FEDERAL COURT OF AUSTRALIA STATUTES - construction of - Land Act 1962 (Q) ss 343, 345 - whether discretion remaining after approval - Acts Interpretation Act (Qld) 1954 ss 4 and 23(1); Cth 1901, s 33(1)) - power to reconsider ESTOPPEL - in connexion with discretions or powers to be exercised - characterisation as operational/policy decisions- whether may operate when not substantially hindered ESTOPPEL - requirements of - quality of representation - reliance - continuous state of affairs FRAUD - requirements of - whether case as pleaded - whether damage follows NEGLIGENCE - in connexion with exercise of statutory powers - whether duty of care - representations on serious matter - whether continuing duty to warn - misrepresentation of legality of action BREACH OF STATUTORY DUTY - requirements of duty - right to have the duty performed - intended ground of liability MISFEASANCE IN PUBLIC OFFICE - duty to perform - requirement of malice or knowledge - dishonesty STATUTORY DEFENCES - ss 24(10) Land Act 1962 (Q) - bona fide attempt to give effect to legislation - duty VARIATION - of lease terms approved by Minister - further terms agreed not approved - effect on claims based on lease - whether remedy available. LEASE - effect in equity - statutory provision withholding validity AGREEMENT FOR LEASE - parties to - undisclosed principal - trustee as agent AGENCY - local authority agent - trustee of Crown lands - whether agency consistent with statutory scheme - authority to be inferred - undisclosed principal INDUCEMENT TO BREACH AGREEMENT - intention to harm - act constituting repudiation - reckless indifference BREACH OF LEASE - agreement by estoppel - quality of representations - implied terms - same facts to establish estopped and implied terms. LOSS AND DAMAGE - loss of commercial opportunity - calculation of hypothetical profits - contingencies - whether viable - contingency of exercise statutory power - reliance damage - wasted expenditure Statutes Acts Interpretation Act 1901 (Cth) s 33 Acts Interpretation Act 1954 (Qld) s 23, 24AA, 36 Criminal Code 1899 (Qld) s 366 Crown Proceedings Act 1980, (Qld) s 9 Fauna Conservation Act 1974-1989 (Qld) ss 558B, 53, 56 Harbour Act 1955 (Qld) s 79, 86 Land Act 1962 (Qld)ss 24(10), 334, 343, 345, 349,355 Local Government Act 1936 (Qld)ss 19, 19(4B) Local Government and City of Brisbane Town Planning Act Amendment Act 1985 (Qld) Mining Act 1898-1967 Queensland Marine Acts 1958-1963 (Qld) The Constitution Act 1867 (Qld) Trade Practices Act 1974 (Cth) s 45D Trusts Act 1973 (Qld) Cases Allstate Life Insurance Co v Australian & New Zealand Banking Group (1995) 30 ALR 469 Appl Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54 Cited Attorney General (NSW) v Quin (1990) 170 CLR 1 Cited Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9 Appl BMG Resources Limited v Pine Rivers Shire Council [1989] 2 Qd R 1 Appl BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Cited Brickworks Ltd v Warringah Shire Council (1963) 108 CLR 568 Cited Byrne v Australian Airlines (1996) 185 CLR 410 Appl Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520 Cited Emerald Construction Co v Lowthin [1966] 1 WLR 691 Dist Export Development Grants Board v EMI (Australia) Ltd (1985) 61 ALR 115 Refd Gladstone Town Council v Gladstone Harbour Board [1964] Qd R 505 Appl Grundt v Great Boulder Gold Mines Ltd (1937) 59 CLR 641 Appl Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 Cited In Re 56 Denton Road, Twickenham [1953] Ch 51 Refd Livingstone v Westminster Corporation [1904] 2 KB 109 Refd Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Appl Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 Cited Northern Territory v Mengel (1995) 185 CLR 307 Appl Palmdale Insurance Limited v Sprenger [1988] 1 Qd R 414 Dist Price Higgins Fidge v Drysdale [1996] 1 VR 346 Appl R v Toohey; ex parte Northern Land Council (1980) 151 CLR 170 Refd Roberts v Repatriation Commission (1992) 39 FCR 420 Refd/Cited San Sebastian Pty Ltd v Minister for the Environment (1986) 162 CLR 340 Appl Sanders v Snell (1997)143 ALR 426 Refd Scarfe v Federal Commissioner of Taxation (1920) 28 CLR 271 Refd Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 Appl Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416 Dist The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Appl The Commonwealth v Verwayen (1990) 170 CLR 394 Appl Thorby v Goldberg (1964) 112 CLR 597 Refd Townsville Hospitals Board v Townsville City Council (1982) 149 CLR 282 Trobridge v Hardy (1955) 94 CLR 147 Appl Walsh v Lonsdale (1882) 21 Ch D 9 Refd Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387 Appl Webster v Lampard (1993) 177 CLR 598 Appl JL Holdings Pty Ltd v State of Queensland SG 1 of 1994 Kiefel J Brisbane 6 March 1998 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY sG 1 of 1994 BETWEEN: JL Holdings Pty LTD Applicant AND: State of Queensland Respondent JUDGE(S): KIEFEL J DATE OF ORDER: 6 march 1998 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application be dismissed. 2. Further argument as to costs be adjourned to a date to be fixed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY SG 1 of 1994 BETWEEN: JL Holdings Pty LTD Applicant AND: State of Queensland Respondent JUDGE(S): KIEFEL J DATE: 6 march 1998 PLACE: BRISBANE INDEX THE ACTION AND ITS BACKGROUND........................................................................................................................... THE FIRST PERIOD - 1987 TO DECEMBER 1989........................................................................................................ JLH's proposal and events leading to its acceptance................................................................. Cabinet "approval"................................................................................................................ Negotiating the leases............................................................................................................ The Minister's "approval"...................................................................................................... THE SECOND PERIOD - 2 DECEMBER 1989 TO OCTOBER 1991......................................................................... Early considerations by the new Minister................................................................................ Negotiations with the Minister................................................................................................ Consideration by Cabinet - July to 22 October 1990............................................................. Meetings with the Deputy Premier (November 1990 to 10 April 1991).................................. Mr Rudd becomes involved: Plans for the boardwalk............................................................ The Esplanade Project goes to Cabinet.................................................................................. The Minister's decision.......................................................................................................... THE CLAIMS AND DEFENCES.......................................................................................................................................... The claim of fraudulent conduct.............................................................................................. The construction of sections 343 and 345 Land Act - whether a discretion under s 345 or power to reconsider Whether the Minister could be held obliged to endorse - the case in estoppel.......................... The claim in negligence.......................................................................................................... The claim of breach of statutory duty...................................................................................... The claim of misfeasance in public office................................................................................. The Statutory Defences......................................................................................................... The Deed of Variation........................................................................................................... Whether lease effective without endorsement under s 345....................................................... The claim on the agreement for lease...................................................................................... The claim of inducement to breach agreement for lease........................................................... The claim of breach of lease................................................................................................... The claim of defamation......................................................................................................... ASSESSMENT OF LOSS AND DAMAGE..................................................................................................................... Approach to assessment of damages -loss of profits....................................................... Loss of profits - method of calculation............................................................................... Revenue and expenditure - generally.................................................................................... Revenue - the themed attractions - constraints identified....................................................... Revenue - the food and beverage outlets.............................................................................. Revenue - the retail outlets................................................................................................... Summary (of Revenue)........................................................................................................ Costs and operating profit.................................................................................................... Conclusions on project - profit or loss?................................................................................ Further constraints as contingencies............................................................................... Cost of construction and fitout............................................................................................. Finance............................................................................................................................... The prospect that the reserves (and their leases) be cancelled............................................... Whether necessary approvals for the fauna park would have been granted............................ Whether approvals for ferry terminals and wharf facilities would have been provided............. Whether liquor licences would have been granted................................................................. Whether compliance with the requirement that an alternative boat ramp be provided, was possible Whether the fauna park and aviary were viable..................................................................... Conclusions on the further contingencies............................................................................... ALTERNATIVE CLAIM - wasted expenditure and liabilities incurred......................................... FURTHER ALTERNATIVE CLAIM - alternative projects.......................................................................... ANOTHER APPROACH TO DAMAGES - value of the lease........................................................................ SUMMARY AND ORDERS............................................................................................................................................... IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY SG 1 of 1994 BETWEEN: JL Holdings Pty ltd Applicant AND: State of Queensland Respondent JUDGE(S): KIEFEL J DATE: 6 march 1998 PLACE: BRISBANE REASONS FOR JUDGMENT THE ACTION AND ITS BACKGROUND In 1987 the Brisbane City Council ("the Council") acquired freehold land at Kangaroo Point situated at the northern end of the base of the Kangaroo Point Cliffs and adjacent to the Brisbane River. The land and cliffs had been hewn by quarrying activities many years before. A view of the cliffs can be gained from some points in the City of Brisbane. Two buildings had been much earlier constructed on the land, and they had been used as naval stores. This land is referred to in these reasons as "the ONS site" (the Old Naval Stores site). To the south, upstream and abutting these lands, were vacant lands. In 1976 they had been reserved from Crown lands and set apart for park and recreation purposes under the Land Act 1962 (Qld) under the control of the Council as trustee. Reserve 2721, containing an area of 2.378 ha, adjoined the ONS site. The substantial part of the Kangaroo Point Cliffs lay behind these lands. Reserve 2713, some 2.27 ha in area, continued on from the southern boundary of Reserve 2721 and underneath the Captain Cook Bridge near Ellis Street. The "reserve lands", as I shall call both reserves, were long, narrow and irregular in shape. Only Reserve 2713 had a road frontage. The ONS site had none, and vehicular access to it was possible only through the reserve lands. Part of the reserve lands contained a body of water which had been created, in relatively recent times, when an existing depression was opened to the waters of the river. A boat ramp was its only facility. Like the naval stores buildings themselves, it had not been well maintained over the years. This body of water was referred to variously in the proceedings as "the boat basin", the "boat harbour" and "the naval lake". By a process initiated by the Council in 1987, the applicant J L Holdings Pty Ltd ("JLH") came to be accepted as the "preferred developer" of the ONS site owned by the Council. In January 1989 the Cabinet of the then government gave approval to JLH's proposed development. The status of that decision, and the nature and extent of the development to which it had regard, is in issue. The possibility of using the adjoining reserve lands, at least to enable vehicular access, had been flagged by the Council in its invitation to tenderers. JLH's proposal went further and proposed the use of the reserve lands for restaurants, retail uses and carparking, together with use of the boat basin. Its overall proposed development also included a fauna reserve, aviary, and theatres. A ferry from the city was to be provided as one of the principal modes of access. After Cabinet's approval, a lengthy period of negotiation followed between the Council, JLH and the Lands Administration Commission, (the "LAC"), the authority charged with administration of reserve lands under the Land Act 1962 (Qld), subject to the Minister. That Act prohibits the leasing of reserve lands by the Council, the trustee, without the approval of the Minister responsible, then the Minister for Land Management. It is alleged by JLH that it was given such an approval either by the Cabinet decision in January 1989 or by the Minister in October 1989. Whether that approval was given, as required by s 343 of the Land Act, is in issue. A letter of 26 October 1989 from the LAC to the Council advised that, subject to some amendments and other requirements, a lease of the reserves would be allowed, and should be lodged with the Minister for his consent. Another section of the Land Act s 345, requires the Minister's endorsement of approval on the lease itself, and without it a lease is to have no effect. Although JLH points to the possibility that this might have been attended to, no document can now be produced with such an endorsement and JLH concedes that it is unable to establish that it did occur. In December 1989 a change in government took place. There had been opponents of the project. The new Minister for Land Management in the "Goss government" met with some of them and with Mr Mantle, the driving force behind JLH, in early 1990. Discussions towards some compromise continued. In the process, potential legal problems with the proposed leases of the reserve lands were highlighted. The matter finally came back before Cabinet on 22 October 1990 when it resolved that a restricted form of development could continue downstream from, but not including, the boat basin with only limited use to be made of the reserve lands and that only permits, and not leases, would issue. The prospect of litigation was raised. Negotiations were then held between JLH and the Deputy Premier and continued through to April 1991. At about the same time a proposal for a development of the river bank, which included a fixed public boardwalk, was being investigated. Those concerned with it included the Deputy Premier and the Director-General of the newly formed Office of Cabinet. In July 1991 Cabinet decided that the "Kangaroo Point Esplanade Project", as it had been named, ought to proceed and that JLH be advised that approval to its leases would not be forthcoming. These courses of action were not the subject of immediate implementation. Following legal advice JLH was permitted to provide written representations. On about 9 September 1991 the Minister for Land Management is said to have decided to decline the necessary endorsement to the leases of the reserve lands under the Land Act. JLH and the Council were so advised on 4 October 1991. The central issues in JLH's case are whether the provisions of the Land Act obliged the Minister to endorse the fact of earlier approval, or whether he might be regarded as having done so by being held to a representation that it had been approved and that endorsement would be forthcoming. The respondent's answer is that there was a complete discretion under s 345 to refuse and that no estoppel can be raised against the exercise of that discretion. Additionally, and following further leave to amend having been granted, the respondent contends that in any event what was put forward for endorsement was not a document in the terms allegedly approved by Mr Harper in October 1989. JLH further alleges, in the alternative, negligent misstatement, breach of statutory duty and misfeasance of office on the part of the Minister for Land Management. Damages are also sought on the basis that the agreement for lease between JLH and the Council bound the respondent, as undisclosed principal, to provide the endorsed lease of the reserve lands; alternatively that the Council was induced to breach that agreement; and further that a lease of the reserve lands can be taken to have had effect at law, despite provisions of the Land Act to the contrary, and that the respondent breached that agreement by refusing to endorse approval. Issues relating to the Minister's obligations were not pursued at an early point and questions arise out of that. These proceedings were not brought until 1994. JLH counters with a claim based upon the alleged fraudulent conduct of the Premier, the Director-General of the Office of Cabinet and the Department of Lands and the Minister for Land Management, in 1991. It alleges that it was deceived into believing the Minister would consider its representations for endorsement, in circumstances where a decision had already been made that JLH's proposal was not to proceed and an esplanade project would instead, and that it was being implemented. As a result JLH alleges it was placed in a position where the prospect of successful litigation had been lost, because at the time it was advised of the Minister's decision, the public works in the esplanade project were about to commence. In each of these claims JLH is alleged to have lost the opportunity to make profits out of the development. Its claims range between $37M and $48.5M. A number of issues arise in connexion with the prospect of the development being able to proceed, even with a lease of the reserves, and its viability. Each of the claims referred to was pursued to submissions. A claim for defamation, arising out of statements made by the Deputy Premier concerning Mr Mantle in November 1991 although barely touched upon in the hearing, is also pursued. The only claims abandoned by JLH during the hearing were those for breach of copyright, civil conspiracy and one brought under s 45D Trade Practices Act 1974 (Cth). Proceedings against Southbank Corporation were also discontinued. As will be observed from this outline, the history of the matter falls into two periods, the division of which is marked by a change in the government. I shall deal with the factual background in that way. THE FIRST PERIOD - 1987 TO DECEMBER 1989 JLH's proposal and events leading to its acceptance When the Council determined to purchase the ONS site from the Commonwealth, it had in mind putting the land to some tourist or recreational use. In order to facilitate such a development it intended to obtain tenure to the adjacent land below the high water mark, including wharf structures, and obtain a practical means of access to the site through the reserve lands. The last mentioned matter was unresolved in August 1987 when the Council issued an invitation to tender for the lease and the development of the ONS site. The lease offered was for 30 years. Tenderers were advised that the use of the site was required to have the river as its focus, to involve cultural, tourist, recreational and entertainment uses and that preference would be given to proposals which provided access to the site by alternative transport, for example by trams or ferry. The successful tenderer was to be responsible for the repair, restoration and ongoing maintenance of the naval store buildings and the wharf structures. With respect to the question of vehicular access to the site, the Council informed tenderers that they were to be responsible for making application to the State Government to obtain a right of access through and carparking on the reserve lands. Although the tender process was never concluded by acceptance of one tender, mention needs to be made of certain conditions of the tender, which are relied on by the respondent as identifying what JLH's proposal must have incorporated. This has particular relevance to the question of damages. The form of tender was, by the conditions, required to be accompanied by: "(a) all plans, specifications, documents, drawings and other details necessary to fully and accurately describe to the Council the works proposed to be effected by the Tenderer; (b) full and accurate particulars as to the nature, extent, quality, standard and construction thereof; (c) a statement from the Tenderer's financiers as to the Tenderer's financial position and the methods by which the works proposed to be effected by the Tenderer will be financed." The tenders closed on 2 September 1987. Prior to tenders being called, and in about June 1987, Mr Mantle of JLH had discussed ideas for the site with the then Lord Mayor, Alderman Atkinson. It is not necessary to detail just how Mr Mantle became interested in the site and a prospective development of it. Mr Job, an architect, had drawn his attention to it and suggested a mix of uses which he considered would provide an attraction different from what was then available. At a meeting with the Lord Mayor, Mr Mantle produced a brochure which contained elements of the ideas. A similar brochure was also included in JLH's tender documents. The documents forming part of JLH's tender were the documents entitled "Tender", a series of elevations and plans, a videotape and an amended form of the brochure referred to above. The content of a tender is, of course, usually detailed and sufficient to permit a contract to come into existence between the parties on acceptance. JLH's proposal, whilst wordy and containing many figures and projections, was more in the nature of an outline with respect to the built form. A number of prospective areas and facilities were listed and some, but not much, detail was given of them. Some of them came to be changed later. Just what it was that JLH intended, and was able, to build and provide on site, within the parameters of what had been agreed with the Council and the respondent, is very much in issue in these proceedings. The plans which were forwarded with the tender comprised a "Development Plan" and what were described as two floor plans of buildings on the site. The former showed the position, in general terms, of the proposed facilities. They included elevated walkways, waterfalls, nocturnal forests, restaurants and retail shops, theatres, fauna reserve, nature park, a koala house or hospital, an adventure playground, a barrier reef theatre, island, picnic and a carpark. The plan also contained an elevation from the city and small sections through four parts of the site. The floor plans of the restaurant, retail and function rooms were indicative. The construction of the buildings and other facilities was said to cost $20M and to require six months for construction "from vacant possession and approval received from all local and government authorities". The only reference to the method of financing was the nomination of Development Equity Corporation as either having a vested interest in the tender, or as financing it. In addition to nominating a premium, JLH suggested two alternative approaches with respect to rental. The rental was said to be calculated by having regard to the value and negative and positive aspects of the site. The latter is said to bear upon Mr Mantle's later evidence as to features of the site. The document observed that the site had poor access but that it was thought that JLH's treatment of the site could overcome the problem; that it was vulnerable to flood; and that because of the western aspect of the site, it would become very hot, particularly during summer afternoons. As a consequence, it was said, JLH had allowed a substantial budget for landscaping and waterfalls and all buildings were to be airconditioned. In summary, it was said that the site did have some inherent problems, which was probably one reason why the site had not previously been developed. On the other hand, it went on, the site had a superb position, close to the central business district and was accessible from it. The view of the site from the city, with the cliffs behind, was said to be a positive feature, as was the historical significance of the cliffs. The "strands of income" identified were principally from four sources: the fauna reserve and aviary, the food and liquor outlets, the theatres and the retail facilities. It was considered that some of the regular patronage, such as that to the restaurants, function rooms and tavern, would be independent of the other attractions. Substantial entertainment was proposed and the design was to be of "world class standard". It appears that a high level of staffing was proposed. With respect to transport, JLH undertook to build two major terminals for tourist boat operators and ferry operators and was said to be enthusiastic about linking with a full scale tram and other modes of transport. In the section entitled "features of old naval stores as a major tourist attraction," it was said that "both in design, construction and on-going management, there will be a commitment to excellence". What was then listed is pointed to by the respondent as bearing no resemblance to that which is now said by JLH to be the proposal it would have proceeded with. I shall deal with the differences pointed to later in these reasons. In the tender documents there were references to outdoor cooking by experienced chefs; the tavern being the "best venue" of any tavern in Australia; the landscaping and wildlife environment the "finest in Australia"; the theatre being an "omnimax" theatre with software and film especially commissioned for the project; there being a "stunning display" of opals in the opal mine and film theatre and polishing room; a budget of $1.5M being provided for the restoration and furnishings of the naval store buildings; a mini-tram and river ferry being provided and that the facilities would remain open all year. The landscaping was said to include the creation of a "barrier reef island". There were to be two orientation theatres: a fauna theatre and a barrier reef theatre. A theatre was also to be associated with the aviary which was to contain "up to 2000 species of birds". The animals said to be included in the fauna reserve were koalas, platypus, wombats, echidnas, wallabies, possums, dingoes, kangaroos, crocodiles, snakes, lizards and nocturnal animals. Access to the koalas was proposed by walkways into the treetops, so that visitors could be photographed alongside them. JLH was said, however, to be conscious of interaction with koalas such that they would not suffer stress. The respondent points to the tender documents as promising a level of opulence that is not to be found in what is now costed by JLH as its proposal for the reason, it says, that what is contained within the tender documents could never have been built for the prices upon which JLH based its feasibility studies and projections. For example, in the tender documents, it was said that the function rooms would contain beautifully restored antiques; the tables of the restaurant were to be polished marble and granite; chairs were to be especially designed cast iron chairs; display cabinets were to be faced with curved blocks of granite and marble and drinks - serving bars were to be bullnosed granite or marble. The brochure submitted as part of the tender documents entitled "A Salute to Brisbane", contained an artist's impression of the finished development, and of the modes of transport to and within site - a ferry and tram. Three orientation theatres, with substantial services, were displayed, as was an "experience theatre" which was said to involve more than the visual sense. A musical playground was shown. The brochure tended towards exaggeration. For example the birdlife was said to include not only rare or unusual birds, but also brolgas which were to appear in "wetlands". The promotional style of the brochure, replete with overstatement, would have been apparent to most. Similar comments could be made about the video which accompanied the tender. More to the point, perhaps, is that it referred to some features which were later jettisoned - for example the opal mine, the experience theatre, the extent of staff and the musical playground. The range of animals to be displayed did not later include dingoes, crocodiles and the like and there was not to be research into koala diseases, although I accept that it may have been hoped that some such features could be included when the final detail of the proposal came to be resolved. Overall the proposal at this point was, I accept, largely conceptual and could be described only in general terms by reference to proposed uses and features of construction. On 19 September 1987, and before any decision had been made by the Council on the tenders, fire destroyed part of the naval stores buildings. As a result the Council sought tenders again, taking into account the change of circumstance. The second invitation and JLH's tender in response, made on 10 November 1987, were in substantially the same terms. The second tenders closed on 11 November 1987. Later that month the Lower River Terrace Committee (the "LRT" Committee) recommended, in its report to Cabinet, that it await Council's selection of tender before it made recommendations as to the development of the Crown lands nearby. However, the prospect of the Council being able to accept a tender faded. Many of the tenderers had identified the reserve lands as necessary to their proposals, and on 29 December 1987 the Council wrote to the LRT Committee about it. In January it wrote to the LAC and a meeting was arranged. On 28 January 1988 Mr Mantle wrote to the Chairman of the LAC, Mr Baker, seeking favourable consideration of a suitable leasing arrangement of the reserve lands which would permit his project to proceed. In this endeavour he utilised the services of a firm of lobbyists. On 2 February 1988 an officer of the Council and two officers of the LAC met. In connexion with the indications sought by the Council as to commercial development of the reserve lands, Mr Jones of the LAC advised that there had not been approval of prior proposals involving carparking and access on and through the reserves and that the Brisbane River Committee had previously opposed carparking in this area. Mr Jones advised that he would be reluctant to present the matter to Cabinet again without some new information and suggested that the Council make available to the LAC those parts of the tenders which referred to the reserve lands together with the Council's views, as trustee, with respect to those uses, and that it request consideration of the matter. Mr Jones then undertook that, if further consideration was warranted, the matter would be brought to the attention of the Minister to consider referral to Cabinet. In accordance with that suggestion the Council wrote on 16 February 1988 enclosing four tenders. It advised that it offered no objection to the concepts of developments contained in them and concluded by saying that the matter was submitted "to your Commission for consideration of the four tenders submitted". On 22 February 1988 Cabinet had before it a report of the LRT Committee dated 18 February 1988. It advised that the Council had made no final decision on the tenders since they involved use of the reserve lands and that the views of the Crown were sought. It noted the LAC's concerns about making available public land in connexion with commercial redevelopment. So far as concerned the LRT Committee's criteria for redevelopment of the area, only the proposal by JLH and one other met them, although it indicated problems that JLH had with its proposal. Cabinet decided that the LAC ought give consideration to a further submission which was to be made by the Council and that it continue to liaise with other departments concerning any proposed development by a tenderer "chosen by Brisbane City Council" and that a further report then be submitted to Cabinet by the Minister for Land Management. On 30 March 1988 the LAC wrote to the Council, in response to the latter's letter of 16 February 1988 advising that the Commission did not wish to influence the Council's decision-making in selecting a preferred developer, but suggested two options. One involved an alteration of the tenure of that part of Reserve 2721 which was situated north of the boat basin to permit carparking. The alternative was to freehold the land and grant to the Council the balance of the reserve lands, to be retained for public purposes and facilities, and subject to any constructed access through the lands remaining open for public use. These were said to be alternatives which the LAC might recommend and put before the Minister for his consideration. On 2 August 1988 the Council resolved to reject all tenders but to nominate JLH as the preferred developer "for negotiation purposes with the view to Council seeking approval under s 19(4)(b) of the Local Government Act 1936 (Qld) in due course to allow 30 year development lease of the site" and that prior to Council seeking such an application, JLH was to be given such time, as might be agreed, to make arrangements with the Crown for tenure over the reserve lands. The reference to "19(4)(b)" was to section 19(4B) of the Local Government Act which provided that the Governor-in-Council may on the Minister's recommendation, grant approval to a local authority to enter into a contract which the Governor-in-Council considers to be for major development works that are proposed on land vested in or under the control of the local authority. JLH and Mr Mantle were advised of this decision by letter dated 15 August 1988. By that letter the Council also advised that it would consent to any changes with respect to the reserve lands and would grant a lease, subject in both cases to Crown approval. Mr Mantle had been informed of JLH's appointment on an earlier occasion and had written to some Ministers and to the Chairman of the LAC on 29 July 1988 asserting that JLH had been declared the successful tenderer and seeking support for what was described as a major tourist development. On 2 and 3 August 1988 respectively, Mr Mantle's lobbyist and Mr Mantle contacted the Minister for Land Management with respect to the project, and sought his early consideration of it. Cabinet "approval" Some months earlier Cabinet had appointed the Kangaroo Point Cliff Committee ("the Committee"), an interdepartmental committee, to consider a co-ordinated development plan for the whole of the riverbank and cliff face area at Kangaroo Point. On 19 September 1988 that Committee met. Mr Mantle, Mr Job and their lobbyist attended and gave a presentation to the meeting. One question asked of them concerned the number of carparks intended to be provided and Mr Mantle advised between four and six hundred. The development, the Committee was informed, would cost $20M. The height of structures was also discussed by members of the Committee, who appear to have been of the view that they ought to be restricted to the height of the naval store buildings. This had the result that the omnimax theatre could not be included in the proposal. Subsequent to that meeting Mr Mantle engaged a surveyor and had discussions with members of the committee concerning the number of carparks. It was ultimately agreed that there be 250 carparks in stage 1, and that a further 150 be provided for in stage 2, in case of demand. The concept of free ferries running was also raised, according to Mr Mantle's evidence, in these discussions. The revised plans were said to have been presented to the Committee at the next meeting on 12 October 1988. On about 23 November 1988 the report of the Committee was provided to Mr Mantle. It advised that the modified design plan submitted by JLH over the reserve lands was suitable and recommended that the Minister for Land Management give approval to the Council to lease these reserve lands under the provisions of the Land Act. The Minister, Mr Glasson, submitted the report to Cabinet together with a recommendation that the Kangaroo Point Association ("the KPA"), which had expressed concerns about the proposal but had not been made aware of the recommendations, be advised of relevant parts of it. That submission was accepted. In the meantime Mr Mantle wrote to the Premier seeking his assistance. In November 1988, Mr Mantle instructed his solicitor, Ms Hart, to prepare Heads of Agreement. A series of drafts were produced and discussed between JLH and the Council. By the end of November the Council was of the view that agreement in principle had been reached and resolved to apply for both the s 19(4B) approval and that necessary under the Land Act. On 8 December 1988 the view of the KPA, that the use of the reserve lands as public lands be retained except for some carparking adjacent to the naval store buildings, was put before Cabinet. The Minister for Land Management recommended that the LAC be authorised to negotiate further with JLH for a less intense use of part only of Reserve 2721, which would include elimination of the theatres and waterfalls, with a view to the possible issue of a lease of a minimal area of the reserves in terms of s 343 of the Land Act "from Brisbane City Council as trustee of the reserve to the developer". That recommendation was accepted. In letters by Mr Mantle to Ms Nelson of the Brisbane River Committee and by the lobbyist to the Premier in late 1988, reference was made to the considerable monies already expended by JLH, and in particular with respect to architectural planning documents, and they pressed for the matter to "advance to lease determination and Council consideration". Mr Mantle also made complaints about the LAC. On 23 December 1988 Mr Mantle and Mr Job met Mr Jones of the LAC. Notes of the meeting record Mr Jones as saying, at the outset, that whilst Council was the trustee of both reserves, "the Crown retains control of those lands …". JLH was recorded as accepting the inevitability of two leases, one with respect to the ONS site and one with respect to the reserve lands, although Mr Mantle had said that it would prefer one landlord. The Cabinet concerns, of which Mr Mantle was made aware, related to the continued use of the cliffs by rock climbers; carparking; the height of buildings; and the size and volume of the waterfalls. Mr Mantle then travelled overseas. There are claims with respect to the cost of this travel, which was said to be associated with aspects of the project. On 29 December 1988 the Council wrote to the LAC seeking authority, in accordance with sections 343 to 350 of the Land Act, to lease Reserve 2721 and part of Reserve 2713 on terms and conditions to be approved by the Minister for Land Management and advising that an application would be made to the Minister for Local Government for an approval under s 19(4B) for the Council to enter into a 30 year development lease of its own freehold land and the abovementioned reserve lands necessary to contain the development. JLH relies upon this letter as disclosing "the proposal as presently submitted" to Cabinet. In it the Council referred to its earlier resolution, in August 1988 that JLH be nominated as preferred developer in relation to a 30 year development lease of freehold Council property known as the ONS site; that as part of the proposal JLH desired to develop a unique park and environmental reserve on adjoining land held in trust by the Council - the whole of Reserve 2721 and part of Reserve 2713; that negotiations with JLH resulted in agreement in principle as to the desired form of development which, in turn, would conform with town planning requirements; that authority was sought under sections 343 to 350 of the Land Act for approval of a lease for a period of 30 years and that approval under s 19(4B) would be sought. Mr Jones of the LAC had requested further information for submission to Cabinet and on 10 January 1989 Mr Job provided it. His letter dealt with the carpark, boat ramp, tram, waterfalls and landscaping. This letter was put before Cabinet by Mr Glasson as part of the submission. After outlining JLH's proposal three options were suggested to Cabinet: "(a) to reject entirely the concept of commercial usage of the reserved land at the base of the Kangaroo Point cliffs in association with the proposed redevelopment of the Old Naval Stores; (b) to approve the proposal as presently submitted by the Council and the preferred tenderer; and (c) if the concept of such usage of the Crown Land is acceptable to Cabinet, for the reasons expressed in this submission, to reject the proposal by the preferred tenderer to enable Council to recall tenders to give an opportunity to other would-be tenderers to include the Crown land in their submissions. The Land Administration Commission prefers this option." Mr Glasson said in evidence that he was aware of the extent of opposition to the proposal and he was personally opposed to it because it used public land for private gain. This does not appear to accord with the understanding of officers of the LAC, but nothing turns upon it. In any event Cabinet resolved: "That approval be given to the proposal as presently submitted by the Brisbane City Council and the preferred tenderer". The submission by the Minister to Cabinet detailed the result of discussions had with Mr Mantle and Mr Job. The carpark, which was drawn on a "concept plan" showing Reserve 2721, was to provide initially for 200 cars, with footway and bike track along the riverfront, and barbecue areas and landscaping for public use. Access to the cliff face and roadway through the reserve lands were to be retained as open to the public. The lake in the development was to be formed by sealing off the existing "marina". JLH was said to propose running "an old Brisbane tram" from the carpark along the river to the naval stores. Earlier documents, associated with the tender, had referred to a scaled down version. Between the naval stores and the lake there were proposed to be some "low profile" buildings, housing, the theatres, gift shops and public toilets. The waterfalls were now to be "soft" and "mist-like". The area would be heavily landscaped with well advanced trees and it was proposed to spend some $3M on landscaping. The Cabinet press release with respect to the decision stated that Cabinet had approved the Council issuing a lease over the Crown reserve lands to allow the $20M redevelopment proposal by JLH to go ahead. The respondent's case is that the decision of Cabinet was only one of political support or an "in principle" decision. JLH refutes this and says that it was this decision which set the whole matter in train. It was the "go ahead" for the development and stood as a representation to it that a lease would be issued. Mr Mantle says that he also believed it meant that all necessary approvals would be forthcoming. If that were the case, many areas of discretion were said to be overborne. Statements made by Mr Mantle, in the course of the negotiations which followed, do not however bear out the existence of such a belief. It may be, of course, that Mr Mantle and Mr Job did not foresee any difficulty with respect to the necessary approvals, in particular because JLH had the support of Cabinet for the proposal, at least until the government changed. Mr Mantle was interviewed by a local newspaper on 20 January 1989, which reported him as saying that he expected the development to be completed by late 1989 or early the next year "depending on approvals" (which I take to refer to the timing of the approvals and not to the likelihood that they would issue). The letter to JLH from the LAC however advised of the terms of the Cabinet decision and that a draft of Council's intended lease would soon be lodged with the LAC for due consideration "in accordance with the relevant Land Act provisions". Mr Mantle said that he believed he had binding agreements in place and that the government was obliged to honour them and proceed. I do not have difficulty accepting that Mr Mantle believed, at this point, that a lease would issue. Mr Mantle held a degree in law, although he had not practised. But regardless of his understanding of legal matters, I consider it less than likely that he turned his mind to whether he had a binding contract with either the Council or the government. There was at this early stage, and when all was going well, no reason to think the project would not be realised. The letter forwarded by the LAC to the Council on 23 January 1989 was in somewhat different terms and advised that, since Cabinet had approved the proposal, "the Section 343 lease Council proposes is allowed and Council should now proceed to lodge a draft of its intended lease for due consideration of the terms and conditions thereof." The matters which it went on to list as necessary to be dealt with in the draft were those relating to the carpark and other aspects of the proposal which had been referred to in the Minister's submission to Cabinet. Most of them were connected with the reserve lands, and no doubt addressed, to some extent, objections made. Mr Mantle said he was shown the letter at the next meeting held with the Council, but I do not think that takes the matter any further. He was sufficiently experienced as a businessman to know that leases which parties were willing to give usually eventuated after discussion of the terms and conditions. In the case of the reserve lands there is the additional requirement of the Minister's own approval under s 343 Land Act. This is the subject of submission to be dealt with later. At this point, however it seems doubtful that Mr Mantle had looked into or appreciated just what was involved, and simply accepted that a lease would issue because Cabinet had given its approval to the project. At later points Mr Mantle's attention was directed to the legal position. As early as 20 February 1989 Mr Mantle had observed a clause in the draft documentation which contemplated the possibility that the Governor-in-Council might terminate the lease of the reserve lands. Whilst accepting the advice that this was unlikely to occur, he noted the need to obtain agreement not to do this. Negotiating the leases In February 1989 Mr Mantle and Mr Job visited a tourist attraction in Launceston, Tasmania. This led to their decision to eliminate the barrier reef island in the boat basin and provide, instead, a fort and replica ship. It is also an indication, at this early time, that they considered that the development was able to be altered. In early March 1989 Mr Mantle forwarded an amended layout and advised measures to be taken with respect to the visual obtrusiveness of the buildings, the deletion of the omnimax theatre, the changes to the waterfall, roads and carpark. At about this time Mr Job advised Mr Mantle of the approvals required for the project which included not only those of a town planning kind, but also those required under various Acts. As I have said, one can accept that Mr Mantle may have thought there would be no difficulty with obtaining them because none had been pointed up by his architect or anyone else. Draft leases were prepared in February 1989 by the Council and forwarded to JLH's solicitor. Ms Hart suggested the preparation of a form of agreement for lease, to which a lease of the Council's freehold land and a memorandum of agreement, with respect to the reserve lands, would be annexed. A copy was executed by JLH and returned to the Council but discussions then took place as to the need to insert a clause protecting the rights of rock climbers to use the cliffs and requiring alternative provisions for a boat ramp, although the ramp came to be dealt with by supplementary Deed. The Minister's "approval" On 3 October 1989 the Council submitted the agreement for lease, to which both the lease of the Council freehold land and the memorandum of agreement concerning the reserve lands were annexed, to the LAC "in accordance with negotiations reached between the parties and further to previous correspondence between the Department and the Council". It advised that the Council had applied for approval under s 19(4B) Local Government Act. With respect to the memorandum of agreement, it was pointed out that amendment would be required to record the fact that a buffer area was to be situated between the reserve lands and the cliff face for rock climbers and there was enclosed a survey drawing. A supplementary agreement, concerning a boat ramp to be provided but which had not been signed by JLH, was also enclosed. The letter sought early advices "regarding the acceptability or otherwise of the proposed Memorandum of Agreement". On the same day, the Council advised Ms Hart, by letter, that the Minister's consideration of the terms of the lease had been requested and that they hoped to be in receipt of the "department's comments" in the near future. On 6 October 1989 Mr Mantle wrote to the Minister in terms which acknowledged that following Cabinet approval in January 1989, the Council had been required to submit leases to the LAC "for Ministerial approval" but that delays had been encountered. Mr Mantle said in evidence that he wanted Mr Harper to look at the leases so that there could be no