(a) $2,990,000 was the best price achievable for the Northcote property; and

(b) the property market had changed.

1. The claim was understood and defended by Nelson Alexander on the basis that the second of the two statements, namely, 'the property market had changed' was allegedly made in the context of a further representation said by Mr Duggan to have been made by Mr Alexiadis at a meeting the day before the auction, to the effect that Mr Alexiadis thought the Northcote Property would sell for $3,400,000. [4]
2. Nelson Alexander denies the claims and says this is a case of seller's remorse.
3. Nelson Alexander admits that Mr Alexiadis said $2,990,000 was the best price achievable for the Northcote Property on the day of the auction ('admitted representation'). Nelson Alexander denies Mr Alexiadis said 'the property market had changed' or that he ever said, let alone the day before the auction, that the estimated selling price for the Northcote Property was $3,2000,000 or $3,400,000[5] ('disputed representations').
4. Nelson Alexander acknowledges that, as Mr Duggan's and Ms Oliver's agent, they owed a duty to exercise due care, skill and diligence in performing its retainer, which required it to obtain the best price that could reasonably be obtained for the Northcote Property. Nelson Alexander contend they discharged their duty when advising $2,990,000 was the best price achievable on the auction day and deny there was any negligence or misleading and deceptive conduct. They say the statement, when considered in the context of the relevant background facts, contains no error. Further, they say it reflects Mr Alexiadis' honestly and reasonably held opinion, which Mr Duggan was free to reject. Ultimately, they say, it is up to a vendor, in this case Mr Duggan[6], to decide whether to sell at that price.
5. Furthermore, Nelson Alexander say that:

(a) Mr Duggan made the decision to sell in circumstances where the property development was significantly delayed and over budget, and his relationship with his business partner and Ms Oliver had broken down. They say Mr Duggan himself said he 'buckled' under the pressure and it was these circumstances which contributed to his decision to sell at the auction, not any reliance on the statement made by Mr Alexiadis; and

(b) there is no loss because the sale price was the best price that could be reasonably obtained for the Northcote Property on the day of the auction.

1. Importantly, there is no claim made by Mr Duggan in this proceeding that Nelson Alexander, in particular, Mr Alexiadis, at any time acted without instructions or contrary to instructions. Furthermore, there is no claim that Nelson Alexander failed to properly market the Northcote Property or that there was a failure to adhere to any appropriate standards.[7]
2. Both parties engaged experts to provide an opinion of the market value of the Northcote Property. Mr Duggan's expert expressed a view that the market value was $3,200,000 and Nelson Alexander's expert was of the opinion the retrospective market value was $2,990,000[8]. The expert's views regarding the market value of the Northcote property were of limited assistance. That is because the issues which arise in this dispute for my determination do not require me to determine, per se, the market value of the Northcote Property as at the day of the auction.

1. The questions which arise for my determination are: -

(a) With respect to the admitted statement:

(i) Did Mr Alexiadis engage in misleading and deceptive conduct and /or was he negligent when he said '$2,990,000 was the best price achievable for the Northcote Property on the day of the auction'?

(ii) If so, what is the loss suffered?

(b) With respect to the disputed representations:

(i) Am I satisfied to the requisite degree that Mr Alexiadis said;

1. on the day before the auction, that he thought the Northcote Property would sell for $3,200,000 or $3,400,000; and
2. on the day of the auction, that 'the property market had changed'.

(ii) If so, did Mr Alexiadis engage in misleading and deceptive conduct and/or was he negligent in making those statements?

(iii) If the answer to the above question is 'yes', what is the loss suffered?

1. As the applicant in this civil claim, Mr Duggan bears the onus of proof. For the reasons discussed below and based on the evidence before me:

(a) I am satisfied that the admitted representation made by Mr Alexiadis on the day of the auction to the effect that '$2,990,000 was the best price achievable for the Northcote Property' was one of an opinion, honestly and reasonably held by him and that Mr Alexaidis therefore did not engage in misleading and deceptive conduct, nor was he negligent when making that statement; and

(b) I am not satisfied to the requisite degree that that Mr Alexiadis made the disputed representations as contended by Mr Duggan.

1. It was evident Mr Duggan was, understandably, proud of the house he built and its features and clearly his expectations of what he believed he was entitled to, and would receive for it, were not met. However, the sale price obtained on the auction day was never about the standard, quality or features of the home built by Mr Duggan. As Mr Duggan's own expert, Mr Nicohols, said, sale price at auction can be under or over market value.
2. With the highest of hopes for this business partnership with Mr Matthews, the evidence revealed the project did not go as planned, it was delayed and over budget and ultimately it led to the breakdown in the business relationship. Mr Duggan owed money to Mr Matthews, his mother and the ANZ bank with whom he had a significant mortgage. To look back, as Mr Duggan seeks to do, and say 'I could have waited for a purchaser willing to pay $3,200,000' distorts the reality of the situation, namely, Mr Duggan's decision to sell the Northcote Property for $2,990,000 on the day of the auction was not made in a vacuum and there were many factors that he had to consider. I am satisfied it was these factors, and not Mr Alexiadis' admitted representation, that was the basis of his decision to sell on auction day.

1. This proceeding was commenced by Mr Duggan on 13 March 2023. In his Points of Claim attached to the application, he sought the sum of $210,000, being the difference between the sale price of $2,990,000 and what Mr Duggan says was the 'true value' of the Northcote Property, being $3,200,000.
2. By orders made on 25 June 2025, Ms Oliver was joined as an applicant to the proceeding under section 60 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). Ms Oliver was joined because of an application made by Nelson Alexander on the basis that, in the event Mr Duggan were successful in his claim, Ms Oliver's legal rights, as joint registered proprietor, may be impacted.
3. Ms Oliver did not wish to, and did not, participate in the hearing.
4. The hearing was conducted in person over 2 days, on 17 and 18 November 2025.
5. At the commencement of the hearing Mr Colin Robertson, a director of Value Melbourne Property Valuations, sought leave to appear as Mr Duggan's advocate. Value Melbourne Property Valuations was the firm engaged by Mr Duggan to provide an independent opinion of the market value of the Northcote Property. Mr Roberston said that Mr Bryon Nichols, the author of the Value Melbourne Property Valuations report dated 18 January 2018 ('First VMPV Report') and the further updated Value Melbourne Property Valuations Report dated 13 November 2025 ('Second VMPV Report') would be attending to give expert evidence in the proceeding. Mr Robertson said he 'wanted to have a few words' because, in his experience as a vendor's advocate, there were some 'alarm bells' and there were a few issues regarding the marketing of a high-end property, that he wanted to discuss.
6. Mr Duggan also said he wanted to speak for himself. He said that whilst not formally diagnosed, he believed he had dyslexia and thought Mr Robertson could assist with the paperwork.
7. Mr Purdy of Counsel, instructed by Lander and Rogers, sought leave to appear on behalf of Nelson Alexander, noting the seriousness of the allegations made in the application and the size of the claim made by Mr Duggan. Mr Duggan said he did not object to Nelson Alexander being legally represented at the hearing. In granting leave for Mr Purdy to appear on behalf of Nelson Alexander, I explained to Mr Duggan my obligation to ensure the hearing be conducted fairly and that Mr Duggan could, at any time, ask questions or seek clarification from me if required. For completeness I note Mr Duggan said he originally had lawyers assisting him but that it had become too expensive. He said his partner had assisted him to prepare the Points of Claim.
8. Mr Purdy objected to Mr Robertson appearing on behalf of Mr Duggan in circumstances where:

(a) his firm had been engaged to provide an independent expert opinion; and

(b) both the First VMPV Report and to a greater extent the Second VMPV Report made general criticisms of the way the Northcote Property was sold and the length of the marketing campaign undertaken by Nelson Alexander. Mr Purdy said these criticisms were made when there was no claim made by Mr Duggan with respect to those matters and where it appeared Value Melbourne Property Valuations had not been provided with relevant background facts concerning Nelson Alexander's retainer.

1. I agreed with Mr Purdy that Mr Robertson advocating for Mr Duggan would raise concerns regarding the independence of the expert reports produced by Value Melbourne Property Valuations, noting an expert witness is not an advocate for a party to a proceeding. Further, after hearing from Mr Robertson, it was apparent that what he really sought to do was to give evidence and make submissions, rather than act as a support person for Mr Duggan. Whilst Mr Robertson was offered the opportunity to give formal evidence, he declined to do so. Mr Robertson did, however, remain in the hearing room throughout proceeding.
2. In addition to his own evidence, Mr Duggan called Mr Tony Aquilina, a close friend who had accompanied him on the day of the auction, to give evidence, and Mr Nichols of Value Melbourne Property Valuations, the author of the First VMPV Report and Second VMPV Report.
3. Nelson Alexander called its director and the agent engaged to sell the Northcote Property. Mr Tom Alexiadis, to give evidence. They also called Mr Tim Stafford of WBP Group, who had prepared a report dated 18 March 2025 and a further updated report dated 13 November 2025 ('the Stafford reports'), to give expert evidence.
4. Neither party called Mr Matthews or Mrs Matthews to give evidence. I queried whether what is commonly referred to as 'the rule in Jones v Dunkel[9]' was relevant, namely, where an unexplained failure by a party to call witnesses may allow a court to infer that the uncalled evidence would not have helped that party's case. Mr Purdy said neither Mr and Mrs Matthews were willingly prepared to come and give evidence and Nelson Alexander had decided not to compel them. He said Nelson Alexander would not be making any submissions about their absence and did not expect Mr Duggan to either. Mr Duggan said he had not spoken to Mr and Mrs Matthews since the day of the auction. I draw no adverse inference against either parties' failure to call the Matthews.
5. Nelson Alexander had prepared a Tribunal Book which included copies of the relevant documents both parties wished to refer to, which included;

(a) the Application and Points of Claim filed by Mr Duggan, Points of Defence filed by Nelson Alexander, and relevant Tribunal orders;

(b) documents relied upon by Nelson Alexander relating to the sale of the Northcote Property, for example, the Exclusive Auction Authority, the Vendors Authorisation, documents relating to the marketing and sales campaign and Mr Alexiadis' notes and bidders sheet;

(c) documents relied upon by Mr Duggan including an advertising video prepared by Mr Alexiadis, letter of response to an earlier letter of demand sent by Mr Duggan's lawyers in 2018, copies of intervention orders obtained by Mr Alexiadis against Mr Duggan;

(d) text messages sent by Mr Duggan to Mr Alexiadis after the auction; and

(e) both parties' expert reports.

