mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459
Outcome: referred to
In my view, the applicant's failure to object to the notice, if it were found to be valid, would constitute a break in the chain of causation. Put another way, at its highest, what the second respondent would have "caused" was a rental assessment notice to be sent which specified an annual rental which did not reflect the "proper rent" as defined in clause 3.2.2. While negligence on the part of a "victim" of a contravention is not a defence to a claim for damages under s 82, this does not apply where the victim's conduct operates so as to destroy the causal connection between the contravention and the loss or damage: Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at 468 per Gleeson CJ. 172 Accordingly, had the notice been valid, and had the other claims against the first respondent failed, I would not have found the second respondent liable to pay damages under s 82 even if it had, by preparing the letter, contravened s 52, because the second respondent, by its conduct, would not have caused the applicant's loss. 173 It is clear from what I have already stated that the applicant is entitled to a declaration that the notice upon which the first respondent relied for increasing the rent was not a valid notice pursuant to clause 3.2.2. It follows that the notice was of no effect.
Case: Janssen-Cilag Pty Limited v Pfizer Pty Limited (1992) 37 FCR 526
Outcome: discussed
The authorities are clear that the applicant does not itself have to rely upon the misrepresentation in order to make a claim under s 82. It may be sufficient for a third party to rely upon the misrepresentation, and for that third party reliance to cause the applicant's loss. See Janssen-Cilag Pty Limited v Pfizer Pty Limited (1992) 37 FCR 526 (" Janssen-Cilag "), Haynes v Top Slice Deli Pty Limited (1995) ATPR (Digest) |P46-147 (" Haynes "), and McCarthy v McIntyre [1999] FCA 784. However, the authorities require a "sufficient and direct link", or a "requisite element of proximity" in order for s 82 to be satisfied.
Case: Lancecrest Limited v Asiwaju [2005] EWCA Civ 117
Outcome: referred to
Since Mannai , that test has been repeatedly applied in English courts. See, for example, the recent decision of the Court of Appeal in Lancecrest Limited v Asiwaju [2005] EWCA Civ 117 (" Lancecrest "). The test has been applied in this Court in Australasian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 210 ALR 244 per Bennett J (in the context of a notice of termination). It has also been applied by the Victorian Court of Appeal in MLW Technology Pty Ltd v May [2005] VSCA 29 (in the context of a notice seeking enforcement of a term of a contract), by the New South Wales Court of Appeal in Etlis v New Age Constructions (NSW) Pty Ltd [2005] NSWCA 165 (in the context of a notice triggering an extension of time in relation to building work), and in the Supreme Court of New South Wales in McIntyre v Marshall [2004] NSWSC 412 (a vendor's notice to complete), Gibbins Thomson Pty Ltd v Council of the City of Liverpool [2004] NSWSC 1172 (a notice of failure to meet obligations under the contract), and Heaps v Addison Wesley Longman [1999] NSWSC 1093 (a notice from a tenant requesting the appointment of a second valuer in relation to a rent review). 142 In any event, the correct test to apply is not whether there is enough in a notice to put a reasonable tenant on inquiry to find out if a notice was indeed intended by the lessor to be a notice under 3.2.2. Nor is the subjective reaction of the recipient of the notice relevant: see Mannai at 767 per Lord Steyn and Lancecrest at [38]-[43] per Neuberger LJ and [88] per Brooke LJ. Either the notice is unequivocally a notice made pursuant to clause 3.2.2, or it is not. If the meaning of the notice is in doubt, objectively viewed, the notice is invalid.
