Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd (No 2) [2022] NSWSC 561

Supreme Court New South Wales

Medium Neutral Citation: Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd (No 2) [2022] NSWSC 561 Hearing dates: 21 February – 1 March 2022 Date of orders: 11 May 2022 Decision date: 11 May 2022 Jurisdiction: Common Law Before: Payne JA Decision: (1) Judgment for the plaintiff for possession of the whole of the land in Folio Identifier 11/1137569, being the land situate at 170 Wine Country Drive, North Rothbury. (2) Grant leave to issue a writ of possession to enforce order 1. (3) Order that the execution of the writ of possession be stayed until further order of Payne JA. (4) Direct that the parties take all reasonable steps to serve upon all of the persons and entities referred to in MFI-1 a copy of these orders and reasons for judgment by 4pm on 13 May 2022. (5) Direct that any person or entity referred to in MFI-1 seeking to be heard about the time the writ of possession should be stayed file any evidence and written submission by 8 June 2022. (6) Stand over the matter to 2pm on 15 June 2022 for making any orders relating to any issues raised by persons or entities who have filed evidence and submissions in accordance with order 5 of these orders. I direct that any person or entity seeking to be heard as to relief appear with a legal representative at 2pm on 15 June 2022. (7) Dismiss the claims for relief made by the Further Amended Statement of Cross-Claim dated 1 February 2022. (8) The defendant / cross-claimant pay the plaintiff / cross-defendant's costs. Catchwords: LEASES AND TENANCIES — Default and termination — Right to possession — whether plaintiff entitled to possession of land — where defendant had leased land pursuant to leases which were surrendered or expired — where plaintiff had issued notices to quit CIVIL PROCEDURE — Parties — Joinder — joinder of any occupier of land the subject of claim for possession — opportunity to provide evidence and submissions as to relief in relation to the land CONSUMER LAW — Misleading or deceptive conduct — Representations — whether pleaded representations were made — whether pleaded representations were misleading or deceptive — where pleaded representations either were not made or, if made, were not misleading or deceptive CONSUMER LAW — Unconscionable conduct — Unconscionable conduct within the meaning of the unwritten law — whether defendant / cross-claimant suffered from special disadvantage — no special disadvantage proved CONTRACTS — Express terms — Pre-contractual statements — Representations — whether pleaded representations made — where the pleaded representations either were not made or, if made, were reflected in the contract executed by the parties CONTRACTS — Formation — Agreement — Uncertainty and incompleteness — where arrangement negotiated by parties was subject to agreement and omitted essential matters — no contract in terms pleaded by cross-claimant for reason of incompleteness CONTRACTS — Remedies — Damages — Loss or damage — whether cross-claimant suffered compensable loss or damage — where cross-claimant alleges to have suffered loss through a "fire sale" of railway items below market value and loss of option to purchase land — loss not proved CONTRACTS — Remedies — Specific performance — where orders sought by cross-claimant would require continued superintendence by the Court — where specific performance of alleged agreement is contingent on matters dependent on the sole discretion of the cross-claimant — order for specific performance refused EQUITY — Unconscionable conduct — Special disability or disadvantage — whether defendant / cross-claimant suffered from special disadvantage — where defendant / cross-claimant did not obtain independent financial or legal advice where such advice was available to it — whether threat by plaintiff / cross-defendant to exercise contractual right under lease created a special disadvantage — special disadvantage not proved ESTOPPEL — Estoppel by convention — Mutual assumption — where parties undertook acts in performance of an executed agreement and conducted their affairs on the basis that the agreement was binding — defendant / cross-claimant estopped from denying that the agreement was binding ESTOPPEL — Promissory estoppel — whether cross-defendant estopped from