1. In proceeding C1738/2018, Bellaveau claims damages of $10,000 from Princess pursuant to section 218 of the ACLFTA for humiliation and distress of its Director, Ms Du Ngoc. Bellaveau also seeks costs, under an indemnity pursuant to Special Condition 10 of the contract of sale between it and Princess, for its costs in defending Princess' application, and in conducting its own proceedings.
2. Bellaveau initially commenced proceeding C1738/2018 against Princess as First Respondent, and against Morgan Legal Pty Ltd, the solicitors who acted for Princess in the purchase of the property, as Second Respondent. The application as against Morgan Legal Pty Ltd was withdrawn by consent on 7 June 2018.

1. I conducted a hearing on 19 April 2018. I heard evidence from Mr Andrew Grainger, the sole director of Princess; from Ms Du Ngoc, the sole director of Bellaveau; from Mr Peter Markovic, Director of Markovic; and from an employee of Markovic, Mr Antonio Lorusso.
2. Following the first day's hearing, I allowed time for the parties to prepare, file, and serve submissions on legal issues relevant to the applications.
3. A second day's hearing was conducted on 9 October 2018. I heard evidence from Mr Justin Harty, who, at the time of the property sale at the heart of this proceeding, was an employee of the solicitors engaged by Princess. Mr Harty was called to give evidence about actions taken around the time of settlement, in particular, whether Princess, in settling, had given notice it was reserving its rights to pursue a claim for misrepresentation.
4. Having considered the evidence given at the hearings, and the submissions on legal issues prepared by the parties' representatives, I now give my decision, and reasons for that decision. I will deal first with Princess' claim in proceeding C5697/2017 and then with Bellaveau's claim in proceeding C1738/2018.

1. As I have noted above, Princess' claim for compensation is made on two grounds, a breach of the ACL, and a breach of the SLA. I will deal with each in turn.

1. The first ground is that Princess has suffered loss or damage as a result of misleading or deceptive conduct in trade or commerce by Bellaveau and Markovic contrary to section 18 of the ACL.
2. The misleading and deceptive conduct complained of was contained in advertising prepared by Markovic.
3. Princess says that Markovic "advertised [address omitted] Lot 411 as having a floor area of 48m2."[2]
4. Although not stated explicitly in its Amended Points of Claim, in the hearing, Princess clarified that it asserts that the floor area referred to in the advertising was actually the sum of the office and car park areas.[3] Princess asserts that this was misleading and deceptive "on the basis that a reference to "Floor Area" of an office space should not include the Car Space."[4]
5. Implicit in any claim under section 18 of the ACL is that the applicant relied on the misrepresentation in entering into the contract and has suffered loss or damage as a consequence. Princess' claim is that, "induced by the advertising [it] arranged via the Second Respondent to view the Property on 7 November 2016."[5]
6. Although not expressly stated in Princess' Amended Points of Claim, I have assumed that this claim is made under section 236 of the ACL. Section 236 enables a person who suffers loss or damage because of the conduct of another person to recover the amount of the loss or damage where that conduct contravened a provision of Chapters 2 or 3 of the ACL. Section 18 of the ACL is in Chapter 2 of the ACL.

1. Section 48A of the SLA extends and applies Part 8.2 of ACLFTA to the SLA. The effect of this is that a person who claims to have suffered loss, injury or damage because of a contravention of a provision of the SLA may bring proceedings in VCAT under section 217 of the ACLFTA to recover the amount of the loss or damage or damages in VCAT.[6]
2. Princess claims to have suffered loss because of contravention of subsection 12(d) of the SLA by Bellaveau and Markovic. Subsection 12(d) of the SLA provides that it is an offence to make or publish a "misleading or deceptive statement promise or forecast" in relation to the sale of land. The loss claimed by Princess is the difference between the price paid by Princess for the property, and its market value.
3. The issues for the Tribunal to determine in relation to Princess' claims are:

1. Was there misleading or deceptive conduct in trade and commerce within the meaning of section 18 of the ACL? 2. If so, did Princess rely on that misleading or deceptive conduct?

1. If so, did Princess suffer loss or damage as a consequence of relying on the misleading or deceptive conduct?

1. Was there a breach of subsection 12(d) of the SLA? 2. If so, did Princess suffer loss or damage because of that contravention?

