Appellant v Respondent

1 The appellant, Mr Michael Taylor, is the registered proprietor of a property in Youanmite, a small settlement north east of Shepparton ('property'). The respondent, Mr Maxwell Taylor, is his father. The respondent was the plaintiff in a proceeding in the Magistrates' Court at Shepparton, and the appellant was the defendant. The dispute between father and son arose after the appellant in effect evicted the respondent from the property, where the respondent lived in a dwelling moved to the property in 1995 ('dwelling'). The dwelling had been purchased by the respondent and his late wife with the purpose of relocating it to the property. Prior to that time they lived in suburban Melbourne.

2 The relationship between the appellant and the respondent soured after the respondent's late wife (the appellant's mother) died in 2012, and a friend of the respondent, Ms Lorraine Everett, moved into the dwelling in 2014. Following the respondent's departure from the property, the respondent brought a claim against the appellant for breach of contract and/or relief on the basis of promissory estoppel.

3 After a hearing held over two sitting days, the learned Magistrate rejected the claim for breach of contract, but found that the respondent had made out a case of promissory estoppel.

4 In his written outline of submissions, the appellant summarised the key findings of the learned Magistrate, as follows:

(a) the respondent had assumed and/or expected that a legal relationship had existed between himself and the appellant for a grant of a licence for the appellant's parents (the respondent and his late wife) to live on his land in the relocatable home for the rest of their lives, and that the appellant would not be free to withdraw from the relationship;

(b) the appellant induced the respondent to adopt that assumption or expectation;

(c) the respondent did act in reliance on the assumption or expectation in so far as he and his late wife incurred expenses in the cost of buying, moving, and fitting out the relocatable home;

(d) the appellant knew and/or intended that the respondent and his late wife would act in reliance on the assumption and/or expectation;

(e) in causing the respondent to leave the property, the appellant caused damage to the respondent in the loss of the use of the relocatable home, its value and costs associated with it, and the respondent had since May 2014 been incurring rent at a cost of $125 per week, being the respondent's half share of the cost of the rental property.

5 As a consequence of these findings, the learned Magistrate ordered that:

(a) the appellant pay the respondent the sum of $100,000;

(b) the appellant pay the respondent penalty interest from the commencement date of the proceeding; and

(c) the appellant pay the respondent's costs of the proceeding.

6 In respect of (a) above, the learned Magistrate found that but for the jurisdictional limit of the Magistrates' Court, the respondent would have been entitled to damages (more accurately, equitable compensation), of $111,500.

7 The appellant disputes, but brings no appeal against the learned Magistrate's factual findings, given that an appeal to this Court under s 109 of the Magistrates' Court Act 1989 (Vic) is only available on a question of law.

8 However, the appellant takes issue with the learned Magistrate's assessment of damages in two respects:

(a) first, by making an award of $35,000 for the cost of purchasing and relocating a dwelling to the property, along with an amount for rent paid and payable by the respondent since the date of his departure from the property, the learned Magistrate engaged in impermissible double counting; and

(b) secondly, in using the ABS Life Tables[1] to calculate the respondent's life expectancy for the purpose of the assessment of the quantum of the future rent payable by the respondent without notice to the parties, the learned Magistrate denied the appellant procedural fairness.

9 Both of the appellant's propositions are made out, and accordingly, the appeal must be allowed, and the assessment of damages ought to be remitted to the Magistrates' Court.

