the performance of which would then have to be investigated and tracked.  A respondent would be encouraged to seek to prove that the applicant would, on the balance of probabilities, have made an imprudent investment which would have to be investigated and tracked.  The flaw in principle which I see is that this approach does not take account of the fact that all investments are assumed to be made at market value, exchanging dollar for dollar.  The value of the dollar amount which happened to be spent on the acquisition of this leasehold is worth the same, at the date of that acquisition, as the same dollar amount spent on the acquisition of a unit in another particular retirement village, in shares or in government bonds.  The future performance of those alternative investments does not retrospectively affect the value as at the time of investment.  Thus, the price paid is the starting point for any comparison with value which is to be made at the date of the transaction.

negligent advice

138               The gravamen of his Honour’s finding is as follows:

 “200.On the other hand, the statement concerning the accuracy of the budget must also be considered in the light of the fact that the budget under provided for expenditure being incurred and likely to be incurred by Overton in operating the Heritage Village.  In so far as Overton continued the policy of bearing itself part of the expenditure incurred in operating the Heritage Village, the budget was accurate.  However, in so far as the budget failed to take account of expenditures being incurred and likely to be incurred, it was quite inaccurate.  Mrs Taylor must be taken to have known that Mr and Mrs Murphy would rely on a response concerning Mr Murphy’s enquiry as to the accuracy of the budget.  I consider, therefore, that Overton was under a duty to take care in giving a response to his enquiry.

201.         I consider that in the circumstances, Overton was under a duty, through Mrs Taylor, to take care, if a response was given to the enquiry, to ensure that the response was accurate to the extent of information available to Overton at the time.  For the reasons I have indicated, the response was not accurate because the budget failed to take account of all of the relevant expenditure.  There was, therefore, a breach of duty in the circumstances.”

139               It was found that the consequence was entry into the Lease.  Relief was refused as no loss or damage was proved for reasons already dealt with in considering the s 52 claim.

140               The tort of negligent advice (or misstatement) is of relatively recent origin and has a wide operation in many circumstances.  The law relating to it, including aspects of damages, is not settled (Kenny & Good per Gummow J, par 75).  The most recent examination by the High Court of damages in relation to negligent advice was in Kenny & Good, a case of a negligent valuation of land leading to an imprudent mortgage insurance transaction.  One of the arguments advanced by the appellant there was that Potts v Miller inflexibly required that in calculating the loss suffered where property was acquired as a result of deceit, the purchaser was required to give credit for the fair or real value of the property purchased at the time of its purchase.  That argument did not command the assent of any justice.  Kirby and Callinan JJ (agreed with in this respect by Gummow J) said:

“123.   Nothing said in Potts v Miller is determinative of this case.  Indeed, as Dixon J’s reasons in that case show, different situations may arise in practice in cases of deceit (of which Potts was one).  There can be no rigid rules to govern all cases.  If an example is required of the flexibility with which these questions need to be approached, Gould v Vaggelas provides it.  There the Court allowed as damages trading losses incurred some time after the giving of a false inducement.  It did so on the basis that it was reasonable, in the particular circumstances, for the purchasers to continue to carry on business as they did.”

141               It was common ground in that case that there was no difference in the measure of damages between s 52 and negligence, and it is made clear that this will very often be the case, absent special considerations (Gaudron J, pars 15 and 30;  Kirby and Callinan JJ at pars 125 to 131 (inclusive)). 

142               There are some statements which apply the principles I have preferred in dealing with s 52, to negligent misstatement.  Gaudron J (at pars 14 to 17) said (omitting citations):

 “14.   Where economic loss is said to have resulted from a transaction entered into in reliance upon negligent advice or information, the approach of this Court has not been confined to looking at the immediate situation brought about by entry into the transaction.  That is because, as was pointed out in Wardley Australia Ltd v Western Australia “[w]ith economic loss, as with other forms of damage, there has to be some actual damage” and not simply “[p]rospective loss”.  And where a transaction involves benefits and burdens, “no loss is suffered until it is reasonably ascertainable that, by bearing the burdens, the plaintiff is ‘worse off than if he had not entered into the transaction’”.

15.       It was pointed out in Wardley that “[t]he kind of economic loss which is sustained and the time when it is first sustained depend upon the nature of the interest infringed and, perhaps, the nature of the interference to which it is subjected”.  Wardley was concerned with an action for damages for breach of s 52 of the Act.  However, there is no reason in principle why the position should be any different in tort.

