wou { wwe. Meee ee ee 4 rer - 4 _ oe ee . agar. . es 2 BAT tte ee Oe CATCHWORDS Trade Practices - Consumer Protection - Misleading and Deceptive Conduct - Lease of Shop in Shopping Centre - Whether False and Misleading Representations Made by Agent for Lessor. ee ee et ll te ate te win Monten atau es Trade Practices Act 1974 - ss. 52, 53, 53A, 82 ROSETTA ARISTOTITE v. GLADSTONE PARK SHOPPING CENTRE PTY. LTD. AND ORS. No. VG166 of 1980 Jenkinson J. - Melbourne 14 May 1984 EY ba Sat aaa eles Maat itis Mea tn tab ae Rae inal adel tate reenable EL ee ee +068 ED goer Ute TTR TTT aT mn nN a ET ee ne yee oo Deer an ey career oe eee ree eie = cen oat ao 2 ' - 4% - ' - we vttu we fe ok nr et et eet A he we ee Re wee el rm ek ae eee See 8 ot De tee Seo ot ha. ae ee ed kn Ter li Lda ei on, ee te le IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION CORAM: PLACE: DATE: ere mene ere Jenkinson Jd. Melbourne 14 May, 1984 BETWEEN: ) ) No. VG 166 of 1980 ) ROSKTTA ARISTOTITE AND: AND: AND: Applicant GLADSTONE PARK SHOPPING CENTRE PTY. LTD., HERSFIELD DEVELOPMENTS CORPORATION PTY. LTD. and GRORGE HERSCU Respondents GLADSTONE PARK SHOPPING CENTRE PTY. LTD. Cross Claimant ROSETTA ARISTOTITE Cross Respondent GLADSTONE PARK SHOPPING CENTRE PTY. LTD. and HERSFILLD DEVELOPMENTS CORPORATION PTY. LTD. Cross Third Party ' Claimants ROSS WILLS and ROSS WILLS & ASSOCIATES PTY. LTD. Cross Third Party Respondents ak wees mee ee ator. owe ate tar ee at Dee a . -- sae eee - ee re any + 2. REASONS FOR JUDGMENT Trial of a proceeding for damages, pursuant to sections 52, 53A and 82 of the Trade Practices Act 1974, and for declarations that certain leases are void: of a cross-ciaim for monies alleged to be due by the applicant under one of the leases and for damages for breach of the agreement for that lease; and of a cross-claim against third parties for indemnity or contribution in respect of the applicant's claim. The applicant, Rosetta Aristotite, was born in Ttaly in 1932 and came to Austraiia with her family in 1953. She married a man named Joseph Tanucci in 1958. A daughter was born in 1959 and a son in 1963. Her husband preferred to live in Italy and she compiied with his wish. They lived from about 1968 untii 1975 in Sicily, where she conducted a hairdressing business. Then she returned to Meibourne and bought a "pizza pariour" at 608 Main Street Mordiaiioc for $15,000,- paying the $8,000 she had gained by the sale of her hairdressing business and borrowing the balance from a bank. She conducted that business until it was sold in January 1979 for $18,000. Her husband was her partner in the business for the first two years, but they separated and their partnership was dissoived. She discharged her liabilities to the bank and to her husband. She worked long hours seven days a week, closing as late as three o'clock in the morning during the summer. An incident in the pizza parlour made her fearful of working there at night and she sought a business of shorter trading hours. She had developed in Italy an allergic reaction to substances used in 's we TES MEOR cemmnquegroenne very reece Lares amen matty yaar memes eS ys eee nee me aR ge en ne nee tee ee ee a wee Be ee Le ae ee ee meet nel er ee ohn Sade ae TRE art meee test mere meee men yor ae te et ne ee re ne nr er rt or ee veere a? hairdressing. On 23 October 1978 she signed an application for tenancy of a shop in a shopping centre then being constructed by the second respondent and known as the Gladstone Park Shopping Centre. In December 1978 she executed a deed dated 21 December 1978 by which agreement was made for a lease by the first respondent to her of another shop in the shopping centre, which she had decided that she preferred, for a term of nine years from a date to be ascertained in accordance with provisions of the deed. Trading in the shopping centre commenced on 11 September 1979. From that date until about 19 January 1980 she carried on in her shop a business described in the deed as "Take-Away Hot Foods and Take-Away Coffee and Sandwiches (Inc. Soft Drinks)". Then she abandoned occupation of the shop, having deciared, by a ietter from her solicitors to the secretary of the second respondent, her decision to "rescind the lease" on the ground that her execution of the deed had been induced by fraudulent misrepresentation on the part_ of that respondent's agent, the first cross-respondent to the claims for indemnity or contribution. In this proceeding, which was instituted by an application filed on 13 December 1980, fraud is not pleaded. The third respondent George Herscu is alleged to have been knowingly a party to certain conduct alleged to have been done in contravention of ss. 52(1) and 53A of the Trade Practices Act 1974. He was at material times a director of each of the other respondents. - ote ' tes ' ' yt Cr ne een ey Ore ne ee ee Dike cea ee Ma reall Rt Oo tee ora et ne Pa ee ee eee ee ee ee a ee --- - oF ~ ee -- ~ fauae , } ¢ By a deed dated 1 August 1979 the applicant agreed to take from the first respondent a lease of a store in the centre. That was done in order that the applicant might comply with legai requirements relating to storage space for a business of the kind she proposed to undertake. The cross-respondent Edwin Ross Willis, who is now 70 years oid, was engaged in March 1978 by the two corporate respondents to act as "a leasing agent" in respect of the Gladstone Park Shopping Centre. The cross-respondent Ross Wills & Associates Pty. Ltd., of which Mr. Wilis was managing director, was appointed the leasing agent of the centre on 1 January 1979. It was to Mr. Wills that the applicant submitted her application for tenancy on 23 October 1978, in his office at 520 Coiiins Street Meibourne; and it was the conduct which she aileged to have been done by him that day while she and her daughter Rita Leone were in his office that constituted the principal ground of her proceeding against the corporate respondents. It was common ground that the application for tenancy was signed and submitted to Mr. Wtiils in his office on 23 October 1978, and that the applicant's decision to rent a shop in the centre had been taken after discussion between her and Mr. Wills as to whether other shops in the centre would sell food prepareé for immediate consumption away from that shop. But the appiicant's principal alilegations of misleading conduct by Mr. ST eran egrets Ie weet omer ee a mre emma ee pene ee anes tee sot mee a---- - yar hat re ee ere ee Ie te ee a ae tA NI ee Male me Ce UN ee ee ne Perrone rary et, a eat ya steal, 5. Wills om 23 October 1978 - that he toid her that only one shop remained available for leasing and that the shop offered to her wouid be the only "take-away food shop" in the centre, except for two coffee lounges - were denied by Mr. Willis. And the version each of them gave of the circumstances which preceded their meeting on that day is quite contradictory of the other. The site of the centre is bounded on the south by Gladstone Park Drive, on the west by Mickleham Road and on the east by South Circular Road. Before the development which was undertaken in 1978 and 1979 by the second respondent a Safeway Store stood near the northern boundary of the site. Immediately south of that Store was a single-storey buiiding, the western wall of which was in aiignment with the western wail of the Store. That buiiding was divided into shops. Fronting Mickleham Road was an "hotel-motei", and at the south-east corner of the site were a nursery (of plants, as I infer) and a service station. The deveiopment undertaken by the second respondent was the construction of a square of shops, of which the western side was the existing row of shops, and within which two blocks of shops were erected. The northern side of the sguare adyoined the southern wail of the Safeway Store. Between the southern and western sides of the square was a wide public entrance to the interior of the squere, as there was also between the eastern and southern sides and between the northern and eastern sides and between the northern end of the western side of the square and the southern boundary of the Safeway Store. Within the square were ot ne error ge on in ns eee Pneeae an Freee mamenirmene SS Sn Tee ee tte ee ee en -- ro. te oe ' ' - a . 