Case: Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437
Outcome: cited
In response, the applicant submitted that from the time during the trial that Mr Allen gave evidence he was not required to ignore fixtures and fittings other than those identified in schedule 2, it was clear that the applicant contended that this was a basis for invalidity of the notice. It relied upon the statement of the Stephen, Mason and Jacobs JJ in Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437, at 446, where their Honours said: "If in the cause of action upon which the plaintiff sued there had emerged at the conclusion of the evidence facts which, if accepted, established that cause of action, then it was the duty of the trial judge to leave the issue of negligence to the jury. The pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence which had emerged. ... Now, and for many years past, a plaintiff does not fail by being refused leave to amend or through failure formally to apply for amendment, where the evidence has disclosed a case in the cause of action fit to be determined by the tribunal of fact. Particularly is this so when the action finally determines the rights of the parties in the cause of action." 120 In my view, it is clear that the applicant's case that the notice is invalid because it included all the fixtures and fittings in the rental assessment, was not adequately pleaded. In the paragraphs of the pleading extracted above which claim the notice is invalid, there is no reference to fixtures and fittings or to schedule 2. Moreover, these paragraphs expressly focus upon another criterion upon which the proper rent is to be assessed, namely regard being had to comparable premises in the municipality. As such, fixtures and fittings are expressly excluded from the question of whether the rent was invalidly assessed. Accordingly, the applicant requires leave to amend its statement of claim to plead this aspect of its case. 121 Whether I should grant such leave after the conclusion of evidence is a thorny issue. The respondents have both claimed that to do so will prejudice their case. They say, with some force, that they would have presented their case differently, including possibly leading new evidence, had the pleading been amended earlier. However, the reasons the applicant gives for not pleading this claim earlier are persuasive as well. There is weight in the applicant's submission that these were matters within the knowledge of the first respondent, and that they only arose in the course of Mr Allen's cross-examination. As such, the applicant was in no position to either plead, or open, in relation to this matter.
Case: Lewis v Sydney Flour Pty Ltd (1956) 56 SR (NSW) 189
Outcome: cited
The second respondent gave numerous examples of cases where it said leave to amend in similar circumstances had been refused. See Lewis v Sydney Flour Pty Ltd (1956) 56 SR (NSW) 189, Burnham v City of Mordialloc [1956] VLR 239, Ralph v Strutton [1969] Qd R 348 and Mercantile Mutual Insurance (Australia) Ltd v Farrington (1996) 44 NSWLR 634.
Case: McCarthy v McIntyre [2000] FCA 1250
Outcome: discussed
The matter was then remitted to the primary judge to make factual findings. The remittal judgment was also appealed. In that appeal ( McCarthy v McIntyre [2000] FCA 1250) , Whitlam, Emmett and Hely JJ found, at [53]: "there is no basis for concluding that, if the valuation of the Tropicana Hotel had been in the order of $2,100,000, Westpac would not have advanced the same proportion of the valuation, namely, $1,071,000 rather than $1,622,000. That, of course, would have given rise to the need to borrow additional funds elsewhere. There is no evidence to support a conclusion that it would not have been possible to borrow the additional funds from another source." 169 The reasoning of their Honours is relevant to this case. It cannot be said that "but for" the Collier's assessment, Mr Allen would have sent the applicant a notice for less than the sum actually specified in the notice. It is quite possible that a higher figure may have been specified, given that Mr Allen gave evidence that he believed Mr Williams' figure was "a bit low", and actually thought that the Mulgrave premises were worth more. Mr Allen would have been well within his rights to serve a notice which specified a higher amount, if he believed that this reflected the proper rent, taking into account the relevant criteria outlined in clause 3.2.2. The applicant's case would require me to make findings about "what would have happened" but for the alleged misleading conduct in a way that would border upon pure speculation. 170 Not being able to satisfy the "but for" test would have been a serious problem for the applicant. There is, however, a further insurmountable hurdle in relation to the applicant's case in relation to causation.
Case: McIntyre v Marshall [2004] NSWSC 412
Outcome: cited
Since Mannai , that test has been repeatedly applied in English courts. See, for example, the recent decision of the Court of Appeal in Lancecrest Limited v Asiwaju [2005] EWCA Civ 117 (" Lancecrest "). The test has been applied in this Court in Australasian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 210 ALR 244 per Bennett J (in the context of a notice of termination). It has also been applied by the Victorian Court of Appeal in MLW Technology Pty Ltd v May [2005] VSCA 29 (in the context of a notice seeking enforcement of a term of a contract), by the New South Wales Court of Appeal in Etlis v New Age Constructions (NSW) Pty Ltd [2005] NSWCA 165 (in the context of a notice triggering an extension of time in relation to building work), and in the Supreme Court of New South Wales in McIntyre v Marshall [2004] NSWSC 412 (a vendor's notice to complete), Gibbins Thomson Pty Ltd v Council of the City of Liverpool [2004] NSWSC 1172 (a notice of failure to meet obligations under the contract), and Heaps v Addison Wesley Longman [1999] NSWSC 1093 (a notice from a tenant requesting the appointment of a second valuer in relation to a rent review).
