Trade Practices - claim under s.52 of Trade Practices Act 1974 - misleading or deceptive conduct - newspaper advertisement - oral representations as to availability of facilities, right to advertise and exclusivity of menu in food market - underlease entered into with respondent company - contents of document contrary to alleged misrepresentations - failure by applicants to read underlease - relief granted. Trade Practices Act 1974 ss. 52(1), 53A, 84(2), 87(2) Cases: Taco Co. of Australia v. Taco Bell Pty Ltd (1982) ATPR 43,732, 43,751 Puxu Pty Ltd v. Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73 at 93 Hornsby Building Information Centre Pty Ltd v. Sydney Building Information Centre Pty Ltd (1978) 140 CLR 216 Plant v. Duralla Pty Ltd (1983) 5 ATPR 44,939 Brown and Another v. Jam Factory Pty Ltd and Another (1981) 35 ALR 79 Mister Figgins Pty Ltd v. Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23 at 55 DAVID DIBBLE and TERESA DIBBLE v. AIDAN NOMINEES PTY LTD and ERIC HAMER No. WA G51 of 1985 MUIRHEAD J. PERTH 16 APRIL 1986 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G51 of 1985 BETWEEN: DAVID DIBBLE and TERESA DIBBLE Applicants and AIDAN NOMINEES PTY LTD First Respondent and ERIC HAMER Second Respondent MINUTE OF ORDER JUDGE MAKING ORDER: MUIRHEAD J. DATE OF ORDER: 16 April 1986 WHERE MADE: Perth THE COURT ORDERS THAT: 1. The respondents pay to the applicants damages in the sum of $4,957.88. 2. The Deed of Underlease dated the 25th March 1985 be declared void ab initio. The respondents pay the applicants costs of the application to be taxed. The respondents' cross-claim be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G51 of 1985 weerwrrw BETWEEN: DAVID DIBBLE and TERESA DIBBLE Applicants and AIDAN NOMINEES PTY LTD First Respondent and ERIC HAMER Second Respondent CORAM: MUIRHEAD J. 16 APRIL 1986 REASONS FOR JUDGMENT The applicants in this matter seek damages arising out of an agreement with the respondent company (entitled 'Offer to Lease') entered into on 19 March 1985 whereby they agreed to lease a stall in a food market in Perth known as the Aidan City Centre Markets (the Market). They also seek an order for rescission of the agreement. The first respondent (the company) is sued as the lessor; the second respondent (Hamer) as the company's servant or agent being the person the applicants dealt with prior to their decision to carry on business from the stall and to commit themselves to a long term lease. Whilst relief 1s also claimed at common law, as the case developed, the applicants cause of action has been founded on the Trade Practices Act 1974. The essence of the applicants' case is that by reason of representations made which induced them to enter occupancy of the stall and long term liability for rent, the company engaged in misleading or deceptive conduct within the meaning of s.52(1) of the Act. Section 84(2) is called in aid to vest responsibility in the company on the basis that the conduct engaged in by Hamer is deemed also to have been engaged in by the company. It is also alleged against Hamer that he was directly and knowingly concerned in the contravention of s.52(1) by the company and thus a party to the contravention. The applicants also call in aid s.53A of the Act on the basis that false and misleading representations were made in connection with the grant of an interest in land, the characterstic of land, the use to which it was capable of being put and as to the availability of associated facilities. I find it unnecessary to deal with this head of the application. The incorporation of the company is admitted. It denies that it entered into an agreement with the applicants on 19 March, but says that the contractual obligations of the parties are governed by an agreement of underlease executed a few days later on 25 March 1985 (the underlease), which it is said constitutes the entire contract between the parties. The company admits that Hamer was its agent "for the purposes of marketing the leased property and obtaining offers in respect thereof from third parties" for consideration by the company. The allegations of misleading or deceptive conduct are denied. The company cross claims damages being rental and "variable outgoings" payable from the date rent and such outgoings became due until the 27 July 1989 being the expiration of the term which the company claims was agreed, together with small amounts payable by the applicants during their short occupancy. The company's damages as pleaded approximate $121,000 in reply to the applicants' claim of approximately $5,300. The latter's claim for relief under s.87(2) thus assumes importance. The applicants, husband and wife, both English by origin, have considerable past experience in the preparation and sale of what may be descriptively referred to as 'fish and chips'. Having been compelled by circumstances to return to England after disposing of a previous business Perth, they returned anxious again to resume business. Their attention was drawn to an advertisement in "The West Australian" newspaper of 9 March. Leaving aside the picture of the market contained therein it read: 2 OPPORTUNITIES ONLY HAY STREET MALL Aidan City Centre Markets PERTH'S MOST SUCCESSFULL INTERNATIONAL FOOD HALL CONSIDER THE FACTS - 30,000 people through the centre per week - Seating for 500 people . Secure long lease with realistic rents and outgoing - No ingoing - Live entertainment - Ongoing advertising and promotions Food Retailers in the