New South Wales Supreme Court CITATION : Tom Pavlakis and Anor v The Council of the City of Shoalhaven [2005] NSWSC 436 HEARING DATE(S) : 7, 8, 9, 10 14, 16, 17, 18 March 2005 Final submissions 15 April 2005 JUDGMENT DATE : 9 June 2005 JURISDICTION : Commercial List JUDGMENT OF : Bergin J DECISION : Plaintiffs' claims dismissed CATCHWORDS : [TRADE PRACTICES] - Whether representations were made by the defendant - whether the person who made the representation had ostensible authority to make it - whether reliance placed on the representation - whether representation made in "trade or commerce" - whether continuing representations made - [CONTRACT] - Applicability of contractual principles to Development Application process of a Council or Consent Authority under the Environmental Planning and Assessment Act 1979 (NSW) - whether contract entered into between plaintiffs and defendant - [TRUSTS] - Nature of trust under s 94(3) of the Environmental Planning and Assessment Act 1979 - Whether resulting trust - Jurisdiction to deal with claim for return of money paid pursuant to s 94(3) of the Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Act 1979 (NSW) Land and Environment Court Act 1979 (NSW) LEGISLATION CITED : Local Government Act 1919 (NSW) Trade Practices Act 1974 (Cth) Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Coshott and Anor v Woollahra Municipal Council (1988) 14 NSWLR 675 Denham Pty Ltd v Manly Council (1995) 89 LGERA 108 Doran Developments Pty Ltd v Newcastle City Council 1984 (13) APA 436 Jones v Dunkel (1959) 101 CLR 298 CASES CITED : Levadetes and Anor v Hawkesbury Shire Council (1988) 67 LGRA 190 Mid Density Development Pty Ltd v Rockdale Municipal Council (1992) 39 FCR 579 Mulgrave Shire Council v Red Hills Pty Ltd (1994) 83 LGERA 323 Payne v Parker [1976] 1 NSWLR 191 Toadolla Co Pty Ltd v Dumaresq Shire Council (1992) 78 LGERA 261 Watson v Foxman & Ors: Commonwealth Bank of Australia v Foxman Holdings Pty Ltd (Receiver and Manager Appointed) & Ors (2000) 49 NSWLR 315 Tom Pavlakis (1st Plaintiff) PARTIES : Dena Pavlakis (2nd Plaintiff) The Council of the City of Shoalhaven (Defendant) FILE NUMBER(S) : SC 50096/04 A.S. Martin SC and S.A. Wells (Plaintiffs) COUNSEL : J.J. Webster SC and S.B. Loughnan (Defendant) Leslie E Abboud (Plaintiffs) SOLICITORS : Morton & Harris (Defendant) LOWER COURT JURISDICTION : - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST BERGIN J 9 JUNE 2005 50096/04 TOM PAVLAKIS & ANOR V THE COUNCIL OF THE CITY OF SHOALHAVEN JUDGMENT Introduction 1 This case arises out of events and conversations that occurred sixteen years ago in which it is alleged in the pleadings that the defendant promised to build a car park for use by the customers and tenants of the plaintiffs' shopping complex in Ulladulla, New South Wales, in consideration of the plaintiffs paying $159,000 to the defendant. The reason for the delay in bringing the matter before the Court is alleged to be the continuing promises made by the defendant between 1989 and 2000, such that the plaintiffs were not on notice that they would have to bring proceedings until, at the earliest, 2001, when it became clear to them that the defendant was not going to honour its alleged promises. Proceedings were commenced in the District Court of New South Wales in August 2002 and were transferred into the Commercial List of this Court in 2004. 2 The plaintiffs, Tom Pavlakis and his wife Dena Pavlakis, are the registered proprietors of a property known as "The Pavilion" Shopping Centre in Green Street, Ulladulla, NSW (the Pavilion). When the plaintiffs commenced the District Court proceedings on 1 August 2002 the only relief sought was the return of the money they had paid to the defendant as a contribution pursuant to s 94 of the Environmental Planning & Assessment Act 1979 (NSW) (the EPA Act) , plus interest. It was not until 13 March 2003 that the plaintiffs amended their Statement of Claim in the District Court expanding their claims to include the claims that are now before this Court. After the matter was transferred to this Court and indeed during the trial, there were further amendments to the pleadings. The claims 3 The plaintiffs allege that in early 1989, the defendant, the Council of the City of Shoalhaven, orally agreed that in consideration of their agreement to pay the defendant monetary contribution for the car parking for the proposed development of the Pavilion, the defendant would purchase and/or build a car park for the proposed development (the Contract). 4 The plaintiffs allege that the Contract arose out of a conversation between Mr Pavlakis on behalf of the plaintiffs and Mr Peter Gray, planning officer with the defendant, on behalf of the defendant in "early 1989" at a site adjacent to the proposed development. It is alleged that the development consent granted to the plaintiffs pursuant to s 91 of the EPA Act required the plaintiff to pay to the defendant a car parking contribution of $159,000 that the plaintiffs paid on 20 October 1989. The Pavilionwas completed in November 1990 and it is alleged that the defendant has breached its contract with the plaintiffs by failing and continuing to fail to purchase or build a car park for the Pavilion. The plaintiffs seek damages for breach of contract (the Contract Claim). 