Williams v Pisano

Court of Appeal (NSW)|2015-05-14|Before: Bathurst CJ, McColl JA, Emmett JA, Hammerschlag J

Background

The Vendors purchased the Property in December 2003. The Property was described as being, at that time, a "modest three-bedroom residence". At some time thereafter, but before 2005, the Vendors moved into occupation of the Property as their home and lived there until 2010, when they moved out so that renovation work could take place, before returning to the Property in late 2011. On several occasions from 2008 to 2010, they retained real estate agents to endeavour to sell the Property but it was not sold.
On 25 February 2010, Ms Dandris obtained an owner-builder permit in respect of the Property, pursuant to the Home Building Act 1999 (NSW) (the Building Act). On 13 May 2010, a builder provided a quotation to the Vendors to carry out building work on a "do and charge" basis. That quotation was accepted. In addition, Ms Dandris retained an architect to prepare a development application to Waverley Municipal Council (the Council), including the necessary plans, in connection with the proposed building work. She also retained a consulting structural and hydraulic engineer to prepare structural and stormwater designs. However, she subsequently dispensed with the services of the engineer.
During 2010 and 2011, renovations of the Property were carried out by the builder, substantially under the supervision of Ms Dandris but without the benefit of detailed architectural plans or architectural supervision. The Property was converted into a double-storey five-bedroom house with a rooftop terrace, which has views of Sydney Harbour, and a swimming pool.
On 2 November 2011, the Council issued an interim occupation certificate and the Vendors moved back into the Property at some time shortly thereafter. On 14 November 2011, the Council issued a final occupation certificate in respect of the Property. On 15 November 2011, NSW Self-Insurance Corporation issued to Ms Dandris, as owner-builder, a certificate of home warranty insurance complying with s 95 of the Building Act.
In November or December 2011, the Vendors retained a real estate agent, Angus Levitt Pty Ltd (the Agent), to market the Property on their behalf. The Vendors hired furniture for the Property of the type commonly put in place for the purpose of sale. The Agent advertised the Property for sale on a website known as "Domain" (the Web Advertisement). The Web Advertisement contained statements concerning the Property and the standard of the renovations that had been carried out.

The Proceedings

In September 2012, the Purchasers began proceedings against the Vendors in the District Court of New South Wales. Those proceedings were transferred to the Supreme Court on 18 October 2013. On 11 November 2013, an amended summons and a Technology and Construction List Statement (the Statement) were filed on behalf of the Purchasers.
In the summons and the Statement, the Purchasers sought damages from the Vendors on three separate bases. The first basis was a claim against Ms Dandris for breach of statutory warranties under the Building Act. The second basis was a claim against both of the Vendors for contravention of provisions of the Law (specifically, s 18 and s 30). The third basis was a claim against Mr Williams in negligence.
The proceedings were heard by a judge of the Equity Division sitting in the Technology and Construction List (the primary judge). The primary judge concluded that Ms Dandris was liable to the Purchasers for breach of warranties under the Building Act in the sum of $1,171,124. That conclusion justified the entry of judgment against Ms Dandris for that amount. However, it did not involve Mr Williams, who had no liability under the Building Act.
The primary judge rejected the claim in negligence against Mr Williams on the basis that he did not, in the circumstances of the case, owe a duty of care to the Purchasers. While the Purchasers filed a notice of contention challenging that conclusion, that contention was abandoned in the course of the hearing before this Court.
In relation to the claim against the Vendors under the Law, the primary judge concluded that the Purchasers were induced to enter into the contract to purchase the Property by the Representations and that the Representations were made with the authority of both Mr Williams and Ms Dandris. The Representations consisted of the statements made in the Web Advertisement and the Brochure concerning the Property and the standard of the renovations that had been carried out and the statements made by the Agent's representative about the nature of the renovations and the competence of the builder. His Honour found that the Representations were misleading and deceptive.
The Purchasers' claim under the Law was based on s 18, s 30(1)(e) and s 236 of the Law. Section 18 relevantly provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Section 30(1)(e) relevantly provides that a person must not, in trade or commerce, in connection with the sale or the possible sale of an interest in land, or in connection with the promotion by any means of the sale of an interest in land, make a false or misleading representation concerning the characteristics of the land. Section 236(1) relevantly provides that, if a person suffers loss or damage because of the conduct of another person and the conduct contravened Ch 2 (which includes s 18) or Ch 3 (which includes s 30), that first person may recover the amount of the loss or damage by action against that other person.
The Purchasers contended that the Representations contravened s 18 because they were misleading and deceptive and that they contravened s 30(1)(e) because they were false or misleading representations concerning the characteristics of the Property. Mr Williams accepts that the Representations were misleading or deceptive, that they concerned characteristics of the Property and that they were made with the authority of both himself and Ms Dandris. In the light of those concessions, it is not necessary for this Court to express a view about those matters.
For present purposes, Mr Williams resisted the claim made under the Law on the basis that the Representations were not made in trade or commerce. Secondly, he contended that the claim against the Vendors was an apportionable claim within the meaning of Pt VIA of the Consumer Act and that the responsibility of Ms Dandris for the loss or damage suffered by the Purchasers was greater than or at least equal to his responsibility, such that he should not be held liable for the total amount of the loss or damage of the Purchasers. Thirdly, he contended that the Purchasers had not proved the amount of any loss that they had allegedly suffered by the conduct in question.
The primary judge was satisfied that the sale of the Property by the Vendors to the Purchasers was a transaction in trade or commerce. His Honour was also satisfied that the advertising of the sale, at least by way of the Web Advertisement, was conduct engaged in by the Vendors in trade or commerce.
The primary judge concluded that the sale of the Property was in trade or commerce because, in all of the circumstances in which it occurred, it disclosed a commercial or business character. That, his Honour said, was a question of fact involving characterisation of the particular conduct in question. His Honour was satisfied that the Vendors renovated the Property because they viewed it as an investment property and not to create a house for their personal use. His Honour found that the Vendors never intended to live in the Property for any meaningful period of time after renovation, and certainly not permanently. His Honour found that their intention was to improve the Property for resale for financial gain and that the sale, including its advertising, was the carrying into effect of their investment strategy.
The primary judge was also satisfied that the Vendors embarked on a project that was part of an interior design business that Ms Dandris wanted to develop and that the sale of the Property, by both of Ms Dandris and Mr Williams, was in furtherance of that endeavour. His Honour considered that that, on its own, was sufficient to conclude that the conduct in question was in trade or commerce.
The primary judge also found that the representations made by the Vendors in the Web Advertisement were made by means of a commercial website to which the world at large, including those who could read it in their trade or business, had access. His Honour considered that that was conduct in trade or commerce irrespective of the fact that those who were attracted by the advertisement did not read it or rely on it in the course of any trade or business of their own.
The primary judge concluded that the conduct about which the Purchasers complain, namely, the making of the Representations by the Vendors, was conduct in trade or commerce and contravened s 18. For reasons that have not been explained, his Honour was not asked to deal with the claim that the Representations contravened s 30(1)(e). However, that claim was not abandoned by the Purchasers before the primary judge and the matter has been raised by them in this Court by notice of contention.
The primary judge found that the Representations played a significant part in inducing the Purchasers to buy the Property. His Honour found that the Purchasers bought the Property to live in and intended to continue living in it and that, but for the defects in Property that constituted breaches of the statutory warranties under the Building Act, they could have done so. His Honour found that the reasonable and necessary cost of fixing those defects would be $1,171,124. His Honour observed that no basis was put as to why the true market value of the Property was not the price paid by the Purchasers less the sum that it will cost to fix it, namely $1,171,124. His Honour concluded that the appropriate measure of damage for the contravention of s 18 was $1,171,124.
The primary judge dealt with Mr Williams's contention based on Pt VIA by saying that Mr Williams had made precisely the same misrepresentations as Ms Dandris and they were both vendors of the Property. His Honour concluded that each bore equal responsibility for the loss and damage suffered by the Purchasers and that justice did not require that Mr Williams be treated differently and more beneficially than Ms Dandris. His Honour therefore concluded that the Purchasers were entitled to a verdict against both Ms Dandris and Mr Williams in the sum of $1,171,124. On 15 August 2014, for reasons published on 8 August 2014, his Honour ordered judgment for that amount against both of the Vendors.
On 23 September 2014, Mr Williams filed a notice of appeal from the orders made by the primary judge. An amended notice of appeal was filed on 8 December 2014. The Purchasers filed a notice of contention on 24 December 2014 and filed an amended notice of contention on 12 May 2015.

