Supreme Court New South Wales Medium Neutral Citation: West Asset Holdings Pty Limited v Sara Investments (NSW) Pty Limited [2022] NSWSC 674 Hearing dates: 29-31 March; 3 May 2022 Decision date: 27 May 2022 Jurisdiction: Equity Before: Lindsay J Decision: Subject to allowing the parties an opportunity to make submissions about the form of orders to be made, competing claims for damages and costs: 1. An order for specific performance is to be made in favour of the first plaintiff as purchaser of warehouse premises from the first defendant. 2. The second defendant's current occupation of the premises has been held to be that of a monthly tenant. 3. The second plaintiff has been held to have no right, title or interest in the land. Catchwords: CONTRACTS — Remedies — Specific performance LAND LAW — Conveyancing — Options — Call options Legislation Cited: Supreme Court Act 1970 NSW Uniform Civil Procedure Rules 2005 NSW Cases Cited: Allen v Carbone (1975) 132 CLR 528 Eccles v Bryant [1948] Ch 93 Foran v Wight (1989) 168 CLR 385 King v Poggioli (1923) 32 CLR 222 Mahoney v Lindsay (1980) 55 ALJR 118; 33 ALR 601 Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd (1954) 90 CLR 235 Pianta v National Finance & Trustees Ltd (1964) 180 CLR 146 RD McKinnon Holdings Pty Ltd v Hind [1984] 2 NSWLR 121 Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603 Smith v Lush (1952) 52 SR (NSW) 207 Category: Principal judgment Parties: First Plaintiff: West Asset Holdings Pty Limited ACN 636 708 042 Second Plaintiff: Central Cleaning Supplies (Aust) Pty Ltd ACN 112 644 587 First Defendant: Sara Investments (NSW) Pty Limited ACN 099 530 275 Second Defendant: Bulolo Investments Pty Ltd ACN 624 228 164 First Cross Claimant: Sara Investments (NSW) Pty Limited ACN 099 530 275 Second Cross Claimant: Bulolo Investments Pty Ltd ACN 624 228 164 First Cross Defendant: West Asset Holdings Pty Limited ACN 636 708 042 Second Cross Defendant: Central Cleaning Supplies (Aust) Pty Ltd ACN 112 644 587 Representation: Counsel: Plaintiffs/Cross Defendants: J Morris SC and SC Woodland (on 29-31 March 2022) and J Morris SC (on 3 May 2022) Defendants/Cross Claimants: A Rossi with V Rossi and F G Rossi, by leave as self represented litigants (on 29-31 March 2022) and K Kutasi, solicitor (on 3 May 2022) Solicitors: Plaintiffs/Cross Defendants: Gibson Howlin Lawyers Defendants/Cross Claimants: Solve Legal (on 3 May 2022) File Number(s): 2020/00320619 Publication restriction: Nil Judgment INTRODUCTION 1. These proceedings concern, in essence, an application by the first plaintiff for an order for the specific performance of a contract for the purchase of a warehouse at Lidcombe known as 187-189 John Street ("the Property") from the first defendant created upon the first plaintiff's exercise of a call option. 2. Complexity attaches to the proceedings because the original agreement of the parties, subject to an exchange of contracts through their respective solicitors, was that the purchase price payable by the first plaintiff was to be $7.5 million (as recorded in a real estate agent's sales advice dated 10 October 2019 and headed "Heads of Agreement, subject to Contract") but, at the suggestion of the first plaintiff, the arrangement (if carried into effect) was reimagined as: 1. Entry by the first plaintiff and the first defendant into a Put and Call Option (in the event, dated 18 October 2019) which, if duly exercised, contemplated a purchase price of $7.385 million (not $7.5 million) and that completion of the contract created upon exercise of the option would occur on 19 October 2020; 2. Entry by the first plaintiff into possession of part of the Property (units 5 and 6), as a licensee from the second defendant (a related company of the first defendant and lessee of the Property from the first defendant), for a nominal "rent", for the period between 25 October 2019 (when, in fact, the first plaintiff went into possession) and 31 May 2020, pursuant to a license agreement which, as events happened, was dated 18 October 2019; 3. A grant by the first defendant to the second plaintiff (a related company of the first plaintiff) of a lease for three years between June 2020 and May 2023, pursuant to which the second plaintiff would pay to the first defendant rent (from 1 June 2020) at a rate which would produce for the first defendant revenue of approximately $115,000 between 1 June 2020 and 19 October 2020, the projected date for completion of the purchase contract. 1. This scheme was the brainchild of Mr J F Camilleri, a director of both the plaintiff companies. 2. Subjectively, it may never have been fully understood by the family (personified in Ms Viny Rossi, the sole director of the first defendant) standing behind the defendant companies. However, (with the acquiescence of her former husband, Mr Furio Rossi, who was assisting her at the time, and in the presence of a solicitor in the office of the defendants' then solicitors) Ms Rossi executed the Put and Call Option on behalf of the first defendant and authorised its solicitor to exchange that document. 3. In the absence of any evidence from the defendants' then solicitors, but having read the evidence of Ms Rossi and heard Mr Rossi in cross examination, I infer that what Ms Rossi and Mr Rossi may not have fully appreciated was that, as they have insisted, the price for the sale of the Property was $7.5 million but it was apportioned between a contract price of $7.385 million and rental payments of $115,000 to be made in the several months between 1 June 2020 and 19 October 2020. 