* JUDGMENT No. 947.7. 4a CATCHWORDS Trade practices (consumer protection) - acquisition of lease in shopping centre - acquisition said to have been induced by misrepresentation as to the extent of the occupancy of the centre at time of opening - question of fact - no matter of principle. Trade Practices Act 1974. 3. 52 JOHN FRANCIS BEATER v. SEMITY PTY LIMITED and ORS. No. G52 of 1983 CORAM: SHEPPARD J. PLACE: SYDNEY DATE : 12 OCTOBER 1987 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION No. G52 of 1983 ~wyerevnr BETWEEN: JOHN FRANCIS BEATER Applicant AND: SEMITY __ PTY LIMITED and_ORS. Respondents MINUTES OF ORDER JUDGE MAKING ORDER: SHEPPARD J. DATE OF ORDER : 12 OCTOBER 1987 WHERE MADE 3 SYDNEY THE COURT ORDERS THAT: 1. 2. 3. 4. The application be dismissed. The cross-claimant. Semity Pty Limited, recover the sum of $9,817.64 on its cross-claim. There be judgment for the respondents on the applicant's claim and judgment for the cross-claimant. Semity Ptv Limited, on its cross-claim in the sum of $9,817.64 The applicant pay the respondents' costs (including all reserved costs) of the application and the costs of the cross-claimant, Semity Pty Limited, of its cross-claim. NOTE: Settlement and entrv of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G52 of 1983 ~ ewer GENERAL DIVISION BETWEEN: JOHN FRANCIS BEATER Applicant SEMTITY PTY LIMITED and ORS. Respondents CORAM: SHEPPARD J. DATE : 12 OCTOBER 1987 REASONS FOR JUDGMENT HIS HONOUR: In this action the applicant. Mr. Beater. sues the respondents for breaches of s. 52 of the Trade Practices Act 1974. In the event Mr. Beater did not proceed against the third respondent. Norma Andrews. so that the proceedings against her will be dismissed. The respondent. Semitv Pty Limited, has sued Mr. Beater by way of cross claim for rent said to be due in respect of his occupation of a shop at Bankstown in which he carried on the business of a delicatessen for about 12 months. The events in question in this case occurred. for the most part. in 1980. Semity Pty Limited was the owner of a shopping mall situated in Stacey Street, Bankstown. The mall opened on 28 2. October 1980. Mr. Beater aaqreed to take a lease or tenancv of one of the shops in which to operate the business of a delicatessen. His case is that he was induced to take the lease or tenancv by reason of certain representations made to him bv Mr. Michael Williams, the second respondent, who was actina on behalf of Semity Pty Limited. The principal, if not the only representation relied upon (a number of others were pleaded) was that, at the time the shopping centre opened, 70 per cent of the shops would be occupied and trading, or alternatively, tenanted. It 1s common ground that the occupancy was well below this fiqure. The representations were said to have been made either at the end of August or early in September 1980 and to have been confirmed in another convergation which took place on 12 September 1980. Mr. Beater went into possession of the premises about the middle of September 1980 and beaan then to f1t out the shop. A considerable amount of monev was spent in effecting improvements and installing plant and equipment of various kinds. Mr. Beater's operation of the delicatessen business was not a success. It is agreed that he suffered trading losses during the period of his occupation. He endeavoured to sell the business but without success and walked out at the end of September 1981. His claim for damages consists of the loss he claims to have suffered in fitting out the shop and purchasing plant and equipment, his trading losses and certain removal expenses. The respondents denv that representations of the kind relied upon by Mr. Beater were made whether bv Mr. Williams or 3. otherwise. It is also said that. 1f any such representations were made, they did not induce the lease or tenancv. Furthermore, the respondents claim that Mr. Beater's claim for damages is substantially exaaqgerated. Tt is common ground that Semity Pty Limited is entitled to recover the sum of $8.717.77 from Mr. Beater for rent. However, there is an issue concerning a claim made by Semitv Pty Limited for interest on the amount which is outstanding. Furthermore, Mr. Beater seeks to recover as part of his damages the amount of the rent because he claims that his liability for it arose asa result of the misrepresentation of which he complains. Before qoing to the relevant evidence, I should explain the reasons for the long delay which has ensued between Mr. Beater's vacation of the premises in September 1981 and the hearing of this matter which was concluded on 24 September last. Correspondence which is in evidence establishes that Mr. Beater first consulted his solicitors in June 1981. that is. prior to his vacation of the premises. He then complained that he had been misted about the dearee of occupancy of the shopping centre when it opened. However. Mr. Beater took no proceedings himself. On 8 September 1981, Semity Pty Limited sued him in the District Court for the outstanding rent. For reasons which do not appear the matter was at that stage undefended and a default judgment was entered on 19 October 1981. A bankruptcy notice was issued on the application of Semity Pty Limited on 10 March 1982. The notice was extended and set aside on 24 May 1982. In the meantime, on 13 May 1982, a notice of grounds of defence had been 4. filed in the District Court proceedinags pursuant to leave to do so having been granted on 7 Mav 1982. The District Court ordered that the judgment entered in that Court be set aside. Mr. Beater's qrounds of defence filed on 13 May 1982 raised his complaint concerning misrepresentation about the occupancy of the premises. So far as the evidence discloses nothing further occurred in relation to the District Court proceedings. These proceedings were commenced on 21 March 1983. After a number of directions hearings, many of which were needed because of the parties' failure to comply