The Appeal

Three distinct questions are raised by the appeal. The first is whether the Representations constituted conduct "in trade or commerce" within the meaning of s 18 and s 30 of the Law. If not, that is the end of the matter and the appeal must be allowed.
If the Representations constituted conduct in trade or commerce, the second question that arises is whether the liability of Mr Williams should be reduced under Pt VIA, having regard to his responsibility for the making of the Representations, as against the responsibility of Ms Dandris. Three sub-issues arise in relation to that question. The first is whether Pt VIA has any application in the context of a claim under s 30 of the Law. The second is whether Mr Williams was a concurrent wrongdoer with Ms Dandris for the purposes of Pt VIA. The third is whether, assuming that Pt VIA applies, the responsibility of Mr Williams was greater or less that 50 per cent.
The third question in the appeal also only arises if the Representations constituted conduct in trade or commerce. The question is whether the Purchasers adduced appropriate evidence as to the loss or damage to which they are entitled under s 236 of the Law as a consequence of the contravention of s 18 or s 30, as distinct from the cost of rectifying the breaches of warranty under the Building Act.

Trade or Commerce

In order to attract s 18 or s 30, the conduct in question must either be conduct in trade or conduct in commerce. At one stage in the course of oral argument, counsel for the Purchasers suggested that any sale would be in trade or in commerce. Such a construction would render the phrase "in trade or commerce" when used on numerous occasions in Ch 3 of the Law quite otiose. For example, s 30 provides that a person must not, in trade or commerce, in connection with the sale of an interest in land make false or misleading representations concerning various matters. If any sale was conduct in trade or commerce, there would be no need for the phrase to be included in the preamble to s 30. The same observation can be made in relation to several provisions of Ch 3. The contention must be rejected.
The terms "trade" and "commerce" are ordinary terms that describe the mutual communications, negotiations, verbal and written, bargains and performance that constitute commercial arrangements. The terms are not terms of art, but are expressions of fact and terms of common knowledge. While the particular instances that may fall within them will depend upon the varying phrases of development of trade, commerce and commercial communication, the terms are clearly of the widest import. They are not restricted to dealings or communications that can properly be described as being at arm's length, in the sense that they are within open markets or between strangers or have a dominant objective of profit making. [1]
The phrase "in trade or commerce" operates to qualify the prohibitions in s 18 and s 30 against engaging in conduct of the specified kind. Those provisions were not intended to extend to all conduct, regardless of its nature, in which a person might engage in the course of, or for the purpose of, the overall trading or commercial business of that person. Section 18 and s 30 are concerned with the conduct of a person towards other persons, be they consumers or not, with whom the first person has or may have dealings in the course of trading or commercial activities of the first person that, of their nature, bear a trading or commercial character. Such conduct would include promotional activities in relation to, or for the purposes of, the supply of goods or services to actual or potential consumers, be they identified persons or merely an unidentifiable section of the public. However, the reference to "conduct in trade or commerce" must be construed as referring only to conduct that is itself an aspect or element of activities or transactions that, of their nature, bear a trading or commercial character. The words refer to the central conception of trade or commerce, and not to the immense field of activities in which persons may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business. [2]
In ordinary circumstances, a person who sells his home, whether by private treaty or by auction and whether he conducts the negotiations personally or through a real estate agent, would not be said to be undertaking those activities in the course of a trade or business or in a business context. Whether or not an estate agent is used and whether or not that agent advertises the house, by preparing brochures or other advertisements, and whether or not the agent sells by auction or merely negotiates a private treaty, the sale will normally remain a sale by the vendor of his house and not an act done in a business context. It is relevant to consider the character of the parties involved, which includes whether they are people who have engaged in or are about to engage in commercial activities, whether the transaction is motivated by business, as distinct from personal, reasons and whether the person whose conduct is under attack played an active part in the transaction. The mere use of an estate agent does not bring about the result that the sale of a capital asset by a householder is a transaction occurring in trade or commerce. [3]
The fact that the Vendors retained the Agent in connection with the sale does not, of itself, make the conduct of the Agent, for which the Vendors were vicariously liable, conduct in trade or commerce, even though the conduct of the Agent may have been conduct in the trade or commerce of the Agent. Section 84(4) of the Consumer Act provides that conduct engaged in on behalf of a person by an agent of the person within the scope of the actual or apparent authority of the agent is deemed to have been engaged in also by the first person, the principal. Thus, in the present circumstances, the conduct of the Agent, in making the Representations, was conduct engaged in by the Agent as the agent of the Vendors and within the scope of the authority of the Agent. Hence, that conduct is deemed to have been engaged in by the Vendors. However, the application of s 84(4) does not impute to the principal the business of the agent. The fact that the actions by an agent are deemed to have been actions by the agent's principals, albeit that the actions of the agent constituted conduct in that agent's trade or commerce, does not bring about the result that the deemed actions of the principals constituted conduct in trade or commerce, if all that the principals were doing was selling their home. [4]
In other words, the element of acting in trade or commerce will not be attributed to owners selling their home merely by reason of their engagement of an estate agent to find a buyer. Clearly enough, principals may be vicariously liable for torts committed by their agent. However, it is not permissible to attribute to the principals an element connected with the agent's conduct so as to complete a cause of action against the principals, based on his own conduct. The business character of the acts done by an agent cannot be imputed to the acts of the principals. [5]
It is the character of the act that is the subject of complaint, so far as the person doing the act is concerned, that is critical. Thus, for example, where a municipal council issues a certificate concerning the characteristics of land within the area of the council (as part of its statutory functions), that will not be conduct in trade or commerce by the council, even if the certificate is issued to a prospective purchaser who is engaged in trade or commerce and who has requested the certificate in order to further that activity. [6]
An employee, who engages in misleading and deceptive conduct in the course of his employment by his employer, engages in that conduct in trade or commerce if the activity of the employer in the pursuit of which the conduct is engaged in is itself in trade or commerce. That is to say, it is not the trade or commerce of the employee but the trade or commerce of the employer in which the conduct takes place. It is not to the point that the employee is not a proprietor of the business or that the employee's activities were an aspect or element not of his own trade or commerce but of the trade or commerce of his employer. The employee nevertheless engages in conduct in the course of trade or commerce and their conduct constitutes a contravention of s 18 by the employee personally. [7]
However, it does not follow from the propositions just formulated that an employer (or principal) is deemed to engage in conduct in trade or commerce merely because the employee, or agent, engages in his own trade or commerce in the course of that employment or agency. Such a result would in effect work backwards the principle stated in Houghton v Arms.
The mere fact that a joint owner of a residential property engages, jointly with the other joint owner, in the renovation of the property with a view to selling the property at a profit, in circumstances where the joint owners reside in the property as their home for a significant period of time prior to the renovations, does not of itself lead to the conclusion that conduct engaged in connection with the sale of the property is conduct in trade or commerce. It is not uncommon for an owner or joint owners to engage in such activities with respect to more than one property. That of itself, however, does not mean that the conduct engaged in in connection with the sale of each property constituted conduct in trade or commerce where the property is clearly lived in as a home.
The Vendors resided in the Property from before 2005 until 2010. The renovations were carried out over a period of less than two years and the Vendors sold the Property as soon as the renovations were completed. They purchased a nearby property in Dover Heights shortly thereafter. The nearby property was the subject of development consent, which the Vendors applied to augment, for the carrying out of significant renovations and improvements. At one point after the sale of the Property, when Ms Dandris removed a faulty hot water system, she commented that she would use that system "on my next project", which may have been a reference to the nearby property. However, even if it was the intention of Ms Dandris and Mr Williams to renovate the nearby property with a view to selling it for a profit, that of itself does not have the consequence that the activities engaged in in connection with the sale of the Property constituted conduct in trade or commerce on the part of Mr Williams.
Further, the fact that Ms Dandris was intending to engage in a business of interior decoration does not alter the position. Interior decoration may well constitute activity in trade or commerce. However, that has nothing to do with the conduct involved in the marketing of the Property, following renovation, even if the renovation was undertaken with the intention of selling at a profit, in circumstances where the Property was, for a significant period of time, lived in as a residence by Mr Williams and Ms Dandris. Finally, as stated above, the fact that a property is advertised prior to its sale (whether the advertisements are published in the print media or on a website) does not, of itself, mean that conduct engaged in in connection with the sale of that property is conduct in trade or commerce.
The primary judge erred in concluding that the Representations constituted conduct engaged in by Mr Williams in trade or commerce. It follows that there was no contravention on the part of Mr Williams of either s 18 or s 30 of the Law. That is the only basis upon which judgment was entered against Mr Williams. Accordingly, the appeal should be allowed and the orders of the primary judge should be set aside.
However, it is desirable to say something about the other two questions raised in the appeal. Since the questions are not necessary to the disposition of the appeal, the observations that follow should be regarded as provisional only.

