Joel Auctions Pty Ltd (CAN 005 011 370) t/as Leonard Joel

[2004] VCAT 2189

2 It is ordered that the applicant pay the respondent's costs with respect to the Heysen application, C488/2003, from 19 May 2003, such costs to be taxed by the principal registrar on Scale "A" of the County Court scale of costs in default of agreement. Otherwise no order as to costs.

1 The applicant in these proceedings is Paul Auckett who trades as Lookart. He is an art dealer who buys and sells second-hand paintings. He has been doing that for about six years.

2 The respondent is Joel Auctions Pty Ltd trading as Leonard Joel. It is a large Australian owned and operated auction house with over 80 years experience in the market. It has a particular expertise in fine art works.

3 Until the end of February 2003, Mr Auckett was a regular purchaser of works of art at auctions conducted by Leonard Joel in Melbourne. These proceedings concern a dispute over three purchases that he made at Leonard Joel auctions.

4 The first item in dispute is a Norman Lindsay pencil drawing described as Nude and which was Lot 206 at a Leonard Joel auction held on 21 August 2001. The drawing was purchased at the auction by Mr Auckett for the sum of $5000. A dispute arose between Mr Auckett and Leonard Joel over this purchase and, in November 2002, Mr Auckett commenced proceedings in the Civil Claims List of the Tribunal against Leonard Joel. In the application, Mr Auckett referred to the purchase and stated that when he tried to re-sell the drawing a year later, through Leonard Joel, he realised that the drawing depicted in the auction catalogue was different to the one he had received. He put the value of his claim at $6000 (Application No C4447/2002).

5 The second item in dispute is a Sidney Nolan painting described as Crane With Mount Fuji. This was purchased by Mr Auckett at a Leonard Joel auction in May 2002. A dispute arose between Mr Auckett and Leonard Joel over this purchase and, in December 2002, he commenced further proceedings in the Civil Claims List of the Tribunal against Leonard Joel. In the application, Mr Auckett referred to the purchase and contended that what he received was a print rather than an original as described for the auction. He put the value of his claim at $3495 (Application No C4728/2002).

6 The third item in dispute is a watercolour painting by Sir Hans Heysen described as A Study of Opal Tinted Saplings. This was purchased by Mr Auckett at a Leonard Joel auction in May 2002. A dispute arose between Mr Auckett and Leonard Joel over this purchase and, in February 2003, he commenced proceedings in the Civil Claims List of the Tribunal against Leonard Joel. In the application, Mr Auckett referred to the purchase and a description in the auction catalogue and contended that the painting he purchased was a fake. He put the value of his claim at $8800 (Application No C488/2003).

7 Both parties were represented in the interlocutory stages of the proceedings which were subject to directions by the Tribunal. Points of claim were filed and served on behalf of Mr Auckett.

8 With respect to the Lindsay claim, it was alleged that the drawing purchased was not by Lindsay, was a forgery, and not the same as that depicted in the catalogue. Consequently, it was alleged Mr Auckett had suffered loss and damage; an amount of $8500 was claimed together with damages, exemplary damages, interest and costs.

9 In its Points of Defence, Leonard Joel admitted that Mr Auckett purchased Lot 206 which was the drawing Nude by Lindsay as described in the catalogue. Leonard Joel denied the allegations made in relation to it. Leonard Joel admitted that the drawing produced by Mr Auckett at a compulsory conference for inspection did not appear to be the original of the drawing Nude and appeared to be a copy and was not the same drawing as that depicted in the catalogue. Leonard Joel contended that Lot 206 sold to Mr Auckett and delivered to him was the original drawing Nude by Lindsay described in the catalogue.

10 With respect to the Nolan claim, it was alleged on behalf of Mr Auckett that the work purchased was not an original painting by Nolan but was a printed copy of an original work. An amount of $7500 was claimed with damages, exemplary damages, interest and costs.

11 In its Points of Defence, Leonard Joel admitted that the work as described was contained in its catalogue and purchased by Mr Auckett. Leonard Joel denied the allegations that it was a copy and not an original work.