(a) the First VMPV Report and the Second VMPV Report raised criticisms of Nelson Alexander which were not the subject of the Points of Claim filed by Mr Duggan; and

(b) in his Points of Claim, Mr Duggan claimed $210,000, when his share of the claim was half that, being $105,000, given his former wife was a joint registered proprietor.

As a result of these concerns, before I commenced to hear any evidence, a significant amount of time was spent clarifying the basis of the claim alleged by Mr Duggan.

1. I explained to Mr Duggan that the claim as set out in the Points of Claim alleged that statements made by Mr Alexiadis on the day before the auction and on the day of the auction were misleading and deceptive and/or negligent. There was no claim made by him that Nelson Alexander had acted without authority or had failed in their duty of care in terms of, for example, how the Northcote Property was marketed or the length of the sales campaign. These were matters raised for the first time in the expert reports prepared by Value Melbourne Property Valuations. I asked Mr Duggan whether he sought to amend the claim to include these allegations and explained to him that, as a matter of fairness, if he wished to include matters that had not previously been the subject of complaint, that it would necessitate an adjournment of the hearing to enable Nelson Alexander an ability to respond.
2. After seeking clarification and much discussion, Mr Duggan confirmed the basis of his claim was as pleaded and that he did not seek to amend it. He confirmed the amount he sought was $105,000, plus the costs of his expert reports.
3. At the conclusion of the hearing, leave was given to the parties to file closing submissions. This allowed the parties time to reflect upon the evidence and review the transcript of proceedings which Nelson Alexander had organised and had made available to Mr Duggan. I note there was a delay in the timeframe within which the transcript was expected to be provided. Mr Duggan was offered an opportunity to seek an extension of time within which to submit his closing submissions. No such extension was sought.
4. Both Mr Duggan's closing submissions and his reply submissions[10] sought to raise:

(a) claims that were not pleaded in the Points of Claim or the subject of argument before me; and

(b) matters that were not the subject of evidence given during the hearing. [11]

1. The Northcote property was purchased on 28 November 2015. Mr Duggan was to construct a new modern family home as owner/builder within a 12 month period for immediate sale. Mr Matthews lent Mr Duggan money to enable the purchase and lodged a caveat as purchaser of the Northcote Property on 17 December 2015.
2. On 2 April 2016 the purchase of the Northcote Property was completed, and Ms Duggan and Ms Oliver were registered on title as joint proprietors.
3. On 5 April 2016 Mr Matthews lodged a new caveat claiming an interest as chargee.
4. Construction of the new house was not completed within 12 months and the project ran over budget.
5. Mr Duggan borrowed money from his mother 'to keep [him] afloat'.[12]
6. Mr Duggan and Ms Oliver formally engaged Nelson Alexander as agent to sell the Northcote Property on 13 October 2017 when an Exclusive Auction Authority ('EAA') was signed by Mr Duggan and Ms Oliver as vendors of the Property, and Mr Tom Alexiadis signed the document on behalf of Nelson Alexander.
7. The EAA recorded the agent's estimate of selling price as between $2,800,000 and $2,950,000 and the date of the auction as 11 November 2017. No amount was inserted next to 'Vendor's reserve price', rather the words 'to be advised' were noted.
8. Also on 13 October 2017, Mr Duggan and Ms Oliver signed a 'Vendor authorisation for price representations and for Consideration of enquiries and offers' document ('Vendor's authorisation for price document'). It stated that Mr Duggan and Ms Oliver authorised Nelson Alexander to advertise the Northcote Property in the price range of $2,800,000 and $2,950,000.
9. On 10 November 2017, the day before the auction, a meeting was held at Nelson Alexander's office in Northcote. In attendance were Mr Duggan, Mr Matthews and his wife, Marion Matthews, and Mr Alexiadis. The purpose of the meeting was to discuss strategies for the auction. What was said at the meeting is in dispute, but it is agreed that a reserve price was not set at the meeting.
10. The auction was held on 11 November 2017.
11. Mr Alexiadis conducted the auction. What was discussed between Mr Alexiadis and Mr Duggan, Mr Matthews and Mrs Matthews on the day of the auction is in dispute. It is not disputed that:

(a) the Northcote Property was passed in at $2,860,000; and

(b) following negotiations, the Northcote Property was sold for $2,990,000.

1. The amount of $2,990,000 was inserted in the EAA next to 'Vendor's reserve price' and initialled and dated 11 November 2017 by Mr Duggan.
2. Mr Duggan and Ms Oliver signed three copies of the contract of sale.
3. On 25 January 2018 Mr Duggan obtained a valuation from Value Melbourne Property Valuations which assessed the market value of the Northcote Property as $3,200,000 as at that date.

1. Mr Duggan said he was introduced to Mr Alexiadis by Mr Matthews about 3 years before purchasing the Northcote Property (not 18 months as Mr Alexiadis had stated in his application for an intervention order against Mr Duggan, in early December 2017). He said he and Mr Matthews sought Mr Alexiadis' advice concerning what to purchase, where to buy and what type of house to build. He said he believed Mr Alexiadis had a long-standing relationship with Mr Matthews.
2. Mr Duggan said Mr Matthews had lent money to him for the development, but he was unable to say how much money was the subject of the loan, whether a formal loan document was executed, or what the terms of the loan were, namely, when the monies were to be repaid and whether interest was payable. He said Mr Matthews had lodged a caveat to protect his interest.
3. Mr Duggan said he submitted proposed plans of the development to Mr Alexiadis and he had advised him to make the house bigger. He said Mr Alexiadis introduced him to stylists and interior designers to assist with the fit out and colour choices for the Northcote Property. Mr Duggan said Mr Alexiadis had said it was the best build he had ever seen and that he 'fed my ego, telling me I will break sales'.
4. Mr Duggan played a video that had been made by Mr Alexiadis for the purpose of advertising and promoting the Northcote Property. In it Mr Alexiadis said it was the best inner city build he had ever seen and if he was in a position to buy it, he would.
5. Mr Duggan agreed the budget for the project had blown out but said he was lucky because his mother was able to lend him money. When I asked Mr Duggan how much the build had cost and what had been the budget, he was unable to answer, saying Mr Matthews had all the correspondence for that.
6. Mr Duggan gave evidence of texts he had received from Mr Alexiadis after the auction, congratulating him on the sale, and which he considered insensitive. He said he was offended and upset and described the attempts he made to speak with Mr Alexiadis, leading to an intervention order against him, and how he had not even spoken with Mr Alexiadis since the sale.
7. Mr Duggan said he was living in the house in the last few months before the sale because he had separated from his wife and because the house had been vandalised.

Meeting day before auction - at Nelson Alexander's office

1. Mr Duggan said he attended a pre-auction meeting on 10 November 2017 at Nelson Alexander's office. Present at the meeting were Mr Alexiadis, Mr Matthews and his wife, Mrs Matthews.
2. Mr Duggan said he said words to the effect that he believed the property would sell for $3,400,000 and the minimum reserve he wanted was $3,200,000. At one point he also said Mr Alexiadis had promised him $3,400,000. He said Mr Alexiadis said words to the effect, 'No the reserve had to be $3,000,000'. Later in his evidence Mr Duggan said Mr Alexiadis had said he would get him $3,200,000 and not to worry about it. Mr Duggan said that he would not sell for $3,000,000 and the minimum he would accept was $3,200,000.
3. Mr Duggan said he never wanted a $3,000,000 reserve price, and it was never written down. He said no reserve price was set that day, or at all.

1. Mr Duggan said after the house was passed in, with the highest bid of $2,860,000, Mr Alexiadis had said that was the best he could do and Mr Duggan should accept the amount. Mr Duggan said he refused and told Mr Alexiadis 'to go do your job' He said Mr Alexiadis then went back outside and negotiated and came back with an offer of $2,990,000 and that Mr Alexiadis had said that 'the market had dropped' and it's the best he could get. Mr Duggan said he just buckled.[13]
2. Mr Duggan said there was never a written reserve price. On the day of the auction, whilst Mr Duggan recalled signing the contract of sale, he did not recall initialling the EAA to record the reserve price of $2,990,000. He said after the auction finished Mr Alexiadis took him to the kitchen area and his former wife then turned up and they started the paperwork and Mr Alexiadis left. He said he thought it was weird Mr Alexiadis just left and another real estate agent was with him and Ms Oliver as they signed the paperwork.