dispute that everything had been finalised. This implies, clearly enough, his understanding that the Minister's approval was necessary to conclude the matter. On 16 October 1989 Mr Mantle wrote to Mr Harper's secretary seeking approval of the lease as a matter of urgency and asked his secretary to telephone on a daily basis to check on the progress of the matter. Both Mr Mantle and the Council pressed for urgent consideration to the matter, in the case of the Council because of its forthcoming recess. The Council also advised that an approval under s 19(4B) Local Government Act would shortly be forthcoming. It is of some significance, in the history of the matter, that an election had been called and that it was widely believed that a change of government would take place, after many years of coalition government and following a highly publicised inquiry into police corruption. According to some Ministers who gave evidence at this hearing, that perception was shared by most members of the government. Mr Mantle said that he was also of that view and that that was the explanation for the letter of 16 October 1989. In these circumstances it may readily be inferred that Mr Mantle understood and appreciated the importance of obtaining ministerial approval to the lease of the reserve lands. Mr Mantle however denied that he was concerned that a new government might mean that the development might not proceed. He said that he was merely concerned that further bureaucratic delays might occur. I do not accept that. Approval in general terms had been given by this government and he knew that Mr Harper would process the lease if time permitted. What he could not know was what view a Labor government might have. His communications and actions are strong indicators of a sense of urgency to have the present Minister complete the matter and put it beyond doubt. If he had thought he had some agreement arising out of the Cabinet decision, he was clearly concerned to put the matter beyond doubt. On 20 October 1989 Mr Barnes of the LAC had completed his review of the proposed lease of the reserve lands and had prepared a memorandum for the Minister in which he recommended a lease under s 343 Land Act be allowed on the terms and conditions proposed, subject to some amendments he outlined and of rezoning, on the s 19(4B) approval being obtained. The latter would be necessary in order for the project to proceed and it was later obtained. Mr Jones of the LAC attached this memorandum to one which he had prepared for the Minister and in which he advised that, subject to the matters adverted to by Mr Barnes "the draft lease otherwise meets the requirements of the Land Act and the lease can now be approved in that form". It reminded the Minister of the Cabinet approval of 16 January 1989, of the extent of the opposition to it, and that provision had been made to meet some of it. On 23 October 1989 Mr Harper wrote the word "approved" on Mr Barnes' memo opposite the terms of approval recommended and the words "approved subject to amendments to be submitted to Brisbane City Council" on Mr Jones' memo. On 26 October 1989 the LAC wrote to the Council and a copy of this letter was provided to JLH's solicitor and then to Mr Mantle. It provided that subject to "the following amendments being made to the proposed lease" (amendment of the s 343 lease in the manner outlined in the letter of 3 October 1989) and to rezoning and to s 19(4B) approvals being obtained: "then such lease will be allowed and the lease copy should be lodged for the endorsed consent of the Honourable Minister for Land Management and for registration". In the agreement for lease, there was to be included a provision to the effect that the carpark was to be operated as open to the public and free of charge. In the memorandum of agreement for lease, Appendix B to the agreement relating to the reserve lands, provision was required to be made for the buffer strip at the base of the cliffs; that the uses be limited to those purposes for which the s 343 lease was granted and other uses would be subject to further ministerial approval; that such approval was also required, by the Land Act, to any assignment or transfer of the lease; that the Minister and the Crown should be included as co-insured with respect to the indemnities contained in the claim relating to insurances and that the freehold and reserve leases be conditioned to ensure no separate transfer could take place in the future. The letter concluded by referring to particular requirements for registration, and lodgement of the leases for that purpose. One further aspect of the documentation ought to be referred to, as relevant to the respondent's argument concerning changes to the terms of the lease of the reserve lands. At this time the memorandum of agreement itself left blank the commencement date of the 30 year term of the lease relating to the reserve lands. The agreement for lease however provided that it be the first working day immediately following the last of a number of nominated occurrences - the gazettal of the necessary rezoning, town planning or building approvals, the lease of the wharf structures, submission of working drawings, or issue of certificate of classification for the first stage building approval. The documentation was amended by JLH's solicitor and returned, executed, to the Council under cover of a letter of 8 November 1989. The solicitor also sought confirmation from the LAC that the amendments were satisfactory, but no response was received. Sometime in November Mr Mantle had obtained copies of the agreement for lease and annexures and delivered them to the Minister's office. There is some evidence that Mr Harper might have signed or endorsed such a copy. As I have earlier mentioned, however, no such document has been produced and JLH does not contend that endorsement occurred. Mr Mantle's actions are, once again, indicative of an understanding of what was necessary to be done. THE SECOND PERIOD - 2 DECEMBER 1989 TO OCTOBER 1991 Early considerations by the new Minister On 2 December 1989 a Labor government led by Mr Goss was elected. Mr Eaton was appointed Minister for Land Management. Within a matter of days Mrs Lamb of the KPA communicated with the Minister's office and on 5 December 1989 she met with Mr Scott of the LAC to discuss the extent of the proposed development by JLH. After this meeting Mrs Lamb raised a number of issues with Mr Scott, and one of them concerned whether the uses proposed were consistent with those nominated for the reserve uses in question under the provisions of the Land Act. This matter had been brought to her attention by Mr McKelvey, a solicitor and a member of the Brisbane Rock Climbers Club, a group which also had an interest in the future of the Kangaroo Point Cliffs. Mr McKelvey contacted the LAC in December and wrote to the Minister. Shortly after the meeting with Mrs Lamb, Mr Scott sought advice from the department's legal officer, Mr Bailey, as to that question. On about 12 December 1989 Mr Eaton met with Mrs Lamb. Also present were Mr Peter Beattie MLA, Alderman Quinn, Mr Long of the Department of Lands and Mr Scott. Mr Long's notes of the meeting refer to two issues being discussed: the extent of the reserve lands necessary for carparking in connexion with JLH's proposal and future access to, and the use of, the boat basin. Mr Scott recalls the Minister expressing the hope that some agreement might be reached between the interested parties, in the nature of a compromise. Following the meeting, and on 13 December 1989, Mr Scott sought further advice from Mr Bailey as to whether the Minister was obliged to endorse his consent. It is not clear whether the Minister expressed some definite view at this time, but I think it unlikely. It was contended by the respondent, at one point in submissions, that the Minister ought to be taken as having arrived at a view at this early time, that JLH should not be given approval with respect to all of the lands necessary for its project. It was difficult however to discern just what the Minister's view of JLH's proposal was, save that he appeared willing to hear objections to it. An historical summary of the matter had been prepared for him in January 1990, and this explained the approval which had been given by the former Minister, and that the solicitors for JLH were pressing for a response, as to whether the consent of the Minister would be endorsed on the lease. Notes of the meeting of 12 December 1989 had recorded the Minister's observation that a newly elected government might be held legally liable to commitments made by the former government. So far as the Council was concerned however, matters were proceeding. On 12 December 1989 it executed the agreement for lease and forwarded copies to JLH's solicitor under cover of a letter which noted that matters were almost concluded with respect to the lease by the Port of Brisbane Authority ("the port authority") of lands below the high water mark. Mr Mantle, on 15 December 1989, received advice from the Registrar of the Licensing Court that the Commission had determined to recommend to the Minister that the project was suitable to be declared a public facility, but that it required some further information so that the terms and conditions which might attach to such a licence could be included in the submission to the Minister. It was also at about this time that Mr Mantle began to reconsider what was necessary in respect of the commencement of the lease, apparently in connexion with what he considered would be financiers' requirements with respect to securities. By 18 December 1989 the legal advice received within the Department of Lands, as it was called following its reconstruction, was that the project had earlier been the subject of approval by Cabinet, but that this could not bind a Minister who had the power to approve under s 343 Land Act. The question of inconsistency of purposes was seen as a real one. In early February 1990 the Department, but more particularly Mr Bailey, sought advice from the Crown Law Office as to the legal liability of the Crown if approval were not granted. The advice of Mr Harwood of that office in response, dated 16 March 1990, was that there were real doubts that the proposed use was consistent with those stated for parks and recreation. As to the question whether the Minister was obliged to endorse his approval under s 345, the view expressed was that the letter of 26 October 1989 to the Council constituted approval under s 343 and that the endorsement under s 345 would appear to follow automatically, there being little, if any, discretion left to the Minister at this point. Whether there would in fact be inconsistency was said to require some further information. Mr Harwood concluded that, in the meantime, the Minister could delay endorsing, given that there was a real question concerning the matter. Another Minister of the new government showing an interest in the JLH's proposal at this time was Mr Comben, the Minister for Environment and Heritage. He said, in evidence, that he was concerned at an early stage about the site being too hot for the fauna display proposed and about whether parts of the site, having some heritage value, required preservation. Mr Comben took part in a site inspection on 5 January 1990 in company with Mr Eaton and members of the LAC. The record of conversations taking place on the inspection contain the suggestion that the leases of any reserve lands should not include the boat basin. It may be observed that this is similar to the approach earlier recommended by the LAC in March 1988 when it referred to providing only a limited area, north of the boat basin, for carparking. Mr Comben was sufficiently interested in the matter to take a copy of the proposal and a copy of the Report of the Brisbane River Committee away with him. On 1 February 1990 Mr Comben's Director-General wrote to Mr Eaton confirming his Minister's opposition to the alienation and development of land from and including the boat basin but advised that the Minister considered that the balance of the land might be utilised for low-key development. In the meantime Mr Mantle's solicitors had received copies of the agreement for lease. By early 1990 JLH had paid some $21,000 stamp duty on those documents and had reimbursed the Council some $8,000 for its legal fees. In January 1990 Mr Mantle received a feasibility study from Horwarth & Horwarth Services Pty Ltd("Horwarth & Horwarth"), to which reference is made later in these reasons. Mr Mantle had further considered JLH's need to use the leases, which were to issue, as security for finance for the project. Mr Mantle then caused JLH to request the Council's agreement to a variation of the agreement for lease with respect to its commencement date. The Council was agreeable and a Deed of Variation dated 20 February 1990 was then executed by those parties. It provided that, notwithstanding the provisions of Clause 1 of the agreement to lease dated 12 December 1989, the date of commencement of the lease in Appendix A, and in the memorandum of lease Appendix B, would be 1 April 1990. It further provided for the times within which JLH was to apply for necessary town planning and building consent approvals, and submit working drawings, and for the payment by JLH of a premium of $150,000. The first rental payment was to be paid by JLH "on the next working day following the day upon which the consent of the Minister for Land Management is endorsed upon the Memorandum of Lease." Clause 3 of the Deed provided that the parties were to forthwith execute the memorandum of lease and the Council was to "obtain the consent thereto of the Minister for Land Management". In late February 1990 a newspaper article was published. It was entitled "Council Plan in Peril" and related to the ONS site and the reserve lands. In it Mr Eaton is reported as saying that, whilst a decision would be made in a few weeks, the Council might have to change its plans, that the local member had raised a few objections and that he, the Minister, was required to consider the development with them in mind. The local member was Mrs Warner who was, some evidence suggested, opposed to the development. Mr Mantle read this report and it caused him concern. In January he and Mr Job had received some fee proposals from the consultants they had earlier approached concerning their engagement on the project. Mr Job said that at this time Mr Mantle approached him and asked him to advise the consultants to stop work. Although Mr Job continued to attend meetings and undertook further drawings, there is no cogent evidence that the contracts with these other consultants were ever concluded or that they undertook any professional work connected with the proposal after this time. Mr Mantle's direction with respect to these consultants is an important indicator of his belief, at this stage, as to whether the new government was likely to cause difficulties. A few days after the newspaper article appeared, Mr Mantle met with Mr Beattie. Mr Mantle had known him from earlier times. Mr Beattie indicated to Mr Mantle the source of the objections and arranged a meeting between Mr Eaton and Mr Mantle. On 27 February 1990 the Council forwarded the memorandum of lease relating to the reserve lands to the LAC and requested that the consent of the Minister be endorsed pursuant to s 345 Land Act. The lease document incorporated the terms of the Deed of Variation with respect to the commencement date and the date of the first rental payment. It does not appear, from the letter accompanying the documentation, that the Deed itself was forwarded, but the attention of the LAC was drawn to these particular provisions. The evidence otherwise disclosed that a copy of the Deed of Variation, and an internal memo from the Council concerning it did find its way into the Department of Lands at some point. The officer of the LAC who received the documents, Mr Barnes, had received instructions from Mr Scott that no action was then to be taken with respect to the lease of the reserve lands. As a result he simply noted on the letter from the Council that he had filed the documents. The same day he received a telephone call from a solicitor for the Council whom he advised that the matter of the project was being reconsidered by the present government and that he could not confirm that the lease would be consented to. Mr Barnes explained in evidence that he had been told by Mr Scott, some time between 5 January and 27 February 1990, that the Minister might decline his endorsement. Mr Barnes' attention was not then directed to a Deed of Variation, nor was he aware of any agreement between the Council and JLH changing the commencement date. The Deed was brought to his attention only some months prior to the commencement of this trial. He said that if he had noticed the changes, he would have referred the matter to the Minister, through Mr Jones, for consideration of a further approval of the commencement date. Negotiations with the Minister Mr Mantle and Mr Job met with Mr Eaton for the first time on 6 March 1990. It is a matter of some dispute as to whether Mr Eaton told Mr Mantle on this occasion that, so far as he was concerned, it was all "fully approved", that there were only formalities to attend to, but that he was obliged to give the objectors a hearing. Mr Mantle also said that Mr Eaton advised him that he would be able to start on site in six to eight weeks. I accept that Mr Eaton may have made statements to the effect that he had no real difficulty with the proposal, or that he generally favoured it. I am however unable to understand why he would say that nothing else needed to be done and that JLH could shortly commence works. He would not have been briefed to this effect by his officers, who were at this time awaiting advice from Crown Law. So far as he was concerned there was opposition to the proposal both from citizens and from within the government and he appears to have been sensitive to it. Legal advice from Mr Harwood, earlier outlined, was not yet to hand. The only legal issue and advice of which the Minister might have been aware related to the inconsistency of purposes, and at this time this was seen as a real issue. A practical solution to it had not yet been devised. Further, it seems to me that if Mr Eaton's statements had been as definite as Mr Mantle now says they were, Mr Job would have been alert to the real prospect that the project would be commencing shortly. Nothing he did suggests any such belief was held and he did not give evidence of Mr Eaton having made such a statement. His evidence suggests Mr Eaton may have indicated that, speaking for himself, he saw nothing wrong with the proposal. That seems to me to be what Mr Eaton most likely conveyed at this time, but it does not equate with positive assurances that everything was in place so as to enable the project to proceed forward from that point. The advice of 16 March 1990 received from Crown Law, which I have outlined earlier in these reasons, whilst denying any residual discretion in the Minister as to whether to endorse, acknowledged that there may well be a valid legal objection to the leases because they involved purposes other than those for which the Crown land had been reserved and set apart and recommended, in effect, that the Minister do nothing until that question was resolved. A possible resolution was provided by Mr Lack of the LAC, in his memorandum of 29 March 1990 to Mr Scott, then Acting Assistant Director-General of the Department of Lands. Mr Lack pointed out that there appeared to be three options: to refuse any lease of the reserve lands; to lease only part of the reserve lands north of the boat basin or to lease all of the reserve lands as earlier proposed. The first two, he observed, could result in legal action being taken. The third would require the cancellation of the reserves and the grant of a special lease to the Council under s 203 of the Land Act, together with permission to the Council to sublease to JLH. That option should, he concluded, overcome most grounds for possible legal challenges. Mr Scott reported to Mr Lack in these terms. By mid-April 1990 Mr Mantle appeared to be concerned to press the matter forward, and he wrote to Mr Eaton, to the Premier, the Deputy Premier and two other Ministers. The assurances said to have been made by Mr Eaton at the March 1990 meeting were not reiterated by Mr Mantle in this correspondence. The letter to Mr Eaton did make the claim that "the bulk of our personal family finance" was now committed to the project. Another claim, of real financial hardship, was also relayed to the LAC. Neither statement was correct. Towards the end of April 1990 Mr Eaton appeared to be prepared to follow the third option identified by Mr Lack, the grant of a special lease of the reserve lands, with no reduction in area. He endorsed the memo from his officers to this effect and a draft submission to Cabinet, recommending the cancellation of the reserves and the issue of a special lease, was prepared for him. Mr Eaton however rescinded that direction after a meeting held on 22 May 1990. In view of the later lack of support from each of the Premier and Deputy Premier, it is of interest that their Departments, by mid-May 1990, had advised the LAC that what was then proposed by Mr Eaton in the draft Cabinet submission appeared to be in order. On 22 May 1990 a substantial number of persons having an interest in the ONS site were called to a meeting by Mr Eaton's principal private secretary. Mr Mantle and Mr Job attended. Notes made of the meeting, with which Mr Mantle largely agreed, recorded the fact of an approval having been given by Mr Harper, that the legality of it had been attacked and had been the subject of legal advice. The recommendation to the Minister about the alternative legal route, via the special leases, was discussed. The meeting took some 2 hours and it seems unlikely that the notes encapsulated every topic raised. It is also likely that they may have been written from the perspective of what was of interest to the Department, and to the officer who made them. Mr Mantle said that the meeting appeared to take the course of "going through the motions". Insofar as this was intended to confirm his other evidence, of continual support and reassurances given with respect to the project, I am unable to accept it on the basis of his evidence. It is true that Ms Hart recalled the meeting as "positive", as did JLH's town planner Mr Brannock. And Ms Hart's conversation with Mr Scott following the meeting seems to have confirmed this in her mind. In particular Ms Hart recalled little of substance being raised at the meeting. But in the scheme of things this does not convey much. It may amount to little more than recollections that nothing adverse was raised against the proposal, when perhaps that was their apprehension as they approached the meeting. Even so, Mr Mantle's evidence went a deal further than these other witnesses for JLH, and I was left with the impression that as to this meeting, and others, Mr Mantle's evidence was unreliable with respect to the extent of assurances conveyed. The meeting ended with Mr Wilson the Acting Director-General of the Department of Lands advising the attendees that a decision would have to be made, and that their views would be taken into account. Some time thereafter the Minister rescinded his approval to the course of action which would have facilitated the development, via the grant of special leases. The day following the meeting JLH wrote to Mr Eaton making certain offers, or concessions, which Mr Mantle described in his evidence as insubstantial, although he did not so describe them in the negotiations which were then taking place. They included the installation of some public facilities and lighting and their future maintenance. A further site meeting was held at the end of May 1990 between Messrs Mantle, Job and Eaton, the Director-General of the Lands Department, Mr Eaton's private secretary and a member of the LAC. Mr Eaton suggested that another meeting be held between Mr Mantle and the KPA, to attempt to reach agreement concerning the extent of the development and although Mantle complained that he had made concessions, he agreed to one more meeting. These statements, together with Mr Eaton's apparent change of mind concerning the special lease procedure, may be indicative of real concerns held by him as to the level of opposition to the proposal and of a wish that the parties reach agreement. Such a view would have been reinforced by a letter from Mr Burns, the Deputy Premier, to Mr Eaton on 20 June 1990 which recorded Mr Burns' perception of strong opposition to the proposal in the community. The meeting was held on 31 May 1990, but it was inconclusive. The following month saw little progress towards a conclusion of the matter. In this period the LAC was involved in gathering background documents and receiving further opinions from other departments for inclusion in a memorandum which it was preparing for the Cabinet meeting to be held on 9 July 1990. The decision to refer the matter to Cabinet, by means of a memorandum and not by submission, was for the reason that the latter was utilised where approval was to be sought from Cabinet for one course of action. A memorandum was used, in the first place, where guidance was to be sought as to a range of options. It also appears by the terms of a letter sent by Mr Mantle to the Premier on 30 May 1990 that Mr Mantle considered the project required "ratification", and that it was a matter for Cabinet. Whether Mr Mantle held such a view, or whether he was simply going along with the course dictated by the Minister, is difficult to determine. It is quite possible that, as a businessman, he undertook the latter course of action. Surprisingly, however, for one who appeared receptive to professional or specialist advice, Mr Mantle was said not to have obtained any legal advice as to JLH's standing in the matter. This is so even given comments which had been made questioning the legality of the proposed leases. Whilst Mr Mantle himself had legal qualifications, the possibility that he might have come to a view himself, as to the respondent's legal obligations, was never advanced. It is also unclear, at this point, just what view Mr Eaton had of the proposal. It may be that not a lot turns upon it. It is not apparent that he had decided against it. But the simpler question - whether to endorse or not - had been sidelined by the suggestion that a different procedure appeared to be required and the other options to be placed before Cabinet, in addition to the recommended grant of special lease, were either complete refusal or a restriction of the development. These options were not explained as available courses under s 345. The memorandum for Cabinet did not advert to any legal problems which might arise with respect to JLH or the Council if the last two courses were followed. It noted, however, that if the reserve lands were not made available to the developer, it was doubtful that the project would remain viable. Shortly prior to the memorandum being placed before Cabinet, and in addition to Mr Eaton receiving the letter from Mr Burns as to his perception of opposition in the community, the Director-General of the Department of the Environment also wrote to Mr Eaton suggesting that the interests of "public amenity" required that any development be allowed only downstream of the boat basin. That view is consistent with that which had been stated earlier by Mr Comben. Consideration by Cabinet - July to 22 October 1990 Cabinet at its meeting on 9 July 1990 decided to defer consideration of the options whilst further information was obtained. Mr Wilson, participated in the gathering of that information. Mr Goss recalled, as a background to that meeting, that there had been public debate about the intensity of the development, although it seems he and one other Minister were not then personally opposed to it and saw some possible benefits flowing from it. Mrs Warner and Mr Comben remained implacably opposed to it. Mr Burns said that some Ministers viewed the matter as one which had been "rushed through" by the previous government, from which I infer that some members of Cabinet may have regarded it as in some way tainted, or have been sceptical about its worth. As I have said, however, just what Mr Eaton thought at this time is not clear. I was not assisted by his attempts at recollection in the course of his evidence. The matters which Cabinet adverted to in its decision, as requiring clarification, were: the economic viability of JLH's proposal, a matter which Mr Burns raised on at least one occasion; the position of the Crown should JLH's proposal not be approved in whole or in part (which clearly enough referred to its legal liability); whether the developer was likely to accept some compromise; arrangements for the tenure of the Crown lands and the revenue which might be returned to the State from them; public interest and amenity matters such as public access "including any boardwalk proposals", visual amenity and the likelihood of obtaining fauna licences. An early meeting had taken place between Mr Comben and a member of the LAC with respect to the latter question. Early advice to Mr Comben from his Acting Director-General was that JLH had permits for a short period. The Minister raised the question as to adequacy of feed for koalas. It was then agreed that the Acting Director-General advise, and the Minister for Environment then respond. On 6 September 1990 Mr Bonney, the Acting Director-General advised the Lands Department and Mr Eaton that, subject to the satisfactory resolution of issues "in relation to the supply [and] husbandry of fauna", the Director of National Parks and Wildlife "is prepared to issue the necessary permit and licence upon application to enable a fauna display to be established in the vicinity of the Old Naval Stores at Kangaroo Point" but that the advice was given on the understanding that Cabinet was prepared to facilitate the grant of a lease to JLH. This topic is dealt with again elsewhere in these reasons. Mr Comben wrote to Mr Eaton on 14 September 1990 in similar terms. Two days after the Cabinet meeting Mr Wilson, Mr Scott and Mr Mantle met. Mr Wilson advised Mr Mantle what had been required by Cabinet. At an early point in the meeting Mr Mantle is recorded as having said that he understood that "approvals in writing currently held will stand", whatever that was intended to refer to. Reliance was placed by JLH upon this statement as showing Mr Mantle's then state of mind. It also appears from the notes of meeting that much of the discussion centred upon the boat basin and carpark. On 13 July 1990 Mr Mantle wrote to Mr Wilson. In that letter he contended that the matters raised in discussions, such as free carparking and access for rock-climbers, had already been dealt with in the leasing documentation and that this had been required by the LAC at his expense. He went on to claim that he had acted on the basis of a lease and said "I have made representations to financial institutions and entered into contractual arrangements with architects, engineers and other professionals" and that he would be seriously jeopardised if the lease arrangements were now changed. This letter and the notes of the meeting of 11 July 1990 already mentioned, are relied upon as evidencing Mr Mantle's insistence that the project and leases approved by Mr Harper proceed in that form. What they do disclose is a propensity to overstate the real position with respect to the consultants, who had not been engaged. Just what was going through Mr Mantle's mind during the negotiations was difficult to discern. His evidence now of his state of mind was, as I have earlier observed, unreliable. His outward assertions then, in correspondence and in meetings, may also not be reliable as consistent with what he believed or desired. There was, throughout the trial, little attempt to explain in any credible way just why Mr Mantle allowed matters to continue without resolution. At best one might infer a choice to negotiate rather than to force any issue. But whilst that is an understandable practical view, and one which those in commerce might regularly choose, it does not sit comfortably with the temperament displayed by Mr Mantle and the action taken later in this substantial litigation. On the same day Mr Mantle wrote to the Premier referring to the "indecision" which had attended his matter and asking that it receive his urgent attention. Mr Bailey attended to obtaining advice from Crown Law as to whether JLH would have a right of action if there were no approval, or if less land were agreed to be made available to it, and as to whether the Council would be in a position to sue. The advice was not received until 10 August 1990. At this time the advice given by the Crown Solicitor or more particularly, Mr Harwood, was that the endorsement might be refused. The substance of the advice however discloses that that opinion was based upon there being uses proposed which were not consistent with those for which the lands were reserved, or that the matter had not been sufficiently clarified in the lease documentation. Other matters were also gone into, but do not appear to bear much upon matters now raised for consideration, as to the parties' conduct in the months which follow the receipt of the advice. What may be of some importance, is that a reading of the summary of the advice, contained in the last two pages without recourse to the factual basis assumed for it, would leave one with the impression that there was no right of action which the developer and the Council might successfully pursue. A valuer was also appointed to look into the question of lease rental and he met with Mr Mantle to obtain relevant information. Amongst the documentation provided to the valuer was the Deed of Variation between the Council and JLH, but its existence was not brought to the attention of any other officer of the respondent having knowledge of JLH's proposal and the issue of endorsement. Mr Mantle and some of the opponents of the development then took further action. For his part Mr Mantle wrote on 20 July 1990 to the LAC with some further offers. In early August 1990 he provided Mr Scott with advices that JLH's costs to date were $2.5M. This followed the receipt of confirmation from JLH's accountant, Mr Malone, that costs to JLH on the project were $2.1M to date. Assuming for the moment that that latter figure was not itself overstated (and I was not satisfied that it was not), there was nothing to indicate why Mr Mantle thought that an additional $400,000 had been spent or incurred. A Mr Murray and other members of the public who had expressed complaint, regarding the development, to the Deputy Premier received a letter from him in August 1990. The Deputy Premier there advised that approvals with respect to the project had been given and that the parties were therefore committed. The terms of his letter are somewhat strange, given the views and perceptions previously stated by Mr Burns. A copy of the letter was said to have been given by Mr Muhl or some other officer of the Department within the Deputy Premier's portfolio to Mr Mantle. The advices from Mr Burns did have an effect. The letter was the subject of a newspaper article and litigation was then commenced by some opponents of the project. Mr Mantle placed some weight upon the terms of the letter as having provided him with "comfort" that not only had the previous government approved the project and done every thing to allow it to proceed, but the present government was of the same view. It must however, in my view, have struck Mr Mantle as surprising that the Deputy Premier was making such statements when he had been advised that Cabinet was concerned with a number of aspects and, critically, of the exclusion of the boat basin and carpark. So far as Mr Mantle was concerned, Mr Burns had had almost no involvement in the matter to date. Whilst mindful of the comments I have earlier made concerning the reliability of Mr Mantle's outward expressions of belief, it is noteworthy that on 22 August 1990 Mr Mantle wrote to the Deputy Premier pointing out that, despite delays, he had persisted with the development. That letter commenced with the observation that Mr Mantle was given to understand that the matter "will be considered by Cabinet" on 27 August 1990. The "Executive Summary" which he enclosed with the letter stated that, whilst the project was viable as planned, a reduction in the area of the leases would adversely affect that. On 27 August 1990 Cabinet determined that it favoured "in principle" the implementation of option 5 in the memorandum, that is to say, that the Minister for Land Management seek executive approval for the cancelling of Reserve 2721, the granting of a special lease of it to the Council with a view to it sub-leasing to JLH or, alternatively, that there be a special lease direct to JLH and that JLH have a permit to occupy that area of Reserve 2713/2721 for the purpose of a carpark. There were however conditions to it which required further negotiations and proof of available funding. It required the Minister for Land Management to seek clarification of the view of the Minister for the Environment regarding the fauna, to reduce the intensity of the development with respect to the boat basin, and to detail land tenure proposals "including acceptable requirements for public areas" and landscaping, for the purpose of the submission to Cabinet with respect to the final development proposed. That evening the Premier stated, in the course of a television interview, that a compromise would be sought on the development. On 29 August 1990 Mr Mantle and Mr Job met with Mr Lack. Mr Lack's note of the meeting records that the matters for clarification were outlined and that Mr Mantle intended to have discussions with the Director-General, Department of Environment and Heritage concerning the keeping of fauna and that he would produce plans showing the proposed development of the boat basin, public access to the site and landscaping. It does not record Mr Wilson as present. Mr Mantle however was adamant that Mr Wilson was present at the meeting and that he advised Mr Mantle and Mr Job that Cabinet had "approved the matter in principle along the lines of Option 5 and the special lease." If Mr Wilson had been present it seems to me unlikely, given the terms of the Cabinet decision, that he would have conveyed that Cabinet had approved it save for some minor amendments and points for clarification. This may however, have been the sense in which Mr Mantle then, or now, wished to understand what had been conveyed to him about the Cabinet meeting. During September 1990 Mr Mantle arranged to have JLH's accountant write to the Director-General of the Department of Lands outlining what was required in order to get "committed finance available with absolute certainty" and advising that he and his client would be happy to provide evidence, prior to construction commencing, that finance was in place. Previous approvals were said to have lapsed. Mr Mantle had earlier met with Treasury officials. By late August 1990 Treasury was of the opinion that the project had reasonable prospects of being viable, that the absence of a current commitment to funding was not a major concern and that the most critical test of viability was whether or not a major financial institution would be prepared to commit itself on the basis of Horwath & Horwath's feasibility study. On 11 September 1990 Mr Job forwarded to Mr Wilson a letter enclosing drawings dealing with public access, reducing the activity in the boat basin and providing landscaping associated with the carparking area. Mr Eaton's officers then proceeded to prepare a submission for the 3 October 1990 Cabinet meeting, following Option 5, and on the basis that all Cabinet enquiries or concerns had now been dealt with. Cabinet decided, however, to defer consideration of the submission to 22 October 1990. Mr Burns' diary discloses a meeting nominated for 4.00 pm later that day, 3 October 1990, with Mr R Gibson, an architect well known in Brisbane for the design of a number of public buildings. Mr Gibson was, around this time, also meeting with Mr Burns and the Department of Local Government concerning a number of projects. By 10 October 1990 Mr Gibson had been asked by that Department to prepare a plan for a public boardwalk along the river's edge. The plans which were then produced by Mr Gibson were largely conceptual. They did not address JLH's proposal and Mr Gibson was not, at this early point, asked to take it into account. His proposals were not later implemented by the department responsible for construction of the esplanade project. The matter of JLH's lease came back to Cabinet on 22 October 1990. Mr Eaton's recommendation still favoured approval of Option 5. The report by Mr Gibson entitled "Naval Stores Site Redevelopment" bears the same date. It had been provided to the Department of Local Government at the request of Mr Burns' staff and was based, in part, upon factors which Mr Gibson had been asked to take into account in advising as to development options. It seems clear enough that it was the source of the terms of the Cabinet decision of 22 October 1990. Mr Gibson had earlier been given a map by the Department, upon which a "development site" was identified on the Council's freehold land. The reserve lands, or part of them were shown as the subject only of a permit to occupy. The author of the map was never identified. It also seems likely that the other conditions which were to apply to all of the development options, including the provision of a 3.6m wide public boardwalk along the river frontage, were devised by the Department. On 22 October 1990 Cabinet rejected Mr Eaton's submission and resolved instead: "1. That proposals for development of the combined Brisbane City Council freehold lands shown in pink and the area of Crown Land shown in yellow on the attachment to the Decision, whereby respective permits to occupy may be granted at the discretion of the Queensland Government, be approved. 2. That should the development proposal outlined in 1 above not be acceptable to JL Holdings Pty Ltd then further consideration be given to the masterplanning of the site to enhance public access to the site, maximising the greening of the area upstream of the Boat Harbour and protection of the cliff face. 3. That in considering 2 above consultation occur with the Brisbane City Council to determine how best to achieve appropriate commercial development of the site while at the same time protecting and enhancing public access, visual amenity of the site and developing suitable pedestrian links to other parts of the City. 4. That further medium and long term development of the site broadly conform with the notes tabled at the meeting by the Honourable the Deputy Premier (Attachment 1). …". The notes which formed Attachment 1 to the minute of decision, and which must have been tabled by Mr Burns at the meeting, comprised the development conditions set out at the commencement of Mr Gibson's short report and included his various options, including medium to long term guidelines. Mr Burns, or his department must have had Mr Gibson's advices prior to the Cabinet meeting. Further, the map attached to the minute, whilst differing from that provided to Mr Gibson, identified the same areas, that for development and that which was to have only a permit to occupy, although the map attached to the minute showed more clearly that the boat basin was not included in any development proposal. Almost no evidence was given as to the way in which these matters came to be raised at the Cabinet meeting, when Mr Eaton's submission was the only one on the agenda concerning JLH's proposal. There was no evidence which connected either Mr Goss, Mr Rudd, the Director-General of the Office of Cabinet or Mr Dunning, the Director-General of the Department of Administration Services, to the obtaining of the Gibson report, and the information provided to Mr Gibson, and Mr Burns was not asked for an explanation. The Cabinet decision of 22 October 1990 is of significance for it shows, by reference to the map, a determination to permit development only downstream of the boat basin. The use of the boat basin was an essential feature of JLH's proposal and Mr Eaton appears to have understood that. The Cabinet memorandum, prepared by Mr Wilson, had noted that the developer would not accept a development limited to an area downstream from the basin. Further the reserve lands, which were to be leased to JLH and used for carparking, were now to be limited to a mere licence, a matter which could hardly have lacked significance to a large-scale development. On 22 October 1990 Cabinet also determined that the Kangaroo Point Peninsula Development Plan be recommended for approval by the Governor in Council, subject to some modifications and subject also to any walkway proposals favoured by the Deputy Premier, as may eventuate as part of any associated foreshore development. Mr Eaton said in evidence that he was very annoyed when Cabinet determined later in July 1991 that JLH's proposal was not to proceed. It is that Cabinet decision upon which JLH's case was largely focused. I would have thought that Mr Eaton must also have appreciated, at the conclusion of the meeting of 22 October 1990, that it was unlikely that JLH's proposal could proceed. From this point it seems he had no involvement with the matter for some months, even though the terms of the Cabinet minute left responsibility for implementing its decision with him. His departmental officers said that they were aware that the matter was being handled elsewhere. For whatever reason, but perhaps because of the Deputy Premier's involvement in the boardwalk proposal, the matter came to be referred by the Premier to Mr Burns in the latter part of 1990. Negotiations then continued through the early months of 1991 to 7 May 1991. The other factor which may have influenced the need for Mr Burns' involvement was the threat of litigation made by Mr Mantle. Meetings with the Deputy Premier (November 1990 to 10 April 1991) The decision to limit the development of the ONS site and the reserve lands was the subject of a press release on 22 October 1990. The document, a copy of which was received by Mr Mantle through his public relations consultant, spoke of the Government's decision to protect the cliffs and the preparedness of Cabinet to allow only a limited development associated with the lands. Mr Mantle, in response, issued his own press release acknowledging the need for discussion and a "compromise" to ensure the project's viability. In the newspaper report following he is quoted as saying that he was "optimistic" about his ability to persuade Mr Goss of the project's benefits. Mr Mantle also wrote to the Premier. Mr Mantle received a message advising that he should contact Mr Burns. A meeting was organised for 9 November 1990. A few days after Mr Mantle had attended to this, Mr Burns and Mr Rudd of the Office of Cabinet, had discussions with Mr Gibson with respect to the naming of a boardwalk project they had in mind. On 28 October 1990 a report appeared in the local newspaper announcing the creation of a "Waterside Walk", the purpose of which was to retain public access to the river and tie in with any separate development of the ONS site at Kangaroo Point. On 31 October 1990, following these public announcements, Mr Lack of the LAC wrote to Mr Mantle advising that Cabinet had decided "that any use of Park and Recreation Reserve R2721 in connection with the redevelopment be restricted to the area basically downstream from but not including the boat basin." Whatever might now be sought to be made of the terms of the Cabinet decision of 22 October 1990 it seems to me that this advice could have left the reader with no doubt about the matter. Indeed, Mr Mantle then seemed to have had no difficulty in understanding what had been decided, for he responded by letter with the inquiry, "Are you intending to repudiate?" and with a statement that he affirmed the existing lease and contract. Mr Mantle again said that he had not received legal advice on the matter to this point. As I have observed elsewhere in these reasons, his evidence was to the effect that he did not seek it out. The language of this letter is like that employed by lawyers in practice, although I suppose it is possible that Mr Mantle recalled the terms from his student days, or had encountered their usage in business before. Mr Mantle explained that, at this point in the course of events, he was still hopeful of an outcome and considered that it would be preferable not to institute proceedings. I can accept that may well have been the case. The difficulty I have is in appreciating why he might not have sought any advice, or turned his own mind to the matter, so that he might evaluate any difficulties which might be able to be placed in his path by an unco-operative government. When Mr Mantle and Mr Job met with Mr Burns and his private secretary Dr Chittick, Dr Chittick noted that Mr Mantle hinted at the possibility of legal action, by asserting that he had legal opinion to the effect that he was in a strong position. I do not accept that Mr Mantle was more vehement and threatening than this, as he suggested in evidence. He may have been recalling his feelings of anger or frustration at the time, but I think it unlikely that he gave vent to them. Mr Burns is likely to have recalled such an outburst and to have reacted to it. In any event there seems to me no reason to doubt Dr Chittick's recollection of the meeting. He recalled Mr Burns advising Mr Mantle of Cabinet's problems, and explaining that his task was to see if a compromise could be reached. If that was his task it was one given to him by Mr Goss or devised himself, since Cabinet had not directed this. As I have indicated, Mr Burns' involvement appears to have arisen out of the implied threats in Mr Mantle's letters. There was some argument about whether, in this meeting and those meetings which followed, it was made apparent to Mr Mantle that the boat basin was excluded from the negotiations. I have already observed that Cabinet's decision of 22 October 1990, to limit the development in this way, was conveyed to him in clear terms. Mr Muhl also recorded the Deputy Premier as having advised Mr Mantle that the Government would only consider that area downstream of the boat basin. Dr Chittick's note of the conversation was to the effect that development of the boat basin and carpark were not supported and that it was considered that development of basin and the replica ship would detract from the cliffs. It seems to me that, in the context of a compromise being sought, Mr Mantle was given to understand that, whilst Cabinet was against development downstream of and not including the boat basin, as the letter of 31 October 1990 from Mr Lack had advised, Mr Burns would listen to any alternative