4. The form of the Put and Call Option, the Licence Agreement and the draft Memorandum of Lease between the first defendant and the second plaintiff (copies of all of which were signed by Ms Rossi on 18 October 2019) supports an inference that it is likely that, before execution of any of those documents, the solicitors would have explained to her, and her former husband, the structure of the proposed transactions. 5. Mr Rossi, who appears to have assumed the role of his family's manager in dealings with Mr Camilleri and the defendants' solicitors, could not recall with precision in cross examination what passed between solicitor and client at the time of execution of the Put and Call Option and related documentation. 6. There is no firm evidentiary foundation for a finding that the documentation was executed by way of mistake. 7. On or about 18 October 2019 the parties executed and exchanged the Put and Call Option and the Licence Agreement bearing that date, and the first plaintiff duly paid to the first defendant $375,000 plus GST as the first instalment of an option fee payable under the Put and Call Option. The second instalment of the option fee ($375,000 plus GST) was duly paid on or about 17 April 2020, the total option fee being $750,000 (equivalent to 10% of $7.5 million). The first defendant has had the benefit of the option fee since payment and seeks to retain it. 8. That the defendants intended to be bound by the Put and Call Option and the Licence Agreement may be inferred from the fact that their then solicitors on 23 January 2020 sent to the plaintiffs' solicitors "original copies" of those two documents, respectively executed by the first and second defendants as Vendor and Licensor. 9. The Memorandum of Lease contemplated as between the second plaintiff and the first defendant was never formally exchanged although, at one point, the first defendant executed a draft Memorandum which the second plaintiff executed and returned (for the first defendant's execution in due course) in a slightly amended form. As late as 29 May 2020 the plaintiffs' solicitors provided to the defendants' then solicitors a copy of the lease, executed by the second plaintiff, said "to be held in escrow at this point in time", in circumstances in which the first plaintiff acknowledged that its licence of units 5 and 6 of the Property was due to expire and the plaintiffs complained that the defendants remained in possession of the Property and that, unless the defendants vacated the Property, the second plaintiff "could not enjoy full use of the property as is envisage[d] under the terms of the lease". 10. The parties appear to have proceeded upon a common assumption that the Memorandum of Lease in favour of the second plaintiff could not, and would not, be exchanged until such time as the second defendant surrendered its lease or the time for completion of the first plaintiff's purchase of the Property arrived. As events transpired, the second defendant was reluctant to surrender its lease because the defendants had experienced trouble in locating alternative premises in the period between 18 October 2019 and 31 May 2020. A practical imperative against the first defendant granting a lease to the second plaintiff was that the defendants had nowhere else to go for the conduct of their warehouse business. 11. The defendants changed solicitors on or about 4 June 2020, the date of an email in which the plaintiffs' solicitors were advised of the change. Their new solicitors, by a letter dated 19 June 2020 addressed to the plaintiffs' solicitors, maintained that the first defendant had not bound itself to grant a lease to the second plaintiff, noting that the lease granted by the first defendant to the second defendant remained in force. 12. On or about 13 July 2020, the first plaintiff duly exercised the call option granted to it in the Put and Call Option. 13. On 17 July 2020 the defendants' new solicitors wrote to the plaintiffs' solicitors disputing the correctness of the contract price of $7.385 million and insisting that the correct contract price was $7.5 million. 14. The parties joined issue on the enforceability of the Put and Call Option, the first plaintiff's exercise of the call option granted to it by that document and the second plaintiff's entitlement to a lease of the Property. 15. On 16 October 2020 the first plaintiff lodged a caveat (numbered AQ475870) against the title to the Property claiming an estate in fee simple pursuant to the contract for which it contends consequent upon its exercise of its call option. The second defendant subsequently lodged a caveat (numbered AQ131645) claiming an "equitable interest pursuant to an unregistered lease" purportedly evidenced by a document (not in evidence) dated 19 May 2020. 16. By a summons filed on 10 November 2020, the first plaintiff (then the only plaintiff) sought an order for specific performance against the first defendant, and damages against both defendants. Its case was refined by a statement of claim filed on 2 December 2020 (by which time the second plaintiff had been joined in the proceedings), seeking a broader range of relief, but still essentially an order for specific performance of the contract for purchase. 