1. Mr Andrew Grainger, Director of Princess, gave evidence that he saw an on-line advertisement for the office suite and car park early in November 2016. The property description was as follows:

Office suite three rooms, reception plus car space, on the fourth floor.

The building features in house gym for the use of all occupants, shared boardroom for hire and shared beautifully maintained facilities.

With a rent potential of $20,000 per annum net, this is an investment with great returns or a great way for an owner occupier to save money.

1. Mr Grainger's evidence was that he was only interested in the property because it was described as being approximately 48m2. Mr Grainger explained that he understood the words "approx. 48m2" to be intended to refer to the useable floor space in the office, and that his expectation was informed by his experience in considering other, similar, property advertisements.
2. Mr Grainger said that he had been looking for office accommodation for the previous month and from this he had formed the view that property values in the area were between $3,950 to $4,300 per square metre.
3. Mr Grainger contacted Mr Lorusso and inspected the property on 7 November 2016. The office suite and the car park are on separate titles. The car park is not on the fourth floor, but on the ground floor. Mr Grainger asked Mr Lorusso about the approximate value of the car park. Mr Lorusso told him the car park value was around $60,000.
4. The section 32 Statement had not yet been prepared at the time Mr Grainger inspected the property, but he made three separate offers, each subject to satisfaction as to the section 32 Statement. The first two, for $235,000 and $240,000, were not accepted. Mr Lorusso informed Mr Grainger that the vendor was seeking $270,000. On 14 November 2016, Mr Grainger made a third offer of $245,000, again conditional on the section 32 Statement being to his satisfaction. This offer was accepted by Bellaveau on 21 November 2016. On 26 November 2016, having reviewed the section 32 Statement, Mr Grainger confirmed his offer was unconditional.
5. It was agreed by all parties that Mr Grainger was provided with the keys to the office suite between 14 and 21 November 2016 and on several other occasions prior to settlement on 11 January 2017. It is also agreed that the keys were provided to Mr Grainger for the purpose of measuring up the office suite for refurbishment by Mr Grainger's builder, and for the purpose of valuation by the valuer engaged by Mr Grainger's lender.
6. Mr Grainger said it was the valuer engaged by his lender who informed him, in November or December 2016, that the office suite was 36.4m2.
7. Mr Grainger said that he immediately instructed his lawyers to seek a reduction in price. When this was not agreed by Bellaveau, Mr Grainger proceeded to settle, reserving his rights to make a claim for misrepresentation or for misleading or deceptive conduct. Bellaveau disputes that such reservation was made, but I consider that this is not material to Princess' claim under the ACL.

Was there misleading and deceptive conduct within the meaning of s18 of the ACL?