with earlier made directions. a Judde of this Court, on5 October 1984, gave the parties leave to approach the Reaistrar for a date for hearina. An estimate of three davs was noted. Apparentiv the parties did not immediatelv approach the Reqistrar. The hearing was eventuallv fixed for 8 December 1986, more than two vears after leave had been aiven for this purpose. I pause here to say that this case has revealed a weakness in the Court's procedures. The usual practice, once a case is considered to be ready for hearing, is to give the parties leave to approach the Registrar for a date. The Judge does not set the date himself mor fix another date for directions unless this is seen to be clearly necessary. Where the system has fallen down here is that the parties did not approach the Registrar fora date for about two years after being qiven leave. Because of that circumstance the case was lost siqht of and an unnecessarv delav of two vears ensued. The hearing proceeded before me on 8 and 9 December 1986. As 5. the case proceeded it emerged that Mr. Beater's case on damages had undergone no real preparation at all. Insufficient thought had been qgiven to it and eventuallv counsel for him was forced to seek an adjournment of the proceedings to enable him properly to particularize the claim and to prepare evidence of it. A directions hearing was held on 19 December 1986 in the hope that the matter would be ready to proceed early in February 1987. This, however, was not to be, and the matter was not able to be fixed until early in June 1987. Because of various matters connected with the Court's commitments otherwise. these days had to be vacated by me and the hearing could not resume until 21 September. It then proceeded on that day and the three subsequent days when I reserved my decision. A condition of the adjournment granted on 9 December 1986 was that Mr. Beater pay Semity Pty Limited interest at the rate of 15 per cent per annum on the amount due under the cross claim from 9 December 1986 until judgment. The costs of and occasioned bv the application for the adjournment were reserved. I have mentioned the history of the matter in order to emphasize how difficult a delay of the kind in question makes the task of assessing the credibility of witnesses. At the time Mr. Beater gave his evidence more than six years had elapsed since the representations were alleged to have been made. When Mr. Williams qave evidence in September 1987 the period had increased to seven years. How witnesses can really remember the detail of conversations held so longa ago I do not know. Presumably they refresh their recollections from statements and notes prepared in 6. earlier years and this no doubt helps, but this case serves to illustrate the almost impossible task which a Court has in determining the veracity and reliability of witnesses after so long a period especially where there are few indications in the objective facts and surrounding circumstances which tend to throw light on the matter one way or the other. I turn to the evidence which is in question. IT refer first of all to that relied upon by the applicant. Mr. Beater was brought up in Tamworth and Murrurundi where his family had retail businesses. After he left Murrurundi he came to Svdney where he acquired a position with Permewan Food Stores. This was in 1972. For a time he was the Assistant Manager at the Permewan Eastwood Branch and later Manager of the delicatessen in its Crows Nest store. The delicatessen was a very large one. He had other experience of this kind before opening a delicatessen of his own in Summer Hill in 1979. In August 1980 Mr. Beater heard that there was to be a shopping centre at Stacey Street. He spoke to Mr. Wiliiams on the telephone and visited the Centre either late in August or early in September. He was unaccompanied. Mr. Williams showed him about the shopping centre. He saw that Franklins. a supermarket grocery chain. were completing their opening procedures. A butcher's shop next door was also fitting out. Mr. Beater said that Mr. Williams said to him that 70 per cent of the shops would be occupied prior to the opening date which was scheduled for approximately mid October. Mr. Williams then took Mr. Beater past the various shops in the area most of which were 7. vacant. Mr. Beater's evidence proceeded:- "Mr. Williams indicated that next to the delicatessen there was going to bea hot bread shop. Next to that there would be a fish shop. Across the way would be a maior newsagency and he outlined at that particular time that the company was neqotiating to get a full agency there rather than a subagency. Also he was negotiating to have a major chain of chemists represented in the centre and probably most importantly was the fact that he was negotiating with Fossey's or a store of that nature. I remember the word Fossey's being used to bring them into the centre as well". Mr. Beater said there were 23 shops altogether in the Centre. He continued: - "Mr. Williams said that he was neaotiating with one of the largest suppliers of auto accessories to go unto one of the shops. He was also fairly confident that a maior retailer called Fossevs' would be in the centre. He had commenced negotiations with the hot bread and a fish shop operator to qo into the centre and also a newsagent and chemist " Mr. Beater said that Mr. Williams repeated a number of times that 70 per cent of the shops would be "tenanted" prior to opening. He said he was at the premises for about 40 minutes. He said that the fact that Franklins were present 1n the shopping centre was a significant factor to him but added, "Franklins alone... is not enough for a delicatessen to operate successfully as later delis found out later in that shopping centre". One further matter which Mr. Beater said Mr. Williams told him was that failing other tenants "like Fosseys, et cetera. 