Apportionment of Liability

Part VIA of the Consumer Act was inserted into what was then called the Trade Practices Act 1974 (Cth) in 2004. [8] Later that year, Pt 4 of the Civil Liability Act 2002 (NSW), which also deals with proportionate liability, was introduced, and other states have followed suit (although not in identical terms). The reform effected by Part VIA was intended to replace the system of joint and several liability for most economic loss and property damage claims with proportionate liability. In the mid-1990s, Professor JLR Davis was commissioned to report on the law of joint and several liability. His report was released in two parts in July 1994 and January 1995, and recommended the introduction of a system of proportionate liability in actions for negligence causing property damage or purely economic loss. [9]
The reform was prompted by concerns that litigation against well-insured professionals (particularly auditors) was driving up professional liability insurance premiums. [10] Plaintiffs who had suffered loss caused by several wrongdoers were seen to be taking advantage of the system of joint and several liability by targeting only the well-insured wrongdoer (whose contribution to the plaintiff's loss may have been minimal) and obtaining 100 per cent of the damages award from that wrongdoer. Although the well-insured defendant could of course seek contribution from the other concurrent wrongdoers, the risk that the other wrongdoers would be untraceable or insolvent was borne by that defendant. One consequence of the introduction of a system of proportionate liability is that that risk is shifted to the plaintiff.
Part VIA of the Consumer Act consists of ss 87CB to s 87CI and is concerned with proportionate liability for misleading and deceptive conduct. Part VIA applies to an apportionable claim. An apportionable claim is defined (in s 87CB(1)) as a claim for damages made under s 236 of the Law for economic loss or damage to property caused by conduct that was done in contravention of s 18 of the Law.
For the purposes of Pt VIA, there is a single apportionable claim in proceedings in respect of the same loss or damage even if the claim for the loss or damage is based on more than one cause of action, whether or not of the same or a different kind (s 87CB(2)). For the purpose of Pt VIA, a concurrent wrongdoer, in relation to a claim, is a person who is one of two or more persons whose acts or omissions, or act or omission, caused, independently of each other or jointly, the damage or loss that is the subject of the claim (s 87CB(3)).
The critical operative provision of Pt VIA is s 87CD, which deals with proportionate liability for apportionable claims. It provides that, in any proceedings involving an apportionable claim, the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just, having regard to the extent of the defendant's responsibility for the damage or loss (s 87CD(1)(a)). The court may give judgment against the defendant for not more than that amount (s 87CD(1)(b)).
Three issues arise in relation to the Pt VIA question. The first is the extent to which liability for the contravention of s 30 is affected by Pt VIA. The second is whether Ms Dandris and Mr Williams were concurrent wrongdoers, as defined in s 87CB(3). The third is whether, if Pt VIA applies and they were concurrent wrongdoers, 100 per cent of responsibility can be attributed to each of them.