(a) the initial intention was to have developed two properties with Mr Matthews,

(b) the relationship with Mr Matthews broke down during development,

(c) the build took longer than expected,

(d) Mr Alexiadis gave great advice about where to buy and look to construct a contemporary style family home, but disputed Mr Alexiadis had not advised on the purchase of this particular property,

(e) Mr Alexiadis was always going to be the selling agent because of the relationship,

(f) he had spoken with other agents before signing the EAA, and those agents had said the property would be expected to sell for$3,200,000 - $3,400,000. He added 'just like Tom',[14]

(g) as soon as construction completed, he wanted to sell the Northcote Property,

(h) that there had been a number of dates picked out for sale that had to be postponed due to delays in completion,

(i) the reserve price was always going to be set closer to the auction, not upon signing the EAA,

(j) there were not many homes in Northcote like this one - as most high end properties had been renovated,

(k) the advertising campaign ran, with no complaints with marketing, other than 'he didn't feel there were many people coming through'

(l) he signed off on the advertising range of $2,800,000 - $2,950,000

(m) Mr and Mrs Mathews attended the pre-auction meeting because Mr Duggan owed money to Mr Matthews,

(n) He was incurring interest on his loan from the ANZ bank, which he described as 'a lot',

(o) after repaying the loans to Mr Matthews and his mother, and discharging his own mortgage, he made a profit of $160,000 from the project.

1. Mr Duggan did not agree that at the time he signed the EAA, Mr Alexiadis had told him his view was that the property should be marketed in the range of $2,500,000 - $2,700,000. Mr Duggan did agree that he had wanted the property to be marketed at 'something over $3 million'. He denied Mr Alexiadis said that it would be a bad idea to market at $3 million plus and he denied the price range of $2,800,000 to $2,950,000 was a compromise between those two ranges.[15]
2. Mr Duggan denied the reserve was verbally set at $3,000,000 before Mr Alexiadis went out to conduct the auction, saying there was nothing in writing that $3,000,000 was the reserve.
3. When it was put to Mr Duggan that, after the Northcote Property was passed in at $2,860,000, Mr Alexiadis had told Mr Duggan and Mr and Mrs Matthews, about the bids received and that it was up to them whether they sold for that price, or not, Mr Duggan disagreed. He said Mr Alexiadis said words to the effect 'that is the best I can do and I should take it', and he said the same thing when the offer of $2,990,000 was made.
4. Mr Duggen denied Mr Alexiadis recommended going back to the highest bidder with the reserve, and that a discussion had then occurred about what that amount should be. Mr Duggen said he told Mr Alexiadis to go back and do his job - but that he did not give him a price to go back with.
5. When it was put to Mr Duggan that Mr Alexiadis had said he thought they could lose the bidder if they went back with $3,000,000 and he therefore suggested offering $2,990,000, Mr Duggan said he did not agree. When it was put that Mr Alexiadis said something along the lines 'it will give Mr Duggan more of a chance of getting this buyer to come up', and had said something along the lines 'it's the same as offering $1.99 compared to $2.00', Mr Duggan denied that was said. Mr Duggan maintained Mr Alexiadis came back with the offer of $2,990,000, saying words to the effect 'that's all I can get, that's the best I can do', 'the market has dropped'. He said Mr Alexiadis never offered him the option to pass it in, he just said take the offer of $2,990,000.[16]
6. Mr Duggan said he did not believe $2,990,000 was the best price he could get on the day of the auction. He said Mr Alexiadis did not 'protect' him, did not look after his interest and he buckled.
7. When it was put to Mr Duggan that the feedback from buyers was there was too much house and not enough land, he said that was because of Mr Alexiadis' directions.

1. Mr Aquilina is Mr Duggan's friend and said he has known him since 1988.
2. Mr Aquilina said he wanted to attend auction because he felt Mr Duggan had been going through a rough time and he thought he would keep an eye on him to make sure he was okay. Mr Duggan said he had asked Mr Aquilina to go outside during the auction, but Mr Aquilina said he refused to and would stay inside with him.
3. Mr Aquilina said there was tension in the room between Mr Duggan and Mr and Mrs Matthews.
4. Mr Aquilina said he could not hear the auction or what was said or the bids made. He said Mr Alexiadis came inside, said the property had been passed in and that 'we're having a bit of a hard struggle to reach to where we would've liked to be'. Mr Aquilina said Mr Duggan responded to Mr Alexiadis with words to the effect that 'you've got to keep trying to do your best' and Mr Alexiadis responded saying 'the market's slow' and 'possibly we can't get there.'
5. When asked what Mr Alexiadis had said with regards to options, Mr Aquilina said he had indicated that's the best probably we're going to be able to get, it's not going to get much better and that he suggested that Mr Duggan probably take it, (in reference to the last bid). Mr Aquilina said Mr Duggan then told Mr Alexiadis to go and do his best and to do his job. He said there was no discussion about offers or amounts to be sought from the last bidder.
6. Mr Aquilina said Mr Alexiadis then went out and came back 10 or 15 minutes later and 'the deal was done' and that 'the agent sort of accepted it when he was out there'. He said there was a new offer of $2,990,000, Mr Duggan was not happy about it but he could not hear anything else. Mr Aquilina said after Mr Alexiadis came back 'the second time and the deal was supposed to have been done. And I told Ross,you don't have to take it Ross, you know, walk away. But I don't know whether he if could or you know whether it was financial problems or what, I don't know.'[17]
7. Mr Aquilina agreed Mr Duggan was very upset but Mr Aquilina said he was angry at Mr Duggan for not passing the property in 'because that would've solved a lot of problems, We wouldn't be here probably...that's why I went there in the first place'.[18]
8. When questioned by Mr Purdy, concerning his evidence that there was no discussion about any amounts after Mr Duggan told Mr Alexiadis to go and do his job, and that when he returned the deal was done, Mr Purdy suggested Mr Aquilina had not been party to all the discussions, Mr Aquilina said he had heard most of the conversation but he agreed he had not heard everything.
9. Mr Aquilina said Mr Duggan had told him in the days before the auction he wanted $3,200,000 and he knew the amount the house sold for was nowhere near that.

1. Mr Alexiadis said he first met Mr Mathews when he sold a home to him over 30 years ago. He agreed he met Mr Duggan through Mr Matthews. He said Mr Matthews had said he had a mate who is a carpenter and they wanted to do a development together. Mr Alexiadis said he understood Mr Duggan was a builder and that they were partners in the development project.
2. Mr Alexiadis said Mr Matthews and Mr Duggan had sought advice as to where they should buy and what they should do in terms of renovating an existing home or demolishing and building a new home. He said in discussions with them he said to buy in a good spot, with a north facing block, that building a contemporary home was a good option because builders had told him it was cheaper to build than renovate.
3. Mr Alexiadis said he had no involvement in the specific purchase of the Northcote Property and found out after they bought it. He said he assumed they both bought it because he understood they were partners in a business relationship and both had been meeting with him and talking about buying and selling moving forward.
4. Mr Alexiadis said they told him they had bought the Northcote Property and planned to build within the next 12 months and then sell. He said it was always about buying, knocking down and selling.
5. Mr Alexiadis agreed Mr Duggan showed him preliminary plans of the proposed build. At the time of giving his evidence, only plans of the downstairs area had been produced by Mr Duggan. Mr Alexiadis said he recalled saying the upstairs bedrooms were not big enough. Mr Alexiadis denied saying he suggested to make the house bigger. He said even the first plan shown to the Tribunal by Mr Duggan showed there was no backyard. He said there was talk about putting a pool in but if a family were looking for a four or five bedroom home because of the number of children they have, the family wants a big backyard.
6. Mr Alexiadis agreed Nelson Alexander had an event at a property and invited a number of owners along and thought it would be good idea for Mr Duggan to come along to meet a particular stylist to assist him with the Northcote Property, and the finishes. He said he met another stylist and formed a relationship with them.
7. Mr Alexiadis agreed that auction was always what was discussed in terms of how to sell the Northcote Property. He said he recommended that and Mr Duggan and Mr Matthews were happy with it.
8. Mr Alexiadis referred to handwritten notes he took back in 2018 after a letter of demand had been received from Mr Duggan's solicitor. The notes recorded the initial proposed auction dates were 24 June 2017, 28 October 2017 and then 11 November 2017. He said at the time the initial talk was that the build would be finished by April or May 2017, but there had been delays. He said Mr Matthews was frustrated and had asked him to go and look at the build. He said Mr Matthews had said the build was taking too long, all the money has been spent and he was asking him to work out dates for the auction to work towards.
9. Mr Alexiadis said the only discussions in early 2017 were around price, which were at a time when the build was not even finished, were that his feeling was mid-$2million, maybe a touch more, because they were building something that was not common. Mr Alexiadis said he always gives conservative figures so no one is going to get into trouble - by which he said he meant costs go too high and then you do not make a profit because you have overestimated what it is worth.
10. At this time Mr Alexiadis said he was speaking with Mr Matthews and it was Mr Matthews telling Mr Duggan to hurry up the process. Mr Alexiadis said Mr Matthews told him that Mr Duggan was speaking to other agents. He said Mr Matthews said the agents were 'pumping his head up with prices', telling him he would get $3,200,000 or $3,400,000.
11. During his evidence Mr Alexiadis was taken to a number of 'schedule of events' documents containing information about proposed marketing campaigns for the various auction dates that they had tried to work towards. He said those dates did not eventuate because of the delays. He was shown the schedule of events for the eventual auction date of 11 November 2017, with the first open for inspection on 28 October 2017, followed by eight other open for inspections.
12. Mr Alexiadis gave evidence about the number of open for inspections held, the marketing and advertising conducted, including the video which had been prepared. He said what was undertaken was a standard approach for a valuable property. He said he had attended all open for inspections and that they had 98 people through.
13. Mr Alexiadis said that he first became aware Mr Duggan and Ms Oliver were the registered proprietors of the Northcote Property when preparing the EAA.
14. He said when the EAA was first prepared the words 'to be advised' was written next to the reserve price. He said it was standard practice not to insert a reserve at this time because if a reserve is stated, then by law you must market at that price, and you have to state what that reserve price is whenever you quote to the market and the reserve price needs to be at the bottom end of your quote. He said closer to the auction is when the reserve is finalised.
15. Mr Alexiadis said that the range of $2,800,000 to $2,950,000 for the estimated selling price was inserted after a discussion with Mr Duggan and Mr Matthews. He said that in formulating the range he considered other properties in the area and their selling price and, having considered that information, he formed the view that the Northcote Property was closer to $2,800,000. Mr Alexiadis said Mr Duggan was not comfortable quoting in that range and thought the property was worth more than $3,000,000. He said it was a balancing act in setting the price range between his assessment of the market, the vendor's expectations, the fact you represent an owner, and as an agent you do not want to mislead the public.
16. Mr Alexiadis said he did not want to put a price range in that did not encompass the owner's reserve. He said he discussed it with both Mr Matthews and Mr Duggan and said whatever amount is inserted needs to be within the range they would be prepared to accept on auction day. He said the compromise was to put it in at $2,800,000 to $2,950,000 with the understanding that when they got to auction day, they would be selling within that range. He said otherwise if they got to auction and Mr Duggan had said he was not going to sell for under $3,200,000, then they have marketed a property well below what the vendor wants. Mr Alexiadis said he would have walked away from the appointment as agent if he had not had the discussion with Mr Duggan concerning the price range, and Mr Duggan's agreement to be prepared to sell within that range.[19]
17. Mr Alexiadis said $2,800,000 to $2,950,000 was the range the Northcote Property was marketed at by Nelson Alexander.
18. Mr Alexiadis said he was conscious that Mr Duggan and Mr Matthews were arguing amongst themselves, with Mr Duggan telling him that other agents are saying the Northcote Property was worth more, and Mr Matthews was saying it was not.
19. Mr Alexiadis said he did not get into many discussions with Mr Duggan. He said Mr Matthews had said to him words to the effect 'we've got to sell it'. When asked what he meant by that, Mr Alexiadis said because of the business relationship between Mr Duggan and Mr Matthews, it was costing Mr Duggan a lot of money in interest, and Mr Matthews wanted his money out as he said there wasn't going to be any money left because of the money that was being spent by Mr Duggan. Mr Alexiadis agreed that his understanding of the financial position was based on what Mr Matthews had told him.