8. coming in, the centre management had intended to make it a complete shopping food mall, a one-stop shopping food mall". Mr. Beater returned to the shopping centre about a week later. Other evidence fixes the date of this visit as being Fridav, 12 September 1980. Mr. Beater attended the premises with a Mrs. Miller-Griffiths who was an employee of his at the delicatessen he operated at Summer Hill. They saw Mr. Williams. He did not notice any other shops being fitted out. There were discussions concerning the length of the term of the lease and, so Mr. Beater claimed, the question of his right to assign it. He made it clear. s0 he said, that he required a lease which could be assigned without his being required to pay any money to the lessor. On 12 September 1980 Mr. Beater decided to go ahead with the project. This led to the solicitors for the owner of the Mall, Messrs. Conway, MacCallum and Co., sending to Mr. Beater's solicitors a draft lease. The lease was sent on Mondav. 15 September 1980. The document sent was in the form of an agreement for lease to which was annexed the actual lease which would eventually be entered into when Mr. Beater took possession. It is umnecessary at this stage to refer to the detail of the provisions of the agreement for lease or the lease itself. In fact neither the agreement for lease nor the lease, although signed by Mr. Beater, was ever delivered to the lessor. Despite this. Mr. Beater went into occupation of the premises soon after 15 September and began to fit them out for use as a delicatessen. The Centre did not open in the middle of October as Mr. Williams 9. had foreshadowed but opened instead on 28 October 1980. The evidence establishes that the opening was widely advertised with special attention being drawn to the fact that Franklins was occupying a shop inthe area. An advertisement which was inserted 1n one of the local newspapers on 22 October 1980 said in bold letters, ""FRANKLINS, STACEY STREET MALL, BANKSTOWN - Plus 20 Other Shops". In fact only six shops, including Franklins, were occupied at the opening. As I have said, the shopping centre had 23 shops in all. Undoubtedly Mr. Beater's trading was quite disastrous. His business really never established itself as a viable concern. He struaqgled through a period of about 12 months and closed the shop at the end of September 1981. In the early months of his occupancy there were attempts made to induce him to deliver the aqreement for lease and the lease. Correspondence proceeded sporadically between the solicitors for the parties. On 4 December 1980 the management of the Mall wrote to Mr. Beater informing him that it was agreeable that the monthly rental for the months of January, February and March 1981 would be waived but subject to a number of conditions. One of these was that the lease be executed and that outstanding payments of rent and outgoings due for the months of October, November and December 1980 be paid. The response to this letter was a letter from Mr. Beater's solicitors dated 12 December 1980 in which it was said:- "We advise that our client is prepared to consent to the arrangements proposed in your. letter but requires further provisos as follows:- 1. That in the event of there being an occupancy rate within the Mall which rate 10. does not exceed 70% of the available tenantable space, then rent is to further abate until such time as the occupancy rate exceeds 70%. 2. That Clause 5 sub-clause (c) be deleted from the Lease. 3. That the provisions of Clause 8 sub-clauses (f) and (gq) and Clause 9 be deleted from the lease. We are instructed to request your urgent reply hereto. We point out also that we now hold the duly executed Agreement for Lease and cheque in payment of all moneys which fall due". Clause 5{c) was aclause obliging Mr. Beater to keep the premises open during lawful night trading hours. Clauses 8(f) and (g) dealt with restrictions on the assignment of the lease of the premises. In essence they provided for the payment by Mr. Beater of a proportion of the true market value of the lease in the event of his wishing to assian it. Clause 9 forbade the transfer of a share in a company lessee without the consent of the lessor. Mr. Beater intended to take the lease, not in his own name, but in the name of a company, Artic Delis Pty Limited. On 16 December 1980, Messrs. Conway, MacCallum and Co. wrote to Mr. Beater's solicitors refusing to agree to any of the conditions sought by Mr. Beater in the letter from his solicitors dated 12 December 1980. Messrs. Conway, MacCallum and Co. said that their client required the lease documents to be returned immediately. Failing the return of the documents they were instructed to take "whatever steps may be open ... having regard to the fact that your client is merely an occupier of the Ll. premises and has no other rights as such and 18s inno way considered to be a tenant. as agreements in the matter have not been exchanged". Despite this, no attempt was made to disturb his occupation of the premises. In April or May 1981, Mr. Beater made an attempt to sell the business. This eventually came to nothing and it is unnecessary to refer to the detail of the neqotiations except to say that the owner of the shopping centre was prepared to lease the premises to the purchaser on certain terms and conditions. It seems clear that the Llessor's unwillingness to take more precipitate action than it did and its readiness to consider leasing the premises to a purchaser from Mr. Beater arose from the fact that the shopping centre. at least in 1980 and 1981, had not been the success its owners had hoped for. As Mr. Williams himself suggested in evidence, the problem would appear to have been due to the fact that the centre was overshadowed by a much larger shopping centre, Bankstown Square. which had opened successfully at an earlier time. Mrs. Miller-Griffiths said that she had managed Mr. Beater's delicatessen at Summer Hill until some time in 1982 or 1983. She recalled visiting the Stacey Street Mall with Mr. Beater in 