following categories need apply. Chickens, Pizza, Fish & Chips, Hot Roasts, Doughnuts Confectionery and Health Foods For further details contact Eric Hamer WESTPOINT PROPERTIES 322 2719 A/H 446 2773 On the following Monday the applicants contacted Hamer to discuss the prospect, and my findings of what followed are crucial to the resolution of the matter. It suffices to say that the applicants entered into occupation of Stall 6 in the Market on 1 April and quit on 3 April, both convinced that they had been deceived. For present purposes it suffices to say that the company was the Underlessor of the Market, situate in a basement area in the centre of Perth. The layout has been altered from time to time but consists of a number of stalls retailing a variety of foods with some emphasis upon Asian foods. Access to the Market is by stairway and escalator. It is of modern design. The stall which the applicant occupied was reasonably spacious, but it appears to have been unoccupied for some months before their entry. It probably suffered the disadvantage of being a corner stall. The adjoining Stall (No.5) was occupied by one Schultz who figured prominently in the evidence without being a witness. He sold a variety of foods but his speciality appears to have been Kebabs and Grilis. He advertised and sold chips with his foods, and of some significance was selling chips in tubs as a separate dish both before and after the applicants commenced business. As I have said, the applicants communicated with Hamer, in response to the advertisement on Monday 11 March. He was an employee of the company, paid by salary not commission. They explained their experience in retailing fish and chips and a general discussion ensued. I am satisfied that the applicants' decision to offer to lease Stall 6 resulted substantially from the information Hamer provided. There is considerable conflict between the evidence of the applicants and that of Hamer. The applicants, well experienced in the fish and chip trade were nevertheless pretty simple trusting folk to whom legal documents meant little. Some of their evidence was I thought coloured by their anxiety (and perhaps by indignation) but I found each to be essentially honest. Hamer, a more sophisticated individual did not convince me in respect of several matters at the core of this matter. Where there is a conflict between the evidence of the applicants and that of Hamer I accept that of the applicants. Before I deal with events which followed I set out the essence of the representations allegedly made by Hamer which the applicants claim to have been false and misleading and which, they say, induced them to occupy the stall:- (1) The applicants would have the sole right of retailing items agreed between the parties, i.e. fish and chips - together or as separate items. (2) 30,000 - 35,000 persons per week passed through the market. (3) A fish and chip shop had not previously been conducted in the market. (4) Gross receipts of $1,500 per week could be and had been made from the stall. (S) The market would be open for business during normal trading hours. (6) The applicants would be able to place an advertising placard at the top of the escalator giving access to the market. (7) The stall in question was suitable for the retail sale of fish and chips. It is alleged these representations were false in that:- (1) At least one other shop sold items reserved for the applicants. {2) Not more than 3,000 persons passed through the market each day. (3) A fish and chip shop had previously been conducted at the Market. (4) Takings of $1,500 per week could not be realized. (5) The market was not open on Good Friday, 5th April. (6) The applicants were refused permission to advertise near the top of the escalator. (7) The property was unsuitable for use in the retailing of fish and chips. I revert to my findings as to what occurred. The applicants had a general conversation with Hamer at the office. They were given a coloured brochure (Ex.A.4) and submitted references concerning their experience. It was mutually understood that the applicants' prime interest was the sale of fish and chips. The parties visited the market and inspected a couple of stalls including number 6. It was unoccupied. To use Mr Dibble's words it was "extremely dirty and very scruffy". Timber and other items were stacked there. At the top of the escalator the applicants noted an advertisement "Sonny Chinese Restaurant". Mr Dibble enquired of Hamer whether he would he permitted to similarly advertise. Hamer replied in words to the effect "it would be a very good idea to let people know you are here, because there has never been a fish and chip. shop in this centre before". He told them they could place an advertisement at both entrances. The applicants relied upon this and Mr Dibble subsequently prepared the advertisements. Hamer explained that the stall holders each had their own "list of foods" which could be sold. Mr Dibble noted that the occupier of Shop 5 was selling chips, not only as an accompaniment to other dishes but in "small tubs". This concerned him and I accept his evidence of his conversation with Hamer: "Mr A.S. Stavrianou for the applicants. Mr OD.R.G. Dibble at witness stand. (Transcript page 40.) And what did you say? Did you say anything to anyone as a result of what you saw?---Oh yes. I said to Eric Hamer, "Everybody has got their own individual menu in here and you already told me that JI would have the chips and the fish; why is this fellow selling chips and burgers?" And what did Mr Hamer say?