Investment Realty Pty Limited v Capital Finance Australia Limited

(1) The appeal is dismissed. DECISION : (2) The decision of her Honour Magistrate McGowan dated 29 March 2010 is affirmed. (3) The summons filed 23 April 2010 is dismissed. (4) The first and second plaintiffs are to pay the defendant's costs as agreed or assessed.

CATCHWORDS : APPEAL - Local Court Magistrate - AGENCY -s 84(2) Trade Practices Act 1974 (Cth)

Australian Securities and Investments Commission Act 2001 (Cth) LEGISLATION CITED : Local Court Act 2007 Trade Practices Act 1974 (Cth)

Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 ACCC v Telstra Corp Ltd (2007) 244 ALR 470; [2007] FCA 1904 Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472; [2001] FCA 1549 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Banque Commerciale SA (In Liq) v Akhil Holdings Ltd (1990) 169 CLR 279 Browne v Dunn (1893) 6 R 67 Carr v Neill [1999] NSWSC 1263 Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Coulton v Holcombe (1986) 162 CLR 1 Della Patrona v DDP (Cth) [No 1} (Court of Appeal, 1 September 1995, unreported) CASES CITED : Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 Lisciandro v Official Trustee in Bankruptcy (1996) 69 FCR 180 Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 Oates v Consolidated Capital Services Ltd [2009] NSWCA 183 R v Birks (1990) 19 NSWLR 677 RL & D Investments Pty Ltd v Bisby [2002] NSWSC 1082; (2002) 37 MVR 479 Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1 Swain v Waverley Municipal Council [2005] 220 CLR 517 Trade Practices Commission v Sun Alliance Australia Ltd [1994] ATPR 41-286 University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 Water Board v Moustakas (1988) 180 CLR 491 Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598

Investment Realty Pty Ltd (First Plaintiff) PARTIES : Robert El Khoury (Second Plaintiff) Capital Finance Australia Limited (Defendant)

COUNSEL : D A Allen (Plaintiffs) A Seward (Defendant)

SOLICITORS : Proctor & Associates (Plaintiffs) Kemp Strang (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2010/99159 INVESTMENT REALTY PTY LIMITED & ANOR v CAPITAL FINANCE AUSTRALIA LIMITED

JUDGMENT (Appeal decision of Local Court Magistrate - s 84(2) Trades Practices Act 1974 (Cth)) 1 HER HONOUR: By summons filed 23 April 2010 the plaintiffs seeks to appeal the whole of the decision of her Honour Magistrate McGowan dated 29 March 2010; and an order that the appeal be allowed and the matter be remitted to the Local Court for rehearing. 2 In this appeal, the first plaintiff is Investment Realty Pty Ltd ("Investment Realty"). The second plaintiff is Robert El Khoury ("Mr El Khoury"). Mr El Khoury is the director and guarantor of the debt of of Investment Realty. Investment Realty and Mr El Khoury were the first and second defendants respectively in the Local Court proceedings. The defendant is Capital Finance Australia Limited ("Capital Finance") who was the plaintiff in the Local Court proceedings. Mr El Khoury relied on his affidavit sworn 28 June 2010. For convenience, I shall refer to the parties by name. 3 On 29 March 2010, the Magistrate ordered that Investment Realty and Mr El Khoury pay Capital Finance the sum of $31,238.24. The cross claim was dismissed.