Case: Mercantile Mutual Insurance (Australia) Ltd v Farrington (1996) 44 NSWLR 634
Outcome: cited
The second respondent gave numerous examples of cases where it said leave to amend in similar circumstances had been refused. See Lewis v Sydney Flour Pty Ltd (1956) 56 SR (NSW) 189, Burnham v City of Mordialloc [1956] VLR 239, Ralph v Strutton [1969] Qd R 348 and Mercantile Mutual Insurance (Australia) Ltd v Farrington (1996) 44 NSWLR 634.
Case: MLW Technology Pty Ltd v May [2004] VSCA 29
Outcome: cited
The first respondent submitted that the notice must be construed objectively and in context: Carradine Properties Ltd v Aslam [1976] 1 WLR 442 and Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19 ; [1997] AC 749 at 767 (" Mannai "). The first respondent also submitted that a reasonable recipient is to be credited with knowledge of the terms of the lease: Mannai . See also MLW Technology Pty Ltd v May [2004] VSCA 29. 130 Since Mannai , that test has been repeatedly applied in English courts. See, for example, the recent decision of the Court of Appeal in Lancecrest Limited v Asiwaju [2005] EWCA Civ 117 (" Lancecrest "). The test has been applied in this Court in Australasian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 210 ALR 244 per Bennett J (in the context of a notice of termination). It has also been applied by the Victorian Court of Appeal in MLW Technology Pty Ltd v May [2005] VSCA 29 (in the context of a notice seeking enforcement of a term of a contract), by the New South Wales Court of Appeal in Etlis v New Age Constructions (NSW) Pty Ltd [2005] NSWCA 165 (in the context of a notice triggering an extension of time in relation to building work), and in the Supreme Court of New South Wales in McIntyre v Marshall [2004] NSWSC 412 (a vendor's notice to complete), Gibbins Thomson Pty Ltd v Council of the City of Liverpool [2004] NSWSC 1172 (a notice of failure to meet obligations under the contract), and Heaps v Addison Wesley Longman [1999] NSWSC 1093 (a notice from a tenant requesting the appointment of a second valuer in relation to a rent review). 153 For my part, I cannot discern any difference in the effect of the tests in Mannai and Catley v Watson . Nor could the Victorian Court of Appeal in MLW Technology Pty Ltd v May (see [82] per Gillard AJA (with whom Winneke P and Buchanan JA agreed)).
Case: National Australia Bank Ltd v Nobile (1988) 100 ALR 227
Outcome: cited
Amendments to pleadings should be allowed if it would not be unjust to do so: see National Australia Bank Ltd v Nobile (1988) 100 ALR 227 at 235-6 per Davies J. In my view, that test cannot be satisfied in the present case. The fact is that the respondents have been denied the opportunity to put on further evidence as to the value of the additional fixtures and fittings. They would be prejudiced if an amendment were allowed. Accordingly, leave to amend the further amended statement of claim is denied. 123 The appropriate course for the applicant to have taken was for it to have sought leave to amend its statement of claim after the conclusion of Mr Allen's evidence. It was during that evidence that the applicant contended it became clear that it would rely upon this ground as a basis for invalidity of the notice. By doing this, it may have avoided the prejudice it now claims it will suffer as a result of the pleadings not reflecting its claims in relation to the fixtures and fittings. 124 In any event, I would decline the application for leave to amend in part on the basis that the applicant's submission regarding the proper construction of clause 3.2.2 is by no means compelling (though it is plainly arguable). It is clear that the strength of the applicant's case, in relation to the proposed amendment, is a relevant consideration when determining whether to grant leave to amend. Had the applicant demonstrated a stronger case, regarding this issue, I may have been minded to allow the applicant to reopen its case, and the respondents to adduce further evidence in response. When all that can be said is that there is an arguable case, the balance of convenience weighs against adopting that course.