1. Mr Alexiadis agreed the meeting occurred in Nelson Alexander's office and that Mr Duggan and Mr and Mrs Matthews were present with him. Mr Alexiadis described the meeting as a strategy meeting which he had arranged to bring everyone up to speed, to discuss potential buyers and run through what possibilities might rise on the day of the auction, including when does the property go on the market. In this regard he said there had been 98 people who had inspected the Northcote property and three interested buyers.
2. When asked if the purpose of the meeting was to set the reserve, he said it was not. He agreed the meeting was to cover price, but the specific reason was to talk about options and scenarios. He said they discussed $3,000,000 as being one of the scenarios that if it was going to be on the market that is what was needed to be discussed, but it was not set on that day. He said that the reserve price would be set on the day of the auction based on who was there and described different scenarios in terms of how the number of buyers present might impact when the property is 'on the market'. He said they did discuss figures and he thought the figure should be under $3,000,000, being the top end of the quote.
3. Mr Alexiadis went on to say if the reserve was set at the pre-auction meeting then they, the agents, would have to notify people that it had been set prior to the auction if asked by a prospective buyer if there is a reserve. He explained the 'pros and cons' of how the reserve price is set and how it is dependent on the number of bidders and various strategies. He said that he suggests owners wait until it is known who attends the auction and the number of potential bidders. Mr Alexiadis said, however, he needs and wants to know the reserve before he goes out to conduct the auction.
4. At the end of the pre-auction meeting Mr Alexiadis said it was left for Mr Duggan and Mr and Mrs Matthews to discuss what the reserve might be. He said it was not a comfortable meeting because Mr and Mrs Matthews wanted to sell, and Mr Duggan had 'his own ideas where he wanted it to be, so I left it to them because it's not my role and I just wanted to know the following day'.

1. Mr Alexiadis said just before the auction started he had a conversation in the house with Mr Duggan, Mr and Mrs Matthews. He said he told them they had interest, that there were buyers present, so it was important to discuss when does the property go on the market if there is competitive bidding.
2. Mr Alexiadis said he believed he spoke first and gave his recommendation that if they hit $3,000,000 then the house should be on the market. He said he did not feel they were going to get there but if they did, they should not squander that opportunity. He said he recalled Mr and Mrs Matthews agreed to sell at that amount and that they were talking to Mr Duggan and telling him that they should sell at that price. He said they were arguing amongst themselves and that Mr Duggan eventually, reluctantly, said that he agreed with Mr and Mrs Matthews, that is, if a bid of $3,000,000 was made, the Northcote property can sell at that price.
3. Mr Alexiadis said if Mr Duggan had not confirmed his instructions regarding the reserve he would not have gone out to conduct the auction and he would have waited until he received confirmation regarding the reserve price.
4. Mr Alexiadis then described the auction and referred to the handwritten notes which were taken on the day by his assistant as well as his own notes. These notes were described as the bidding sheet. He said he opened the bidding at $2,800,000 because that was the bottom end of the quote. He went through the other bids received, noting the bidding finished at $2.860,000. He said the property was then passed in and he went back inside to have a discussion with Mr Duggan and Mr and Mrs Matthews. He said he could not recall if Mr Duggan's wife was there or not, or if she came later. He did not recall Tony Aquilina being part of the conversation. Mr Alexiadis said if he knew Mr Aquilina was going to be party to any of the discussions he would have invited him to the Friday meeting.
5. Mr Alexiadis said he then discussed options - the offer of $2,860,000 was on the table and could be accepted, or, he could go back and negotiate on their behalf. Mr Alexiadis said Mr and Mrs Matthews wanted to take the $2,860,000 and they were arguing with Mr Duggan. He said that his approach has always been 'if you don't ask you don't get' so he said he was happy to go out and try. Mr Alexiadis said he asked what the bottom line was that he could go back to the buyer with. Mr Alexiadis said they just needed to be careful with whatever amount he was instructed to go back with, and said words to the effect if he went back with $3,000,000 versus $2,990,000, that the small difference can make a big difference to how it is perceived. He said that his recommendation was to go back with $2,990,000 just to break the $3,000,000 barrier and offer the property to the buyer exclusively. He also said there was still $130,000 to go up from the last offer, and he was not sure they could get more money out of the buyers.
6. He said Mr Matthews and Mr Duggan then confirmed he was to seek $2,990,000. Mr Alexiadis said he went as instructed to the last bidder and they agreed to purchase the Northcote property for $2,990,000. He said after that the buyers were brought inside and they signed the contract documents, and then the owners signed the contract.
7. Mr Alexiadis said he had to leave to conduct another auction. When taken to the EAA he said where the amount of $2,990,000 had been inserted next to the reserve price, with the words 'to be advised' crossed out, that his assistant had been present when the contracts were executed and would have initialled that amendment. He said when you have a sale, the sale price and the reserve need to match because you are not going to sell under the reserve.

1. When cross examined by Mr Duggan, Mr Alexiadis,

(a) denied that after the house was passed in, he came into the front room and said that $2,860,000 was the best price he could get;

(b) denied saying that 'the market had fallen';

(c) denied he was 'keen' for Mr Duggan to sell the house at the price it was passed in, namely, $2,860,000.

1. When Mr Duggan put to Mr Alexiadis that, after the property was passed in at $2,860,000, he told Mr Alexiadis to 'go and do his job' but had never said to Mr Alexiadis 'this is the reserve price that I will accept', Mr Alexiadis said Mr Duggan had agreed with the amount of $2,990,000. He said one of the first things that Mr Alexiadis had said was words to the effect that if he was to go to speak to the buyer, he first needed a price to offer them as the reserve price.
2. When Mr Duggan put to Mr Alexiadis that at the pre-auction meeting Mr Duggan had said that $3,200,000 was the minimum reserve price he would accept, Mr Alexiadis said he did not remember him saying that. When Mr Duggan said Mr Alexiadis had then said the reserve 'needs to be 3 million', Mr Alexaidis said his recommendation was, if they were lucky enough to get people bidding to $3,000,000, the property should be on the market at that amount.
3. When Mr Duggan asked Mr Alexiadis why he recommend the reserve be $3,000,000 when his evidence was he believed $2,500,000. was appropriate, he said he was trying to appease Mr Duggan and to set the reserve at an amount where Mr Duggan wanted it, but not above what had been discussed.
4. When asked why he did not offer for Mr Duggan to pass the house in, Mr Alexiadis said the house had been passed in.
5. Mr Alexaidis denied he was adamant he wanted Mr Duggan to sell the house and said he did not force owners to sell, that it was Mr Duggan's decision along with his business partner and his wife. He said Mr Duggan agreed to sell the house and he had given him options.
6. Mr Duggan said he felt betrayed by Mr Alexiadis and that he had favoured Mr Matthews. Mr Duggan spent some time questioning Mr Alexiadis on matters arising after the auction, including:

(a) a text Mr Alexiadis had sent congratulating him on the sale, which Mr Duggan found offensive,

(b) attempts Mr Duggan had made to contact Mr Alexiadis to speak with him and events leading to Mr Alexiadis obtaining an interim intervention order against Mr Duggan; and

(c) an email dated 13 November 2017 from Mr Mathews to Mr Alexiadis shortly after the auction.

1. The following is an extract of Mr Mathews email to Mr Alexiaids dated 13 November 2017;

I thought we had or got through this due to Ross' calm demeanour after the auction.

Many people saw a smiling happy joking pleasant vendor and we assumed he was satisfied.