Section 30 and Part VIA

The first issue is whether Pt VIA applies, in the present circumstances, in relation to a claim under s 30. If it does not, then its application in relation to the claim under s 18 falls away, since Mr Williams does not advance any arguments as to why there was no contravention of s 30(1)(e), assuming that the Representations constituted conduct made in trade or commerce. Thus, if Pt VIA does not apply in relation to a claim under s 30, then the Purchasers would be entitled to judgment against Mr Williams for the full amount, without any apportionment as between him and Ms Dandris.
For reasons that were unexplained to this Court, the Purchasers made no submissions to the primary judge in support of their claim under s 30, although the claim was formally pleaded in the Statement. Accordingly, his Honour did not deal with the question. Indeed, his Honour did not analyse the application of Pt VIA in any depth, perhaps because of the want of detailed submissions on the question.
In the present case, precisely the same facts are relied upon as constituting a contravention of s 30 as were relied on as constituting a contravention of s 18. That is to say, the same facts constituted a contravention of the narrower prohibition in s 30, which carries with it the consequence of a civil penalty, as constituted a contravention of the wider prohibition in s 18, which carries no civil penalty sanction.
The present question of construction is whether Pt VIA applies to a claim for damages caused by conduct done in contravention of a provision of the Law other than s 18. The terms of s 87CB, particularly subsections (1), (2) and (4), are central to the determination of that question. They are as follows: (1) This Part applies to a claim (an apportionable claim) if the claim is a claim for damages made under section 236 of the Australian Consumer Law for: (a) economic loss; or (b) damage to property; caused by conduct that was done in a contravention of section 18 of the Australian Consumer Law. (2) For the purposes of this Part, there is a single apportionable claim in proceedings in respect of the same loss or damage even if the claim for the loss or damage is based on more than one cause of action (whether or not of the same or a different kind). […] (4) For the purposes of this part, apportionable claims are limited to those claims specified in subsection (1).
Neither the explanatory memorandum relating to the amending legislation introducing Pt VIA nor the speech on the second reading of the Bill leading to its introduction is of assistance. The High Court recently considered this question in the context of the equivalent provisions of the Corporations Act 2001 (Cth), namely s 1041L, which corresponds to s 87CB, and s 1041H, which corresponds to s 18. [11] The High Court said: Applying well-settled rules of construction, the same meaning should be given to the word "claim" where it appears in sub-ss (1) and (2). […] The "claim" in [s 87CB(1)] is a claim for damages under [s 236] for damage caused by conduct in contravention of [s 18]. When [s 87CB(2)] speaks of a claim based on more than one cause of action, it cannot be speaking of a claim liability for which arises due to contravention of a norm of conduct different from that which creates liability to a claim for damages described in [s 87CB(1)], namely [s 18]. [12]
That suggests that the words "more than one cause of action" in s 87CB(2) should not be read as completing the definition of an apportionable claim, because that definition has already been provided in s 87CB(1). [13] Moreover, s 87CB(4) expressly states that apportionable claims "are limited to those claims specified in subsection (1)". If it were otherwise, there would be an inconsistency between the meaning given to the word "claim" in s 87CB(1) and the meaning given to it in s 87CB(2), in that "claim" in the latter subsection would encompass conduct done in contravention of provisions other than s 18 of the Law.
On one view, the terms of s 87CB(1) do not exclude application to conduct that is done in contravention of both s 18 of the Law and another proscription, such as that in s 30, being the same conduct that causes the loss that is the subject of the claim. In that situation, a claim for damages for economic loss would be "caused by conduct that was done in a contravention of section 18", even though that same conduct was also done in contravention of s 30. However, had Parliament intended s 87CB to apply to claims for damages caused by conduct contravening provisions other than s 18, it could very easily have done so, by omitting the words "of section 18" from sub-s (1). It has chosen not to do so.
Further, the language of Pt VIA does not suggest a legislative intention that liability for all claims to which the Law applies should be the subject of apportionment as between wrongdoers. [14] The report of Professor Davis that led to the introduction of the apportionment provisions in the Consumer Act and other legislation referred only to liability for misleading and deceptive conduct under what was then the Trade Practices Act (as well as the equivalent fair trading legislation in the States and Territories). In relation to the Corporations Act, contraventions of provisions other than s 1041H may involve a higher level of moral culpability than the conduct referred to in s 1041H. [15] That same observation can be made in respect of the Law, in that some provisions (such as s 30) attract a pecuniary penalty, while others (such as s 18) do not. That distinction suggests that Parliament has determined that the contravention of certain provisions, such as s 30, involves a higher level of moral culpability than the contravention of s 18. The fact that apportionment is of benefit to wrongdoers may therefore have weighed in the decision to limit apportionable claims to those involving conduct done in contravention of s 18 only. [16]
The hypothesis just mentioned may be borne out by the terms of s 87CC. Under that provision, nothing in the proportionate liability provisions operates to exclude the liability of a concurrent wrongdoer in proceedings involving an apportionable claim if the concurrent wrongdoer intended to cause, or fraudulently caused, economic loss or damage to property that is the subject of the claim. In such a case, the liability of such a concurrent wrongdoer is to be determined in accordance with the legal rules, if any, that, apart from the proportionate liability provisions, are relevant. That is consistent with a legislative intention that the proportionate liability provisions be limited to circumstances where there is a lesser degree of moral culpability on the part of the wrongdoer.
Therefore, for reasons both of construction and of policy, Pt VIA should be construed as applying to a claim for damages caused by conduct done in contravention only of s 18 of the Law. It follows that Mr Williams would not have the benefit of s 87CD.