Case: Norwich Union Life Insurance Society v Tony Waller Ltd (1984) 270 EG 42
Outcome: discussed
The applicant also cited the case of Norwich Union Life Insurance Society v Tony Waller Ltd (1984) 270 EG 42. That case dealt with a rent review clause and a notice purportedly served pursuant to that clause. The notice was not addressed to the tenant by its proper title and was flawed in other respects. It was in the following terms: " Without Prejudice Dear Sir, 19 Fawkon Walk, Hoddesdon. We have been instructed by your landlords, the Norwich Union Insurance Group to negotiate with you in connection with the rent review contained in your lease which becomes operative as at September 29 1982. It is out clients proposal to increase the rental to [sterling]11,500 per annum exclusive as from this date. We trust that this increase is acceptable to you and would be obliged if when replying you would enclose the name and address of the solicitors who will be acting on your behalf. Yours faithfully". 41 In that case, Harman J stated, at 43: "I have been much impressed with Mr Pryor's argument that this document was in truth equivocal. It is common ground between the parties that no specific form has to be adopted in order to constitute a trigger notice. Mr Wood's submission was that it should be a clear and unequivocal notice giving plain intimation to anyone receiving it of what it was. Certainly, that is, in my view, the desirable state of all such notices. But it being common ground that no special form of words is necessary no magic formula is involved the question is: trying to read it as a whole, looking at its confused terminology, its meaningless heading "Without prejudice" and its general ineptitude, is this a document which a tenant looking at it would think was a trigger notice?" 42 His Lordship concluded by finding, at 43, that: "although there are no magic words or magic formulae to be required before a rent review clause is invoked, ... the document does have to be clear and plain to any recipient."
Case: Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc [2002] FCA 860 ; (2002) 120 FCR 191
Outcome: cited
The second respondent argued that Mr Williams was asked by Mr Allen for a "ball park" figure only, and that Mr Williams relied upon information provided by Mr Allen to inform the opinion expressed in the letter. The second respondent contended that all that was required of Mr Williams was that the opinion he expressed was honestly held and had a proper foundation: Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc [2002] FCA 860 ; (2002) 120 FCR 191 at 213. The second respondent submitted that Mr Williams' opinion was honestly held, and that he had a proper foundation for the opinion, namely the regard he had to comparable developments at Caribbean Gardens and a development called the "Pellicano development". It contended that Mr Williams was not required to undertake a detailed independent valuation. The relevant "standard" in terms of a proper foundation for the opinion was that of a real estate agent, rather than that of an independent valuer. Mr Williams is a real estate agent and could never provide a detailed, independent valuation. 100 In any event, the second respondent submitted that the figure provided by Mr Williams was within a permissible range of latitude that is appropriate for an "assessment" of this kind (14%), to that provided by Mr Finkemeyer. As such, the Colliers letter cannot be considered misleading. 101 Should the Colliers letter be found to be misleading or deceptive conduct under s 52 of the Trade Practices Act , the second respondent contended that it is not sufficient for the applicant to claim that the first respondent relied on the representation in order to make out a claim for damages under s 82 of the Trade Practices Act .
Case: Ralph v Strutton [1969] Qd R 348
Outcome: cited
The second respondent gave numerous examples of cases where it said leave to amend in similar circumstances had been refused. See Lewis v Sydney Flour Pty Ltd (1956) 56 SR (NSW) 189, Burnham v City of Mordialloc [1956] VLR 239, Ralph v Strutton [1969] Qd R 348 and Mercantile Mutual Insurance (Australia) Ltd v Farrington (1996) 44 NSWLR 634.
Case: Rural Timber Ltd v Hughes [1989] 3 NZLR 178
Outcome: referred to
The test laid down in Mannai is consistent with approaches taken to the validity of notices, or analogous documents, outside of contract law. For instance, in Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523, Burchett J warned, at 533, against adopting an "overly technical view" in considering the validity of search warrants. He stated, at 544, that in relation to the search warrants at issue in that case, "[t]he language may be infelicitous", however the nature of the offences specified in the search warrants was clear, and the search warrants were therefore valid. His Honour cited, at 543, New Zealand authority which adopted the test of what a "reasonable reader" would "gather" from the search warrants to determine whether they sufficiently indicated the offence involved: see Rural Timber Ltd v Hughes [1989] 3 NZLR 178.