---He said, "Well it is not on his menu and he is only being given it asa concession as there 18 nobody else selling it in here, and he will be stopped as soon as you come in; if you come in". And what did you think about that?---Well, I thought that was fair enough. If it was not on his menu - and they told me that it was not on his menu; I relied on what he said and I thought that that would be the truth." On the same occasion Hamer informed the applicants in response to enquiry that the market was open six days a week. They complain that after they entered into occupation they were advised that the market would be closed on Good Friday - in their view a traditional 'fish and chips' day. I donot find this material to the issues and say no more about it. The parties returned to Hamer's office. He supplied them with some figures material to comparative rentals and they signed a document (Ex.A.9) which contained information of their financial standing and experience. Mr Dibble commented that the 'outgoings' on the shops were high, as they were, and he says he asked Hamer how much the previous tenants had taken. The applicants claim that he replied "that you would take easily $1,500 to $2,000 per week". I am not persuaded this was said, but if it arose in general discussion I do not consider it could reasonably have been interpreted as a representation as to the takings of the stall - especially as the previous occupants primarily retailed chickens. On the same occasion I find that the applicants were told again in response to enquiry that a fish and chip stall had not previously operated from the market. It was proved during trial that a stall holder had previously operated a grill in the course of which he dispensed fish and chips as one of many dishes, but it could not 'O fairly be termed a 'fish and chip stall'. I do not consider this response by Hamer was false or misleading and again I do not regard it as material. During the visit to the market that day Mr Dibble queried the basis of the advertisement that referred to "30,000 people through the centre per week". Hamer showed the applicants an infra-red mechanism designed to count pedestrian flow. The actual figures thereby recorded are in evidence (Ex.A.7 and Ex.R.20). They show an average over a long term of something less and, at the period the parties were discussing the matter, considerably less. The figures clearly indicate a greater influx during school holiday periods. The figure of 30.000 advertised was about 19% above the average count over a six week period approximate to the advertisement but over a 12 month period the discrepancy was less. Some exaggeration of the figures was involved, probably to round them off to 30,000 for advertising purposes, but I would not classify this as a material mnisrepresentation. Despite the applicants' protestations I very much doubt whether at that time the figures assumed the importance deposed to at trial. Clearly it could not be an exact figure. The average over a year was not demonstrated to be far from accurate and in any event it is clear that the count could not pretend to accuracy. I am not satisfied that this aspect constituted a material inducement. In these reasons I do not refer in detail to the applicants' allegations that the Stall was unsuitable for use in the retailing of fish and chips. On this aspect I heard evidence as to the licences required by fish shops under City of Perth health by-laws. The applicants complain that the premises limited 10. their scope in the preparation of fish on site. I merely say that I am not prepared to find that any express or implied representation on this aspect could be classified as misleading. In any event it was a situation capable of correction. Be that as it may on llth March the applicants departed to consider the matter. They visited the Market again, and Mrs Dibble prepared a list of foods the applicants wished to dispense. They had been informed that day, that if they entered into the business the lease would be for 5 years with an option to renew for a similar term. The applicants decided to lease Stall 6 and on 19 March they again attended the office and advised Hamer of their decision. They brought with them the food list they had prepared. Iam satisfied that it was their understanding that sale of fish and chips (including chips as a separate serve) would be their exclusive province. There was further discussion. Hamer, after consultation with one of the company's managers Mr Sherar agreed to allow the applicant two months occupancy rent free to assist in establishing the new business. The applicants then signed a pro forma offer to lease (Ex. A.3) which they did not carefully examine and which they understood to be a lease. The offer contained in the document was not accepted in writing by the company. It provided that the term of the lease would commence on 25 March 1985 (later altered by agreement to 1 April 1985) and expire on 27 July 1989. It provided that the lessee "shall use the premises for the retail sale as per attached schedule" and the food list that the applicants had prepared was attached as the schedule and also signed. The applicants gave Hamer a cheque for $2,915.05 being one month's rent of $2,415.05 ll. plus $500 towards the cost of the lease documents and disbursements. The parties shook hands and the applicants at Hamer's invitation set about obtaining equipment, cleaning up