Concurrent Wrongdoers

Section 87CB(3) in its current form reads: (3) In this Part, a concurrent wrongdoer, in relation to a claim, is a person who is one of 2 or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim.
To give effect to the recommendations in Professor Davis's report, the Standing Committee of Attorneys-General released draft model provisions in July 1996 for circulation and comment. The draft form of what is now s 87CB(3) was in the following terms: A concurrent wrongdoer, in relation to a claim, is a person who is one of two or more persons whose individual acts or omissions would, independently of each other, have caused the damage or loss that is the subject of the claim. Thus, the words "(or act or omission)" and "or jointly" were not originally included in the draft. It appears that those words were added when the provision was enacted.
The question of construction raised by the present appeal is whether s 87CB(3) applies to a situation where a single act that causes damage that is the subject of a claim under the Consumer Act is committed by two or more persons jointly.
Three elements of s 87CB(3) are relevant to the consideration of the question of construction: first, the word "whose"; second, the parenthetic phrase "(or act or omission)"; and, third, the adverbial phrase "independently of each other or jointly".
The first question is whether the relative pronoun "whose" qualifies "a person" or "2 or more persons". If it qualifies "a person", then the "acts or omissions (or act or omission)" are those or that of the individual person, and not of the group of persons. The consequence would be that the subsection could not be read as including a reference to an "act or omission" of "2 or more persons", being a joint act such as that in the present case. If, however, the word "whose" qualifies "2 or more persons", then the subsection would cover a loss caused by an "act or omission" of "2 or more persons". That is to say, it would cover the situation in the present case.
A relative pronoun is most naturally read as qualifying its immediate antecedent. Further, if the word "whose" were construed as qualifying "a person", then there would be nothing in the words of the subsection to link the "2 or more persons" to the act or acts that caused the loss the subject of the claim. The only relevance of the words "2 or more persons" would be that the putative concurrent wrongdoer would have to be "one of" them. Therefore, the word "whose" should be read as qualifying the phrase "2 or more persons".
The second question is whether the parenthetic phrase "(or act or omission)" indicates that the provision does not require that there be more than one distinct act or omission that caused the loss the subject of the claim. However, that question assumes that it is the "act or omission" of the "2 or more persons" that is being contemplated, and not the "act or omission" of "a person". If the latter construction were adopted, then the parenthetic words would only apply in a situation in which the concurrent wrongdoers each committed a single act or omission, such that there was in total more than one act. Therefore, the words "(or act or omission)" do not by themselves resolve the question of construction posed in the present case.
The third question is the meaning of the phrase "independently of each other or jointly", which qualifies the word "caused" [17] and refers to the "acts or omissions (or act or omission)" of the "2 or more persons". That is to say, the act or omission of the wrongdoers, or the acts or omissions of the wrongdoers, may independently cause the same loss to the plaintiff or they may combine to cause that loss. One consequence of the above construction of "whose" would be that, in a case in which there is a single act joined in by two or more persons, the words "independently of each other or jointly" would be otiose, because there would be no need to qualify the manner in which the single act caused the loss the subject of the claim. That would be a reason for preferring a construction of s 87CB(3) that did not cover the situation of a single act or omission, on the basis of the principle of construction that all words of a provision must prima facie be given some meaning and effect. [18] On the other hand, that principle is of limited application, particularly where there are good reasons for adopting a construction that involves superfluity. [19]
In the course of argument of this appeal, the Court was referred to several recent appellate decisions concerning the operation of s 87CB(3) or its equivalent in state legislation, such as s 34(2) of the Civil Liability Act. The High Court recently said that s 34(2) "poses two questions": [W]hat is the damage or loss that is the subject of the claim? Is there a person, other than the defendant, whose acts or omissions also caused that damage or loss? [20] It is not clear why the High Court referred only to the "acts or omissions" (in the plural) of the person other than the defendant, given the presence of the words "(or act or omission)" in the provision. In any event, that formulation appears to have influenced the view of s 87CB(3) taken by a member of the Queensland Court of Appeal (concurred in by two other members of the Court of Appeal) in saying: Consistently with the form of the second question, I would construe the definition in s 87CB as concerned with distinct acts (or omissions) or sets of acts (or omissions) by different actors, combining or working independently to cause loss or damage, and consequently inapplicable where there is but a single act or set of acts causing loss, attributable to more than one person. [21]
The Queensland Court of Appeal was dealing with a case in which a company and an independent contractor engaged by it had acted as agents for five vendors on the sale of an apartment. One of the vendors was a company and the rest were natural persons. In contravention of what was then s 52 of the Trade Practices Act, the agents made false representations that induced the purchaser to buy the apartment and suffer loss. The representations were to the effect that the apartment had three car spaces that could lawfully be used to park a car, whereas in fact there were only two such car spaces and a third space for storage (which the terms of the relevant development approval for the building precluded from use as a car park). The vendors had instructed the appellants to promote the apartment as having three car spaces, even though the vendors knew of the legal impediment to the use of the third space (of which the appellants were not aware).
The Queensland Court of Appeal held that the agents and the vendors performed "a single set of acts" that caused the loss, [22] namely, the making of the representations that there were three car spaces attached to the apartment. On that basis, the Queensland Court of Appeal held that they were not concurrent wrongdoers so as to attract the application of s 87CD, and, consequently, no apportionment was required. The trial judge's award of damages, under which each of the agents and vendors was liable in the same amount to the purchaser, was therefore undisturbed. The Queensland Court of Appeal went on to say that, if the agents and vendors were concurrent wrongdoers, then there would be a "strong argument" that the vendors' responsibility for the purchaser's loss was greater than that of the agents', and that apportionment would be appropriate.
In the circumstances of that case, the vendors were plainly vicariously liable for the acts of the agents, by the operation of ss 84(2) and 84(4) of the Consumer Act. The question was not whether there should be apportionment among the vendors (as in the present case), but whether there should be apportionment between the vendors, on the one hand, and the agents, on the other. Accordingly, s 87CI applied to the case, although it was not referred to by the Queensland Court of Appeal. Section 87CI provides that nothing in Part VIA: (a) prevents a person being held vicariously liable for a proportion of an apportionable claim for which another person is liable; or (b) prevents a partner from being held severally liable with another partner for that proportion of an apportionable claim for which the other partner is liable; or (c) affects the operation of any other Act to the extent that it imposes several liability on any person in respect of what would otherwise be an apportionable claim.
Thus, the provisions in Pt VIA do not prevent a principal from being held vicariously liable for the wrongful actions of an agent within the scope of the agent's authority. That is to say, there need not be apportionment of liability as between principal and agent in such a situation. Had it been contended in the present case that the Agent was a concurrent wrongdoer with Mr Williams and Ms Dandris, then it may have been that there should be no apportionment of liability as between the Agent, on the one hand, and Mr Williams and Ms Dandris, on the other. That difference must qualify the otherwise broad language used by the Queensland Court of Appeal in its construction of s 87CB(3) to the effect that, in any case where there is a single act attributable to more than one person (as in the present case), those actors would not be concurrent wrongdoers.
The question in this case is whether Mr Williams and Ms Dandris can properly be characterised as concurrent wrongdoers within the meaning of that term when used in Pt VIA. The involvement of the Agent is irrelevant to that question. That is to say, any liability of Mr Williams and Ms Dandris, assuming that the Representations constituted conduct by them in trade or commerce, would be by reason of their vicarious responsibility for the Representations, which were made on their behalf by the Agent. There may have been a question as to whether the Agent was a concurrent wrongdoer. However, while the Agent was joined as a defendant, the proceedings were not prosecuted against the Agent, who was apparently in liquidation. Neither of the Vendors sought to have his or her liability limited by reason of the responsibility of the Agent.
This Court has also recently considered the equivalent provisions of the Civil Liability Act in a case in which a director of a company engaged in misleading and deceptive conduct while providing financial advice on behalf of the company to clients. [23] The advice was relied on by the clients who suffered loss as a consequence. Accordingly, either the company was vicariously liable for the director's conduct or the company was directly liable, on the basis that the director's conduct was not simply that of an agent of the company but that of the company itself. [24] On either basis, the director and the company would be jointly liable. Macfarlan JA said: The acts and omissions of [the director] in advising the [clients] were the corporate acts of [the company]. Accordingly, they were both responsible for the [clients'] losses, their acts and minds being the same. I find nothing in the terms of s 35(1) [the equivalent of s 87CD(1)] that requires responsibility for a loss to be apportioned between concurrent wrongdoers of this type so that the total percentages for which they are liable is 100 per cent. The section simply limits the liability of the defendant to the proportion of the loss that the court considers just having regard to the defendant's responsibility for the damage or loss. Here [the director] and [the company] were each fully responsible for the losses and it is just that each be liable for 100 per cent of the losses. [25] In that case, the Court did not consider in detail whether the director and the company fell within the definition of "concurrent wrongdoer" in s 34(2) of the Civil Liability Act. In any event, the facts of that case are not analogous to those in the present case, because, in this case, there is no issue of vicarious liability as between the alleged concurrent wrongdoers.
Neither the explanatory memorandum nor the speech [26] on the second reading of the Bill leading to the introduction of Pt VIA is of assistance in the resolution of the construction question. Clearly enough, the purpose of Pt VIA is to introduce a system of proportionate liability for joint and several wrongdoers who contravene s 18 of the Australian Consumer Law. The evident purpose is to give effect to a legislative policy that, in respect of claims for economic loss or property damage, a defendant should be liable only to the extent of his or her responsibility. The court must apportion that responsibility where the defendant can show that he or she is a "concurrent wrongdoer". That is to say, the defendant can show that there is another, or there are others, whose acts or omissions (or act or omission) can be said to have caused the damage that the plaintiff claims, whether jointly with the defendant's acts or omissions (or act or omission), or independently of them. If there is another wrongdoer or there are other wrongdoers, then he or she or they, together with the defendant, are all concurrent wrongdoers. [27] There is no reason why that purpose should not extend to wrongdoers who jointly commit a single act that causes the loss claimed by the plaintiff.
Even if the only possible wrongdoers in a particular case have acted jointly - that is, they have taken "concerted action to a common end" - the law prior to the introduction of proportionate liability did not differentiate between, on the one hand, joint and several liability, and, on the other hand, joint liability. Since the purpose of the proportionate liability legislation was, and is, to replace joint and several liability with proportionate liability in cases of purely economic loss and property damage, there would seem to be no reason for excluding joint liability from the proportionate liability scheme. [28]
Furthermore, there may be occasions where a group of people act jointly and cause loss, and another person, acting independently, is also a cause of the loss to the plaintiff. There is no reason for excluding proportionate liability in that situation, and allowing a plaintiff to sue one defendant alone (and rely on the application of the previous law relating to joint and several liability), simply because the others who were equally liable for the plaintiff's loss were acting jointly. [29]
There are examples of groups of wrongdoers acting "jointly" to whom the purpose of Pt VIA should not extend. One is that of a partnership: the act of any partner is the act of all of the partners, [30] and it would be strange if Pt VIA were to interfere with that arrangement. That is the reason for the insertion of s 87CI(b) (and s 87CI(a), in relation to vicarious liability). The statutorily imposed liability of partners between themselves must necessarily remain. It is of the essence of the relationship between those who have agreed to become partners that, for instance, they owe fiduciary duties each to the other and that each is responsible for the torts committed by any fellow partner acting in the ordinary course of the partnership business. Similarly, to apply proportionate liability in a case where one defendant's liability arose simply from its vicarious liability for another defendant would completely undermine the principles of vicarious liability and the policy behind them. [31] Accordingly, the introduction of proportionate liability does not apply to instances of vicarious liability. Thus, one reason for the introduction of s 87CI may have been that, were it not for that section, the definition of "concurrent wrongdoer" in s 87CB(3) would have applied (for example) to a partner who, along with another partner, participates in a single act that contravenes s 18 of the Australian Consumer Law and causes loss to a plaintiff.
For the above reasons, s 87CB(3) should be construed as applying to a situation in which two or more persons contribute to the commission of a single act that causes the damage that is the subject of the claim under the Consumer Act. Thus, Mr Williams and Ms Dandris are concurrent wrongdoers for the purpose of Pt VIA.