proposal. In that respect his view was that, at the least, the ship must not be placed in the boat basin because it impaired a view of the cliffs. Mr Mantle enquired, and was told, that the matters identified would be regarded as a major improvement on his proposal. He and Mr Job asked whether there was anything more that Mr Burns could suggest that they might do to gain acceptance. I do not accept as likely that Mr Burns then pledged his support to the plan, if the changes were made, by promising not only that he would take it to Cabinet, but also that he would strongly argue for it. Mr Muhl's note of what was said was confined to general assurances of support. Mr Burns may have been prepared to take such a proposal to Cabinet, since his task had been to ascertain the extent to which JLH might be prepared to compromise although he did not, in the end, do that. Mr Burns said that later events concerning the boardwalk overtook Mr Mantle's offer. I shall later deal with the possibility that the plans for the boardwalk were accelerated. The likelihood that Mr Burns did not undertake to argue for JLH's amended proposal is also borne out by Mr Mantle's letter of 15 November 1990 to Mr Burns. It was in terms of a reminder of his "offer" to take the matter to Cabinet, and no more. Similarly, in an interview in the publication "Business Queensland" Mr Mantle was reported as saying that Mr Burns had listened to his plan and that Mr Mantle hoped to negotiate the government's areas of concern with respect to JLH's proposal. By early December 1990 Mr Mantle and Mr Job had redesigned the boat basin to exclude the replica ship, removed the carpark which had been situated upstream of the boat basin and were discussing other means of providing parking for vehicles. These amendments were presented to Mr Burns at a further meeting on 6 December 1990. Mr Burns said they effected a considerable improvement. Mr Mantle had also now taken steps to gain the support of others, including the Council. In early February 1991 Messrs Burns and Rudd and Dr Chittick met with Mr Gibson to discuss JLH's proposal and the amendments. Mr Gibson offered some ideas, in particular with respect to the use of an underground carpark. He was however, generally well disposed to the amended proposal, according to Dr Chittick. Mr Rudd does not appear at this time to have had much to say and is recalled as having been an attentive listener. It is likely that Dr Chittick met again, later that month, with Mr Job and Mr Mantle and outlined the preference for underground carparking; that the area between the boat basin and the Captain Cook Bridge be dedicated as parkland; that a boardwalk be constructed on the river's edge and that the fauna reserve and restaurant buildings be "unobtrusive" so as not to detract from the cliffs. There was general agreement to that from Mr Job and Mr Mantle. A further meeting was held between Messrs Mantle and Job and Dr Chittick on 28 March 1991. By this time Dr Chittick says the plans, dealing with the matters earlier raised, were detailed. In view of what had gone before and the stage which had been reached, Dr Chittick may have said that they would suffice for the purpose of Cabinet's consideration. I do not accept that he said that the matter would be approved. Dr Chittick's record of events, and his evidence, were attended with some care. It is difficult to accept that he would have considered it part of his function to provide such assurances, when the matter was yet to be considered by Cabinet. Mr Job's evidence contains no reference to the Cabinet process as being a foregone conclusion and nothing which follows lends support to Mr Mantle having believed this to be the case. Mr Mantle may have been feeling optimistic about a resolution of the matter. So far as he was concerned, his negotiations with Mr Burns had proceeded well. But even so, one would think he must have thought it remained at risk, to some extent, so long as the matter was subject to Cabinet acceptance. It is difficult to assess just what Mr Mantle may have thought, but I cannot accept that he considered that no risk attended its submission to Cabinet. The last meeting between Messrs Burns, Mantle and Job, again in the presence of Dr Chittick, was held on 10 April 1991. Dr Chittick, whose recollection about these matters was more detailed and seemed more reliable than the others present, said Mr Burns expressed his satisfaction with the compromise, commented that some of the objectors might even be pleased with them and that Cabinet's concerns had, so far as he was concerned, been met. Mr Burns told Mr Mantle and Mr Job to arrange to see Councillor Soorley, now Lord Mayor, as a matter of courtesy and for the purpose of bringing him up to date with what was occurring. Mr Rudd, who was to have attended the meeting but had not, was telephoned by Mr Burns just after Mr Mantle and Mr Job left. Mr Burns told Mr Rudd that he had "approved" the proposal. A meeting between them and Mr Rudd was hastily reconvened at Mr Rudd's request. Consistent with a view which had been expressed by Mr Rudd to Dr Chittick earlier about the proposal, he was dismissive of it. He said that it was still too intense, and that he wanted a low key development. He had, on a previous occasion, told Dr Chittick that he thought something like a kiosk would be appropriate. And he said the proposal was "kitsch". The earlier optimism of those present was said to have been immediately deflated. The future for the proposal was again rendered uncertain. Mr Rudd becomes involved: Plans for the boardwalk It is necessary to explain that Mr Rudd was then a person of considerable influence in the government and particularly with the Premier, to whom he had been an adviser. Several witnesses spoke of this. He was, by virtue of his role as Director-General of the Office of Cabinet, in a position to co-ordinate and organise matters coming before Cabinet. Mr Rudd himself explained that the Office of Cabinet, which was a creation of the new government, had a "whole of government" role. Where a matter impinged upon a number of areas and departments, the Office was to ensure that issues which arose as between them were dealt with and, if necessary, that a coordinated approach between departments be achieved. As part of its function, the Office also received submissions and reports intended for Cabinet and took it upon itself to ensure that matters which it identified as of importance were addressed. With respect to the boardwalk proposal, which re-emerged as a matter of priority for the government by May 1991, Mr Rudd explained his involvement as following on from an instruction from the Premier, and because a number of departments would be affected by a decision to implement it. Mr Rudd's communications at the time reflect something of a personal interest in the matter, although it may simply be that he chose to convey a level of personal authority or power, derived from his office or because his instructions came from the Premier. It was never clear just what instruction he had received from the Premier concerning JLH's proposal, when the matter was handed over to Mr Burns to negotiate. Perhaps no concluded view had, at that point, been arrived at by either Mr Goss or Mr Rudd. Mr Goss, who gave evidence in these proceedings, had little recollection of events or of specific instructions. This was understandable, particularly given the apparent level of his involvement and the number of other issues likely occupying his attention at the relevant times. He suggested however that Mr Rudd was in a position to exercise his own judgment about matters he, Mr Rudd, took a personal interest in, without a specific directive from him. The fact that Mr Rudd's brief may have been a very open one, to initiate action where he considered the government or Mr Goss might have an interest, was supported by other witnesses. Whilst the boardwalk proposal involved two departments, and the Department of Lands only peripherally, and the Council, it does not seem to me that it was particularly complex or involved any matters of policy, which might explain the involvement of the Office of Cabinet and Mr Rudd on the bases he gave. Mr Rudd's interest in the matter may perhaps have been based in the belief that he was pursuing a course in which the Premier had previously expressed some support. It is in this background, I consider, that one ought understand Mr Rudd's references to directions received from Mr Goss. In some cases they were assumed by Mr Rudd but had not been given by Mr Goss. One impression gained generally from the evidence of Mr Goss and Mr Rudd, was that JLH's proposal did not really feature as important, except for short periods during which Mr Eaton in the first place, and Mr Burns secondly, looked into possible compromises. So far as Mr Goss and Mr Rudd were concerned one is left to wonder whether they ever really thought much about JLH's proposal proceeding at all at this juncture. Mr Rudd said that he recalled that sometime after April 1991, Mr Goss had said that there was a need to move the proposal for a public boardwalk along, and to resolve matters regarding the private developer. Mr Goss, as I have said, had little if any recollection of these events save that he favoured the notion of a boardwalk. But he had not, at least early on, come to any definite view about JLH's proposal. He had heard about it, and some of the issues raised concerning it at an earlier time and had attended the site himself, on an informal basis, in order to appreciate the scale of the buildings proposed and their impact on the cliffs. It seems likely that, whilst the boardwalk proposal had been mooted in late 1990, Mr Rudd was reminded of the need to finalise any proposal after 10 April 1991 when it appeared that JLH was attempting to secure its proposal by compromise. Considerable reliance was placed by JLH on the terms of a letter dated 7 May 1991 from Mr Rudd to Mr Burns. In it Mr Rudd informed Mr Burns that it was the Premier's view, and his, "for what it is worth" that JLH's proposed development was still too intense. As I have earlier commented, one could not thereby conclude that Mr Goss had in fact stated such a view. The letter went on to refer to three things which Mr Rudd considered necessary to be done. None of them were in fact attended to by Mr Burns, who appears to have considered that the issue of JLH's proposal was by now virtually lost. It may be that Mr Rudd had discussed the question of the boardwalk with Mr Goss. The timing of the first discussion between Mr Rudd and Mr Dunning, the Director-General of the Administrative Services Department, as to that department's ability to handle such a project, is not clear but it could have been prior to the letter of 7 May 1991. There is however no reliable evidence that Mr Goss had come to any view about JLH's proposal by 7 May. Mr Burns also said that he considered his task to be complete and that it was up to some other department and Minister to carry JLH's amended proposal forward. It will be recalled that Mr Burns had told Mr Mantle that he would take it to Cabinet. That seems to be what was arranged prior to Mr Rudd's involvement and criticism on 10 April 1991 and the receipt of the letter of 7 May 1991, the latter leaving little doubt about his point of view. Mr Burns did nothing to further the matter or to bring it to the attention of any other Minister. Mr Rudd's letter of 7 May concluded by describing the third matter to be attended to as one to "tell the developer the bad news". That no one did so until October 1991 is a central plank in the applicant's case for fraud. That claim also focuses upon the letter of 7 May as evidencing a decision made by Messrs Rudd and Goss and the Director-General of the Administrative Services Department, to the effect that JLH's proposal was definitely not to proceed and that, instead, the boardwalk proposal designed by the architect Mr Gibson would. There are some observations necessary at this point. Mr Gibson's suggestions, whilst provided to the Administrative Services Department, were not taken up. Mr Goss gave evidence that whilst he was concerned about the intensity of the development proposed by JLH, he was not wholly opposed to the development provided it was compatible with the site, and did not detract, in any significant way, from the cliffs. As he learned more about JLH's proposal he became more concerned. Mr Goss then explained that, so far as he was aware, the developer had not put forward any alternative proposal to allay these concerns. Whether this reflects Mr Goss' state of mind by May 1991 is a matter of some doubt. There may be some elements of reconstruction in this aspect of his evidence, and this may be so with respect to the evidence of a number of other witnesses called. The process undertaken by the respondent's legal advisers was to attempt to refresh witnesses' memories by showing them some documents prior to giving their evidence. The result, in some instances, appears to be that witnesses have fastened upon particular documents as furnishing an explanation for events, or their view at a particular point. What the process has not likely achieved is their now being able to place events in context. The belief that the developer had offered no compromise proposal was factually incorrect although, as I shall later refer, that is what members of Cabinet were told. Apart from Mr Rudd and Mr Burns, and officers of their departments, there is nothing to suggest that the other Ministers, or Mr Goss, were aware of what JLH had proposed. So far as JLH alleges that a decision had been made by 7 May 1991, by Mr Rudd and the others to reject JLH's proposal, the evidence does not support it. It may be that in Mr Rudd's mind the proposal, even with the offers to amend it, was a dead issue. But no boardwalk proposal, which had features inconsistent with JLH's development proceeding, had been decided upon at this point, even by Mr Rudd and Mr Goss. The matter was still in the planning stage and it was still a possibility that the two might co-exist. The other aspect of the claim in fraud is that concerning Mr Eaton and his later representation to JLH, that he would consider any submissions JLH might make. It is contended that he could not have believed that to be the case, given the terms of the Cabinet decision of 1 July 1991, which he must have believed bound him to only one course of action, namely to refuse any necessary approvals to JLH's leases of the reserve lands. It is necessary then to turn to the evidence surrounding these events. Mr Rudd had forwarded to the Director-General of the Administrative Services Department, Mr Dunning, a copy of his letter to Mr Burns of 7 May 1991, together with a memo to the Director-General requesting, on behalf of the Premier, a submission on the Kangaroo Point Cliffs walkway to be in "in the Cabinet bag" on his return from an overseas trip. It pointed to the need to consult with the Council and that the consultation should focus on the government's position in relation to the existing proposals from the private developer that "if the private developer's proposal is not supported", then cost-sharing arrangements between the state government and the Council could be considered. Mr Rudd advised him to consider specific proposals the Council had for the naval stores. He also suggested liaison with the Deputy Premier, but this does not seem to have occurred. The memo to Mr Dunning clearly refers to a submission to, and decision to be made by, Cabinet. Whilst the letter to Mr Burns of the same day spoke of a proposal having elements which appear to assume the non-existence of the proposal (for example, the cleaning up of the lagoon and that any Council proposal for the naval stores might be along the lines of a cafe), the memo acknowledges the operative decision as yet to be made. Whilst there may be no doubt about what Mr Rudd desired, and that it did not include JLH's proposal, no decision had been made about one proceeding and the other not. So far as Cabinet was concerned, the last decision made was that of 22 October 1990, limiting the proposal to the area north of the boat basin, subject to discussions Mr Barnes was to have. Officers of the Administrative Services Department were then given the task of drawing up a proposal. A number of meetings were held between them and the Council. The departmental officers were given, initially, only four weeks to complete the task but this could not be achieved. By late May 1991, Mr Thiganoff, an architect with the Administrative Services Department recalls asking, at a meeting with the Council, whether JLH's proposal was to be "killed off". He said that he understood the two projects to be mutually exclusive. But he also said that there was room to compromise with respect to the two proposals and that the project team had not been given any directions concerning JLH's proposal. They were simply instructed to come up with the best proposal for the boardwalk. As a result, they ignored JLH's proposal, whilst being conscious from time to time that it was a matter which had not been finally resolved. Mr Dunning, on 13 May 1991, wrote to Mr Rudd advising that, in his view, there were a number of matters which needed to be addressed "at the several levels of Government" before the matter was taken back to Cabinet. Mr Dunning's concerns extended to JLH's attitude to "the Government's current requirements and constraints for the redevelopment of the Naval Stores buildings and the adjacent crown lands", although he appears to have thought that the effect of the ultimate decision, whether it be to withdraw or otherwise, would be on the timing of the development. Other points, to which he adverted, and which affected the prospect of achieving "general acceptance" of any redevelopment proposal for the cliffs area, related to the perceived demand for usage of the site, particularly if there was nothing to establish it as a destination, as Mr Mantle's proposal might become. By 5 June 1991, an officer from the Department of Lands had attended meetings with the Council and the Administrative Services Department, to discuss issues of tenure as affected by the boardwalk proposal. There had been an initial reluctance on the part of the Council to discuss JLH's proposal. Its officers considered there to be a potentially litigious situation. At that meeting someone raised the question about the existing approvals on the reserve lands, and expressed the opinion that there was a possible inconsistency between the two proposals and that JLH's proposal would not be able to proceed if the developer did not also have the reserve lands. The officer attending from the Department of Lands, Mr Gardiner, was not familiar with JLH's proposal and decided to investigate the department's files after the meeting. The officers of the Council were of the view that some official advice was required from the government as to what was to occur with respect to the JLH proposal. During this period Mr Rudd enlisted the assistance of Mr Moses from the Office of Cabinet, and Mr Barbagello, Special Policy Adviser in the Premier's Department, to oversee the drafting of the submission to Cabinet concerning the boardwalk and to ensure the project's completion by the next election in 1992. Mr Barbagello also appears to have been asked to assist in the negotiations with the Council and its Lord Mayor, Councillor Soorley. Relations between the two administrations were then somewhat strained. The first such meeting with the Lord Mayor, at which a proposal for a jointly funded boardwalk was outlined, appears to have taken place on 28 May 1991. Mr Scrivens, a legal officer with the Administrative Services Department, was asked to look into property issues affecting any boardwalk proposal. He also involved himself in wider legal issues concerning JLH, took part in meetings in that connexion with the Department of Land Management and Crown Law and conveyed information to Mr Moses, whom he believed had a monitoring role. In addition to reporting to the Office of Cabinet, principally to Mr Moses, Mr Scrivens appears to have received advices or instructions from it. For example, the advice he prepared concerning tenure of land affected by the boardwalk was provided, in draft, to Mr Moses who later advised that he and Mr Rudd found no problem with it. Mr Moses at this point appears to having been pressing for a draft of the Cabinet submission by 12 and then 13 June 1991. Mr Goss does not recall any particular urgency attending the matter of the boardwalk, but commented that if pressure was not applied, delays were often encountered. The note of the conversation between Mr Moses and Mr Scrivens on 12 June 1991 is relied upon by the applicant as showing both a prior decision, contrary to JLH's interests, and an intention to deceive it. Mr Moses is recorded as having said that Mr Rudd wished to have the public announcement, which I take to be about the boardwalk, at the same time "as Government decides what to do with J.L. Holdings' proposals" and also to take account of the timing for the Council budget. The respondent relies upon this communication as indicating that a decision concerning JLH's proposal was yet to be made. Apart from a preference Mr Rudd may himself have had in the matter, the latter seems to me to be a fair interpretation of it. The Esplanade Project goes to Cabinet By 24 June 1991, a Cabinet Memorandum had been prepared concerning the "Kangaroo Point Esplanade" and attached a report on the esplanade project. It noted the earlier Cabinet decision of 22 October 1990, which had provided "very specific development conditions for the use of the adjoining Crown Land" and that JLH, although having made "earlier suggestions" regarding the site, had not produced a revised proposal to date. It referred to a number of options for the boardwalk, some of which are conceded to have been inconsistent with JLH's proposal proceeding. The memorandum made no reference to, and gave no explanation of, the history of the matter concerning JLH and the "approvals" it had received. It made no mention of the amended proposals put forward by JLH after the process of negotiation with Mr Burns. It may be, but this was not gone into at the hearing, that the officers in the Administrative Services Department were not aware of them. Mr Burns may not have seen this reference until receipt of the Cabinet bag, for there is no suggestion that he had any input into the memorandum relating to the boardwalk proposal after May 1991, although he was earlier mentioned as the Minister most directly connected with it. It is likewise unclear whether Mr Rudd was aware of the omission concerning JLH's compromises, or whether Mr Moses or Mr Barbagello had been made aware of them. I have said "omission" in connexion with JLH's drawings amending its proposal at Mr Burns' request. It may be however that the author of the memorandum intended to convey merely that JLH had not come up with a proposal which met the criteria of the 22 October 1990 decision, which of course was accurate, as far as it went. What it overlooks is the intervention of Mr Burns and in particular that the discussions between him and Mr Mantle had proceeded upon the basis that the boat basin might remain part of the development, so long as there were no structures which interfered with the view of the cliffs. At about this time further meetings were held to finalise what was to be put before Cabinet and the Premier appears to have had some input into them. At a meeting on 20 June 1991 Mr Thiganoff noted advices from the Premier that he did not wish to jeopardise the quality of the boardwalk project by the reduction of costs. A Cabinet legislation and liaison officer attached to the Attorney-General's Department also made an oral enquiry of Crown Law and sought confirmation of Mr Harwood's previous advices. No new advices were received. When the matter came back to Cabinet on 24 June 1991 it was decided to defer consideration of the esplanade project to its meeting on 1 July 1991. By this time Mr Eaton had been briefed by his departmental officers and told that the project was of interest to the department as it impacted upon the JLH's proposal. Those possible effects were not identified. Neither Mr Lack nor Mr Scott appear to have appreciated that some of the options proposed as the esplanade project cut across JLH's proposal altogether. Mr Lack suggested that Cabinet was likely to require all seven options to be designed and costed. They appear to have assumed it was still at a very early stage, perhaps not appreciating the level of interest in it and the identity of those having that interest. It seems likely, therefore, that even after the receipt of this memo, Mr Eaton did not appreciate what had taken place since 22 October 1990. Mr Mantle discovered that the matter of the boardwalk had been before Cabinet and put over to 1 July 1991. In this, as in other matters, he appears to have been well-informed. From what follows it may fairly be inferred, I consider, that he was aware of the possibility that only one of either the esplanade project or JLH's proposal would proceed. On 26 June 1991 he wrote letters to the Premier, Mr Eaton and Mr Dunning to persuade them of JLH's proposals. Mr Rudd received a copy. The terms of the letter disclose his knowledge of the esplanade project as one put forward by the Administrative Services Department. In relation to what Mr Mantle described as "the process of finalising discussions with Government and Brisbane City Council" he asked that the matter be held over by Cabinet, and no decision made, until discussions were had concerning the impact the esplanade project would have on the JLH proposal. Each of the three addressees were advised, by the letter, of JLH's amended proposals. Mr Mantle threatened a claim against the respondent for $3M expenses and $90M loss of profits if the esplanade project proceeded showing, clearly, Mr Mantle's belief that the esplanade project would put an end to any prospect of JLH's proposal proceeding. Mr Mantle reiterated an assertion, earlier made, that he had legal advice from Counsel. It is hardly to Mr Mantle's credit that he now says that no such advice had in fact been obtained. But, as I have earlier observed, it is difficult to accept that he obtained no such advice on the matter. On 28 June 1991 Mr Mantle wrote another letter to members of the Cabinet. Apart from exaggerated statements about monies which were said to have been expended by JLH to date and the support which JLH's proposal was said to have, he expressed concern about the esplanade project and suggested that the proposal for it had not been properly prepared, so that it could "dovetail with our project" and that, instead, it cut across and precluded it. The letters also referred to amendments to JLH's proposal which had been effected with Mr Burns. It may be however that this was not brought to the Minister's attention, although Mr Burns himself would not have needed to be reminded of that fact. Mr Scrivens said he had considered the position of JLH and came to the view that the respondent was not legally bound. He wrote a memo to Messrs Moses and Barbagello in which he concluded that JLH did not appear to have a right of action. The memo is most notable for its reference to documents which most likely had been received by Mr Scrivens some time after 7 May 1991 from the Council. It is therefore relevant to questions concerning the variation of the agreement for lease and memorandum of lease agreed between JLH and the Council. At the time further amendment of the respondent's defence was allowed, to raise this issue, the evidence did not disclose the extent of various officers' knowledge, including some officers in Crown Law, of the existence of the Deed of Variation itself. Attention was merely directed, in the respondent's material, to what its legal representatives, having conduct of its proceedings, were aware of. JLH now seeks to rely upon earlier knowledge, which might be imputed to the respondent, as debarring it from pursuing the plea. The memorandum of Mr Scrivens, discovered from the Administrative Services Department file after its waiver of privilege, clearly refers to the Deed of Variation and correctly explains its effect with respect to the commencement dates and payments of premium, and rental. In it Mr Scrivens went on to advise that the Minister's discretion under s 345 could not be said to be fettered by any claim in the Deed the terms of which suggested approval was obligatory. Mr Scrivens' opinion was also provided to Mr Rudd, by Mr Moses. At about this time Mr Scrivens made enquiry of Crown Law, to ascertain if the view previously expressed by Mr Harwood in August 1990 remained his view and was advised by the officer handling Mr Harwood's file in his absence, that so long as there had been no changes to the facts upon which the advice had been based, it would not be different. Dr Chittick also approached Crown Law for advice at this time. Mr Sammon, the solicitor who received the request, together with a copy of the letter of 28 June 1991 to Mr Burns, conferred with the Acting Crown Solicitor, Mr Dunphy. They agreed that there was a real issue as to whether JLH might be held to have a legitimate expectation to be heard in connexion with the refusal of the lease, and that it was sufficient cause for concern that Cabinet should be asked to defer consideration while Crown Law considered it further. Both Dr Chittick, to whom this advice was relayed, and Mr Sammon attempted to contact Mr Rudd on the Friday afternoon prior to the Cabinet meeting, but without success. They believed that he had the necessary power to remove items from the agenda for the meeting. Dr Chittick did however inform Mr Burns of the advice, but he is said not to have displayed any interest in it. The memorandum for the Cabinet meeting of 1 July 1991 explains in the summary document, the "Cover Sheet", that JLH, "a company which had made earlier suggestions regarding the Naval Stores site, has not produced a revised proposal to date", "although the government had imposed new development conditions." The "Body of Memoranda" document, which followed, made the same point and added that "there is no doubt that the introduction of vehicular traffic to this site will entail a conflict with pedestrian and bicycle access along the Esplanade as well as inhibiting the free use of the space for recreational pursuits". The reference to vehicles was clearly a reference to JLH's proposal. The briefing note prepared for the Minister for Administrative Services, who was to present the memorandum, contained somewhat different information. Mr Scrivens, who had been asked to attend to this task, informed the Minister that: "1(a) J.L. Holdings Pty Ltd have in the last two years made suggestions and submitted proposals relating to the development of the Naval Stores and adjoining Crown Land below the Kangaroo Point cliffs to BCC and State Government. (b) It is understood that J.L. Holdings have presented yet a further proposal to the Deputy Premier on 28 April 1991. It is further understood that this proposal is not considered acceptable …" and it went on to refer to JLH having made representations and that it was "obviously aware" of the esplanade project "which recommend a much lower scale of development for the Naval Stores than that proposed by J.L. Holdings". The briefing note, throughout, refers to the two projects as exclusive of each other. In relation to the prospect of litigation, the Minister was informed of Crown Law's advice that the developer would not have a right of action. The recommendation to the Minister, given in conclusion, also included a suggested course to be taken with respect to JLH. This followed Mr Grierson's request of Mr Scrivens, that he identify which department ought to deal with, or advise, JLH of the outcome of Cabinet's decision. It read: "IT IS RECOMMENDED that in addition to Cabinet deciding a particular option for development of the Kangaroo Point Esplanade, Cabinet agree that - 'the Honourable the Minister for Land Management in consultation with the Crown Solicitor, advise the Brisbane City Council and J.L. Holdings Pty Ltd that approvals will not be given to the development of Crown land adjacent to the Naval Stores'". What is not apparent is whether the background information, contained in that Minister's briefing note, was given to the other Ministers in the course of the meeting on 1 July 1991. As was their practice prior to Cabinet meetings, the Premier met with the Deputy Premier, the Treasurer and Mr Rudd early on the morning of 1 July 1991, at about 8.00 am or so. Shortly afterwards they would have been joined by other advisers when the submissions on the agenda were discussed. At about 8.30 am Mr Muhl, of the Department of Local Government, was contacted by Mr Burns' secretary and asked to prepare notes concerning the JLH proposal and to deliver them to Mr Burns by 10.00 am. The request was unusual for its timing. Mr Muhl received some material and was concerned at what he considered to be a potential legal problem. He then telephoned Mr Dunphy at Crown Law for advice. Mr Muhl's advice was not able to be prepared in the time requested. Mr Burns had, he says, directed him to deliver it, when it was completed, to Mr Rudd at the Cabinet room. The memo was addressed to Mr Rudd and advised of a potential and realistic claim for $3M costs. Mr Muhl did not acknowledge a claim for profits as likely to succeed. He suggested that the Crown Solicitor ought to determine the question of liability as a matter of urgency. There is a conflict of evidence about whether Mr Rudd received the memo that morning. There is no doubt that he did at some point receive it, for his note appears on it. Mr Muhl is adamant that he delivered it to Mr Rudd whilst Cabinet was in progress. Mr Rudd says that if he had received it, he would have certainly had it conveyed to Cabinet, and that it would have been foolish, if not improper, for him not to so do. There is something in this. The applicant places some weight on these events as affecting Mr Rudd's bona fides in the matter and his complicity in some plan to push through a decision adverse to JLH. I am unable to conclude that it did come to Mr Rudd's attention, but that he ignored it, on the basis of Mr Muhl's recollection now of handing it to Mr Rudd at the Cabinet room, given other evidence that Mr Rudd would not take a place in the room whilst Cabinet meetings were in progress. There is no other factor which would confirm the events as the applicant would have them. The prospect of deferring consideration of the boardwalk does not seem to have been raised at the meeting, or at least no one recalls it having been raised, although Mr Burns must have known that this possibility had been raised by Crown Law. Mr Comben has a recollection of a discussion about legal questions, or there being uncertainty surrounding the legal position. One would think that it may well have occurred to someone present to raise the matter, given the recent letters received from Mr Mantle which at least a few of them had read. And it seems likely, given the terms of para 3 of the Cabinet decision, those drafted by Mr Scrivens and referred to earlier, that Mr McLean read out what was proposed to be done with respect to JLH's proposal from his briefing note. There is, then, the possibility that he also outlined the history of the matter, and that of Crown Law advice. This may be what Mr Comben recalls. So far as any witness could recall, no one supported JLH's proposal. The decision of Cabinet was in these terms: "1. That subject to consideration of funding proposals by the Cabinet Budget Review Committee and thereafter by Cabinet, Option 7 of the Memorandum is favoured, this being the design and development of Zones 9-13 inclusive as set out in Appendix A to the Submission, at a cost of $5.7 million, less a $2 million contribution from the Brisbane City Council in the 1991-92 financial year. 2. That subject to resolution of matters detailed in 1 above, Cabinet favours completion of construction in August/September 1992. 3. That the Honourable the Minister for Land Management in consultation with the Crown Solicitor advise the Brisbane City Council and J.L. Holdings Pty Ltd that approvals will not be given to the development of Crown land adjacent to the Naval Stores." The last paragraph simply reiterates that suggested by Mr Scrivens in the briefing note. Mr Eaton said he had been annoyed that the matter of JLH's proposal was brought up without notice in Cabinet, and dealt with peremptorily. He determined to do nothing about it for the moment. In any event he left for overseas almost immediately. Mr Scrivens believes he became aware of the Cabinet decision that afternoon and that he prepared a note for the Office of Cabinet concerning the necessary communication with JLH. It is likely that the heads of the Department of Lands were told of the decision that afternoon. They were taken aback by it. The following day, 2 July 1991, the Office of Cabinet requested advice, through the Administrative Services Department, from Crown Law as to the legal ramifications if JLH was not permitted to proceed with its proposal. Mr Scrivens then organised a meeting between officers of the departments involved, Administrative Services, Lands and Local Government, and Mr Dunphy, who was then Acting Crown Solicitor. From Mr Dunphy's point of view it was an information-gathering exercise, its purpose being to bring him up to date with what had occurred with JLH and the Council so that he might advise of the consequences which might flow. Whilst Mr Eaton had himself determined not to attend immediately to what the Cabinet had directed, namely to advise JLH that approval would not be given, it does not seem that his department wouldhave recommended such a step in any event whilst the "concerns raised" were dealt with. Whether these concerns emanated from the Cabinet meeting or arose when Mr Rudd's attention was directed to Mr Muhl's memo of 1 July 1991 warning of litigation, is not plain. It seems to me that there is a distinct possibility that it was the latter. The note made by Mr Dunphy records his briefing by the officers present. He was advised of the letter of 26 October 1989 and of the existence of the agreement to lease, of the approval under s 19(4B) of the Local Government Act, of the rezoning, of the October 1990 Cabinet decision and Mr Mantle's reaction to advice of it. During the meeting mention was made of an internal memo of 22 January 1990 which had come from the Council. It was addressed to the Council's Special Projects Branch and concerned the Deed of Variation which was then to be prepared. He said that he did not appreciate its importance, nor did he later recall it. For some reason, which is not apparent, a decision was made to include the document in the material later given to Senior Counsel for the purpose of his advice, from which one might infer some importance or relevance was thought to attach to it by someone. Whatever view was then held was not able to be explained now. Mr Dunphy also conceded that it was likely that the Crown Law Office had a copy of the Deed of Variation and the memo by July 1991. On 3 July 1991 advice from the Crown Law Office was disseminated amongst the Administrative Services Department, the Office of Cabinet (more particularly, Mr Rudd), the Departments of Lands and Local Government and the Premier's Department. The advice did not contain reference to the agreement to vary but concluded that, whilst there were some possible causes of action, the Minister's refusal to endorse would not appear to offer JLH an avenue for redress. It was suggested that the advice of Senior Counsel be obtained. This was attended to the following day. As I have said, the brief included a copy of the Deed of Variation, but no attention to it was directed, either by the index or the instructions. The advice from Senior Counsel, received on 8 July 1991, touched upon the question of inconsistency of purposes, but it was said to be unnecessary to conclude that question given the opinion arrived at, that JLH was unable to require the Minister's endorsement under s 345 or to claim compensation or damages for his refusal to do so. In Counsel's view however, JLH might be said to have a right to be heard, recognised by the law, prior to any decision being made and that an opportunity ought to be given to it to make representations. On the same day Mr Dunphy dealt with questions posed by Mr Rudd which were relayed to him by Mr Scrivens. In addition to the method by which submissions were to be raised from JLH, and the time to be allowed for them, Mr Rudd asked how it was possible to afford natural justice when Cabinet had already reached a decision - a most pertinent enquiry. The answer given by the lawyers was that it was a matter for the Minister's judgment and not one for Cabinet. Whilst legally accurate, it does not answer the underlying practical issue, namely whether the Minister considered that he was in any event obliged to refuse by reason of the Cabinet decision. In addition to the advices provided, in the first instance to Mr Scrivens, concerning the steps to be taken, it was suggested that 14 days be given to each of JLH and the Council to provide written submissions; that the Minister be fully briefed on all relevant issues; and that no statements be made in the interim concerning JLH's proposed development. Mr Rudd later advised Mr Scrivens that he would ensure no such statements were made. Mr Mantle had not, it seems, heard of the Cabinet decision of 1 July 1991. No department had informed him. Letters were yet to be drafted to each of JLH and the Council. On 9 July 1991 Mr Mantle wrote letters to the Premier and Deputy Premier, and Ministers Eaton, Comben and Mr McLean in which he complained of not having received "approval to proceed" despite protracted and expressive negotiations with government, and expressing the view that those in business could have no confidence in dealing with the government. The following day he wrote again, in somewhat more conciliatory tones, advising that he would make himself available to meet with Ministers to discuss any concerns they had. A conference was held on 10 July 1991 between officers of the Department of Lands, the Administrative Services Department, Crown Law and Senior Counsel for the purpose of drafting the letters by which JLH and the Council were to be advised of their opportunity to make submissions. Amongst the advice given at the meeting was that the Minister might properly take account of the "policy" contained in the Cabinet decision of 1 July 1991 although it was not said just what matter of "policy" concerned JLH's proposal. It is possible to consider the public use of reserve lands as an objective and a policy. Mr Harwood's note of the meeting was however to the effect that Cabinet's expression of policy was simply that JLH was "not on". It was also said to be necessary that the Minister be fully briefed before he signed any letter to JLH or the Council, in particular because litigation was a possibility; and that statements detailing negotiations between the government and JLH, including those undertaken by the Deputy Premier, ought to be obtained without delay. The summary later prepared by Crown Law of the advice given concluded by reiterating the need to ensure that the "present position of the Government is not unnecessarily jeopardised" until a decision was finally made under s 345 Land Act. Crown Law also took the course, on this occasion, of advising Mr Rudd separately. The need to do so was explained in another note as having arisen because of the number of issues and departments involved. This accords with the role with respect to "whole of government" issues to which Mr Rudd referred in his evidence. It may in part, have been thought necessary because it was seen as imperative that silence be maintained in the interim. That no damaging public statements were issued by any department was something that Mr Rudd saw as part of his task. It is this advice also which is seized upon by the applicant as an important indicator of the state of mind of those alleged to have taken part in the fraudulent scheme. The advice provided described the intended purpose of the letter to be sent to JLH as one: "... which would set in train procedures to effectively 'kill off' the first development proposal which revolved around the proposed lease between the Brisbane City Council and J. L. Holdings Pty Ltd. From a purely legal point of view, I remain convinced that there is an urgent need for the Minister for Land Management to now take steps to put in motion steps which will lead to the formal termination of the first development proposal which was based upon the proposed lease between the Brisbane City Council and J L Holdings Pty Ltd over reserves 2721 and 2713." Mr Rudd denied using the words "kill off" and Mr Dunphy said they did not reflect his instructions. It seems to me that they reflect what he saw as the reality of the situation about which he might, under legal professional privilege, speak frankly. I do not have difficulty in accepting that for all those involved in the process between 2 July 1991 and this point, this was what was understood to follow on from the Cabinet decision. It was the view of Mr O'Connor from the Department of Lands who noted, on 17 July 1991, that the process was one designed to legally sever any further Crown obligation. It was the Minister, Mr Eaton, however who had the ultimate decision. The Minister's decision On 15 July 1991 Mr Eaton and others, including his Director-General Mr Wilson, returned from overseas. Shortly afterwards Mr Wilson was briefed by his departmental officers as to what had taken place. At some point, I accept, Mr Eaton would have been told of the question which was to be decided by him; of the threat of litigation by JLH and that the decision, whether to endorse or "approve", was one to be made by him. His department had been advised by the lawyers of the need to make these matters plain to the Minister, given that action by JLH was regarded as a serious possibility. The extent to which he familiarised himself with the factual background may not however have been quite as Crown Law had advised. Just when these matters were discussed with the Minister is not clear, although Mr Wilson was confident that some discussion was had with him prior to the letters of 17 July 1991 to JLH and the Council being signed. The letters advised that Mr Eaton had not yet endorsed his approval; that he considered some aspects of the proposal to be highly commercial and that government policy was that the public interest might be better served in other ways. It went on to inform them that his present indication was not to endorse, but offered them 14 days to present submissions to him. Whether the contents of the letter and in particular the perception of government policy expressed views actually held by Mr Eaton was unclear. He had not had contact with the other persons who are alleged to have taken part in what amounts to a conspiracy against JLH or its development. So far as Mr Eaton's advisers were concerned, Mr Gardiner said that the JLH's proposal was still considered a live issue in the department at this time. His further evidence provided context. So far as he and the other departmental advisers were concerned the two proposals - JLH's proposal and the esplanade project - were considered to be able to co-exist. Beyond that the evidence did not make clear what view they held of the Cabinet decision. Mr Eaton did not have a specific recollection of the letter of 17 July 1991 and the events surrounding it. As I have earlier indicated, it does not seem to me that Mr Eaton had much recall of events at all, save in a general way, and in some respects his recollection appeared to place events out of sequence. I am left in real doubt that in the period July to October 1991 Mr Eaton ever fully understood the history of the matter. Mr Eaton said in evidence, with respect to the 17 July letter, that he didn't want to get Mr Mantle's hopes up, but that he thought Mr Mantle's architect might have some alternative option which he could pursue, in the area north of the boat basin. He thought he was giving Mr Mantle a real opportunity to address him. This recollection seems more relevant to the position which obtained after the October 1990 Cabinet decision when it was determined that development be limited in this way. The recollection does not appear to take account of the 1 July 1991 decision at all. It seems likely to me that Mr Eaton would have taken into account what Cabinet had then decided as virtually conducting the matter and that he had not, as the respondent implied, simply put it out of his mind. Other parts of his evidence confirm his belief that he was bound by Cabinet decisions. Whatever else might be made of Mr Eaton's evidence it is possible to infer, in my view, that from at least October 1990 he considered that Mr Mantle was not to receive "approval" for the whole of the land, which is to say of the leases of all of the lands which had been approved by Mr Harper. On 25 July 1991 Mr Mantle wrote to the Premier's Department threatening public ventilation of the dispute unless "prior approvals" were honoured, but later wrote to the Minister requesting an extension which was granted. A similar extension, to 30 August 1991, was granted to the Council on its later request. Shortly after Mr Mantle received the advice concerning the extension, he received a reply from Mr Comben dated 2 August 1991 which restated the Cabinet decision of October 1990 and, whilst not referring to the decision of July 1991, went on: "The government is also in favour of developing an esplanade around Kangaroo Point. Cabinet has agreed that the Minister for Land Management is to write to you in relation to your proposal and the proposed esplanade." During August 1991 discussions had taken place between the Administrative Services Department and the Council concerning the esplanade project and the joint funding of it. They included, at different points, the Director-General of the Administrative Services Department, Mr Rudd, the Lord Mayor and Mr Barbagello. In that process the esplanade report was made available to the Council, on a confidential basis, and after legal advice had been obtained concerning its disclosure. On 30 August 1991, Mr Mantle wrote requesting a further extension. Only a limited extension was granted. Mr Eaton did recall that he considered the matter needed to be brought to conclusion. The submission dated 2 September 1991 forwarded by Mr Mantle to Mr Eaton referred to an "illusory opportunity" to present arguments having been given. This statement caused concern amongst the officers of Crown Law. A copy of the submission was also made available to Mr Rudd who made a note on it to ring the Director-General of the Department of Lands. Mr Wilson says that he and Mr Scott of the LAC discussed the Crown Law advice of 5 September 1991 with