5 The plaintiffs also claim the defendant represented to them that it would "purchase or build a car park for use by the retail customers of the proposed development on the basis that the plaintiff would pay a s 94 monetary contribution for the proposed development". That representation is claimed to arise from the conversation between Mr Pavlakis and Mr Gray in early 1989 referred to in the Contract Claim (1989 representation). 6 The plaintiffs also claim that between November 1990 and about 2000 the defendant continued to orally represent to the plaintiffs that it would provide a car park for use by the retail customers of the Pavilion. Those representations as pleaded are: (1) that "the defendant would build a car park on the land opposite the Pavilion next to the church", claimed to have been made by Mr Napper, the defendant's Town Clerk, in about November 1990 (November 1990 representation); (2) that "the defendant would build a car park in St Vincent's Street for the customers of the Pavilion" claimed to have been made in 1992 and 1993 by Mr Napper (1992 and 1993 representations); (3) that "the defendant would build a car park in St Vincent's Street for the customers of the Pavilion" claimed to have been made by Mr Watson, then a councillor and later Mayor of the defendant, in 1995 (1995 representation); (4) that "the defendant had plenty more houses in St Vincent's Street and it was still going ahead with the provision of further car parking", claimed to have been made by Mr Watson in September 1997 (September 1997 representation); (5) that "the defendant still owns plenty of land in St Vincent's Street and it was still going ahead with car parking which should be organised very soon", claimed to have been made by Mr Watson in 1998 (1998 representation); (6) that "the plaintiffs should not worry as the defendant had plenty of land in St Vincent's Street which would be used soon for car parking", claimed to have been made by Mr Watson in 1999 and 2000 (1999 and 2000 representation). There is a further claim that in 1998 the defendant represented that it was "prepared to lease several shops of the proposed development in an attempt to stop the plaintiff complaining about the lack of car parking", claimed to have been made by Peter Dun, an officer of the defendant (the 1998 representation). 7 It is alleged that each of these representations was continuing and if they were not false when they were made they subsequently became false. It is further alleged that the defendant knew or ought to have known that the plaintiffs would rely upon the representations. The plaintiffs allege that in reliance upon the representations they: (a) completed the proposed development without providing any underground car parking; (b) paid the defendant the car parking contribution of $159,000; (c) took no other steps to attempt to provide a car park for the proposed development; and (d) did not commence proceedings earlier than they did to force the defendant to provide a car park for the customers and tenants of the Pavilion. This last mentioned matter is important having regard to the limitation period under the Trade Practices Act 1974 (Cth) (the TPA Act). 8 The plaintiffs allege that their relationship with the defendant was such that it imposed on the defendant a duty of care to the plaintiffs in making the representations about the car park. It is alleged that the defendant breached that duty of care in failing to exercise reasonable care and skill in making the representations, and failed to take any or any reasonable steps to acquire or build a car park for the proposed development, and failed to warn or advise the plaintiffs that the defendant did not propose to purchase or build a car park for the Pavilion (the negligent misrepresentation claim). 9 There is an additional or alternative claim pursuant to s 51A of the TPA Act in which it is alleged that the representations were false and that there were no reasonable grounds for representing that the defendant would purchase and/or build a car park for the proposed development. It is alleged that by making the representations and/or failing to correct them, the defendant has, in trade or commerce, engaged in conduct that is misleading or deceptive or likely to mislead or deceive in contravention of s 52(1) of the TPA Act (the TPA claim). 10 There is also a claim that the defendant is estopped from denying that equitable compensation is available to the plaintiffs in the circumstances. 11 Finally the plaintiffs' claim that they paid $159,000 on 20 October 1989 pursuant to s 94 of the EPA Act to be used by the defendant for the purpose of the defendant providing within a reasonable time car parking facilities for tenants and customers of the Pavilion. It is alleged that upon payment of that money it was held on resulting trust for the plaintiffs. The plaintiffs seek the repayment of that amount with interest. The defendant claims that the determination of this aspect of the matter will give rise to an issue requiring this Court to review the exercise of the function conferred or imposed by a planning or environmental law as that phrase is defined in s 20(3) of the Land & Environment Court Act 1980 (NSW) (the LEC Act) and that this Court does not have jurisdiction to determine this aspect of the matter. 