Apportionment

Section 87CD(1) requires a court to give judgment against the concurrent wrongdoers for not more than an amount reflecting the proportionate responsibility of each of them for the damage or loss suffered by the plaintiff. A construction of s 87CD(1) that does not require that the sum of the judgment sums against each of the concurrent wrongdoers be no more than 100 per cent would run counter to the purpose of the statutory regime of proportionate liability, under which "liability is apportioned for each wrongdoer according to the court's assessment of the extent of their responsibility". [32] In other words, the plaintiff must "sue all of the wrongdoers in order to recover the total loss and, of course, the risk that one of them may be insolvent shifts to the plaintiff" [33] (emphasis added).
A construction of s 87CD(1) to the effect that the sum of the judgment sums against each of the concurrent wrongdoers must not exceed 100 per cent is supported by the terms of s 87CF. That section provides that a defendant against whom judgment is given under Pt VIA as a concurrent wrongdoer in relation to an apportionable claim cannot be required to contribute to any damages or contribution recovered from another concurrent wrongdoer in respect of the apportionable claim (whether or not the damages or contribution are recovered in the same proceedings in which judgment is given against the defendant) and cannot be required to indemnify any such wrongdoer.
Under a system of joint and several liability, each defendant (who has been held fully responsible for the plaintiff's loss) has a right to recover contribution from the other such defendants, such that each defendant pays a proportion of the damages payable that is just and equitable having regard to his or her responsibility for the loss. Under a system of proportionate liability, a right of contribution is neither available nor necessary, since the court has already determined the just share owing by each defendant. Thus, s 87CD(1)(b) prevents a court from giving judgment against a concurrent wrongdoer for more than an amount reflecting the proportion of the loss that the court considers just in respect of that defendant. A concurrent wrongdoer is then prevented, by s 87CF, from recovering contribution from another concurrent wrongdoer in respect of the same loss.
If a court held each of two concurrent wrongdoers to be 100 per cent liable for the plaintiff's loss, and if the plaintiff were to enforce the whole of the judgment against one of the concurrent wrongdoers, then, despite the fact that the court had determined that both defendants were equally responsible for the plaintiff's loss, the concurrent wrongdoer against whom the judgment had been enforced would not be entitled to seek contribution from the other concurrent wrongdoer. That would be an unjust result.
Counsel for the Purchasers submitted that s 87CF would not prevent a concurrent wrongdoer in that situation from commencing subsequent proceedings to recover contribution from the other concurrent wrongdoer. However, such a course would be expressly precluded by the words of the section, which applies "whether or not the damages or contribution are recovered in the same proceedings in which judgment is given against the defendant" (emphasis added). Counsel also submitted that, in a situation where one concurrent wrongdoer is not joined as a party to the proceedings, a concurrent wrongdoer who is joined, and against whom judgment has been obtained, is not precluded by s 87CF from making a subsequent claim for contribution against the non-party concurrent wrongdoer. While that may be so, [34] that is not the present case.
Section 87CD(1) should be understood as requiring that the sum of the judgment sums against each of the concurrent wrongdoers must not exceed 100 per cent. Thus, in so far as Mr Williams was a concurrent wrongdoer in relation to the claim and Pt VIA applied, it was necessary for the primary judge to determine that proportion of the loss or damage claimed by the Purchasers that his Honour considered to be just, having regard to the extent of Mr Williams's responsibility for the loss or damage. The liability of Mr Williams should then have been limited to an amount that reflected that proportion of the amount of the loss or damage.
Mr Williams contended that, because of the greater involvement of Ms Dandris in the renovation and construction work, the extent of his responsibility was less than hers. However, that ignores the fact that the complaint was made about the Representations. The contravention that gave rise to the claim was one for which each of the Vendors was equally responsible. That is to say, there was no suggestion that Ms Dandris was more responsible than Mr Williams for making the Representations. The state of mind of a person whose conduct is impugned is irrelevant for the purposes of s 18 and s 30. Ms Dandris and Mr Williams were equally responsible for the loss or damage suffered by the Purchasers.
The Purchasers, on the other hand, contended that, even if Pt VIA applied, and Ms Dandris and Mr Williams were concurrent wrongdoers, each of them should be held responsible for 100 per cent of the loss or damage. Such a proposition ignores the clear intention of Pt VIA, for the reasons given above. It must follow that, if Pt VIA applies, there would be no possible basis for determining a proportion for each of Mr Williams and Ms Dandris of greater than 50 per cent.