10 The appellant's amended notice of appeal filed on 27 February 2019 (dated 17 January 2019) identified the following questions of law and grounds of appeal:

1. Was it open to the learned magistrate to award the Respondent compensation for both his reliance loss in the sum of $35,000.00 and his expectation loss in the form of rent for the rest of his expected life?
2. Did the learned magistrate apply the wrong test when determining the quantum of compensation required for future rental to make good the plaintiff's equity?
3. Did the learned magistrate fail to have regard to relevant considerations when determining the quantum of compensation required for future rental to make good the plaintiff's equity?
4. Did the learned magistrate give the Appellant a fair hearing in the use of the life tables referred to in paragraph 58, footnote 8, of the reasons in calculating the compensation payable?
5. Did the learned magistrate fail to give adequate reasons for her calculation of future rental required to make good the plaintiff's equity having regard to only life expectancy?
6. Did the learned magistrate calculate the future rental required to make good the plaintiff's equity without any, or any sufficient, evidence of the extent of detriment the plaintiff would otherwise suffer?

1. In assessing equitable compensation payable to the Respondent, the learned magistrate erred in that her Honour awarded Respondent both

(a) the expenditure made, namely $35,000.00 for a house to be relocated, in reliance on the assumption that he would be permitted [to] live in the house once constructed on the Respondent's land; as well as

(b) the rent that he will need to pay for the rest of his life in lieu of occupying premises that he owns (whether alone or with another person);

and thereby awarded more compensation that the Respondent's case merited.

1. There was no evidence before the learned magistrate that enabled any calculation of the Respondent's life expectancy.
2. In circumstances where:

(a) the Respondent gave no particulars for future rental expenditure;

(b) the Respondent led no evidence with respect to his life expectancy;

(c) neither party led any evidence with respect to the applicability of the life tables referred to in paragraph 58, footnote 8, of the learned magistrate's reasons;

(d) neither party addressed the learned magistrate with respect thereto; and

(e) her Honour did not invite submissions with respect thereto or otherwise indicated that her Honour would rely on the life tables in calculating the Respondent's remedy;

the learned magistrate, in the use of the life tables, did not give the Appellant a fair hearing.

11 It is not necessary for present purposes to recapitulate at any length the parties' written submissions regarding the six separate grounds of appeal. The written submissions of the appellant focussed at some length upon the question of whether the learned Magistrate's assessment of damages was based upon an erroneous notion that the representation found to have been made by the appellant in effect conferred upon the respondent an interest in the dwelling equivalent to a life tenancy. However, at the hearing of the appeal, the appellant's submissions were reduced to two simple propositions: first, the learned Magistrate overcompensated the respondent by including in the award of damages compensation for the respondent's 'reliance loss' (being the proven costs of relocating and reconstructing the dwelling upon the property) as well as the respondent's 'expectation loss', calculated using the actual rent paid and payable by the respondent after he departed the property. Given that the learned Magistrate found that the appellant was estopped from resiling from a representation made by the respondent analogous to a contractual promise, the appropriate measure of damages she should have utilised was the contractual measure of damage: that is, the appellant was required to put the respondent in the same position had the promise been kept, the promise being rent free accommodation. Accordingly, the award of $35,000 in respect of 'reliance loss' should be set aside, as an award of compensation which in effect made good the expectation left the respondent to bear the costs of what he paid in reliance on the representation.

12 Counsel for the appellant referred to the oft cited statement of principle with respect to damages for breach of contract in Robinson v Harman:[2]

The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.

13 Counsel for the appellant referred to the decision of the Court of Appeal in Donis v Donis,[3] and the decision of the High Court in Sidhu v Van Dyke,[4] in support of his contention that in determining the appropriate equitable compensation, a promisee is prima facie entitled to have the promisor held to the promise, and the relief should be fashioned accordingly. These decisions followed the decision of the High Court in Giumelli v Giumelli,[5] where the majority held that because the fundamental purpose of equitable estoppel is to protect the plaintiff from the detriment which would flow from the defendant's change of position if the defendant were to be permitted to resile from the promise, the relief granted may require the defendant to perform the promise, or, depending upon the circumstances, may require the defendant to pay a money sum to otherwise give effect to the expectation generated by the promise.