Mr Eaton. It had detailed what the Minister was to know and appreciate in coming to a decision, but they had formed their own views about whether the Minister needed to read all the material himself and were of the opinion that, to an extent, he could rely upon the factual conclusions of others, although they did not identify what those conclusions were. Mr Wilson and Mr Scott then briefed the Minister regarding the project, its history and the advice received. Whilst Mr Eaton on occasions read documents himself, there is no suggestion that he did so in this case. And, as I have said, if Mr Eaton did then have a full understanding of the history of the matter, and all the issues arising, it was unfortunately not apparent from his evidence. Mr Wilson, during or at the conclusion of the discussion with the Minister, came to the view that the Minister would not approve the project. There does not seem to me to be any cogent evidence to suggest that Mr Eaton ever seriously considered otherwise. Mr Eaton said his usual practice was then to ask his officers to prepare a document giving effect to his views. Such a document was then prepared by Mr Scott. The document, entitled "Decision on Proposed Lease" concluded that the view the Minister had formed, but upon which he desired to hear from JLH prior to making "my final decision" was "on balance … that, the public interest would be best served by development of the area for more passive recreational purposes". The matters said to have been weighed in coming to that view: the benefits which might flow from JLH's proposal; the case put forward in opposition; that no compromise could be found; the views of his ministerial colleagues and the possible alternative uses of the area advanced by other agencies. As sculpted, the document represents a balanced assessment of relevant issues and confines, to an acceptable level, the boardwalk proposal and the Cabinet decision of 1 July 1991. There may be aspects of it which, in truth, reflected Mr Eaton's thinking then. He may have believed he had attempted to find a compromise, although that was not what he took to Cabinet in September and October 1990. The only change to JLH's proposal which Mr Eaton and his advisers then thought necessary was the cancelling of the reserve and reissue of a special lease, to overcome what was thought to be a valid legal objection to the proposal. The document does not recite the decision and directive of either the Cabinet meeting of 20 October 1990 or of 1 July 1991. Mr Eaton might have been content with the terms of the document when he read it, but I cannot be satisfied that it reflects, in any meaningful way, any process of judgment on the part of the Minister. There is nothing, however, to suggest that Mr Eaton came to that decision out of malice, out of a desire or determination to injure JLH, or that he did so by some arrangement with Messrs Goss, Rudd or Dunning. The most that could be said is that it is probable that he was giving effect to either, or both, of the two Cabinet decisions. Mr Mantle was not advised of Mr Eaton's decision until he received a letter dated 4 October 1991. The delay in advising of the decision of 9 September 1991 was explained only by reference to some need to have funding arrangements with the Council. It was not convincing. On 5 October 1991 the boardwalk proposal was made public. THE CLAIMS AND DEFENCES No action was taken by JLH when it received advice of the Minister's refusal to permit a lease of the reserve lands. In June 1992 the Council wrote referring to the Minister's advices that he would not endorse approval, and confirmed that the agreements between the Council and JLH were at an end. Although JLH's principal contention is that the Minister was obliged, under s 345 Land Act, to endorse the fact of the earlier approval given either by Cabinet or Mr Harper, it did not bring proceedings to enforce such an obligation and did not seek judicial review of the Minister's refusal. The explanation it gives is that proceedings for relief, by way of declaration or other order, would not likely have met with success because a commitment had then been made by the respondent to the esplanade project, and questions of public interest might have been raised. Before turning to the statutory provisions and the question as to whether any estoppel might arise from the representations alleged, which seem to me to have always been the essential issues in the case, it is convenient to deal with the claim for damages arising by reference to the fraudulent conduct said to have been engaged in, in the second period. The claim of fraudulent conduct As I have earlier observed, considerable reliance was placed by JLH on the letter from Mr Rudd dated 7 May 1991. It will be recalled that it followed the final meeting between Messrs Burns, Mantle and Job, which had been hastily reconvened when Mr Rudd was advised that Mr Burns had given tacit approval to the project, as amended, proceeding. Mr Rudd then sent the letter, in which he asserted that the view held by the Premier, and by him, was that JLH's proposal was too intense and asked Mr Burns to advise the developer of "the bad news". The first limb of JLH's case as pleaded depended upon there being found a decision reached between Messrs Goss, Rudd and Dunning "either alone or in consultation with others" prior to 7 May 1991 which I take to refer, at a minimum, to an agreement between the three of them. It seems likely to me, however, that when the matter was pleaded JLH's legal representatives were speculating as to the background of the letter of 7 May 1991. The terms of that decision, as alleged by JLH, were to the effect that JLH's proposal be rejected; that the Minister for Land Management not endorse his approval to the lease of the reserve lands under s 345; that the respondent forthwith implement the plan devised by the architect Mr Gibson of a boardwalk from the Expo site to the Story Bridge, "being the Kangaroo Point Esplanade Project"; and that consultation take place with the Council with a view to it providing some funding for the project. The Minister for Land Management was said to have been informed of the decision sometime in May 1991. The departments involved are alleged thereafter to have put in train the esplanade project. JLH's pleading contains reference to some later documents as evidencing the decision, the identified parties' involvement and the implementation of the esplanade project. The Minister for Lands Management was alleged, as were others, to have concealed the fact of the decision and the course of action agreed upon and to have pretended that JLH was being afforded an opportunity to make submissions to him. The fraudulent conduct upon which JLH relies is the deliberate concealment of this plan. In the way in which this aspect of the case was pleaded, the July 1991 decision of Cabinet assumes little importance, save as reflecting what had earlier been decided between at least Mr Goss and Mr Rudd and as forming part of the process of its implementation. The evidence however failed to established some such earlier "conspiracy", one later given effect to by a compliant Cabinet and Minister for Land Management. Rather, it disclosed that it was the July decision of Cabinet which Mr Eaton was putting into effect when he considered the matter in October 1991. The story which emerged from the evidence of the many witnesses called was of a development which some members of Cabinet had opposed from an early point, on bona fide grounds, and which Cabinet had determined ought to be reduced in scale and ought to contain more public uses. Attempts were made to bring the developer to that view voluntarily. Whilst it is possible, at the time of the October 1990 Cabinet meeting, that someone considered that the boardwalk proposal should proceed as the major development and only some minor development of the ONS site be allowed with permits to use the reserve lands for limited purposes, that person was never identified and it was never established that there was any high level or influential decision-making which occurred prior to the preparation of the outline which was provided to Mr Gibson to enable him to devise a concept plan. The possibility is that it emanated from Mr Burns' department. In any event, so far as the evidence reveals, the matter was given over to Cabinet and then to the Deputy Premier, to negotiate with JLH as developer. It was not shown to have been undertaken at this point for the sole purpose of avoiding litigation, or to delay JLH whilst the esplanade project was designed. One can discern from the Cabinet decision a determination not to permit JLH's proposal to proceed beyond the boundaries Cabinet had decided upon, and one is left to wonder just what Mr Burns thought was negotiable and likely to be acceptable to Cabinet when he later undertook the meetings with Mr Mantle. The Deputy Premier may have been persuaded, after discussion, to take an amended proposal to Cabinet, but at this point Mr Rudd intervened. He also disapproved of the proposal but I am unable to conclude, were it relevant to the case brought by JLH, that this was his sole motivation for acting as he then did, for the concept of some boardwalk or esplanade had at least been discussed, and favoured, earlier. Whilst the terms of his communications on 7 May 1991 were, to say the least, blunt one could not thereby infer any intention to harm JLH. Rather, it might also be said that he had little or no sympathy for its position. To an extent it might be said that to this point each of Mr Goss, Mr Rudd and perhaps Mr Burns favoured the construction of a boardwalk and believed it would have public support and approval. But any such proposal had not proceeded far and it was not one made with JLH's proposal, or its lack of continuance, in mind. Those persons were aware of the October 1990 Cabinet decision to limit any such development. Whatever else was to happen was not considered to be their decision alone. Their desire for a boardwalk does not lend support to the theory, pursued by JLH, that they conspired to prevent its development and replace it with an esplanade projectdevised by Mr Gibson. The process was an incremental one and absent the plan which lies at the heart of JLH's case. Whilst some members of Cabinet, in October 1990, might have appreciated that to so limit the development might prejudice its viability, that does not appear to have been gone into in any detail. The impression one has is that Cabinet considered it had the power to approve or disapprove the project, with little thought having been given to whether the Minister for Land Management had any discretion to refuse endorsement to the lease, perhaps because the parties had each proceeded, from early 1990, on the basis that the matter required further negotiation. The earlier advice of March 1990, received by the Department of Lands from Crown Law, that there was no discretion left to exercise given the earlier approval of the lease, appears to have been overtaken by that of August 1990, which was to the effect that endorsement might be refused because the lease incorporated uses for the lands inconsistent with those for which they had been set apart as reserve lands, at least if one read the advice in full. The evidence does not disclose what view was held in the department after that advice was received. The need to obtain advice re-emerged after the matter had been stood over by Cabinet in June 1991 and prior to the July Cabinet meeting, when a final decision was to be made. Mr Scrivens of the Administrative Services Department and the Deputy Premier's Office both approached Crown Law. The advice was necessary because, between May and July 1991, the esplanade project had been designed, as the memo to Cabinet explained. It had then become apparent that the two developments could not co-exist. But again, the design of the project could not have been said to have been driven by any of the persons whose conduct JLH seeks to impugn. The evidence revealed only a "best-design" approach by the department responsible. The considerable evidence on this issue did not, at any point, disclose some jointly determined course of action either between Messrs Goss and Rudd, who were the principal focus of JLH's attention in examination on the hearing, or others. And, whilst Mr Eaton's evidence was not especially helpful, because his recollection was patently unreliable, there was nothing to suggest he had any part to play in the development of the esplanade project. Nevertheless, JLH and its advisers persisted with the claim and I was left with the impression, as I have earlier mentioned, that the case in fraud was brought on the basis of the letter by Mr Rudd of 7 May 1991 and was continued even when the prospect of establishing an earlier decision, contrary to JLH's interest, looked faint. JLH's continuation with the claim of fraudulent conduct could, in my view, be explained only on the basis that it hoped something might nevertheless emerge. At no point however did it seek to recast its case. So far as Mr Eaton was concerned, I do not consider it at all likely that he would have contemplated acting contrary to the decision reached by Cabinet in July 1991, when he came to consider the question of the endorsement. He did not, in my view, consider that there was any alternative course of action other than to refuse endorsement, although he was annoyed by the matter having been raised for Cabinet consideration without prior reference to him. It is not necessary here to delve into the controversy surrounding notions of "collective responsibility" of Cabinet. It is sufficient, for present purposes, to observe that Mr Eaton considered that it was his duty to implement Cabinet decisions. At this point JLH might have been told of the decision of Cabinet. Indeed it is curious that, on this occasion, Mr Mantle's sources are not said to have provided him with this important information. I am not, however, in a position to conclude that he was in fact so advised, as the respondent contended. The course determined upon by the departments in question and Mr Rudd, in conjunction with Crown Law, was to maintain silence with respect to that decision whilst the opportunity to make representations was given to JLH. Whilst there was a possibility that the Minister might endorse approval, despite the Cabinet decision, I cannot think that those concerned, at least those who knew of the terms of the Cabinet decision, would have considered that those representations would alter the outcome and that approval was a realistic possibility. It is one thing for the law to require a party in some circumstances to be given the opportunity to make representations, it is another whether a decision-maker will in truth have an open mind upon the matter. JLH's second claim in fraud relies upon representations made by Mr Eaton, principally by the letter of 17 July 1991 to JLH, that whilst his inclination was not to endorse, he would give due consideration to any submissions made by JLH on the matter. That representation was made and it was not accurate, given the Minister's belief as to his responsibility to the decisions of Cabinet. The difficulty for JLH is in establishing what followed from it. The representation was one to the effect that Mr Eaton would consider the submissions. It did not amount to any assurance of success for JLH. Given the history of the matter, JLH could not have placed much reliance upon it and it does not suggest that it took positive steps on the strength of it. Rather it submitted that, because it was misled as to what was to be the outcome, between July 1991 and October 1991, it lost the opportunity to take proceedings to obtain a declaration, injunction or order for specific performance against the Minister. In consequence, it alleges, it lost the whole of the profits it would have derived from the development if it had been completed. There are a number of problems inherent in this argument. In the first place I cannot accept that JLH would have brought such proceedings. It had never pursued such a course before and had apparently preferred to leave the fate of the development to continued negotiations with the politicians concerned. It may be indicative of Mr Mantle's belief that an approval from the incoming Minister was necessary in December 1989, that no action was then taken. It may also be, as I have earlier observed, that he considered the better course to obtain the support of the government and to obtain the outstanding approvals necessary and that he was confident of his ability to do so. It is true that the matter now had reached a point where there was no further prospect of negotiation, but even then Mr Mantle did not pursue the matter with vigour. He had not sought legal advice as to JLH's position throughout the long debate over the development nor did he do so after he was advised of the outcome of the October 1990 Cabinet meeting, which he must have regarded as indicative of a strong lack of support from the Government, save for a very limited development which was not likely to be viable. The only advice he says he sought from his solicitor was not about litigation. He does not say that after receiving Mr Eaton's advice in October 1991, he sought advice as to the legal remedies JLH might have, or that he was advised that he would encounter difficulties because the esplanade project was about to be commenced, which is the explanation he now puts forward for not taking action. If he held that view himself he did not explain in evidence how he reached it. He sought an opinion in November 1991 from a Queen's Counsel who was, however, appointed to the Court before being able to furnish an advice. A second Queen's Counsel did not respond for some months to a request for an opinion and a conference was ultimately held with a third some time in 1992. These proceedings were not brought for more than two years after that. This course of events does not support the contention that JLH would have sued to obtain the necessary endorsement had the esplanade project not been mooted. In general, the subject was not gone into in any meaningful way by Mr Mantle and I am left unconvinced that litigation would have been pursued even if the esplanade project had not been announced. The fact that litigation was ultimately commenced does not persuade me to the contrary and may have regard to different advice then received. Further, in my view, the litigation was not likely to be successful although not for the reasons put forward by JLH, as those brought about wrongfully by the respondent. The "public interest" issue to which it referred, as that likely to defeat its claim, was in the public works of the esplanade project. It is difficult to accept that a Court would have withheld relief on that account alone, if there was otherwise found to be an obligation to endorse. If that be correct there is strength in the respondent's submission that JLH failed to mitigate any damages it might suffer. However, on the view I take of the powers which remained in the Minister, to which I later refer in these reasons, there was no enforceable obligation to endorse, especially in a circumstance where the Minister was reconsidering the question of approval of the lease on public interest grounds. It follows, in my view, that JLH has not in any event established the necessary consequences which might follow any wrongful conduct undertaken in 1991 from which it could make out a case for damages. I have referred to loss and damage arising with respect to the second claim of fraudulent conduct. The same reasoning applies with respect to the claim based upon the alleged "decision" prior to May 1991. Further, even if one were to extend the period during which JLH was not advised of any outcome, it still could not establish that it would have brought litigation or that success would have been denied it by reason of the time lost. An alternative claim was made for expenses incurred by JLH as a result of the alleged conduct. In submissions this was confined to monies that JLH "continued to expend" absent the knowledge of an operative decision. At no point, however, did JLH descend to identify those expenses said to have been incurred on the basis of the representations or its lack of knowledge. In the period from July to October 1991, the list of expenses pleaded shows amounts totalling some few thousand dollars. It is somewhat greater in the months preceding May 1991 and for May and June those figures include sums claimed as fees for services said to be due to Jimmy's on the Mall Pty Ltd, to which I shall later refer, and some other items which are not, on their face, referable to any belief that the matter would be considered. The construction of sections 343 and 345 Land Act - whether a discretion under s 345 or power to reconsider The operation of these sections is central to the claims by JLH which depend upon the Minister either being held obliged to endorse once approval had been given under s 343, or the Minister being held estopped from refusing to do so. The respondent's answer to these contentions, in summary, is that there is a full discretion given under s 345 to decline endorsement and the exercise of that discretion cannot be impeded by promises which, in effect, deny its discretion. In either case the focus is upon s 345 and what is involved in endorsement of approval and I shall, in the first place, deal with that question. The Constitution Act 1867 (Qld) provided that management and control of Crown lands was to vest in the legislature and that the legislature could make laws regulating the sale, letting, disposal and occupation of the lands: see ss 30, 40. The Land Act, s 334, provided that Crown lands may be reserved and set apart for any public purpose and placed under the control of trustees. Subsection (4) of that section provided that the Governor in Council may rescind, in whole or in part, or amend any such Order in Council. Here the lands were set apart for use as parks and for recreation purposes and the Council, as a local authority, was designated the trustee of the lands (see s 335(2)). Statutory powers given to trustees under other legislation (see Trusts Act 1973 (Qld) (s 334(7) Land Act) and, whilst they are able to bring proceedings in connexion with the lands (s 338), they have no power of sale (s 342) and their power to lease is limited (s 343). This lastmentioned section provides: "343. Limitation on power to lease. (1) the Trustees … of a reserve … shall not lease or agree to lease the whole or any part of the land under their control without the approval in writing of the Minister first had and obtained. (2) Application for such approval shall be made to the Minister, shall be signed by the trustees and shall state the following particulars:- (a) the grounds on which the trustees consider it necessary or desirable that the whole or part of the land under their control should be leased; (b) the term of the proposed lease and the conditions thereof; (c) the rent to be reserved; and (d) the purposes for which such rent is to be applied. (3) the application shall be accompanied by a draft of the proposed lease. (4) The Minister may in his absolute discretion, refuse to approve the proposal or, if the Minister is satisfied that the proposed lease is - (a) not detrimental to the public interests; (b) not inconsistent with the purpose for which the land was granted in trust or reserved and set apart; and (c) not for an excessive term and complies otherwise with the requirements of section three hundred and forty-four of this Act; approve the proposal in whole or in part, and in either case subject to such conditions, reservations and modifications as he deems fit." The provisions of s 344 are not here relevant. The Cabinet resolution in January 1989 did not effect the approval of which the section speaks. Neither the Cabinet nor the relevant Minister at that meeting was concerned with the question of an approval of a lease of the reserve lands put forward by the Council and containing the required terms. However, Mr Harper and the LAC officers later, in October 1989, did consider the matter having regard to the information required. An application was then made by the Council in writing and a draft of the lease of the reserve lands was Appendix B to the agreement for lease. What Mr Harper returned to the Council as "approved" was that document with the recommended amendments. It follows, in my view, that what could be endorsed under s 345 by the then Minister, and registered, was a document in those terms. There was, as the history of the matter discloses, a question raised as to whether the proposed retail use, to which part of the reserve lands were intended to be put, was inconsistent with those purposes for which it had been set apart, but the respondent expressly disavowed any reliance upon this issue as affording a ground for the later refusal of the endorsement. Section 345 provides: "345. Minister's approval to be endorsed on lease. When a lease under this Division has been duly executed in accordance with the terms and conditions approved by the Minister the original and all other executed copies of such lease shall be forwarded to the Minister for endorsement thereon of his approval of the lease. Thereafter one copy shall be retained in the Department. A lease to which this Division applies which is not endorsed with the Minister's approval shall have no validity or effect in law and in the case of a lease with respect to land granted in trust shall not be capable of registration under 'The Real Property Acts, 1861 to 1960'". The process contemplated by sections 343-345 Land Act, in my view, is one giving the Minister a broadly based discretion to reject or approve a proposed lease of reserve lands or, as here occurred, to approve a lease subject to other modifications or conditions. If a document, executed and containing the terms the subject of the approval, including any amendments, is later forwarded to the Minister, there would not seem to be anything of substance then contemplated as necessary to be determined, before the lease is given its validity and effect by registration. All that appears to be required by s 345 is that the executed lease forwarded for the purpose of endorsement of approval be one "in accordance with the terms and conditions approved by the Minister". What that would require is an examination to determine whether the document put forward contains the terms and conditions approved. The need for correspondence of terms is relied upon by the respondent in other submissions. Relevantly, for present purposes, it seems to me that the purpose of the endorsement is simply to record approval on the lease submitted in form for registration, given that it may not have been possible to have done so on the draft submitted in the first instance, given in many cases that there would be changes made to it. Section 57 of the Land Act 1994 (Qld) which replaced the Land Act 1962 refers to "approval in principle" being provided in the first instance, and the "approval" of the Minister then being endorsed before registration. It suggests a different regime, one where the discretion to approve is retained by the Minister to the end. Neither party sought to place reliance upon it for the purpose of comparison. It might also be observed, although it is neither compelling nor necessary as grounds for support, that the practice undertaken for many years in the LAC was for endorsement to be attended to by a nominated officer, acting under delegation from the Minister. It was not suggested that that process involved any further considerations. The respondent sought to draw upon Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520, and the cases which follow it, in support of its submission that the Minister could not bind himself to endorse the lease. It seems to me however that the decision has no application to the limited steps to be undertaken under s 345. That case concerned an application for mining leases under the Mining Act 1898-1967 where the appellants had been holders of authorities to prospect, pursuant to which they had carried out extensive prospecting operations at considerable expense. Specific performance was refused on the basis that the Minister had not exercised the powers conferred by the statute and the Crown could not bind itself in advance, by way of contract, for the disposal of an interest in Crown lands. The point of the case was that the area of discretion or decision-making required by the statute had yet to be exercised and there could be no binding contract until that point (537). Other cases confirm that the Executive cannot bind itself in advance of the exercise of statutory functions: see Attorney General (NSW) v Quin (1990) 170 CLR 1, 17. On the same basis the Courts will not permit an estoppel to operate: Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416, 424. Here however what is left to be done under s 345 is not the kind of decision-making with which the Court was concerned in Cudgen Rutile. Insofar as it is sought to bind the Minister for Land Management to a promise of approval, in advance of the considerations required by s 343, in my view the case would clearly have application. I have however held that an approval under s 343 was given. In seeking to apply the reasoning in Cudgen Rutile to what is left to be done under s 345, the respondent has assumed that there remains something of substance then necessarily left to be done. I do not consider that to be the case. In my view s 345 does not involve the exercise of wide discretionary powers as the respondent contended. On the other hand the sections do not oblige the Minister to endorse although, as I have said, in most cases where approval has been considered and given, there is unlikely to be any reason not to do so. There does not appear to me to be anything arising otherwise from the operation of the Land Act which would have that effect. I deal with this question further in my reasons concerning the claim for breach of statutory duty. For present purposes, and upon the assumption that no such duty arises under the statute, the question then which arises is whether the Minister may nevertheless be held obliged to fulfil a promise given, to provide the endorsement. Before turning to JLH's claim that an estoppel arose, it is necessary to consider the question which remains concerning the Minister's powers and discretions, namely whether the Minister retained the power to rescind an earlier approval. In that event the issue is whether an estoppel may operate against the exercise of that power. In Brickworks Ltd v Warringah Shire Council (1963) 108 CLR 568, 577 a company had been advised of the local authority's consent to use the lands in question. The local authority later purported to treat the consent as void. Windeyer J (577) distinguished the Southend-on-Sea case on the basis that there it had been represented, erroneously, that there was no discretion to exercise and no permission was necessary, whereas the local authority in Brickworks was to be taken as saying that whilst there was a discretion, it had in fact been exercised in the company's favour. His Honour was prepared to deal with the case on the basis of an estoppel having been raised, but did not consider that it was strictly necessary to do so. Gummow J explained in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 211 that Brickworks was one of a group of cases where estoppels had been held to operate but which were explicable on the basis that the power in question was exercised or "spent" and a second decision not possible. That appears to me to be an assumption underlying JLH's case. The Land Act itself provides that the Minister may revoke a lease, for breach of its terms or where the public interest requires it: s 348(1). One might think the exercise of the lastmentioned power would be rare. It would in any event require the Minister to act in good faith in applying that criteria. The consequence may be that no compensation is made for fixtures (s 348(2)), and whilst that appears harsh, it may be that it was not contemplated that substantial commercial developments were likely to be constructed on reserve lands. The Land Act does not expressly authorise the reconsideration, variation or cancellation of an approval prior to a lease coming into effect. It may be observed however that one of the matters which the Minister is to consider under s 343 is whether the proposed lease is detrimental to the public interest. Circumstances affecting the public interest in connexion with the type of lands in question and issues of policy relating to that question may be subject to change. Sections 23(1) and 4 of the Acts Interpretation Act 1954 (Qld) provided that a function or power conferred by an Act may be performed or exercised as the occasion requires, unless the contrary intention appears. They are to the same effect as s 33(1) Acts Interpretation Act 1901 (Cth) which was considered in Kurtovic. A later amendment to the Queensland Act provided that if an Act authorises or requires the making, relevantly, of a decision, it includes a power to amend or repeal the decision and is exercisablein the same way, and subject to the same conditions, as the power to make the instrument or decision: s 24AA. The power to repeal includes one to rescind: s 36. The section however only came into effect on 17 December 1991, does not have retrospective operation and does not have application to this case, where the exercise of power was concluded by the Minister's decision in October 1991. That leaves for consideration the power under s 23(1), which extends to reconsideration, and therefore disapproval, where the circumstances require it. Reference to the provisions of the Acts Interpretation Act had not been made by either party in their original submissions. In response to my request for submissions as to their application to this case, the respondent did not seek to rely upon s 23(1) and s 23(4) and doubted their application, given the express provision in the Land Act for cancellation of leases. As I have said, however, that does not seem to me to conclude the question as to whether an approval to lease could be reconsidered. Cases holding that decisions must be considered as incapable of reconsideration have generally been concerned with powers to decide questions affecting legal entitlements, or with consequences which are such that finality must have been intended: see In Re 56 Denton Road, Twickenham [1953] Ch 51; Livingstone v Westminster Corporation [1904] 2 KB 109; Export Development Grants Board v EMI (Australia) Ltd (1985) 61 ALR 115, 121. Such a conclusion is reached by a process of construction and in particular, by having regard to the nature or character of the power in question: Kurtovic (211), Wade & Forsyth "Administrative Law" 7th edn p 261. In such circumstances the interpretation provisions do not have operation: see Scarfe v Federal Commissioner of Taxation (1920) 28 CLR 271, since the requisite "contrary intention" is shown. In the present case there are not, in my view, sufficient indicators that the exercise of the power of approval can be taken never to require reconsideration or that the statute comprehended that it would never be undertaken. A lease of reserve lands is said to have no effect at law and to be incapable of registration until endorsement: s 345. Although one may assume such circumstances would be rare, there is the possibility of a lease having received approval, as to its terms, but being taken no further. Further dealings with the lands might require the approval to be cancelled. Such a situation might be contrasted with town planning and building legislation and ordinances, which usually provide that permits and approvals are automatically terminated if they are not acted upon within a particular period. Moreover, as I have earlier mentioned, there remains the prospect that questions affecting the public interest might change, and these may include matters of policy. In these circumstances I am unable to conclude that the operation of the interpretation provisions is ousted and hold that the Minister retained the power to reconsider an approval earlier given and communicated. The decision of October 1991 may be considered in this light. That is not however an end to the matter, unless one were to conclude that because that power and discretion remained, the Minister might never be held to a promise to endorse. Whether the Minister could be held obliged to endorse - the case in estoppel Just as the Crown cannot contract in advance of statutory procedures, as Cudgen Rutile and Attorney-General v Quinn hold (see also Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54, 76-7, 74-6), a Minister invested with a statutory discretion cannot represent that the discretion will be exercised in a particular way: Southend-on-Sea (424); Brickworks, (577); Attorney General for New South Wales v Quin (17); Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648, 679 and Kurtovic (200, 210), for the reason that it is taken to be intended that the discretion is to be exercised upon the basis of a proper understanding of what is required by the statute, and the decision-maker is not to be held to a decision which mistakes or forecloses that understanding; Kurtovic, Gummow J (211). In Attorney General v Quin, Mason CJ (18) considered however that the Executive might be held to a representation where it "does not significantly hinder the exercise of the relevant discretion in the public interest" and that there might be a case where the Court considered the public interest in assuring justice to the individual should be met. In Roberts v Repatriation Commission (1992) 39 FCR 420, 425, the Full Court pointed out that his Honour was referring to a particular class of case and that that view needs be read in the context of his Honour's earlier statement of general principle (Attorney General v Quin at 17). I do not however consider Roberts and the cases following it, to have rejected the possibility of such an approach, which was the respondent's submission. In Roberts it was not necessary to consider it further because the Court was there concerned with the use of an estoppel to confer a power which the statute did not authorise. Some cases concerning the operation of estoppel to the exercise of statutory powers draw a distinction as between a duty and a discretion. Gummow J in Kurtovic, (210), however pointed out that the same limitation on the operation of an estoppel has been said to apply where there is no duty to act, and merely a discretionary power, on the basis that there is a duty to exercise a free and unhindered discretion. In this connexion his Honour referred to a statement by Sir Alexander Turner in "The Law Relating to Estoppel by Representation" (3rd edn, 1977, 150). For my purpose I refer only to the conclusion: "…But it must appear that frustration of its duty or of its discretion will be the result of allowing the estoppel; anything less than this will be insufficient as an affirmative answer." This appears to me to echo the views expressed by Mason CJ in Attorney General v Quin. In that respect, it seems to me that even accepting that there is a duty to exercise a discretion properly, in accordance with the statute, different considerations might apply where the discretion might never be exercised, as may be the case with respect to a power to consider again the grant of an approval to lease reserve lands. The power itself is expressed to be one as circumstances may require. One would not, in any event, expect a Minister acting in good faith to revisit an application approved and communicated, save for good reason. With respect to leases under the Land Act the circumstances would be limited. It may be accepted, in accordance with the statements of principle above, that a Minister could not be held to a promise that the power to reconsider, and rescind, would never be exercised even if the public interest later required it. That leaves unanswered the question whether the Minister could be held to a promise that save where such factors operated, the approval would not be reconsidered as to its merits and an endorsement would then be provided. If the situation then arose where it was sought to hold the Minister to that promise and the Minister was unable to point to any need for reconsideration, on the grounds mentioned, it could not be said that to do so would hinder any duty. I therefore incline to the view that it would not be contrary to principle, in such circumstances, to hold the Minister estopped from resiling from those promises. In Kurtovic, Gummow J considered that the question in any case whether an estoppel could operate falls properly to be determined by the policy/operational dichotomy. In the course of that discussion, Gummow J said (215): "… The planning or policy level of decision making wherein statutory discretions are exercised has, in my view, a different character or quality to what one might call the operational decisions which implement decisions made in the exercise of that policy …. Where the public authority makes representations in the course of implementation of a decision arrived at by the exercise of its discretion, then usually there will not be an objection to the application of a private law doctrine of promissory estoppel. It must, however, be recognised that it may be difficult, in a given case, to draw a line between that which involves discretion and that which is merely 'operational'". In this case s 343 encompasses a wide discretion and there is the possibility that the decision will encapsulate policy considerations, in particular where consideration is given to the public interest there specified as a factor for consideration. If the representation sought to be relied upon was one in advance of the approval there referred to, and one promising an exercise of a discretion before those considerations had been undertaken, it seems to me on any view of the cases that effect could not be given to any representation that approval would be given. It would, even on the less stringent test proposed, cut across the discretion and hinder the exercise of it in a substantial way. Once an approval has been properly considered and granted, the decision whether to endorse under s 345 is clearly only an operational one. The power to consider the approval again may involve policy issues concerning the public interest. That is, as I have said, its field of operation. But the difficulty with resolving the matter in this way is that, unlike other decisions, there is only a possibility that it will ever be exercised. The duty remaining is one to exercise the discretion properly and in the public interest, if and when circumstances require it. I am unable to see why the Court should then deny altogether a promise to proceed to endorse, at least where the underlying promise is limited to one not to revoke unless some substantial change affecting the public interest has occurred, on the basis that there exists some residual and facultative power. The claim in estoppel however is to be resolved by reference to the facts. Whilst I tend to the view that an estoppel could be held effective there would, one would think, hardly ever be a case where such a circumstance would arise in the context of s 343 and s 345 Land Act, for the reason that usually there will not be much delay between approval and endorsement. Here, however, the matter continued for a long time, and to the point where circumstances surrounding the use of land did change. From early 1990 through to July 1991 some Ministers had been concerned with issues relating to the public interest in the use of the reserve lands and the riverfront and Cabinet had considered them in the lead up to the October 1990 decision. In these circumstances it was open to the Minister to reconsider the matter, in the public interest, and in my view that was what occurred in October 1991, even if the Minister was merely implementing a Cabinet decision to the effect that the public interest was better served by the provision of a boardwalk, than by the commercial development proposed. The question is not, then, one as to whether an estoppel might operate in the face of a possible future discretion. Such a power was in fact exercised in October 1991, and it rendered nugatory any prior promise with respect to the pre-existing approval. JLH did not, in any event, establish either the making of a representation which might found an estoppel or the requisite reliance. JLH submitted that the respondent ought to be held to the representations made following the Cabinet meeting in January 1989, in releases published by the press thereafter and in correspondence to JLH, and that they amounted to representations that all necessary approvals would be granted. I shall confine this discussion to the approval required under s 343 Land Act and will deal with other approvals later in these reasons. It is sufficient here to observe that where they also involve the exercise of a discretion, the principles referred to above will also apply. With respect to the approval required by s 343, I cannot accept that the communications referred to conveyed that much, or that Mr Mantle understood them go that far and to foreclose any consideration required by the statute. Rather JLH, by Mr Mantle, likely understood them to amount to statements of strong support by Cabinet for JLH's proposal. As I have said, there was at this early stage nothing to suggest any difficulty was likely to be encountered in obtaining the approvals Mr Job had advised were necessary. If he had turned his mind to it, Mr Mantle would perhaps have appreciated that Ministers would be influenced by Cabinet's proclamation of support. That is however about as high as it could be put. Further, so far as the s 343 approval was concerned, the letter received by Mr Mantle following the Cabinet meeting merely advised him that a lease was to be lodged by the Council for consideration in accordance with the requirements of the Land Act. Mr Mantle's early confidence in achieving approval of the lease agreed between JLH and the Council was realised in October 1989 when Mr Harper signified the approval which was then notified to Mr Mantle. Later communications appear to have taken place between his personal assistant and Mr Harper's. Mr Mantle came to know of the approval when seeing a copy of the letter to the Council of 26 October 1989 which had been provided by it to his solicitor. The terms of the letter conveyed approval of the lease which had been submitted together with some additional requirements. It stood as a representation that if the lease of the reserve lands was submitted in that form for endorsement, that would be done and registration effected. The letter was not directed to JLH, but to the Council, although it must have been obvious to the Minister and the LAC that JLH would be advised of it. JLH had been making enquiries and seeking an outcome as a matter of urgency, and the Council would necessarily have drawn to its attention the alterations proposed by the Minister prior to the final lease being prepared for execution. In that process the fact of approval and the promise of endorsement could scarcely have gone without mention. In Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387, 404 Mason CJ and Wilson J referred with approval to a passage from Grundt v Great Boulder Gold Mines Ltd (1937) 59 CLR 641 (675), that equity will provide relief when a person acted on "the basis of a basic assumption in relation to which the other party to the transaction has 'played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it'." The respondent must have induced the expectation or assumption created to be held liable: Waltons Stores v Maher, Brennan J, (429); The Commonwealth v Verwayen (1990) 170 CLR 394, Mason CJ (413). Given that the Minister and the LAC would have expected the Council to advise JLH of the approval and its terms, there seems to me to be no reason in principle why the Minister could not be held to such a representation. There is, however, an important qualification to what JLH understood to have been communicated. In October 1989 Mr Mantle was concerned to press for approval of the lease. He also attempted, as a matter of urgency, to obtain the necessary endorsement. He appreciated there was a likelihood of a change in government, and he was concerned that it might take a different view of JLH's proposal. This is, I consider, the only explanation of his conduct at this time. It follows in my view that he, and JLH, did not understand the representation to amount to one that any later Minister for Land Management would endorse or otherwise carry the matter to completion. To the contrary, he was concerned that that Minister might not. One view which might be taken of his acceptance of the lengthy negotiations which followed is that he believed that the Minister had greater powers or discretion with respect to the endorsement. It is not possible to say what opinion he in fact held as to the legal position. It was not clear whether he had considered it or had received advices on it. It follows however that reliance could only have been placed, by Mr Mantle and JLH, on the letter of 26 October 1989 for a very short period, so long as Mr Harper or the government of which he was a member remained. After that time it ceased to have operation. After the election of the new government in December 1989, Mr Mantle must have viewed the prospect of obtaining finality, or "approval" as it came to be called, as something which fluctuated. By late February 1990, whilst he had taken some steps towards obtaining finance, his concerns about a possible difference of approach by a new government must have been realised when the newspaper article reported that Mr Eaton might change his mind. A strong indicator of the effect upon his confidence was his decision, communicated to Mr Job, not to proceed further with the engagement of many of the project consultants, save for those necessary to the negotiating process. He must also have known, in the months following, that the agreement for lease containing the lease of the reserve lands had been deposited with the LAC for ministerial endorsement, but that that had not eventuated. In that period, those who had earlier voiced opposition to the proposal, but to little effect, were being listened to. JLH, in my view, was receiving no positive encouragement in this period. The delay itself must have been of concern to Mr Mantle. Mr Mantle was well informed of Cabinet meetings and decisions. The meeting which took place in July 1990 could scarcely have encouraged him and further delays resulted whilst the information required was being gathered. Some comfort may have been felt by him after the Cabinet meeting of 27 August 1990 which favoured "in principle" the grant of a special lease. This might have permitted the development to proceed if the other matters, to be negotiated, were resolved. Any optimism to which it gave rise was short lived. The advice Mr