12 With respect to the Heysen claim, it was alleged on behalf of Mr Auckett that the work purchased was not by Heysen, was a forgery of a painting by Heysen and was not the same as the work depicted in the catalogue.

13 Mr Auckett further alleged that since 26 February 2003, Leonard Joel had excluded or had purported to exclude him from its premises and from purchasing items at its auctions. He further alleged that this conduct was unconscionable in contravention of s 7 and/or s 8 of the Fair Trading Act 1999. An amount of $8800, damages, exemplary damages and an injunction restraining Leonard Joel from excluding him from its auctions and from purchasing items at auctions were sought and interest and costs.

14 In its defence, Leonard Joel admitted that the work as described was contained in its catalogue. It admitted that this work was purchased by Mr Auckett. It denied the allegations as to authenticity. Leonard Joel contended that the work sold was delivered to Mr Auckett and this was the original Heysen painting as described in the catalogue.

15 Leonard Joel admitted that it had excluded Mr Auckett from its auctions but contended that it was entitled to do so and was not acting unconscionably in doing so.

16 Outlines of evidence were provided by both parties. Further and better particulars of claim were sought by Leonard Joel and some particulars were provided, although Leonard Joel contended that the particulars that were provided were not sufficient.

17 Mr Auckett was not legally represented at the hearing of these proceedings but conducted his own case. Leonard Joel was represented by counsel, Mr Connor. Both parties had previously been given leave to be legally represented. The Tribunal was not prepared to rescind the leave previously given for legal representation and Mr Connor continued to represent Leonard Joel at the hearing.

18 At the commencement of the hearing, the Tribunal was informed that Mr Auckett was not proceeding with his claim in relation to the Nolan work. The Tribunal was informed that after discussions with representatives of Leonard Joel, Mr Auckett accepted that the work he had received was that described in the catalogue and was authentic.

19 With respect to the Lindsay work, it is clearly in issue whether the work purchased by Mr Auckett at the auction and delivered to him was the original drawing Nude by Lindsay as described in the catalogue. Similarly, the issue with respect to the Heysen work is whether the work purchased by Mr Auckett at auction and delivered to him was the original Heysen painting as described in the catalogue.

20 In essence, the position of Mr Auckett is that, in each case, what he paid for and had delivered to him was not the work described in the catalogue.

21 In essence, the position of Leonard Joel in each case is that Mr Auckett received the work described in the catalogue which was the work that had been sold to him.

22 Evidence was given to the Tribunal by Mr Auckett. He called a number of witnesses and tendered documents and some objects in support of his case. He gave evidence with respect to the Lindsay work that he had attended on the night of the auction. He had first seen the drawing when it was held up; he had seen the catalogue where there was a photograph of it. He stated that he had bid for the work at the auction and it was knocked down to him for the sum of $5000. He said that he had collected it from Leonard Joel four to seven days later and had paid for it. The item had No 206 on it and was framed. He said that he took it home where it was secure.

23 He gave evidence that he took it to his framer two to four days later. It was taken out of the frame and there was a discussion of how it was to be reframed. It was then left in his care. Mr Auckett said that he collected the work about a week later after it had been framed. He had put it on the internet for sale but it had not sold. He said that a few colleagues were doubtful about it as it appeared to be different to the drawing contained in the Lindsay Book Of Pencil Drawings. This book was tendered to the Tribunal. He said that he took the work to Leonard Joel and spoke to a Peter Struthers who had not been involved in the sale. Mr Struthers said that it was the worst Lindsay copy that he had seen. Mr Auckett said that he went and saw Mr Warren Joel about the matter and had a discussion but was unable to get any resolution of the matter and he had then lodged his application with the Tribunal. He tendered the drawing he said that he had received from Leonard Joel after the auction and which he had had framed.