1. Subsection 18(1) of the ACL provides:

A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

1. Conduct will be misleading or deceptive when it "leads into error".[7] An error which occurs due to an erroneous assumption on the part of a consumer, will not be sufficient to establish a breach of the ACL.[8]
2. The assessment of whether conduct is misleading or deceptive is an objective assessment to be made from the vantage point of the intended audience of that conduct. Whether the person making the representation intended to mislead or deceive is not relevant to this assessment.[9] Further, conduct can only be categorised as misleading and deceptive if it conveys or contains a misrepresentation.[10]
3. The valuers engaged by Princess assess the area of the office suite, of three rooms and reception, to be 36.4m2 in area. For the purposes of this proceeding, I accept that this is the area of the office. In its Amended Points of Claim, Princess asserts that the car park is 9.1m2. I consider that this assertion is incorrect. My examination of the plans attached to the section 32 Statement, which was submitted in evidence, shows that the car park is around 14m2 in area. The combined area of the two titles would therefore be 50.4m2. Accordingly, a representation that the combined area of the two titles was "approx. 48m2" would understate the total area by about 5%. However, the representation in this case was not a representation about the area of two titles, but a representation as to "floor area" of the property for sale.
4. Mr Grainger said that his understanding from reviewing the market is that a reference to "floor area" in advertising material for office accommodation generally refers to the lettable area of the property. No documentary evidence to support this contention, or to the contrary, was produced to the Tribunal. The Tribunal is aware that, in the property industry, the concepts of "lettable area" and "floor area" are not the same. The term "lettable area" generally refers to the occupiable floor space and may not correspond to the dimensions shown on the title of the property.
5. Mr Lorusso, who prepared the advertisement, said that his intention was to convey the area of the office and the car park combined. As I have noted above, whether conduct is misleading or deceptive is determined on an objective basis; Mr Lorusso's intention is not relevant.
6. Mr Lorusso said that he calculated the area of the office suite and the area of the car park, from the measurements on the plan of subdivision.
7. The office suite is rectangular in shape. The plan of subdivision contained in the copy of the section 32 Statement, which was submitted in evidence, is said to be 1:125 but the copies provided to the Tribunal have been reduced to A4 format, making the legend on the page inaccurate. Measurements along the external wall of each suite are not included. In the hearing, Mr Lorusso explained that he did his calculations using a business card and the scale shown on the plan. He calculated the area of the office suite to be approximately 40m2 and the car park to be 14m2; he calculated the total of these two figures to be 54m2, and he reduced the calculation to 48m2 "to avoid error". It is clear that Mr Lorusso's method was not particularly precise.
8. On Mr Lorusso's evidence, it is apparent that the information in the advertisement was intended to relate to the combined area of the office suite and car park. The advertisement did not include any indication that the area quoted was "including carpark". Mr Grainger has said that the usual purpose of a description of the area of a commercial property is to convey the available floor space. No evidence was put before the Tribunal either to support this contention, or to the contrary. I must do the best I can on the evidence before me. I note that each of the valuers engaged by the parties has calculated the area of the office suite only and has not included a square metre measurement for the car park. One of the valuations[11] states that the building areas have been "measured in accordance with the Property Council of Australia (PCA) 1997 Method of Measurement." That valuation describes the "Net Lettable Area" as 36.2m2, that is, as not including the car park area. It is apparent, from the three valuations provided by the parties, that it is not uncommon for valuers to refer to "net lettable area" and not solely to the area contained within the title. This may be a practice particular to valuers. There was no evidence before me about the usual practice of real estate agents. In the absence of evidence as to the usual practices of real estate agents, the ordinary meaning of the words used must be considered. The Shorter Oxford Dictionary defines the noun "floor" as "[a] level structure in a house or other building." Although a car park may be level, and located within a building, in the context of an advertisement of an office suite for sale, the car park is an amenity and not part of the office itself. To include the area of a car park in the description of the area of a property which comprises an office suite and car park, without indicating that the description relates to the area of both the office suite and the car park, is clearly capable of leading the reader into error.
9. On the evidence before me, I am satisfied that the advertisement was misleading and deceptive as that term is used in section 18 of the ACL.
10. I now turn to the other requirements of section 18 of the ACL, that is, whether the conduct was in trade and commerce, whether Mr Grainger relied on the conduct, and whether he suffered loss because of that reliance.

1. As I have noted above, section 18 of the ACL proscribes conduct in trade or commerce that is misleading or deceptive or is likely to mislead or deceive. The conduct complained of must be conduct that occurs in trade or commerce.[12]
2. It is apparent that Mr Lorusso, an employee of Markovic, and a licensed Real Estate Agent, in preparing the advertising material for the property, was acting in trade or commerce. I find that the representations as to the area of the property in the advertisement prepared by Markovic and its employee were made in trade or commerce.
3. It was argued for Bellaveau that I should find that it was not acting in trade or commerce. Although it is well established that a private individual who sells his or her home does not do so in trade and commerce,[13] a sale will be considered to be in trade and commerce if it is done in the course of a business activity or otherwise in a business context.[14] It is equally well established that conduct must be something more than the mere realisation of a capital asset and must have the characteristic of disposal of trading stock to be truly in trade and commerce.[15]
4. The sale of the office suite by Bellaveau was not the sale of a residential property by the owner occupier. Princess has asserted that, prior to the sale of the property, the office suite was registered as Bellaveau's principal place of business.[16] Bellaveau did not refute this allegation. Princess asserted that the property was an investment asset which was placed on the market for the purpose of realising the value of that asset, and that the transaction was accordingly a sale in trade or commerce. On the authorities I have referred to above, the sale of the office suite and car park by Bellaveau was not conduct in trade and commerce.
5. I find that the sale of the commercial property by Bellaveau was not conduct in trade or commerce within the meaning of section 18 of the ACL.

Did Mr Grainger rely on the representations as to area?

