Liu v Victory Lease Pty Ltd

Liu v Victory Lease Pty Ltd - [2023] NSWCATCD 148 - NSWCATCD 2022 case summary — Zoe

[7]

The relevant sections of the ACL that the applicant relies upon to found an alternative basis for the action against the respondent

Pursuant to section 28 Fair Trading Act, ["the Act"] the Australian Consumer Law applies as a law of New South Wales ["ACL"]. It may be applied in determining a consumer claim made pursuant to Part 6A of the Act.
The ACL provides a number of guarantees where there is a supply of goods and services whether by contract or otherwise. If there is a breach of a statutory guarantee, certain remedies are available to the consumer.
In the alternative, Ms Liu relies upon a statutory cause of action set out at section 60, ACL, alleging that Victory failed to comply with a guarantee in relation to the supply of its services with due care and skill under its management agency agreement. For ease of reference, the Tribunal sets out the section below: If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.
If the applicant is successful in that claim, Section 267 of the ACL NSW applies: For ease of reference, the Tribunal sets out the section below: (1) A consumer may take action under this section if: (a) a person (the supplier) supplies, in trade or commerce, services to the consumer; and (b) a guarantee that applies to the supply under Subdivision B of Division 1 of Part 3-2 is not complied with; and (c) unless the guarantee is the guarantee under section 60--the failure to comply with the guarantee did not occur only because of: (i) an act, default or omission of, or a representation made by, any person other than the supplier, or an agent or employee of the supplier; or (ii) a cause independent of human control that occurred after the services were supplied. (2) If the failure to comply with the guarantee can be remedied and is not a major failure: (a) the consumer may require the supplier to remedy the failure within a reasonable time; or (b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time--the consumer may: (i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or (ii) terminate the contract for the supply of the services. (3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may: (a) terminate the contract for the supply of the services; or

[15]

The terms of the agency agreement

The management agency agreement was in a standardised format available through the Real Estate Institute New South Wales ("REINSW"). One of the terms of the agency agreement provided that the agency was to pay insurance premiums on the property as and when they fell due.
The respondent, Victory, relied upon the terms of the agency agreement, more particularly, the following provision at clause 18, setting out the agent's obligations under the heading Disbursements from the Principal's monies. For ease of reference, the tribunal recites the relevant provision at clause 18, as follows: The agent is authorised and instructed to pay the following monies received on behalf of the Principal.
Conveniently, the disbursements listed provided a box crossing exercise; the response being either Yes or No. At clause 18, sub-clause iv, the reference to Insurance Premiums (see attached schedule) was marked Yes and referred the parties to the attendant schedule that contained no further particulars on the date that the parties executed the agreement in January 2017.
Ms Liu's evidence was that before the due date for payment of the insurance premium, in around 31 March 2022, she had a conversation with Virginia at the agency (as the Tribunal understood) to the effect that the premium would be paid. As the Tribunal understands, the conversation between Ms Liu and Virginia occurred around 22 February 2022. The "usual" practice was that the agency paid the insurance premium in prior years as the policy fell due for renewal. The Tribunal comments that perhaps Virginia may not have been fully aware of the parlous state of the tenants' ledger in mid-February 2022.
An e-mail addressed to Ms Liu from Amanda Xiao, Admin & Accounts Assistant, Victory, dated 22 February 2022 attached the IP Landlord's Insurance Invoice and stated that: Due to you may need to claim the lost [sic] after tribunal order. We will arrange IP renewal payment for you soon.
In or around this time, later in February 2022, the agency advised Ms Liu that the current tenants had fallen into arrears. Ms Liu gave evidence that the agent was "chasing up" the tenants for payment of those arrears.

[28]

The parol evidence rule and its application to the terms of the management agency agreement

In Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337 (11 May 1982) Mason J stated; The broad purpose of the parol evidence rule is to exclude extrinsic evidence (except as to surrounding circumstances), including direct statements of intention (except in cases of latent ambiguity) and antecedent negotiations, to subtract from, add to, vary or contradict the language of a written instrument (Goss v. Lord Nugent (1833) 5 B & Ad 58, at pp 64-65 (110 ER 713, at p 716) Although the traditional expositions of the rule did not in terms deny resort to extrinsic evidence for the purpose of interpreting the written instrument, it has often been regarded as prohibiting the use of extrinsic evidence for this purpose. No doubt this was due to the theory which came to prevail in English legal thinking in the first half of this century that the words of a contract are ordinarily to be given their plain and ordinary meaning. Recourse to extrinsic evidence is then superfluous. At best it confirms what has been definitely established by other means; at worst it tends ineffectively to modify what has been so established. (at p348)
The Court further opined and cited Lord Wilberforce in L. Schuler A.G. v. Wickman Machine Tool Sales Ltd [1973] UKHL 2 (1974) AC 235, at p 261 was able to state the broad thrust of the rule in this way: "The general rule is that extrinsic evidence is not admissible for the construction of a written contract; the parties' intentions must be ascertained, on legal principles of construction, from the words they have used. It is one and the same principle which excludes evidence of statements, or actions, during negotiations, at the time of the contract, or subsequent to the contract, any of which to the lay mind might at first sight seem to be proper to receive." His Lordship noted that evidence of surrounding circumstances is an exception to the rule, but he had no occasion to discuss its scope for there it was not, as it is here, a critical question. (at p348)

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Cases Cited (9)