24 In response to some questions from Mr Connor, Mr Auckett said that he had put the work on the website straight after he had purchased it. He had scanned the image from the catalogue for this purpose. As far as he was concerned, he thought he was buying a genuine Lindsay drawing.

25 Mr Auckett called Mr Grazzini to give evidence on his behalf. He carries out the framing of pictures. In his evidence, he confirmed that he had framed the drawing which had been tendered by Mr Auckett and which is the one that Mr Auckett says was delivered to him. Mr Grazzini said that the work would not be able to be tampered with or swapped whilst in his premises. In answer to questions from Mr Connor, Mr Grazzini said he had no idea when he actually carried out the framing, he had thrown the old frame away and he said that he framed hundreds of pictures for Mr Auckett. He said that he could not recall framing any other Lindsay pencil sketches and he had not framed the work depicted in the catalogue for the auction.

26 Mr Auckett also called a Mr Bale to give evidence. He is a retired antique dealer who attends auctions at Leonard Joel. He said that he was shown a drawing by Mr Auckett. He did not like it. He said that the one tendered by Mr Auckett was the one that had been shown to him.

27 With respect to the Heysen work, Mr Auckett said that he had the catalogue before the auction; it was Lot 356. There was no photograph of the work in the catalogue. He said that he may have viewed it beforehand, but he did not specifically recall. He said that at the auction, the work was depicted on a screen, he had bid for it and it had been knocked down to him for the sum of $4300. He said that he had collected the work three to four days later from Leonard Joel. It was in a frame and he had taken it to Mr Grazzini three to five days after he collected it. The work had been reframed and he had collected it about a week later. He said that it had been placed on the internet for sale; it was ultimately sold at an auction for $8325. However, he was told that it was not a Heysen work and he had given the purchaser his money back. He said that he went back to Leonard Joel about the matter and had spoken to Mr Warren Joel. The painting Mr Auckett contended that he had received from Leonard Joel after auction was produced by him and tendered to the Tribunal. In answer to questions by Mr Connor, he agreed that the measurements in the catalogue were substantially different to the measurements of the work that he maintained he had received.

28 In his evidence, Mr Grazzini said that the work that had been produced by Mr Auckett and tendered was the one that he had framed. It was not the work that Leonard Joel maintained that they had sold. A photograph of that work was tendered on behalf of Leonard Joel.

29 Mr Auckett also called to give evidence Ms Tandori. She stated that she had been an art dealer for some six years and had made purchases regularly from Leonard Joel. She had been present when Mr Auckett bid on the painting which he had produced and tendered to the Tribunal. She maintained that it was not the painting that Leonard Joel maintained was offered. She said it was atypical. She had attended the auction at Lorne when the work that Mr Auckett had received was sold.

30 In answer to questions from Mr Connor, Ms Tandori said that the work was not physically held up at the auction, it was depicted on a slide; she agreed that she had been in a de facto relationship with Mr Auckett and that it was possible that what was shown on the screen was the work that Leonard Joel maintained was sold. However, she maintained in her evidence that the work that she had seen on the wall at Leonard Joel some two days before the auction was the work that Mr Auckett maintained he had received. She agreed that there had been no reaction from the audience at the time of sale about any difference in the paintings.

31 With respect to the prohibition, letters from Leonard Joel and from their solicitors of 26 February 2003 were produced and tendered. There is no need to set out the contents of these letters. They communicated to Mr Auckett the prohibition by Leonard Joel with respect to his attending auctions and making purchases.

32 Mr Auckett gave evidence of the importance of the Leonard Joel auctions to his business as an art dealer. He also gave evidence about the amount that he had spent at Leonard Joel auctions and tendered documents in relation to this. He gave evidence as to how the prohibition affected him in his business as an art dealer.