1. Mr Grainger said in the hearing that he "was only interested" in the property because he believed it to be 48m2. No evidence was given by Mr Grainger of his reasons for seeking a property of 48m2. Indeed, it appears that Mr Grainger completed office refurbishment works and presently conducts his business from the property, notwithstanding that it is not 48m2.
2. Mr Grainger said that he interpreted the statement that the floor area of property was "approx. 48 sqm" to be referring to the usable floor area. Mr Grainger said in the hearing that while inspecting the property, he sought guidance from Mr Lorusso about the value of the car park, and that Mr Lorusso told Mr Grainger that the car park value was around $60,000. It would appear that, despite the opportunity presented by that conversation, Mr Grainger did not ask Mr Lorusso whether the reference to 48m2 was inclusive or exclusive of the car park.
3. Mr Grainger said that he had formed the view that the market rate for office suites in the area was between $3,950 to $4,300 per square metre. Mr Grainger said that each of his offers was informed by calculations he made on the understanding that the office was 48m2.
4. Mr Grainger said that, until informed by the valuer engaged by his lender, he was not aware that the office suite was not 48m2.
5. I note, however, that Mr Grainger lifted the conditions on his third offer of $247,000 on 21 November 2016 after examining the contract and the section 32 Statement. A copy of the contract of sale and the section 32 Statement were included as exhibits to the affidavit of Ms Du dated 23 November 2017. The section 32 Statement included all necessary certificates, including the Annual Valuation and Rate Notice issued by the City of Boroondara,[17] and a copy of the Plan of Subdivision. The Plan of Subdivision has measurements clearly marked on each lot. Although the length of some walls is not marked, there is sufficient notation on the plan to determine that the office area is approximately 7.4m by 5.2m or 38.4m2. Plainly, Mr Grainger had several opportunities to become aware of the area of the office suite before being told of this by the valuer engaged by his lender.
6. Mr Lorusso gave evidence that Mr Grainger was keen to purchase an office suite in the area as he had recently missed out on a suite in a neighbouring building in High Street. That suite was advertised as "approx. 45m2" and had one car park. It sold for $242,000. Mr Grainger did not dispute that he had been interested in this property.
7. Mr Lorusso also gave evidence that on the day Mr Grainger first inspected the property the subject of these proceedings, he had also inspected a similar suite, of 60m2 on another floor in the same building, where the asking price was $600,000. Markovic asserts that, given the properties that Mr Grainger had inspected, he was well acquainted with office suites around 45m2 in size. Markovic and Bellaveau assert that Mr Grainger would have formed his own opinion of the size, and value, of the suite.
8. I consider that the offers made by Mr Grainger give some insight to whether he relied on the representation that the office had an area of 48m2.
9. Mr Lorusso's evidence was that Mr Grainger's initial offer, of $235,000, was made within a few hours of his first inspection, on 8 November 2016.[18] Mr Grainger did not dispute that this was so. Mr Grainger was clearly keen to secure the property.
10. If I accept that Mr Grainger's initial offer made no allowance for the value of the car park, an offer of $235,000, for a property of 48m2 would equate to $4,895 per square metre. The offer, considered this way, was considerably more than Mr Grainger said he had concluded was the current market rate in the area, i.e. $3,950 to $4,300 per square metre.
11. However, Mr Grainger's next offer, $240,000, would represent $5,000 per square metre for a property of 48m2. His final offer, of $245,000 was made on 14 November 2016.[19] This would represent $5,100 per square metre. Both are well outside the range Mr Grainger said he believed was the current market rate in that location. Having regard to Mr Grainger's evidence about his understanding of the prevailing market rates, it seems improbable that Mr Grainger would have made offers that so far exceeded his understanding of the market.
12. I note, in passing, that each of the offers was comparable for the price paid for the High Street property of 45m2 which Mr Grainger had missed out on.
13. However, if I were to assume that Mr Grainger had in fact understood that the reference to 48m2 included the car park, Mr Grainger's offers appear more consistent with his evidence as to his belief about the prevailing market rates.
14. Mr Lorusso told Mr Grainger that the value of the car park was $60,000. I note that the valuer for Bellaveau has attributed a value of $40,000 for the car park.[20] Assuming a value of $40,000 for the car park, and an office area of 48m2, the first two offers made by Mr Grainger, of $235,000 and $240,000, would equate to $4,062.50 and $4,166.70 per square metre, both of which are well within Mr Grainger's estimate of the prevailing market rate. If Mr Grainger's offer of $245,000 is considered in the same way (i.e. allowing $40,000 for the value of the car park, and an area of 48m2) this would equate to $4,270.83 per square metre, also well within Mr Grainger's market estimate.
15. It is possible to conclude that Mr Grainger may well have believed he had negotiated a good price, given the comparators he had considered. The office suite in the neighbouring building that Mr Grainger had just missed out sold for a price that represents $5,377 per square metre, or $4,488 if allowance of $40,000 were made for the car park.
16. I consider that the timing of Mr Grainger's protest to Bellaveau, occurring as it did around the time that he was informed by the valuer engaged by his lender, tends to support Mr Grainger's assertion that until then he believed that the office suite to be 48m2.
17. Nevertheless, the protest was made quite some time after Mr Grainger had considered, and accepted, the section 32 statement, and signed the contract of sale. I am of the view that the plans included in the section 32 statement were sufficient to enable Mr Grainger to be fully informed about the dimensions of the property.
18. On the evidence before me, I find that Mr Grainger had sufficient opportunity to consider the information on the Plan of Subdivision before making his final offer. Accordingly, I do not consider it is reasonable, on the evidence before me, to find that Mr Grainger relied on the representation.