denying that it would do certain acts in exchange for the cross-claimant surrendering its rights under a lease — where pleaded representations were not proved and insufficiently clear to support estoppel — cross-claimant did not act or refrain from acting on basis of belief induced by cross-defendant's representations — estoppel not made out Legislation Cited: Cessnock Local Environmental Plan 2011 (NSW) Civil Procedure Act 2005 (NSW), ss 14, 56, 57, 58, 59, 61; Pt 6 Competition and Consumer Act 2010 (Cth), s 4; Sch 2 – Australian Consumer Law, ss 4, 18, 20, 236 Corporations Act 2001 (Cth), s 127 Environmental Planning and Assessment Act 1979 (NSW), Div 4.7 Evidence Act 1995 (NSW), ss 59, 69 Heritage Act 1977 (NSW), ss 4, 7, 8, 31, 32, 57, 118, 119, 120, 120I Heritage Regulation 2012 (NSW), r 18 Limitation Act 1969 (NSW), s 14 Uniform Civil Procedure Rules 2005 (NSW), rr 6.8, 6.24, 21.10, 21.11, 34.1; Sch 7 Cases Cited: Alec Finlayson Pty Ltd v Royal Freemason Benevolent Institution of New South Wales Nominees Ltd [2013] NSWSC 1168 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 Australian Competition and Consumer Commission v Berbatis Holdings Pty Ltd (2003) 214 CLR 51; [2003] HCA 18 Australian Competition and Consumer Commission v Oticon Australia Pty Ltd [2018] FCA 1826 Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1; [2019] HCA 18 Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 91 Bowler v Hilda Pty Ltd (1998) 80 FCR 191 Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14 Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1945) 46 SR (NSW) 47 Con-stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226; [1986] HCA 14 Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 Delaney v Delaney [2022] VSCA 48 Federal Commissioner of Taxation v Sara Lee Household and Body Care (Aust) Pty Ltd (2000) 201 CLR 520; [2000] HCA 35 Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39 Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407 Fry v Metzelaar [1945] VLR 65 Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217 Gerace v Auzhair Supplies Pty Ltd (2014) 87 NSWLR 435; [2014] NSWCA 181 Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435; [2013] HCA 1 Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112; [1954] HCA 23 Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546; [1988] FCA 40 IOOF Australia Trustees (NSW) Ltd v Tantipech [1998] FCA 924; (1998) 156 ALR 470 Ippolito v Cesco [2020] NSWSC 561 J C Williamson Ltd v Lukey and Mulholland (1931) 45 CLR 282; [1931] HCA 15 Jenyns v Public Curator (Qld) (1953) 90 CLR 113; [1953] HCA 2 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25 Kerr v Sheriff of New South Wales (1996) 9 BPR 16,215 Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11 Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61 Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31 Moratic Pty Ltd v Gordon [2007] NSWSC 5; 13 BPR 24,713 News Ltd v Australia Rugby Football League Ltd (1996) 64 FCR 410; [1996] FCA 870 Norris v Kandiah [2007] NSWSC 1296 Qantas Airways Limited v Gubbins (1992) 28 NSWLR 26 RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG (UK Production) [2010] 1 WLR 753; [2010] 3 All ER 1 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Stubbings v Jams 2 Pty Ltd [2022] HCA 6; (2022) 96 ALJR 271 Tahmoor Coal Pty Ltd v Visser [2022] NSWCA 35 Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315; [2003] HCA 57 Thorby v Goldberg (1964) 112 CLR 597; [1964] HCA 41 TMA Australia Pty Ltd v Indect Electronics & Distribution GmbH [2015] NSWCA 343 Waltons Stores (interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55 Watson v Foxman (1995) 49 NSWLR 315 Wu v Ling [2016] NSWCA 322 Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd (No 2) [2003] NSWSC 752 Texts Cited: A Lang, Lang's Commercial Leasing in Australia: Commentary (CCH IntelliConnect) New South Wales Government Gazette, No 110, 5 September 2008 New South Wales Government Gazette, No 17, 5 March 2015 New South Wales Government Gazette, No 318, 13 November 2020 Category: Principal judgment Parties: Misthold Pty Ltd (Plaintiff/Cross-defendant) NSW Historic Sites and Railway Heritage Company Pty Ltd (Defendant/Cross-claimant) Representation: Counsel: M Walton SC with N Furlan (Plaintiff/Cross-defendant) P Deakin QC with A Jucha (Defendant/Cross-claimant)