12 Otherwise the defendant denies that the representations were made and denies the plaintiffs have suffered any loss or damage. It is alleged that the plaintiffs are estopped from denying that the $159,000 was paid pursuant to a binding obligation imposed by the EPA Act and the claims for its return with interest are therefore outside the jurisdiction of this Court. The facts 13 Between 1970 and 1989 Mr Pavlakis developed a number of properties for commercial use. In late 1988 the plaintiffs purchased the land known as 216 Green Street, Ulladulla, on the north-eastern corner of Green Street and Boree Street Ulladulla, upon which the Pavilion was ultimately constructed. The plaintiffs retained Robert Warren, a chartered architect of Warren & Partners Pty Limited, to prepare plans and specifications for the development. 14 On 13 December 1988 the City Planner of the defendant submitted a confidential report to the Planning & Development Committee Meeting of the defendant. That report reminded the Committee of the defendant's resolution to "permit investigations into additional areas for public parking purposes to cater for the increased demands in the Ulladulla Central Business District". In an earlier report to the Committee on 15 September 1987 in relation to s 94 car parking contributions and the acquisition of land for that purpose the City Planner reported: It has been established previously that there is an "envelope" of land in which new car parking areas are both feasible and acceptable. This is based on factors of cost, walking distance from the retail core, terrain and availability. Naturally, the further away from the centre, the lower the probable cost. However, the maximum tolerable walking distance from the retail core is around 150 to 200 metres. This was the approach taken to identify and secure parking space in the early 70's and is still appropriate today. Thus, it is possible to give the valuer a "zone" of land around the retail core, which should provide him with the basis of profitable acquisition costs. 15 In his 13 December 1988 report, the Town Planner reported that the defendant's valuer had prepared a valuation for three nominated properties, being Lot 2, DP 213083, Lot 251 DP 569873 and Part Lot 24 Sec 3 (the Boree Street properties). The Boree Street properties were on the opposite and western side of Boree Street and approximately five properties to the south of the intersection with Green Street. After referring to the total valuation at $224,500, the report continued: Council has collected approximately $115,000 in Section 94 (carparking) contributions for the Ulladulla area and recent discussions have been held with staff for a large retail complex in the Boree Street vicinity in which the developer wishes to make a total contribution for parking (estimated to be approximately $150,000). The immediate shortfall between available funds and the valuations is in the order of $109,500. The acquisition of this land is essential for the further expansion of the Boree Street carpark, which is often filled to capacity (particularly during holiday periods). 16 The City Planner recommended that the defendant authorise the Town Clerk to purchase the Boree Street properties and that funding should come from "existing Sec. 94 contributions for this locality and funds in anticipation of future Sec. 94 contributions or a loan". On 20 December 1988 the defendant authorised the Town Clerk to negotiate for the purchase of the Boree Street properties and on completion of successful negotiations to sign the contracts and the transfers on behalf of the defendant. It adopted the recommendation that the funding for the purchase was to come from the s 94 contributions or a loan. Also on 20 December 1988 the defendant fixed the level of s 94 contributions for 1989 "that may be required as a condition of any consent granted to all new development applications" where an applicant "cannot or elects not to provide off-street parking on site". The level fixed for Ulladulla was $3,180 per parking space. 17 By letter dated 8 February 1989 Mr Warren lodged a plan for the development of the Pavilion with the defendant. That plan did not provide for any car parking on the site. On 24 February 1989 the then Town Clerk of the defendant, Mr G A Napper, wrote to Mr Warren referring to Mr Warren's letter of 8 February 1989 and advising that after preliminary investigation certain comments were made for Mr Warren's consideration. Those comments included: 1. Council would be prepared to consider a Development Application for total occupation of the site, subject to a cash contribution in lieu of providing parking on-site. Such contribution for a gross leaseable floor area of 1,234m² would be for 51 spaces (i.e. at current rate, $162,180.00). 2. The proposed servicing arrangement would need to be altered to provide for a loading area with a minimum length of 11m and width of 3m. Adequate splays would also be needed to ensure service vehicles could leave and enter Boree Street safely. The loading dock should be constructed of contrasting paving suitable for heavy loads. A service corridor should also be provided along the southern boundary to provide rear access to some shops which may have a high service need. 3. Of the submitted elevations, Option B is preferred. The design generally should have a relationship to that of the existing post office and the paving treatment proposed should conform with the type, pattern and colour of that used in the existing streetscape treatment. 