Did Mr Grainger suffer loss or damage as a result of his reliance on the representations?

1. Mr Grainger said that, as a result of the misrepresentation, he paid too much for the property, and incurred a greater cost in stamp duty as a consequence. If I were satisfied that there had been misleading and deceptive conduct and that Mr Grainger relied on the representation, I would then consider what loss or damage was caused by that reliance.
2. Although I am satisfied that there was misleading and deceptive conduct, I am not satisfied that it is reasonable for Mr Grainger to have relied on that conduct. Accordingly, on the evidence before me, I find that Mr Grainger did not rely on the representation.
3. Princess' claim for loss or damage arising from breach of section 18 of the ACL is dismissed.

CLAIM BASED ON THE SALE OF LAND ACT

1. The first consideration in determining this claim is whether there has been a contravention of a provision of the SLA. Section 12 of the SLA sets out offences in relation to the sale of land. The relevant provisions of that section are as follows:
   1. Offences in relation to the sale of land
      • (1) Any person who, with the intention of inducing any person to buy any land -

(d) makes or publishes any statement promise or forecast which he knows to be misleading or deceptive or fraudulently conceals any material facts or recklessly makes any statement or forecast which is misleading or deceptive; or

shall be guilty of an offence against this Act and shall for every such offence be liable to a penalty of not more than 50 penalty units or to imprisonment for a term of not more than twelve months.