...then he ranted about me putting the reserve at 2.8 million which was wrong and I tried to explain to him that he agreed to all of the decisions in front of witnesses etc

every time I made a point to counter his idiotic comments, he yelled and screamed over the top of me and changed the subject going on about the stylist (as if his arrangement with them had anything to do with me)

supposedly when his relationship broke down he made them my responsibility and therefore all the bizarre idiotic business transactions he palmed off to me to magically resolve which I never said I would do.

All I agreed to with them is to liaise with them since he could not communicate with them without having a schoolgirl tantrum at them.

I just had to manage him as best as I could until I could get out

during the build he abused me and went off over some small aspect.

if had not had my life savings at risk I would have walked....

As far as I am concerned I think we got a fantastic result. Marian and I are over the moon because we know that this could have gone bad thanks to his big mouth and him getting played by the opposition

for years I have tried to control an out of control build where no amount of money or time was considered by him because he convinced himself with his own idiotic logic that-

'trust me I know these buyers I know what they want and along with the attitude that he is not worried about over capitalising because he knows that the house is worth around 3.5 mil.

Every time he quoted that and it was about twice a day for years I would say you are setting yourself up for a possible big disappointment....

1. For efficiency and practicality, both experts gave their evidence together. They each adopted their respective reports and explained why they disagreed with the other's view of the market value of the Northcote Property.
2. Both adopted the same definition of market value, namely:

Market value is the estimated amount for which an asset should exchange on the date of valuation between a willing buyer and a willing seller in an arm's length transaction, after proper marketing, wherein the parties had each acted knowledgeably, prudently and without compulsion.

1. In forming his view that the market value of the property was $3,200,000, Mr Nichols said he undertook a comparative analysis, considering the sales of similar residential properties in the surrounding area. He disregarded the evidence of the sale of the Northcote Property for the purpose of the valuation. This is to be compared to Mr Stafford who, whilst also using the comparative market method, included consideration of the actual sale price of the Northcote property because he considered the best evidence of value of a property was what occurred when it was put up for public auction, after a properly conducted campaign and a competitive auction.
2. The other main point of difference between the two views was the date of the valuation. Mr Nichols assessment was at 18 January 2018, whereas Mr Stafford's assessment was as at the date of the auction.

Mr Duggan's expert: Bryan Nicols of Value Melbourne Property Valuations

1. Mr Duggan engaged Mr Byron Nichols of Value Melbourne Property Valuations who prepared a report dated 25 January 2018. VMPV issued a revised report on 13 November 2025. Mr Duggan said the valuation he obtained from VMPV was intended to show the 'true value of the house'.
2. There was no letter of instruction accompanying either the First MVPV or the Second MVPV Reports. Mr Nichols said he received verbal instructions from VMPM's director, Mr Robertson, who in turn had met with Mr Duggan. The VMPV report states VMPV were retained to determine 'the fair market value' of the Northcote Property for market value purposes, valued as at the date of the valuation, namely, 25 January 2018. VMPV considered based on their analysis the current market value of the property to be $3,200,000.
3. In explaining the difference between his first and second, report, Mr Nichols said the first report was prepared on the basis of looking at a broader market in Northcote and included 20 comparable properties, whereas the second report was more concise and incorporated commentary on marketing of the Northcote Property. He said he did this in response to viewing the contents of Nelson Alexander's expert report which included information concerning the background facts of the sales campaign of the Northcote Property.
4. Mr Nichols said in his view a short marketing campaign for a high-end property, which he described as a 'thin market' in Northcote, was not usually considered appropriate as properties in a thin market are usually sold by private treaty. Mr Nichols was of the opinion the Northcote Property had been mis marketed because it went to auction and was not sold by private sale. He agreed that he had received no instructions about how the Northcote Property had been marketed or sold on the auction day, nor did he have any knowledge of the background circumstances, or what the allegations were the subject of this dispute.
5. Mr Nichols agreed he had not been asked to value the property as at the day of the auction, being 11 November 2017, but he did not consider his valuation, carried out approximately two and a half months after the auction, meant it was irrelevant, because he said the market in Northcote at the time was flat, just slightly rising.
6. When questioned by Mr Purdy, Mr Nichols:

(a) agreed he disregarded the evidence of the sale of the Northcote Property for $2.99 for the purpose of the valuation. When it was put to him that the best evidence of the value of the Northcote Property was what occurred when it was put up for public auction after a properly conducted campaign and a competitive auction, Mr Nichols said to determine market value you do not just adopt a sale price and because, in his view, the Northcote Property was mis marketed, he considered it best to disregard the sale price;

(b) when explaining further why he disregarded the sale price, said[20]:

....you can get above what's called market value at auction. You can get below market value at auction. Um it doesn't mean that it's the real market value just because it sells at auction under the right circumstances. Um I've done properties that have sold for 30% above market value because someone was stupid, you know, and you turn around and you say well, that's not market value when you look at it on the comparative sale.

So it's actually the comparative sales that determine your view of the market value. It's not what the property sold for, because then you're setting yourself a benchmark and you're saying-as banks do in their kind of valuation little world, where you have a benchmark here and it's up to the valuer to disprove it in that sense. But in reality, if the property sells for under value it sells for undervalue because it's the comparative sales. You're comparing the property to the comparative sales.

(c) said he took the view that 'as there was a dispute as to value of the property on a fair market basis, that I would disregard the sale price and not be influenced by it', p 340;

(d) was critical of Mr Stafford using the 'summation method' as a check method in this instance and he explained why he considered it was not an appropriate method in this instance.

1. I asked Mr Nichols if he agreed that carrying out a market value assessment is different, and a different question, to what price could that property fetch on the day of the auction? He replied as follows:

...'Well, a market value is exactly that. It's looking at these properties that have sold and saying where this property fits into those sales. That's what market value is. That's all it is....But it doesn't say and that's what you're going to get at auction...No, you never know what you're going to get at auction. No. No. I agree with you entirely on that, yes.[21] P353, 354

Nelson Alexander's expert: Mr Tim Stafford of WBP Group

1. Mr Stafford of WBP Group prepared report dated 18 March 2025 and an updated report dated 13 November 2025. Mr Stafford opinion of the retrospective market value of Northcote Property as at 11 November 2017.to be $2,990,000.
2. The WBP Report stated the primary methodology used was Market Approach/Comparable Transaction Method and checked by Cost Approach ('Summation Method').
3. Mr Stafford disagreed with Mr Nichol's criticism that summation method not a valid check method and he explained the summation method supports his figure obtained using the direct comparison method.
4. The letter of instruction from Nelson Alexander's lawyers provided to WBP Group set out detailed background facts concerning the sale of the Northcote Property including when Nelson Alexander was retained, the advertising undertaking, the market campaign through to the day of the auction, and the number of bidders.
5. Mr Stafford said the sale price obtained at auction was his first consideration and that he wanted to understand the circumstances of the sale and consider whether they matched up with the legal definition of ' market value'.[22] He explained the definition was a willing buyer and a willing seller in a non arms length transaction, proper marketing, with both parties acting knowledgeably and without compulsion. He said the first thing he did was to conduct research to discover if that was the case in this instance, and in his view, it was. [23]
6. Mr Stafford said his 'research' consisted of[24]:

(a) discussions with Mr Alexiadis about what happened at the auction;

(b) considerations regarding the years of experience and knowledge of the area of Mr Alexiadis - they were a local agent with many years of experience in the area;

(c) the auction campaign -he considered a 4-week sale campaign appropriate,

(d) there was competitive bidding at the auction - he noted the property was passed in and negotiations took place afterwards with the property selling for slightly above the advertised range of $2,800,000 to $2,900,000.

1. Mr Stafford explained that he first looked at the sale price and he then considered comparable sales evidence in the area to see if that sale price was broadly supported by sales evidence, and in his view it was.
2. Mr Stafford said he disagreed with Mr Nichols market value of $3,200,000. He disagreed with his comments that the property should have been sold by a private sale and that six weeks was a standard selling. He said if you disregard the auction price, he could say potentially you could get a sale price of $3,200,000 but he did not think you could disregard the fact the property had gone through an open and transparent auction process.

1. In this matter there are several instances where the evidence of Mr Duggan is at odds with Mr Alexiadis, none more so than in regard to the disputed representations. Put simply, Mr Duggan says the day before the auction, at the strategy meeting, Mr Alexiadis said the estimated selling price of the Northcote Property was $3,200,000 and that Mr Alexiadis thought it would sell for $3,400,000. Mr Duggan also contends that on the day of the auction, Mr Alexiadis said 'the property market had changed'. Mr Alexiadis denies making any such statements.
2. The burden of proof rests with whoever brings an application to the Tribunal, which means that an applicant must produce sufficient evidence during a hearing to support what they say and to prove their case. It is not usually enough for an applicant to merely assert that they have a right to an outcome. Generally, they must also have quality evidence to back up what they say.
3. I have carefully considered Mr Duggan's and Mr Alexiadis' evidence and had the benefit of observing their demeanour throughout the hearing. For the following reasons I prefer the evidence of Mr Alexiadis.
4. Mr Alexiadis' evidence was coherent and logical whereas Mr Duggan's evidence, at times, was not, leaving the impression Mr Duggan was prepared to alter his evidence to say what he believed suited his contention.
5. I refer to, by way of examples, the differing evidence concerning:

(a) the reserve price on the day of the auction;

(b) the negotiations involving the last bidder; and

(c) the signing of the EAA.