'er athe oe ew rte ee roe ee Be et Ue te seats Rares ae ai ne le tne ten Sane we ene ee ee OR atin Sanh de tet wits 2 + constructed two blocks of shops separated by a passage runnina north and south. The rows of shops forming the perimeter of the square were separated from the central blocks by passages on all four sides of the square. The whole of the square complex was roofed. The shops in the perimeter rows of the square could be adapted to permit access by the public from inside and outside the square. The entrances to the interior of the square were closed at about sunset, without denying public access to those of the perimeter shops which were adapted to afford public access from outside the square. The centre was surrounded on ali sides except the north by space for the parking of motor vehicies on the site. A pubiic bus route ran along Gladstone Park Drive. Although hope was at one time entertained that the new centre would open in or about February 1979, it seems to have been tacitly accepted by the parties that inspection of the site in September or October 1978 would have afforded a person who was contempiating a tenancy of a new shop in the centre, but who was without any knowledge of buiiding construction, littie information as to what the new part of the centre would look like. The applicant's evidence was that her first communication with Mr. Wills was by her telephoning him in consequence of her having seen his name and telephone number in a newspaper advertisement; that an appointment was then made for a meeting ir his Collins Street office on 23 October 1978; and that her second communication with him was at that appointed meeting, when she SRR Ste ae at em ne re cen creer mere tere nen tre Se ee et ee ee ee ae ee yee ' BY we ae ee ent ne ee ani ete IN AA cere Are ane er ee RS er Cees RAT ee a i ee te ST Te STE ETN, NS TOE ont etre re ne ne ee ee ee ree eet re sm ee applied for the tenancy of shop no. 49 at the Gladstone Park Shopping Centre. Her evidence was that she knew nothing of that centre untii she was told about it by Mr. Wiljs at that meeting. She swore that he showed her a brochure advertising the development of the centre and suggested that she should take a tenancy of the shop numbered 49 on a pian in the brochure because it was the oniy shop ieft. She having indicated to Mr. Wiils that she wished to conduct what he and she called a "take-away" or a "take-away food shop", he represented to her, according to her evidence, that there would be in the centre only two other shops of that description, both of them coffee lounges. Mr. Wills made other statements during their meeting in his office, she swore, which might be thought iikely to induce a person in her position to take the tenancy she said was offered, and which it was alleged were misieading. But the conduct of the trial was such, and the circumstances disclosed by the evidence were such, as to concentrate attention on the representations that the shop offered was the only shop still available and that only two other shops in the centre would be "take-away shops". It was common ground that at the meeting on 23 October 1978 the only other person present was the applicant's daughter, Mrs. Rita Leone, and that it was by her cheque delivered at the meeting that payment was made of $628.34, a sum equal to a month's rent of shop No. 49, which was required as a deposit payable on application for a tenancy. The applicant swore that she had not brought her cheaue hook with her to the meeting. Mrs. Leone's ook . Ree en me Aree meters ete be i Nettle ee ee ee Keer mee Nh tel ee ta Se ae a ry UP lan et Ly A aees ye ORI Oe PT RE eng eS eye oe eae ene re 8 ee re ee cm eee 8. evidence was substantially to the same effect as her mother's evidence of what was said at the meeting. Mr. Wiils' evidence was that the applicant telephoned him in September, 1978 at his office, identified herself, and said that she was thinking of leasing a shop in the Giadstone Park Shopping Centre for use as a take-away food shop. In response to her enquiries Mr. Wills told her, as he swore, the iocation of the centre, something of the rents, and that there would be some "take-aways", and other shops selling "take-away food lines". Severai days iater the applicant telephoned again, according to Mr. Wiils' evidence, and asked whether, if she rented a shop as a take-away food shop, there would be any other take-away food shops in the centre. His response was, as he swore, that there would be "similar shops carrying take-away lines", and that in a food market competition was required. That was the end of that conversation, according to Mr. Wills' evidence. The applicant came without appointment to his office late in September, Mr. Wilis testified, and was shown a large pian of the Gliadstone Park Shopping Centre, on which the shops in respect of which application for tenancy had been made were coloured red, over which colouring the amount of the rent and the type of business proposed were written in pencil. At that time it was intended by the respondents that shops in which food was to be soid should be confined to the eastern perimeter row of shops and three shops at the eastern end of the northern perimeter row and the eastern of the two biocks of shops within the square. That would he a total : ; Te 7 : wet Selita tees ama swe a ee oe ee we modes ae ee ee a ed dah ene ts Ue Le oe ee ened ee tee 8 ere Sart ee rr foes ye et STREET oo Mem npame yeni meme ta ae eg ee ee ee ee een ee ee orate pe 9. of ten perimeter row shops and seventeen shops in the block within the square. There were, however, at that time several food shops in the existing row which would form the western perimeter row; and elsewhere in the centre the stated intention was not in fact wholly effected. According to Mr. Wills' evidence the significance of the colouring on the plan was expiained to the applicant and she was given to understand which of the several shops not then the subject of an application for tenancy might be used for seliing food. According to Mr. Willis' evidence the applicant again suggested that, if she took a tenancy of 1 shop as a "take-away", no further "take-away food shops" would be let. Mr. Willis swore that he contradicted the suggestion, pointing out that the centre was to be a "food market", that the fish shop would be a "take-away", as would two coffee shops, and that a milk bar "also handied take-away lines". A shop for use as a fish shop and another for use as a milk bar had each been the subject of an application in writing for tenancy dated respectively 21/9/78 and 22/9/78. In August 1978 written applications for tenancies of two shops, each shop for use as a coffee lounge, had been submitted. If Mr. Wilis observed, in relation those appiications, the practice of plan marking which he swore that he foilowed, each of those four shops on the plan which, according to his evidence, the appiicant was shown would have been coioured in red and endorsed with words designating the type of business proposed to be carried on. The plan had been discarded, according to Mr. Wilis' evidence, during 1979 and was not produced. Apart from the existing shops in the western perimeter row, more than ten but no . 