1. The essential elements of a contravention of subsection 12(d) of the SLA are that the person:
   • has the intention of inducing another person to buy land; and
   • in making the statement knows it to be misleading or deceptive, or
   • recklessly makes a statement which is misleading or deceptive.
2. A contravention of subsection 12(d) can only arise where there is evidence:
   • of the intention of the person alleged to have contravened the section to induce a person to buy land; and
   • that the person has knowingly made or published a statement, or recklessly made a statement.
3. Although section 12 is an offence provision, and the standard of proof in a prosecution under that section would be the criminal standard of proof, the standard of proof in proceedings of this kind under the ACLFTA is the civil standard of proof.[21]
4. I have already found, in relation to the allegation of breach of section 18 of the ACL, that the representation contained in the advertisement published by Markovic was misleading or deceptive. Accordingly, one element of subsection 12(d), "makes any statement ... which is misleading or deceptive" is satisfied.
5. It remains then, to determine whether the other elements of the subsection are made out. Was the statement made or published by a person who knew it to be misleading or deceptive? Alternatively, was the statement made recklessly as to whether it was misleading or deceptive? Then, if one or other of these criteria is satisfied, was there an intention to induce someone to buy land?
6. Although only the civil standard of proof is required, section 12 of the SLA does present some problems of proof, where, as in this case, a corporation has published the statement in question.
7. I note that subsection 13(1) of the SLA addresses some of the problems of proof associated with subsection 12(d) of the SLA. That subsection states:
   • (1) In any action commenced in respect of the sale of any land if it is proved that any representation made on such sale was false and that any party to such action was induced by such representation to enter into a contract to purchase such land the person making such representation shall be deemed to have made the same with knowledge of its falsity unless he proves -
     • (a) that he had reasonable ground to believe and did believe that the representation was true or that he had no reason to suspect that the representation was false; and
     • (b) that otherwise he had acted innocently.
8. The effect of subsection 13(1) of the SLA is that where it is proved that a representation was false, and proved that a person was induced to enter into a contract to purchase the land, the representation is deemed to have been made in the knowledge that it was false, unless one of paragraphs (a) or (b) applies. I have found that the statement was not true. However, I have also found that Mr Grainger entered into the contract to purchase after considering the section 32 Statement. I have found that the information contained in the section 32 Statement broke the nexus between the representation and the action of entering into the contract for purchase. Therefore, the pre-requisites of subsection 13(1) of the SLA are not made out, and I must consider the evidence to determine whether the remaining elements of section 12 of the SLA are made out.
9. Was the statement made by a person who knew it to be misleading or deceptive? Or was the statement made recklessly as to whether it was misleading or deceptive?
10. Mr Lorusso's evidence before the Tribunal was that he believed that the statement he had caused to be published was true. The statement reflected the calculations Mr Lorusso had made from the plan of subdivision. Although the representation was that the "floor area" was 48m2, without any indication that the area stated included the car park, no evidence was put before the Tribunal about industry practice in the use of the term "floor area". I find that this element of section 12 is not made out.
11. For completeness, I turn now to whether the statement was published with the intention of inducing someone to buy the land. The definition of the verb "induce" given in the Shorter Oxford English Dictionary is "lead, persuade or influence". Subsection 12(d) of the SLA requires me to consider the intention of the person who published the statement. Neither evidence nor legal argument was presented to assist the Tribunal in its findings as to the intention of Markovic. I must do the best I can on the evidence before me.
12. There may have been an expectation that I should infer such an intention from the fact that Markovic is engaged in the business of selling real estate. A finding of intention requires more than an inference from unargued facts. On the evidence before me, I am satisfied that it is more probable than not that the statement was published with the intention of inducing someone to inspect the property. However, there is no evidence on which to base a finding that there was an intention to induce purchase. I find that the necessary elements of subsection 12(d) of the SLA have not been made out in relation to either Mr Lorusso or Markovic.
13. Subsection 217(1) of the ACLFTA enables a person who has suffered loss, injury or damage because of a contravention of a provision of the ACLFTA to recover the amount of the loss or damage or damages in respect of the injury by proceeding against any person who contravened the provision or was involved in the contravention.
14. If there had been sufficient evidence to make a finding that there was a contravention of subsection 12(d) it would be necessary to consider whether, as required by section 217 of the ACLFTA, Princess has suffered loss or damage because of that contravention. The test is similar to that in section 236 of the ACL. There must be a causal connection between the contravening conduct and the loss or damage claimed.[22]
15. For the reasons given in relation to Princess' claim under sections 18 and 236 of the ACL, I am not satisfied that Princess has suffered loss because of the representation contained in the advertisements.
16. Princess' application under section 217 of the ACLFTA is dismissed.

Allegation of contravention of section 50 of the ACL

1. Bellaveau asserts that, by proceeding to settlement without giving clear and express notice of any reservations or intention that it would, at a later date, make a claim for a misrepresentation and or misleading and deceptive conduct, Princess was acting in breach of section 50 of the ACL.[23]
2. Bellaveau asserted that Princess had failed to inform Bellaveau that it was settling while reserving its rights. Princess denied Bellaveau's claim, and adopted the defence filed by Morgan Legal Pty Ltd, namely:

1. Princess' lawyers sent a letter on 16 December 2016 saying "Given the fact that the floor measurements are less than anticipated, our client Company is prepared to proceed with the purchase provided the Vendor will give a reduction in the price."[24] 2. on 19 December 2018, Bellaveau's solicitors responded, saying, among other things, "Our client will not agree to the reduction in price."[25]

1. on 21 December 2018, its solicitors replied, saying "Whilst our client company wishes to avoid what could otherwise be protracted Court Proceedings, it is seeking the Vendor's common sense approach to a reduction to enable this matter to move forward to settlement."[26]