The appeal 4 Section 39 of the Local Court Act 2007 provides that a party who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law. 5 Section 40 of the Local Court Act provides that the onus lies with the plaintiff to demonstrate that there has been an error of law or that leave should be granted on a mixed question of law and fact. What is a question of law (as opposed to a question of fact) was considered in Allen v Kerr & Anor (1995) Aust Torts Reports 81-354; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156; Carr v Neill [1999] NSWSC 1263 and R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082; (2002) 37 MVR 479. 6 Section 41 of the Local Court Act provides that the Court may determine an appeal either (a) by varying the terms of the judgment or order, or (b) by setting aside the judgment or order, or (c) by setting aside the judgment or order and remitting the matter to the Court for determination in accordance with the Supreme Court's directions, or (d) by dismissing the appeal. 7 In Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4, Gleeson CJ at [2] reiterated that in the common law system of civil justice, the trial process determines the issues between the parties. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal. Grounds of appeal 8 Mr El Khoury appeals the whole of the judgment of the Magistrate on the ground that her Honour erred by failing to consider and apply s 84(2) of the Trade Practices Act 1974 (Cth). 9 The first question to be determined is whether the Magistrate erred in exclusively applying the common law in determining whether agency had been established instead of applying the words of s 84(2) to the facts. The second question is whether, assuming the Magistrate erred, what orders should be made. The parties agree that if the Magistrate erred this matter should be remitted to the Local Court for determination according to law. Capital Finance's main assertion was that Investment Realty and Mr El Khoury did not raise s 84(2) of the Trade Practices Act in its pleadings, nor during the hearing or in their submissions, and they should not be permitted to raise it on appeal. 10 On appeal, it was not in dispute that there was an agreement dated 16 March 2006 between Capital Finance and Investment Realty. Investment Realty agreed to rent certain equipment from Capital Finance and Investment Realty defaulted under the agreement, which entitled Capital Finance to terminate the agreement. A notice of demand was served on Investment Realty and Mr El Khoury, as director of Investment Realty. Mr El Khoury failed to comply with the demand. It was also common ground that Investment Realty and Mr El Khoury were indebted to Capital Finance in the sum of $31,238.24. 11 In their cross claim, Investment Realty and Mr El Khoury alleged that Aeon Group Pty Ltd ("Aeon") acted as an agent of Capital Finance. They claimed that two Aeon employees made representations to Investment Realty to the effect that Aeon was able to sign up finance agreements. These Aeon employees provided to Investment Realty blank documentation from Comlease AFG Limited ("CAFG") and which Investment Realty completed. Investment Realty and Mr El Khoury submitted that as CAFG was the agent of Capital Finance and had power in the written agency agreement between CAFG and Capital Finance allowed the appointment of sub-agents, this was the basis of ostensible authority held by Aeon in relation to Capital Finance. 12 Investment Realty and Mr El Khoury pleaded that the representations were misleading and/or deceptive and relied on s 51A of the Trade Practices Act and s 12BB of the Australian Securities and Investments Commission Act 2001 (Cth). 13 Capital Finance denied that the alleged representations were made by it or any agent of it. It submitted that although the cross claim pleaded that Aeon was CAFG's agent and that CAFG was Capital Finance's agent there was no mention of s 84(2) of the Trade Practices Act in the cross claim. 14 In the written principal and agent agreement between Capital Finance and CAFG dated 20 April 2001, paragraph 3.5 provides: "3.5 Sub-Agents (a) The Agent may from time to time request the Principal to approve a transaction which involves a sub-agent (" Sub-Agent "). (b) In each such case the Agent must provide the Principal with full details of the sub-agency and a copy of the agreement between the Agent and the Sub-Agent (the " Sub-Agency Agreement ")." 15 This agreement allowed for CAFG to approve a transaction, which involved a sub-agent. In each case the agent must provide the full details of the sub-agency and a copy of any such agreement between them. 16 The Magistrate made a finding that so far as agency was concerned, CAFG was an agent of Capital Finance who was an undisclosed principal. However, there was no evidence of any conduct or representations made by Capital Finance or CAFG to Investment Realty or Mr El Khoury to the effect that Aeon was the agent of Capital Finance or CAFG. Nor was there any written documentation to this effect. Her Honour found no evidence to establish that Aeon had authority, either actual or ostensible, to bind it or CAFG. Accordingly, Aeon was not the agent of Capital Finance nor of CAFG. 17 As to the claim of misleading and deceptive conduct, her Honour stated, "that the court does not have to determine as to whether [the plaintiff's] conduct, in offering what was effectively free telephone calls for the period of the agreement, is misleading and/or deceptive." However, her Honour made a further finding that in any event, s 51A of the Trade Practices Act provided that representations made on reasonable grounds at the time that they were made were not misleading and deceptive. As Investment Realty received rebates over a period in excess of twelve months it was arguable that the representations made by Aeon were made on reasonable grounds. 18 Mr El Khoury submitted that the statements made by Aeon are deemed to be the conduct of Capital Finance by the operation of s 84(2) of the Trade Practices Act. Counsel for Investment Realty and Mr El Khoury made much of the evidence of Mr El Khoury (Aff, 27/5/2009 at [3]) where Mr El Khoury deposed that in early February 2006, Ian Tonumaipea attended his [Mr El Khoury's] premises. Mr El Khoury understood that Mr Tonumaipea was employed by Aeon. They had a conversation consisting of words in or to the following effect: Ian Tonumaipea: "Aeon Group can offer you new equipment and better call rates without costing you anything." Robert El Khoury: "How do you do that?" Ian Tonumaipea: "We will give you a rebate on your phone calls which will be equal to your lease payments just give me your existing phone bills and we will get back to you." Robert El Khoury: "That sounds ok." 19 Mr El Khoury then handed the telephone bills to Mr Tonumaipea. 20 It was Mr Tonumaipea's evidence (Aff, 3/7/2009 at [2]) that in 2006 he and Natesh Lal had a conversation with Ken Meyer of CAFG Australease at a café below CAFG's office, where words to the following effect were said: Natesh: "We are selling bundle services of equipment, phone rebates and finance. Aeon will give customers call rebates equivalent to the value they will be financed for per month. They only have to pay for the finance. What we want is for the finance to be paid to Aeon and we will purchase the equipment for the customer. We can purchase the equipment for less than the finance and use that for our profit." Ken: "Sure, no problems." 21 Mr Tonumaipea deposed that Mr Ken Meyer then gave them a copy of some blank finance contracts and he showed them how to complete them. 22 Mr Meyer (Aff, 31/07/09) deposed that he recalled meeting Mr Lal and Mr Tonumaipea in or around 2006 to discuss a business they told him that they were planing to set up. Mr Meyer said that at the first meeting, Mr Lal and Mr Tonumaipea told him word to the effect, "We are going to leave Telecom 1 to set up a new business. We want to target the residential market." Mr Meyer said words to the effect "We can't get involved in that, we don't finance that market, we do only business financing." 23 Mr Meyer deposed that he did not hear from Mr Lal or Mr Tonumaipea until sometime later in 2006 when he was contacted by Mr Lal and they had a conversation in words to the effect: Mr Lal: "We are now interested in supplying to the business market. Does CAFG have financiers that will finance the equipment supplied by Aeon?" Mr Myer: "Yes, we have several financiers that we work with." 24 Aeon did not sell finance. Mr Meyer understood that Mr Lal and Mr Tonumaipea were meeting with him to see if CAFG was interested in financing equipment to be supplied by Aeon for Aeon customers. 25 There was also evidence from Tammy Meyer of CAFG. Ms Meyer (Aff, 31/7/2009) deposed that she was never aware of Aeon providing telephone call rebates to customers renting equipment supplied by Aeon or Polytech Digital World. She deposed that the provision of telephone call rebates was not a factor that CAFG took into account when deciding whether to forward an application to a financier. Ms Meyer does not agree with Mr Tonumaipea's account of this conversation. 26 Ms Meyer says that payments to Aeon or Polytech Digital World were made by the financier. Ms Meyer deposed that she recalled that Mr Tonumaipea called her and asked her about payment of outstanding invoices. At the time of the call CAFG had no record of outstanding invoices and she answered Mr Tonumaipea's query in words to the following effect, "All invoices have been paid into the account nominated on the invoices. We do not have any outstanding invoices." Ms Meyer does not recall any change being made to Aeon's bank account details.