16.       The interest that a mortgage lender seeks to protect by obtaining a valuation of the proposed security is not simply an interest in having a margin of security over and above the mortgage debt.  Rather, it is that, in the event of default, it should be able to recoup, by sale of the property, the amount owing under the mortgage.  And that is also the interest of a mortgage insurer.  It is the risk that recoupment might not be possible that calls the valuer’s duty of care into existence.  And it is the interest in recoupment that is infringed by breach of that duty.  Moreover, the time that loss occurs (and hence the time when the tort is complete) is when recoupment is rendered impossible.  In the case of a mortgage transaction, that will occur when it is reasonably ascertainable that sale will result in a loss.  At the earliest it will be when default occurs and, at the latest, when the property is sold.

17.       Once the interest which calls the valuer’s duty of care into existence is identified as the interest of the mortgage lender in recouping what is due under the mortgage in the event of default, it is simply a matter of common sense to treat the loss arising from inability to recoup as flowing from breach of that duty, except to the extent that that inability is, in law, referable to the lender’s own actions or some supervening event.  At least that is so where, but for the negligent valuation, there would have been no mortgage transaction at all.”

Gummow J (at pars 84, 85, 86, 89 and 90) said:

 “84.   This case also bears a temporal aspect which apparently differs from that assumed in Banque Bruxelles.  Whatever may have been the situation upon the facts of the various appeals in Banque Bruxelles, the cause of action of MGICA in negligence accrued when the damage to its interest (as indicated above) was sustained.  This was, at the earliest, when the mortgagor defaulted, and certainly when the property was sold.

85.              Mason CJ, Dawson, Gaudron and McHugh JJ in Wardley Australia Ltd v Western Australia considered the economic loss arising from conduct which contravened s 52 of the Trade Practices Act.  Their Honours said:

                        “The kind of economic loss which is sustained and the time when it is first sustained depend upon the nature of the interest infringed and, perhaps, the nature of the interference to which it is subjected.”

86.              They went on to distinguish the detriment suffered by a person when first entering into an agreement relying on the negligent misrepresentation and the legal concept of “loss or damage” which may manifest at a later time.  These propositions apply with equal force to the tort of negligence and to this case.

89.              MGICA’s risk of non-payment “crystallised” at the moment of realisation, when the relationship between the market value of the property and the moneys secured became fixed in the relevant sense.  MGICA sustained an economic loss arising from the fall in the property market as a result of the valuation because the value of the property had been negligently overstated in circumstances where MGICA would not have entered into the transaction but for the valuation.  The “loss” which is recoverable was sustained at the time of default and not at the time of entering into the transaction.

90.       In Rabadan v Gale Salmon J considered a similar situation.  The third defendant, the plaintiff’s former solicitors, had negligently drafted a lease.  They had failed to execute the plaintiff’s instructions to draw a lease allowing her to undertake certain modifications to the leased dwelling.  On a strike-out application, the question was whether the action was statute barred.  This presented the issue, “[w]hen could the plaintiff first sue [in tort]?”.  Turning to the common law rule that a cause of action in tort only accrues when both the breach and damage have occurred, Salmon J determined the first moment of damage.  Following Wardley, his Honour held that the loss could not have been quantified at the time of entering the lease as a contingency had yet to be fulfilled.  This was the possibility that the plaintiff could have obtained consent to the modifications from her fellow lessees in the dwelling.”

143               In the present case the negligent misstatement was related to the ability of the appellants to afford the contributions to be levied, which depended upon a contingency, namely, the basis upon which the lessor chose to levy contributions.  In my opinion, in the circumstances of this case, the same result follows whether damages flow from negligent misstatement or a breach of s 52.  For the reasons which I have expressed in relation to breach of s 52, I am of the opinion that loss or damage was suffered in 1997 when contributions were first levied on a full recovery basis.

144               There are aspects of the assessment of damages to which I shall return.

ESTOPPEL

145               The following findings of the trial judge are relevant to this issue, in addition to the findings as to misleading conduct which I have already set out: 

 “85.   I am satisfied that [Mr Murphy] believed and understood [as at 20 October 1992] that his and Mrs Murphy’s obligations and liabilities were as specified in the legal documentation.  On the other hand, he had a belief or expectation, induced by Overton’s conduct, that in the ordinary course of things, the maintenance fees that he or Mrs Murphy would be called on to pay would not increase disproportionately to increases in the age pension.  Mrs Murphy’s state of mind was not relevantly different.  Their belief and expectation was a factor that they took into account in deciding to enter into the Lease.