1. Bellaveau replied, "if the purchaser fails to effect settlement by the due date, the purchaser is in default pursuant to the terms of the Contract of Sale".[27] 2. Princess said that on 22 December 2016, its legal representative said in telephone call to the legal representative of Bellaveau that Princess was settling subject to a reservation of its rights.[28] 3. that the completion of settlement under the contract of sale has no impact on Princess' statutory rights under the ACL.[29] 4. the claim by Bellaveau should be a question of costs in the first proceeding.
2. Bellaveau said that the correspondence between Princess' lawyers and the lawyers for Bellaveau amounts to an attempt to coerce Bellaveau to reduce the price for the property by alleging unlawful conduct, namely, misleading and deceptive conduct. Bellaveau has not made a claim for loss or damage under section 236 of the ACL. The allegation of contravention of section 50 of the ACL is the conduct that Bellaveau relies upon for its claim under section 218 of the ACLFTA.
3. Bellaveau's claim appears to be misconceived. A claim under section 218 of the ACLFTA may be brought where there has been a contravention of a provision of the ACLFTA. Section 50 of the ACL is not such a provision. Further, any remedy for contravention of section 50 of the ACL would be provided by section 236 of the ACL. Section 236 provides for a claimant to recover an amount of loss or damage suffered by the claimant because of conduct that contravened Chapter 2 or 3 of the ACL. Section 50 is in Chapter 3 of the ACL. However, no evidence has been placed before the Tribunal of any loss or damage suffered by Bellaveau.
4. Section 50 of the ACL provides as follows:
   • (1) A person must not use physical force, or undue harassment or coercion, in connection with:
     • (a) The supply or possible supply of goods or services; or
     • (b) The payment for goods or services; or
     • (c) The sale or grant, or the possible sale or grant, of an interest in land; or
     • (d) The payment for an interest in land.
   • (2) Subsections (1)(c) and (d) do not affect the application of any other provision of Part 2-1 or this Part in relation to the supply or acquisition, or the possible supply or acquisition, of interests in land.
5. Coercion involves force, or compulsion or threats of force or compulsion negating choice or freedom to act.[30] There has been no evidence of Bellaveau being denied freedom to act. To the contrary, Bellaveau resisted the negotiating efforts of Princess.
6. Bellaveau has not succeeded in demonstrating a breach of section 50 of the ACL by Princess.
7. In its Points of Claim and during the hearing, Bellaveau also asserted that Princess was not entitled to settle on the purchase of the property while reserving its rights. Bellaveau asserted that Princess should have rescinded the contract. At best, this argument might have been put in support of an application under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 for the Tribunal to make an order summarily dismissing or striking out the proceeding. No such application was made by Bellaveau in this proceeding.

1. Section 218 of the ACLFTA provides as follows:
   • (1) If in any proceedings for an offence against this Act, a person is found guilty of an offence against this Act, the court, in addition to any other penalty it may fix, may order that the person pay to a person who, in the opinion of the court, was humiliated or distressed by the conduct constituting the offence an amount of up to -
     • (a) $10,000; or
     • (b) if a greater amount is prescribed, that prescribed amount.
   • (2) An order under this section may be enforced as if it were an order made by the court in its civil jurisdiction.
2. Bellaveau's claim under this provision is plainly misconceived. These proceedings are not proceedings for an offence against the ACLFTA, as the Tribunal does not have jurisdiction to hear and determine proceedings for offences under the ACLFTA. The Tribunal has no jurisdiction to make the orders sought under section 218.

1. Bellaveau relies on paragraph 10 of the Special Conditions to the Contract of Sale. Bellaveau asserts that Princess, having completed the contract of sale on 9 January 2017, is:

contractually bond (sic) to indemnify Bellaveau for all costs and losses and losses (sic) incurred as a consequence of the application.[31]

1. Paragraph 10 of the Special Conditions to the Contract of Sale stated:
   1. Indemnity by Purchaser

The Purchaser shall indemnify and save harmless and keep indemnified the Vendor against all claims, demands, proceedings, judgments, damages, costs and losses of any nature whatsoever which the Vendor may suffer, sustain or incur in connection with or relating to any liability, claim, action, demand, suit or proceedings howsoever arising made or incurred on or subsequent to the settlement date out of or in respect of the property or an act, matter or thing occurring thereon or by which the Purchaser may become liable in any way unless the same and to the extent the same be caused or contributed to by the Vendor.