33 A number of witnesses gave evidence on behalf of Leonard Joel.

34 Mr Merrie is a self-employed professional photographer. He stated that he was regularly engaged by Leonard Joel and he gave evidence about his involvement with the Lindsay Nude drawing. He said that he photographed a framed pencil drawing by Lindsay entitled Nude for the August 2001 catalogue. He produced the transparency print of it and stated that this photograph was published in the catalogue. He said that he took further digital photographs of the work and posted them on the Leonard Joel website. The work was given No 206 in the catalogue and was hung during the period 16 August to 20 August 2001. He said that after viewing is completed, works are taken down and stacked in reverse chronological order, ready for the auction. He said that he was present at the auction; the Lindsay work was identified and presented to the bidding public by being taken out of the stack and held up.

35 Mr Merrie gave evidence that once bidding ceased, it was returned to the stack in reverse chronological order. He said that it does happen sometimes that the wrong painting is held up but if that occurs, the audience quickly lets you know that there has been an error. He described how pictures are put into bays after the sale, each bay has a list of the lot numbers in the bay, the lot number is affixed to the work. The procedure is that the buyer pays for the work, is given a receipt that shows the artist, the lot number and a description. The buyer then goes to the delivery section and the storeman extracts the picture, it is ticked off a list and presented to the buyer who usually gives an acknowledgement. He said that it was the practice that people would inspect the work being purchased before taking delivery. However, it would not be wrapped.

36 Mr Merrie gave evidence that at the compulsory conference in this matter, a photograph was taken of the work Nude produced by Mr Auckett and which is the one that has been tendered by him in these proceedings. Mr Merrie stated that it was not the one that he had photographed in August 2001 and had been sold to Mr Auckett at auction.

37 Mr Merrie gave evidence about his involvement with the Nolan work. There is no need to refer to that evidence. With respect to the Heysen work, he said it was not illustrated in the catalogue. He gave evidence that he had digitally photographed an original watercolour painting by Heysen entitled A Study of Opal Tinted Saplings. The photograph was published by Leonard Joel on its website. He identified the photograph that had been put on the internet and which was tendered on behalf of Leonard Joel. The work was described in the particular catalogue. He said that the work was hung during the period 2 May to 5 May 2002. During the auction, the Heysen work remained on the wall of the showroom where it could be inspected. He said that it was displayed on a large plasma screen from a power point presentation. He explained how the plasma screen process operated. He said that he had viewed and photographed at the compulsory conference the Heysen work that Mr Auckett said that he had purchased and received and which Mr Auckett has tendered in these proceedings. Mr Merrie gave evidence that it was not the same item as he photographed and as had been sold at the auction. He said that the scene, style and dimensions were different. The work had remained on the wall until delivery had taken place.

38 In answer to questions from Mr Auckett, he said that security was tight; there was never one person alone in the room. In his view, it would be impossible to substitute the picture. He said that he specifically recalled hanging the Heysen picture that he had photographed. He said that he had not experienced a situation before where a person complained that the picture they collected was not the picture that they had purchased at the auction.

39 Evidence was given by Mr Warren Joel. He described how the Lindsay drawing had been obtained from Mr and Mrs Bonythan of Western Australia and delivery had been taken of it. He said the initials NL were in the lower right-hand side of the work. Mr Joel referred to how the work was photographed and hung for viewing. He also referred to what had occurred at the auction. It had been held up while bidding took place and it had been knocked down to Mr Auckett. It had then been returned to the stack. He referred also to the circumstances of the sale of the Heysen work. He said it had been purchased from an estate; it had been photographed by Mr Merrie and described in the catalogue. It had been hung for viewing and was offered as Lot 356 and projected on to a screen. Mr Joel said that Mr Auckett was the successful bidder and the lot was knocked down to him. He said that when a lot is knocked down to a bidder, the lot number, bidder number and price are all recorded by the auctioneer and entered into the data base. He said that the bidder attends at the reception desk, is given a bidder number and advised of the amount due. Payment is made and an invoice/receipt issued listing relevant matters. The customer then takes the invoice receipt to the delivery area where it is shown to the delivery staff. They collect the works purchased and hand them to the purchaser.