233.         It is a fair conclusion from the evidence, however, that the conduct of Overton during 1992 induced an assumption on the part of Mr and Mrs Murphy that, in arriving at the estimate of $55.71 per week, Overton had taken into account all expenditure being incurred or likely to be incurred in operating the Heritage Village.  In so far as it would be unconscionable for Overton to depart from that assumption, Overton would be estopped from doing so.  For example, it would be unconscionable to depart from that assumption if Mr and Mrs Murphy were called upon to pay increased maintenance fees on short notice in circumstances where they had organised their affairs on the basis of the false assumption, and could not immediately rearrange their affairs so as to enable them to meet the increased expenditure. …

234.     It is clear that from March 1994 onwards, Overton was maintaining the position that, while up to that time there had been an under recovery of expenditure, Overton intended thereafter to seek to recover full reimbursement of all expenditure incurred in operating the Heritage Village.  Mr and Mrs Murphy accept that they were able to manage the increase of 18.37 per cent with effect from 1 July 1994.  They were not called upon to bear any further increase until 27 November 1996.  They effectively had more than two years within which to rearrange their affairs, including selling their interest under the Lease or surrendering it if need be, so as not to be in a position where the maintenance fees would be beyond their means.  If any estoppel arose, it was one that would have prevented Overton from requiring an increase in maintenance fees without giving reasonable notice of its intention to do so.  It effectively gave in excess of two years’ notice before further increases were required.  Accordingly, I do not consider that any actionable estoppel arises in relation to the conduct of Overton during 1992.”

146               It is submitted for the appellants that the judge was wrong in applying a test arguably appropriate to promissory estoppel arising from a post-contractual representation, exemplified by cases such as Tools & Metal Manufacturing v Tungsten Electric [1955] 2 All ER 657, to the present situation.  It is submitted that the decisions of the High Court in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 and Commonwealth v Verwayen (1990) 170 CLR 394, together with decisions such as Bank Negara Indonesia v Haolim [1973] 2 MLJ 3 (PC) and Brikom Investments v Carr [1979] 1 QB 467 (CA), lead to the result that in a case like the present, where the representation is pre-contractual, a representor cannot escape by resiling from the representation with notice where the representee has permanently altered its position on the faith of the representation by entering into the transaction. 

147               Counsel for the respondent submits that it is a necessary element of the applicable principle that the representor has created or encouraged an assumption that a particular legal relationship or an interest will arise or be granted by the representor if certain things are done or not done by the representee in reliance on a representation and that it is contrary to good conscience for the representor to depart from the assumption.  Various bases were put for suggesting that there was no such assumption in the present case, and that, even if there was, it was not contrary to good conscience to depart from it.  Reliance was placed upon Austotel Pty Ltd v Franklins Self Serve Pty Ltd (1989) 16 NSWLR 582, S & E Promotions Pty Ltd v Tobin Brothers Pty Ltd (1994) 122 ALR 637 and Mobil Oil Australia Ltd v Lyndel Nominees Pty Ltd (1998) 153 ALR 198.  In particular, it is submitted that any assumption which had been created in the present case would only relate to the 1992/1993 year.  It is also submitted that it follows from these authorities that the principles of equitable estoppel are directed to redressing the detriment which a party might otherwise sustain as a result of the departure from an assumption on which the representee acts with encouragement from the representor – the estoppel is intended to relieve against the detriment suffered rather than make good an expectation.  The Court will mould the relief granted to alleviate the detriment but go no further.  This can be called the “minimum equity” argument.  It was put that in the present case any detriment, if it did exist, ceased by the end of 1992/1993 financial year.  It was also submitted that the representations were too vague and uncertain to found an estoppel, citing Legione v Hateley (1983) 152 CLR 406.

148               In my opinion, the appellants’ submissions are correct in substance both as to fact and law.  Some of the respondent’s contentions are wrapped up with its notice of contention which I have rejected.  The findings by his Honour are not relevantly for this purpose restricted to the 1992/1993 year.  The foundation representation was that the known contribution level took into account all relevant outgoings.  That did relate to that period.  However, from this, it could be assumed that changes to contributions in the future would be adjusted by reference to rising costs brought about by inflation.  As pensions are also adjusted in relation to inflation, it could therefore be reasonably assumed that if the then level of contributions could be afforded by reference to the pension it was likely to be affordable in the future.  This was the critical thing so far as these purchasers were concerned.  It was found that the transaction was entered into on the faith of these assumptions which were brought about by the representations of the respondent.