1. Mr Duggan contended a reserve price was never set and that he never instructed Mr Alexiadis to go back to the last bidder to negotiate a sale of the Northcote Property at $2,990,000. On the other hand Mr Alexiaidis said a reserve price of $3,000,000 was agreed upon before he commenced the auction and that, after a discussion with Mr Duggan and Mr Matthews following the property being passed in at $2,860,000, he was instructed to negotiate with the highest bidder on the basis an offer of $2,990,000 would be accepted by Mr Duggan.
2. The setting of the reserve price was central to Mr Alexiadis conducting the auction. Without a reserve price, he was unable to say whether the property is 'on the market' or whether it is 'passed in'. In this instance, once the highest bid achieved was $2,860,000 it was not disputed the property was passed in. If a reserve price of $3,000,000 had not been agreed upon before Mr Alexiadis commenced the auction, then the property could not have been passed in without further consultation or clarification with Mr Duggan, and there is no dispute that did not occur.
3. At times when denying the reserve price had been agreed upon, Mr Duggan said words to the effect the reserve price was never agreed in writing.[25] It was unclear whether he was contending the fact the reserve was not in writing meant it had not been agreed upon. To the extent that was his contention, I reject it because a failure to reduce the reserve price to writing, does not mean it was not agreed upon.
4. Further I accept that to negotiate with the last bidder Mr Alexiadis required instructions concerning what price Mr Duggan was willing to accept. It was not disputed that there was tension in the room between Mr Duggan and Mr Matthews, and that Mr Matthews had different views of what amount he considered should be accepted for the Northcote Property. Whilst he was not the vendor, Mr Matthews was Mr Duggan's business partner and he was owed money, having invested in the development what he described as his 'life savings'. Mr Alexiadis gave detailed evidence of the discussion and his recommendation as to the pros and cons of going back with a figure of $2,990,000 compared to the previously agreed reserve of $3,000,000 and of being able to negotiate with that bidder on the basis they were being offered an opportunity on an exclusive basis to accept the reserve price of $2,990,000. It is implausible to suggest Mr Alexiadis was attempting to negotiate a sale price that was over $130,000 more than what had been offered, without clear instructions from Mr Duggan as to a figure he would accept. Moreover, I note that at no time has Mr Duggan contended that Mr Alexiadis acted without instructions, and Mr Duggan did not say that Mr Alexiadis was not authorised to negotiate a sale price of $2,990,000.
5. Finally, the EAA which Mr Duggan initialled on the day of the sale, noted the reserve price of $2,990,000 and is consistent with Mr Alexiadis' evidence that he was instructed to put $2,990,000 to the purchasers. Mr Duggan's evidence that he could recall signing the contract of sale on the day of the auction but not the EAA which noted the reserve price as $2,990,000 was disingenuous and again gave an impression of not wanting to concede evidence that may not favour his case.
6. In preferring the evidence of Mr Alexiadis, I have also considered Mr Alexiadis' evidence was consistent with the contemporaneous documentation.
7. It is inevitable that over time a witness's memory may fade and is fallible.[26] It is why contemporaneous documents play an important role and may carry more weight in considering and determining conduct and events which took place several years ago, in this case, over eight years ago.[27]
8. The written documentation prepared by Mr Alexiadis and that addressed the estimated selling price, namely, the EAA and the Vendor's authorisation for price document recorded the price range of $2,800,000 to $2,950,000 and the property was advertised in that range. Mr Alexiadis gave detailed evidence regarding the conversation which took place before the price estimate was agreed upon with Mr Duggan. In particular, he said whilst he was aware Mr Duggan had been told by other real estate agents the property 'would sell for $3.2 to $3.4 million', it was Mr Alexiadis' view, one that he did describe as conservative, that $2,800,000 was more accurate[28]. Mr Alexiadis explained the basis of his price range and what was discussed with Mr Duggan and Mr Matthews concerning the price range. It is noteworthy that notwithstanding he knew other agents were 'talking up' the sale price, he did not bow to the pressure of what Mr Duggan wanted. The price range stated in these documents was also comparable and consistent with the bids received on the day of the auction and the ultimate sales price.
9. On the other hand, Mr Duggan's evidence of the discussion surrounding the signing of the EAA and the Vendor authorisations for price representations documents did not present as plausible. In this regard, Mr Duggan:

(a) said Mr Alexiadis allegedly told him that the Northcote Property would sell for $3,200,000 and $3,400,000 at the time he executed the EAA;[29] and

(b) denied Mr Alexiadis had told him his view was the property was worth mid $2,000,000 and the price range was an agreed compromise, but did agree he thought it should be marketed at over $3,000,000 which was what other agents were allegedly telling him it would sell for.

1. First, the only evidence that Mr Alexiadis allegedly said to Mr Duggan that he thought the estimated selling price was $3,200,000 to $3,400,000. at the time the EAA was signed was the oral evidence given by Mr Duggan some eight years after the event and raised for the first time at the hearing, having never been detailed in his Points of Claim. This is surprising and is suggestive of evidence given to improve his case.
2. Secondly, Mr Duggan was unable to produce any contemporaneous documents that referred, in any way, to Mr Alexiadis giving an estimated selling price of $3,200,000.or $3,400,000 the day before the auction or at any time.
3. The fact is Mr Duggan signed the documents which stated a price range of $2,800,000 to $2,950,000 and by signing them he was agreeing to the estimates considered by Mr Alexiadis to be appropriate. The EAA and the Vendor's authorisation for price document were not signed by Mr Duggan 'in the heat of a moment' but were executed at the point in time Nelson Alexander were engaged to represent Mr Duggan, in early October 2017. It is readily understood that it is always hoped a vendor will achieve more than the price estimate given by an agent and an agent's duty is to achieve the best price possible. But there are no guarantees. By signing the EAA Mr Duggan accepted the price range of $2,800,000 to $2,950,000 as determined in consultation with Mr Alexaidis.
4. For completeness, I note in his final submissions Mr Duggan sought to raise an additional claim, namely, that it was misleading and deceptive of Mr Alexiadis to complete the price range as stated in the EAA. I reject that submission because it was not an allegation previously raised by Mr Duggan in his Points of Claim and there has never been an allegation brought by Mr Duggan that Mr Alexiadis did anything other than what he was instructed to do.
5. I also reject Mr Duggan's submission that 'the evidence shows that Tom knew I was not willing to sell in the price range indicated', or that he 'would not sell for less than $3.2 million and that Mr Alexiadis 'had always assured me this was a reasonable expectation'. Putting to one side the fact these assertions were never alleged in Mr Duggan's Points of Claim and were raised for the first time in the final submissions, there was simply no evidence to substantiate those assertions. On the contrary, the evidence demonstrated that Mr Alexiadis was aware Mr Duggan wanted to sell for more than the price range indicated, but that Mr Duggan had agreed to:

(a) the estimated selling price range of $2,800,000 to $2,950,000 as stated in the EAA and the Vendor's authorisation for price document; and

(b) a reserve price of $3,000,000 prior to the commencement of the auction; and

(c) to sell the Northcote Property for $2,990,000.

1. In his final submissions Mr Duggan said the views expressed by the other agents were 'consistent with his own research'. Mr Duggan was not ignorant of the market if he had undertaken his own inquiries. It was open to him to go elsewhere at any time, he did not. Further, I note there was no documentary evidence that other agents did, in fact, offer a view the Northcote property would sell for $3,200,000 to $3,400,000. but, even if that occurred, complimentary statements made by agents in an attempt to obtain business, are a very different matter to an agent fulfilling their legal obligation under s 47A of the Estate Agents Act 1980 (Vic) to provide a price estimate that 'must be an amount the agent believes...a willing but not anxious buyer would pay for the real estate, or in the case of a price range, the range within which that amount is likely to fall'.
2. Finally, I also note the email written by Mr Matthews shortly after the auction supports and is consistent with Mr Alexiadis' evidence. In that email Mr Matthews says Mr Duggan 'ranted about me putting the reserve at 2.8 million which was wrong and I tried to explain to him that he agreed to all of the decisions in front of witnesses'. The reference to $2,800,000. logically appears to be a reference to the price range in the EAA and the Vendor's authorisation for price document. Ultimately, however, as I have said, notwithstanding Mr Duggan considered it ought to be marketed at a higher price, he agreed to the estimated selling price range.
3. In addition to the above specific examples of a lack of coherency in Mr Duggan's evidence, I have also taken into account an unjustified underlying flavour in his evidence whereby anything to do with the Northcote Property which had not gone to plan, or which might be considered a criticism, was said to be Mr Alexiadis' fault. It left an impression Mr Duggan was overstating evidence in an attempt to improve his claims.
4. By way of illustration, although Mr Duggan gave detailed evidence of his experience and ability to draw plans, of 'pinching' architectural ideas from other jobs he had worked on, of being, as owner builder, the person responsible for engaging and arranging all of the trades on the project and of engaging an interior designer to provide advice on finishes, he then said Mr Alexiadis was responsible for the build over capitalising on the land. Other than providing general advice about the development, there was no evidence Mr Alexiadis was involved in the day-to-day operations of the build and therefore no evidence to support Mr Duggan's contentions. Moreover, there was no claim ever alleged by Mr Duggan in the Points of Claim concerning the advice given by Mr Alexiadis, that it was ill conceived or was wrong.
5. It is not uncommon for parties involved in a legal dispute to have a strained relationship, even to the point of not speaking with each other. Certainly, Mr Duggan raised his disappointment and frustration with the fact Mr Alexiadis had obtained an intervention order against him after the auction on several occasions throughout the hearing, notwithstanding it was irrelevant to the basis of his claims. However, the tone of Mr Duggan's evidence left me with an overall impression that his evidence concerning the reserve price agreed to on the day of the auction, and his agreement to sell for $2,990,000, again was Mr Alexiadis fault rather than taking responsibility for the decisions he himself made.
6. For completeness I note the email written by Mr Matthews shortly after the auction is pertinent. Whilst I acknowledge he was no longer on speaking terms with Mr Duggan, it provides a relevant perspective. Mr Mathews said of Mr Duggan:

For years I have tried to control an out of control build where no amount of money or time was considered by him because he convinced himself with his own idiotic logic that-

'trust me I know these buyers I know what they want and along with the attitude that he is not worried about over capitalising because he knows that the house is worth around 3.5 mil.