1. Bellaveau seeks to rely on this term to recover all costs it has incurred in connection with these proceedings. Bellaveau asserts that these proceedings are proceedings of the kind contemplated by paragraph 10 of the Special Conditions.
2. Bellaveau further asserts that this clause entitles it to costs on an indemnity basis.
3. Under paragraph 10 of the Special Conditions to the Contract of Sale, the purchaser agrees to indemnify the vendor in relation to liabilities that the purchaser may become liable for after the settlement date where those liabilities are in respect of the property or an act matter or thing occurring on the property. The usual effect of a provision such as paragraph 10 of the Special Conditions to the Contract of Sale is to sever the vendor's liability for liabilities associated with the property once transfer of ownership to the vendor is achieved through settlement. As drafted, paragraph 10 explicitly excepts from this indemnity any liabilities that are caused or contributed to by the vendor.
4. This proceeding is one in which the applicant, Princess, asserts that the respondent, Bellaveau, caused or contributed to the loss that Princess claims. The exception contained in the last lines of paragraph 10 of the Special Conditions to the Contract of Sale, expressly excludes liabilities caused or contributed to by the vendor, Bellaveau. Accordingly, the indemnity given by Princess as purchaser under paragraph 10 of the Special Conditions to the Contract of Sale is of no assistance to Bellaveau in this proceeding.
5. I find that this aspect of Bellaveau's application is misconceived, and I dismiss it for these reasons.

1. The application by Princess Chloe Pty Ltd is dismissed.
2. Costs reserved.

1. The application by Bellaveau Pty Ltd is dismissed.
2. Costs reserved.

[1] Although the Amended Points of Claim filed by Princess on 20 February 2018 refer variously to the actual area of the office suite being 36m2 and 36.2m2, the valuer engaged by Princess carried out its valuation on the basis that the office suite is 36.4m2. In relying on the valuer's report, Princess must be taken to have adopted this figure.

[2] Princess' Amended Points of Claim filed on 20 February 2018, paragraph 6.

[3] Ibid, paragraph 17 and 18. Princess asserts that the office suite has an area of 36.4m2 and the associated car park, located on Accessory Unit 33 on the same Plan of Subdivision, has an area of 9.01m2.

[5] Princess' Amended Points of Claim, dated 20 February 2018, paragraph 7.

[6] Wagner v Usatov [2014] VCAT 1198 at [47-79].

[7] Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191.

[8] Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12; (2000) 169 ALR 677.

[9] Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11; (1978) 140 CLR 216 at 234.

[10] Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136; (1982) 42 ALR 177.

[11] The valuation prepared by Damien Giles, Certified Practising Valuer, for Markovic.

[12] Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594.

[13] Argy v Blunts (1990) 94 ALR 719.

[14] O'Brien v Smolonogov (1983) 53 ALR 107.

[15] Ibid, citing with approval, Investment and Merchant Finance Corporation Ltd. v Federal Commissioner of Taxation [1971] HCA 35; (1971) 125 CLR 249, at p255 per Barwick C.J., and Federal Commissioner of Taxation v Whitfords Beach Pty Ltd [1982] HCA 8; (1982) 39 ALR 521.

[16] Princess Amended Points of Claim dated 20 February 2018 paragraph 21.

[17] The rate notice recorded a valuation of $153,000 for the office suite and $26,000 for the car park.

[18] Affidavit of Antonio Lorusso dated 5 March 2018, paragraph 3.

[19] Affidavit of Antonio Lorusso dated 5 March 2018, paragraph 5.

[20] Valuation prepared by Karl Cundall, Accredited Specialist Retail Value, page 11.

[21] Section 140, Evidence Act 2008.

[22] Campbell v Backoffice Investments Pty Ltd [2009] HCA 25.

[23] Paragraph 16 of Bellaveau's Points of Claim in Proceeding C1738/2018 filed in the Tribunal on 7 March 2018.

[24] Points of Defence dated 13 April 2018 filed by Morgan Legal Pty Ltd at paragraph 6(a)(ii).

[30] Hodges v Webb [1920] 2 Ch 70 at [160] per Peterson J.

[31] Paragraph 25 of Bellaveau's Counter Claim Points of Claim filed in the Tribunal on 7 March 2018, page 5.