149               In my opinion, his Honour was correct in holding that it might be unconscionable to depart from those assumptions.  His error was in holding that the representor should be permitted to resile from the assumptions it created on giving notice after the transaction had been entered into.  Whatever might have been said for that view prior to the decision of the High Court in Waltons Stores, once it was held in that case that a pre-contractual representation could found equitable estoppel, the landscape changed.  (See also Commonwealth v Verwayen (1990) 170 CLR 394 and the analysis of that decision in Giumelli v Giumelli (1999) 196 CLR 101 at 120-125.)  In any event, even in the case of post-contractual promissory estoppel, it is only conscientious to depart from a created assumption if the representee can resume its former position, given notice.  The classic statement of the principle is that of Lord Cairns LC in Hughes v Metropolitan Railway Company (1877) 2 App Cas 439 (at 448):

“It was not argued at your Lordship’s Bar, and it could not be argued, that there was any right of a court of equity, or any practice of a court of equity, to give relief in cases of this kind, by way of mercy, or by way merely of saving property from forfeiture, but it is the first principle upon which all courts of equity proceed, that if parties who have entered into definite and distinct terms involving certain legal results – certain penalties or legal forfeiture – afterwards by their own act or with their own consent enter upon a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties.”

In Birmingham & District Land Co v North Western Railway Co (1888) 40 ChD 268 Bowen LJ, after referring to the foregoing passage from Lord Cairns, said (at 286):

“It seems to me to amount to this, that if persons who have contractual rights against others induce by their conduct those against whom they have such rights to believe that such rights will either not be enforced or will be kept in suspense or abeyance for some particular time, those persons will not be allowed by a court of equity to enforce the rights until such time has elapsed, without at all events placing the parties in the same position as they were before.  That is the principle to be applied.  I will not say it is not a principle that was recognised by courts of law as well as of equity.  It is not necessary to consider how far it was always a principle of common law.”

150               The essence of the unconscionability alleged here lies in the fact that it was the representor which, after the transaction had been entered into by the representee, unilaterally departed from the assumptions it had created by taking into account, for the purpose of contributions, items which had not been brought to account at the time the representation was made.  On any view, this departure took place long after the transaction had been entered into.  In my opinion, it cannot be suggested that the representees could have resumed their former position by the time the assumption was departed from.  Even if, contrary to my view, the appellants should be expected to attempt to rescind the contract, and were successful in doing so, time and circumstance had inexorably moved on.  They were faced with a whole new set of circumstances.  It is worth recalling a finding by his Honour as follows:

 “147.However, from Mr Murphy’s point of view, he did not wish to leave the Heritage Village or to sell or surrender the Lease.  He hoped that the problem could be sorted out.  He appreciated that he could possibly have sold if he had chosen to sell but that, having thought about that option, his preferred course was to try to work out and solve the dispute somehow.”

151               There is no finding that disengagement from this retirement village was offered to the appellants by the respondent on terms which would place the appellants in the same financial position as they would have been in absent the transaction (such as occurred in Marks).  Indeed, the respondent has not conceded any wrongdoing.  The appellants should not be forced to litigate to achieve that result.  There is no finding that surrendering the Lease according to its terms would not have disadvantaged the appellants.  In fact, the evidence of the valuers would indicate that capital would have been lost, as the value of the unit was less than the price paid at all material times.  In any event, finances aside, the appellants would not be in their former position.  Their home of many years has been sold and other arrangements would have to be made.

152               Even if the respondent were correct in the submission as to the “minimum equity” limitation upon relief, I can see no order short of a restraint upon unconscionably increasing contributions, at least during the lives of the applicants, as meeting the equity raised.  Even this would be inadequate, because it would not deal with the loss of capital.  That, however, is not the field of estoppel.  In any event, the passages from the decision of the High Court in Giumelli cited above indicate that the “minimum equity” argument has no place in this case.

153               I do not agree with the submission that the basis for estoppel is too vague and uncertain.  The gist of the equity is clear.  The respondent should not be permitted to include items or heads of expenditure which were not taken into account in calculating the represented estimate in expenses for the purposes of levying contributions.

154               The appeal on this issue must therefore be allowed.  I shall return to consider what order should be made having considered other grounds of appeal. 

unconscionability

155               This issue has been left in an unsatisfactory state.  The pleaded case, after allegations of special disadvantage, continued:

“26.    By reason of the matters set out in paragraphs 12.1 to 12.20, 14, 17, 25 and 25.1 the Applicant and his wife lacked assistance, explanation and advice where assistance, explanation and advice were plainly necessary if there were to be any reasonable degree of equality between the Applicant and his wife and Overton.