4. In regard to the payment of a cash contribution, Council's policy is that such monies be paid with submission of the Building Application. If you wish to depart from this policy, you would need to submit reasons which would then be placed before the Council for its consideration. If you have any further enquiries regarding this matter, please contact Mr Fletcher in Council's Planning Department. 18 On 10 April 1989 Mr Warren submitted a Development Application (DA) to the defendant without any provision for underground, or other, car parking in the development. On 24 April 1989 the defendant wrote to Mr Warren acknowledging receipt of the DA and advising that "the planning officer dealing with this application is Mr P Gray". The letter continued: In the majority of cases applications are dealt with by Town Planning Department Staff under the delegated authority of Council. Under normal circumstances, when adequate plans and information are provided, applications should be determined within three to four weeks of receipt. In special circumstances the application may have to go before Council for determination by the elected Aldermen. This will extend the processing time. Should it be necessary for Council to consult with other government authorities, the processing time may also be extended. Applications are determined in writing by way of a letter forwarded to the applicant. If you have received no notification within twenty-one days of having lodged the application you may enquire about its progress by contacting the planning officer who is dealing with this application. 19 On 16 May 1989 the defendant's Policy and Forward Planning Committee considered a further confidential report of the Town Clerk in relation to the on-going negotiations to purchase the Boree Street properties. This matter was brought back to the defendant in a Council meeting for it to consider the change in purchase price and other matters since December 1988 when it had authorised the Town Clerk to negotiate for the purchase of the Boree Street properties. On 6 June 1989 the defendant adopted the recommendations of the Town Clerk that the defendant proceed to negotiate to purchase one of the Boree Street properties at the new price and on the same conditions as to the source of the funding coming from the s 94 contributions or a loan. 20 On 14 June 1989 the defendant wrote to Mr Warren advising that pursuant to s 92 of the EPA Act the DA had been determined by granting consent, subject to conditions. Those conditions included the following: 9. In accordance with Council's Carparking Code, this development generates a need for forty-eight (48) carparking spaces. As car parking is not to be provided Council is prepared to accept a cash contribution in lieu of providing such spaces in accordance with condition No. 13. The proposed loading bay will result in the loss of five (5) on-street parking spaces therefore an additional contribution for the loss of those spaces shall be paid to Council. … 13. In accordance with Section 94 of the Environmental Planning and Assessment Act 1979 Council considers that this development will generate a need for additional utility services and carparking in accordance with the following table: Carparking contribution $168,540 (48 spaces for the development (@$3180/space) plus five (5) for the loss in Boree Street) Water $1,400 Sewer $1,150 TOTAL $171,090 The developer shall pay to Council the sum of $171,090 and this consent is conditional upon satisfactory arrangements being made with Council prior to issue of the Building permit. 21 At that time s 94 of the EPA Act provided relevantly: (1) Subject to subsection (2), where a consent authority is satisfied that a development, the subject of a development application, will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant consent to that application subject to a condition requiring - (a) the dedication of land free of cost; or (b) the payment of a monetary contribution or both. … (3) The consent authority shall hold any monetary contribution paid in accordance with a condition referred to in subsection (1) in trust for the purpose for which the payment was required and apply the money towards providing public amenities or public services or both within a reasonable time and in such manner as will meet the increased demand for those amenities or services or both. 22 On 3 July 1989 Mr Warren wrote to the Council in relation to Mr Pavlakis' desire to resolve the detail of contributions to the building works on public lands relating to paved footpaths, public seats and the like prior to the submission of Building Application plans. Mr Warren also applied for a waiver of the "extra 5 car contribution" required in condition 13 of the consent to the DA. The letter included the following: We advised our Client that the other car contribution of $152,640 is reasonable. Service vehicles access to our Client's land only accounts for 3 car spaces, but service vehicles access would take a further two spaces under any conditions to a shopping centre site. The validity in charging for any loss of on-street car spaces is a very dubious point. 