Mantle received of the meeting of 22 October 1990 was that Cabinet intended the development to be so limited that it could not be viable and there was no other support upon which he could count. When advised of the limitations sought to be imposed by Cabinet, Mr Mantle responded in terms which might imply the possibility of litigation. Considerable effort was then expended by him and Mr Job in an attempt to retrieve the situation, in the negotiations which followed with Mr Burns. By mid-April 1991 their hopes had been raised once again, only to be dashed by the intervention of Mr Rudd. Mr Mantle was sufficiently well informed to appreciate the position of influence Mr Rudd then held. The Cabinet decision of July 1991, which was the final determinant, could hardly have surprised him. Similarly, he could not have been taken aback to receive the Minister's refusal in October 1991, particularly if, as he suggests, he had heard nothing for some months. The case for JLH relies, as it must, upon the Minister's refusal to endorse as a retreat from an earlier representation upon which it had acted to its detriment. As the reference to Grundt v Great Boulder Gold Mines above confirms, the Courts' concern is to protect a party from a change in position undertaken on the basis of an assumed state of affairs. It is necessary for the party asserting the estoppel to have so acted upon the faith of the representation that detriment will result if the estoppel is not enforced: Waltons v Maher, (404, 429, 443, 458); Kurtovic, (216). In October 1991 the Minister made clear that an endorsement would not issue. But that advice did not effect a change from any position JLH had adopted on the faith of what had been said by the Minister, through the LAC, in October 1989. What it did was to confirm JLH's worst fears, which had arisen upon the change of government in 1989 and which had vacillated between optimism and despair over the period which followed. There had been no time between Mr Harper's actions in October 1989 and the change of government for JLH to change its position, and Mr Mantle's action in attempting to complete the matter implies knowledge on his part that the matter was not completed without endorsement for registration. As I have said, when the government changed he did not assume that whatever further approvals he thought were necessary would be granted to JLH. What JLH did in the period from late 1989 to late 1991 was to act in the faith and confidence of the ability of Mr Mantle to persuade, whether this arose in part from a belief that the Minister had the power to consider the matter afresh or that he could not be held obliged to endorse is not apparent. It could not however be said that JLH and Mr Mantle acted in the belief that the Minister was obliged to endorse, or that he would endorse. JLH at one point referred to the prospect that the refusal, and thus the withdrawal from the representation, might be taken to have occurred at a point shortly after the lease was received by the LAC with the Council's request for endorsement, in late February 1990. By this means I assume that JLH seeks to overcome the need for there to be a continuum of an assumed state of affairs through to October 1991, when the Minister announced refusal. If the relevant attempt to resile was at that point it might perhaps be said that JLH was, thereafter, merely attempting to mitigate damage, by having the Minister reconsider the matter, although it seems to me to be somewhat difficult to accept all that occurred as acts in mitigation. I do not in any event consider that that is a proper gloss to put upon the facts, and I do not think that is how Mr Mantle approached it. In my view, he did not consider that the endorsement had been refused. He remained hopeful that Mr Eaton would follow through and complete the matter. He would have been told by the Council, if it had not been made apparent to him by government officers and the press in early 1990, that the matter was being looked at afresh. He did not spend 1990 and 1991 trying to persuade the Minister to change his mind, but attempting to persuade the Minister to complete the transaction and to grant the outstanding approval. In summary, JLH failed to establish nearly every element for an estoppel. Essentially its difficulty was that it could not be seen to have relied upon what Mr Harper had done and promised as binding the succeeding government. The claim in negligence The first claim by JLH, founded upon the respondent's alleged breach of duty to it, arises out of the representations referred to in paragraph 16 of the statement of claim and which are alleged to have been made by the Minister, the LAC or other officers, to the effect that they (and therefore the respondent) would support and continue to support the development; they would take all steps and do what was reasonably necessary to ensure the development proceeded so that it was ready to open in April 1991; they would co-operate with the Council and the applicant to ensure the development proceeded; and, at a later point, that the Minister for Land Management, Mr Harper, had granted the approval mentioned in s 343 Land Act and that he and following Ministers would endorse their approval on the lease as required by s 345. JLH itself referred, in submissions, to the similarity between this claim and to that founded on estoppel. This claim requires representations to have been made negligently and with the intention of inducing, and having the effect of inducing, JLH to act in reliance on them: see San Sebastian Pty Ltd v Minister for the Environment (1986) 162 CLR 340, 358. The elements of reliance and inducement are absent with respect to the representation that endorsement would follow. The other representations particularised in my view take the matter no further. I have referred above to the extent to which JLH could have placed reliance on the statement of Cabinet approval in January 1989 in connexion with the approvals it needed to obtain. Mr Mantle did not consider that there was any present difficulty and he may not have even turned his mind to whether the Cabinet statement meant that all of the approvals to be obtained would be granted as of course and that he would not have to satisfy the decision-makers' requirements or enquiries. If a difficulty had been encountered he would not have been able to point to a promise or assurance that it would have been given, before the decision-maker in question had considered the matters required to be considered, in the case of the Minister for Land Management, those matters under s 343. JLH's pleading does not rely upon misstatement at the time the representations were made, although it later gives, as particulars of acts of negligence, further statements arising from the letter of 26 October 1989. I have dealt with JLH's actions in consequence of it. In its case for negligent misstatement, it alleges some continuing duty to warn that approvals might not be granted, or might be rescinded, because something had changed. As I have already observed, there was no need to advise Mr Mantle of this so far as concerned the endorsement under s 345. Further evaluation of this plea is unnecessary. It is however of relevance to observe that JLH's claim here referred to the approvals necessary from the port authority, the Department of Environment and Conservation and the Picture Theatre and Film Commission, as those which the respondent or its agents ought to have warned might not be forthcoming. Elsewhere, in connexion with proof of damage, JLH contends that these approvals were given or are to be taken as given. In any event, no representation that they would be forthcoming could be inferred. I should also add that the respondent submitted that no duty of care could be seen to arise in connexion with any of the approvals, and referred to Rowling v Takaro Properties Ltd [1988] AC 473, 501. In Australia the courts would seem to approach the question, as to whether there was a duty, by having regard to the policy/operational distinction referred to above in the context of estoppel (Anns v Merton London Borough Council [1978] AC 728; Council of the Shire of Sutherland v Heyman (1984) 157 CLR 424, 438-9, 442, 468, 471, 500), an approach which has not been disapproved by Jaensch v Coffey (1985) 155 CLR 549, 553 and San Sebastian, although there have been suggestions that another approach ought to be considered: see Professor Allars "Tort and Equity Claims Against the State" in Finn, "Essays on Law and Government", Vol 2, p 49. However, the duty with which those cases were concerned related to the making of decisions. A duty of care might arise where information is given on a serious matter where it is apparent that it is intended to be acted upon: L Shaddock & Associates Pty Ltd v The Council of the City of Parramatta (1981) 150 CLR 225. The second claim for negligent misstatement is with respect to a representation or representations arising from public statements made following the Minister's refusal, in October 1991, and to the effect that the development would not proceed and that it had been "lawfully blocked". The emphasis is on the latter part of the statement, which is to say JLH relies on a representation that the Minister's refusal of endorsement as being within power, was negligently misstated. The case, as pleaded to this point, does not have regard to negligence in the exercise of the duty itself. That arises in the third claim to which I shall shortly refer. There are a number of reasons why the claim presently under consideration is untenable. I have already held that the refusal to endorse can be seen as an exercise of the power to reconsider and disapprove a lease. Even if that were not the case, JLH has the difficulty that the Minister and his officers acted on the basis of senior advice which they had no reason to doubt. Another difficulty is with respect to causation. Putting to one side what damage might be said to have been suffered, it is not said that JLH acted in reliance on statements to that effect and in the belief that the Minister's actions were authorised or lawful. It is not even clear that Mr Mantle considered that matter, although elsewhere it is said that it might have successfully taken proceedings for declaratory relief on the basis of the Minister's obligation to endorse, had the construction of the boardwalk not been about to commence. At this point JLH's pleading takes another turn, for it was not said that JLH relied upon the representation that the decision was authorised by law, but that the Council did, in connexion with its later determination of the agreement for lease. At a factual level this aspect of the claim fails, but it is not necessary to deal in detail with the Council's reasons or beliefs. To sustain a plea of negligent misstatement JLH must show that it suffered the loss claimed by reason of its reliance on the representation. The third claim in negligence has regard to the Minister's decision not to endorse approval and alleges that the Minister ought to have known that the refusal was beyond power and that he was obliged to endorse approval. So stated, the claim is one of breach of statutory duty. If it assumes a duty to advise, it would be a duty to advise as to the legal status of a decision and statutory obligation, and that advice would be contrary to that which the Minister and his officers had received and acted upon. No authority was pointed to support such contentions. Further, a claim in those terms assumes a statutory obligation which I do not consider arises. JLH's case in negligence fails. The claim of breach of statutory duty JLH's claim as pleaded assumes both a discretion and a duty to endorse, which are said to have been abrogated. Section 345 does not itself oblige endorsement and, as I have earlier reasoned, the Minister retained a power to reconsider approval itself. At most the Minister may have been held obliged to decide. Further, a breach of statutory duty can only arise where the statute itself confers a right to have the duty performed and where the statute, upon its proper construction, can be seen to intend the provision of a ground of civil liability when the breach of obligation causes injury or damage to a person of a class which the statute was intended to protect: Northern Territory v Mengel (1995) 185 CLR 307; Byrne v Australian Airlines (1996) 185 CLR 410. An example is provided by legislation designed to protect the health and safety of employees. There cannot be discerned from the operation, scope and purpose of the Land Act any intention to benefit or protect persons applying for leases of land. JLH's reliance upon X & Ors (Miners) v Bedfordshire County Council [1995] 2 AC 633 does not take the matter any further. It was there pointed out that if a statute provides no other remedy for a breach, that may be an indication that there was intended to be a private right of action since there was no method of securing the protection the statute was intending to offer. It was, however, also said that had to be coupled with a parliamentary intention, which might be discerned, to protect a limited class. JLH submitted that the class might be lessees who have had a s 343 approval granted to them. That does not explain how an intention to protect them is to be discerned. To these observations may be added provisions such as s 355, dealt with later in these reasons, which deny a right or remedy to any person in connexion with any action taken pursuant to the Act. The claim of misfeasance in public office An action for misfeasance in public office requires that the officer has knowledge that the action undertaken is beyond power and that there is a foreseeable risk of harm if that action is taken: Northern Territory v Mengel (347-8). The majority (347) inclined to the view that the tort should be confined to intentional infliction of harm where the officer knows that what is undertaken is beyond power and it is calculated to cause harm, but to extend to situations beyond actual knowledge, as where an officer recklessly disregards the means of ascertaining the extent of the power in question. Brennan J (357) considered that the tort required to be shown either malice or knowledge of the invalidity of the action and the purported exercise of some power or authority otherwise than in an honest attempt to perform the functions of office, whereby loss is caused. Malice, knowledge and reckless indifference were, then, all states of minds "that stamp on a purported but invalid exercise of power the character of abuse or of misfeasance in public office" (357). (See also Sanders v Snell (1997)143 ALR 426, 447). JLH alleged that the Minister was aware that he was in breach of a duty to endorse. I have already held that no such duty arose. Alternatively, it was alleged that any discretion to endorse (which I extend to include reconsideration of matters going to an approval) was not properly but recklessly exercised and that failure was an abuse of his office. Misfeasance in public office requires more than that a Minister being seen to have acted under the influence of a Cabinet decision, a decision which, in any event, dealt with relevant public interest issues. The elements not proven are the invalidity of the Act and a dishonest exercise of the function in question The Statutory Defences Section 24(10) of the Land Act provides that no matter or thing done in good faith and without negligence, for the purpose of executing the Land Act, shall subject the Crown, the Minister or any officer to any liability. Although pleaded in defence to the claim for breach of statutory duty, it was not taken up in submissions by the respondent. It requires the Minister to establish that he was undertaking functions and duties required by the Act. This is also a requirement of the section upon which reliance was placed in submissions, s 355, which provides:- "No person shall have any right or remedy in law against the Crown, the Minister, the Commission, any member thereof, or any officer of the Department arising from any action taken pursuant to any of the provisions contained in divisions I to IV, both inclusive, of this Part." Sections 343 and 345 are contained in Division II of that Part, Part XI. Provisions such as s 355 require what was undertaken to have been done in a bona fide attempt to give effect to the legislation: Trobridge v Hardy (1955) 94 CLR 147; Webster v Lampard (1993) 177 CLR 598. In the latter case it was explained that this requires a person to have genuinely, but mistakenly, believed that they were acting within the limits conferred by the statutory provision. It does not extend to a person actuated by wrong motives. The general onus to establish the connexion with the official duty lies upon the official, but any wrong motive must be established by the claimant. Such a motive does not arise on the evidence. Here the requisite connexion with the exercise of a continuing power under the Act is shown. Had JLH made out a case of negligence or other breach of duty, the respondent could have availed itself of this defence. The most that could be said is that the Minister may have been mistaken as to the exact nature and source of the power, but that will not alter this outcome. JLH also raised the question of inconsistency between s 355 and the Crown Proceedings Act 1980, (Qld) s 9 and submitted, latterly, that the Crown Proceedings Act can be seen to have repealed the Land Act. There appears to me to be no warrant for that conclusion, but it is not necessary to deal further with the matter. The Deed of Variation It will be recalled that the memorandum of lease which was approved by Mr Harper omitted reference to any commencement date but that the agreement for lease which had also been forwarded to the LAC provided for the purpose of the leases of each of the freehold and reserve lands, that the commencement date was to be the first working day immediately following the last of a nominated series of events. The Deed of Variation between the Council and JLH, the terms of which came to be incorporated in the memorandum of agreement sent to the Minister for endorsement on 26 February 1990, provided that the date of commencement of each of the leases be 1 April 1990 and for the payment of rental on the next working day following the endorsement of consent. The effect was to bring forward the commencement date together with the obligation to pay rent. The respondent submits that s 345 requires conformity between what had earlier been approved and what was later sought to be endorsed. In the discussion above concerning the construction of the sections I have held that to be the case. The respondent submitted that the document tendered for endorsement also omitted an indemnity which was required, by the amendments notified in October 1989, to be afforded to each of the Minister and the Crown. I do not however consider that such an allegation has been raised by the defence. The letter from the Council to the LAC of 27 February 1990 enclosed the executed lease of the reserve lands and advised :- "As those matters referred to in your correspondence dated 26 October, 1989, have now been attended to, the Lease documentation is forwarded to you so that the endorsed consent of the Honourable Minister for Land Management may be obtained." It went on to draw to the LAC's attention the timing of the first rental payment, although it did not explain that a Deed of Variation had been entered into, or that its terms had been incorporated in the document forwarded. An examination of the documentation would have revealed the change, but this was not attended to by the officer at the LAC, who simply filed it away as he had been advised that it was being reconsidered. JLH's preliminary submission was that the respondent ought not to be permitted to assert that it was not obliged to endorse the lease, because of the changes it and the Council had made to what had been approved. JLH submitted that the respondent could be taken to have known of the existence of the Deed of Variation at a point much earlier than May 1996, when it first sought leave to amend. It is correct to observe that some of the persons dealing with the question in 1991 came to know of the existence of a Deed of Variation - Mr Scrivens by about June 1991, the Crown Law Office by July 1991 - and it is possible that the documents from the Council were sent to the LAC or the Department of Lands at an earlier point. At the time that the matter of Mr Eaton's discretion in approving the lease or otherwise was considered after July 1991, it was either overlooked or not considered to be of relevance. These matters were not gone into in the material before the Court on the application for leave to amend. It had been explained by the respondent that the question arose only when junior counsel became alert to the existence of the document shortly prior to that application. The fact that the document had been in its possession for so long was not mentioned. The difficulty however with JLH's approach is two fold: in the first place leave to amend has already been granted (see (1996) 141 ALR 353) and this would seem to me to overcome any objection to the point now being raised at all. That leaves the question of express waiver or estoppel, and the difficulty there for JLH is that it cannot show that any representation, to the effect that the defence would not be pleaded was made and acted upon by it, for the reason that the Deed of Variation was not in the minds of either JLH and its advisers, or the respondent and its advisers (compare The Commonwealth v Verwayen). JLH also submitted that the respondent could be taken to be a party to the Deed of Variation, given that the Council was, it alleges, its agent. This topic is dealt with generally in my reasons which follow concerning the claim for breach of agreement for lease. It is only necessary to add here that it has not been shown that the respondent even knew of the Council's entry into the Deed of Variation. It was further submitted that the respondent can be seen to have authorised entry into the Deed by reference to the approval under s 19(4B) Local Government Act. The argument proceeds in this way. The s 343 approval was granted on 23 October 1989 and it stated that it was subject to approval under s 19(4B) and that it "thereby incorporates the terms of that later approval". The approval under s 343 would then include a term permitting the Council and the applicant to enter into a contract which was necessary or convenient for the carrying out of the works. No such authorisation in my view can be inferred. The reference in the s 343 approval simply drew attention to another requirement under another Act, one which the Council had already advised, in its letter of 3 October 1989, would be forthcoming shortly. JLH submits, on the basis of Mr Harper's evidence, that the commencement date was not of importance to him, and that no officer of the LAC had suggested that it was to them. That appears to be so. It seems to me that if the lease with that alteration had been put before Mr Harper within time, it would likely have obtained assent. JLH also submitted that it might be concluded that the Minister had left to the Council as trustee, and to JLH, to determine what the commencement date would be since the memorandum of agreement forwarded earlier for approval had left that blank. That submission, however, overlooks the provision in the agreement for lease for a commencement date and that it was that term which was approved. The requirement of correspondence between what was approved and what was to be endorsed was only ever of relevance if the respondent was unsuccessful in its submission that there was no obligation to endorse. I have held that the Land Act does not create such an obligation. If that were not the case, in a commercial matter involving private rights, one would not expect a point such as this to meet with favour. Had an operative estoppel been made out it seems to me that the likelihood would be that the Court would mould a remedy, requiring the Minister to keep to the promise given to endorse the lease earlier approved, and ignore the later unapproved alterations unless it discerned from them an abandonment of the former approval. That would not be so here. However, for the reasons earlier given, there is no case for an estoppel made out. Whether lease effective without endorsement under s 345 JLH also submitted that the lease could operate as effective in law or equity, despite the provision in s 345 that a lease which is not endorsed with approval shall have "no validity or effect in law". This submission, as I understood it, goes beyond that concerning the operation of an estoppel to overcome the lack of endorsement. Rather, at this point, JLH contends that the lease was valid until the Minister said he would not endorse. It was not made plain, in submissions, at what point it considered the lease to acquire its validity, but having regard to the case upon which it relied, Palmdale Insurance Limited v Sprenger [1988] 1 Qd R 414, I take it that it contends for validity at the time of execution between JLH and the Council. The Court in Palmdale Insurance was not, however, concerned with a provision such as s 345. Section 274 of the Land Act, there under consideration, provided that a sub-letting without ministerial approval amounted to a breach of condition of the head lease, which breach exposed it to forfeiture. It was held by the court (418) that there was a binding agreement for lease, pending approval. The point here however is not whether JLH and the Council were bound according to the agreement for lease, which was itself subject to approval and endorsement, but whether s 345 applies. JLH also submitted that the principle established in Walsh v Lonsdale (1882) 21 Ch D 9 has application. It was there held that a tenant holding under an agreement for lease of which specific performance would be decreed, ought to be treated as in the same position as if the lease had been executed. The principle has regard to the maxim that equity would regard as done that which ought to be done, but depends upon a right to specific performance being established. This would require JLH to make out its case for the existence of a binding lease, to which the respondent was a party. The claim on the agreement for lease An agreement for lease was executed as between JLH and the Council by 8 November 1989. JLH alleges that it was an agreement which was binding, not only as between JLH and the Council, but also the respondent. This approach requires the Council to be found to be the agent of the respondent in connexion with the entry into the agreement. From that point JLH seeks to have taken, as terms of the agreement, promises on the part of the respondent that it would do all that was necessary to ensure finalisation of the lease of the reserve lands referred to in the agreement for lease. It is convenient to deal first with the issue relating to agency. JLH relies on three indicia which, it submits, are usually found in the relationship of principal and agent and which are present here as between the Council as agent and the respondent as principal: (i) that an agent has no legal or equitable interest in the subject matter, which remains in the principal; (ii) the agent is authorised to enter into the contract by the principal; (iii) the principal retains control over decision-making in relation to the subject matter of the contract. As to the first of these features, JLH argues that it makes no sense that there can be a lease between the Council and JLH if the Council has no estate or interest in the land to dispose of or to transfer, unless it be the case that, in entering into the agreement for lease, it did so as agent for the party having those interests. It is correct to observe that under the Land Act there is no grant of title made by the Crown to a trustee such as the Council and no interest in reserve lands is conferred upon them: Gladstone Town Council v Gladstone Harbour Board [1964] Qd R 505, 517; BMG Resources Limited v Pine Rivers Shire Council [1989] 2 Qd R 1, 3. However, the effective control over the land is given to the trustee, and the lands cease to be Crown land available to be dealt with by grant, lease or otherwise. In BMG Resources (3-5) the Full Court discussed the level of control which might be exercised by a trustee and the corresponding loss of control by the Crown. The trustee's control was regarded as not merely notional, but real and such as to place it in the position of owner for the purpose of the Local Government Act. The fact that it was entitled to receive rents if the land were leased was an important consideration. Amongst the other factors to which the Court referred were those by which the trustee could regulate the use of the land by by-laws (s 339 Land Act), mortgage the land with the approval of the Governor-in-Council (s 351), bring proceedings with respect to the land (s 338(1)) and bear legal responsibility to those coming onto the land: Schiller v Mulgrave Shire Council (1972) 129 CLR 116. The Court then went on (at 5): "By reserving and setting apart the land for public purposes the Crown has taken it out of the category of unalienated Crown land capable of being disposed of by grant, lease, or otherwise; it has placed the care and management of the land under trustees over whom the Crown has no direct control; it has enabled those trustees, subject to Ministerial approval, to lease the land for terms as long as seventy five years; and to receive and apply the rents for the public purposes prescribed, doing so like any other trustee free from interference or direction from the Crown. The Crown does, it is true, retain ownership and has the power to revoke the reservation; but, unless and until it does so, it has no more than a bare title to the land unaccompanied by any of the rights of user and enjoyment ordinarily associated with ownership of land". It remains the case that the Crown is able to exert a level of control by reason of the permissions necessary with respect to a dealing with reserve lands. That does not however convert the local authority, the trustee, to an agent. The point arose in Gladstone Town Council v Gladstone Harbour Board where, in response to a claim for payment of rates in respect of reserve lands, the Board argued that it occupied the reserve lands only as a representative of the Crown. The Full Court held that the fact of some control by the Executive would not be sufficient to identify such a body as its agent (510). In concluding that it stood distinct from the Crown, the Court laid some emphasis upon the independent powers and functions of the Board and the distinction to be drawn that, whilst a Minister may prevent a Board as trustee acting in certain cases, the Minister does not direct its action. The acts of the Board were therefore not those of the Crown. Moreover, in Townsville Hospitals Board v Townsville City Council (1982) 149 CLR 282, the High Court held that the fact of approval, through a decision of Cabinet, with respect to the exercise of powers of a trustee in relation to reserve lands, did not create the relationship of agency (288). The Court made a similar point to that made in Gladstone Harbour Board above with respect to the distinction to be drawn between the need to seek approval and the ability to direct the body alleged to be an agent: "The fact that a number of Ministerial approvals must be obtained if the Board needs to borrow or raise money or make financial arrangements for the purposes of a proposed work does not indicate that the Board in carrying out the work is acting for the Crown. The Board cannot be directed to do the work, and if it does borrow or raise money for the purpose, the Board and not the Crown is liable in case of default." (291-2) (See also BMG Resources Limited v Pine Rivers Shire Council, 5). In my view the Council's position as trustee of the reserve lands and its dealings with them was not as agent of the Crown. Further, no express authorisation could be shown as between the respondent, as undisclosed principal, and the Council (see Siu Yin Kwan v Eastern Insurance Co Ltd (1994) 2 AC 199 (PC) and the other cases referred to in CCC (New South Wales) Pty Limited (In Liquidation) v Commissioner of Taxation (unreported decision of Sackville J, 3 February 1997). JLH also submitted that the Council could be taken to have been authorised by the respondent to bind it to the agreement for lease by reason of the approval given under s 19(4B) of the Local Government Act. That section provides that the Governor-in-Council may on the recommendation of the Minister, grant approval to a local authority to enter into a contract where he is satisfied that the contract is in respect of major development works that have been carried out, or proposed or contemplated, on land vested in or under the control of the local authority. Such an approval was granted on 26 October 1987 to the Council to enter into a contract with JLH "as was necessary or convenient" for the carrying out of the said major development works. The lands identified as the subject of the approval, in the schedule to the executive minute, were the Council freehold land and the reserve lands. Section 19(4B) was inserted by amendment in 1985 (see the Local Government and City of Brisbane Town Planning Act Amendment Act 1985 (Qld), s 12). It appears in Part VIII of the Local Government Act entitled "Contracts" which is concerned with the regulation of the powers of local authorities to contract generally. A general power to contract is conferred by s 19(1) and is expressed to be with respect to the discharge of any functions of local government, but the following subsections, and in particular subsection (4), limit the circumstances in which a local authority can enter into contracts above a certain sum, by creating a detailed tendering process with which it must comply (see Maxwell Contracting Pty Ltd v Gold Coast City Council [1983] 2 Qd R 533). Such a process does not allow complex negotiations with a single developer, where amendments and alterations are required to be made from time to time. The need to permit such a procedure was referred to in the second reading speech to the amending bill (Hansard 21 November 1985 pp 2672-3). That purpose is in any event evident from the subsection itself and its relationship with the other provisions of s 19. JLH relies on the approval given under s 19(4B) as authorising the Council to contract "in its own right and as agent for the Crown" and to enter into the agreement for lease of both the freehold and reserve lands. Neither the terms of the approval nor the statutory provision and its purpose, in my view, suggest that the Council is qualified as agent, but rather that, as with other contracts with which the Part is concerned, the Council is authorised to contract in its own right. The last indicia of the relationship of principal and agent upon which JLH relied, namely retention of control over decision-making, has largely been dealt with in the discussion above concerning the position of the Council as trustee under the Land Act. JLH also relies upon particular facts from which, it submits, agency might be inferred because of the control or direction exercised by the respondent in connexion with the tendering process. It points to the Council's actions in seeking the advice, or nomination, of the LAC about preferred tenders, the approval given by Cabinet and the forwarding of the draft agreements to the LAC for approval. It seems to me however, that the actions nominated and their grouping together ignore the background in which they occurred and the reason for the particular action, and this plea goes no way towards establishing the necessary actual authority. From an early point in the discussions with the LAC it was clear that what was sought, as necessary to any commercial development of the reserve lands, was the approval under the Land Act to permit the Council to lease. The submission of the four tenders to the LAC for "consideration" in these circumstances simply offered the LAC an opportunity to comment on the proposed uses and to recommend those that the Minister might view favourably in connexion with the grant of a lease under s 343, given in particular that the LAC had advised that no similar approval had previously been granted over the reserve lands. A decision was obviously made that took the matter beyond the LAC and the Minister for Land Management, and to Cabinet. This may have been because Cabinet had itself earlier ordered investigation by a committee into the use of the river and riverfront land and that committee had taken into account the Council's desire for development of the ONS site. These factors may have taken the matter into the area of policies which had not, however, been determined. The LAC was then instructed by Cabinet to liaise with the Council concerning any proposals by the tenderer but, importantly, the tenderer chosen by the Council and the LAC informed the Council that it did not wish to take part in that selection. The Council made that selection, nominating JLH as the preferred developer. When JLH was advised that the Council had preferred it for the purposes of negotiation, it was also informed that the Council would co-operate with respect to the use of the reserve lands and would lease them to it, subject to Crown approval. In my view, the communications between the Council and the respondent to this point do not disclose any shift in position from that which would be undertaken by the Council as trustee of the reserve seeking indications as to whether a s 343 approval might be forthcoming. At no point did the Council purport to be the respondent's agent, nor was it, charged by the respondent with some other authority. Indeed, to do so would have involved cutting across the provisions of the Land Act and it has not been suggested how that could be accommodated. Cabinet involved itself in the question of what was suitable for the reserve lands, particularly with respect to the intensity of any development upon them and the visual obtrusiveness of any proposed development. These were matters which the Minister could, and ought, properly to have taken into account with respect to the question of any later approval under s 343. Cabinet was, as I have said, likely concerned with policy questions extending beyond those which might ordinarily be addressed where a grant of lease of reserve lands was proposed. But the Cabinet support, for which the "approval" stood, and the process undertaken to that point seems to me to have no relevance to a suggestion that what the Council was undertaking in connexion with the agreements was in some different capacity other than as trustee of the reserves. The submission of the draft agreements to the LAC for ministerial approval adds nothing to the matter and is indicative only of the s 343 procedure being followed. Finally, with respect to the issue of agency, there is nothing in the terms of the agreement for lease itself which would support the notion that the Council was acting in that capacity. Its capacity as trustee, in connexion with the reserve lands, was spelled out in the recital to the agreement for lease and none other was referred to. It is referred to throughout the document as "lessor" of both its freehold land and of the reserve lands. No attempt is made to differentiate its dealing with them and it was the Council which undertook to carry into effect the lease and to obtain necessary approvals and, by clause 11, to use its best endeavours to ensure that the lease of the freehold land and the memorandum of agreement for lease of the reserve lands were registered in the Department of Freehold Land Titles and Department of Lands respectively, within six months from the date of commencement. Clause 20 of the agreement for lease was in these terms :- "The parties agree that this Agreement for Lease is dependent upon the approval of the Minister for Land Management to the Memorandum of Agreement for lease constituting Appendix B hereof." It would seem to me that the effect of that clause is that, were the Council otherwise authorised to bind the respondent to the agreement for lease, nevertheless approval under s 343 was excepted from that authority. That is to say, the possibility of invalidity by reason that neither the respondent nor the Minister could promise in advance to grant that approval, does not arise. Further, assuming the respondent was made a party to the agreement by the agency of the Council, JLH's case could not be made out. As I have just mentioned, the situation does not really arise with respect to the express terms, given the provisions of clause 20. Of the two express terms referred to, clause 8, which promises the grant of the lease is rendered "subject to the provisions hereof" and clause 11, by which the lessor is to use its best endeavours to ensure registration, would also be read subject to clause 20. Insofar as JLH's case relies upon the implication of terms, clause 16 provides :- "16. It is agreed and declared that this document embodies the whole transaction of the leasing hereby made and that all warranties conditions and representations collateral or otherwise pertaining to the said leasing whether written oral express or implied and whether consistent with this document or not are hereby cancelled except so far as they are herein or in the lease expressed and contained and that this agreement may be amended only by an instrument or instruments in writing executed by the lessor and the lessee." In any event the provisions of clause 20 would prevent such a term being implied. A promise to endorse would contradict the provision that the Minister had to consider approval in the first place: see BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266. The claim of inducement to breach agreement for lease JLH alleged that the Council was persuaded or procured by the respondent to terminate the agreement for lease. The act constituting the breach was alleged to be the advice in the letter of 3 June 1992 from the Council confirming that the agreement was cancelled by reason that the Minister had decided not to endorse the lease. It is not alleged that the Council's actions in agreeing to fund, and take part in, the construction of the esplanade project constituted a breach of its agreement for lease although, as I later refer, there may be reason for this. The elements of the tort of inducement to breach agreement were referred to by Lindgren J in Allstate Life Insurance Co v Australian & New Zealand Banking Group (1995) 30 ALR 469, 485. It requires there to be an intention to harm and a procurement of breach of agreement resulting in loss and damage. I am, in the first place, unable to hold that harm was intended. The decision which was made was that the development by JLH would not proceed. The process by which that was brought about was the Cabinet decision to which the Minister for Land Management was a party and to which he gave effect. Whilst, as I have elsewhere observed in these reasons, it was clearly foreseeable that JLH would lose any chance to make profits, the reasons for the decision were concerns about the intensity of its development and a preference for a boardwalk along the river, and the two proposals could not co-exist. In turn, the preference appears to have been driven by a combination of a desire for greater public access to and use of the lands and the perception that such works would win favour in the community at the next election. There are additional difficulties for JLH in the remaining elements of the claim. Any loss and damage suffered must have followed the refusal of endorsement, as is elsewhere pleaded by JLH. The Council's later letter stands as a mere acknowledgment that that is what prevented it from completing. It may be readily inferred that had endorsement been given the Council would have proceeded. There was however no act, specified in JLH's claim, on the part of the Council which could be said to constitute a repudiation of its obligations under the agreement for lease. In submissions JLH sought to rely upon the Council's "reckless indifference" to whether there was a breach of contract. Emerald Construction Co v Lowthin [1966] 1 WLR 691, 700, to which it referred, contains a passage by Lord Denning to the effect that it is unlawful to procure a breach of contract knowingly or "recklessly indifferent to whether it is a breach or not", but the reference there was to a third party procuring the breach. A breach could hardly be taken as established by mere indifference by one of the contracting parties. It had occurred to me that the Council may have been guilty of breach of contract by putting it out of its power to continue with the lease by agreeing to join in the construction of the esplanade project. That might, conceivably, have amounted to a repudiation of its agreement for lease with JLH. The evidence however is not complete and does not permit findings as to the basis for, and terms of, the agreement between the Council and the government and at what point it had been advised that endorsement would not be provided. The matter was not squarely raised by pleading which would also have had to contend with the issue of causation of damage. The claim of breach of lease JLH also contended that there was a valid and binding lease of the reserve lands by reference to a series of representations, set out in paragraph 16 of the statement of claim, by which the respondent is sought to be held estopped from denying that the lease was completed or from retreating from its promise that succeeding Ministers for Land Management would endorse the lease under s 345. JLH then seeks, by reliance upon the arguments relating to agency dealt with above, to render the respondent a party to the lease so that it might be seen to have repudiated it. To enable repudiation to be made out, it seeks to imply further terms, and faced with the requirement that there must be seen to be an acceptance of the repudiation by it refers to "the passage of time" and the fact that it has not proceeded with the development. Submissions on this cause of action deal extensively with the question of an estoppel operating in this sphere. There was little analysis of the nature of the action itself and the difficulties associated with it. It exposes some of the inconsistencies in the approach taken to JLH's case. It asks the court to assume that there was a binding lease where, elsewhere, JLH argues it was prevented from concluding and obtaining legal effect under s 345 on the basis of an estoppel, but in a circumstance where it is clear that neither party acted on the basis of such an agreement being in existence or having legal effect. The most that could be said is that at one point the then Minister promised that endorsement would follow and JLH could not be said to have relied upon that after the government changed. Indeed, it is alleged that, contrary to the representation or representations that there would be an endorsement of the approval, there was a refusal to do so. JLH's pleading then however seeks to establish an existing agreement by reference to the refusal to endorse on the basis that it would be unconscionable to regard the matter any other way. In any event the plea, founded as it is on an estoppel arising by reason of reliance or representations from January 1989, must fail. I have discussed, at a number of points, why JLH's case in estoppel fails because of the combination of a representation which had only limited effect, and the lack of reliance upon what was said in November 1989 after December and the change of government. A reference to the implied terms pleaded and the allegation of repudiation lead one inevitably back to the same point, that there was no endorsement for lease which operated to give it valid and binding effect. The terms which JLH seeks to imply were that the respondent would do all that was reasonably necessary to secure performance of the lease; that it would do co-operative acts to bring about the "desired contractual result" so that JLH could obtain the lease and the development could proceed; and that it would act in good faith and fair dealing in relation to the performance and enforcement of the lease. Unsurprisingly perhaps, the allegation of repudiation and breach is absent particularity, but the only factors which could be pointed to as preventing the development proceeding were of course the endorsement itself. That is to say, JLH's case relies upon the refusal to endorse as founding an estoppel but also necessarily providing the later breach. Logically, it cannot serve both purposes. The above analysis shows that a claim for breach of lease cannot be maintained by JLH. One aspect of the facts pleaded in support of the claim does however require consideration. The representations contained in paragraph 16 of the statement of claim allege that between 16 January 1989 and 22 October 1990 the respondent "by its officers, agents and other representatives" represented, in the first place, that it supported and would continue to support the development; that it would take all steps and do what was reasonably necessary to ensure the development would proceed for opening in April 1990; that it would co-operate with JLH and the Council to ensure the development would proceed; that the Minister for Land Management had granted approval; and that each of the Ministers for Land Management, Mr Harper and Mr Eaton, would endorse their approval on a lease of the Crown reserves. This, of course, is a summary of the representations and absent what are provided as particulars. The evidence does not go so far as to permit a finding that the respondent would do everything necessary to permit an opening in April 1990, if by that JLH is alleging that both approval and endorsement would be given. In addition, as referred to above, there is the legal impediment to such a representation having effect, save in connexion with the endorsement. There were, I consider, indications up until the change of government that the Cabinet and the responsible Minister were in favour of the development and intended to co-operate to ensure it would proceed and, as I have found, not only did the Minister for Land Management, Mr Harper, grant approval of the terms of the lease, the Council, and then JLH, came to be advised that endorsement would follow. But from that point there were not, I consider, representations that the matter would be concluded in JLH's favour and JLH did not understand that to be the case. The claim of defamation This aspect of JLH's case concerns the publication in an issue of the "City News" on 21 November 1991, following a media release by Mr Burns, the Deputy Premier. It was in these terms: "No approvals concerning the proposed old naval stores redevelopment have been granted by the present government. J&L Holdings was selected by the Brisbane City Council in 1988 as the preferred tenderer for the development site. City Council owns the land on which the old naval stores are located. The