Measure of Damages

The bulk of the hearing before his Honour concerned the assessment of damages under the Building Act. Section 31 of the Building Act provides for the grant of owner-builder permits. An application for an owner-builder permit may be made only by an individual. An applicant is required to own the land concerned, whether or not together with another individual or other individuals. Further, the dwelling-house in question that is the subject of the owner-builder permit must be occupied as the residence of the applicant after the work authorised by the permit is done. An application for an owner-builder permit must be refused if the applicant was an owner of other land when an owner-builder permit was issued in respect of that other land during the period of five years before the current application is lodged. Under s 32, an owner-builder permit authorises its holder to do such residential building work as is described in the permit on the land specified in the permit.
Section 18B of the Building Act provides that certain warranties are implied within every contract to do residential building work. Section 18C provides that a person who is the immediate successor in title to an owner-builder who has done residential building work on land is entitled to the benefit of those statutory warranties as if the owner-builder had done the work under a contract with that successor in title to do the work.
The claim under the Building Act against Ms Dandris could not have been brought against Mr Williams because he was not the holder of an owner-builder permit. The claim against him, apart from the claim in negligence that was not pressed on the appeal, was based solely on contravention of the Law.
Breach of a contractual warranty gives rise to an entitlement for damages measured by reference to the amount that is required to put the claimant in the position in which the claimant would have been had the warranty been performed. [35] That is the measure of damages that the primary judge considered and determined in arriving at the figure for which judgment was entered against Ms Dandris.
However, under s 236 of the Law, a claimant may recover the amount of the loss or damage suffered by the claimant because of the conduct of another person. Thus, it is necessary to determine what loss or damage was caused by the Representations, which were made in contravention of s 18 or s 30. No question arises as to the position in which the Purchasers would have been had the statutory warranties not been breached.
Section 236 is the statutory source of the Purchasers' entitlement to damages. The only express guidance given as to the measure of those damages is to be found in the concept of causation in the word "because". The predecessor of s 236, s 82 of the Trade Practices Act, conferred a right to recover loss or damage suffered "by" the contravening conduct. It is reasonable to assume that the principles established in relation to s 82 are applicable to s 236: generally, where Parliament repeats words (by way of re-enactment) that have been judicially construed, it is taken to have intended the words to bear the meaning already judicially attributed to them. [36] Although the earlier and later provisions here are not in identical terms, neither party suggested that the principles applicable to s 82 are not applicable to s 236.
The task of a court is to select a measure of damages that conforms to the remedial purpose of the Law and "to the justice and equity of the case". The purpose of the Law is to establish a standard of behaviour in trade or commerce by proscribing certain conduct and by providing a remedy in damages for contravention of the proscription. Accordingly, the principles of common law that are relevant to assessing damages in contract or tort are not directly in point. However, they will normally provide useful guidance, in so far as the principles of contract and tort have had to respond to problems of a nature similar to the nature of the problems that arise in the application of the Law. While the principles of the common law are not controlling, they represent an accumulation of valuable insight and experience that will be useful in applying the Law. [37]
In many cases, the measure of damages in tort is the appropriate guide in determining an award of damages under s 236. However, in assessing damages, it is not necessary to choose between the measure of damages in deceit or other torts and contract. The central requirement under s 236 is to establish a causal connection between the loss claimed and the contravening conduct. Once such a causal connection is found to exist, the principles in relation to remedies in contract, tort or equity such remedies will usually be of considerable assistance by way of analogy. However, the recoverable amount should not be limited by drawing an analogy with such remedies and, in particular cases, general principles for assessing damages may have to give way to solutions better adapted to give the injured claimant an amount that will most fairly compensate for the wrong suffered. [38]
The Statement was singularly unhelpful in terms of formulating the loss or damage alleged to have been suffered by the Purchasers because of the contravention of the Law by the Vendors. The Purchasers simply asserted that, "by reason of" the matter constituting the contravention of s 18 and s 30, they had suffered loss and damage "because of" the conduct of each of the Vendors. It appears that no attempt was made on behalf of the Vendors to require the Purchasers to particularise the loss claimed under s 236 of the Law.
The Vendors submitted to the primary judge that the only appropriate quantification of loss and damage for the claim under the Law was the difference, in financial terms, between the position that the Purchasers were then in and the position that they would have been in had they not bought the Property. That, they said, was the difference between the price paid by the Purchasers and the true market value of the Property with the defects. The Purchasers adduced no evidence addressed to the true market value of the Property with the defects.
The Purchasers, in submissions to the primary judge, put their claim on the basis that the loss or damage that they suffered was being induced to buy the Property, in reliance on the Representations. However, they adduced no evidence as to what they might have done had they relied on the Representations.
For example, the Purchasers could have adduced evidence that, had they not been induced by the Web Advertisement, they would not have inspected the Property and therefore would not have bought it. They may then have said that, but for purchasing the Property, they would have purchased another property for which they would have paid the market price, and they would now have a property worth what they paid for it.
Alternatively, the Purchasers could have adduced evidence that, had they seen an advertisement for the Property, without the material complained of in the Web Advertisement, they would have been interested in buying it and would have inspected it and, without the material complained of in the Brochure, would have had a detailed building inspection of the Property carried out. Evidence could then have been adduced that such a report would have disclosed the defects and the cost of rectification of the defects and that they would then have negotiated with the Vendors and would only have paid a price that reflected the cost of rectification of the defects. There was no attempt to adduce such evidence.
The primary judge considered that "the justice and equity of this particular case" required the Court to select as the measure of damage the reasonable and necessary cost of fixing the property. [39] His Honour's reasoning was that the Purchasers bought the Property to live in and that, but for the defects, they could have done so. His Honour then observed that, if the market value of the Property, with the defects, is less than the price paid minus the cost of the rectification, then awarding the difference between the two would give the Purchasers a windfall. On the other hand, his Honour said, if the market value of the Property, with the defects, is greater than the purchase price minus the cost of rectification, then awarding the difference would not give the Purchasers enough to pay for the necessary repairs. His Honour justified his conclusion by observing that no basis was put as to why the true market value of the Property was not the price paid minus the cost of rectification.
That observation by the primary judge that the measure he adopted might result in a windfall or a deficiency rather demonstrates the fallacy of his Honour's reasoning. That is to say, it was a matter of speculation as to whether the measure that his Honour adopted might or might not result in fair compensation for the wrong suffered by the Purchasers, so as to give a just and equitable result. Moreover, in justifying the conclusion by observing that no basis had been put as to why the true market value of the Property was not the price paid less the cost of rectification, his Honour made an assumption that had no evidentiary basis. Moreover, in effect, that assumption reversed the onus of establishing the loss or damage suffered by the Purchasers, in circumstances where the Purchasers bore the onus of establishing their loss and damage. It is by no means self-evident, and certainly does not necessarily follow, that the market value or fair value of a house is to be determined by reference to the cost of rectification of defects that involve breaches of statutory warranties.
Mr Williams draws attention to one of the particular heads of claim in relation to the statutory warranties by way of explaining the proposition that the cost of remedying a defect is not necessarily a reflection of the diminution in the value of the Property. The claim related to a misaligned wall. He contends that it would be fallacious to approach the matter by asking how the defect might have been discounted by a prospective purchaser had the defect been drawn to the attention of the purchaser. The Vendors were not under any obligation to disclose defects. Had they said nothing that was capable of constituting a contravention, no complaint could have been made about the misaligned wall.
The primary judge found that the wall in question was approximately 100 millimetres out of square over its approximate length of 3.8 metres. An en-suite wall above is also out of square. His Honour found that the misalignment of the wall was visible when observed against the alignment of the tiles of the floors of the rooms in question and would not have occurred if accepted and basic building techniques and workmanship had been applied. Ms Dandris conceded that demolition and reconstruction was warranted in order to rectify a breach of the statutory warranties.
However, the primary judge made no finding as to the likely effect of the misalignment of the wall on the price that might have been paid by a prospective purchaser of the Property. More particularly, his Honour made no finding as to the variation in the price that might have been paid by the Purchasers had their attention been drawn specifically to the misalignment. As I have said, his Honour found that the misalignment was visible when observed against the alignment of the tiles on the floors of the respective rooms involved.
The primary judge found that the cost of rectification of the misalignment was $169,334. His Honour did not direct his attention to the question of whether or not the existence of the misalignment by itself would have affected the decision of the Purchasers to buy the Property had they observed the misalignment themselves or on their decision to pay the price that they actually agreed to pay for the Property.
I do not consider that the measure of loss or damage adopted by the primary judge fairly reflects the liability imposed by a contravention of s 18 or s 30 of the Law. It appears that the Vendors made clear to the Purchasers the basis upon which the claim under the Law was contested. Clearly enough, the principal thrust of the proceedings before his Honour was the claim under the statutory warranties. It is not clear at what stage it became apparent that a judgment against Ms Dandris under the Building Act may not be satisfied. That might be an explanation as to why appropriate attention was not directed to adducing evidence as to the loss or damage caused by the contravention, namely, being induced to buy the Property in reliance on the Representations.
Having regard to the conclusion that I have reached concerning whether the Representations were in trade or commerce, it is not necessary to decide the appropriate relief, if that contention had failed. While the measure of damages for contravention of the Law is not necessarily to be fixed by reference to principles of quantification relevant to common law causes of action, they are nevertheless a guide. Further, the object is to achieve a result that is just and equitable in the particular case. However, such principles do not excuse a claimant from adducing evidence that enables a just and equitable result to be determined. It is also significant that the contract for the sale and purchase of the Property contained an acknowledgement by the Purchasers that they had inspected the Property and accepted it in its then condition. The primary judge was not persuaded that that detracted from a finding of inducement in reliance on the Representations. However, it may be a factor in determining what would have been a just and equitable quantification of the loss and damage that they have suffered as a consequence of buying the Property.