17. By a statement of cross claim filed on 29 March 2021, the defendants sought reciprocal relief, including a declaration that the first plaintiff had not validly exercised its call option, declarations that the first defendant is entitled to retain the option fees paid by the first plaintiff, and orders for rectification of the Put and Call Option, and any consequent contract, so as to provide that the Property was sold for $7.5 million rather than $7.385 million. 18. Meanwhile, the second defendant has remained in possession of the Property as a monthly tenant from the first defendant, subject to such (if any) rights as the plaintiffs may have to continue the first plaintiff's occupation of units 5 and 6 pending completion of its purchase of the Property. 19. The first plaintiff has remained in possession of units 5 and 6 notwithstanding the expiry of the Licence Agreement between itself and the second defendant on 31 May 2020. The second defendant, as a lessee of the first defendant, remains in possession of the balance of the Property. 20. The first plaintiff has remained in possession of units 5 and 6 pursuant to interlocutory orders which have made provision for the payment of periodical sums on a without admissions basis. THE PARTIES' DOCUMENTED DEALINGS 1. The transition from a price of $7.5 million for the Property (provisionally agreed in the Heads of Agreement dated 10 October 2019) to a price of $7.385 million (as specified in the form of contract reproduced as annexure "A" to the Put and Call Option dated 18 October 2019) is evidenced by an exchange of emails between the then solicitors for the defendants and the solicitors for the plaintiffs between 10-14 October 2019. 2. The tenor of that correspondence (particularly an exchange of emails on 10-11 October 2019) was that the second defendant (then, as now, in occupation of the Property under a lease from the first defendant) anticipated vacating the Property in or about June 2020 following exchange of the Put and Call Option proposed by the plaintiffs. Mr Camilleri declined to allow the second plaintiff to become a tenant of the Property (as was proposed) on the basis of payments of rent on top of the purchase price. He contended that the first plaintiff had originally agreed to purchase the Property for $7.5 million, with use of the Property for a fee of $1 until completion. In light of the proposal that the second defendant remain in possession of the Property for approximately eight months, the plaintiffs proposed that the second plaintiff would enter a lease, for a period commencing after the anticipated departure from the premises of the second defendant, paying rent under that lease but on the basis that the purchase price (of $7.5 million) would be reduced by the amount of rental payments (in the event, anticipated to be of the order of $115,000) so that the plaintiffs would only ever be paying the agreed purchase price of $7.5 million, plus any agreed outgoings. 3. The Put and Call Option was thus prepared by the solicitors on the basis that the purchase price specified in the contract to be entered upon exercise of the first plaintiff's call option would be $7.385 million, and the difference between that amount and $7.5 million would be accounted for in the anticipated payment of rent in the order of $115,000. 4. The "in principle" agreement of the solicitors leading to preparation of the Put and Call Option was at all times (as acknowledged in the Heads of Agreement) on the basis that there would be no binding agreement between the parties unless and until contracts were exchanged, through the parties' solicitors, in accordance with usual conveyancing practice in NSW: Allen v Carbone (1975) 132 CLR 528 at 532-533, citing Eccles v Bryant [1948] Ch 93 at 99 and Smith v Lush (1952) 52 SR (NSW) 207 at 212. 5. The first defendant executed the Put and Call Option, and allowed it to be exchanged on 18 October 2019. At that stage, the first plaintiff believed, on reasonable grounds, that the Put and Call Option correctly specified a price of $7.385 million and that the first defendant would in due course, without disputation, grant a lease to commence on or about 1 June 2020 which would generate $115,000 in rent for it. 6. Those facts, in light of the earlier in-principle agreement between the solicitors about adjustment of the purchase price, stand in the way of any finding that the Put and Call Option, and the contract created upon exercise of the option, should be rectified: Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603. The first defendant's later insistence that the contract price be $7.5 million appears to have been a product of the defendants' inability to find alternative accommodation and their change of solicitors about six weeks earlier than the time the first plaintiff exercised its option. 7. Clause 2 of the Put and Call Option provided that, upon the first plaintiff's due exercise of its call option "the parties (the first defendant and the first plaintiff) become immediately bound as Vendor and Purchaser under the Contract (Annexure "A" to the Put and Call Option) in accordance with the terms and conditions thereof". 