40 Mr Joel said in his evidence that he could not see how the wrong works could have been delivered. There was normal building security at night, there was an alarm system, staff supervised viewing and delivery. He said that he has never before had this situation where it is alleged that a different work had been delivered to that sold. Mr Joel said that he would have expected Mr Auckett to have come back quickly if there was a problem. If the work was returned with the original frame, there would be markers on the back that could be checked. He said that was the case with the Nolan work, the markings confirmed that it was the one sold by Leonard Joel. However, the original frames were not on the other works produced by Mr Auckett.

41 With respect to the prohibition that Leonard Joel imposed on Mr Auckett, he referred to the conditions of sale in the catalogue and particularly conditions 3 and 4. He referred to the notification period with respect to an allegation of forgery, and said that no notice as required had been provided in relation to these works in dispute. Mr Joel had written a letter of 30 September 2002 to Mr Auckett which was tendered. In that letter he agreed that the drawing produced by Mr Auckett did not appear to be the authentic drawing. However, he maintained that Mr Auckett's claim that he purchased this non-authentic drawing was misconceived and Mr Joel in his letter maintained that Mr Auckett had got what he had paid for and that what had been sold to him and what he took delivery of was the original authentic Lindsay drawing. He said that Leonard Joel had never been in possession of the non-authentic drawing and he had not seen it before. He pointed out that there had been no mistake by Leonard Joel and that any action taken would be vigorously defended.

42 Mr Joel said he was concerned that Mr Auckett was not prepared to abide by the terms of sale and, in the circumstances, Leonard Joel was not prepared to deal with him. In essence, he said that it was felt that Mr Auckett was trying to `put one over' Leonard Joel with his allegations with respect to the three purchases. There had not been a prohibition imposed on any other person. He said that Leonard Joel would review its position in the light of the Tribunal's decision and if Leonard Joel was prepared to allow him to resume purchasing, it would be careful in dealing with him in the future.

43 The Tribunal turns to its conclusions with respect to these matters.

44 The Tribunal was impressed with the evidence of Mr Merrie and Mr Warren Joel. They had a good recollection of events. After carefully considering all the evidence, the Tribunal is satisfied that what was photographed, put on viewing and offered for sale by Leonard Joel was the authentic pencil drawing by Lindsay entitled Nude and which had been obtained from the Bonythans. This was the work depicted in the catalogue. The Tribunal is satisfied that it was this work that was knocked down to Mr Auckett at the auction and not the one that he contends he received and has produced and tendered.

45 The question then has to be asked. Has the wrong picture been delivered to Mr Auckett by Leonard Joel? As the claimant, the onus is on Mr Auckett, on the balance of probabilities, to establish that this has occurred. The Tribunal has referred to the evidence about collection. The Tribunal considers it highly unlikely that Leonard Joel would have delivered the copy Mr Auckett says he received rather than the work sold. The Tribunal is certainly not persuaded that Mr Auckett did not receive from Leonard Joel the authentic Lindsay drawing that was sold to him and for which he had paid. The Tribunal has carefully considered Mr Auckett's evidence about this matter and does not accept his evidence that what he received from Leonard Joel was the copy drawing that he has produced and tendered. The Tribunal does not find that Mr Auckett has deliberately not told the truth about this. It seems to the Tribunal that Mr Auckett has convinced himself that he received the work that he has produced and tendered. However, the Tribunal is satisfied that he is mistaken about this.

46 It follows that the claim with respect to the Lindsay work must fail.

47 The Tribunal's conclusions with respect to the Heysen work are essentially the same. The Tribunal is satisfied that what was photographed, put on viewing and offered for sale was the watercolour painting by Heysen entitled A Study of Opal Tinted Saplings. This was the work described in the catalogue. The Tribunal is satisfied that it was this work that was knocked down to Mr Auckett, not the one that he contends he received and has produced and tendered and which clearly is very different in scene and size. The Tribunal considers it highly unlikely that Leonard Joel would have delivered the picture Mr Auckett says he received rather than the one it is satisfied he was sold. The Tribunal is not persuaded that he did not receive from Leonard Joel the Heysen work that was sold to him and for which he paid. The Tribunal does not accept Mr Auckett's evidence that what he received from Leonard Joel was the painting that he has produced and tendered. Again, the Tribunal does not find that Mr Auckett has deliberately not told the truth about this. Again, it seems to the Tribunal that he has convinced himself that he received the work that he produced and tendered. The Tribunal is satisfied that he is mistaken about this. The Tribunal does not accept the evidence of Ms Tandori. She was not a disinterested witness and the Tribunal was not impressed by her as a witness or by her evidence. It follows that the claim with respect to the Heysen work must fail.