8 . . 5 ~ ' rm 24 eR we Rk oe 8 te ne re ee, ee Stayer sete Ne IE PN eel en aM Re ld med Sean inet i Van nn me 10. more than twenty of the 58 shops constituting the centre wouid have been coloured red on the plan in iate September 1978, it might be inferred from Mr. Wills' evidence and from documents in evidence. Of the 58 shops about 27 were intended to be let as food shops, in addition to the existing food shops in the western perimeter row. On a second occasion the applicant came without appointment to Mr. Wills' office, according to his evidence. On that occasion she expressed an interest in the shop numbered 49, which was immediately to the west of the shop (numbered 50) which' formed the south-east corner of the eastern of the two blocks of shops within the square, which I will cail "the eastern interior block". Mr. Wills swore that he pointed out to the applicant that an enguiry had been made of him concerning shop No. 50 "as a take-away". The applicant made, according to Mr. Willis' evidence, an appointment by telephone for the meeting on 23 October 1978 and ar that meeting she announced her intention to take shop No. 49. Mr. Wilis swore that he said nothing on that occasion to induce the applicant to apply for a tenancy of shop No. 49. It was common ground that by letter dated 25 October 1978 signed by Mr. Wills on behalf of the second-named respondent the appiicant was notified that her application for the tenancy of Shop No. 49 was "approved by the Lessor company". In that letter, Sr en en rnin Tn prem IM oe Te TTR or peneen Meera te eee nee og Oe ~ * - tee . ' ' oh oo4n ' t le tee eae ae ee te ee a ee ete Ble cle BNO et Cte eee het a Re Pelee eke ot eee rete what obit ae STIR gm remem mete seem ere en serene et ree et ee ee = omen no- ween ee ll. among a iist of what are called the "main iease details", the following appears: "Business: Take-Away (hot foods, inci. soft drinks, sandwiches) Franchise: No soie trading rights or franchise is given for the Centre." The letter also notified the applicant that "Lease documents" would be soon sent direct to her solicitor, Michael Richmond, whose identity she had disclosed to Mr. Wills on 23 October 1978. It was common ground that in November 1978 the applicant asked Mr. Willis to change her tenancy from shop No. 42 to shop No. 47, which formed the south-western corner of the eastern interior block. That change was agreed and the formal agreement for lease executed by the applicant in December 1978 related to shop No. 47. The agreement incorporated the provisions of the lease for which agreement was made. Among those provisions was the followina: "8.01. The Lessee shall use the demised premises soleiy for the purpose of conducting therein the business specified in Part V of the Schedule hereto under the name or names (if any) specified in such Part and shali not without the previous written consent of the Lessor use or permit to be used the demised premises for any other business or any other purpose or activity or change such name or names; ail questions arising as to whether the Lessee is conducting the business or businesses so specified or as to whether the type or nature of goods being soid in the demised premises are usuaily sold in the course of conducting that type of business shall be referred to the Lessor or its managing agents whose decision shali be final and binding on the parties hereto and unless otherwise Rete wy rns Ba wer te Ra a Mee ea ad ents ne en Abert Nene ee al re = LN tees 12. expressly provided herein the Lessor reserves the right to grant any other iease or leases for the same purpose or purposes." What is called "Part V of the Schedule hereto" contained the following words: "(Permitted User - Nature of Business - Trade Name) Take-Away Hot Foods and Take-Away Coffee and Sandwiches (Inc. Soft Drinks)" There was no provision in the agreement which might constitute the exception contemplated by the words in clause 8.01, "unless otherwise expressly provided herein". If Mr. Wills represented to the applicant that the shop offered to her would be the only "take-away food shop" in the centre, except for two coffee iounges, the representation did not entirely accord with the agreement. for lease, clause 8.01 of which expressly reserved to the iessor the right "to grant any other lease or ieases for the same purpose or purposes" as those specified in Part V of the Schedule to the agreement. Mr. Wilis could have expected, on 23 October 1978, that an agreement in those terms would, and that a letter in the terms of the letter dated 25 October 1983 might, be submitted by the applicant to her solicitor for the solicitor's consideration. The appiicant swore that on 23 October 1978 Mr. Wiils Ope rr ney eer iermipens In emma ee me eee ee re ee en ee 2 ee ee ene - \ -- Eo or ere a dee ee te Be he tend ecb de OA ne Ta Eloy ed emer an eee ne ee ee eC eet tO ee 13. toid her that shop No. 47 was to be used for the selling of pizzas. She explained in evidence that she did not think of such a shop as a "take~away", because, as she put it, "pizza's are night food, not during the day. Most people get a pizza at night time". Her shop would not be open at night, and so would not suffer much competition from a shop selling pizzas. But when explaining in evidence how she came to seek a change of her tenancy from shop No. 49 to shop No. 47 the applicant said that, when she heard that shop No. 47 would not be used as a pizza shop and might be available to her, "I was glad because more Opportunity to make money, one iess food shop in the shopping centre". Later, under cross~examination, the applicant gave the following evidence: "Did you mean to say to His Honour that you were giad because it meant one less food shop in the centre that might take away your business?---That might take away in particular food, spaghetti and raviolis and lasagna, whatever. Pizza shops ordinarily do sell as well as pizzas, spaghetti and lasagna which they hear in big ovens?---I beg your pardon? Pizza shops as weli as selling pizzas very often sell spaghetti and iasagna in iittie containers, right?~--Yes. You were proposing " to seil lLasaana and spaghetti?~--Everything in the sense the total during the week was better. You were proposing to seli speghetti and lasagna?---Yes. You knew the pizza shop might do the same, as well as selling pizzas they might seil something you soid, that is why you were giad it was going?~--The same thing I OE pe Tonia eens erie one ee mre renee ne ee ee ee nee ee ee a > \ - tet Bee me Uden Samara tate nee nee lel eet vee ee fa Chae Lath, test ak eRe Canad ol Aosk. a COT RIE ner an mememen gee ene eon eminem nny meses ermamies onan ae mamas eee cnmnas we es ee en ee awcruwmame or = moteur pamper sa 14. say again as spaghetti and lasagna. You said in that answer: I was giad because more opportunity . . * © «© « « « « One less food shop in the shopping centre. Is that right?~~-But I thought spaghetti and lasagna again. Is it not a iittie suprising you did not say, I was annoyed when I heard there had been a pizza shop at ail because I was to be the oniy take-away?