8. The form of contract reproduced as annexure "A" to the Put and Call Option provided for a sale price of $7.385 million (not $7.5 million); specified 19 October 2020 as the date for completion of the contract; and provided for the first defendant's sale of the Property to be "subject to existing tenancies". 9. Special Condition 32.1(12) of the contract amended the standard form of clause 17.2.2 of the contract so that it read: "[17] The Vendor does not have to give vacant possession if: [17.2.1] This contract says that the sale is subject to existing tenancies; and [17.2.2] The contract discloses the existence of the tenancy (for example, by attaching a copy of the lease and any relevant memorandum or variation." 1. Special Condition 54 of the contract expressly recorded an acknowledgement that the Property was sold subject to the unregistered lease granted by the first defendant in favour of the second defendant. 2. That lease, as has been recorded, provided inter alia for a lease term of 12 months commencing on 1 October 2019 and terminating on 30 September 2020, with an option to renew the lease for a further 12 month term (which I assume was not exercised) and provision for the second defendant to hold over as a monthly tenant upon expiry of the lease term. 3. The second defendant's caveat suggests that the defendants may have entered into an "Amended and Restatement Deed of Lease" dated 19 May 2020, a date which does not accord with the period within which the second defendant was entitled to renew its lease, but it has not been proved and, in any event, it ranks lower in priority than the first plaintiff's caveat. Nothing of consequence appears to turn on it. 4. That the first plaintiff agreed to purchase the Property subject to the second defendant's lease is confirmed by Special Conditions 35, 36 and 37 of the contract. Special Condition 35 provided that the terms of the contract constituted "the whole of the agreement" between the first defendant as vendor and the first plaintiff as purchaser and included an acknowledgement by the first plaintiff that it entered the contract without reliance upon any representation made by or on behalf of the first defendant. With slight variations in emphasis, Special Conditions 36 and 37 were to similar effect. 5. This is the contract pursuant to which the first plaintiff, by its entry into the Put and Call Option and by its exercise of its call option, agreed to buy the Property. 6. The Licence Agreement executed, and exchanged, at the same time as the Put and Call Option on 18 October 2019 recited the second defendant's lease of the Property from the first defendant (and attached a copy of the lease as annexure "A"), defined the area of the Property the subject of the licence (shown as units 5 and 6 in annexure "B" to the License Agreement) and defined the duration of the licence as the earlier of 31 May 2020; the residue of the second defendant's lease term less a day; and any termination of the lease. The licence fee (described as "rent") was a nominal sum plus a contribution to outgoings. 7. The proposed lease of the Property by the first defendant in favour of the second plaintiff never materialised in a binding form because there was no formal exchange of a memorandum of lease in agreed form. The solicitors for the defendants were not authorised, as events unfolded, to exchange the memorandum of lease ultimately produced by the plaintiffs' solicitors for execution by the first defendant in due course. 8. Nor can any agreement for a lease be inferred from correspondence passing between the solicitors for the plaintiffs and the solicitors for the defendants in October 2019. Their correspondence was "subject to contract" and (as illustrated by Pianta v National Finance & Trustees Ltd (1964) 180 CLR 146 at 152 and 154), even if a solicitor has authority to negotiate the terms of a prospective contract, he or she cannot lightly be inferred to have authority to make a contract binding on behalf of a client. I am not at all satisfied that the then solicitors for the defendants had authority to bind the first defendant to grant a lease to the second plaintiff even if (which I doubt) that was, objectively, their intention. 9. I infer that the first defendant (with the benefit of legal advice) made a calculated decision not to bind itself to the proposed lease in favour of the first plaintiff (by a formal process of exchange) in aid of its contention that the contract price for the Property was $7.5 million (rather than $7.385 million as a capital sum and $115,000 in rent), informed perhaps by the defendants' desire to retain possession of all of the Property after 31 May 2020. Whatever may have been their precise reasoning, the course they took after their change of solicitors on or about 4 June 2020 appears to have been directed towards extracting a purchase price of $7.5 million and excluding the plaintiffs from any occupation of the Property before completion of any contract formed by exercise of the first plaintiff's call option. 