27 Philip Andrew Duxbury (Aff, 15/06/2009 at [5]) the loss recovery manger at Capital Finance deposed that Capital Finance did not have a principal agent agreement with Aeon or any other agreement. The upshot of all this is that there was a very real dispute between the parties as to whether there was any principal/agent relationship between CAFG and Aeon. 28 Section 84(2) of the Trades Practices Act reads: "84(2) Any conduct engaged in on behalf of a body corporate: (a) by a director, servant or agent of the body corporate within the scope of the person's actual or apparent authority; or

(b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, servant or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent;

shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate." 29 In Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472 at [81] and [83]; [2001] FCA 1549 Hill J held: "81 … The purpose of the section [84(2)] is to attribute liability to a body corporate for the acts of others. It is intended to facilitate proof of corporate responsibility beyond the position which would otherwise obtain at common law. …

83 Finally, in the context, the reference to "agent" in s 84(2) is not a reference to a person who, contractually, has power to bind the corporation. It is a reference to a person who acts on behalf of a corporation and in doing so is clothed with actual or apparent authority. …" 30 In ACCC v Telstra Corp Ltd (2007) 244 ALR 470; [2007] FCA 1904 Gordon J stated (at [130] - [131]): "130 Section 84(2)(b) is an enlarging provision intended to widen the common law principles relating to agency rendering a person's conduct that of the company if it can be said to have been "engaged in on behalf of" the company or "at the direction or with the consent or agreement of" a servant of the company: Trade Practices Commission v Sun Alliance Australia Ltd [1994] ATPR 41-286 at 41,848 and the cases cited therein and Lisciandro v Official Trustee in Bankruptcy (1996) 69 FCR 180 at 188-189 per Ryan and Drummond JJ.