5 spaces will not fit within reasonable distance from the corner of Green and Boree Streets, and obviously the Development Application refers to the total loss between our Clients block and the block next door (Mr Glen Rowan's block). Please consider these two requests as a matter of urgency as timing on this project is very important to our Client. He is now faced with massive holding charges whilst these matters are being determined. We believe the above requests are reasonable and in the best interests of our Client and the Council. 23 By letter dated 19 July 1989 the defendant wrote to Mr Warren referring to his letter of 3 July and "subsequent telephone conversations between Mr Boyd Warren and Mr Peter Gray of Council's Planning Department". The letter referred to the upgrading of the footpath and streetscaping and advised that as the defendant had required "kerb realignment work and additional treatment on the corner of Green and Boree streets" it was accepted that the defendant would be responsible for "certain works" associated with that requirement. The defendant referred Mr Warren to the District Engineer, Mr Tony Green, at the Ulladulla Office to work out the detail relating to costs and co-ordinating the construction works. The defendant advised Mr Warren that "the remaining footpath work to the kerbline outside the additional treatments required on the corner of Boree and Green Streets" would be at the plaintiffs' cost. The defendant also advised that it did not have a written policy on this last aspect and enclosed recent development consents in Boree Street that required footpath upgrading at the developer's cost. The letter included the following: Loss of street parking - the proposed loading bay construction will delete five (5) existing car parking spaces in Boree Street, which would normally be required to be taken up on site as a condition of development consent. As in this case, car parking is not to be provided on site and the car parking contribution is to be paid in lieu thereof, a contribution must still be paid for the loss of existing street parking. In this regard, Council is prepared to accept that two car parking spaces would be lost in providing access onto the land as a result of redevelopment, therefore, in accordance with the attached notice the conditions referring to this matter have been amended. 24 The letter referred Mr Warren to Mr Peter Gray for any further enquiries. The attached notice was dated 28 July 1989, and advised that pursuant to s 102 of the EPA Act the DA was amended, including an amendment to clause 13 which changed 48 spaces to 47 spaces and plus 5 spaces to plus 3 spaces for the loss of street parking in Boree Street. It changed the amount from $168,540 to $159,000. Otherwise the amounts were unchanged, making a total of $161,550 instead of $171,090. That notice advised that s 102 of the EPA Act conferred a right of appeal to the Land and Environment Court in respect of any dissatisfaction with that determination. 25 On 15 August 1989 the Town Clerk provided a further report to the defendant in relation to the ongoing negotiations for the purchase of the Boree Street properties. He was authorised to continue those negotiations with an increase in the defendant's offer in respect of one of those properties. 26 On 1 September 1989 the defendant issued a Building Permit for the development of the Pavilion. On 3 October 1989 the defendant adopted a recommendation that "the City Engineer submit a report on the provision of additional car parking in the Ulladulla Central Business District". On 9 October 1989 the Town Clerk advised the City Engineer that in preparing his report he should give consideration to "the provision of temporary car parking arrangements in the Ulladulla Central Business District, particularly, to overcome the inadequate parking facilities over the Christmas holiday period". 27 On 20 October 1989 the plaintiffs paid the sum of $161,550 to the defendant pursuant to condition 13 of the Development Consent as amended in the notice of 28 July 1989. 28 On 7 November 1989 the Town Clerk submitted a further report to the defendant in relation to the ongoing negotiations for the purchase of the Boree Street properties. He recommended proceeding with the acquisition with the necessary funds coming from the existing s 94 contributions and from "General Fund Revenue s 183(3) Land Acquisition Loan 1989/90 Allocation". 29 On 19 December 1989 the City Engineer submitted a report in relation to car parking that included the following: The "need" for additional car parking in Ulladulla has been under investigation for some time although it must be said that the Boree Street Carpark only reaches saturation for approximately 20 days per year. A daily check of this area in the week ending 1/12/89 indicated that on Friday it was fully utilised while Monday and Thursday mornings it was intermittently full. There were ample spaces available on Tuesday and Wednesday. This pattern can be expected to continue until school holidays start when it can be expected that demand will increase. The same situation applies for a few days at Easter. At the same time the East Ulladulla Carpark is rarely fully utilised. Council would be aware that the need to provide for future parking has been identified, particularly as new developments in the Boree Street/Green Street area are unable to provide on site parking. Negotiations to purchase three lots in Boree Street