1980. She said that she had met Mr. Williams and that the three had qone on a tour around the centre. She said that Mr. Williams said that "most of the shops, the largest sites had been taken". He added, "... there were a few of the smaller sites available and there are quite a few of the shops that were under consideration for Council". Mrs. Miller-Griffith's evidence 12. continued: - "Did Mr. Williams point out shops which were not fitted out as being shops that were committed to particular type businesses when you went around the centre with him? ---Certain shops were taken and he told us that certain businesses would be qoing into these areas. Now can you recall which of those he designated and for what purposes? ---There was a newsagents that was to be going in, a furniture shop; that is all that my memory would be able to help you with. When you went there did you see trades people working in the centre? ---There were still tradesmen there the first time I went there". Mrs. Miller-Griffiths also said that she thought that only about s1x shops were still to be let. She was there quite regularly afterwards, sometimes with Mr. Beater and sometimes alone. She interviewed potential staff for the delicatessen and also assisted in the supervision of shop fitters and the installation of equipment. It is to be observed that Mrs. Miller-Griffiths did not say anything in relation to a statement by Mr. Williams that at least 70 per cent of the shops would be occupied or tenanted at the time the shopping centre opened. Also called in Mr. Beater's case was a Mr. Summers. Mr. Summers himself took a shop in the premises. There was some attempt to rely on his evidence as evidence of similar facts, Mr. Summer's evidence did not come up to the mark on this. Mr. Summers said that Mr. Beater himself told him that 70 per cent of the shops were to be occupied. However, it was pointed out to 13. him in the course of his cross-examination that many shops were still vacant when he first went there. His only response to this was that he required a small area. He did not suggest that Mr. Williams ever said anything about 70 per cent occupancy to him and the fact that the shopping centre was so obviously empty did not seem to be a worry to him. Mr. Summers is a relative of Mr. Beater. It would appear that Mr. Summers stayed in the shopping centre long after Mr. Beater. How well he fared is not revealed. Mr. Williams is an engineer by occupation. He practised as a consulting engineer for about 18 years before becoming interested 1n property development. He was involved in the planning of the Stacey Street Mall late in 1979. The construction of the Mall commenced early in 1980. He has no interest 1n the company, Semity Pty Limited, but its principals are friends and business associates of his. He said that he beaqan by offering them free advice on the planning on the retail layout of the Mall. He eventually agreed to assist in the leasing and was paid a fee. It was he who secured Franklins as a tenant. He described them as "the anchor tenant". Mr. Williams gave detailed evidence of his plans for the various shops in the Mall. Shop No. 16, which Mr. Beater took, was not originally designated as a delicatessen. At the time he was negotiating with a delicatessen chain. Iqloo Delicatessens, for them to take shops No. 1 and 2. Mr. Williams recalled his meeting with Mr. Beater and agreed that the two had walked about the Mail looking at the various shops. Mr. Williams said that he walked up and down the Mall together with Mr. Williams and pointed to various shops as they went refresh his recollection. of the conversation in the 14. past. He gave his evidence with the aid of a His evidence was as follows:- "We walked up and down the mall together and I pointed to various shops as we went past them. I pointed to shop 15 and said that was where we would like to have a hot bread shop. I pointed to shop number 5 and said that was where we would like to have a newsagency. I pointed to shop number 7 and said that was where we would like to have afamily shoe shop and I said that I had offered shop number 7 to Mr. Flint of Flints Shoes for that purpose. I pointed to shop number 12 or 13. I do not remember exactly which, and said that that was where we would like to have a chemist shop. T pointed to shop G9, which in this case has King Furniture written on it, and I said I have offered that to an auto accessories and spare parts firm. I pointed to shop 13 and I said that whilst I wanted to have a newsagency in shop 5 the people who had expressed an interest in shop 5 would rather prefer shop 13 because of its immediate access to outside, which would permit, say, Sunday trading with the papers. HIS HONOUR: You did say before that you were not sure whether to designate 12 or 13 as a chemist shop. Does that mean it must have been 12, if 13 was going to be -- -? ---I am sorry, your Honour. I am just reading the plan. It is not clear - shop 10, I apologize. 12 or 13 was the shop I said we would like to have as a chemist's shop and the shop that a person to whom I had been speaking about a newsagency, and they said they would prefer it to shop 5, is shop 10. ... there was a proposed use for each (shop), was there? ---Yes, your Honour - not totally inflexible. It was an expression of what we would like to see happen. MR. FORSTER: Did you say anything about a fish shop? ---Yes, I did. What was it that you said about a fish shop? ---You have refreshed my memory - that was shop 14, What did you say? ---I said, 'That is the shop in plan to He did not purport to give the account precise order in which it took place. 