131 As the express words make clear, s 84(2)(b) of the Act is concerned with both actual and "ostensible or apparent authority": see Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at 503." 31 Both parties agree that s 84(2) has greater coverage than the common law doctrine of agency. Agent is not merely a reference to a person who contractually has the power to bind the corporation. It also includes a person who acts on behalf of a corporation and in doing so is clothed with actual and ostensible or apparent authority. 32 Investment Realty and Mr El Khoury submitted that it is arguable on the evidence that s 84(2) applies as the entity who made the alleged representation, Aeon, is "another person" and the representation was made with the express or implied agreement of CAFG. It was also submitted that CAFG was the agent of Capital Finance and that Capital Finance contemplated that CAFG would engage sub-agents for the purpose of obtaining customers for finance. Indeed, Capital Finance clothed CAFG as the principal, the agency relationship between them remaining undisclosed at all times prior to commencement of this litigation. 33 Investment Realty and Mr El Khoury also submitted that just as the Magistrate did not make any factual findings pertinent to the question posed by s 84(2), nor did her Honour address the question of whether the alleged representation was made and whether it was misleading and deceptive. I accept that the Magistrate in her reasons for judgment did not make reference to s 84(2) of the Trade Practices Act. However, Counsel for Capital Finance submitted that an argument pursuant to s 84(2)(b) should not be entertained because it is different to the case that was run in the Local Court. 34 The principles in accordance with which any such argument is decided were laid down by Mason CJ, Wilson, Brennan and Dawson JJ in Water Board v Moustakas (1988) 180 CLR 491 at 497; [1988] HCA 12 where their Honours stated: "In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance for it is one of their functions to define the issues so that each party knows the case which he is to meet … The particulars may not be decisive if the evidence has been allowed to travel beyond them, although where this happens and fresh issues are raised, the particulars should be amended to reflect the actual conduct of the proceedings." 35 In Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 646, Mason P (with whom Gleeson CJ and Priestley JA relevantly agreed) cited the principle set down in Della Patrona v DDP (Cth) [No 1] (Court of Appeal, 1 September 1995, unreported):

"that parties must be bound by the course they deliberately adopted at the trial: Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1 at 24, per Isaacs J; see also Browne v Dunn (1893) 6 R 67 at 75; Banque Commerciale SA (In Liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 284. In Coulton [Coulton v Holcombe (1986) 162 CLR 1] (at 7), Gibbs CJ, Wilson J, Brennan J and Dawson J said that: 'It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.'"

See also Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11 at [15] -[18]. 36 In Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598, Gleeson CJ, McHugh and Gummow JJ said, at [51]: "51 … It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial: University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 8-9; Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 at 875 [44]; 179 ALR 321 at 330-1; Water Board v Moustakas (1988) 180 CLR 491 at 496-7; cf R v Birks (1990) 19 NSWLR 677 at 683-5. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action: Multicon Engineering Pty Ltd v Federal Airports Corp (1997) 47 NSWLR 631 at 645-6." (footnotes inserted)

See also Oates v Consolidated Capital Services Ltd & Ors [2009] NSWCA 183. 37 Counsel for Capital Finance submitted that the factual issues for determination arising from reliance on s 84(2) of the Trade Practices Act go beyond the factual issues raised by alleging a common law agency relationship between CAFG and Aeon or Capital Investment and Aeon. I agree. 38 It is necessary to determine whether s 84(2) was ever raised in the pleadings, or during the course of the hearing or in submissions.