48 Mr Auckett is no longer pursuing his claim with respect to the Nolan work.

49 There remains the claim by Mr Auckett that the conduct of Leonard Joel in prohibiting him from entering the premises and making purchases is unconscionable under the Fair Trading Act. There is no dispute that this occurred. Mr Auckett has given evidence about it and the adverse effect he says it had upon his business. Leonard Joel maintains that its conduct was justified in the circumstances. Section 7 of the Fair Trading Act provides that

A person must not, in trade or commerce, engage in conduct which is unconscionable, within the meaning of the unwritten law, from time to time.

However, this section does not apply to conduct that is prohibited by section 8 or 8A.

50 It would appear to the Tribunal that s 8 would not have application, although it refers to the supply of goods, because sub-section 5 provides that

it does not apply to the supply or possible supply of goods if the supply or the possible supply of the goods is for the purpose of re-supply, in trade or commerce.

It is clear that any purchases made by Mr Auckett were for the purposes of re-sale.

51 Section 8A deals with unconscionable conduct in business transactions and provides that -

A person must not, in trade or commerce, in connection with -

engage in conduct that is, in all the circumstances, unconscionable.

The section sets out various matters that the Tribunal may have regard to.

52 Does the offering of works at auction come within this provision? In the Tribunal's view it probably does. In any event, if s 8A was not applicable, s 7 would certainly be applicable. The provisions in the Fair Trading Act correspond with provisions in the Trade Practices Act. Guidance is obtained from authorities that deal with unconscionable conduct in the Trade Practices Act and these authorities are reviewed in Millers Annotated Trade Practices Act 2004. It is appropriate to refer briefly to some of those authorities.

53 In Qantas Airways Ltd v Cameron [1996] FCA 1483; (1996) 66 FCR 246, the court relied on the meaning of the terms unconscionable in the Shorter Oxford Dictionary as showing no regard for conscience, irreconcilable with what is right or reasonable. Reference has also been made in authorities to the Macquarie Dictionary definition which is as follows: 1. unreasonably excessive. 2. not in accordance with what is just or reasonable: unconscionable behaviour. 3. not guided by conscience; unscrupulous.

54 In Hurley v McDonalds Australia Ltd (1999) FCA 1728, the court said that for the conduct to be regarded as unconscionable, serious misconduct or something clearly unfair or unreasonable, must be demonstrated. It said that the term carried the meaning given by the Shorter Oxford English Dictionary, namely, actions showing no regard for conscience or that are irreconcilable with what is right or reasonable.

55 The Tribunal has referred to the evidence about this matter. The prohibition followed the third claim by Mr Auckett that he had not been provided with what he said he had purchased. Leonard Joel had been shown the Lindsay work that he said he had received and it was satisfied that it was not the one sold but it was unable to convince Mr Auckett otherwise. The complaints about the purchases were made some time after the purchases were made. The Tribunal accepts Mr Warren Joel's evidence that it was his belief that Mr Auckett was in effect trying to `put it over' Leonard Joel with respect to these purchases. The Tribunal is satisfied that Leonard Joel acted in good faith in imposing the prohibition on Mr Auckett. However, he had been a regular purchaser and had always paid for his purchases. He was the first person that such a prohibition was imposed upon.