14 Counsel for the appellant submitted that, in awarding the respondent the sum of $35,000 in addition to a sum for rent (the latter representing the compensable expectation interest), the learned Magistrate conflated 'detriment' and 'compensation'. That the respondent acted to his detriment in reliance upon the appellant's promise was a necessary element in his cause of action, but the quantum of his detrimental expenditure is not necessarily the measure of compensation to which he is entitled. As stated by Nettle JA in Donis v Donis (citations omitted):[6]

It follows that the detrimental reliance that supports the estoppel need not constitute in any sense a consideration moving to the party bound. It is a unilateral element of the estoppel and not the price paid for it.

The prima facie position will yield to individual circumstances. Principle and authority compel the view that where a plaintiff's expectation or assumption is uncertain or extravagant or out of all proportion to the detriment which the plaintiff has suffered, the court should recognise that the claimant's equity may be better satisfied in another and possibly more limited way. Thus, as was also said in Giumelli v Giumelli, before granting relief the court is required to consider all of the circumstances of the case, including the possible effects on third parties, and to avoid going beyond what is required for conscientious conduct or would do injustice to others. But that does not mean that the court is required to be 'constitutionally parsimonious' or that it is necessary for there to be substantial correspondence between expectation and the monetary value of the detriment suffered, or which but for the relief to be accorded would be suffered. The object of the exercise is to do equity and for that purpose 'detriment' is no narrow or technical concept. It need not consist of expenditure of money or other quantifiable financial disadvantage so long as it is something substantial. The requirement must be approached as part of a broad inquiry as to whether departure from a promise would be unconscionable in all the circumstances.[7]

Fourthly, and contrary to submissions put on behalf of the appellants, the law of proprietary estoppel is not a manifestation of the concept of unjust enrichment as understood in the law relating to restitution. It is the product of a discrete equitable principle that the conduct of a promisor in engaging a promise to change his or her position to the promisee's detriment binds the promisor to make good the promisee's expectation. The detrimental reliance which supports the estoppel is, therefore, not to be conceived of as consideration in any sense. It is not a case of quid pro quo and even less one which requires correspondence as between the financial value of whatever may move each way. It is only when adherence to the promise or assumption would cause injustice to others or go beyond what is required for conscientious conduct that the court should recognise that the promisee's equity may be better satisfied in another and more limited way.[8]

16 Counsel for the appellant submitted that in the current case, the learned Magistrate did recognise the need to compensate the respondent for the appellant's failure to fulfil his promise to in effect, provide rent‑free accommodation to the respondent. However, the learned Magistrate supplemented the compensation payable for those disappointed expectations with an amount equivalent to the detriment incurred by the respondent, and in doing so, she was in error.

17 Further, the appellant says that, in using the ABS Life Tables to calculate the respondent's expectation loss, without notice to the parties, the learned Magistrate denied the appellant procedural fairness, by in effect depriving the appellant of the opportunity to adduce evidence which may have caused her to reduce the period over which future rent would be calculated. For example, the appellant could have adduced evidence that the respondent's actual life expectancy was shorter than that discoverable from the ABS Life Tables by reason of his health problems, or could have submitted that the sum calculated using the ABS Life Tables should be discounted to reflect the possibility that the respondent may not have been able to stay at the property for the rest of his life.

... the Magistrate took it upon herself to make the assessment of damages on the basis of future rental having regard to life expectancy, when:

(a) there had been no evidence led of life expectancy or any other contingency on the basis of which an assessment of damages for future rental loss could be made;

(b) the respondent made no submissions that future rental should be calculated by reference to life expectancy or any other variable;

(c) the appellant submitted that there was no evidence of life expectancy;

(d) the Magistrate made no mention of the question of the calculation of future rental loss as part of her proposed assessment of damages; and

(e) the Magistrate did not call for any further submissions on the question before entering judgment.

... it was incumbent upon the Magistrate, having taken it upon herself to assess damages by reference to life expectancy, ought to have herself had regard to other contingencies that were relevant to assessing the value of a loss of a personal right of residency.