---The take-away, the pizza shop is different, is it not?" I would hesitate to disbelieve the applicant's evidence that she did not think of a pizza shop as a "take-away", because the evidence of Mr. Wilis indicated that the expression was of uncertain meaning, understood in different senses by those who have occasion to use it. But if on 23 October 1978 Mr. Willis hada named to the applicant the shops which would be "take-away shops", I would have expected that he would have regarded a shop seliing pizzas for consumption elsewhere as a "take-away shop". The evidence did not suggest any ground for thinking that Mr. Wills had a substantial motive for falsely claiming that only shop No. 49 remained availiable for a tenant who wished to sell food. The evidence did not justify a conclusion that he or his principais were so concerned to secure tenants quickly that so palpable a falsehood should be told. Mr. Wiils did not seem to me aman to teil such a lie to such a woman as the applicant. When she gave evidence she was in an emotionally disturbed condition and had, according to medical evidence, been suffering from such a % ae 2 wee eee inte ten tne ee ee ew es ee a ene ek eee et ne Ae Melee Len 15. condition for several years. But she gave me the impression of an intelligent woman experienced in managing her own business affairs. Mr. Willis gave the impression of a shrewd, calm man, unlikely to tell a gross iie unless the need were great. The applicant gave evidence that "word got around" that shop No. 47 was not to be a pizza shop and might be available. She swore that she did not remember who had told her that. She swore that she first went to Giadstone Park in about June or July 1979. For severai months before then she had been in Italy. She explained that Mr. Wiils had toiad her on 23 October 1°78 that "there was just the land" at the site of the proposed shoppinc centre, and so she had not at that time gone to look at the site. She had been toid, as she swore, that the shopping centre would open in about February 1979. Later she iearnt that the cpenitna wouid be much jiater. Io find it difficuit to accept the applicant's evidence that she first went to Gladstone Park in the middle of 1979. Even if she had thought, until she left tor Italy on 11 March 1979, that there was nothing worth seeing of the new shopping centre itself, the surrounding area couid not have failed to be of interest to her, I would have thought. Her account us that, having known nothing of Gladstone Park until 23 October 1978, and having been persuaded by Mr. Willis in less than an hour on that day that in Gladstone Park there was a business opportunity she should seize immediately, she did not go to that place at ali between 23 October 1978 and 11 March 1979, when she left for Italy. His account, on the other hand, is of a ner tine ort see erin een een ag ee eT re me ne ene ne mee ee eet ee Seen oe ee r ' > een ab owe eee 16. consideration by the appiicant for several weeks of the proposal that she should take a shop at Gladstone Park. The centre opened for trading on 11 September 1979. A ietter dated 11 October 1979 from the applicant's solicitors to the respondents' solicitor included the following statements: met te ere ne PRs Pee Deak re ie ead ee ee ee oe Sarr ONT te wn eevh a te « "Our client was informed that the only take-away food shops that would operate in the centre would be two coffee lounges, a chicken shop two doors away and her own shop. She was not told that the chicken shop would be permitted to sell coff2e, sandwiches, hot dogs, chips and soup. She now faces competition from not only the two coffee lounges and the chicken shop but also from a Chinese restaurant, ptzza pariour, sandwich bar, fish and chip shop, delicatessen, miik bar and Safeways, ali of which seli some foods similar to the ones solid by our client." A letter dated 24 October 1979 in reply included the foliowing: "I refer to your letter of the llth inst. and advise that I have been instructed by my client to make the following comments:- From the interviews that my client had with your client and from the brochure and advertisements in respect of the Centre your ciient was told, and would have also known that the shops in the area of her demised premises comprised a food market. Your client aiso inspected the Plans showing the food premises that had aiready been leased at the time that your client was negotiating a lease. Your client, I am instructed was told that my client does not give exclusive rights to any tenant as to usage." TT mer ee oem eeyerrne arte regen me Dm ne tne ne cen ent Se 2 eee open tt cron = v al een ee enh UM ete lane Ae Aen ont wie ce ee tee ol Bete ne Perens 17. The aliegations thus made on the applicant's behaif accord with the testimony she and her daughter gave at trial. So, too, the response on behalf of the respondents accords with Mr. Wilis' testimony. It will be observed that the references in the letter on the respondents' behalf to ""interviews" and to "the Plans showing the food premises that had aiready been leased" suggest that, if Mr. Wills gave an untruthful account in evidence of his dealangs with the applicant, he had elaborated faise detaiis of that untruthful account as early as October 1979 : he swears, and she denies, that there was not one but several "interviews" before she made application for a tenancy; he swears, but she denies, that she was shown a pian on which approved applications for tenancies were noted. The applicant's evidence was that only the plan printed on the brochure advertising the new centre was shown to her by Mr. Wilis. His evidence was that he aid nothing with the brochure in her presence except hand her a copy when she was about to leave his office on 23 October 1978. The oral evidence occupied a substantial time and disclosed a number of circumstances which might be said to point, but not decisively, to a conclusion in favour of one or other of the two versions of what happened in September and October 1978. I have discussed only a few of those circumstances. The demeanour of none of the three witnesses present in Mr. Wills' office on 23 October 1978 gave assurance of untruthfuiness or of truthfuiness. Mrs. Leone gave me the impression that either she lacked confidence in her memory of events other than the statements of Rene Gr te, Tremp ee rennet emer er I eee ee ee ee ee ee men re ee ene ee tee ee m . " aed cll a teers ee ea - + ee eee ee ee ee ee . ee an a hie i { i8. ? { Mr. Wills on 23 October 1978 which were alleged to have constituted misieading conduct or she preferred to evade : questioning which might elicit contradiction of the case ber ' mother was presenting. I was certainly not persuaded to accord credence to the evidence of the applicant and her daughter, in the face of Mr. Wills' denial, by reference to any insight which Sn ee ot observation of the three of them in the witness box afforded. The circumstances I have discussed tend, as I think, to suggest that it is more probable that his version of events is substantially correct than that their version is correct. Further, Mr. Wilis ee rete oe ee did not seem to me a person likely to embroider a faise account of : the events of 23 October 1978 with an entirely fictional and circumstantial tale of previous communications with the applicant over a period of severai weeks before that date. If false, such a tale might be shown to be false, as I think that Mr. Wilis wouid have perceived, and it was not a tale which so greatly strengthened his case that the risk was worth taking. O£ course he might have failen into the tale, perhaps ain October 1979, without thinking of the risk. After auxious consideration of the whole of the evidence I am not persuaded, upon a baiance of probability, that Mr. Willis suggested to the appiicant either that only one shop remained avairable for ietting as a food shop or that her shop, if she took Ve re ae ee et i co a Mt ee ee it, would be the only take-away food shop except for two coffee te lounges. On the contrary, J think that his version of the events *of 23 October 1978, and his account of the communications which Stee the re ee POE Te, eee rere om cares nen ne ere ee er eee we ee re ee - ~~ yee a es ken