and preparing to open the business. Mr Dibble summarised his understanding at that time "Well I thought that I had a business where I would set up and be the sole supplier of the foods on my schedule". That was also the understanding of his wife. I am satisfied this was the understanding they had reasonably reached as a result of their discussions with Hamer. I am equally satisfied that they would not have committed themselves to this venture if they had thought that the owner of the adjoining stall would be able to dispense chips as a separate dish after their business commenced. Whilst the applicants were cleaning up the stall, Mr Schultz the proprietor of the adjoining Kebab stall continued to sell chips, including chips in buckets. This concerned the applicants. They found Schultz unresponsive and they became worried. Mr Dibble spoke to Mr Sherar on or about 21st March and voiced his concern. He told me that Sherar told him that he should not worry, that Schuitz was a trouble maker who would soon be out. He was assured "I will stop him on Monday". Sherar's account of this discussion was very different. He said he explained it "was impractical for us to give exclusive rights to any particular shop" and explained the reasons. He said the applicants "were disappointed in the sense that they could not have exclusive rights on anything". I find Sherar's account improbable. The applicants, whilst worried relied on the fact that things would be different when the stall opened. On Friday 12. 22nd March Sherar gave preliminary instructions to the company's solicitors to prepare the lease documents. The following Saturday he prepared an expanded menu for the applicants (Part of Ex.R.16) and this he says they approved at a meeting at the Market on Sunday 24th March. He said the applicants were a littie disappointed that burgers were not on their menu "as a blanket". They were recited as being in the "underlessors discretion at all times". He said he informed the applicants that "as soon as they take occupation, Shop 5 will stop selling buckets of chips". Only sale of chips with the main meal would be permitted. On Monday 25th March Sherar instructed his solicitors to finalise the underlease, he sent down the menu to be attached as a schedule. He later collected this document in bound form and presented it to the applicants for signature later that evening. They were busy painting and cleaning up the stall. There is again a conflict in this area. The applicants say they signed no underlease as such - just a few loose pages which were presented to them. They gain support from the witness Woss. Having heard from Mr Sherar, and Mr Ride the solicitor who had prepared and bound the documents earlier that day I am satisfied that the documents which the applicants quickly perused and signed were in fact the attestation clauses to the underlease and its schedule, including the menu. I find these were attached and hound to the underlease although I doubt whether the applicants or Mrs Woss were aware of this. I am confident the applicants did not examine the document save in a cursory manner. The applicants say that in response to inquiry as to the nature of the document Sherar stated "It's the same as you signed for Eric 13. upstairs". Sherar stated "They just inquired whether they were along the same lines as the actual offer to lease... I said Yes, the actual documents are drawn up off the offer to lease... they are no different to any other leases that we have in the market". This was not an entirely responsive reply to the question but may be accurate in itself. However the fact is that the underlease contained an acknowledgement by the underlessee "that the Underlessor reserves the right to grant to any other underlessee of the leased premises the right to sell all or any part of the items specified in the said menu". Such a clause served to give virtually no security or exclusivity of food service to an underlessee who by that document committed himself to long term rental obligations. It was contrary to the understanding the applicants had gained from the information given to then, particularly with the emphasis upon menus. The applicants were not given a copy of the document. The applicants commenced business on lst April. Mr Schultz continued to sell his buckets of chips in competition with the applicants. The trading was slack, the takings disappointing. I find Sherar spoke to Schultz and requested him not to sell chips in this manner. Schultz refused to accept this request and apparently complained about the applicants' sale of burgers. The applicants say that Sherar then gave them a copy of Schultz' menu which entitled him to sell "French Fries (not to be solid separately)". That morning also Sherar refused permission to the applicants to place in position the advertisements they had prepared, contrary to the understanding Hamer had conveyed. Sherar said in evidence that he spoke to Schultz about the sale of 14. chips on Tuesday morning, that he raised the issue of the applicants selling burgers and he was not then able to resolve the situation. He savs he informed the applicants that the company would take necessary action to resolve the situation. Whatever was said. and there 18 some dispute, the applicants understood that nothing could be done effectively. Sherar stated in evidence that he told the applicants "at present we would leave it and should the problem persist...there were other remedies that we could take such as