56 The Tribunal has considered all the circumstances carefully. In the end, it is not satisfied that the conduct of Leonard Joel in prohibiting Mr Auckett's attendance at auctions and the purchase of works is unconscionable whether considered under s 8A or under s 7. It is not satisfied, in all the circumstances, that the conduct shows no regard for conscience or is irreconcilable with what is right or reasonable, nor is it satisfied, in all the circumstances, that the conduct is unreasonably excessive or not in accordance with what is just or reasonable or not guided by conscience or unscrupulous. It follows that Mr Auckett's claim on the basis of unconscionable conduct fails. The Tribunal would expect that Leonard Joel would review its position in relation to Mr Auckett in the light of the Tribunal's decision and findings. Mr Warren Joel indicated that this would occur. The Tribunal would anticipate that Leonard Joel may well be able to reach a position with Mr Auckett where he can attend and purchase works and Leonard Joel's position be adequately protected with the removal of the risk of any allegation of the type that has been raised in these proceedings. Leonard Joel could, for example, take additional precautions in relation to dealing with Mr Auckett to ensure that there could be no dispute about what work was purchased and what work was delivered. In the result, the decision of the Tribunal is that each application is dismissed.

57 The Tribunal has given its decision in this matter and has dismissed three applications made by Mr Auckett against Leonard Joel.

58 A claim is made for costs on behalf of Leonard Joel. Mr Connor, who appears for Leonard Joel, has made submissions and has produced a letter dated 22 April 2003 whereby an offer to settle the matter was made. That offer was not accepted and it is clear that the result of the proceedings as ultimately determined by the Tribunal is worse than the offer communicated. However, the position is complicated by the fact that the nature of the claim in respect of the third application changed substantially subsequent to that offer. This was bound up with action taken by Leonard Joel, which has been referred to, to prohibit Mr Auckett from attending auctions and purchasing works at their auctions.

59 There are provisions that Mr Connor has referred to, namely ss 112, 113 and 114, concerning settlement offers. There is also s 109 which provides that costs are to be borne by the parties although the Tribunal is given a discretion to order costs having regard to specific circumstances. Finally, there is a provision that costs cannot be ordered in a proceeding related to a "small claim".

60 An issue arises as to whether in all the circumstances each application should be regarded as a small claim.

61 With respect to the Lindsay and Nolan matters, amounts were claimed that were less than the sum of $10,000 and fees paid accordingly. An amount less than $10,000 was initially claimed in the Heysen matter but the circumstances subsequently changed and an additional fee was paid in that matter for a claim up to $100,000.

62 Points of Claim were filed on behalf of the applicant in each application and Mr Connor refers to claims being made for damages, exemplary damages, interest and costs as taking those matters out of the small claim category. It is clear that in relation to the Heysen proceedings, following the prohibition, the claim was expanded to include damages and other relief arising from what was alleged to be unconscionable conduct and that claim certainly, in those circumstances, took on a different complexion. For example, injunctive relief was sought which meant that the matter had to be heard by a judicial member.

63 Looking at each matter according to the substantial merits, as the Tribunal is required to do in these proceedings, it is the Tribunal's view that, notwithstanding what is stated in the relief sought in the Points of Claim, the claim in the Lindsay matter and the claim in the Nolan matter, each remain small claims and should be regarded as such for the purposes of considering the issue of costs. In these circumstances, costs cannot be ordered against Mr Auckett in relation to those applications.

64 There can be no doubt that the Heysen matter moved beyond the category of a small claim with the matters that were raised with respect to the prohibition and the relief that was sought in relation to it. That introduced complexity in that proceeding. In the Tribunal's view, having regard to what is contained in s 109, and having regard to the letter that was served, it is appropriate to order that Mr Auckett pay the costs of Leonard Joel in relation to the Heysen application from 19 May 2003 which is the date the Points of Claim were provided in that matter which substantially expanded the claim. There will therefore be an order that the applicant pay the costs of the respondent with respect to the Heysen application which is C488/2003 from 19 May 2003, such costs to be taxed by the principal registrar on Scale "A" of the County Court scale of costs in default of agreement.