development proposal submitted by J & L Holdings included the intensive commercial development of an existing park and recreation reserve adjoining the naval stores. The previous government had been prepared to approve the project, though the necessary lease documents had not been finalised. It is false for him to say or imply the project had been approved, or he somehow was entitled to have it approved." The words relied upon as re-published are:- "It is false for him (thereby referring to Mr Mantle) to say or to imply the project had been approved or he somehow was entitled to have it approved." And "The previous government had been prepared to approve the project. … After lengthy consideration, Cabinet decided not to approve the project as finally submitted." There was no evidence as to the extent of publication and no evidence as to any damage suffered by JLH. JLH relied on the presumption of some damage. Accepting for present purposes that the first statement was defamatory, within the meaning of s 366 Criminal Code 1899 (Qld), it was personal to Mr Mantle and concerned statements earlier made by him. It is not Mr Mantle however who claims damages, it is JLH. In some circumstances an imputation concerning a director of a company may also reflect upon the company itself, depending upon the extent to which the person is identified with the company or is considered to be its alter ego: see Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9, 10-11. No such allegation was made in the statement of claim and that part of the article pleaded does not make that plain. In the present case it is difficult to see that the personal attack on Mr Mantle could be understood to reflect on the company itself. In any event, no proof of damage was attempted and I am not prepared to assume some such damage was suffered by a company whose only business was the development in question. For completeness I add that JLH did not, in its submissions, explain how the respondent was to be held liable for such statements. ASSESSMENT OF LOSS AND DAMAGE Approach to assessment of damages -loss of profits JLH's primary claim was for the profits it would have made from the successful operation of the facilities making up the development of the lands in question in the manner discussed and agreed upon. What is spoken of is damages for deprivation of a commercial opportunity which "…should be ascertained by reference to the court's assessment of the prospects of success of that opportunity had it been pursued", and regardless of whether it was brought about by reason of breach of contract or duty in tort: Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, 355. Such an approach requires an adjustment to an award for damages which takes account of contingencies, to reflect the degree of probability that an event would occur: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, 643; Sellars, 356. The usual standard of proof however continues to apply to the issue of causation. It must then be shown, on balance of probabilities, that some damage, which is not negligible, has been sustained. The opportunity lost, to take advantage of any benefit, is then valued by degree in a manner consistent with an approach to discounting awards for contingencies: see for example, Waddams, "The Principles of Compensation", in Finn, "Essays on Damages", 10. The question which needs be first addressed here is what, if any, profits could have been made from the proposal as developed and in operation. Then it is necessary to consider and take account of what stood in the way of JLH realising that benefit: see Price Higgins Fidge v Drysdale [1996] 1 VR 346, 355 and the approach adopted in The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, 75-79. The case presented by JLH did not acknowledge an approach which permitted any further discounting, on account of the contingencies. The respondent, however, submitted that not only were they substantial, one must conclude that any opportunity denied was purely speculative, which is to say of negligible value, and not one which would sound in damages. Principal amongst these contingencies are: that the government would have exercised powers enabling it to cancel the reservation of the lands, which would bring about an automatic termination of any lease; that JLH could not have fulfilled an essential obligation of the lease, to provide an alternative boat ramp; that all other approvals and permits necessary for the operation of the various facilities and finance to permit construction of the development could not have been obtained. Other factors pointed to, such as whether construction costs could have been contained to the level JLH contends for, and whether sufficient patrons would have attended to produce the revenue JLH contends for, are dealt with in the findings relating to the benefits which might have flowed from the development. Loss of profits - method of calculation Mr Lonergan, the accountant called by JLH estimated JLH's losses, to 30 June 1997, to be in the ranges of $37.123M - $40.941M or $44.489M - $48.507M. The first range reflects profits, including components of interest and taxation, that might have been made had the Minister endorsed approval on or shortly after 27 February 1990. JLH submits that this is the appropriate range to apply to the claims based on breach of contract or statutory duty. The other claims were said to be determined at the date when endorsement was refused, 4 October 1991. The second range reflects a calculation on that basis. The figures are calculated to 30 June 1997 and would require some readjustment in the event of an award in JLH's favour. Additionally, JLH seeks compound interest, and this would require further recalculation if it were permitted. The method employed by Mr Lonergan in the assessment of potential profit, was not the subject of any substantial challenge, save with respect to the discount rate chosen by him. I did not discern any error in his approach. The respondent relied upon a different method of valuation. I shall deal with it in connexion with the alternative bases for claim. Mr Lonergan calculated in the first place, an operating cash flow for the first year of operation, before interest and tax. The figures used to determine this are critical to JLH's case, as was the cost of construction and fit-out allowed for in the base calculations. Mr Lonergan allowed a total sum of $29.14M - construction and fit-out of $27.522M and pre-opening expenditure of $1.618M. He then made adjustments for cash flow in subsequent years, and took into account factors such as inflation, growth in volume of earnings, and recurrent annual capital expenditure. The lease was for 30 years and Mr Mantle's evidence was that JLH would continue as the operator for the foreseeable future. Mr Lonergan then used the "capital asset pricing model" to select an appropriate risk-adjusted discount rate. In his opinion, the rate utilised was relatively high. This was the subject of other submissions concerning the necessity or otherwise of further discounting. The respondent's submission was to the effect that the rate chosen was too low, but it seemed to me that it was referring not to a rate for discounting, but to a rate of return to investors. The final figures, set out above, reflected the net present value of the lost earnings. As I have said, central to this assessment was the calculation of an operating cash flow for the first year of operation. Mr Lonergan found a figure of $8,058,338 before allowing for payment of interest and tax. It was based, for the most part, upon the estimates of revenue and expenditure of the various facilities proposed by experts in those areas. I should add here that Mr Lonergan also expressed the view that something of the order of $15M might be added to the net present value of the loss on the basis of a 10 per cent increase in attendees at the site. This is drawn from the results of a survey undertaken to which I refer in the topics which follow. I do not accept it as a reliable basis for any increase in the number of patrons. Revenue and expenditure - generally The estimates used by Mr Lonergan in his calculations of the first year of operation, on which all future calculations are based, are those appearing in the report of Mr Weigh of Taylor Byrne Tourism ("TBT"): Revenue $M Themed Attractions 8,138,000 Food & Beverage 16,336,320 Retail 6,421,500 Tram 300,000 Photography 400,000 Sub Total 31,595,820 Direct Costs Themed Attractions 2,071,975 Food & Beverage 12,075,898 Retail 4,606,504 Photography 80,000 Sub Total 18,834,377 Head Office, Marketing & Common Area 4,703,105 Total Operating Cash Flow 23,537,482 Operating Cash Flow Before Interest and Tax 8,058,338 The substantial focus in the proceedings was upon the revenue which might have been earned from persons who were expected to attend the site for the purpose of viewing the "themed attractions". The conclusions to be drawn on this topic impact on the food and beverage outlets, since some of the theme park patrons would be assumed to be customers of the outlets. The other factors affecting both themed attractions and the food and beverage outlets were access to the site and parking in proximity to it. The attractions in question include the fauna park and noctarium, the aviary, the theatres associated with them, the experience theatre, the children's museum, the opal mine, tram and naval lake. Each of the respondent and JLH led evidence from persons having experience generally in the field of tourism, and concerning tourist-related attractions. In the end result, however, the approach taken by the respondent was to deny that questions such as predicted patronage and the like fall within a field of specialist endeavour, although not abandoning its own expert's evidence on the point. As a result, it did not offer critical analysis of the reports and evidence. There can be little doubt that any hypothetical study of facilities such as this, having a number of different aspects, will be fraught with imprecision and difficulty. Mr Bramley of Bramley Tourism Analysts ("BTA"), who was called for the respondent, said as much and conceded that the process undertaken towards estimating earnings and costs involves a number of matters requiring the exercise of a personal judgment based on experience and perceptions of the development itself. Even so, persons such as Mr Bramley and Mr Weigh are able to bring to that task an experience and understanding which others do not have. Given that in this field, and save for matters which may have a basis in common sense or understanding, there will be little that can be taken as apparent or as correct, it will be necessary that the bases for any stated opinion be laid bare and explained in some detail. I accept that, with respect to some value judgments, this can be difficult. The earlier report for JLH by Horwarth & Horwarth accountants acknowledged as having some expertise in tourism-related enterprises, also contained details of revenue and expenses. That report is now to be taken as an historical document, relevant principally to the question of its importance to financiers at the time. JLH did not rely upon it as accurate or as providing the basis for its calculation of loss and damage, although it was said to confirm, in some respects, TBT's figures. Errors in the approach of Horwarth & Horwarth were pointed to by both TBT and BTA. The figures arrived at by Horwarth & Horwarth, particularly those after the first year of operation, in the order of $40M, are well out of the range now spoken of and are regarded as highly optimistic. Aspects of the report are however relied upon by each of BTA and TBT. Even as between the current estimates, the difference in projected revenue is great. The TBT report estimates some $30M gross revenue in the 1991/1992 year and BTA only $17.6M. The operating profit disclosed in the report of Mr Curran, for the respondent, was only some $3.529M which compares with JLH's case, for some $8M. Revenue - the themed attractions - constraints identified A substantial explanation for the difference in the figures relating to the themed attractions is to be found in the level of anticipated attendance on the site. TBT estimated some 600,000 persons per annum would visit the attractions and from them revenue of just over $8M would be derived. This income is calculated on the basis of a one-ticket admission fee, to all attractions, which is consistent with the view taken by TBT of the integrated nature of the facility and that that was to provide its drawing power. That is an essential difference of approach between TBT and BTA. BTA considered that only some 338,000 visitors would likely attend, and revenue in the order $3.6M earned. I turn then to the method employed by TBT. The first step taken was to view the JLH proposal as involving a mix of attractions and to assume that that was what persons would be drawn to. Part of this approach was explained on the basis that the attractions were "themed" and that the concept was "unique", a term found commonly not only in Mr Mantle's and Mr Job's evidence but also in TBT's report. There was some reference to themes being present in the evidence relating to the retail outlets. I understood that other parts of the proposal, the naval lake area, some of the restaurants and cafes, some buildings and the trams and ferries were to incorporate an old style naval theme, but I failed to appreciate its significance in connexion with the fauna park, noctarium and children's museum, although I can accept that those facilities themselves may be regarded as having something in common. The children's museum might, if one took a broad view of the exhibits and facilities contained within it, be described as having an educational element. The naval lake and tram, however, were recreational. The balance of the site combined food and beverage, entertainment facilities and retail outlets. I can appreciate also the possibility that the site could be regarded as having principal features such as the fauna park and related activities and the food and beverage facilities. But it seems to me that TBT's approach implies a lot more than that as justifying the approach taken to JLH's proposal's expected standing in the hierarchy of multi-attraction and single attraction facilities in Queensland, for the purpose of the deducing a rate of penetration into the available domestic, local and international markets. With respect to the markets identified, BTA challenged aspects of TBT's description of available market. In the main, however, it seemed to me that the more substantial criticism was the position given by TBT to the proposal, so far as it concerned the themed attractions, in the market place. It was contended that no foundation was shown for it and no available comparison could be seen to support it. With respect to each of the three principal markets to which its report referred (domestic, local and international), TBT placed the project as ranking third in Queensland below the Dreamworld facility and the Sunshine Plantation, near Buderim. It had JLH's proposal as having a larger share of the Brisbane/Moreton market than the Sunshine Plantation. In general terms, the view expressed was that the proposal could have achieved market penetration to the same extent as Dreamworld. This would, in Mr Bramley's view, place it amongst the top four tourist attractions in the whole of Australia. Two of them, and in particular the Dreamworld attraction, are substantial and established attractions having a central theme. I accept that there is no directly comparable attraction to that which was intended at the ONS site. There are some other developments which involve some similar facilities and uses to those planned but they could not be described as truly comparable for the purpose of deriving similar market figures from them. JLH's proposal was described in evidence as something of a hybrid, incorporating features of Southbank. In a sense it does share the same mix of uses that were put in place at Southbank - some attractions, such as the Gondwana Wildlife Sanctuary, restaurants and cafes and some retail facilities. Indeed, the similarity was such that JLH had claimed damages against Southbank Corporation, on the basis that it had copied its ideas. But, as I understand it, neither expert considers Southbank to be comparable in all respects, although it is able to be used as a benchmark for some purposes, including prices. The visits to Southbank attractions in 1993-4 were calculated at 454,726 which compares with those for JLH's attractions - TBT (582,485) and BTA (338,000). By way of further comparison, Dreamworld had 641,000 in the year in question. Southbank has a different image, one can accept, from what JLH proposed. Whilst it includes the uses referred to, it more readily brings to mind open public spaces, landscaping and swimming lagoons, as well as restaurants. It is a destination point for families as well as visitors and much of it can be enjoyed with little or nothing being spent. It is highly accessible, by train, bus and car, and provides substantial carparking facilities itself. There are others nearby in the Performing Arts Centre. The individual attractions at Southbank, such as the Gondwana Wildlife Sanctuary, were also not considered to offer useful comparatives. The difficulty I have in accepting the TBT estimates of patronage to the themed attractions lies, substantially, in my inability to understand how they are justified. Part of their approach, as I have said, was to assume that the combination of uses would be highly attractive. Its suggested "uniqueness" was stressed a number of times. But it was not apparent to me that that would be the case. Putting aside the retail area as relevant, since the persons using it would be drawn from those attending the themed attractions, it seems to me just as likely that people would attend because of the recreational or educational attractions, one or more of them, or because of the restaurants and taverns. Looked at in that way the project could be said to offer those principal facilities together with some shops, a lake, areas for walking, ferry terminals and a carpark. How TBT have then come to place JLH's proposal so closely to Dreamworld for the purposes of their calculations, is not made apparent other than by general references. Since it is clearly not comparable to Dreamworld in many respects, except for the stated assumption, it was necessary for JLH's expert to explain how that conclusion was reached. Perhaps the best indication of TBT's qualitative analysis of the project, and its place in the hierarchy of attractions, appears in the following statement in its report: "Taylor Byrne considers that due to the unique concept in themeing of Old Naval Stores, its prime central business Brisbane location and the attractiveness of its substantial critical mass, its market positioning should lie below Dreamworld and above the lesser South-east Queensland attractions". It is convenient here to say something about the approach generally taken by TBT to its task. Mr Bramley of BTA was criticised, at numerous points, by Counsel for JLH for what was said to be an unduly conservative approach. One might think that caution would dictate such an approach in relation to an exercise such as this. What the submission overlooked however was the approach taken by its own expert. My review of the lengthy report of TBT confirms my initial view that its approach was not in all respects a balanced one. That criticism applies to the present topic. The report is more than glowing in its references to almost every feature of JLH's proposal. Whilst I can accept that a witness may have been impressed by a concept, one would also expect proper consideration of factors which might operate as constraints to its profitable operation, and not merely the adoption of an approach which sought to assert that there was in each case a solution to each problem. I considered Mr Weigh to undertake something of the role of advocate for the proposal in this case. That view has operated as influential in my assessment of the evidence. For the most part however, I was unable to accept his opinion for the reason that no proper basis was given for it. Mr Weigh placed reliance on the survey undertaken by Reark of Southbank visitors as implying some conservatism in TBT's figures. Mr Lonergan, as I have earlier mentioned, also suggested that his figures might be revised upwards on the basis of this survey. The exercise in question was an enquiry of visitors to Southbank as to whether they might attend a site nearby containing similar uses to Southbank. Not surprisingly perhaps, there was a substantial affirmative answer. I cannot however accept it as a useful survey, either for the reliability of the responses or for what might be drawn from them. The question could not in my view have been considered as clear. It is not plain what "nearby" meant to the respondents to the survey, such as might qualify the answer as meaningful. Although Southbank was used by TBT, at least as a starting point for comparison, a major point of difference, as I have already observed, was said to be the parkland nature of Southbank and its free facilities. This was to be contrasted with the more commercial nature of JLH's project. This point was made by TBT to explain the difference in spending rates applied by it. How persons who are attending Southbank for those facilities are to be assumed as wanting what the ONS site and its facilities were to offer was not made apparent. The reference by TBT to the "prime central business location" of the site may be considered from two aspects - its visual presentation, which might serve as a reminder of its presence; and accessibility to the site. The latter assumes importance in this case. The reference to "critical mass" by TBT in that part of the report quoted above, rather like descriptions employed by it such as "unique concept", are not of great assistance. Mr Weigh said that the topic had been the subject of some academic research. I did not understand him to say, however, that either its definition or its application to have gained acceptance. I took it to refer to a concentration of uses in close proximity and that the effect it had was either to operate by way of attraction itself or to have some stimulating effect upon spending. I do not however accept Mr Bramley's view that the attractions should be seen as wholly fragmented. They are, apart from the naval lake, at least in close proximity to each other. What I am unable to glean is what might follow from that. The site does have some exposure. It may be viewed from the Botanical Gardens in the city opposite, from other waterfront areas and some high rise buildings in the central business district, and from vehicles heading southbound on the freeway. Of more importance, it seems to me, are the questions of ease of access to the site and availability of carparking. These are amongst the factors identified by Mr Bramley as constraints and amongst those identified by him as relevant to an assessment of the propensity of people, in each of the identified markets, to visit the attractions. Other factors include admissions prices and other comparable attractions, the relative quality and attractiveness of the site and the duration of stay of visitors to South-east Queensland. The first aspect of the question of transportation to the site involves the predicted usage of private motor vehicles and the coincident need for carparking. This enquiry affects the whole proposal and not just the themed attractions. Mr Holland, an experienced traffic and design engineer called by the respondent, concluded that the patronage levels predicted by TBT could not be accommodated unless a substantial number of persons travelled to the site by means other than motor vehicle. This would require JLH to show that that proportion of patrons could reasonably be expected to use alternative transport and, in particular, the free ferry service which was intended to be provided. It was this essential factor which Mr Bramley described as a real hurdle when advising a potential investor against investment in 1988. The evidence was that carparking on site and nearby would be limited and that the layout of the development could not provide sufficient carparking spaces for the expected patrons to the themed attractions and food and beverage facilities. Of the 256 carparking spaces which were to have been made available, Mr Holland estimated that about 220 parking spaces would be needed for the themed attractions alone, on TBT's figures. A lesser figure (130 spaces) applied to BTA's assessment. Whilst the parking facilities, on TBT's estimates, would be overloaded only slightly on weekdays, at least if most patronage to the restaurants and cafes were drawn from the city and catered for by ferries (the question of these attendances is dealt with under the next item of revenue), on weekends there would be demand for about 500 further parking spaces at lunchtime and 240 vehicles at night. On occasions it could be higher. No real assistance was thought to be available from parking in nearby streets which, it was anticipated, would be limited if not prohibited. The practical importance of this cannot be under-estimated. The number of carparking spaces could have been extended to 350 or so, which is to say that amount of space was available for expansion were the Minister prepared to permit more extensive utilisation of the reserve lands. Mr Holland considered that such a provision would be sufficient to accommodate only the numbers of visitors estimated by BTA. JLH may not, however, have been in a position to provide more spaces for private motor vehicles, given its own evidence, through TBT, that a survey of local operators and visitors to the Kangaroo Point Cliffs lookout undertaken in about 1989/90 indicated a need for a substantial area for coach parking, more than had been provided for. I am unable to accept, however, that the surveys undertaken were reliable indicators of a real market. I have, therefore, disregarded the likelihood that carparking spaces would have been as limited as TBT suggested, as low as about 165. As part of this question a practical difficulty was pointed to by the respondent, namely that coaches would not be able to access the site at all, for the reason that the nearby overhead bridge would not permit clearance. I was satisfied however that a practical engineering solution would have been found. It did not therefore operate as influential. What would have militated against there being any real prospect of some 350 carparking spaces being made available was that the Minister and the Cabinet would not have permitted this more extensive use of the reserve lands to accommodate problems encountered by a development which they had been concerned to scale down. Mr Holland's assessment of the need for carparking spaces was based upon his view that about 70 per cent of people could be expected to prefer to travel by motor vehicle. This, he explained, continued to be the propensity of Australians despite various measures taken to alter their habits. It is supported by research to which he referred and in part by the Reark research of Southbank patrons, which showed that about 62.6 per cent of patrons use on site and nearby parking. Mr Bramley was of similar opinion. Whilst the extent of the need for carparking on site was disputed by JLH, the TBT report itself acknowledged that there was a real limitation to what could be provided. The approach then taken by TBT was to assume that the carparks at Southbank and the Performing Arts Centre could be utilised, with a shuttle service. This may be possible for some of the time but would not be possible when there were events at those locations or at peak periods for their restaurants. Further, it assumes that people will undertake the two journeys. The same assumption is made with respect to other means of overcoming this problem, ones which would require patrons to travel to the CBD and from there to travel by ferry or shuttle bus to the site. In each scenario involving the buses, this would also mean that, on arrival, patrons would have to walk from the carpark to the main attractions or restaurants, a distance of some 400 metres or so. None of these suggested solutions seemed particularly practical. The assumption upon which TBT's patronage figures is to an extent founded, is that at least as many people who cannot be accommodated on site for parking, will be persuaded to undertake ferry and shuttle bus travel. In either case the argument requires them to access those services from the city side of the river. Both Dr Davidson and Mr Dunne, consultants in the field of ferry transport, were of the view that, at the time in question, patronage of ferries was growing. This did not, however, necessarily apply with respect to cross-river journeys. With respect to the question of the public's propensity to use ferry services, a number of the other witnesses were also able to offer some insights. On weekends, when carparking at the site would be constrained, most patrons would be required to travel to the ferry point from the central city railway station or by bus or car. Those arriving at that point by car would be required to pay carparking fees. The alternative choice of shuttle bus from the city to the site would only operate as an alternative and would not be as attractive an option as a ferry. A conclusion as to its viability would not, in any event, alter the outcome on this topic. I accept as likely, that whilst some people might be encouraged to undertake a multiple journey, most would find it inconvenient. It is not possible to be specific about numbers. It suffices to observe that it has not reliably been shown that the substantial numbers of patrons predicted by TBT could be catered for. The factors adverted to by TBT as supporting its assessment of the attractions are not established. To the contrary, it has been shown that parking and access would operate as considerable constraints to the numbers of persons who could visit the site. BTA's estimates of patronage, at 338,000 to the themed attractions, as well as to the other areas, did not take the effects of these constraints into account. BTA undertook a separate analysis of them, which it is not necessary to detail. There were other aspects of the proposal also pointed to by BTA as impractical or unattractive and which would further limit its profitability. I am unable to accept that overcrowding would be as serious as suggested. I accept the possibility of it, given the shape of the site and the limited area for pedestrian movement. But proof of its extent and impact, to the extent postulated by BTA, depends upon design figures undertaken for an earlier exposition ("Expo 88") but which appear, by reference to later site performance figures, not to have been accurate. I am able to accept that the site would be hot. It is a very hot site now. Even with the landscaping proposed I cannot see how the lack of breeze and heat generated or reflected by the cliffs themselves could be overcome. The respondent also relies upon this, amongst other factors, as showing that the facilities or many of them, could not have operated as viable. I am unable to draw such conclusions from the very general nature of the evidence on this topic. The approach taken by BTA was to assess the individual attractions proposed for the ONS site by comparison with similar attractions and then to obtain attendances and market penetration rates. Such a method appears to be a reasonable one. The individual rates as determined were then tested against the penetration rates for each segment of the market of other attractions such as those at Dreamworld, Gondwana Wildlife Sanctuary, the Butterfly House at Southbank and the Sunshine Plantation. A later comparative analysis is of some interest. It relates to market penetration rates with respect to resident population only. It shows that TBT's rate exceeded that with respect to Dreamworld. TBT's figure was exceeded only by Seaworld and Sunshine Plantation which Mr Bramley explained were two of the most popular tourist attractions in Australia. BTA's estimate was more than attributed to Lone Pine, and more closely approximated two Sydney attractions - Taronga Park Zoo and the Sydney Aquarium. BTA considered that it seemed unlikely that JLH's proposal could achieve twice their rate, as TBT suggests. Whilst accepting that the figures provided by BTA are estimates and depend to an extent upon Mr Bramley's view of the project as operations, nevertheless they were the subject of objective comparison and testing. There is nothing in my view to discount them as accurate as such an assessment can be. As a maximum then, and subject to consideration of BTA's attempts at calculating the effect of other constraining factors, some 338,000 persons per annum might have visited the attractions. A figure calculated in an earlier part in the BTA report and which was significantly larger, was the aggregate of all attendances at attractions and did not take account that many visitors would go to more than one attraction. The earlier figure does however permit a comparison with Southbank, and shows that BTA has allowed significantly in excess of Southbank's total attendances. The evidence would allow such a possibility. TBT's estimate is however more than 400 per cent greater than Southbank's total attractions. The final figure may then be compared with TBT's and Horwarth & Horwarth's penetration rates - which are 72 and 80 per cent higher, although a direct comparison with TBT's is not possible. Nevertheless, one is able to observe that TBT's projected attendances are only a little less than those forecast by Horwarth & Horwarth. The total revenue calculated by BTA was $3.654M. TBT's conclusion was $8.076M. The difference lies substantially in the penetration rates assumed, which reflects in the level of patronage. The analysts were only a few dollars apart on the amount likely to be spent by each person for entry to the attractions. No compelling reason has been shown for acceptance of one figure rather than the other and I therefore accept BTA's. It remains to assess revenue separately for the themed tram, the Children's Museum and the sale of photographs of visitors taken in the fauna park. Before doing so, it is necessary to refer, briefly, to a matter relevant to TBT's estimation of market penetration which was the subject of comment by BTA. It relates to TBT not allowing for the possibility of potential competitors. Given in particular its assumption of high rates, the possibility of effects from competition comes more sharply into focus. With respect to Southbank, whilst I accept that it was not truly comparable in all aspects of its operation so far as its themed attractions were concerned, nevertheless it must have had some impact on another nearby facility especially where there was some similarity in the nature of the attractions. In one sense JLH's claim against Southbank, abandoned during the trial, recognised this. This issue also carries over into the topic of the food and beverage outlets and revenue estimated to flow from them. In that respect Mr Weigh argued that some of the restaurants and other facilities then under construction or planned at Waterfront Place and the Eagle Street Pier in the City may not have proceeded if the JLH's proposal had. The prospect that they may have seems just as great. Given their location, ease of access, and their grouping in an area already established as a restaurant precinct I would have thought it less likely that they would perceive problems from the facilities at the Kangaroo Point Cliffs. TBT allowed for $61,500 for revenue from the Children's Museum. The figure is not large in the scheme of things and it probably reflects the difficulty in achieving any substantial income from such an attraction. Indeed, it is said by BTA that even that is unlikely to be realised. Although based upon the concept of the Boston Children's Museum, that intended for the site would have been constrained by the relatively small floor area allowed for it, which would limit the number of exhibits and interactive displays. Further, the evidence suggests that elsewhere facilities like this have to be subsidised and are not profit-making. The Boston Museum, for example, operates at a trading deficit. There is no evidence to suggest that a private, commercial, children's museum would fare any better. I do not accept the view of Mr Mantle and Mr Weigh that it would be more successful in Brisbane at this location and because it was run by a company attuned to profit-making. A substantial figure is allowed by TBT for photography ($400,000, for which $80,000 is to be deducted for direct costs). These figures are disclosed in the profit and loss summary and were the subject of little explanation. Whilst the figures given for the Gondwana Wildlife Sanctuary at Southbank are much lower, it is difficult to use them directly for estimation in JLH's proposal given differences in attendance rates. They are however an indication that much less is likely to be received than was hoped by JLH and TBT. Another factor operating as a constraint upon this revenue was the imposition, by the responsible department, of limitations upon the way in which koalas could be handled. This might make the prospect of a photograph less appealing. BTA's figure is taken from the average amount spent by each person at Dreamworld, from which it is estimated that only some $148,000 might be earned and I have allowed that figure. It is difficult to discern the numbers of persons involved in TBT's estimate or the price used. Applying the Dreamworld average figure ($0.85) to TBT's total for revenue, one would infer that a substantial proportion of all patrons to themed attractions were thought to be candidates for photographs. The scaled down tram proposed, and for which a charge was to be made, was the subject of considerable attention by the respondent in evidence. Its significance however is lost because of the conclusion I have reached, and to which I refer under the heading of construction costs and fitout, that JLH was not bound to provide each item as described in the brochures and the tender documents. The difference between TBT and BTA in terms of the revenue it might produce is negligible - TBT allowing $300,000 and BTA $326,200. For consistency of approach I have applied BTA's slightly higher figure. Revenue - the food and beverage outlets Both witnesses called by the parties in connexion with the food and beverage outlets, Mr Flockhart and Mr Driscoll, have experience in the food and beverage industry, although Mr Driscoll has a somewhat greater breadth of experience and he is familiar with other operations which might be included within it, such as nightclubs. Mr Flockhart's experience largely relates to restaurants. Mr Flockhart's approach was to estimate the seating available in the food and beverage outlets to be provided in JLH's proposal and then, with respect to each different outlet, to take an anticipated rate of patronage and revenue from other comparable outlets. The process involved placing the JLH facilities in an hierarchy, an approach similar to that undertaken by Mr Weigh with respect to themed attractions. The method is not the subject of criticism by Mr Driscoll. The substantial point made by Mr Driscoll was as to the underlying, but unstated, assumption that the numbers of patrons could be of the order estimated by Mr Flockhart. The conclusion reached by Mr Flockhart was that revenue would be in the order of some $16.3M. This calculation was undertaken for a stabilised year, but in 1994-95 and not the 1991-2 year as the other estimates were calculated. Mr Lonergan adjusted this figure to align with those other estimates ($14.963M). After allowance for direct costs, some $3.9M is assessed as available towards cash flow. TBT explained in their report that that estimate means that the revenue would be generated by some 873,746 patrons. To that figure they add their own estimate of some 400,000 patrons as attributable to the tavern as an outlet, giving a total of 1.273 million patrons per annum to all food and beverage facilities. Reliance was placed by TBT on comparative figures taken from the Southbank food and beverage outlets as disclosing the reasonableness of this estimate. Putting aside the matters which would operate to constrain the level of patronage in any event and to which I shall shortly refer, Mr Driscoll points out that recent surveys of Southbank patrons disclose that only 15 per cent are primary food and beverage patrons. Of the 1.4 million visitors predicted to attend the JLH proposal, an expectation that 1.2 million persons will attend the food and beverage outlets seems somewhat unrealistic. In relation to the numbers of persons who might be expected to attend and use the nine food and beverage facilities at the site, Mr Driscoll was of the view that Mr Bramley's estimate of some 643,845 patrons was more realistic. Mr Bramley, in arriving at this figure, estimated the number of food and beverage only patrons from various types of visitors and at particular points during the week and weekends, to which he added all patrons attending attractions as possible candidates for the food and beverage outlets. Mr Driscoll's view was largely centred upon a perception, which he believes would grow in the public, of the site being difficult to access and of the real difficulty in providing carparking for the number of persons predicted by Mr Bramley (and Mr Holland) who would require it. I have dealt with this in the preceding topic. The likelihood, in my view, was that problems of access and carparking were likely to be real and substantial. The opinion of Mr Driscoll, which would limit the prospect of patrons to the figures assessed by BTA, is therefore to be preferred. Whilst I do not doubt the expertise of both Mr Mantle and Mr Flockhart, it seems to me that the predictions of both Mr Flockhart and TBT are more appropriately described as relating to the potential of the site in the event that it suffered no constraints or difficulties with access. There is little basis shown for TBT's own calculation for patronage to the tavern. On the other hand Mr Driscoll's analysis, in the second part of his report, does show the basis for his reasoning and further evidence and examination did not suggest it required modification. In an earlier assessment, when Mr Driscoll was reviewing Mr Flockhart's figures, he was prepared to adopt a higher figure for the tavern but this was dependant on Mr Flockhart's overall attendance figures. The TBT report does not explain the approaches taken and the comparisons sought to be drawn are attended with imprecision. In the result, JLH's figure is not established. The tavern was, of course, likely to earn something and I shall take Mr Driscoll's figure as not substantially challenged. The question then is what conclusion can be drawn as to the likely net profit to be achieved from these outlets. I have not been favoured with a detailed analysis of the approach taken by the expert witnesses. There is a difference, in net profit over one year, of $1.6M. Precision is not possible. Whilst there have been some factors pointed to which would require a further allowance, of some few hundreds of thousands of dollars, to BTA's estimate, the substantial point against TBT's estimate is the constraints operating on its assumed patronage. This, in my view, would require a substantial reduction, for the reason indicated by Mr Driscoll. This would likely bring the figures closer to that estimated by BTA, in the order of $9M revenue which could be generated, as compared with TBT's at $16.336M. Revenue - the retail outlets The net profit calculated by JLH from the retail outlets was $1.82M, from a sum for gross revenue estimated by Mr Stephens at $6.421M. Mr Jeffries, the witness for the respondent, considered the latter figure ought to be $4.338M with a net profit of $1.146M. In that calculation he has adopted the margin for profit from Mr Stephens report as being reasonable, save with respect to some matters which do not appear to be in any way critical. The essential difference between the two approaches appears to lie in the choice of comparisons from which both the rate of patronage and the rate of spending (per square metre of retail space) is to be taken. Mr Stephens' analysis centred largely on the retail facility known as the Pier Market Place in Cairns and, to a lesser extent, on a facility at Mooloolaba in Queensland. In Mr Jeffries' view however, the Pier Market Place is a destination point for shopping, although it involves a substantial proportion of tourist spending. JLH's proposal, in his view, is, on the other hand, to be considered principally as a destination point for the themed attractions, and to a lesser extent for the food and beverage outlets. It is largely from patrons to the attractions that retail spending was to be drawn. That opinion is persuasive. To a substantial extent Mr Stephens agreed with it. He conceded that the retail facilities were largely dependent upon the other attractions being successful. There are other aspects to the comparison used by Mr Stephens to confirm Mr Jeffries' approach. It appeared from Mr Jeffries' evidence that the Pier Market Place is not, as JLH's proposal would have been, ancillary to any leisure or other activities. It is, as mentioned above, a retail outlet to which people are drawn for the purpose of shopping. Its operating hours differ. It is located in a major tourist and international tourist destination and market. It is accessible. Its retail space is nowhere comparable to the limited space to be provided at the ONS site. Mr Jeffries' use of Southbank's retail figures for comparison is understandable. Whilst I can appreciate some allowance might be made for the less intense commercial image of the place, and the fact that a large number of the patrons are drawn to the free facilities, it seems to me that the total average spending per square metre adopted by Mr Stephens makes allowance for that. He has taken a higher figure than that earned at Southbank. By way of comparison, for reasonableness, Mr Stephens' rates for the individual retail facilities for the most part appear to bear no relationship with what is earned at Southbank. In some cases the difference was greater, on his figures by a factor of 2:3, which is to say that it appears he assumed the site could, to that extent, trade more successfully than Southbank. I should add that although much was made of the two witnesses' views of the correct, retail mix which would achieve the best profits, there was nothing which would compel me to a view that one or the other was correct. Mr Stephens' reallocation of the retail facilities was within the area allowed. Mr Jeffries had a different view about the changes which would have been necessary. If he be correct the result would be that Mr Stephens' figures would be lower on that account. It is not however, necessary to attempt to resolve that issue, since I accept Mr Jeffries' opinion as more likely to be accurate. ($4.33M earned and $3.19M direct costs). Summary (of Revenue) Subject to other contingencies which I deal with later in these reasons, the revenue which might have resulted from the various income streams in JLH's proposal, is as follows: .