19 Counsel for the respondent did not quarrel with the correctness of the legal propositions advanced by counsel for the appellant or the relevance of the authorities referred to by him in his submissions. He agreed that if the learned Magistrate had assessed damages on both a 'reliance' and an 'expectation' basis, she would be in error. However, counsel for the respondent submitted that, while the learned Magistrate had mistakenly referred to the sum of $35,000 as 'reliance damages', the award of this sum represented a reasonable, albeit necessarily imprecise, estimate of the value to the respondent in being able to live in the dwelling itself, with its particular benefits and attributes, rent free.

20 Counsel for the respondent submitted that, in the circumstances:

Since leaving the property (and leaving the relocated house to the appellant's enjoyment) was inevitable, then any equitable remedy that fulfilled the respondent's expectation had to account not only for having a place to live but the deprivation of the enjoyment ...

noting that the dwelling had four bedrooms, a veranda, a double garage, a split system air conditioner, and a ten thousand litre water tank.

21 Counsel for the respondent referred to the authorities relied upon by counsel for the appellant as support for the propositions that equitable remedies are inherently flexible, and that the courts are not confined to doing the 'minimum equity' in giving effect to a promissory representation. In the current case, the sum of $35,000 represented not only the proven detriment incurred by the respondent in relying upon the appellant's representation that the respondent could live at the property for the rest of his life, but also appropriate compensation for the respondent for his inability to enjoy the benefits and comforts of living in the dwelling. The learned Magistrate's misdescription of this component of equitable compensation was no basis for overturning what was otherwise an appropriate, and relatively modest, amount of compensation.

22 As for the use of the learned Magistrate of the ABS Life Tables to calculate the compensation payable to the respondent, counsel for the respondent submitted that the issue of the respondent's life expectancy had always been a live issue in the proceeding, and had been the subject of evidence and submissions. There was no onus upon the respondent to establish that he would have exercised the right to live in the dwelling for the rest of his life, or to positively prove that certain contingencies that would have prevented him from doing so would not have occurred. Therefore, the appellant must have been on notice that the learned Magistrate would need to make a finding regarding the likely life expectancy of the respondent. There had been no denial of procedural fairness. Alternatively, even if there was a breach of procedural fairness, the appeal should not be allowed, as the appellant has not identified any submissions it would have made regarding the ABS Life Tables, and how such submissions may have led to a different result.

23 The relevant passages of the learned Magistrate's reasons with respect to her assessment of damages are extracted below.[9]

In causing the Plaintiff to leave the property, the Defendant has caused detriment to the Plaintiff in the loss of the use of the relocatable home, its value and costs associated with it, and the Plaintiff has since May 2014 been incurring rent at a cost of $125 per week, being half of the cost of the rental property, the costs of which he shares with his friend Lorraine Everett.

The Defendant has also failed to avoid that detriment.

An assessment of the Plaintiff's damages is a prima facie entitlement to have the promise made good. This Court is permitted in damages 'to do what is required in order to avoid detriment to the party who has relied on the assumption induced by the party estopped, but no more'.

I turn to an examination of the evidence in respect of monies asserted by the Plaintiff in respect of materials and contractors for the fit out of the relocatable home.

The Plaintiff's evidence in respect of these expenses was clear. He paid for all the accounts for the materials, fittings and contractors. His son, the Defendant assisted both himself and his late wife in the arrangement of many of these items. That some of the accounts were in the Defendant's name is explained by this arrangement and the Plaintiff's evidence clearly acknowledges the Defendant's assistance and contribution to the relocatable home completion and fit out.