legal action". His evidence was that his company had previously had resort to legal action to prevent stall holders wandering outside their authorised menus. The applicants enquired whether they could be released from their obligation, and they were advised to the contrary. They informed Sherar that they could not remain and he observed that it was very early to make such a decision. But the applicants were in a difficult position. The affiliation between fish and chips is traditionally established. The advertisement itself recognized this. The applicants had undertaken a most substantial financial commitment. The market area itself represented a competitive background - the public drawn to select the type of meal they fancied. I am satisfied that the sale of chips alone was important to the viability of such a business, especially as a young person's meal in school holidays. As I have commented the pedestrian flow figures illustrate the effect of school holiday periods. I am satisfied it was just not practicable for them to remain, side by side with a well established stall hoider selling chips as a separate item, they themselves being unable to advertise their existence or wares 15. at access points. They found themselves in a business which committed them to payment of about $500 per week (Ex.A.8), their takings during the first three days being in the vicinity of $180. The applicants ceased trading on Wednesday 3rd April. By letter dated 29th April 1985 their solicitors claimed damages and gave notice of rescission (Ex.A.13), a letter to which the Company's solicitor promptly responded giving notice (Ex.R.22) that it intended to exercise its rights under the lease agreement. As I have prefaced I am not able to accept Hamer's evidence on matters in dispute. I specifically reject his testimony to the effect that on the llth March when the applicants first called at his office he told them "no one could get exclusive rights to any item". I reject his evidence that later that day when Mrs Dibble queried the selling of chips by Schultz he explained that "no-one had exclusive rights to anything and it was up to the management to control menus" (p.263). Nor can I rely on his evidence that he informed the applicants that Schultz had the right to sell chips and that there was no suggestion that Schultz would be required to cease selling chips. Had this been said I am confident the Dibbles' interest would most rapidly have evaporated. I cannot accept his evidence that on the first day he indicated that the Dibbles would not be permitted to advertise. If this had not been said Mr Dibble's action in preparing the advertisements, which he was prevented from displaying by Sherar, would seen inexplicable. 16. I am persuaded that Hamer led the applicants to believe they would have the sole right to sale of chips as well as fish as a separate dish. The applicants were not advised before signing either the offer to lease or the underlease that the true position was that what they sold, and what anyone else sold in the market, was in truth at the discretion of the company. I can appreciate that there may have been sound reasons why the company would wish to maintain this control - for the protection of stall holders amongst others - but in the applicants' case especially, both fish and chips being so allied as a meal, they should have been well informed as to the true situation. The company was well aware of Schultz's right to sell french fries - again a matter of which the applicants were kept in ignorance until Sherar showed them his menu after they started to trade. I find the applicants were led to believe that they would have the sole right to sell chips alone, that this would not be merely a matter of discretion and a right capable of enjoyment only subject to legal proceedings against Schultz. This wasa situation the company had the opportunity of clarifying with Schultz before the applicants signed the underlease - after all it was aware he had been selling chips separately for a long period of time. I suspect Hamer and Sherar hoped matters would sort themselves out but by their conduct they gave first priority to reletting of the stall rather than to ensure that prospective stall holders were well and fairly informed. The applicants clearly relied on the information they were given and were thus induced to sign the documentation. The promptness of their 17. departure after they realised the circumstances which confronted them was not unreasonable as they were facing a continuing financial loss with little hope of taking any compensating steps. Their departure reinforces my view that it was only on or about Ist April that they appreciated the true position and its probable consequences. I thus find that the company by its servant and agent Hamer engaged in conduct which was misleading and which did deceive the applicants who were thereby induced to agree to lease the stall for along term. There may have been other factors adding to the applicants' disquiet. Clearly the general prevailing atmosphere and the disappointing number of potential customers added to their concern, but deceptive conduct need not be the sole source of loss or damage before relief under the Act is obtainable. If the applicants had been initially and distinctly advised that what they or any other stall holder would be permitted to sell was ultimately a matter for the company to decide, as the underlease provided, there could be no complaint. But they were