wi 8 moe Doe te ce ee pe ee ee ee - ' 1 AF oe a he ene * Faden Se me ee nS, we ne 6. Pratt titers ne vite ot eee ee fare Caen Te Me Ml ge oo ee tte Ba eet daar "ee FE FRAT pamper c9 creer yn een ene einmn enceneenaes 8 ey en Magma mter eee gr ae ee a nen meen - % RY 19. preceded that day, are substantialiy correct. The statements aileged to have been made in contravention ciaim filed 5 August, 1983. Those paragraphs read as follows: In and from the months of September and October, 1978, the First-named and Second-named Respondents inserted various newspaper advertisements in relation to the Centre and, in particuiar, in "The Ace" newspaper, the substance of which was, inter aiia:- (a) Limited vacancies remained at the Centre. (b) The Centre was a sound opportunity for potential lessees. In or about November, 1978, one, Wills, as a servant and/or agent of the First and Second-named Respondents :- (a)- Gave to the Applicant a pamphlet (hereinafter called "the pamphlet") describing verbally and pictoriaily the Centre which was then under construction. (b) Represented and stated to the Applicant:- (i) the Centre was going to be a good shopping centre; (it) plenty of people would come to the Centre because it us modern and has all the facilities; (iii) the Applicant was going to make a fortune if she opened a shop in the Centre; (iv) there were 60 shops in the Centre and there would be 2 coffee . ' we a of ss. 52 and 53A of the Trade Practices Act 1974 are identified in paragraphs 5, 6, 7, 9, 10 and 11 of the amended statement of ee ee es tet ee ere ee Crete i ee aide rn eee oe ek te ae ee te oe (v) (vi) (vii) (viii) (ix) (x) (xi) (xin) (xiii) (xiv) (xv) 20. lounges and one take~away food shop (that of the Applicant); he advised the Applicant to take Shop No. 49. It would have a chicken bar next to it which would oniy be aliowed to seli cooked and raw poultry; a lot of pecpie would be drawn to the Shop Na. 49. Shop No. 49 was in a good position because of the shops next door to it and the fact that there was a toy shop nearby which wourd have children coming in and out of it and there weré also two banks nearby; there was only one shop left in the Centre; ail the shops apart from Shop No. 49 had been taken; Giadstone Park was a new area and did not have enough shops; with the amount of people living in Gladstone Park, the Applicant would do very weil. The variety of shops at the Centre wouid attract customers; buses would bring people from Essendon, Moonee Ponds, Glenroy and Niddrie; there was going to be an extension to the hotel (in the immediate vicinity of the Centre); there were plans to extend the Centre into the nursery area shown on the pamphlet; the outgoings for Shop No. 49 would not be much because the Applicant oniy had a small shop. 7. The contents of the pamphiet included, inter alia, the following words:- DIT ee perenne min ae Se err pee eee * ' ae Rae ee eee eee are mt sa eee ae ate ra gto Rte Pe cees b (a) (b) 21. "Hersfieid Developments Corporation Pty. Ltd. on behaif of Gladstone Park Pty. Ltd. (sic) presents GLADSTONE PARK SHOPPING CENTRE & MARKET PLACE". "Join these leading traders in a new, rapidly expanding shopping complex: * SAFEWAY Now 40,000 sq. ft. - Double the previous size. * BRISTOL Famous for paint and decorator needs. * ALEXANDERS One of Australia's oldest and most successful men's outfitters. * DANDENONG & WESTERN PORT PERMANENT BUILDING SOCIETY A progressive, multi-branched buiriding society. * BANKS including State Bank, Commonweaith Bank and Bank of N.S.W. - pius many other successful, promotionaliy orientated retailers". "60 speciality shops including food and gourmet market place". "The Gliadstone Park Shopping Centre & Gourmet Food Market Place is a spectacular new shopping environment: It combines the best overseas retail concepts with some entirely new iocal designs. These innovative ideas are biended together to present shop keepers and customers aiike with these superbly comfortable and most exciting retatl environment. This stimulating muiti-million dollar shopping compiex offers an outstanding opportunity for traders who seek successful outlets in a booming outer-growth area. The Government Bureau of Statistics shows a NATE Cen a aretee Wenn nesten nate nn te a ae eee wm me ee me " be a hea 22. Namen beet eae pattern of rapid annual growth rate for the Gladstone Park/Tuliamarine/Broad- meadows district since 1971. Planned growth for this area ensures that population increases wiii accelerate well into the next decade. Shopping of every nature will be catered for including an innovative food and gourmet market place." we wee (e) "*Pully air-conditioned *Friendly open-fronted shops *Bustling malls *Full range of one-stop shopping facilities *Centrally enclosed promotions area." (£) "Public transport: Regular bus services, and freeway pius major roads, from Moonee Ponds, Gienroy, Broadmeadows, Essendon, Ree ne eee ans el a Oe Ore A ee ee mee Airport West, Tuilamarine and Sunbury." (g) "Location: Giadstone Park is in the heart of a pattern of growth promoted by the residential and industrial development of Tullamarine and Broadmeadows. Located adjacent to the busy Tullamarine Freeway, Gladstone Park can look to attract customers from Pascoe Vale, Essendon, Gienroy, Sunbury, Broadmeadows, Westmeadows, Campbelii- field and Keilor." (h) "Architects' sketches of Gladstone Park Shopping Centre throughout this brochure give an excellent impression of the exciting complex. Everything has been thought of ... for customer comfort and convenience, shop keepers' efficiency and presentation." (i) "*While the information contained in this brochure has been checked and is believed to be correct, it does not imply to become (sic) part of the contract." (3) "Parking provision for over 900 cars and easy access for trade vehicles to ensure fast flow." Meat dw Oar Ntdaans Ate ee Enh eae alee Maken sehen Mites Aa ara VEE Newt tiene en FEST 7 metre agnretneg amen warm or Gere Te a me em we a oro ee Re eee eee ee ' » * . . : a ers avy . we. wane eee eeee eee errs a ee ae ae la Re ele be Pee 23. (k) "The designs, by noted architect and town planner, Dr. Ernest Fookes, allow for anticipated traffie growth in the future, whilst blending admirably with existing developments." (1) "... this exciting new retatl complex." 9. Further, in a telephone conversation, the said Wills represented and stated to the Appiicant after she had informed him that she had heard that the Shop was then empty:- (a) The Shop was in a very good position. (b) The Applicant would have people coming down two corridors of the Mali past the Shop and that would attract more customers. 10. In approximately July or August, 1979, a servant or agent of the First-named or the Second-named Respondent represented and stated to the Applicant that the Centre was going to be a very good centre. 