$M Themed Attractions 3.654 Food and Beverage 9.179 Retail 4.338 Tram .326 Photography .148 17.645 I should add that Mr Bramley considered it likely that problems associated with carparking might further reduce revenue. Costs estimated by the experts whose evidence I have accepted in each of food and beverage retail and photography were, respectively, $6.909M; $3.191M; $0.123M ($10.223M). Unlike revenue, calculations of expenditure were not the subject of any substantial challenge. There are, however, other costs, including those relating to the themed attractions, tram and common area costs, which cannot be attributed to the various facilities and which need to be calculated, and the approaches taken by the witnesses for each of the parties on this important question once again diverged. Costs and operating profit Dr Fabian Fay, who was called by JLH, gave evidence with respect to the direct costs of the themed attractions, including the fauna park and aviary and those associated with the operation of the facility as a whole. Dr Fay has practised as a veterinary surgeon for many years. Since the 1970's he was involved with the development of educational programmes at the major attraction Sea World, near the Gold Coast, but moved into a management position in 1989, when he was appointed general manager, a position which he held for some four years. In the last 10 years or so he has provided consultancy services in tourism, with particular reference to the area of marine and mammal attractions. In compiling his estimate of costs of the whole operation, Dr Fay adopted Mr Flockhart's figures and those of Mr Stephens and adopted Mr Spittall's recommendations regarding the fauna park. Dr Fay agreed, in evidence, that his brief was to attempt to bring the cost of operations within a budget figure, being those costs which JLH hoped the project would operate at. The evidence as to those figures is a little confusing. At one point they were referred to as $1.5M for the attraction and $4M for office and other expenses. In the end result, Dr Fay was not able to accommodate necessary costs to within those figures. Despite some attack upon this method, it does not seem to me that it undermines the credibility of his analysis. Questions of omission may however affect his estimate of total costs. Much of what the respondent points to with respect to matters omitted concern the much laboured topic of what it considered was necessary to be provided in the proposal, by reference to what was said to have been promised in the tender documents. Other points it made concerned underestimations of expenses, where what was omitted was said to be an essential item. The difficulty is in assessing what effect they have on the figures as a whole. It seems to me that the respondent has established that at least one other person would be necessary to collect browse, the eucalypt leaves constituting the feed for koalas. This would add another $25,000 to the wages bill. Views differed about the need for supplemental feeding at the cost of about $9,000 per annum, but it has not been established this would have been essential. Then it was said that Dr Fay had omitted the cost of the koalas' browse plantation, on the assumption that Mr Mantle would have charged something for it. It was not established however, that that would have been the case. Similar comments apply with respect to the cost of the land for a spelling area. Whilst one may assume that, if profits earned permitted it, Mr Mantle may well have required reimbursement, I do not think one can approach it as a necessary expense. It may however be that the cost of wages and water for the plantation have been underestimated. It is difficult to know what to allow for extra water, either by volume or costs. On the assumption that some allowance needs to be made for the two items, a figure of about $30,000 per annum would seem to be in order. Other areas of criticism included the cost of running the children's museum, the level of staff needed around the naval lake area and the cost of the operation generally of the fauna park theatre, but no conclusion contrary to the view of Dr Fay can be drawn. He did however, omit an allowance for the cost referable to the two theatres in each of the fauna park and aviary, and allowed only for those connected with the experience theatre. The respondent says, in this respect, that another $240,000 ought be added to this cost, but it seems to me that that figure is inflated since a substantial proportion of it reflects the cost of special film for the experience theatre. Making some allowance for operator costs, electricity and some sundries, another $100,000 would seem to me an adequate, if not substantial, allowance. No figure was allowed for the musical adventure playground, but Dr Fay had apparently been advised that it was to be added at a later stage of the development. Another aspect of the wages costs involves the length of time for which the attractions were to be open. Mr Weigh approached the matter on the basis of 10 hours per day, but it appears Dr Fay costed it for 9 hours only, which would require another 11 per cent, or $90,920, as the respondent calculated. There was a further submission that there needs to be added further wages because the fauna park was to open at night, as Mr Spittall had been told. This was not however referred to by Mr Weigh as part of the project in operation. Having regard to those of the respondent's submissions which appear well-founded, an upward adjustment of some $246,000 would seem to be warranted. The total operating costs for themed attractions; head office; markets and common area would then be closer to $7M. If that figure were adopted, the costs of the operation would only be some $400,000 less than the revenue to be generated and the project could then be considered non-viable. It does not however seem to me that this approach is likely to be a commercially realistic or accurate one. Mr Curran, a management consultant called by the respondent, pointed out that the resultant operating profit, taken as a percentage of revenue, on each of Dr Fay's and JLH's accountants' calculations would have meant that it was unlikely that a commercial decision would have been made to proceed. In his view, the subjectivity inherent in attempts to ascertain accurate costs levels for individual expenses at such an early stage in the development process is bound to produce substantial inaccuracy. In that respect he noted the difference of some $500,000 as between Dr Fay's costs and those of the accountants, Malone Poulsen. The approach which Mr Curran considered to be the one more likely to be followed by those in business, contemplating costs at this early point, would be to set an operating profit as a percentage of revenue. This would mean that levels of expenditure would also be set and savings identified. I accept such an approach is commercially realistic. It is to be recalled that Dr Fay's approach also accepted, as necessary, parameters for costs. The key question then considered by Mr Curran was what figure to allow for operating profit. He adopted as a "benchmark" that which had been achieved by Dreamworld for the three consecutive years to 1992, namely 20 per cent. If anything, this tends to favour JLH somewhat. The considerable savings identified by Mr Curran as necessary to be effected included a postponement of the free ferry service and shuttle bus, with attendant capital costs and maintenance. This would of course further impact upon the profitability, and perhaps even the viability, of the project if that point be reached. After readjustment of costs contributed to by the various facilities, an allowance of $3.893M was made by Mr Curran for "other expenses". It covers annual costs for each of the common area activities, tram and themed attractions and permits an operating profit (at 20 per cent of revenue of $17.645M) of $3.529M which may be compared, on the one hand, with that achieved by Dreamworld ($4.849M) and projected TBT ($7.784M) and Horwarth & Horwarth ($18.374M). Of importance is what the allowance of $3.893M would have permitted in connexion with the maintenance of the project. In Mr Curran's opinion it does not equate with the amounts spent by other themed attractions to remain competitive and he doubted that it would have been sufficient for the development to have maintained its market attractiveness. This then supports the conclusion earlier drawn from Dr Fay's figures. In Mr Curran's view, which I accept, JLH was not likely to have operated at a level where it could properly compete. Conclusions on project - profit or loss? It is not possible to conclude that, overall, the project offered any real benefit to JLH. To the contrary it would seem to have been illusory. The revenue it could have earned was likely to be much less than was hoped for, and JLH had not investigated the underlying assumption that people would be persuaded to travel by different means. Even if costs were constrained to accommodate a reasonable, though not high operating profit, there would not be sufficient to allow for any substantial recurrent expenditure necessary to permit the project to maintain its market share. The amounts allowed for the item in the estimates of the quantity surveyors do not impact on this in any significant way. No further assessment of the impact and timing of this shortfall was gone into in evidence, and some speculation is necessary. It seems to me however, that whatever was able to be retained of the profits from the early years of operation, after payment of interest and tax, would be overshadowed by either substantial capital outlay, which it could barely afford, or it would run at a loss. I am unable to conclude that the project would have operated at a profit for any length of time and to conclude that it ought be considered over its period of operation, to be something of value. Some questions were put to Mr Curran as to whether his assessment of operating profits focussed too much upon the themed attractions and implied that the food and beverage facilities might require it to be raised. The result of course would be that the allowance for operating costs would be even smaller. Further constraints as contingencies Assuming, for the purpose of the following discussions, that JLH could have made a profit from the first and following years of the project in operation, such as to require a real present day value to be attributed to it, nevertheless, the respondent points to a number of hurdles, in addition to those identified in connexion with its operation, which it submits JLH could not have overcome. In some cases it submits that the difficulty was such that the development could not even have been commenced. In any event, and in the context of the approach required by Sellars v Adelaide Petroleum, it submits that the opportunity of which JLH claims to have been deprived, was so burdened with contingencies that it could not be said to have any value. Of these the prospect that the project could not have been constructed and fitted out within JLH's budgeted figures assumed the most importance, and time, during the trial. Cost of construction and fitout This topic is of obvious importance to any claim by JLH for loss of profits and further, to the issue of financing. The reports of the quantity surveyors called by each party were extensive, as was their oral evidence. The submissions made by the parties in conclusion however, referred to little of it, although the evidence does not suggest some obvious conclusion. The respondent's approach to the issue centred upon its view of JLH's obligations under the agreement for lease, which referred to the proposal as that described in the tender documents. It did not contend that there was any uncertainty attending that agreement, although aspects of its submissions and the evidence of its quantity surveyor, Mr Lowry, suggested that difficulty had been encountered in determining what was to be provided in parts of the development. Mr Lowry attempted to cost the proposal on the basis that whatever was referred to in the brochures accompanying the tender documents was to be provided and used the promises of high quality contained in them to determine what might be included as an allowance for many items. The total cost for construction and fitout arrived at by Mr Lowry is just over $60M. JLH's quantity surveyor assessed construction and fitout by reference to plans available prior to July 1990, when it says it would have commenced construction had the Minister endorsed the lease. Where it was not apparent what was intended to be undertaken and where details of finishes and fitout were necessary to be provided, such as might be expected in specifications and a bill of quantities, instructions were sought principally from the architect Mr Job. The respondent argues that in doing so JLH was designing to a figure and that the exercise undertaken rendered it necessary to reduce quality or delete items to meet the figure for which Mr Mantle said he was budgeting, $27.5M or the figure for which bank finance might have been obtained, in the order of $30M. It was submitted that JLH claims for itself greater latitude or discretion in the carrying out of the works on the lands to be leased. In one sense, it would have to be conceded that JLH was determining the parameters of the development with a figure in mind, at least so far as construction costs are concerned, for its case is that it was intending to agree on a fixed price or "guaranteed maximum price" contract with the intended constructor, Concrete Constructions Ltd. The second limb to the respondent's submissions relates to the acceptance of the evidence of JLH's quantity surveyor. It has not prepared a comprehensive analysis of his costings, although there was some cross-examination as to a number of them. Rather it sought, in submissions, to have the quantity surveyor's evidence held as unreliable, in part by a comparison with the manner, style and content of Mr Lowry's evidence, and otherwise by reference to specific indicators which, I infer, are regarded as the most influential for this purpose. Mr Lowry's exercise, being different from that undertaken by Mr Wrenn, the quantity surveyor for JLH, does not provide for direct comparison. I turn then to the central question and that which explains the different approaches taken by the parties to the evidence to be given, namely whether JLH was obliged to develop strictly in accordance with what was contained in the tender documents which include the brochure and video accompanying it. The agreement for lease recorded, in the recitals, the agreement of JLH and the Council that JLH erect on the land the subject of the proposed leases "a development including some or all of the uses set out more particularly in the Lease in accordance with the contract referred to therein". The proposal was said to be referred to in the agreement for lease as "the development works". The uses which might be undertaken were then to be the subject of a rezoning application and these descriptions were listed in the agreement. Some of them were shown in a development plan which accompanied the agreement for lease. The uses to be permitted by the rezoning would have allowed JLH to incorporate facilities in addition to those referred to in the development plan. The development plan itself differed from that which had been contained in the tender documents, and reflected changes which had been made to the proposals at the time of execution of the agreement for lease. An issue relating to when the development plan was inserted in the agreement was not pursued by the respondent. A comparison of the two development plans shows, with respect to the latter, more extensive carparking, a matter which had been negotiated prior to the preparation of the agreement for lease, a change in the configuration of the naval lake and the removal of reference to some features such as cliff walks, nocturnal forests, elevated walkways, diamond cutting experience, theatre, koala house and hospital, adventure playground and barrier reef theatre and island. In comparison with the former development plan, it may be described as less specific as to the uses intended. The numerous waterfalls were reduced to one, which is described as a "misting waterfall". The development plan accompanying the agreement for lease identified the location of uses such as the conservatory, markets, food and entertainment facilities, theatre, children's museum and retail uses, fauna park, naval lake and carpark in its stages. In some cases an outline of a building may be discerned. The only sections provided were one through the aviary and one through the naval lake. There were no details given of the buildings and their standard, or of finishes. The respondent acknowledged that the development plans differed. Its submission, that JLH was bound to provide everything shown in the tender documents, including the brochures, must then be understood as excepting these features from them. This was not however the approach taken by its quantity surveyor. In addition to the clause referring to JLH's obligations with respect to the construction of a development on the lands (cl 5, to which I shall shortly refer), the agreement for lease detailed JLH's obligations to restore the naval building and, in doing so, specified (in clause 7(iv)) that the level of restoration and repair of the existing improvements has to be in accordance with a report, which it identified. The buildings on site were considered to have heritage significance and considerable discussion as to their restoration and, with respect to one of them, its replacement took place between JLH and the Council officers. Three other matters relating to the development were the subject of specific reference in the agreement for lease. The waterfalls were required to have a misting effect; all buildings were to maintain a low profile; and "as proposed in the lessee's tender the lessee will expend the budgeted sum of Three million dollars ($3,000,000.00) on landscaping of the said land and the adjoining Reserve land". The latter requirement (cl 7(ix)) is the subject of separate discussion in these reasons in relation to the issue raised by the respondent, as to whether JLH's costings take account of that particular obligation. It does not, however, bear upon the construction of cl 5, save that the selection of the topic for express reference in the agreement for lease, does not seem to me to provide support for the respondent's argument that the agreement for lease is to be taken to require everything specified in the tender, except those matters changed by the development plan. Clause 5 of the agreement for lease, upon which the respondent places reliance, commences: "The lessee hereby covenants with the lessor that the lessee will in accordance with its Tender submitted under cover of correspondence dated 10 November 1987, Invitation to Tender and supporting documentation contained in SPB Tender No. 7 and further correspondence dated 15 August 1988 and the Development Plan forming the attachment hereto (hereinafter referred to as 'the Contract')…". It then went on to require, in the first place, that JLH submit "working drawings, details and specifications of the works proposed to be effected including plans of development, development intensity and site elevations on the demised premises" within six months. JLH was to carry out the alteration of and additions to the existing buildings (also referred to as "the said development works") and complete the works in fifteen months. In particular, the respondent relies upon that part of para (i) of cl 5, which then followed and which required JLH to: "… supply all materials and labour and everything of every kind respectively named, shown, described or alluded to or to reasonably be implied by the contract constituted by the Contract …" The submissions for the respondent do not identify that part in parenthesis which followed: "(which has been exhibited to the lessor and to the lessee at the time of execution hereof and have been initialled by the lessor and the lessee or its and their duly authorised agents for the purpose of identification) within the aforesaid time and in conformity with the contract …" The provision was more suitable to a strict tender process. It was not clear from the evidence whether the parties initialled any such document. For present purposes, I am prepared to assume that what was intended to be referred to were the documents identified at the commencement of the clause, the tender documents. I have earlier outlined the contents of the tender documents. JLH could not deny that what it says it would have been provided is different in a number of respects from what is referred to in the tender. I shall refer to the respondent's nomination of the more important of them shortly. What I am unable to discern, however, is a reason why the parties would intend to bind themselves, by the reference to the tender in the agreement for lease, to each feature of the tender documents with no room for change or variation. A review of the background to the agreement for lease and its terms lead me to the view that what JLH was obliged to undertake was development generally and substantially in accordance with the development plan accompanying it and with what had been outlined as the proposal in the tender. If the Council had thought a document responding to its invitation to tender was possible, given that the land to be utilised was not certain and it had really asked for concepts of developments, it could not have thought JLH's document answered that description. What was put forward was a development proposal, in somewhat high blown language. By the time the agreement for lease was executed, the parties had revised the layout and the uses. In this respect, cl 5(i), in its reference to the provision of further plans of development with the working drawings, details and specifications, clearly anticipated the range of uses might be further changed or limited, and the recital also contemplated this. The Council was concerned to restore its buildings, to put its lands to use and receive revenue. In this respect, it considered JLH's proposal most closely accorded with its policies and aims, which it had listed in its invitation to tender. The Council as a local authority would be used to dealing with developments at various stages of preparation. What is shown in the development plan accompanying the brochure was similar to a plan for mixed uses necessary in rezoning applications where a table of uses would not suffice and some general layout is required. In this case, the Council would also be taken to require a commitment to the development of the lands, in return for a lease of them. It had an interest in the viability of the project, as the figures presented to it in the tender disclose. In that connexion it may then be concerned with the project, as it was substantially proposed, proceeding. But one would think that at the stage of planning obvious from the tender documents it would assume changes were to be made by the developer. It is of some importance to this discussion that it later sought approval under s 19(4B) Local Government Act to permit it to deal with JLH's proposal as a complex development. That necessarily implies that it needed to be in a position to further negotiate changes and requirements after the tender process had finished, somewhat inconclusively, and that is what then occurred. In any event, it is not plain to me why the Council would need to ensure that each element of the proposal proceed as described, at least where a description was provided. It is convenient, at this point, to turn to the matters to which the respondent referred in its submissions as necessary to be included in terms of the tender documents. The facilities deleted by JLH in the proposal which it costed were the art gallery (which became the extended children's museum); the colonial tavern (which became an English 'pub'); a multi-screen birdlife theatre; provision for artisans, including a blacksmith; an opal mine exhibition, including a tram ride, working mine and elevator to the mine shaft; a children's musical playground; facilities for research into koala diseases and an Australian "experience" theatre. The omnimax theatre had been excluded early in discussions. Other features identified as subject to change were the air conditioning of some buildings, the type and number of retail outlets, the children's museum, the fauna park and noctarium (by reference to what was to be included) and the tram. And it was said that, overall, the quality of fitout was changed from the high standard promoted in the tender documents to a lower standard (or as JLH's quantity surveyor described it, varying between utilitarian and high standard). I leave the question of the condition relating to landscaping for present purposes. The evidence does not support a conclusion that the matters pointed to as deleted were critical in any commercial sense to the proposal. Whilst there were alterations to the fauna park, for example, a lesser number of exhibits were provided and it was reduced in size, it cannot be concluded that what was proposed was not a fauna park. Whether it was viable at this scale is another question, but one to which the evidence did to permit a definite conclusion. It raised some doubt. However, in my view, it has not been established that their change or deletion rendered the proposal, overall, something quite different from that initially proposed. It is not suggested that the deletions would reduce the project in value in any substantial sense, particularly when account is taken of the cost of replacement facility or the changes. Indeed the respondent at points during the hearing appeared to challenge whether JLH could in fact build and fitout within a figure of $30M, and not that which had been referred to in the tender documents ($20M). The tender documents are deficient with respect to matters such as the size, shape and layout of the buildings and other structures to be constructed, details which are usually found in bills of quantity and specifications or in working drawings which, it will be recalled, were to be supplied to the Council with further plans of development under cl 5 of the agreement for lease. The respondent submitted that there were areas of uncertainty, such as the size and shape of the aviary and the location of the conservatory. The evidence of its quantity surveyor confirms that there was a substantial area for the exercise of choice and judgment in what was to be designed and provided. Indeed that was, it seems to me, the principal difficulty facing him in undertaking his task. In my view, there can be no doubt that JLH was bound, by the agreement for lease and cl 5 of it, to develop the site and carry out construction works on it. The only question then is just what it was to build and provide as the total "package" making up the project. That decision was largely and necessarily, it seems to me, left to it. The reference in cl 5 to the plan of development and the tender documents is to be understood as providing a general description or outline of the project, although it may be inferred that the uses to be included could only be selected from the list of those for which the site was to be rezoned. Questions which arise with respect to agreements allowing a level of discretion to one party in undertaking performance are usually whether the contract is uncertain or whether the contract was complete, in the sense that something more needed to be agreed between the parties. The respondent, by its submissions, disavows the former and I did not understand it to argue that further agreement was necessary. It seems to me that if development plans and working drawings later received by the Council were so different from anything earlier described, it would be in a position to challenge JLH. Such a position does not arise here. The changes pointed to by the respondent do not so substantially alter the proposal, and the mix of uses contemplated, that it would have that effect. Contracts giving one party a wide choice are not unheard of. The general view is that, so long as the choice is not as to whether to perform the contract at all, it is not uncertain and the consideration is not "illusory". In Thorby v Goldberg (1964) 112 CLR 597, Menzies J said (613): "… I do not accept the distinction which counsel for the appellants here sought to draw. It is an objection to a contract if one party is left to choose whether he will perform it but it is an entirely different matter if there is an obligation to do a specified thing of a general description but it is left to the party who is to perform it to choose the particular thing that he will do in performance of it. An arrangement with an artist that he should for a specified fee paint a portrait of a particular person if the artist, upon seeing the proposed sitter, should decide to do so would be no contract to paint a portrait whereas an arrangement that the artist would for a specified fee paint a portrait of such person as he, the artist, should choose would be a contract." (See also Kitto J, 605; Gregory v MAB Pty Ltd & Anor, Bradshaw v MAB Pty Ltd & Anor [1989] 1 WAR 1 and Yaroomba Beach Development Company Pty Ltd v Coeur De Lion Investments Pty Ltd (1989) 18 NSWLR 398, 404.) Such an approach, in my view, was that most likely intended by JLH and the Council given the latter's areas of interest and concern. The approach contended for by the respondent could not, in any event, be given effect for the reason that the tender documents upon which it relies as a complete contract do not contain all of the terms and descriptions necessary. Whilst there may be some difficulties encountered where parties are left great latitude in contracts, it would be impossible to assess performance of the contract for which the respondent contends. That part of cl 5 which requires JLH to supply all materials and labour and "everything of every kind respectively named, shown, described or alluded to or to be reasonably implied" does not, in my view, convert the contract to one of the type for which the respondent contends. It is, in my view, an unnecessarily wordy attempt to ensure that there was no misunderstanding about JLH having sole responsibility for the carrying out of the work and the setting up of the project within the broad outline of its proposal. The Council was not to bear the cost of anything, unless expressly provided for in the agreement. As I have said, reference to the report and evidence of Mr Lowry confirms me in my view that the tender documents and plans of development were, in many respects, unclear as to what was intended with respect to construction and fitout (although, in the latter respect, there were various references to finishes or the quality of them). The extent of the detail necessary for the purpose of costing the whole proposal as an operation became apparent when the quantity surveyors gave evidence. The extent to which it allowed or required an exercise of judgment was made apparent from the evidence of Mr Lowry. A finding based upon Mr Lowry's evidence, that the project would have cost more than $60M if constructed and fitted out in accordance with the tender documents, is not possible, at the least for the reasons adverted to above. Other aspects of Mr Lowry's evidence were subject to attack by JLH. They included a submission that some facilities, no longer shown as required on the development plan forming part of the lease, were still included in his costings, and that some of them were substantial. When amending his report to reflect the changes brought about by the later plan, Mr Lowry seems to have allowed for an amalgam of uses upon a basis which was never satisfactorily explained. Some of the uses not established as necessary were theatres, music playground and facilities relating to the children's museum and a full-scale tram. These facilities alone, taken with a film product at $3.5M (the source of which is unclear) accounts for at least $9M. There are other items allowed for by Mr Lowry which would not have come within what could be said to have been contemplated by the parties. More generally it seemed to me that the very high total cost arrived at by Mr Lowry was the result of an approach which duplicated risks and contingencies. This was more pronounced when Mr Lowry had no detail at all as to the item for which an allowance had to be made. His approach in these situations was to consider all that might possibly be provided in this connexion and, where there was a choice of materials, to choose those of higher quality and consequently those more expensive, and then to make further allowances for contingencies and risks. An example of such an approach is provided by his discussion of the provision made for the item of landscaping. The parties have not made submissions for findings which would permit a resolution of all matters pertaining to Mr Lowry's approach, perhaps recognising the difficulty inherent in such a task. A review of his evidence does not reveal to me any possibility of making anything other than a general finding that I could not be satisfied, on the approach taken, that a development in accordance with what was referred to in the brochure would cost anything like $60M, even if one were able to glean from it, with sufficient precision, all that was intended to be provided. An early budget figure of $20M was referred to in the tender documents and brochures. This appears to have been based upon a very preliminary estimate of $11.17M by a quantity surveyor, on conceptual sketches, to which was added a margin by Mr Job and Mr Mantle. The next estimate carried out was by the proposed constructor, Concrete Constructions Ltd. At an early stage, Mr Job had suggested that that company be used and in early 1989 Mr Mantle and Mr Job, together with Mr Goodwin and Mr Littlewood of that company, met. Mr Littlewood had a number of site inspections and he was given detail of buildings and finishes sufficient for him to prepare a preliminary estimate. A contract based upon capping of costs was discussed. His preliminary estimate of cost received in April 1989 was just over $15M. A revised estimate was sought in November 1989 after a construction program was received from Concrete Constructions Ltd. The figure was now just under $17.5M. Mr Littlewood explained that by this time he had received further definition of the proposal and that he considered this estimate would be accurate within about 5 per cent of the final figure. (I add here, for later purposes, that of that figure, 8 per cent only was attributed to consultants' costs.) On both occasions Mr Littlewood prepared the estimates on the basis of a series of exclusions notified to Mr Mantle. These principally concerned items of fitout. Mr Mantle and Mr Job then attended to estimating those items excluded. The total reached by them was $7.4M. It is not apparent how that figure was arrived at. By reference to annotations made to the document at that time it appears to have been the view that the figure to be allowed for project development was $25M and, consistently, this figure was that advised to the Council and the Minister for Land Management. Mr Littlewood had himself continued to update and revise his estimates. These documents have been lost, but he has a recollection of them, which I accept. At the point when he last had regard to the matter, the costings had risen to between $21-22M. On 20 November 1989 Mr Mantle wrote to Concrete Constructions Ltd expressing an intention to be appoint them as Construction Manager for the project, subject to "our reaching agreement on schedules, fees, contract details etc …". It appears that Mr Mantle was also making some further allowances. The amount sought by way of finance when he saw a financier in March 1990 was$27.5M, of which $2.5M was to be used for the payment of interest in advance. I accept that both Mr Mantle and Concrete Constructions Ltd wanted the project to proceed and that Concrete Constructions Ltd were willing to undertake the construction of it pursuant to a guaranteed maximum price contract. These contracts were being utilised by Concrete Constructions Ltd during this period, which was one of downturn in the building industry. They involved a builder guaranteeing the price for which the works could be constructed and the acceptance of the risk of it costing more. This required a builder to keep a close eye on trade and material costs and revise them where necessary, usually in consultation with the client. The only risk for the client was with respect to variations it later required and which did not form part of the guaranteed contract price. If the cost was less in the end result the savings were to be shared between the builder and client in agreed proportions. The question is: what figure would Concrete Constructions Ltd have settled upon for the guaranteed price for the constructions? By November 1989 Mr Littlewood had only done a revised preliminary estimate. It was not a firm quotation. It is apparent from the few questions of Mr Littlewood in cross-examination that what he had costed required further detail, for example, what works would be necessary to the boat basin beyond forming it up and sealing it. No doubt there would have been the type of discussions Mr Job had with Mr Wrenn, the quantity surveyor. Mr Littlewood himself revised his figures to between $21-22M. He did not say in evidence whether this was to be done by reference to the same list of exclusions, but I take it that that is likely to have been the case. Mr Littlewood at all times was costing the project from the point of view of a builder and excluded furniture, fittings and equipment. His list excluded a number of other features. It is not necessary to list them here. Mr Job and Mr Mantle understood this and attended to a separate costing of features of fitout and equipment extending from software for the theatres, signage, interactive displays, air conditioning, kitchen fitout, furniture, crockery, antiques, sound system, conference room aids and partitions, features in the children's museum and in the opal mine, ferries, themed bus, fitout of central warehouse and fauna facility at Pullenvale, kitchen equipment and the fauna display. Some of those items they considered could, nevertheless, have been within the responsibility of the builder. Mr Job and Mr Mantle had discussions about the matter and there appears noted, on the revised preliminary estimate of Concrete Constructions Ltd of 10 November 1989, their conclusion as to what extra amounts would need to be allowed. They reworked the contingency and other allowances and arrived at a total of $27.5M. This figure represents the total project cost to which Mr Mantle said he was budgeting. It extends beyond the construction costs with which Concrete Constructions Ltd were concerned. It was not suggested to Mr Littlewood that Concrete Constructions Ltd would have undertaken a contract for the whole of the project, including fit-out and other excluded items for a guaranteed maximum price. In these circumstances it is necessary to cost the whole project. Mr Wrenn, in his calculations, applied his percentage increases for contingencies and other allowances to both construction and fitout costs, on the basis that Concrete Constructions Ltd would have undertaken all of it. I do not think, however, it can be inferred that it would have been inclined to do so under a fixed price regime. That leaves the question as to what allowances and contingencies would have been required on fitout costs as somewhat uncertain. It may be, of course, that the profit margins on individual supply and work would differ. In others, direct purchase would avoid it. But it does not seem to me that, either way, the total allowed for fitout and allowances on it would be substantially different. That is not to say that Concrete Constructions Ltd's estimates are of no utility. They are useful, at least as a guide to the net cost of what must have been a substantial part of construction costs ($12.4M) and of what was to be allowed for contingencies, preliminaries, design fees, management fees and the margin which Concrete Constructions Ltd would have applied to construction costs. Whilst not truly comparable in every respect, I note that Mr Wrenn's net construction costs appear to be in the order of $15M. The approach taken by the respondent was not to attempt to address Mr Wrenn's costings item by item. It eschewed such an approach in its submissions. Rather, it sought to have Mr Wrenn held to be unreliable and his evidence rejected on that account. Mr Wrenn is an experienced quantity surveyor. Whilst at times he appeared unwilling to admit error, and on some occasions I was unconvinced by his explanations, this does not affect my view of his evidence and his expertise overall. It would be a rare occasion when the acceptance or rejection of the evidence of a person having expertise in an area is to be determined on an assessment of credit or general impression. This is certainly not such a case. And here the quantity surveyor endured lengthy examinations, where confusion was evident. In so far as the matters raised by the respondent against Mr Wrenn are based upon an adverse view to be taken of his credibility, I reject them. Whilst a quantity surveyor's task is to estimate and make sufficient allowances, such that a high degree of accuracy is achieved in the end result, it is not to be expected that the exercise they undertake will be free of error and the need for adjustment. In a project like this, that is likely. Mr Wrenn conceded the need to amend his estimate, in part as a result of matters drawn to his attention in cross-examination. The items, having a total net cost of $1.18M, which he added to his previous estimate, relate to the aviary canopy, a pontoon, a tunnel, adjustments to the sealing off and treatment of the naval lake, the island bar, boat display, animal resting facility at Pullenvale, the food preparation facility at Milton and a boat ramp. As against them, however, he has identified three principal areas of deduction at $1.764M. One of those items, relating to an adjustment for an area of boardwalk to be constructed, is in dispute. Other aspects of Mr Wrenn's approach were singled out by the respondent as affecting its reliability and acceptance. It was pointed out that his percentage "on-costs", which are additions or allowances to net costs, were less than Concrete Constructions Ltd would have allowed. Mr Wrenn gave evidence that his allowance for "management fee, off site services, contingencies, preliminaries and design consultants" totalled just over 26 per cent. This was by way of comparison with Mr Lowry, whose figure was said to be 61 per cent. But the comparison necessary for present purposes is with Concrete Constructions Ltd, which allowed for "contingency, preliminaries, design fees, management fees and margin" (somewhat different categories from those used by Mr Wrenn, but I understand there to be no argument that both cover the field) at 35 per cent. Mr Littlewood of Concrete Constructions Ltd said however, that the design fee listed in November 1989 at 10 per cent would likely have reduced to 8 per cent. Mr Wrenn also contended that he had built into his figures another contingency, not listed in his schedule of comparisons. In his report, an item costed at $500,000 is allowed for "project and development contingency" and which is said to be an allowance against exclusions such as provision of cannons, removal of antiquities and any abnormal costs associated with the restoration of the naval stores. Mr Lowry was of the view that it was not a true contingency and, as I understand his evidence, would rely upon the description of the items as "exclusions", from which one might infer that they were nevertheless intended by the developer to be provided, but were not to be added to the builder's figures. That would not prevent them from being a true cost. It seems to me, however, that what was intended was an allowance for items and for works which were uncertain in their nature. In that sense, as Mr Wrenn says, they are true contingencies. Mr Wrenn's explanation of the likelihood that 5 per cent of Concrete Constructions Ltd's margin would have been bargained away is less persuasive. It was at least part of Concrete Constructions Ltd's intended profit, and was identified as such by Mr Littlewood. There is, I consider, no cogent evidence to permit one to conclude that this position would have been reached, particularly in the absence of questions to this effect of Mr Littlewood. The figures which were likely to have been applied to construction costs are those listed by Concrete Constructions Ltd, at 38 per cent, as compared with Mr Wrenn's 28.5 per cent, allowing for the contingencies mentioned above. However, after taking into account his schedule of other adjustments, the impact of the necessary allowance is not substantial. With respect to that schedule of adjustments, the respondent challenges the deletion of $1.5M for boardwalk construction. Mr Wrenn explained that Mr Job told him to allow the item as a contingency for the future and, on that basis, he said it is liable to be deducted. It was not entirely clear to me whether this extra 3,000 square metres of boardwalk is connected with the pathway which the Council was to construct in accordance with the invitation to tender and which was referred to in evidence by Mr Mantle earlier. In any event it seems clear enough that Mr Wrenn allowed for 3,000 square metres more than the plans of development required. Mr Lowry, in his supplementary report, does not appear to have disputed this. The only other substantive matter raised against Mr Wrenn in submissions concerned the question of provision for landscaping. Clause 7(ix) of the agreement for lease provided: "As proposed in the lessee's tender, the lessee will expend the budgeted sum of Three million dollars ($3,000,000.00) on landscaping of the said land and the adjoining Reserve land." The tender documents did not contain a landscaping plan. They did contain references to landscaping. An obvious matter of concern, as those documents disclose, was the heat generated by the afternoon sun. The site faces west and was bare of any substantial mature trees. In an early part of the tender, after referring to the site being hot, JLH said it allowed a very major budget for landscaping of the site and cliffs, including waterfalls. The other aspect of the tender documents seems to me to relate to the visual presentation and attractiveness of the site. It was said that a great deal of emphasis was being placed upon the landscape and waterscape of the resort and that "the result will be an outstanding transformation of the site in keeping with the natural river environment". These references do not, to my mind, convey that something other than what is usually understood as incorporated in landscaping was intended. If there be doubt about whether the smaller pools and lagoons were to be included as part of these features, these provisions tend to suggest that they were. When the issue arose during the proceedings, Mr Wrenn produced a list of what he said were items of landscaping. They totalled $3.3M. What it contains, in my view, exceeded in a number of respects what would generally be understood to fall within the description of landscaping. On that basis, I would exclude items such as service roads and structures, wharves, stages, river revetments, windshades, walkway, boardwalks, lighting to roads and paths, cliff lighting, flagpoles and theming and stabilisation of the cliffs. This would result in a reduction of approximately $800,000 from Mr Wrenn's total or, to put it another way, the terms of the agreement for lease would require that an extra sum be expended towards landscaping. Since the items included in the list had to be provided anyway, the overall costs of construction and fitout might be affected to that extent. It does not however seem to me that it takes the total cost beyond that for which finance was sought, the topic to which I now turn. Finance Mr Lonergan's assessment was based upon a figure of $29.14M, the figure required by JLH to enable it to commence operations as previously mentioned. His calculations are based upon an assumed investment of 20 per cent by JLH, or others associated with it, in the project and finance to the extent of 80 per cent, by way of loan over a 20 year period. Mr Lonergan approached this task on instructions that $5M might be made available to the project. The principal questions arising, in addition to whether a bank or other financial institution would likely have advanced the necessary monies, are what security would likely have been required then and whether a greater investment from JLH than 20 per cent would have also been required; and whether JLH has established that a bank would have permitted a loan over a 20 year period. JLH's approaches to banks and financiers had been for a loan for the whole of the construction and fitout costs. It was on that basis that Mr Caught had considered the matter. Mr Caught had been a manager in the Tricontinental Corporation, but from 1989 was an officer of the State Bank of Victoria in Queensland. Mr Mantle had approached him in March 1990 with the Horwarth & Horwarth feasibility study. The level of interest by Mr Caught in relation to JLH's proposal is disclosed by a letter written in July 1990. It does not amount to an approval of finance and no approval was obtained from any other bank or institution. Mr Caught was impressed by the proposal and by Horwarth & Horwarth's report. In the latter respect he was familiar with its author, Mr Wood, and clearly placed some reliance upon his opinion. He also knew a little of Mr Mantle, of his assets and his successful business operation. Whilst he no longer had his diary and notes to aid his recollection, he considers that he would have discussed the question of available security with Mr Mantle and I accept that this was likely to have been the case. The view he held of the project was such that he would have recommended approval of finance at $27.5M, and this was a view apparently shared by his general manager, whose task it would have been to take the proposal to the bank's credit committee for approval. Mr Caught was confident that the committee would have supported the management recommendation and I can see no reason to doubt that. The lack of application by JLH to the bank for formal approval, which would have involved it in considerable expense, in my view does not detract from the opinion formed by Mr Caught. Mr Cridland, who was then the State Manager for Corporate Lending with the Commonwealth Bank, gave evidence to similar effect. He had not however considered the proposal at the time and gave evidence of what his view would then have been, in part by reference to the bank's lending policies at the time. He explained that the bank's requirements generally depended upon an assessment of risk and he would have supported a recommendation for $30M to his credit committee based upon Horwarth & Horwarth's figures and what he knew of Mr Mantle, his business operations and his assets. I shall refer to the question of security shortly. Mr Freeman, a person experienced in business and finance, said that in his view the 20 per cent to be contributed to the project, upon which Mr Lonergan's figures were postulated, would not have been sufficient and that a bank would likely have considered that 30 or 35 per cent of the total costs would be necessary to bring the proposal within the range of acceptable risk. Clearly though, Mr Caught did not view the matter in that way and Mr Cridland did not agree that 35 per cent would be necessary, and when he spoke of 30 per cent as usual with respect to commercial loans, he made plain that whatever was required depended upon an assessment of the particular proposal. It was common ground that accountants, and in particular the larger firms, would likely have been asked to advise banks and financial institutions with respect to large scale borrowings and they would examine a proposal such as this. Mr Lonergan, a partner in one of the larger firms, said that this would commonly involve discussions and advice regarding the ratio of debt to equity. He was of the view that a bank would have accepted 20 per cent on a proposal such as this. Mr Lonergan explained that the matter of most importance to a bank would have been the cash flow to be generated by the proposal, even though it is generally accepted that projections over a long period of time are not necessarily reliable. This was the approach of Mr Cridland and it seems also to have been that of Mr Caught. Mr Cridland referred to the bank's requirement which had regard to cash flow and was that it exceeded the interest to be paid by a factor in the range of 1.5 to 2 times. The Horwarth & Horwarth projection would have satisfied that requirement, even if one had regard to the lower range of income projected. Whilst the respondent submitted that the Horwarth & Horwarth projections would not have withstood the examination of a firm of accountants at the time, it needs to be recalled that for present purposes the issue is not whether Horwarth & Horwarth were correct but whether their report was likely to have proved influential with a bank. So far as an accountant's evaluation of it would be concerned, its rejection would depend upon its base figures and the methodology employed. Absent an accountant having available its own experts, I am unable to conclude that it would have resulted in rejection, although I accept that an independent accountant may have been more conservative in an approach to the figures. That would suggest that regard ought be had to the lower end of the scale. Even so, on Mr Lonergan's evidence, a bank applying the policy requiring between one and two times the amount of interest by way of income, could have loaned $30M or more. The respondent then submits that the security likely to have been required by the banks, in addition to that which would be taken over the leasehold land and the structures and equipment upon it, could not have been provided by JLH. In this respect I observe Mr Lonergan considered that the value to a bank, upon the execution of a lease in a binding form, would have been $15M. I take this to refer to the land as rezoned. The evidence of Mr Caught however discloses, in my view, that whilst he would have taken whatever security was available, there was nothing to suggest that what Mr Mantle had available was insufficient or that he regarded the level of further security as a critical