Every time he quoted that and it was about twice a day for years I would say you are setting yourself up for a possible big disappointment....

1. As I prefer the evidence of Mr Alexiadis to that of Mr Duggan, I accept Mr Alexiadis' evidence that he did not say on the day before the auction that the estimated selling price was $3,200,000 or $3,400,000. I accept Nelson Alexander's submission that it would then make no sense for Mr Alexiadis to have said that the market had dropped or changed on the day of the auction, if he did not say the estimated selling price. I am therefore not satisfied Mr Alexiadis said, on the day of the auction, that 'the market had changed'.
2. For completeness, I note Mr Aquilina was not present at the pre-auction meeting and therefore had no relevant evidence on what was said during that meeting. With respect to the disputed representation alleged to have been made on the day of the auction, Mr Aquilina said Mr Alexiadis had said 'the market had slowed'. This is not what Mr Duggan alleged was said by Mr Alexiadis and therefore this evidence is of no assistance.
3. Mr Duggan was noticeably 'frustrated' by Mr Aquilina's evidence when Mr Aquilina conceded that whilst he was present during discussions between Mr Alexiadis, Mr Duggan and Mr and Mrs Matthews on the day of the auction, he had not in fact heard everything that had been discussed. I regarded Mr Aquilina to be an honest witness, doing his best to recall events which occurred some eight years ago. The fact was he had not heard all that was discussed between Mr Alexiadis, Mr Duggan and the Matthews.
4. Accordingly, based on the evidence before me, I am not satisfied that Mr Duggan has proven, on the balance of probabilities, that Mr Alexiadis said:

(a) on the day before the auction, that he thought the Northcote Property would sell for $3,200,000 or $3,400,000; and

(b) on the day of the auction, that 'the property market had changed'.

1. As such, the allegations based on the disputed representations must fail.
2. I turn now to consider whether the admitted representation contravened the ACL and amounted to misleading and deceptive conduct and/or whether it was negligent, as contended by Mr Duggan.

(a) the representation made by Mr Alexiadis, namely, '$2,990,000 was the best price achievable for the property', was misleading or deceptive because he contends the Northcote property was valued at $3,200,000. He relies upon the MVPV reports to support that submission; and

(b) 'but for' the representation, he would not have entered into the contract of sale.

(a) the facts and circumstances of the auction prove that the sale price was the best price that could reasonably be obtained for the Northcote Property and that the retrospective market valuation of Mr Stafford supports that contention;

(b) the representation, objectively viewed, was one of opinion, honestly held by Mr Alexiadis and for which there was a reasonable basis, and Mr Duggan has not established there was a lack of reasonable basis for that opinion as he is required to do;

(c) Mr Duggan made the decision to sell and, as he said, 'buckled' under the pressure caused by the significantly delayed and over budget Northcote Property development, and the breakdown of his relationship with Mr Matthews and marriage.

(d) in any event, even if the representation was misleading or deceptive, Mr Duggan failed to take reasonable care of his own interests as he could have, as Mr Aquilina said, passed in the Northcote Property:

(e) there was no loss, because the sales price was the best price that could reasonably be obtained for it and again relied on the Stafford report; and

(f) Mr Duggan's contention that but for the misleading or deceptive representation he would not have sold the Northcote Property on 11 November 2017 but, rather, would have put it back on the market for private sale, ought to be rejected. Nelson Alexander say 'This is a hypothetical claim for loss of opportunity made in hindsight'.[31] Nelson Alexander say the evidence establishes Mr Duggan knew on the day of the auction that passing in the Northcote Property was an option open to him and his submission of what he would have done is self-serving and of little weight. In any event, Nelson Alexander say the Northcote Property sold for the best price reasonably obtainable, and it is a matter of speculation as to when or for how much the Northcote Property might have eventually been sold.

1. The Australian Consumer Law and Fair Trading Act 2012 (Vic) ('ACLFTA') confers jurisdiction on the Tribunal in respect of claims under the ACL.[32] Section 18 of the ACL provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive, or likely to mislead or deceive. Consequently, if a person suffers loss or damage because of such conduct, they can recover under section 236 of the ACL the amount of the loss or damage that occurs because of a failure to comply with this requirement.
2. In Miller's Australian Competition and Consumer Law[33] the learned author summarises the well-established principles the courts have developed in relation to section 18 of the ACL, including the following

(a) it applies to 'conduct' that is misleading or deceptive or likely to mislead or deceive. 'Conduct' can include making a statement which is misleading or deceptive or likely to mislead or deceive. Although many cases refer to 'representations', that is merely one form of conduct;

(b) the 'conduct' must lead, or be capable of leading, a person into error and the error or misconception must result from 'conduct' of the person and not from other circumstances for which the person is not responsible;

(c) the section is concerned with the effect or likely effect of conduct on the minds of those likely to be misled or deceived;

(d) the test is objective, and the court must determine the question for itself, but the section is not designed for the benefit of those who fail to take reasonable care of their own interests;

(e) the relevant conduct must be identified and then consideration given to whether that conduct, considered as a whole and in context, is misleading or deceptive or likely to mislead or deceive. It is wrong to select particular words or acts which, although misleading in isolation, do not have that character when viewed in context;

(f) the standard against which the conduct is to be tested is the standard of a reasonable person of the class to which the conduct is directed;

(g) the character of a representation said to be false or misleading is to be tested at the date of the making of the representation and not with the benefit of hindsight.

(h) A statement of opinion will not be misleading or deceptive merely because it turns out to be incorrect. An incorrect opinion does not, of itself, establish that the opinion was not held by the person who expressed it or that it lacked any or any adequate foundation.

(i) An opinion that is identifiable as an expression of opinion conveys no more that that the opinion is held and perhaps that there is a basis for the opinion. If that is so, an expression of opinion, however erroneous, mispresents nothing.

(j) As to opinions, an opinion may convey that there is a basis for it, that it is honestly held and, when it is expressed as the opinion of an expert, that it is honestly held up on rational grounds involving an application of the relevant expertise. If the evidence shows that the opinion was not held or that it lacked any or any adequate foundation, particularly if the opinion was expressed as an expert opinion, a statement of opinion may contravene the section.

1. Guided by the above principles, I must determine whether the words Mr Alexiadis admits saying on the day of the auction, namely, 'that $2,990,000 was the best price achievable for the Northcote Property', were misleading or deceptive or likely to mislead or deceive, within the meaning of section 18 of the ACL.
2. It is clear from the context in which the statement was made that Mr Alexiadis was expressing his opinion, and it was not suggested it was otherwise. The real question raised by Mr Duggan is whether the opinion was reasonably held or whether it lacked any or any adequate foundation. Given the admitted representation was not as to future matters, it is for Mr Duggan to establish a lack of reasonable basis for the belief.[34]
3. Having regard to the relevant background and surrounding circumstances, I am satisfied that when Mr Alexiadis said '$2,990,000 was the best price achievable' for the Northcote Property he was stating his honest and reasonably based opinion.
4. In forming this view I have had regard to the fact the statement was made;

(a) after the Northcote Property had undergone a marketing campaign prior to the auction about which there was no suggestion or complaint that the campaign had not been extensive and comprehensive or was inadequate;

(b) after he had conducted a competitive auction during which the Northcote Property had been passed in at $2,860,000; and

(c) at a time when the amount he thought was the best price achievable was $130,000 more than the last bid.

1. Further, as I have stated above, I prefer the evidence of Mr Alexiadis regarding what discussions took place regarding the estimated selling price at the time the EAA and the Vendor's authorisation for price document were executed. Mr Alexiadis said his view was the Northcote Property would sell for $2,800,000. Even if I put Mr Alexiadis evidence as to what was discussed to one side, the sale price of $2,990,000 is more than the highest price stated in the estimated price range, namely, $2,950,000. As such, the admitted representation was an understandable and logical opinion.
2. In addition, Mr Duggan said the day before at the pre-auction meeting Mr Alexiadis had asked the parties what the amount would be, when property would be considered on the market. Mr Duggan had said Mr Alexiadis had suggested $3,000,000 should be considered. Mr Duggan may not have liked this recommendation, but it reflected Mr Alexiadis' opinion expressed the day before the auction that if the bidding achieved that price, the Northcote Property should be 'on the market'.
3. Therefore, having regard to the evidence, I consider saying words to the effect '$2,990,000 is the best we can do' on the auction day is consistent with Mr Alexiaids' previously expressed opinion.
4. Finally, I have also had regard to the expert evidence.
5. Mr Duggan said in his final submissions that this case centres around my property not achieving its full sale value. This is not what this case is about.
6. I reiterate, in determining this dispute, I am not required to determine the 'true obtainable value' of the Northcote Property as contended by Mr Duggan. That is because there is a difference between the best price reasonably attainable on the day of an auction and the fair market value. Mr Nichols recognised and agreed with this contention, and I refer to his evidence set out in paragraph 131 above. I also refer to the following statement of the Court in Weber v Land and Business Agents Board Supreme Court[35] ('Weber') where O'Loughlin J said

..it should be borne in mind that the object of any sale should be the achievement of the fair market value of the property and this value should desirably, but not always, equate with a fair and reasonable price. Sometimes a fair and reasonable price may be more than the fair market value and sometimes it may be less than the fair market value. Luck as well as judgment and economic factors can play some part in determining the ultimate sale price of a property -

1. I appreciate the candour with which Mr Nichols gave his evidence. However, given the issues I am required to determine in this case, I prefer the views expressed by Mr Stafford because:

(a) his assessment of market value was as at the day of the auction and took into account the background circumstances leading to the sale of the Northcote Property; and

(b) much of Mr Nichols report contained criticism of Nelson Alexander in circumstances where he had no knowledge of the relevant background facts and where such matters were not the subject of the allegations made by Mr Duggan.