27.  By reason of the matters set out in paragraphs 12.1 to 12.20, 14, 17, 25 and 25.1, the Applicant and his wife were the weaker party to the transaction with Overton and were unable to make a judgement as to their best interests.

28.  The special disadvantage of the Applicant and his wife entered [sic] outlined in paragraphs 25 to 27 inclusive, were sufficiently evident to Overton to make it prima facie unfair or unconscientious that Overton provide, or accept the Applicant and his wife’s consent to the impugned transaction in the circumstances in which Overton provided or accepted it.

28.1          In the alternative to paragraph 28, Overton being aware of the possibility that a situation of special disadvantage existed between the Applicant and his wife (as outlined above in paragraphs 25 to 27 inclusive) and Overton, being aware that the Applicant and his wife could not make a judgement as to what was in their best interests, took unfair advantage of the Applicant and his wife by entering into the Lease with the Applicant and his wife.

29.  Overton has taken advantage of the special disability of the Applicant and his wife when asserting an entitlement to recover by way of outgoings under the Lease any amounts in excess of those fairly and reasonably based on “the estimates” and by asserting a continuing entitlement to recover sums from the Applicant and his wife in excess of the monthly contribution amount of $311.80 (ie $71.95 per week).

30.  In the premises it is unconscionable for Overton to be able to recover by way of outgoings amounts in excess of those fairly and reasonably based on “the estimates” and by asserting a continuing entitlement to recover sums from the Applicant and his wife in excess of the monthly contribution amount of $311.80 (ie $71.95 per week).

E.      Unconscionability under s 51AA of the Trade Practices Act

31.  By reason of the matters set out above, Overton has contravened s 51AA of the Trade Practices Act 1974 (Comm).”

156               The trial judge rejected the case of special disadvantage in relation to the transaction, and so dismissed the claims for relief.  On appeal, the argument on each side concentrated upon that issue, as if the claim for relief were for setting aside the transaction.  That, however, is not the relief claimed, or the case pleaded.  The proper basis of that case is captured by par 30.

157               It is not clear to me how the issue of unconscionability (including s 51AA) was put below, and in particular whether the pleaded case was abandoned in any respect.  If it were not, then I regard the s 51AA case as at least arguable.  This would depend upon s 51AA covering conduct involving the same kind of unconscionable conduct as I have identified in relation to estoppel.  This is a somewhat controversial question upon which we did not hear argument.

158               That basis of unconscionable conduct may not depend upon special disadvantage in the Blomley v Ryan (1956) 99 CLR 362 or Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 sense.  See, for example, French J in Australian Competition & Consumer Commission v CG Berbatis Holdings Pty Ltd (2000) 169 ALR 324 at pars 22 to 28;  Pritchard v Racecage Pty Ltd (1997) 142 ALR 527 at 544-546;  Olex Focas Pty Ltd v Skoda Export Co Ltd (1996) 134 FLR 331;  and the discussion in Laws of Australia at 35.9 by KE Lindgren and by RP Buckley at (2000) 8 TPLJ 5.  In any event, there is support in the authorities for the contention of counsel for the appellants that an imbalance of information, together with other factors, may constitute special disadvantage, particularly in Jedda Investments Pty Ltd v Krambousanos (1997) 72 FCR 138, affirming Krambousanos v Jedda Investments Pty Ltd (1996) 64 FCR 604.  See also Melverton v Commonwealth Development Bank of Australia (1989) NSW Conv R 55-484 at 58-515;  Begbie v State Bank of New South Wales Ltd (1994) ATPR 41-288;  Australian Competition & Consumer Commission v Chats House Investments (1996) 71 FCR 250;  and Gregg v Tasmanian Trustees Ltd (1997) 73 FCR 91 at 119-120.  It is not appropriate to express any view about these arguments.

159               If the argument were restricted to unconscionable conduct in relation to the transaction itself, I would not interfere.  If the transaction here were liable to be set aside for unconscionability because of the lessor taking advantage of the imbalance of information, it is difficult to see why the same conclusion would not be reached in each case of fraudulent misrepresentation or knowing breach of s 52 which induces a transaction.