15. which we would like to see a fish shop, and the reason for that is the direct corridor service access to the loading dock so they do not have to wheel fish through the arcade'". Mr. Williams did not recall saying anything to Mr. Beater about Fosseys on that occasion. He thought that he had had a discussion about Fosseys after the shopping centre opened. Mr. Williams was asked whether he had told Mr. Beater that particular businesses, whether indicated by name or type, would be occupying particular shops. Mr. Williams denied this saying that what he said was, for instance, in relation to the hot bread shop, that "that is where we would like to put the hot bread shop". The same was said about a fish shop and so on. Mr. Williams said that it was true to say that he was negotiating with a major chain of chemists. namely Washington H. Soul Patterson, but he doubted whether he told Mr. Beater this because he was cautious about mentioning tenants' names. He thought that Mr. Beater had got the name from him in a conversation which had occurred after the centre opened. Mr. Williams denied that he had said anything to the effect that 70 per cent of the shops would be occupied prior to the opening date or tenanted prior to the opening date. He said that the figure of 70 per cent was never mentioned at any time, nor was any other percentage. Mr. Williams said that he had told Mr. Beater that it was very worrying that the proposed opening was so close and the centre did not have more tenants. He had said that he could not understand it: a large number of enquiries had been made but 16. these did not turn into tenants. He said that Mr. Beater had said to him that he could help in getting tenants. Mr. Beater said he knew a lot of people in retailing. It was after that that Mr. Beater introduced Mr. Summers. Mr. Williams was asked the length of time it would normally take to fit out shops. He said a fairly easy fit out would take of the order of four to six weeks and longer if Council did not process the application promptly. A more complex shop which had drainage services and water and refrigeration such as a butcher's shop would take of the order of 8 to 12 weeks. He thought the fit out of a delicatessen would normally take about eight weeks. Mr. Williams said that Mr. Beater appeared enthusiastic at their first meeting but he did not agree to take a lease nor. for that matter. did Mr. Williams offer him one. He said there was a later meeting a few days later. He thought the period was rather less than a week. At that conversation Mr. Beater requested him to arrange for the issue of a lease which he did. That meeting was fixed by a diary entry made by Mr. Williams as being on 12 September 1980 and led to Messrs. Conway, MacCallum and Co.'s letter despatching the lease documents on 15 September 1980. Mr. Williams qave evidence about his repeated attempts to have Mr. Beater deliver the lease. Nothing turns on this. It is clear that many requests were made and that for various reasons Mr. Beater did not hand over the lease nor was he compelled to do so. 17. In evidence are a number of minutes of site meetings. These are inconclusive. They show that on 27 August 1980 there were proposals to let shop number 16 toa Mr. Simmons for a poultry shop. These negotiations appeared still to be in train on 3 September 1980. On 10 September 1980 1t was said that an ultimatum had been issued to Mr. Simmons to make a decision. It was also said that a Mr. Sinclair had shown interest in the rear half of the shop and had made application for a lease. The lease was to be issued to Mr. Sinclair. His shop was to be known as No. 16B. The front half would be known as No. I16A. A week later, on 17 September 1980, the minutes recorded that shop No. 16 was to be let as a delicatessen and the lease sent out to "Arctic Deli should be signed today". The minute of 1 October 1980 showed the fit out of shop No. 16 being "well under way". The same note was made in the minutes of 8 October 1980. Later minutes showed shop No. 16 to be trading and reference was made to requests for the lease to be sianed. The essential case which Mr. Beater makes 18 that about the beginning of September 1980 he was led to believe that, at the time when the shopping centre opened in the middle of October, no less than 70 per cent of the shops would be occupied or at least tenanted and fitting out. This state of affairs was confirmed when Mr. Williams indicated to him during their round of inspection that particular shops were in fact to be let or occupied for particular purposes. The respondents' case is that no mention whatever was made about a percentage occupancy and that although the respondents' intentions with regard to most of the shops were indicated to Mr. Beater, there was no statement 18. that there would in fact be particular businesses carrying on, or about to carry on, business in particular shops. The initial question to be resolved 1s whether I accept Mr. Beater's account of what was said or that of Mr. Williams. The essential difference between them 1s that Mr. Beater said a representation was expressly made to him that 70 per cent of the shops in the centre would be occupied or tenanted; Mr. Williams denies this. Each agrees that there was discussion about the proposed occupation of most of the shops in the centre. The difference between them on this aspect of their evidence 18a fine one. A consideration of Mr. Beater's evidence discloses that phrases were used by Mr. Williams such as, "there was going to be a hot bread shop", "there would be a fish shop", "Across the way would be a major newsagency" and so on. The way Mr. Williams put 1t was that he said, for example, "that was where we would like to have a hot bread shop", "that was where we would like to have a newsagency", "that was where we would like to have a family shoe shop", and so forth. The statements attributed to Mr. Williams by Mr. Beater suggest a degree of certainty about the proposed occupations. Those deposed to by Mr. Williams suggest a statement of intention but the absence of any real certainty. On the other hand, bearing in mind the frailty of human recollection, it may be that. thought whether the statements made were expressed as Mr. Beater said they were or as Mr. Williams said they