Conclusion

I therefore propose the following orders: 1. Appeal allowed. 2. The orders made by Hammerschlag J on 15 August 2014 against the appellant be set aside, and in lieu thereof: 1. there be judgment for the second defendant; 2. the plaintiffs pay the second defendant's costs of the trial. 1. The respondents pay the appellant's costs of the appeal. 2. If otherwise qualified, the respondents have a certificate under the Suitors' Fund Act 1951 (NSW).

Endnotes

See O'Brien v Smolonogov (1983) 53 ALR 107 at 110-111, quoting Re Ku-ring-gai Co-Operative Building Society (No 12) Ltd (1978) 22 ALR 621 at 624-5 and 648-9.
See Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; 169 CLR 594 at 602-604.
Argy v Blunts & Lane Cove Real Estate Pty Ltd (1990) 26 FCR 112 at 129-130.
Argy v Blunts at 130-1.
Franich v Swannell (1993) 10 WAR 459 at 481-483.
Mid Density Development Pty Ltd v Rockdale Municipal Council (1992) 39 FCR 579 at 585-586. Although that decision was reversed on appeal to the Full Court of the Federal Court ((1993) 44 FCR 290), the Full Court did not consider the phrase "in trade or commerce".
Houghton v Arms [2006] HCA 59; 225 CLR 553 at [35].
See Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004 (Cth); equivalent insertions were also made to the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth).
JLR Davis, Inquiry into the Law of Joint and Several Liability (Commonwealth of Australia, 1994-5).
See generally Commonwealth of Australia, Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Bill 2003 - Explanatory Memorandum at [4.84]ff and [5.346]ff; see also Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; 247 CLR 613 at [10]-[15].
Selig v Wealthsure Pty Ltd [2015] HCA 18.
Selig v Wealthsure at [29].
Selig v Wealthsure at [31].
See Selig v Wealthsure at [35].
ABN AMRO Bank NV v Bathurst Regional Council [2014] FCAFC 65; 224 FCR 1 at [1565], [1568]-[1570].
See Selig v Wealthsure at [36].
See also Hadgelias Holdings and Waight v Seirlis [2014] QCA 177 at [20].
Commonwealth v Baume [1905] HCA 11; 2 CLR 405 at 414; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [39].
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1 at 12-13.
Hunt & Hunt Lawyers v Mitchell Morgan Nominees at [19].
Hadgelias Holdings and Waight v Seirlis at [21].
Hadgelias Holdings and Waight v Seirlis at [24].
Tomasetti v Brailey [2012] NSWCA 399.
Tomasetti v Brailey at [152].
Tomasetti v Brailey at [154].
Commonwealth House of Representatives, Parliamentary Debates (Hansard), 4 December 2003 at 23761-23764.
Hunt & Hunt Lawyers v Mitchell Morgan Nominees at [16].
JLR Davis, Proportionate Liability: Proposals to Achieve National Uniformity (report commissioned by the National Justice CEOs Group [which consists of the Chief Executive Officers of Attorney-General's and Justice Departments from all nine Australian jurisdictions], 2008) at 4.3.2.
Ibid at 4.3.3.
See, eg, Partnership Act 1892 (NSW), ss 5-6.
Inquiry into the Law of Joint and Several Liability: Report of Stage Two (January 1995) at 41.
Selig v Wealthsure at [21].
Hunt & Hunt Lawyers v Mitchell Morgan Nominees at [10].
See, eg, Sanderson Motors Pty Ltd v Lindsay Bennelong Developments Pty Ltd [2014] NSWSC 846 at [36]-[42].
See, eg, Robinson v Harman (1848) 1 Ex 850 at 855; 154 ER 363 at 365.
Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; 181 CLR 96 at 106-7.
Henville v Walker [2001] HCA 52; 206 CLR 459 at [18].
Henville v Walker at [130]-[131].
[2014] NSWSC 1070 at [355].

Amendments 30 September 2015 - Remove numbering after quotation in [79] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 September 2015

Suitors' Fund Act 1951(NSW)

Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004(Cth)

Home Building Act 1999(NSW)

Trade Practices Act 1974(Cth)

See Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004(Cth)

an Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; 181 CLR 96 Re Ku-ring-gai Co-Operative Building Society (No 12) Ltd (1978) 22 ALR 621 Robinson v Harman (1848) 1 Ex 850 at 855; 154 ER 363 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 Sanderson Motors Pty Ltd v Lindsay Bennelong Developments Pty Ltd [2014] NSWSC 846 Selig v Wealthsure Pty Ltd [2015] HCA 18 Tomasetti v Brailey [2012] NSWCA 399 Texts Cited: Commonwealth House of Representatives, Parliamentary Debates (Hansard), 4 December 2003 Commonwealth of Australia, Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Bill 2003 - Explanatory Memorandum Commonwealth of Australia, Draft Model Provisions to Implement the Recommendations of the Inquiry into the Law of Joint and Several Liability (July 1996) JLR Davis, Inquiry into the Law of Joint and Several Liability (Commonwealth of Australia, 1994-5) JLR Davis, Proportionate Liability: Proposals to Achieve National Uniformity (National Justice CEOs Group, 2008) Category: Principal judgment Parties: Patrick Francis Williams (Appellant) Bruno Pisano (First Respondent) Sia Pisano (Second Respondent) Georgia Dandris (Third Respondent) Representation: Counsel: Dr C Birch SC with Ms Y Frost (Appellant) Mr D Weinberger with Mr A Barnett (Respondents)

Solicitors: Alexanders Lawyers (Appellant) Gadens Lawyers (Respondents) File Number(s): 2014/256526 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Equity Division Citation: Bruno Pisano v Georgia Dandris [2014] NSWSC 1070 Date of Decision: 08 August 2014 Before: Hammerschlag J File Number(s): 2012/283119

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