160               As the matter is to be returned for consideration of the Contract Review Act issue, the judge should consider whether the wider s 51AA case is open, and, if so, whether it should succeed, unless reliance upon it is precluded by what took place at the trial.  I have referred to s 51AA because it does not appear that the equitable doctrine could found relief going beyond that based upon estoppel.

contracts review act

161               I agree with the reasons of Branson J which conclude that the decision of the High Court in Australian Securities & Investment Commission v Edensor Nominees Pty Ltd [2001] HCA 1 leads to the result that the Court had jurisdiction to hear and determine the claims made in pars 4 and 6 of the Third Further Amended Application under the Contracts Review Act 1980 (NSW).  The Trade Practices Act claims here involve the exercise of federal jurisdiction.  In my opinion, the Contracts Review Act is not, as counsel for the respondent submitted, a statute which both creates a norm of legal liability and goes on to provide the curial form which is to administer the remedy as explained in R v Commonwealth Court of Conciliation & Arbitration;  Ex parte Barrett (1945) 70 CLR 141.  None of the New South Wales courts which may exercise jurisdiction are a specialised curial forum in that sense.

162               The judge was entitled (and probably bound) to find to the contrary on the basis of a line of authority in this Court to which the respondent has referred, but effect must now be given to the subsequent High Court decision.  I would leave open for the judge the question as to whether the claim in par 5 of the Third Further Amended Application has sufficient connection with the issues to be properly determined.

limitations

163               My findings as to the time at which loss or damage was suffered eliminate any limitations defence.

relief

164               I have held that the appellants are entitled to relief based upon breach of s 52, negligent misstatement and estoppel, and that the judge should consider the Contracts Review Act claim and unconscionability (particularly as to s 51AA).  It is not possible to make any final orders for relief, as much depends upon further decisions to be made by the judge and elections to be made by the appellants. I also note that there was a suggestion during the hearing that an order based on estoppel would adversely affect other occupants of the retirement village.  There are other complications, as apparently the respondent is no longer connected with the property (cf Oraka Pty Ltd v Leda Holdings Pty Ltd (1997) ATPR 41-558 at 43,718, and, on appeal, Leda Holdings Pty Ltd v Oraka Pty Ltd (1998) ATPR 41-601 at 40,507).  I am not at all sure that I fully follow the effect of other collateral proceedings upon relief.  Furthermore, relief under s 87 involves the exercise of considerable discretion.  I would allow the appeal, and simply remit the matter to the trial judge for further hearing.

165               There are some aspects of damages to which I should refer, as the conclusions below meant that there was no comprehensive consideration of the assessment of damages.  His Honour did not assess damages.  The argument on appeal only concentrated upon one matter dealt with in the judgment, namely, the difference between valuers called for each party.  It would follow from my views that damages at common law and pursuant to s 82 would be the same in this case.  This will require an assessment by the judge of loss or damage sustained by the appellants by reason of entering into the transactions as a result of the pre-contractual misrepresentations.

166               One way of assessing this would be a comparison between the amount paid in 1992 with the value of the leasehold at the relevant later time, with appropriate adjustments to take account of loss of interest on the purchase money and contributions compared with the value of unit occupation.  As remarked by Gummow J in Kenny & Good (at par 92), this approach would give to the respondent both the benefit and burden of the movement in market values.  I express no view as to whether the relevant later time is April 1997 or the date of the order as we heard no argument on that point.  Another possible approach would be to assess the direct effect of the contingency, namely, the difference between the represented level of contribution (adjusted for time) and the actual contributions, and to allow the actual difference up to trial, and then a lump sum representing the present value of the difference into the future. 

167               I have no doubt that in resolving these questions guidance will be obtained from a closer examination than we had in argument of the recent cases which have assessed damages on a basis other than Potts v Miller, and there may be issues as to the manner in which the appellants have propounded their case.  In those circumstances, I will only briefly refer to a couple of matters.  The first is that it is beyond doubt that, all other things being equal, a significant difference in the levels of contribution must be reflected in the capital value of the leasehold.  Significantly higher contributions must reduce the capital value.  Any evidence which casts doubt upon that self evident truth should be carefully scrutinised.  The second is that it is not at all clear to me that the nature and significance of the evidence as to discounted cash flow values was sufficiently brought home to his Honour by the parties. 

conclusion

168               I would allow the appeal, set aside the orders below, and remit the matter to the trial judge for further hearing.  I would order that the respondent pay the appellants’ costs of the appeal.  The costs of the trial should be dealt with as part of the renewed hearing.

Associate:

Dated:              2 May 2001