24 The learned Magistrate then proceeded to discuss the dispute between the parties regarding who paid for improvements to the dwelling, and found that the respondent had been unable to prove that he (or he and his late wife) had spent various sums on fitting out and refurbishing the dwelling beyond the initial payment of $35,000 to the business which transported the dwelling to the property. Conversely, she was also unable to be satisfied that the appellant spent his own funds and contributed his own labour to the refurbishment of the dwelling. In her reasons, the learned Magistrate stated as follows:

However in respect of the Plaintiff's reliance damages for promissory estoppel, I am unable to determine with any certainty the quantum of the Plaintiff's damage beyond the incursion of the O'Keefe's relocation expenses being $35,000. There is no proof of payment of expenses and materials beyond invoices tendered, and there have been no bank records supporting the Plaintiff's payment.

In the assessment of further reliance damages and expectation damages, the Plaintiff and his friend Ms Everett both gave evidence that they are sharing a residence at a rental of $250 per week, the cost of that rental being borne equally between them, that they located that residence following their eviction from the Defendant's property prior to the Supreme Court hearing on 13 May 2016. I assess the Plaintiff is entitled to further damages in the amount of $125 per week from 13 May 2016 to date and continuing. In terms of past rental costs damages, I assess the Plaintiff's loss at $14,125. In terms of future rental loss, given the Plaintiff's age of 79 years, I have assessed his future loss on the basis of 9.6 years. I calculate his future loss at 499 weeks at $125 per week, being $62,375. I note the Plaintiff is already mitigating his loss by sharing his rent and expenses with his friend Ms Everett.

Accordingly, I assess the Plaintiff's claim in damages for promissory estoppel in the amount of $111,500, such damages being confined to the jurisdiction of this Court of $100,000.

25 I agree that the following statement in the appellant's written outline of submissions accurately reflects the analytical framework which the learned Magistrate should have followed in the current case:

It is submitted that awarding both reliance damages and expectation damages involved an element of double-accounting, and therefore falls foul of the controlling limit on equitable compensation as stated by the High Court in Verwayen, namely that an award of damages must be no more than is necessary to avoid detriment to the appellant.

The detriment suffered by the respondent is that he relied upon the appellant's promise to incur the expense of relocation. The detriment is avoided by either awarding reliance damages putting the respondent back into the position he would have been if the costs incurred in reliance on the appellant's promise had never been incurred, or awarding expectation damages which put the respondent into the position he would have been in if, having in fact incurred those expenses in reliance on the appellant's promise, the promise had been made good.

26 That double recovery is not permitted is explained by the learned author of McGregor on Damages[10] as follows (citations omitted):

... where the claimant is suing for loss of bargain it is important to keep in mind that not only must the defendant be credited with the amount the claimant has saved by no longer having to perform his side of the bargain, but the claimant cannot also recover, in addition to the loss which is intended to represent the loss of his bargain, any expenses he has incurred in preparation or in part performance. Such expenses represent part of the price that the claimant has to incur to secure his bargain. If he recovers for the loss of his bargain, it would be inconsistent that he should in addition recover for expenses which were necessarily laid out by him for its attainment.[11]

27 In my view, having regard to, among other things, the discussion by the learned Magistrate in her reasons of the difficulties in establishing who paid for the improvements to the dwelling, the reference to 'reliance damages' in the reasons is not merely a misnomer. It is reasonably clear that the learned Magistrate equated 'reliance damages' to past costs, and 'expectation damages' to future costs: that is, the respondent was entitled to both categories of compensation, and the distinction between them was merely temporal rather than conceptual. If, as contended for by counsel for the respondent, the sum of $35,000 was used by the learned Magistrate as a proxy for an amount payable for his loss of bargain, or disappointed expectations, as opposed to compensation for past detriment incurred by the respondent, it would not have been necessary for the learned Magistrate to dwell upon the problems that the respondent faced in establishing his assertion that he had in fact spent far more than $35,000 to relocate the dwelling to the property and to make it habitable for him and his late wife. It seems that it was the learned Magistrate's intention to compensate the respondent for both his reliance loss and his expectation loss, and in doing so (as best she could given the evidentiary difficulties she faced) she fell into error, in that, by making an award for both wasted costs and disappointed expectations, she engaged in impermissible double counting.