were, there was room for ambiguity and misunderstanding. In passing I should say that, as Mr. Williams gave his evidence, I wondered whether he was not endeavouring to be too precise in his recollection and whether he was as careful 19. as he said he was to make it clear that his statements related to the intended occupation of the centre rather than the actual occupation of it. I do not, however, think I can take very much from the language he used. In any event. if one were to accept Mr. Beater's account as being the more accurate one, 1t does not, because of the danger of misunderstanding to which I have referred, take Mr. Beater much further. It should be emphasized that it is not these statements upon which his case directly depends. It is his evidence that Mr. Williams told him that 70 per cent of the shops would be occupied or tenanted at the time of opening which is the important statement. In relation to that matter the two witnesses are plainly in conflict. In a case of this kind one searches for signs in the surrounding circumstances and the objective evidence for indications of where the truth probably lies. Accordingly, I now propose to refer to the matters of evidence which I think may provide this sort of guidance, but before embarking on the exercise, I should mention that the assistance I obtained from 1t was not substantial. I obtained no assistance from the evidence of enther Mrs. Miller-Griffiths or Mr. Summers. That is no reflection on then. Neither was present the first time Mr. Beater visited the premises and neither had any but a vague recollection of what was said onthe later occasions when they were present. Neither deposed to a statement by Mr. Williams that the centre would be 70 per cent occupied. Mrs. Miller-Griffiths did say that she was left with the impression that only six shops would be vacant on 20. the opening day, but a consideration of her evidence as a whole does not persuade me that I should accept this statement in her evidence. A starting point for the consideration of the probabilities is that both Mr. Beater and Mr. Williams were experienced in the field in which they were engaged. Mr. Beater, no doubt because of his experience with Permewan, was able to say that he had had experience of the taking of some 40 leases of shop premises. Some of these had been taken on his own account. for instance, Summer Hill. He had a glib familiarity with some phrases, particularly with the phrase, "no fine to be taken". This surprized me somewhat, but it appeared that he was familiar with it because whenever he took a lease he was anxious to ensure that, if he or the company on whose behalf he was taking it wished to assign it, this could be done without the need to pay the lessor any money. This, I think, was the principal reason why he never handed over the lease of the subject premises. Mr. Williams had the experience to which I have earlier referred. As the two walked around the shopping centre at the beginning of 1980, both had it in mind that the shopping centre would open in the middle of October, which was about six weeks or a little longer away. It was plain asa pikestaff to both of them that the majority of shops bore no sign of any occupation. No fitting out operations had begun. No notices appeared indicating that the shops would be occupied by persons carrying on a business of this kind or the other. Yet both must have been familiar with the period necessary to fit out a shop. That circumstance alone 21. would surely have made a person as experienced as Mr. Beater pause if he were told that 70 per cent of the shops were to be occupied on opening. Of course, he has alternated in his evidence between the shops actually being occupied in the sense of trading at opening time and being tenanted but not then ready for opening. There are places in his evidence where each of these statements is made. But, allowing for the fact that there may have been some looseness in Mr. Beater's understanding of what he claims was said, it seems unlikely, if the centre were largely committed at the beginning of September, that there would have been so few signs of activity. These considerations suagest that 1t would have been unlikely that Mr. Williams would have said what Mr. Beater says he did. If he had, Mr. Beater may well have questioned the accuracy of it. On the other hand, by the end of August 1980 Mr. Williams must have been somewhat desparate. The shopping centre was showing no signs of really taking off and this despite the presence of Franklins. According to him, he disclosed his anxiety to Mr. Beater and this led to his endeavouring to get tenants. On the other hand. Mr. Williams could hardly have disclosed too much of his anxiety. This would have been calculated to put a potential tenant off. Whilst. therefore, I think the plain emptiness of the centre is a factor which on balance favours Mr. Williams, there is the counter balancing consideration that he may have been tempted to puff a little and thus put forward a situation which was far too optimistic. The next factor I have taken into account is the absence of 22. any statement by Mr. Beater or his solicitors to the effect that a representation or warranty of 70 per cent occupancy had been made. Correspondence between the solicitors over the terms of the lease beqan in the middle of September 1980 and continued for some time thereafter. On 12 December 1980. Mr. Beater's solicitors wrote saying that their client was prepared to consent to the arrangements proposed in the respondents' solicitors' letter but required some further provisions, one of which was. that in the event of there being an occupancy rate within the Mall which did not exceed 70 per cent of the available tenantable Space, the rent was to abate until such time as the occupancy rate exceeded 70 per cent. This was not put as something which had been agreed upon by the parties before Mr. Beater went into occupation nor as a representation