10. In any event, the first plaintiff's entry into the Put and Call Option, and the contract created by its exercise of its call option, were expressly subject to the second defendant's ongoing lease from the first defendant on contractual terms that included a "whole of agreement" clause and "non-reliance clauses". The first plaintiff must be taken to have agreed to purchase the Property on the terms of a reduced purchase price (of $7.385 million instead of $7.5 million) without the assurance of a lease in favour of the second plaintiff. The plaintiffs took a commercial risk that such a lease would be granted by the first defendant no later than 1 June 2020, the date upon which the second plaintiff had proposed to make the first of the rental payments intended to provide the first defendant with $115,000 to make up the shortfall between $7.5 million and $7.385 million. 11. The plaintiffs accepted that the first plaintiff's licence of units 5 and 6 of the Property expired on 31 May 2020 (as evidenced by a letter dated 21 July 2020 addressed by the plaintiffs' solicitors to those of the defendants), but, after that date, insisted on remaining in possession of those units pending a determination of the first plaintiff's claim of an entitlement to purchase the Property. 12. In a practical sense, the parties negotiated arrangements for the first plaintiff to make contributions to the payment of outgoings pending a resolution of the dispute about the first plaintiff's entitlement to purchase the Property. 13. Although the first defendant disputed the first plaintiff's claim to have duly exercised its call option, I am satisfied that the option was duly exercised. By a letter dated 13 July 2020 Gibson Howlin Lawyers served on Tzovaras Legal (as the first defendant's nominated solicitor) a formal Notice of Exercise of Call Option, a duly executed form of the Contract and a cheque in favour of the first defendant in the sum of $1, as required by the Put and Call Option. That letter was served within the agreed option period, which expired on 18 July 2020. Tzovaras Legal sought and obtained within the option period a copy of a signed guarantee as required by Special Condition 48 of the contract. 14. I am satisfied that the first plaintiff is and has been at all material times ready, willing and able to complete its obligations under the contract created upon exercise of its call option. I accept the evidence of its director, Mr Camilleri, that it has always had financial arrangements in place sufficient to fund its purchase. It was not necessary for it formally to tender the purchase price on the contractual date for completion (19 October 2019) in circumstances in which the first defendant, by denial of the contract, had implicitly dispensed with any need to do so: Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd (1954) 90 CLR 235; Mahoney v Lindsay (1980) 55 ALJR 118; 33 ALR 601; Foran v Wight (1989) 168 CLR 385. 15. The first plaintiff is entitled to an order that the contract be specifically performed. Although it has invited the Court to make an order for specific performance on terms that would enable it to pay less than the full purchase price, or to have the benefit of some form of security, in aid of a perceived entitlement to damages for breach of contract (or under section 68 of the Supreme Court Act 1970 NSW) which it seeks to establish, I am not minded to relieve it of its contractual obligation to tender the whole of the balance of the purchase price, subject to adjustments, payable under the contract. There are no grounds for abatement of the purchase price: King v Poggioli (1923) 32 CLR 222. 16. The defendants have advanced no contention that an order for specific performance should be refused, on discretionary grounds, by reason of hardship to them, leaving the first plaintiff to a remedy in damages: cf, RD McKinnon Holdings Pty Ltd v Hind [1984] 2 NSWLR 121 at 126E. In any event, a defence of "hardship" would be likely to be met by the first plaintiff pointing to what appears to have been a calculated commercial decision made by the first defendant not to grant a lease to the first plaintiff but to retain possession of so much of the Property as was not the subject of the licence granted to the first plaintiff in respect of units 5 and 6, if not the whole Property. 17. If the second defendant's lease of the Property is not earlier terminated, it will be open to the first plaintiff, upon completion of the contract, to obtain possession of the whole of the Property by serving on the second defendant appropriate forms of notice of attornment and notice to quit designed to terminate its monthly tenancy. 18. Before turning attention to the form of orders to be made in disposition of the proceedings, a determination must be made as to whether a forklift and cool room motors on the Property are (as the first plaintiff alleges) or are not (as the first defendant alleges) part of the property the subject of the parties' sale and purchase transaction. 19. This determination must be made in favour of the first plaintiff. 