11. Further, in or about late August, 1979, cone, Turner, represented and stated to the Applicant:- (a) the applicant would make good money (at the Centre); (b) a lot of people would be attracted to the Centre; (c) the Centre would open cn the 11th September, 1979; (da) the Centre would be fully operational from that day." I am persuaded neither that any such an advertisement as is specified in paragraph 5 of the amended statement of claim was published nor that, if it were, the applicant was influenced by any misleading statement in it to take any lease. The only newspaper advertisement tendered in evidence does not in terms Sorgen ymin eeraerpre remem Oro meen eames eee eee ne mn ee eee nee cn ee es tur nade. We ren mewete wade err ehis MM Tene Matinee te eens ae te ee Magee Oh Wed aarrtaeet oe Oe alee et eee a ee ee ee ey wee meee te ee ee ee ee te wets 24. refer to Giadstone Park. I am not persuaded that that particular advertisement was published before 23 October 1978. There is no reason to doubt the applicant's evidence that an advertisement in "The Age" newspaper induced her to telephone Mr. Wills. But what the exact terms of the advertisement were I do not know. I am not persuaded that a representation to the effect specified in paragraph 6(b)(1i1), (iv), (v), (vi), (vit), (viii), (ix), (xiti), (xiv) or (sv) was made to the applicant. Zach representation specified in paragraphs 6(b)(i), (i1), (xi) and (xii) is a statement of belief concerning the future. If Mr. Willis made those representations of his belief, I am not persuaded that he did not hold any of the beliefs represented, nor that he lacked knowledge of facts which justified his belief as reasonable. (See Haisbury (4th ed.) vol. 31 para. 1012 note 2.) The representation specified in paragraph 6(b)(x) was not shown to have been faise or misleading. The pamphlet to which paragraphs 6(a) and 7 refer is the brochure to which I have previousiy referred. It was submitted that the words set out in paragraph 7(b) constituted a representation that the named traders had bound themseives contractually to conduct businesses in the Gladstone Park Shopping Centre. Even if that were so, as to which I express no opinion, I am not persuaded that the applicant understood those words as amounting to any such an assertion. I am not persuaded that any particular words printed on the brochure influenced the applicant swe , - 7% " ' ee Ve et ee eat mates aan ees weet yo Pane th neti bee" 25. to take a lease. No doubt the impression which the brochure created in the applicant's mind was that the shopping centre would be an attractive and commercially thriving place in which successful and established traders would have shops. But I am not persuaded that such perusai of the brochure as the applicant undertook induced in her mind any more specific a belief or any more specific a recognition of what was represented in the brochure pictoriaily or verbally. There was evidence that the centre was not always a commercially thriving place. Considered as a representation of belief and intention that the centre would be a commercialiy thriving place, the brochure was not shown by the evidence to have mis-stated the belief or the intention of George Herscu or of any other person for whose conduct in publishing the brochure the corporate respondents might be responsibie. In so far as the brochure might be taken to assert, by implication, that facts were known, to those whose beiiefs and intentions were being represented, which justified the beliefs as reasonable, the evidence did not show such an assertion to have been false. (See Bisset v. Wilkinson [1927] A.C. 177 and the cases there cited.) Nor was there evidence to justify a concluston that, when it opened for trading, the centre was not an attractive place, or a conciusion that established and successful traders did not have shops there. Paragraph 9 of the amended statement of claim refers to a conversation in November 1978 concerning shop No. 47. I am not persuaded that any representation to the effect alleged therein 2G wy teu. 7 26. was in fact made. The evidence in support of paragraph 10 was that Mr. Wills spoke to the applicant by telephone in or about July 1979 and on that occasion said that "the shop is going to he very good". I am not persuaded that Wilis did at that time say anything to that effect. In any event, statements made at that time were not shown to have induced the applicant tc take, or to abstain from taking, any action whereby she was caused loss or damage. She had before that time committed herself to conducting the business which commenced when the centre opened on Ill September 1979. The same observation is true of the statements, attributed to Turner, described by the applicant in evidence as the manager of the centre, in paragraph 11 of the amended statement of claim. My conciusion is that there must be judgment for the respondents on the claim. The first respondent cross-ciaims against the app]icant for rent and other amounts alleged to be due under the provisions of the deed dated 21 December 1978, and for damages. The deed provides (clause 5.01) that the "annual rental" of $8060 shail A anal Ye ar ea ne eee Me commence on a date which in the event proved to be 11 September 1978 and shail be "payable .... by equal calendar monthiy instalments in advance the first such instalment shall be paid on < Wem Phe et ee or before the commencement date (adjusted pro rata if necessary) US ere BR Nm Sm mem gee wren mare meme mR mem ue em ne yee me remem oo eee wa cmemare me nee « AY ~ , - eat eG ~ ons eae eae ot 8 27. and the following payments on the first day of each and every month thereafter; such rentai shall be deemed to accrue from day to day". The monthly rent being agreed at $671.67, rent deemed to have accrued at the date on which the applicant abandoned a ee eee ete ee a ee ee ed I RN Cd A Re eh ee tenet a Ne om ene ee a oe possession may be calculated thus: 1979 September 2/3 of $671.67 447.78 October 671.67 November 671.67 December 671.67 1980 January 2/3 of $671.67 447.78 2,910.57 Less payments : 23.10.1978 $628.34 27.11.1978 $ 43.33 $671.67 671.67 The cross-claim is pleaded thus: "ay, There were covenants and conditions of the Lease referred to in paragraph 3 of the Statement of Claim in this Application, inter alia (a) that the term of the lease was for nine years; (b) that the Cross—-Respondent would pay the annual rental of $8,060.00 payable by equal calendar monthly instalments in advance on the first day of each month at the rate of $671.67 per month; (c) that the Cross-Respondent would properiy during the term of the lease pay (or if necessary reimburse to the Se Mteyge Wenn | meng seenrnen ging ee on Roe ee - ee nee ten ee es eae % a a wee seer neo SAE ene net Uae RD tine Lee canteen fetes te eat mt a ee ee The (d) 28. Cross-Claimant) a proportion of the outgoings of the Centre as defined and calculated in the lease; that the Cross-Respondent would pay to the Cross-Claimant interest at the rate of 15% per annum on any rentais or other monies payabie by the Cross~-Respondent under the Lease and remaining unpaid (whether demanded or not) for seven days, such interest to be computed from the date on which the monies became due and payable until the date of payment. 2. Wrongfully and in breach of the covenants and conditions referred to in paragraph 1 hereof, the Cross-Respondent has (a) (b) failed to pay to the Cross-Claimant the rent reserved -by the lease, her proportion of the outgoings and interest thercon; vacated possession of the shop and of store no. 1 by reason whereof the Cross-Ciaimant has suffered loss and damage. PARTICULARS Particulars are attached hereto. AND THE CROSS-CLAIMANT CLAIMS AGAINST THE CROSS-RESPONDENT: A. $18,939.54. B. Interest pursuant to the Lease. Cc. Damages. D. Costs." attached particulars show calcuiations which aggregate a monthiy amount of $671.67 for rent from September 1979 untii March Ere yr 2 1981, for in which month the cross-ciaim was filed, a monthly amount "outgoings" until the same month and a monthly amount for cere tn ee tener - os omrer 29. interest at 15 per centum per annum on the progressive aggregate ees Pee no Se Sane ree of rent and outgoings. There is also inciuded an amount of $2882.00, brought into account in November 1979, in respect of "invoice No. 41". The aggregate specified in those particulars is $18,939.54. No evidence was adduced to support the claim for $2,882. The letter, to the secretary of the second respondent, hy which the applicant's solicitors deciared her