28 I agree with the submissions of counsel for the respondent that the respondent was entitled to compensation for the appellant resiling from his promise to allow the respondent to remain at the dwelling rent free for the rest of his life, and that the particular features and benefits associated with living at the dwelling (as opposed to living in other accommodation of a lesser standard) were relevant matters to be taken into account in calculating that compensation, given that compensation was payable for the appellant's failure to make good the representation he had made. However, the proper approach to compensation in that regard would have been to calculate the damages from the date of the respondent's departure from the property based upon a notional rental value for the dwelling, as opposed to the rent actually paid by the respondent for alternative accommodation after the date of his departure from the property.

29 I do not agree that the sum of $35,000 should be accepted as a proxy for any discrepancy between the rental value of the dwelling and rent that the respondent is actually paying, being, in effect, the additional value of the respondent's disappointed expectations. Rather, it was clear from her reasons that the learned Magistrate endeavoured to calculate, as best as she was able, the actual detriment incurred by the respondent, and add that sum to the amount necessary to compensate him for his inability to remain at the property going forward. There is no logical basis for the value of the respondent's expenditure which is said to constitute his detriment to be equivalent to his compensable disappointed expectations. Accordingly, the appeal should be allowed.

30 Turning now to the question of whether the appellant was denied procedural fairness, s 144 of the Evidence Act 2008 (Vic) ('Evidence Act') provides as follows:

Matters of common knowledge

(1) Proof is not required about knowledge that is not reasonably open to question and is -

(a) common knowledge in the locality in which the proceeding is being held or generally; or

(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.

(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.

(3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.

(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

31 Further, s 159 of the Evidence Act provides that:

A document that purports

(a) to be published by the Australian Bureau of Statistics; and

(b) to contain statistics or abstracts compiled and analysed by the Australian Statistician under the Census and Statistics Act 1905 of the Commonwealth -

is evidence that those statistics or abstracts were compiled and analysed by the Australian Statistician under that Act.

32 Accordingly, there can be no dispute that the ABS Life Tables are admissible for the purpose of calculating the respondent's life expectancy for the purposes of assessing his loss of bargain.

33 Section 144 of the Evidence Act codified the traditional common law position regarding judicial notice. Counsel for the respondent was correct in submitting that the learned Magistrate is entitled to have regard to the ABS Life Tables, that the appellant was on notice that the respondent's life expectancy was an issue in the proceeding (noting that the respondent gave evidence that he intended to reside in the dwelling for the rest of his life), and that it was not incumbent upon the respondent to prove that events which would limit the time he could expect to live at the property would not occur. However, the terms of s 144 of the Evidence Act make it clear that the learned Magistrate was required to give advance warning to the parties that she intended to rely upon the ABS Life Tables for the purposes of estimating the respondent's life expectancy. It is common ground that she did not do so.

34 Since the parties were given an opportunity to provide the learned Magistrate with written submissions after the hearing before her, it would have been a relatively simple matter to draw the parties' attention to the relevant data in the ABS Life Tables (which differed from the estimated life expectancy referred to in the respondent's particulars) and invite the parties to make submissions upon that matter. The question remains, given the terms of s 144 of the Evidence Act, as to whether the learned Magistrate's failure to do so unfairly prejudiced the appellant. In my view, while it could not be concluded with any certainty that the result would have been any different had the appellant had the opportunity to make further submissions, it is at least on the cards that the learned Magistrate may have been persuaded to discount the sum payable with respect to future rent to take into account the possibility that the appellant's licence to occupy the dwelling may have terminated earlier for reasons other than the conduct of the appellant.

35 Finally, given the manner in which the hearing progressed, and my findings above, it is strictly speaking not necessary to address each ground of appeal individually. However, I shall do so, briefly.