Case: Shirlcar Properties Ltd v Heinitz (1983) 268 EG 362
Outcome: discussed
The applicant also relied upon the decision of the English Court of Appeal in Shirlcar Properties Ltd v Heinitz (1983) 268 EG 362 (" Shirlcar Properties "). That case also involved a rent review clause and "trigger" notice. The only matter at issue as to the validity of the notice was whether there was any doubt as to its meaning. 44 The body of the trigger notice was in the following form: "We act on behalf of your Landlords, Shirlcar Properties Ltd, and have been instructed to deal with the rent review on the above premises due as at the 29 th September 1981. The rent required as from the review date is [sterling]6,000 pa exclusive, and we look forward to receiving your agreement. Yours faithfully". 45 The agent's signature then followed. However, as Lawton J explained at 363: "a difficulty has arisen because the letter did not end with the signature of the estate agents: under that signature in capital letters which were underlined came the words "subject to contract". Immediately below that, also in capital letters, were the words "recorded delivery". " 143 It is true that the notice is headed "Notice of Rental Assessment commencing 1 March 2003 for 42-44 Glenvale Crescent, Mulgrave". However, the notice must be viewed as a whole and Shirlcar Properties makes it plain that what may otherwise be a valid notice can be invalidated by additional statements which affect the clarity, and import doubt, into the rest of the notice. In my view, the characteristics of the notice, outlined above at [136], import uncertainty and ambiguity into the notice.
Case: Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514
Outcome: referred to
In Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514, the High Court held that s 82 plainly incorporates the concept of causation. Mason CJ stated at 525: "The statutory cause of action arises when the plaintiff suffers loss or damage "by" contravening conduct of another person. "By" is a curious word to use. One might have expected "by means of", "by reason of", "in consequence of" or "as a result of". But the word clearly expresses the notion of causation without defining or elucidating it. In this situation, s.82(1) should be understood as taking up the common law practical or common-sense concept of causation recently discussed by this Court in March v. Stramare (E. &amp; M. H.) Pty. Ltd. , except in so far as that concept is modified or supplemented expressly or impliedly by the provisions of the Act. (footnote omitted)
Case: Agar v Hyde [2000] HCA 41 ; (2000) 201 CLR 552
Outcome: applied
In support of this view, his Honour pointed at [26] to authoritative statements of principle by the High Court in Perre v Apand Pty Limited [1999] HCA 36 ; (1999) 198 CLR 180 and Agar v Hyde [2000] HCA 41 ; (2000) 201 CLR 552 in which emphasis was placed, in the development of the law of negligence, on the acceptance by individuals of personal responsibility for their own actions. 125 The following paragraphs of the conclusion of Spigelman CJ are instructive and I will set them out in full: 47 The discussion of vulnerability in... Perre v Apand Pty Ltd... and the authorities cited therein, place considerable emphasis on the practical inability of the injured party to take steps to protect him or her or itself, whether because of ignorance of the risk or otherwise. There was no such practical inability in the present case. 48 It may well be that the appellant found it difficult, even impossible, to control his urge to continue gambling beyond the point of prudence. However, there was nothing which prevented him staying away from the club. The suggested duty on the club to advise him to resign his membership emphasises the point. He could have resigned at any time. The requests to refuse to cash cheques when asked, did not shift his personal responsibility for his own actions to the club. There was no reason for the club to honour one request rather than the other. 49 In my opinion this combination of circumstances is such that no duty of care was owed of the character for which the appellant contended. The risks were obvious. As Gleeson CJ said with respect to the analogous situation of a participant in sport: "The only way to avoid risk of injury is not to play" ( Agar v Hyde at 563 [18].) The Appellant must accept responsibility for his own actions. There was no duty of care. There was no unconscionable conduct. The appeal should be dismissed with costs."