intention to vacate shop No. 47 on 19 January 1980, was dated 20 December 1979 and was in these terms: "Shop 47 Gladstone Park Shopping Centre We wish to advise that we act on behaif of Mrs. Aristotite the owner of shop 47 at the abovenamed shopping centre. We have been instructed by our client that in or about November, 1978 she entered into a lease agreement with your company. At that time she was informed by representatives of your company that inter alia there would be two Coffee Lounges and one take-away food shop and she would be the take~away food shop. As a result of these representations she was indvced to enter into the lease agreement with your company. We have further been instructed by our client that in fact there are two Coffee Lounges, two take-away food shops, one take-away chicken bar, one fish and chips take-away food shop, one take-away pizza and spaghetti bar, and one Chinese restaurant and take~away food shop. The said representations were untrue and were known by the company to be untrue at the time they were made or alternatively were made recklessiy and without care as to their truth. PERE thet A ae ale calle Se ae Ta cata teem as aes neta etl daira nti Ete Mee reals Re rt le tee ne ante ed a Ate Ge oe carn Bae TTS TREE ener meen ence eran, Tome pereeanarens cagccrmaneerans aos maa entearae geeceetemsnanes Socom anes mace mae en come i. .." oo} i Cri ay ee le atte Amt ete neon ae tlie tt ferns ahemite 8 Ae on Anteater a Alte eel eerie ee teen Re Tnaietieerd en LANL ae laeteetermatan sank beets ten ad meh na tebe Se ee ' 30. Accordingly, this letter is to serve as notice on behalf of our ciient of her intention to rescind the lease as a result of the representations as aforesaid. We further advise that our client shall be instituting proceedings for damages and we shail advise you of particulars thereof in due course. She will vacate the premises on the 19th January, 1980 and hand the keys to the centre Manager." a A notice to quit was served on the applicant before Christmas 1979. It was in these terms: "TO: ROSETTA ARISTOTITE "~ €/= Shop 47 .—™ Giadstone Park Shopping Centre, TULLAMARINE. TAKE NOTICE that you are required by GLADSTONF PARK SHOPPING CENTRE PTY. LTD. of 520 Coliins Street, Melbourne in the State of Victoria the Lessor of the premises being business premises situate at Shop Number 47 Giadstone Park Shopping Centre, Giadstone Park Drive Tuilamarine which are held by you as tenant to quit and deiiver up possession of the said premises at the expiration of one calendar month from the date of service upon you of this Notice AND FURTHER TAKE NOTICE that you are required 1f you have sub-let the said premises or any part of the said premises to notify the said GLADSTONE PARK SHOPPING CENTRE PTY. LTD. in writing within seven days after service upon you of this Notice of the name and address of.each person who is a sub-lessee of the said premises or any part thereof at the date of service of this Notice. DATED this 20th day of December 1979. GLADSTONE PARK SHOPPING CENTRE PTY. LTD. by its Solicitors and Agents (Sgd.) Slonin Velik & Emanuel Pe ee ee Slonin Velik & Emanuel" Bo tt Re me ene ee neon en at af ne cater Fr ETN ae lk ai at ADH ne ate Lal mada NE aa a eT ee ee ee ee ee alah ve Shen "a onttncth >» Fy malik bat? seat Waban 31. On the day she abandoned occupation of the shop the applicant handed the keys of the shop to the manager of the centre. There is no evidence that he or she said anything to the other when he accepted the keys. The deed makes no proviston for a "notice to quit" of the kind which was served on the applicant. The deed includes a conventional provision (clause 14.01) for forfeiture by re-entry upon breach and in other specified circumstances. Service of the notice was ineffective to determine the appiicant's leasehoid interest in the shop. If no more had occurred than I have narrated it may weli be that upon accentance of the keys the term would have been surrendered by operation of law : Gray v- Owen [1910] 1 K.B. 622; Halsbury (4th ed.) vol. 27 paras. 446, 452. But more did happen. By a ietter dated 11 January 1980 to the solicitors who had written on the applicant's behalf to the secretary of the second respondent another firm of solicitors declared the first respondent's attitude in these terms: "Re: Gladstone Park Shopping Centre Pty. Ltd., Mrs. Aristotite Shop 47, Gladstone Park Shopping Centre We act for the above company and refer to your letter of the 20th December, addressed to the Managing Agents, Hersfieid Deveiopments Corporation Pty. Ltd. We are instructed to deny that your client was induced to enter into the relevant lease agreement, on the basis of the alleged representations set out in your ietter. ars ee ee ee ae ce ee re be el ler Satie talent ere AP tle Cente ee Ee See 32. We would in any event, draw your attention to Ciause 15(10) of the relevant lease. Our client is well aware of the difficuities allegedly being encountered by some of the tenants at the centre. As a result of your letter of the 16th November, 1979, to our client, we are instructed that discussions were undertaken wherein 1t was indicated that our client would be prepared to make certain concessions to some of the tenants to assist those tenants and to ultimately benefit the centre as a whole. No response was received from you or your clients' with regard to such a suggestion. We deny that your client has the right to rescind the relevant lease on the basis of the alleged representations which are denied by our ciient. Our client denies that your client has the right to vacate the premises on the 19th January, 1980, as set out in your ietter. Our citent considers your client to be bound by the terms of the Lease and should your ciient wrongfully vacate the premises, then our client will have no aiternative but to issue proceedings for recovery of arrears of rent, together with consequentiai damages arising from her breach of the lease. In particular, our client will look to your citent for the payment of rent, up until the premises are relet. We are instructed to accept service of any proceedings you may care to issue. Yours faithfully, RIGBY & FIELDING" This letter, tendered by counsel for the applicant, was not the subject of any oral evidence. The letter dated 20 December 1979 expresses the applicant's intention to repudiate the agreement for lease and to Gisciaim the leasehold term by vacating the shop and handing the keys to the first respondent's agent on 19 January 1980. No SOR TKN ye meter ne me ee ne re con ame ee ee em ne emer nt ee tees ~): x ed old we eet en i i te a Pe ete eR Et tet oe Ee her Mee eto tea oS oer oe ne woe DYE REREN Ene Rememnene pemee en e p inge mne e mee ee e e ne wee ew tN eke ee eee ee wee ewe le = 33. attempt has at any time been made to justify those acts by reference to service on the applicant of the document entitled "notice to quit". The terms of the letter dated 11 January 1980 do not express unequivocaliy an intention to accept the threatened repudiation and disclaimer, but that is, I think, the purport of the ietter, which draws a distinction between "arrears of rent" and "consequential damages arising from her breach of the tease". The verbiage of the latter phrase is apt to indicate damages "for the lessee's repudiation and abandonment of the whole contract" (per Jackson J. in Hughes v. N.L.S. Pty. Ltd. [1966] W.A.R. 100 at 102), not damages for breach of a particular covenant. Nor does the pennitimate sentence of that letter contradict the inference that an untention to accept the repudiation and disclaimer is being declared, for damages "for breach of the lease" may be so calculated, in such a case as this, as to include an