Ground 1 - the decision to award both reliance and expectation damages

36 This ground has been addressed in paragraphs 25 to 29 of these reasons.

Ground 2 - did the learned Magistrate apply the wrong test when determining the compensation required for future rental?

37 In my view, no question of law is raised by this 'ground'. The appellant submitted that the learned Magistrate applied the wrong test in assessing future loss as if it would have value to the respondent for the whole of the rest of his life. However, that contention elevates what is merely a matter of evidence to a question of legal principle. In reaching the view that the respondent was entitled to compensation based upon an estimated life expectancy of 9.6 years, the learned Magistrate was not applying a 'test'. Rather, while there are other difficulties with her decision in that regard, the learned Magistrate was merely utilising admissible evidence regarding the respondent's life expectancy to make an assessment of appropriate compensation.

Ground 3 - failure to have regard to relevant considerations

38 The appellant has failed to show why the learned Magistrate, in assessing the value of the respondent's lease to live in the property for the rest of his life, was bound to consider the matters set out in its written outline of submissions[12], being whether the respondent had an expectation that he could let out the dwelling and receive income from it if he was no longer available to live in the property himself, and whether there were contingencies other than the respondent's death which could impede the respondent's ability to live on the property for the rest of his life. First, there was no evidence that the respondent had an assumption of the nature referred to in the appellant's submissions, and no such assumption is discernible from the learned Magistrate's reasons. Secondly, the question of whether there were contingencies which would impede the respondent's ability to remain at the property was a matter for the appellant to advance by way of evidence and/or submissions at trial. It was not a mandatory relevant consideration that the learned Magistrate was bound to take into account in the absence of any such evidence or submissions, save for the submission advanced on the part of the appellant that there was in fact no such evidence before her. This ground is merely an attack on the factual findings of the learned Magistrate.

39 This ground has been addressed in paragraphs 30 to 34 of these reasons.

40 The learned Magistrate's reasons in respect of the assessment of damages are of relatively short compass. However, the reasons sufficiently expose her path of reasoning. That the learned Magistrate's reasoning process has been adequately exposed by the reasons is illustrated by the ability of the appellant to comprehensively challenge the approach and determinations of the learned Magistrate with respect to the assessment of damages.

41 The question of whether there is any (as opposed to sufficient) evidence to support a finding of fact is clearly a question of law. However, I reject the submission that there was no evidence before the learned Magistrate to support a conclusion that the respondent would have lived at the property for the rest of his life. First, the respondent gave direct evidence to that effect.[13] Secondly, I have already observed that the ABS Life Tables were admissible. This ground of appeal is not made out.

42 Accordingly, the appeal should be allowed, and the assessment of damages should be remitted to the Magistrates' Court to be determined according to law. It was conceded by counsel for the appellant that the respondent would not be bound by the manner in which he put his case for damages below. Given the observations I have made regarding the manner in which the respondent could have put his case regarding the calculation of expectation damages (that is, based upon the rental value of the dwelling, rather than the rent actually paid and payable by him after departing the property) the parties may wish to reflect upon the cost effectiveness of continued disputation regarding this matter.

43 I shall hear further from counsel regarding the form of order and the question of costs.

[1] Life Tables, States, Territories and Australia, Australian Bureau of Statistics, 2015-2017.

[2] [1848] EngR 135; (1848) 1 Exch 850,855: referred to with approval in Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 236 CLR 272, 286.

[3] [2007] VSCA 89; (2007) 19 VR 577.

[4] [2014] HCA 19; (2014) 251 CLR 505.

[5] (1999) 196 CLR 101.

[6] [2007] VSCA 89; (2007) 19 VR 577.

[9] The references to the Plaintiff in the reasons are references to the respondent to this appeal, and vice versa.

[10] Edelman J, McGregor on Damages (20th ed, Sweet & Maxwell, 2018).

[13] Transcript of proceeding no G11896828, 27 June 2018, page 28.