are in progress and agreement has been reached on one lot. However, this lot contains some buildings and the owner uses it to store building materials and Council has agreed that he may continue to use the land of the six months. It is unlikely that Council will receive title to the land prior to the holiday season but negotiation with the owner may allow limited use of the area for overflow parking. Of the other two lots, one is already used for staff parking by arrangement between the Plaza Shopping Centre and the owner while the other contains a small dwelling. Staff parking is limited to Boree Street and other areas more remote from the shopping centre and little would be gained if the parking on private property was taken over as public parking. Many shop and bank staff make use of the Civic Centre car parking and spaces are usually available in this area. Use of this area for staff parking should be encouraged and I understand that Council's policing of the time restrictions in public car parks is to be intensified over the holiday period to ensure all day parking by staff is not reducing the availability of short period parking spaces. RECOMMENDED that negotiations with the owner of the property in Boree Street which Council has agreed to acquire take place with a view to allowing overflow parking within the property. 30 In February 1990 the plaintiffs' new architect, Robin McKay, wrote to the defendant and provided a sketch regarding a loading bay on the Pavilion site in Boree Street. The development consent required the provision of a loading bay within the property as indicated on an amended drawing submitted to the defendant on 5 June 1989 but amended in accordance with the plan provided to Mr Warren with the development consent. On 28 February 1990 the defendant wrote to Mr McKay in terms that included the following: As you would appreciate, servicing this development is to occur totally off-street and is to be designed in a manner capable of withstanding the expected service vehicle. This was explained to Mr Pavlakis and his Architects Warren and Partners Pty Ltd during the course of consideration of the application and it was always understood that the adjoining property owner Mr Rowen was in agreement with this concept as it favoured both developments. 31 The letter advised that because the submitted design did not satisfy the traffic criteria required for the type of service embayment, the defendant would not agree to amendment of the requirement originally imposed. The letter referred Mr McKay to Mr Peter Gray for any further enquiries. 32 Although the actual document is not in evidence, it is apparent that the defendant prepared a document entitled "1990 Car Park Construction and Improvement Strategy". On 6 March 1990 in accordance with that Strategy it was decided to refurbish the existing Boree Street Car Park with "hot mix, lighting, landscaping Stage I" at a cost of $33,024. 33 On 2 April 1990 the defendant received advice that the purchase of one of the Boree Street properties (Lot 24, Section 3, 90 St Vincent Street) had been completed. The defendant's documents included the following notation: The subject land was purchased from Mr W. Millard for $200,000 and has a frontage to St Vincent Street and runs through to Boree Street. The Boree Street part of the property is to be used for car parking and an amount of $78,500 was voted from Section 94 Contributions for this purchase. On the St Vincent Street frontage is a cottage presently occupied by Ulladulla Family Day Care and will continue to be used for this purpose. An amount of $121,500 was allocated from General Fund Revenue Section 183(3) Land Acquisition Loan 1989/90 allocation to pay for this part of the acquisition. 34 On 1 May 1990, after referring to negotiations in relation to the purchase of Lot 2 and Lot 251 in Boree Street, the Town Clerk reported to the defendant that the Deputy City Engineer was "of the opinion that because of the lack of off street car parking in the Central Business District of Ulladulla and the pressing need to provide increased parking", the defendant should proceed to acquire these two lots. The defendant adopted that recommendation on 1 May 1990. The purchase of Lot 2 was completed on 22 June 1990. On 5 July 1990 it was noted that the defendant was still negotiating for the purchase of Lot 251, and that when the property was acquired "all properties identified by the City Planner for car parking will have been acquired". After further negotiations with the owner of Lot 251, it was decided on 7 August 1990 that the defendant would resume Lot 251. 35 It is apparent that Mr Pavlakis appealed against the conditions imposed by the defendant in respect of the paving and landscaped "bubble" treatment required at the Boree Street/Green Street intersection. A report of the City Engineer of 7 August 1990 included the following: This matter has been reviewed and it is recommended that the bubble treatment not be carried out at this stage as the overall parking requirements of Ulladulla are currently under consideration and the treatment of this intersection may well be different to that proposed in this development. However, the owner of the development has appealed against the condition requiring full paving and claims to have misunderstood the original condition of consent. The development includes a wide covered walkway within the property and the owner believed it was this walkway that was required to be paved. He also claims that some discussions regarding the bubble treatment lead him to believe Council would be responsible for paving the corner area. It would appear that some confusion may have existed regarding the exact limits of the required paving. The original applicant was a firm of architects and discussions were undertaken with them to clarify the requirements but they are no longer involved with the project. The owner has now requested that Council assume responsibility for some 140 square metres of paving plus any future changes if and when a bubble is constructed. 