amount equal to- the aggregate of the rent which would, if the term had continued, have accrued from the date as at which damages are to be assessed untii reletting : Marshall v. Mackintosh (1898) 78 L.T. 750. If the premises are relet at the rent which was payable under, and for the term of the repudiated lease, that amount to which the penuitimate sentence of the letter refers may be the full measure of the damages. _ Acceptance of the keys by the Manager of the centre from the applicant, without any statement which the evidence reveals, supports the conclusion that the first respondent accepted the repudiation and disclaimer which in my Opinion was effected by the applicant's abandonment of the shop in accordance with the intention stated in the letter dated 20 ° ry « oh a " . " whoa ee e rope en Re ee ap ne ee wee ee ee - clea of FON nie eae Aeneas Leet snare wet ee ' EA ae ante ne ER ee ce Hee ee ee en Detter Denes MM ed oe dt eet Nie at oe, A a en gt ee te ase eee ae ee eee -- ae ee om oo ' . aie uet eA aad see 34. December 1979. In my opinion breach of the agreement bv the applicant entitling the first respondent to damages for loss of the value of the term to the first respondent occurred when the appiicant vacated the shop. The assessment of that loss is inade by comparing the value of the term and the value of the shop thrown back on the first respondent's hands : Buchanan v. Byrnes (1906) 3 C.L.R. 704; Hughes v. N.L.S. Pty. Ltd. [1966] W.A.R. 100 (CE. N.L.S. Pty. Ltd. v. Hughes (1966) 40 A.L.J.R. 292); Brooking and Chernov : Tenancy Law and Practice -— Victoria, paras. 101, 159. There is no evidence upon which to base such a comparison : no evidence as to whether, or when, the shop was re-let, except that at some unspecified time the space occupied by the shop was inciuded in an area occupied by "Frankiin"; no evidence as to the rent which could have been got for the shop in or after January -1980; no evidence as to whether the shop was offered for lease by the first respondent in or after January 1980. An obviously incorrect answer by the applicant to one of the respondents' interrogatories was tendered, presumably as an admission relevant to the first respondent's cross-claim, but the answer cannot supply the deficiencies of proof to which I have referred. In those circumstances only nominal damages, which I fix at $10, can be awarded. The first respondent ciaimed not oniy rent, but also other amounts for payment of which by the applicant to the first TN errmsg mee ger me ee te ee ete - . ' % * - sk ee ? etme bene ine ot ATE Teed Lee el eS IE Ed Mel Ae ee et a ICL a cn Mil eMart ne ama am eM oe athe NE eR a ee a edt ee en re ee ee ae "® a ae ee _w . see a - - " wantin +e 35. respondent the agreement made provision. The amounts are designated in the agreement ""apportionable outgoings", an expression which is the subject of elaborate definition in clause 4.01 of the agreement. Clause 6.02 of the agreement provides: "6.02 The Lessee shall in respect of the preliminary period each Lease Year and the residual period reimburse and pay to the Lessor the Lessee's proper proportions of the Apportionabie Outgoings. The amount of the Apportionabie Outgoings shall be computed in advance by the Lessor for the preliminary period each Lease Year and for the residual period and as soon as practicable thereafter the Lessor will furnish to the Lessee a statement giving details of the apportionable Outgoings as computed and stating the estimated amounts of the Lessee's proportions thereof. The Lessee shall thereupon become iiabie to pay such amounts by monthly payments in advance on the first days of each caiendar month during the preliminary period each Lease Year and the residual pertod PROVIDED ALWAYS that the Lessor may at any time and from time to tame notify the Lessee in writing that the Lessor requires the amounts of the Lessee's proportions as aforesaid paid quarteriy on the first days of January April July and October instead of monthiy and the Lessee shall compiy with such request. At the end of the preliminary period and at the end of each Lease Year and at the end of the residuai period the amount of Apportionable Outgoings actually expended or accrued or for which the Lessor is primarily liable shall be notified in a statement to the Lessee and any adjustments made necessary by any differences between the Lessor's estimates and the amount shown in such statement shall be adjusted between the Lessor and the Lessee as the case may be PROVIDED FURTHER that in making such computations and estimates as aforesaid the Lessor shali act fairiy and reasinabiy." The only evidence of compliance by the first respondent with the requirements of that clause was a letter dated 24 September 1979 from a "credit officer" of the second respondent to the applicant, in these terms: ee et et ee etna le ne emet 36. re: Shop 47 Gladstone Park Shoppino Centre. A rate of $2.50 per square foot has been struck as an estimate for maintaining the Shopping Compiex from llth September 1979 to the end of the current financial year. The attached Statement takes this into account for the period llth - 30th September, thereafter you will be invoiced monthiy. Shortiy after the end of the current financial year the actual costs of maintaining the Centre will be ascertained and when this has been completed all tenants will be provided with detailed Statements to enabie any adjustments to be finalised." The letter does not in my opinion constitute "a statement giving details of the Apportionabie Outgoings", within the meaning of that expression in clause 6.02. There was no evidence that a statement of the kind specified in the last sentence of clause 6.02 was given to the applicant. In my opinion no amount is due by the applicant to the first respondent in respect of such outgoings, because the event upon the occurrence of which the applicant's liability is conditioned was not proved to have occurred. There was, further, no evidence of what had been "computed in advance" to be the "Apportionable Outgoings", or as to what "the amount of Apportionable Outgoings actually expended or accrued" was, in respect of any period. By clause 7.02 of the agreement the applicant agreed to pay on demand interest on rent remaining unpaid for 7 days, computed from the due date until payment. Mr. Hedigan 0.C., who appeared with Mr. Giick for the respondents, asked judgment for OTE Ditnerpernrenrres SF Temes cme peers we 7: Sr ten Fe eee ee s AY A 37. the unterest until the date of judgment in this proceeding. Demand has been made, by the institution in another court of proceedings for recovery of interest. Accordingly interest wiil be aiiowed as follows: 15% on $447.78 from 1.10.1979 to 14.5.1984 : $ 310.07 $671.67 from 1.11.1979 to 14.5.1984 : $ 456.82 $671.67 from 1.12.1979 to 14.5.1984 : $ 448.54 $447.78 from 1. 1.1980 to 14.5.1984 : $ 293.51 $1,508.94 It 1s desirable that assurance be had, by undertaking or by order of this court, that proceedings pending in other courts for relief of the kind sought on the cross-claim against the applicant will not be continued after judgment on that cross-claim. I will in due course order that there be judgment for the respondents on the applicant's cliaims; that the first and second respondents' cross-claim against the third parties be dismissed; and that on its cross-claim there be judgment for the first respondent against the applicant for $3,757.84. proce Ee deel igh ctu thirty Sir GJ) . roag -ay \ f { a eed , tex ce " ' tos an tote yey . Se ee ce han ' ' ii . te - \ 1 te te nN a : a7 s l_, -t — - 4k n Dots [ Trrege (98 4 n ' i | —— Fe Pee ed a ee CN eee mee ert rTyRRE em, ae er em ere Br RH ee ee cr en ee re we - - we