The proceedings in the Local Court 39 I have already referred to the pleading in the cross claim. Section 84(2) or the reference to the expanded meaning of agency should have been pleaded in the cross claim to put Capital Finance on notice that this is the case it had to meet. It was not. 40 Counsel for Investment Realty and Mr El Khoury, in opening submissions, stated (T 3.38-45): "The cross claim is simply this. Is that the plaintiff conducted its business through an agent, CAFG, who in turn employed a subagent. In this case that subagent is called Aeon. Aeon represented to my clients that should they enter into an arrangement with the plaintiff that it would not have to pay any money for the leasing of equipment. That induced the first defendant to enter into the agreement, being something which the first defendant would not have one if it knew at the time that the representation was false, which in fact it was." 41 There is no reference to s 84(2) in this opening submission. Counsel for Capital Finance submitted that the use of the word "agent" to describe the relationship between Capital Finance and CAFG and the word "subagent" to describe the relationship between CAFG and Aeon indicates to any reasonable legal practitioner an alleged agency relationship between CAFG and Aeon. That agency relationship is similar to the agency relationship between Capital Finance and CAFG. The submission gives no indication that the word "subagent" should be understood to go beyond the common law meaning of an agency relationship or that it should fall within the meaning of s 84(2)(b). 42 The transcript of the hearing in the Local Court does not include Investment Realty's oral submissions at the conclusion of the hearing. Counsel for Capital Finance submitted that those submissions made no reference to s 84(2) and that even if they had, the Magistrate should not have considered any matters in s 84(2) that went beyond allegations of common law agency. 43 Counsel for Investment Realty and Mr El Khoury submitted that s 84(2) was raised in closing submissions. As the transcript of the final submissions in the Local Court was not before this Court on appeal, evidence should have been led to establish that s 84(2)(b) of the Trade Practices Act was raised at the end of oral submissions. No such evidence was led. I accept that by the time Investment Realty has closed its case there was no clear notice to Capital Finance that Investment Realty relied on matters arising under s 84(2) beyond common law agency principles and particularly under s 84(2)(b). 44 Counsel for Capital Finance submitted that had counsel for Investment Realty and Mr El Khoury raised s 84(2)(a) or (b) it would have conducted its case differently. Capital Finance's witnesses were primarily cross-examined on the circumstances in which CAFG's blank point of sale documents were given to Aeon. 45 Counsel for Investment Realty and Mr El Khoury did not cross examine Mr Meyer on his evidence concerning the conversation alleged by Mr Tonumaipea on which CAFG relied to establish the requirements under s 84(2). Nor did it obtain any other evidence (apart from the point of sale documents) given by Mr Meyer or Mr Tonumaipea which would have relevant to establishing a case under s 84(2). Had Capital Finance been put on notice of the s 84(2) claim, it would have focused more on the issue of whether Capital Finance or CAFG directed or gave an express or implied consent or agreement to Aeon's representatives making representations to the effect that Aeon, acting on behalf of Capital Finance, would provide telephone rebates for the duration of the five year term of the finance agreement. Cross-examination of Investment Realty and Mr El Khoury's witnesses would have been conducted differently. 46 In any event, the Magistrate made a finding that it was clear from Mr El Khoury's oral evidence that he was aware that CAFG was a finance company and that Aeon was not processing his finance application. Mr El Khoury also said in cross-examination that he was familiar with leasing of equipment arrangements. The Magistrate held that there was no evidence to support Mr El Khoury's assertion that it was a term of the agreement between the parties that payment of rent for the equipment to Capital Finance by Investment Realty was dependant upon Aeon providing rebates for telephone calls. 47 It is my view that Investment Realty and Mr El Khoury should not be permitted to raise s 84(2)(b) on this appeal. They are bound by the manner in which they conducted their case in the Local Court. There was disputed evidence as to whether there was any relationship between CAFG and Aeon. The evidence in chief and cross examination would have been conducted differently had Capital Investment been on notice that Investment Realty and Mr El Khoury were relying on the expanded view of "agent" as contained in s 84(2)(b). The result is that this appeal fails. The decision of her Honour Magistrate McGowan dated 29 March 2010 is affirmed. The summons filed 23 April 201 is dismissed. 48 Costs are discretionary. Costs usually follow the event. The first and second plaintiffs are to pay the defendant's costs as agreed or assessed. The Court orders:

(2) The decision of her Honour Magistrate McGowan dated 29 March 2010 is affirmed.

(4) The first and second plaintiffs are to pay the defendant's costs as agreed or assessed. **********

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