1. Mr Stafford considered the best evidence of value of a property was what occurred when it was put up for public auction, after a properly conducted campaign and a competitive auction. Mr Stafford said, after conducting his research, he was of the view $2,990,000 represented the fair market value.
2. Accordingly, I am satisfied that the opinion expressed by Mr Alexiadis was reasonably held and that Mr Duggan has failed to establish there was a lack of reasonable basis for that belief. Therefore, Mr Duggan has not proven the statement was misleading or deceptive.
3. Furthermore, for the following reasons I reject Mr Duggan's contention that, but for the admitted representation, he would not have entered into the contract of sale.
4. First, Mr Duggan demonstrated he had his own strong views about what sale price should be obtained for his Northcote Property and that he was not someone who was easily persuaded. In his reply submissions he said that $3,200,000 to $3,400,000 were figures 'consistent with my research' and with what other real estate agents had said to him. Whilst there is dispute between the parties as to what was said at the pre-auction meeting, Mr Duggan acknowledged that $3,000,000 was raised by Mr Alexiadis in a discussion as to whether the Northcote Property would be on the market if that amount was reached. He also said he told Mr Alexiadis that he would not sell for less than $3,200,000. As such he knew before attending the auction that his views about the sale price were not shared by Mr Alexiadis, and he demonstrated he was aware he had a choice and he would decide for himself. I therefore reject any suggestion by Mr Duggan that he was under pressure from Mr Alexiadis to sell or 'felt as though [he] had no choice but to sell'.[36]
5. On the other hand, I have no doubt there were other outside pressures which influenced Mr Duggan's decision to sell the Northcote Property. Both Mr Alexiadis and Mr Aquilina attested to the tension at the auction between Mr Duggan and his former best friend and business partner Mr Matthews. Mr Matthews was owed money by Mr Duggan and whilst Mr Duggan was unable to or refused to say how much he had borrowed from Mr Matthews, I note Mr Matthews referred to his 'life savings' being tied up in the development. The build had gone over budget, Mr Duggan also owed his mother money, and the mortgage he had with the ANZ was incurring interest. In addition to the financial strains, his marriage of 22 years had broken down. These were all factors which played a role in the decision to sell and, as he said, he 'buckled'. He may regret his decision, but it is wrong to judge that decision in a vacuum.[37]
6. Moreover, Mr Duggan expressly said he was the owner of the property and it was not up to Mr Matthews whether he sold or not. However, during the hearing Mr Duggan said that if he was successful in his claim he would share the award with Mr Matthews. When asked why he would do that if he was the owner of the property, he said because that was the sort of person he was. I think it reflects the close business relationship and involvement of Mr Matthews so that whilst Mr Duggan said a few times it was not Mr Matthews decision whether to sell, it demonstrates the pressure he faced.
7. Mr Aquilina said he went to the auction with Mr Duggan to support him. He said he was angry at Mr Duggan for not 'passing the property in' and had told him he did not have to sell before Mr Duggan had signed the contract of sale. Whilst I reject Mr Duggan's evidence he was not told by Mr Alexiadis that he could pass in the Northcote Property (and I note it had already been passed in as $2,860,000) or that he was not aware he did not have to sell on the day of the auction, the fact is the sale was not concluded until Mr Duggan signed the contract of sale, so that at any point before then he could have decided to sell by private sale.
8. Accordingly, based on the evidence before me, I am not satisfied Mr Alexiadis engaged in misleading or deceptive conduct when he made the admitted representation, nor that 'but for' the admitted representation, Mr Duggan would not have entered into the sale. As such, Mr Duggan's claims based on misleading and deceptive must fail.
9. For completeness, although given my findings above it is not necessary for me to determine the issue, I accept Nelson Alexander's submissions that:

(a) having regard to the evidence of Mr Stafford, there was no loss suffered by Mr Duggan because the sale price was the best price that could reasonably be obtained on the day of the auction; and

(b) Mr Duggans contention that 'but for' the admitted representation he would have put the Northcote Property back on the market is a self-serving statement, a matter of speculation and was not supported by any evidence.

1. Mr Duggan alleges that in making the admitted representation Nelson Alexander:

(a) was negligent in making the representation (negligent misstatement) because he failed to take any steps to ascertain the truth and accuracy of it, or made it without any or any proper regard to its accuracy and he knew Mr Duggan would rely on it; and/or

1. failed to exercise reasonable care and skill (negligence), thereby breached the duty of care owed to Mr Duggan, again alleging the Property was sold for $2,990,000 when the market price achievable was $3,200,000.[38]

1. The key elements of a claim based on negligent misstatement requires:

(a) a special relationship creating a duty of care;

(b) the information or advice provided must be untrue, inaccurate or misleading;

(c) the representor must have failed to take reasonable care in making the statement;

(d) the recipient must have relied on the statement; and

(e) loss or damage must have been caused by reliance on the misstatement of fact.

1. It is apparent that the evidence required to sustain a claim in negligent misstatement mirror those required to sustain a claim based on misleading and deceptive.
2. Nelson Alexander acknowledges that, as Mr Duggan's and Ms Oliver's agent, they owed a duty to exercise due care, skill and diligence in performing its retainer, which required it to obtain the best price that could reasonably be obtained for the Northcote Property.
3. For the reasons stated above I am satisfied the statement made by Mr Alexiaidis was one of opinion and that there was a reasonably basis for the opinion such that Mr Alexiaidis did not fail to take reasonable care in making the statement and it was not untrue or inaccurate or misleading. Further I am also satisfied that Mr Duggan did not rely on the statement and that he determined to sell the Northern Property in circumstances where he was aware of an alternative course, namely, to reject the amount of $2,990,000.
4. For similar reasons, I reject the contention that Nelson Alexander failed to act with reasonably care and skill thereby breaching the duty of care owed to Mr Duggan when saying '$2,990,000 was the best price achievable on auction day. I reiterate the statement, when considered in the context of the relevant background facts, contains no error and was an opinion reasonably held by Mr Alexiadis.
5. It is apt to set out the following quote set out in the Weber decision, quoting from Duchess of Argyll v Beuselinck [39] when the Court was discussing the nature of the duties of a land agent and the dangers of hindsight and said:

"In this world there are few things that could not have been better with hindsight...the standard of care of a professional man must be based on events as they occur, in prospect and not in retrospect.

1. For completeness, and for reasons stated above, I am satisfied that Nelson Alexander performed its retainer in compliance with its duty to exercise due care and skill and to achieve the best possible price.
2. Accordingly, given the findings made above, I dismiss the claims made by Mr Duggan based on negligent misstatement and negligence.

[1] Mr Duggan and Ms Oliver also borrowed significant funds from the bank to purchase the property.

[2] Ms Oliver was joined by the Tribunal as a party pursuant to s 60 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) because her legal rights may be impacted in the event Mr Duggan is successful.

[3] As applied in Victoria by Part 2.2 of the Australian Consumer Law and Fair Trading Act 2012 (Vic).

[4] Refer to the particulars sub joined to paragraph 6 of the applicant's Points of Claim.

[5] Refer to paragraph 6 of the Points of Claim and the particulars subjoined to that paragraph. The figure of $3.2 million was used interchangeably with $3.4 million during the hearing.

[6] Other than executing the required legal documents, Ms Oliver was not involved in the development or sale of the Northcote Property.

[7] Attempts by Mr Duggan in his final submissions to introduce additional claims not the subject of the hearing have not been considered.

[8] Mr Duggan's expert's view of the market value was as at 18 January 2018 whereas Nelson Alxander's expert's view was as at the day of the auction, being 11 November 2017.

[9] [1959] HCA 8; (1959) 101 CLR 298.

[10] Closing submission's dated 17 December 2025: Reply submissions dated 30 January 2026 and filed in response to the written closing submissions filed by Nelson Alexander.

[11] The new allegations raised included misleading and deceptive conduct with respect to the completion of the EAA, failure to follow 'standard practice' at auction and/or failure to discuss other sale alternatives, failure to focus on Mr Duggan's best interests.

[26] Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR 315.

[27] Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599.

[28] I note Mr Alexiadis said early on, before the Northcote Property was finished, he thought mid $2 million was an appropriate price but that he changed his view to $2,800,000.

[29] In his closing written submissions, Mr Duggan submitted that it was misleading and deceptive for Mr Alexiadis to insert the price range of $2.8m to $2.950m in the EAA I have already stated, Mr Duggan is not permitted to seek to raise in final submissions additional allegations that were not the subject of his claim and about which Nelson Alexander was not given notice or an opportunity to address.

[31] Nelson Alexander's written submissions, page 10.

[32] As applied in Victoria by Part 2.2 of the Australian Consumer Law and Fair Trading Act 2012 (Vic).

[33] Millers, Australian Competition and Consumer Law Annotated 44rd edition, [ACL.18.20]-[ACL.18.40] pages 1415-1418 omitting footnotes.

[34] Ireland v WG Riverview Pty Ltd [2019] NSWCA 307 at [34].

[35] 40 SASR 313.

[36] Mr Duggans' reply submissions, page 3.

[37] In his reply submissions Mr Duggan sought to raise additional evidence, not the subject of the hearing, concerning the loan from his mother and financial implications if the property was not sold at the auction. I have not had regard to that evidence.

1. [38] For completeness, I note Mr Duggan has referred to further allegations of negligence in his written submissions which were not the subject of his Points of Claim. I have not had regard to them.

[39] Per Megarry [1972] 2 Ll. R. 172 at 185.