not so informed, and the emphasis upon the preparation of their menu reinforced their views that they would have the exclusive right to sell chips separately. I find they would not have embarked upon the venture if frankness had not been overborne by expediency. In retrospect it could be said that they were careless in their own interests, that they should not have signed until they understood the documentation. Such an argument would have had more force if the true nature of the documentation had been explained to them or left with them for careful perusal. But initially imbued with enthusiasm as to the opportunities opened to them, and being in my assessment trusting by nature their understanding and expectation were essentially based on what 18. Hamer had told them. And Sherar's words to them when he presented the underlease for signature did nothing to displace the understanding they had thereby reached. Those who enter into long-term arrangements with stallholders in the intensely competitive and sensitive area of foodmarkets are well advised to ensure that there 1s mutual understanding and true agreement as to the conditions set out in their own documentation; not unfortunately the case here. There is no point to be served in canvassing the authorities relevant to determination of whether or not a corporation has engaged in conduct that is misleading or likely to mislead. They are now well established. Whether conduct infringes s.52(1) is a matter of fact to be determined objectively on the evidence. (Taco Co. of Australia v. Taco Bell Pty Ltd (1982) ATPR 43,732.) The section seeks to protect the "astute and the gullible, the intelligent and not so intelligent, the well educated as well as the poorly educated, men and women of various ages pursuing a variety of vocations". (Puxu_ Pty Ltd v. Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73 at 93.) It will not necessarily apply to those who judged objectively by their own standards are careless in their own interests. An applicant need not prove an intent to deceive merely the fact of deception. (Hornsby Building Information Centre Pty Ltd v. Sydney Building Information Centre Pty Ltd (1978) 140 CLR 216.) The conduct must do more than create confusion. It "cannot be categorized as misleading or deceptive unless it contains or conveys, in all the circumstances of the case, a misrepresentation" (Taco at 43,751). The fact that a person deceived has executed a document, unread or 19. not comprehended, which contains a clause to the effect that the applicant has not been induced to enter into a contract or arrangement by any representations will not of itself put an end to the operation of s.52(1) 1f the misleading conduct is proved as a continuing inducement. (Plant v. Duralla Pty Ltd (1983) 5 ATPR 44,939.) Fox J. considered s.52(1) in a case involving the lease of a shop in a complex in the oft cited case of Brown and Another v. gam Factory Pty Ltd and Another (1981) 35 ALR 79 and I respectfully adapt his examination of the authorities at p.86 of his reasons. To sum up Iam satisfied that the applicants were induced to occupy the stall and to sign the underlease by reason of conduct, primarily on the part of Hamer but perpetuated by Sherar, which I find was misleading and deceptive. Both were associated with the company in relationships contemplated by s.84. By reason of 3.82 of the Act the applicants are entitled to recover damages against the respondents and to obtain ancillary relief under s.87(2). I assess the applicants' damages as follows: 1. Shop Registration Fee $ 50.00 2. Advance Rent and costs associated with $2,915.05 underlease paid to first respondent 3. Fridges and Freezers $ 235.00 4. Crockery and cutlery (not allowed) - 20. 5. Sign writing $ 100.00 6. Electric Plugs - points $ 82.22 7. Till § 192.00 8. Microwave oven $ 60.00 9. Paper and Bags $ 28.60 10. Stationery $ 29.95 ll. Fish - allowed at $ 300.00 12. Meat $ 26.04 13. Groceries $ 147.34 14. Peters $ 231.68 15. Petrol and Parking $ 65.00 16. Machinery Hire and Installation $__ 675.00 $5.137.88 Less allowance for takings during trading 180.00 $4,957.88 As I have mentioned the applicants ceased trading on or about 3rd April 1985 and the first respondent pleads it accepted repudiation of the underlease on that date. It cross-claims damages approximating $121,000 made up of rent and variable outgoings for the balance of the term, i.e. until July 1989, together with minor gas and electricity accounts incurred during the applicants' brief occupation. I will not attempt to assess quantum of the cross-claim as it must be dismissed. It is appropriate in this case that the Court should utilise the powers granted by s.87(2), commented upon by Northrop J. in Mister Figgins Pty Ltd v. Centrepoint Freeholds Ptv Ltd (1981) 36 ALR 23 at 55. In the present case the applicants' occupation of the stall was transitory. The first respondent was asked promptly to release them from such obligations as they may have entered into, this request being refused. Later that month the applicants' solicitors gave notice of rescission. It is appropriate that the Deed of Underlease bearing the date 25th March 1985 should be declared void ab initio and I so declare The first respondent's cross-claim will be dismissed. The respondents must pay the applicants' costs of the application to be taxed. I certify that this and the preceding twenty pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Muirhead. Associate Dated 16 April 1986