20. Special Condition 56 of the contract and Special Condition 7(C) of Schedule 1 to the Licence Agreement both contemplate that, "for no additional consideration" the first defendant would transfer the forklift to the first plaintiff. The Licence Agreement spoke of the first plaintiff having "full ownership and use" of the forklift from 25 October 2019, the date upon which the first plaintiff commenced occupation of units 5 and 6. The contract speaks of the first plaintiff having "full ownership and use" of the forklift from the date of completion of the contract. It is not necessary to dwell upon differences in timing. What is clear is that ownership of the forklift will pass to the first plaintiff on completion of the contract, if it has not already done so. 21. In my opinion, the cool room motors, fitted to a ducting system servicing cool rooms (freezers) on the Property, must be taken to have been included in the sale, as either fixtures or as fittings expressly contemplated by Special Condition 42 of the contract. The motors are substantial pieces of equipment integrated in a ducting system that operates throughout the warehouse on the Property. They service the warehouse as a going concern. If there be any doubt about their inclusion in the sale of the Property as a going concern, I note that the Heads of Agreement (that informed preparation of the contract) expressly spoke of a sale of the Property "as a going concern". The cool room motors, essential to the ongoing operation of the freezers on the Property, are fixtures (or, at least, fittings) that pass with title to the Property. CONCLUSION 1. Subject to allowing the parties an opportunity to make submissions about the form of orders to be made, competing claims for damages and costs, I propose to make orders to the following effect: 1. DECLARE that the Put and Call Option dated 18 October 2019 between the first defendant as "vendor" and the first plaintiff as "purchaser", referable to the land comprised in Certificate of Title 1/731 and Auto Consul 15506-213 and known as 187-189 John Street, Lidcombe in the State of New South Wales (the Property), is valid and binding on the parties. 2. DECLARE that the first plaintiff, on or about 13 July 2020, duly exercised the call option granted to it by the first defendant under the Put and Call Option. 3. DECLARE that the contract between the first defendant as "vendor" and the first plaintiff as "purchaser" (in the form of Annexure "A" to the Put and Call Option) created upon the first plaintiff's exercise of its call option is valid and binding on the parties. 4. ORDER that the contract be specifically performed. 5. DECLARE that the sale of the Property by the first defendant to the first plaintiff includes: 1. the forklift described in Special Condition 56 of the contract; and 2. the motors fitted to the ducting system servicing cool rooms on the Property. 1. DECLARE that the second defendant's current occupation of the Property is as a monthly tenant holding over under the lease between it and the first defendant, a copy of which is annexed to the contract. 2. DECLARE that the first plaintiff's right to possession of units 5 and 6 of the Property came to an end on 31 May 2020 or thereabouts, upon expiry of the Licence Agreement between it and the first defendant. 3. DECLARE that the first plaintiff has been since 1 June 2020 or thereabouts, and is, in occupation of units 5 and 6 of the Property as a trespasser vis-à-vis the defendants. 4. DECLARE that the second plaintiff has no right, title or interest in the Property. 5. RESERVE for further consideration: 1. any claim that the first plaintiff might have to damages (at common law or pursuant to section 68 of the Supreme Court Act 1970 NSW) arising from the fact that the contract was not completed on 19 October 2020 according to its terms. 2. any claim that the defendants might have to damages (at common law or upon any undertaking as to damages given to the Court) arising from, or related to, the first plaintiff's occupation of units 5 and 6 of the Property. 3. whether any competing entitlements to damages can be set off one against the other. 4. any orders required in the working out of the Court's orders or giving effect to any undertaking as to damages given to the Court. 1. During the final hearing of these proceedings evidence was adduced, but not tested, for the purpose of demonstrating that the first plaintiff had established a sufficient foundation for an inquiry as to damages. By an order made on 2 September 2021 (under rule 28.2 of the Uniform Civil Procedure Rules 2005 NSW), questions about the quantum of any entitlement to damages were deferred pending the determination of any other questions in the proceedings. 2. Such (if any) entitlement the first plaintiff may have to damages is presently unclear in light of findings that any entitlement it had as a licensee of units 5 and 6 came to an end on 31 May 2020 and the second plaintiff had no entitlement to a lease of the Property after that. Any claim to damages may be confronted by questions of causation and remoteness that need to be addressed. 3. Whether the first defendant is entitled to damages at law or upon an undertaking as to damages given by the first plaintiff as the price of remaining in possession of units 5 and 6 of the Property on an interlocutory basis is a further topic that needs consideration. 4. I do not intend, in this judgment, to express any view about whether the defendants have a remedy against the conveyancing solicitors who acted for them in connection with the business transacted between the plaintiffs and the defendants. That is a topic for the defendants and their current legal advisers to consider in due course. 5. The proceedings will be listed (for final orders, or directions, as the nature of the case may require) at a time to be advised to the parties by my Associate. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 May 2022