which had been made to him. Rather it was put as a required condition of the lease which was still unexecuted. I should say at this point that there 1s some evidence that the Franklins lease had somethina of this kind in it although the percentage was apparently 75 per cent rather than 70 per cent. Moreover, the lease did not provide for there beina no rental payable if the occupancy rate were below 75 per cent. but rather for a reduction in rent. This is the sort of thing that Mr. Beater may well have learned in the early months of his occupation of the shop in 1980. The case that Mr. Beater has made here does not seem to have been formulated until about the middle of 1982 shortly before the commencement by Semity Pty Limited of the District Court proceedings in which it sought to recover the rent due on the premises. Both counsel relied upon the letter of 12 December 1980 as an 23. indication of support for their cases, counsel for Mr. Beater submitting that it provided a positive indication of a statement to him that 70 per cent of the shops were to be occupied or tenanted on the centre opening. I do not regard the letter as providing conclusive support for either party, but I think on balance. 1t is a letter which tends to support the case of the respondents rather than that of the applicant. A solicitor, instructed that a representation of the kind contended for had been made, would not write in the way that Mr. Beater's solicitors wrote. The representation would be used more offensively as a means of ensuring that the respondents would be forced to agree to a lease which provided for the abatement of rent. Moreover, Mr. Williams. on Mr. Beater's case, did not say that rent would abate if less than 70 per cent of the shopping centre were unoccupied; rather he said that 70 per cent of the shops would be occupied. In those circumstances I think, as I have said. that the letter of 12 December 1980 tends to support the respondents' case rather than that of Mr. Beater. The advertisement which was inserted in one of the local newspapers on 22 October 1980, to the terms of which I have earlier referred, may be thought to provide some support for Mr. Beater's case in that it referred to the Mall and included the words, "Plus 20 Other Shops". This 13 capable of meaning 20 other shops which were going concerns. Mr. Williams aqave evidence that some attempt was made on the opening day to dress the centre up. Screens and pot plants were placed in the empty shops, but it would be plain to even a casual observer that the shops were unoccupied. Certainly they were not ready for 24. business or being fitted out for particular uses. The advertisement was inserted only s1x days before the opening. It thus seems difficult to find very much support for Mr. Beater's case in the terms of the advertisement. The only other matter which may provide quidance on the question to be decided is a matter which arises from the presentation of Mr. Beater's case on damages. A substantial part of his case involved a claim for losses he sustained when he had to sell plant and equipment for a much reduced price after it had been removed from the shop. Some of the articles were said to be valueless and had to be thrown away. Mr. Beater was cross-examined at length onan apparent disparity between his claim and depreciation schedules which formed part of his income tax returns for the years ending 30 June 1981 and 1982. Much of the plant and equipment said to have been used in the shop was not referred to in the schedules. Despite the calling of Mr. King who was Mr. Beater's accountant, I can find no satisfactory explanation for these disparities. It would seem to me that a lot of what Mr. Beater claimed as plant used in the Stacey Street business was not the subject of a depreciation claim by his accountants. It is not that Mr. Beater was unfamiliar with the keeping of books of account. He himself kept a cash book which 1s in evidence and which appears to have been kept in accordance with ordinary accounting practice. It is clear from Mr. King's evidence that the accountants relied on Mr. Beater for information about the business including items of plant used therein. There may be an explanation for the discrepancies which does not reflect on Mr. Beater's credit: the passage of time in 25. this case would disincline me from taking a strongly adverse view of him. But the discrepancies do his overall case no good. They raise in one's mind a suspicion that he may have been substantially exaggerating his claim for damages. Of course, it 1s always dangerous to take into account an adverse impression of a witness in relation to one part of a case and use it to make an adverse finding against him on another part of it. Nevertheless. it 1s a factor which I have given some weight to. It follows that, in my opinion. the objective criteria in this case which throw light on the question of which version of the relevant conversation I should accept are the inherent probabilities of the matter, particularly those arising from the emptiness of the shopping centre at the time of the inspection, the statement made in the letter of 12 December 1980. and the matters which flow from that, and the circumstance that Mr. Beater's claim for damages seems, for one reason or another. to have been substantially exaggerated. In those circumstances I have reached the conclusion that If should, upon the balance of probabilities, prefer the evidence of Mr. Williams to that of Mr. Beater. That being so, Mr. Beater's case fails at the outset. He has not established that a representation in substance along the lines of that relied upon by him was ever made. My conclusion in that regard makes it unnecessary to decide other matters which were raised in argument, particularly the question whether Mr. Beater was induced by the representations to enter into the contract and the amount of Mr. Beater's damages. 