factor. He said he would have taken security over the leasehold and may have taken further or collateral security. He later said that he would have sought some security or "some other comfort". It was not suggested to him that what Mr Mantle may have had available, even on the respondent's case, would have been insufficient. Mr Cridland was of the opinion that the security over the site together with security over the Jimmy's on the Mall Pty Ltd and its undertakings, a personal guarantee from Mr Mantle and a registered first mortgage on the land at Pullenvale owned by him, would be sufficient. That is what he would have sought. That company owns restaurants in the city and is Mr Mantle's principal source of income. The respondent then points to the Pullenvale land as being unavailable for this purpose, as it was required to be available for a eucalyptus plantation for the fauna park. This is further discussed under the topic of fauna park approvals, later in these reasons. What was referred to as the "Pullenvale land" I infer from earlier evidence to have been much larger than was necessary for the plantation. The whole of the land had been the subject of an earlier offer to purchase of between $3-4M. Again, it was not suggested to either Mr Cridland or Mr Caught that the unavailability of the land as security would have changed their view as to the financing the proposal and Mr Cridland did not say that each of the assets he pointed to would be required as a condition of approval. The respondent also pointed to the operation of Jimmy's on the Mall Pty Ltd as having no value for security purposes. Clearly the income it then generated, about $1M per annum, would have been important to a bank in connexion with the payment of interest, if at any time the proposed development's income did not prove to be sufficient. This would be so even on an after tax basis. The Commonwealth Bank held securities over all the undertakings of the company and any to another financier of the project would have to rank second. But Jimmy's on the Mall Pty Ltd was regarded as a strong commercial undertaking and there is nothing to suggest to me that a bank would not consider the second ranking security of value. Again, these matters were not tested with the witnesses. Mr Mantle's father-in-law had also expressed interest in the project. He was a man of some means and he could have invested in it. Just how much money Dr Cheng had available was somewhat unclear, although it might have been as much as $6M. The amount he was likely to invest is however, in my view, entirely speculative. I do not consider that he had reached any decision about it at the time, and he is unable to do so now. I am not satisfied that he would have invested a substantial proportion of his assets in the project, although I accept that he may have put something towards it. There is, in my view, nothing substantial shown which would require me to discount the evidence of the bankers that recommendations of approval would have been given. It has not been shown that particular security, and that which could not have been given, was required or that their opinions were dependent upon the availability of all property as security. The evidence is not clear however, as to whether or not Mr Mantle had available $5M from his own assets or from Dr Cheng. It is clear that he had the ability to borrow some money from Jimmy's on the Mall Pty Ltd, that some money may have come from Dr Cheng and that he had perhaps something of the Pullenvale land remaining and he also had a valuable house property. However, because Mr Lonergan has calculated on the basis of contribution of $5M, that does not mean that finance would not have been made available for the required amount. Mr Caught was prepared to recommend approval at $27.5M and Mr Cridland said he would have considered financing at 100 per cent, although the matter was not taken further with him. But Mr Lonergan's evidence in my view establishes that it was within banking guidelines at the time to have advanced up to $30M on the basis of the lower range of the Horwarth & Horwarth figures. The respondent also intended that a financier would have been concerned that it was advancing a substantial sum with respect to only leasehold land and which had a power reserved to the Governor-in-Council to cancel the lease. In addition it was said that a bank would have been concerned about the change of government and its apparent approach. The latter point confuses the prospect of granting a lease with a lease in fact, which is what a financier would be concerned with. The evidence does not support the conclusion that the fact that it was Crown leasehold land and the lease was given for 30 years under the Land Act, even with the Governor-in-Council's powers, would have made a difference to a financier. The prospect that the reserves (and their leases) be cancelled Section 334(4) Land Act provides that the Governor-in-Council (the Governor acting on the advice of the Executive Council) Acts Interpretation Act 1954 s 36,may rescind or vary the Order in Council creating a reserve: "(4) the Governor in Council may from time to time by Order in Council, rescind in whole or in part or amend, alter, vary or otherwise modify an Order in Council reserving and setting apart any Crown land for any public purpose or any prior Order in Council made under this subsection." The effect on a lease is dealt with in s 349: "349. Effect of termination of trust upon lease. When an Order in Council reserving and setting apart any land is rescinded any lease to which this Division applies of such land or any part thereof shall by virtue of the rescission of such Order in Council be terminated and the lessee shall forthwith vacate the land and have no right or claim to compensation whatsoever." The respondent's argument, again raised by late amendment, proceeds on the footing that there be found some obligation on the Minister to have endorsed the lease. I have not found such an obligation to have arisen. If that had been the case the argument would deny efficacy to the resultant lease, because of this power which some witnesses, including the then Premier Mr Goss, said would have been utilised. JLH submitted that for the exercise of such a power not to be liable to be quashed as invalid, it must be seen to have been undertaken in good faith and not for an ulterior purpose (see R v Toohey; ex parte Northern Land Council (1980) 151 CLR 170). The respondent however, points to matters truly affecting the public interest which, it will be recalled, was one specific matter regarded by s 343 as affecting the grant or otherwise of a lease. The history of the matter discloses that issues such as the intensity of the use and the need for greater public use of reserve and riverfront lands were seriously canvassed in 1990 and 1991, both in connexion with JLH's proposal and for the alternative boardwalk proposal. This would, in my view, have provided a proper basis for the exercise of the power to cancel the reserves although, as I have found, this point would not have been reached. Moreover, if it had been necessary, I am satisfied that there was sufficient determination on the part of the government to have carried it into effect. In the event the power in question was exercised, a real question may have arisen as to whether any compensation would be denied, by reason of the provisions of s 349. It is difficult to accept that that could be so. The matter was not however addressed. Whether necessary approvals for the fauna park would have been granted The respondent points to three types of approval required under the Fauna Conservation Act 1974-1989 (Qld) (since repealed) for the conduct of a fauna park: a declaration that the institution is approved, as one for the keeping of live animals, (this is made by the Governor-in-Council on the recommendation of the Minister, who in turn has received a report from the Director of National Parks and Wildlife on the application) (s 58B); a permit to keep fauna (which is granted by the Director in the case of some species and the Minister with respect to others) (s 53); and a fauna dealer's licence (which may be, granted by the Director or an officer authorised by him) (s 56). The correspondence between the parties refers to two such permits being required, but nothing turns on this. If there had been a preparedness to allow the fauna park to proceed, in my view, whatever permits were necessary would have been provided. The willingness or otherwise of the Director and the Minister to approve the operation can best be discerned from what was written on the subject at the time. Whilst I do not doubt the attempts by the witnesses in question to recall events as best they could, their evidence was not consistent with what had been said in communications. I include amongst these witnesses Mr Comben, the Minister for the Environment. Whilst I considered Mr Comben to be a forthright witness and an opponent of the proposal on a number of grounds, I am unable to place much reliance on his recollection as to the extent to which problems relating to JLH's proposed fauna park were seen as insoluble. I was not persuaded that Mr Comben could now recall, with accuracy, what was proposed to be done about the matter in late 1990, when it appears to have been last discussed. Mr Comben's recollection may also be affected, in connexion with these events, by the views he formed in 1991, when Cabinet determined to halt the proposal. The respondent relies substantially upon Mr Comben's evidence as concluding the matter against JLH. But it seems to me that neither Mr Comben nor his officers were so implacably opposed to the proposal in 1989 and 1990, as they now recall. It may be as Mr Comben had remarked on earlier occasions, that he was truly concerned about the suitability of the site and the use of the land. However, it seems that both he and his officers regarded the "approval in principle" conveyed to Mr Mantle in late November 1989 as having largely foreclosed the matter and that they were more or less obliged to give approval, so long as some matters could be resolved. In the end there did not seem to be anything the departmental officers considered were unsatisfied, or which could not have been resolved. It was on this basis that JLH's proposal was exempted, by the Minister, from a moratorium which he imposed on permits relating to fauna parks when he took office. JLH employed consultants, Mr Spittall and Mr Bullen, in about April 1989. Both had considerable experience in the keeping of fauna and Mr Spittall, in particular, appears to have been held in high regard by the officers assessing the application. His experience extended over a period of about 27 years, although he concluded he had not been involved in setting up a fauna park before. He had particular expertise with respect to aviaries. Mr Spittall wrote two reports. The first was largely conceptual. The second, in October 1989, provided the basis for Mr Mantle seeking "approval in principle", which he did by letter to Mr Connolly, Senior Wildlife Ranger and Regional Director (Southern). Discussions then took place. On 28 November 1989 the Regional Director, Mr Vowles, wrote to Mr Mantle advising "that this proposal has been approved to proceed by the Director, National Parks and Wildlife" and that Mr Connolly and another officer would liaise with him. This procedure, involving the giving of an approval "in principle", was not one provided for under the Fauna Conservation Act, but was one which had been utilised by the department for some years. Following the receipt of that approval, details of the proposal and the plans for construction would be agreed with the department. It was only when the facilities were built that a formal application was lodged for approval. The necessary permits would then issue. The process undertaken by JLH did not proceed to the point where an application was lodged, but it contends all matters had been agreed and that step would have been a mere formality. In Mr Spittall's experience, once an approval in principle was given, the matter was always resolved to the parties' satisfaction. The nature of the process may explain the attitude of the department and the Minister to the approval which had been conveyed to JLH before the new government was elected. Another matter which appears to have been influential in that approach was the existence of the earlier Cabinet approval for the project. Mr Vowles had commented in a report to the Assistant Director prior to approval having been given, that it seemed to be a foregone conclusion and regretted that the matter had proceeded to this stage without their involvement. He commented that the site was too small "for a significant fauna park". I do not take this however to convey that the proposal was otherwise undesirable or impracticable. Prior to the letter advising of the approval in principle being forwarded, Mr Connolly had given consideration to the proposal outlined in Mr Spittall's report and the site plan. He reported to Mr Vowles that a more realistic number of koalas for the fauna park would be sixteen. He made comments about the difficulties of some adult animals being available, that the noctarium would be costly and referred to the success or otherwise of aviaries. In other respects he indicated where he needed further detail. However the report contains no objection to the proposal nor any suggestion that what is proposed could not be achieved. He did stress the importance of landscaping and that Mr Spittall's company would have a major part to play with respect to the proposal. The evidence from Mr Spittall, Mr Bullen and Mr Mantle was to the effect that these consultants were to continue on a long term basis. I can see no reason why that would not have been intended since it was obviously necessary. By January 1990 Mr Spittall and Mr Bullen had determined the layout for the fauna park and Mr Job had reduced this to a detailed plan, which had itself been the subject of some refinement. It showed where particular species were to be housed on site and, in general terms, the provision of walkways, lakes and landscaping together with the wildlife theatre, kitchen storage and spelling yards and other facilities. Koalas, which had been and remained the focus of the discussions with the department and the wildlife officers, were to have separate breeding areas and an area where they would be available for photography. There were a range of macropods such as kangaroos, wallabies, wombats and wallaroos. Various birds were to be provided. Other species included lizards, goannas, tortoises and emus. The noctarium appears no longer to have been proposed, but the bird display or aviary remained. In the early discussions with Mr Connolly, Mr Spittall says that he discerned no objection. He explained that the Department of Environment and Heritage could be expected to be opposed to zoos and fauna parks but that he had found that once an application was made, the matter was worked through to a satisfactory conclusion. By early 1990 regulations required the production of food supply for koalas in fauna reserves. This arose from concerns as to the extent of demands upon existing eucalypt stands and plantations for the provision of that food. On 29 June 1990 the Acting Director-General, Mr Bonney, wrote to the Department of Lands with respect to the proposal, referring to this. On 12 July 1990 he wrote again explaining that Mr Mantle had an approval in principle and that issuance of a permit was really a fait accompli. The problems foreseen by the department, he said, related principally to the koalas and this required ministerial approval. He went on to say that the nature of the site was, overall, unsuitable for a fauna display and that the issuance of a permit could be "a controversial matter". This is, however, in the context of the moratorium not applying to JLH's proposal. Mr Vowles also appears to have accepted that the permits would issue. He expressed that view in a memorandum to the director on 24 August 1990 although he said that there were "still some basic issues to be addressed" relating to the well-being of the fauna and food supply. A concern at that time also was the fauna display proposed on the Expo site and he asked for direction as to that matter. Further meetings were held between Mr Spittall and the department in August 1990. Again, he said he discerned no likelihood of rejection. On 29 August 1990 briefing notes for the Minister were prepared. They detailed the proposal for the displays. The Minister was advised again of the approval in principle granted, which had been the reason for exclusion of the proposal from the moratorium and that the matter was regarded as a foregone conclusion. The issues arising with respect to the proposal were said to be adequate and stable food supplies, koala numbers and heat stress and the Minister was informed that advice was being obtained as to these matters. The recommendation by the Acting Director-General was that JLH be required to comply with the guidelines for establishment of a fauna display and those for keeping koalas in captivity and that it be required to agree to establish sufficient eucalypt trees to meet the needs of the proposed colony. The notes concluded "before proceeding with the issue of any licence it is recommended that the company finalise details regarding the management of any displays and their standards with the Regional Director, Southern". On 5 September 1990 Mr Vowles, that Regional Director, wrote to Mr Mantle advising that the issues requiring further resolution were details of design and layout of enclosures; the provision of food supply and the legal requirement to maintain a plantation; the source of fauna and testing of koalas for disease; the need for experienced staff; the need for koalas to be supplied with leaf cut on a daily basis; that there be adequate veterinary advice; and that there be off-display fauna holding facilities. He pointed out that both a permit to keep and a fauna dealer's licence were required. So far as species other than koalas were indicated, he noted that they would require approval on a "case by case" basis. He advised that koalas were not to be permitted to be touched. The letter from Mr Vowles conveys approval of the proposal on conditions, whilst recognising that the details of design and layout had not been resolved. There seems to me to be no reason to expect that Mr Spittall, who well knew the department's requirements, could not have done so. And on 6 September 1990, the Acting Director-General wrote to the Director-General of the Lands Department advising: "I've been advised that subject to the satisfactory resolution of issues in relation to the supply (and) husbandry of fauna, the Director of National Parks and Wildlife is prepared to issue the necessary permit and licence upon application to enable a fauna display to be established in the vicinity of the Old Naval Stores at Kangaroo Point. This advice is given on the understanding that Cabinet is prepared to facilitate the granting of a lease to J.L. Holdings for this and other purposes." Mr Comben advised the Minister for Land Management, Mr Eaton, by letter dated 14 September 1990 in the same terms. The issues to be resolved were, I consider, principally those relating to the food source for koalas and some aspects of their management and display. The cabinet submission by Mr Eaton contained these advices to other members of Cabinet and there is nothing to suggest that Mr Comben then suggested that they were inaccurate. In relation to the management of the koala colony, the Regional Director Southern wrote to Mr Mantle on 28 September 1990 suggesting that he may wish to discuss population management. The letter concluded by reference to his expectation of receiving design and layout drawings together with details of how JLH was to be bound to provide the food source. At the Cabinet meeting of October 1990 the decision to limit the proposal may have caused Mr Comben and the other Ministers to consider that the prospect of its proceeding was somewhat uncertain. Certainly, after that time Mr Mantle was taken up with further negotiations, as I have previously outlined. Prior to the Cabinet meeting, Mr Comben had written a letter to the co-ordinator of the Queensland Conservation Council advising that detailed consideration had been given to JLH's proposed fauna display over the past ten months, indicating briefly it would include a walk through aviary, koalas, macropods, reptiles and waterbirds and that this aspect of the development of the site had been given approval in November 1989 provided that it proceeded under the supervision of officers. He also advised that the proposal had been excluded from the moratorium. Notwithstanding these matters, however, he said that there were some concerns as to a stable food supply for koalas; the number of koalas; the possibility of heat stress and the duplication of koala displays in the area. A final decision was awaited. It seems to me that prior to the October 1990 Cabinet meeting the only matters left for JLH to attend to were details of the animal enclosures, which Mr Spittall would have provided, and a Deed of Agreement binding JLH to provide the plantation. So far as the plantation was concerned Mr Bullen was satisfied as to the suitability of the site. Whilst what was proposed would not have been the sole source of supply, there is nothing to suggest that that was required by the department. It was adequate to provide food for ten or more koalas, in Mr Bullen's view. In September 1990 Mr Mantle wrote to the department saying that the Council had agreed to rezone the land to permit a plantation and holding facility and that he was making arrangements for one of their officers to look at the land. The land, some 17 hectares, was in fact rezoned for those purposes on 14 March 1991. Apart from issues relating to the plantation, it would seem that at least prior to the October 1990 meeting, permits would likely have issued. The remaining question is whether or not Mr Comben would have taken a different approach in 1991 had the matter come before him after a lease had been endorsed. Again, this assumes some obligation to endorse by the Minister for Land Management contrary to his own wishes to arrive at a definite view. I do not recall it being suggested that Mr Comben would act contrary to the advices of his officers, if they advised that all requirements had been met, and of course a decision to the opposite effect would have been subject to review. There had been some misgivings expressed, but not such as to suggest disapproval must follow. What is not clear is whether the officers' views would have altered given a new Cabinet decision opposing the proposal and, in effect, revoking the earlier decision supporting it. It will be recalled that the fact of Cabinet approval had been regarded as important in connexion with the issue of permits. Then again, the matter had proceeded well past that point and the only issue which had not been subject to express or tacit approval by the department was the plantation. Although the prospect of refusal at the last moment, could not be regarded as strong, it was a possibility, at least for the reason that a sustainable decision could have been made that there was not sufficient self-sufficiency in food supply. Whether approvals for ferry terminals and wharf facilities would have been provided. The first issue in this connexion is as to whether JLH would have been in a position to build the necessary ferry pontoons and wharf facilities at the site. For this purpose it needed to lease land below the high water mark from the port authority. On 12 October 1989 the port authority advised that it proposed to issue a lease subject to the approval of its board, of the LAC and to JLH obtaining title to the reserve lands. This only concerned a 21 year lease but it later advised, on 1 November 1989, that it would be prepared to grant one for 30 years. This proposal was to be submitted to the board at its next meeting in late November 1989. On 8 November 1989 JLH applied to the port authority for a lease. It advised, by letter 28 November 1989, that "It is confirmed that the Board of the Authority has approved an offer of a lease over the Crown Land below High Water in the Brisbane River, adjacent to the proposed Naval Stores Project at Kangaroo Point." It went on to advise that the exact area of the land the subject of the lease offer awaited a detailed plan with a final lease boundaries which would be based on "your essential requirements". The conditions of the lease were set out. The offer was said to be open to 30 March 1990, but nothing was said to arise from this. That which is pointed to as providing the difficulty for JLH is the first, namely that the offer was "subject to the area being first vested in the authority". It is clear that the authority did not consider there would be a difficulty, as it requested the survey plan "to enable lease documentation to proceed". The inference to be drawn from the material is that a lease would be granted. I do not accept that the port authority would have made these statements had it not been in a position to do so. The question then is whether the respondent has a sufficient basis for coming to a conclusion to the contrary. In this respect it submits that even if the port authority had secured title to the land in question, it had no ability to transfer the land to JLH without the permission of the Governor-in-Council: s 79 Harbour Act, 1955 which requires the permission of the Governor-in-Council for the transfer of any land to JLH. The alternative procedure, special lease to the port authority, also required approval of the Governor-in-Council on the recommendation of the Minister administering the Queensland Marine Acts 1958-1963 (Qld) and the Minister for Land Management. The submissions for the respondent rested upon Cabinet being antithetical to the whole proposal and the relevant Ministers, for that reason, being inclined to refuse any request or recommendation on that basis. No evidence was led to that effect. Moreover, it was never made plain to me on what proper basis the necessary permission under s 79 Harbour Act could have been refused. That is not to say there could not be some, but they were not adverted to, save for the suggestion that it would have hindered the boardwalk proposal. These alternative submissions, as to contingencies, proceed however on an assumed basis that a lease became effective. If it had, the boardwalk could not have proceeded. I am not satisfied that approvals would have been withheld, although I suppose one would need to allow something for the contingency that some valid reason may have been pointed to. I turn then to consider whether ferry terminals could have been approved and constructed. Issues generally concerning the operation of ferry services largely disappeared during the hearing. After some time it appeared that the experts differed only with respect to the speed of travel of ferries, the distance they would travel and some individual components of operating costs. There were to be two ferry terminals, one near the end of Edward Street in the City and the other at the Riverside complex. JLH could not use the existing council ferry terminal at Edward Street. The experts were agreed that JLH's proposal required the exclusive use of a ferry terminal. Mr McGuckin of the port authority said that the provision of another terminal, upstream from the existing Edward Street terminal, would require the relocation of two moorings. His evidence was to the effect that the port authority would need some convincing about this, in particular because it would lose revenue. This was however only some $1000 per annum for each mooring. It was apparent that the prospect of approval depended much upon the attitude and consent of the adjoining land owner, which in this case was the Council as trustee of the Botanical Gardens. One would have thought that the prospect of the Council granting access through its lands to a terminal to enable a development it had approved on its other site would be high, unless there was some legal or practical impediment. The most likely position for the downstream terminal was at Waterfront Place. The likelihood that a ferry terminal could have been provided here depended upon the use of two pontoons which were then utilised as berths for yachts. The commercial property manager of the owner of the pontoons suggested that some arrangement would have resulted, as the marina was not fully utilised and it would, of course, have been interested in the best return from its property. The question really seems to be what price would have to be paid by JLH were it obvious that the pontoon was essential to its proposal. Section 86 of the Harbours Act required an approval for the ferry terminals, but Mr McGuckin of the port authority, which made the necessary recommendation for approval, said that the port authority supported the development. The approving authority was not, as was suggested at one point, the Minister or the Governor-in-Council. In connexion with these approvals, at the relevant time, it was a senior officer in the Department of Environment and Heritage. There is nothing to suggest that a recommendation would have been refused. Whether liquor licences would have been granted JLH initially applied for a "tourist park" licence but subsequently received legal advice that a "public facilities" licence ought to be applied for. The reasons for that are irrelevant to my considerations. JLH was also advised to engage an acoustics engineer and a town planner, both of whom produced reports which were submitted to the Licensing Commission. There are two issues which arise in connexion with approvals of a liquor licence. The first is as to whether a public facilities licence would have issued in any event; and the second is as to whether the hours of operation would have been granted to 3am in the first place or whether it might later have been extended to that time. The regime under the relevant legislation concerning liquor licences was as follows: a liquor licence is obtained on the recommendation of the Licensing Commission to the responsible Minister, who in turn makes a recommendation to the Governor-in-Council. If approval is given the Licensing Court itself then issues the licence. The Court and the Commission are responsible for the administration of it. The respondent puts its contentions on two bases. In the first place it submits that because there were matters outstanding before the Commission, and which were never finalised, one could not say that the Commission would make the recommendation necessary. This topic is fairly readily disposed of in favour of JLH. The secondbasis for discounting the prospect of an approval issuing was said to be because of the likelihood that Cabinet, being against the proposal, would not have given the necessary approval. Once again, I take it that this suggests that the relevant Minister, who did not give evidence, would have given effect to a Cabinet decision without consideration of questions proper to be addressed with respect to a licence. I can see no basis for concluding that would have occurred, or that that situation would have prevailed. JLH applied for the licence in question on 31 October 1989. On 15 December 1989 the Registrar of the Licensing Court wrote to JLH advising that the Commission had determined to recommend to the Minister that the licence be approved. There were two matters outstanding and which were said to require attention. The first was the provision of detailed layout plans. The second related to information about the company JLH. JLH responded to that enquiry by a letter of 10 January 1990. Ms Maconachie said that the officer responsible for examination of the plan had still required further detail. The purpose of this however was to enable officers of the Commission to negotiate with JLH as to the amount to be paid for the licence, and to determine the appropriate hours of operation. A closing time of midnight had been provisionally noted. There is nothing to suggest that these matters would not have been satisfactorily concluded. As to whether the question of an extended licence to 3 am, Mr McKnoulty, who was then the Chairman of the Commission, gave evidence that it was likely, in the first instance, to approve such a request and then to assess how it was managed. JLH's town planner also thought that it would have been obtained. The only evidence which weighed against this prospect was from persons associated with the nearby Mt Olivett Hospital, who were concerned as to whether noise nuisance would result. There was, however, nothing to indicate whether those concerns were well based and indeed it would be difficult, I imagine, to assess noise impacts until the buildings were constructed or at least properly designed. Ms Maconachie said that if there was a difficulty, soundproofing would have been required. It must, nevertheless, be said that there remained a prospect that a licence for the extended hours might not have continued. This would impact, to some uncertain extent, on the income of the tavern or other nightclub facility. Whether compliance with the requirement that an alternative boat ramp be provided, was possible The letter from the LAC to the Council of 26 October 1989 identified, as conditions of approval of the lease of the reserve lands, those identified in the Council's letter of 3 October 1989. That letter had included, relevantly, a requirement that a boat ramp be provided for public use, given that that available at the site was to be lost to JLH's proposal. The Council and JLH dealt with this condition by separate agreement, dated 12 December 1989. Preamble (b) provides: "(b) The parties acknowledge that a condition of the approval for the Lease of the lands forming Appendix B to the Agreement for Lease is the provision a substitute boat ramp facilities to those presently situated on part of the land agreed to be leased with such facilities to be located in Council parkland within the central city area; " The terms of the agreement were as follows: "1. Subject to the Lessor following investigation advising the Lessee of a suitable location for the establishment of boat launching facilities in Council parkland in the central city area the Lessee will forthwith prepare the necessary plans, specifications and drawing as the case may be for the provision of such boat launching facilities and following preparation submit same to the responsible Council Department for its approval. 2. Following approval by the Manager of the responsible Department or Departments the Lessee will within the time provided in the Council approval to the aforesaid plans, specifications and drawings as the case may be, undertake at its cost all necessary works required to construct the alternative boat launching facilities and complete same to the satisfaction of the Manger (sic) of the responsible Department or Departments of the Lessor. Should the Lessee require the Lessor to carry out all or any of the necessary works it undertakes to meet the Lessor's cost thereof, including usual charges for supervision and administration. 3. Should the State Government of Queensland in providing its approval to the Memorandum of Agreement for Lease of the Crown Land the subject of Appendix B to the Agreement for Lease impose conditions attaching to the provision of alternative boat launching facilities then the Lessee will comply in full to the satisfaction of the Minister for Land Management with those conditions." Although dealt with by way of supplementary agreement, the obligation was clearly one connected with the agreement for lease. Both the preamble and the terms of the agreement proceed upon the assumption that a suitable location would be found, and that the Council would identify it. The evidence was, however, that that may have proved to be a task of some difficulty. Mr Bendall of the port authority whose task it was, for a time, to find the land in question, did not locate any. When the esplanade project was undertaken the boat ramp was lost in any event, but no alternative was provided. The Department of Administrative Services Department paid the Council some monies, on the basis that it would find a suitable location and provide the facilities itself. This does not, to my mind, render conclusive the prospect that there were no suitable lands for the purpose. To the contrary, it appears to assume that the Council might have uncovered them if it had determined to do so. In any event, the respondent's argument requires the obligation to be seen as one upon which the other rights flowing from the agreement for lease were conditioned. Neither the terms of that agreement nor the supplementary agreement are to the effect that the alternative facilities were to be ascertained first, and it is difficult to see that a process which, in the parties' contemplation, may have taken some time after the lease was finalised and after steps had been taken towards development, was to bring the leases to an end. Non-fulfilment of the condition might have put the parties in a position where some other obligation was to be assumed in its place, or compensation provided. I do not however consider that the whole of the agreement for lease and whatever benefits it provided, to have been contingent upon fulfilment of this obligation. Whether the fauna park and aviary were viable I take the respondent in these submissions to contend that, in the situation where the development had been constructed, the fauna park and aviary would have failed at some point. The difficulties experienced, historically, by these attractions in Australia in achieving high profitability have been the subject of earlier reference in these reasons. That tended in my view to support a conclusion that, even with the other facilities, the development was unlikely to make sufficient to enable it to continue as profitable. This argument goes further. Its starting point is the proposition, which I do not think can be doubted, that zoos and fauna displays are difficult and risky ventures. JLH's own witness, Mr Spittall, qualified his opinion that such was the case only by reference to ventures being "handled properly". At the least that underscores the need for sufficient levels of staffing and for experienced managers. There are a number of factors which would militate, to some extent, against the success of JLH's proposed venture into this area. On the one hand it was likely to have had the assistance of Mr Spittall and Mr Bullen as consultants, at least so long as profits permitted. That is itself a question. There is not, however, a large body of persons having this level of experience to call upon in the event that either of those gentlemen withdrew their services at any point. Most of the other problems centred upon the koalas. There were potential problems with respect to the availability of food, although the respondent's case did not establish the complete unsustainability of the Pullenvale land. Even so, the amount that could be produced was quite limited and considerable numbers of staff would have been necessary to forage for browsefarther afield. The small size of the site meant that animals would need to be rotated and rested at a spelling facility. In turn this required the use of transport which has its own problems for wildlife. Dr Carrick was of the view that the extremes of temperature on the site would have been difficult, if not impossible to overcome, with severe consequences for the animals. This had been a concern of the Minister, Mr Comben, but was not, apparently, one shared by his departmental officers, nor by Mr Spittall. In the result, it seemed to me no such conclusion could be reached, at least in absence of expert evidence as to climate, its effects and the limitations upon measures such as landscaping to mitigate its effects. It is possible to conclude that there was some inherent risk in such a venture, and that to reduce it, it was necessary that a body of experienced staff be available at all times. This does not sit comfortably with theexercise undertaken by the management consultants, which assumed the need to reduce costs, including salaries. The impact, once again, is then on its profitability. Conclusions on the further contingencies I have taken account of some factors operating as constraints upon the projects profitability. The respondent has not established that finance was, in any significant sense, unlikely and it has not been shown that the construction and fit-out budget would have been substantially exceeded. I have not accepted that many necessary permits and licences would have been refused, on account of Cabinet's expressed disapproval of the project, in a situation where a lease had to be given. I am however satisfied that the power to cancel the reserves would have been exercised although, in my view, this point would never realistically be reached. In this event it must be concluded that there would only be a faint prospect that JLH would have had the opportunity to take up the lease. I would put it at no more than 5 per cent. The only other factors established as diminishing JLH's prospects, the continuation of a 3 am licence and maintenance of the fauna park, can be seen to further affect its profitability and do not fall to be determined in connexion with whether it would have been able to avail itself of the opportunity which it says it was denied. ALTERNATIVE CLAIM - wasted expenditure and liabilities incurred By this approach JLH sought to recover monies paid, or obligations incurred, but which it says have been rendered futile or unnecessary by the respondent's breach of agreement. The claim, so far as it relates to monies actually paid, and with the addition of two amounts omitted from the Schedule to the statement of claim, extends to $543,595. Much of this was paid for, and remains owing to, the company Jimmy's on the Mall Pty Ltd. In addition, JLH claims to owe that company a considerable sum for the services of its director, Mr Mantle, its staff and facilities. This was the subject of an alleged agreement between the two entities, the subject of a letter dated 6 September 1988. I will not set it out in full. It provided for a fee for services to be earned by Jimmy's on the Mall Pty Ltd at the end of the engagement, at the rate of $250 per hour for its director and $150 per hour for support staff and recoupment of outlays. It was in the nature of a success fee. In each case the amount to be finally paid was subject to a multiplier of respectively, five times, four times and five times, but a ceiling on the total amount payable was set at $9M. This followed advices which Mr Mantle had obtained much earlier, in connexion with a possible float of Jimmy's on the Mall Pty Ltd, which involved the creation of a large realisable debt. Taking into account the multiplier, the total amount claimed for the amounts already expended and this liability was some $11.4M. In the form it took, and for what other purposes it may have been useful, it does not strike me as remotely likely that the debt was to be called upon by Jimmy's on the Mall Pty Ltd unless some advantage were to be obtained by doing so. None was pointed to. In these circumstances, even were the claim recognised by the law, I would reject it as an opportunistic claim for expenditure absent credibility. It is difficult to believe JLH could have been advised to pursue it. The additional claims for liabilities said to have been incurred do not fare much better at a factual level. They were said to be for the further architectural services of Mr Job ($978,467) and for the merchant banking services of Dartnell Pacific Pty Ltd ($300,000). In the case of the fees for Mr Job's future services I am unable even to accept that that would have been the fees charged by him, given that all further consultants' fees allowed for by Concrete Constructions Ltd were limited to 8 per cent of the capped construction costs and there is nothing to show how the fee he now suggests as appropriate could have been accommodated. It could not, in any event, be said that any liability had been incurred in the event that the project proceeded. The suggestion that such a payment might be made arose from Mr Mantle's enquiry of Mr Job, with litigation in prospect, as to what he might consider was owed to him. It partakes of the nature of a success fee in litigation. A similar view may be taken of the fee said to be owed to Dartnell Pacific Pty Ltd. Neither are recoverable as damages. The respondent also submitted that the claim for wasted expenditure is misconceived and that The Commonwealth v Amann Aviation Pty Ltd, upon which JLH relies to support the claim, was concerned with reliance damages. Here, the submission proceeds, those expenses which were actually incurred were not incurred in reliance upon the performance by the respondent of its contractual obligations (Amann, 80; 104; 130; 135). My earlier findings as to reliance dispose of this. Further, as is pointed out in Amann (see in particular 85-6) such a claim cannot in principle be established in a case where it can be shown that the expenditure could not be recovered as where no, or insufficient, profit could have been made to permit the recoupment the law assumes. FURTHER ALTERNATIVE CLAIM - alternative projects JLH alleged, in its statement of claim, that had it known in about 1990, that the proposed restoration and redevelopment was not to proceed, it would have invested in another major project to the like or similar value and achieved the same anticipated return. The evidence does not however disclose what form such an investment might have then taken and what return was likely. JLH's reliance on its primary claim to establish what profits could have been made, was wholly misplaced. ANOTHER APPROACH TO DAMAGES - value of the lease Regardless of the conclusions I have reached, had a lease been endorsed and registered, and not rendered nugatory by rescission of the reserves, it might be said to have had some value to another developer or investor. Such a claim was not however, pleaded and the evidence did not permit it to be raised. Mr Lonergan considered the lease had a value of some $17.7M at February 1990, but this was on the basis of his view of its profitability, which I have rejected. The evidence did not disclose what an investor might have paid for what opportunities the lease or the rezonings represented. The valuer called by the respondent, Mr Willington, concluded that the value would be less than construction costs, from which one might infer this development would not proceed. That however was upon the figures established by the respondent's experts, which might not have been the view taken by another developer. In the absence of further evidence and of submissions on the point, I cannot take the matter further. SUMMARY AND ORDERS The applicant's case fails both in proof of liability on the part of the respondent and in proof of damage. I have concluded that the Minister in question was not obliged, by reason of the provisions of the Land Act, to endorse the lease with the approval which had earlier been granted, thereby enabling the lease to take effect at law. Further, the Minister retained the power to reconsider the question of that approval at least where issues affecting the public interest arose. Such issues were considered by a number of Ministers and by Cabinet through 1990 and 1991. The decision of Cabinet in July 1991, which led to the ultimate refusal for the project, was based upon such considerations, including the preferred development and construction of a river boardwalk. Any promise to endorse and complete the process must be understood within that framework, which is to say that, whilst the Minister might conceivably be held estopped from resiling from such a promise, that could not be the case where issues affecting the public interest arose. The Minister could not be heard to say that he would deny their existence and the need to address them. In any event, JLH's case based upon estoppel fails at a factual level, for the reason that it could not be taken to have relied upon any such promise. The only representation fulfilling that description was made in October 1989 when the Council and JLH were told that the lease of the reserves had been approved and that the Minister would endorse that approval. Mr Mantle of JLH however, knew that the promise was made by the Minister of the then government and that a change of government might bring a change of attitude. His concerns were realised. JLH's claim in fraud was not well-based and fails. I shall refrain from further observation at this point in view of the need to afford the legal representatives for JLH the opportunity to make submissions as to how this matter came to be pleaded and pursued to conclusion, submissions which will be necessary at least in connexion with the question of costs. It is not necessary for me to detail the other numerous claims which were not well-founded. Even had JLH established liability for damages on some basis, nevertheless it did not prove that its project could have operated at a profit for a sufficient period to enable the conclusion that it provided an overall benefit which could have been translated to an award of damages. Further, the opportunity lost, to pursue the development the agreement for lease contemplated, was subject to the real contingency that the reserves would have been rescinded and the lease thereby terminated, such that it could be said to have little real value. It did not establish any alternative claim. This case was protracted. There were many claims brought, and there were also many points of defence taken, some of which were unsuccessful. The result was a hearing extending over some 76 days, involving 87 witnesses, 6016 pages of transcript and 1430 exhibits including experts' reports of some thousands of pages. In such a situation there are likely to be differences of approach to the question of costs, and I shall adjourn further hearing on that issue to allow the parties to prepare submissions. Putting the question of costs to the parties to one side, there remains the question of the impact of "complex" or lengthy trials upon the administration of justice. It is a matter of concern and one which, I believe, needs to be addressed. However, since the expression of my views may reflect upon the legal representatives or the parties in this case, I consider that I ought to hear their submissions as to the conduct of the case before doing so. I certify that this and the preceding one hundred and sixty-one (161) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel J Associate: Dated: 6 March 1998 Counsel for the Applicant: Mr T Gray QC and Mr T Matthews Solicitor for the Applicant: Minter Ellison Counsel for the Respondent: Mr R Hanson QC, Mr J McKenna and Mr R Derrington Solicitor for the Respondent: Crown Law Date of Hearing: 18 February 1997 to 27 June 1997 inclusive Date of Judgment: 6 March 1998