26. In the result there will be judgment for the respondents on Mr. Beater's claim and judgment for the respondents on their cross claim for the rent. At the time the transaction took place, s. S1lA of the Federal Court of Australia Act 1976, which empowers the Court to award interest in certain circumstances, was not in force. Counsel for the respondents submitted that I should make an award of interest on the amount of the rent which was due from a time in 1981 to date. He relied upon s. 94 of the Supreme Court Act 1970 (N.S.W.) ands. 79 of the Judiciary Act 1903. The entitlement of a party to an award of interest prior to the coming into force of s. SIA of the Federal Court of Australia Act is not without its difficulties. The matter has been the subject of a number of decisions of the Court both in New South Wales and in some of the other States. In Australian National Airlines Commission v. The Commonwealth of Australia (1975) 49 A.L.J.R. 338 Mason J. (as he was) expressed the view (p. 340) that s. 79 of the Judiciary Act did not operate to pick up and apply in proceedings in the High Court (which also then lacked power to award interest) a provision such as s. 94 of the Supreme Court Act which was contained in a statute desiaqned to define and regulate the powers and procedure of the Supreme Court and which conferred power on that Court to order interest on damages in 1udaments entered by that Court in proceedings before it. The majority of a Full Court of this Court distinquished the Australian National Airlines case in Centrepoint Freeholds Pty Limited v. T.N. Lucas Pty Limited (1985) 6 F.C.R. 133. The Court 27. was concerned, not with s. 94 of the Supreme Court Act (N.S.W.) but with the relevant provisions of the Supreme Court Act 1958 (Vic.) which did not restrict the power to award interest to the Supreme Court of Victoria. In State Bank of New South Wales v. Commonwealth Savings Bank of Australia (1986) 67 A.L.R. 123 Lockhart J. distinguished the Centrepoint Freeholds case and followed the decision of Mason J. in the Airlines case. He was concerned with s. 94 of the Supreme Court Act (N.S.W.). The decision of Lockhart J. has gone on appeal to a Full Court of this Court. The appeal has been heard but, because of the larqe number of complex issues which are involved, it is unlikely that judgment will be given for some little time. It has been submitted on the appeal that his Honour's conclusion not to award interest was erroneous. I am a member of the Full Court which heard the appeal and in due course I must consider whether I think that Lockhart J. was right in refusing to award interest in the State Bank case. In this case. however. I am sitting at first instance. If I thought that judgment in the State Bank case were imminent, I would delay giving judgment until after judgment in that case had been given. But it is not, and I think I must decide this matter on the present state of the law, leaving it to a party dissatisfied with my decision to appeal if he or it is dissatisfied. I think judicial comity requires me to follow the course taken both by Mason J. and by Lockhart J. and that is what I propose to do. Accordingly, I am of opinion that in the circumstances of this case s. 94 of the Supreme Court Act 1970 (NS.W.) has no application and does not empower me to make the award of interest which the respondent. Semity Pty Limited, 28. seeks. Counsel for Semity Pty Limited submitted in the alternative that I should make an award of damages for non-payment of the rent, the amount of the damages being equivalent to an amount calculated as interest at a reasonable rate for the relevant period. The relevant authorities on this question include London, Chatham and Dover Railway Co. v. South Eastern Railway Co. €1893] A.C. 429, Wadsworth v. Lydall €1981] 1 W.L.R. 598 and President of India v. La Pintada Compania Navagacion S.A. £1985] A.C. 104. Having considered them I have decided that this is not a case where the authorities establish that the respondent, Semity Pty Limited, is entitled to claim interest by way of damages. If, contrary to the conclusions at which I have arrived, I had reached the conclusion that interest was recoverable on any basis, I would not have awarded it for the total period of six years or so which is involved. In my opinion, Semity Pty Limited, has been guilty of substantial delay in prosecuting these proceedings. The period for the award of interest would have been much shorter than the s1x years for which counsel sought it. Semity Pty Limited 1s entitled to interest from 9 December 1986 to the date of judgment, not because of the provisions of any statute or the common law. but because, when the matter was adjourned on 9 December 1986, I imposed a condition that Mr. Beater pay interest on the amount of any rent due from 9 December 29. 1986 to the date of judgment at the rate of 15 per cent. The amount involved is $1,099.87. That amount should be added to the amount due for the outstanding rent with the consequence that the amount for which the respondent, Semity Pty Limited. is entitled to judgment on its cross-claim is $9,817.64. Mr. Beater must vay the respondents' costs of the application (including the reserved costs) and the costs of the respondent, Semity Pty Limited, of its cross-claim. \ certify that this and the 28 preceding 2 ges are a true copy of the reasons for : Igment herein of The Honoureble Mr Justice Shoppers / . Associate Dated 12 OCTOZER /98&7 Counsel for the Applicant: On 8 December 1986: Mr. W, Hodqekiss with Mr. J. Davidson On 9 December 1986 and 21 September 1987; Mr. W. Hodgekiss On 22, 23 and 24 September 1987: Mr. W. Hodgekiss with Mr. G. Moore Solicitors for the Applicant: Schrader, Coyle & Associates of Parramatta by their City Agents, Ashton Stedman Counsel for the Respondents and Cross-Claimant: Mr. R.G. Forster Solicitors for the Respondents and Cross-Claimant: Abbott Tout Creer & Wilkinson Dates of Hearing: 8 and 9 December 1986 and 21 to 24 September 1987 inclusive