36 The report went on to refer to a possible compromise, with the defendant assuming responsibility for the cost of repaving 65 square metres of the area and a suggested report to the Works committee regarding allocation of funds in respect of such compromise. 37 On 20 August 1990 it was noted that the Boree Street part of Lot 24 was to be used for car parking. 38 The Pavilion was completed in November 1990 at a cost of $1.173 million excluding the cost of the acquisition of the property. 39 On 11 June 1991 Warren Partners wrote to the defendant in respect of their current planning of a new development for another client of Lots 8 and 13, east of the Boree Street Car park on the eastern side and western side of the Princes Highway. That letter included the following: We can see an obvious need for an updated Council car parking both immediately and for the future. If this existing car park was increased in area by 100 to 150% then the existing parking problem would be alleviated. This could be planned by leaving the rear of the shops with enough natural light and truck servicing, and two levels of reinforced concrete car park extension added to 2/3rds of existing car park area. This structure could be linked to the new Council land on the west of Boree Street at a later date. It also affords the prospect of linking at all levels to our Client's property, and a bridge link over the Princes Highway to our Client's other property, and ultimately to the new foreshore promenade facing the sea. Warren Partners offer to financially fund a new 2 or 3 level car park along Boree Street as described and lease back to the Council or arrange with the Council a payback system to pay for the car park. Alternatively, the Council may consider paying for the new car park as it is built. 40 On 21 June 1991 Mr Warren met with representatives of the defendant including Mr Napper, Mr Evans, Mr Green and Mr Dean in relation to the proposal in the letter of 11 June 1991. On 27 June 1991 Mr Warren wrote to the defendant confirming the discussions held at the meeting on 21 June 1991, including the assessment of the cost effectiveness of the proposal compared to the future purchase of ground level land for Council car parking around the Boree Street area. 41 On 7 August 1991 the defendant's records noted the acquisition of Lot 251, and that it would "form part of the Boree Street Car Park". That acquisition was the last of the Boree Street properties to be acquired as planned in December 1988 for "new car parking". The Boree Street properties were within a walking distance of 150 metres from the Pavilion. The total purchase price of the acquisition of the Boree Street properties was $428,000 of which $314,903.28 was sourced from the s 94 Contributions fund including the amount of $159,000 paid by the plaintiffs. 42 On 10 September 1991 the defendant considered the possible purchase of Lot 250, adjoining Lot 251 which, it was noted, "was purchased by Council with the dual purpose of provision of land for future car parking as well as the establishment of a permanent venue for both the Ulladulla Family Day Care Service and the Community Development Worker". The Comments made by the City Planner were noted as: As the parcel of land backs onto land recently purchased for offstreet parking, its acquisition would strengthen Council's position in creating a major car park within 200 metres (maximum walking distance) of the Ulladulla retail area (see sketch). It also has the advantage of providing a viable construction module for future multi level car parking on the western side of Boree Street which is particularly important if long-term development options, aimed at strengthening the retail area, are to be preserved over the existing Boree Street car park. There would be no objection to the short-term use of the land and buildings as a Before and After School Care centre. 43 It was noted that there was only approximately $20,000 available in s 94 Contributions for car parking purposes but that it was likely to increase with other projects likely to be commenced in the CBD. It was recommended that negotiations be carried out for the possible acquisition of Lot 250 "to be used for the short-term for community purposes and in the longer term for public car parking purposes". The defendant adopted that recommendation on 10 September 1991. 44 On 5 November 1991 the defendant authorised the General Manager/Town Clerk to proceed with the acquisition of Lot 250 and that the necessary funds come from s 183(3) Land Acquisition Loan to be reimbursed from future loans or s 94 Contributions for Car Parking. 45 On 19 November 1991 the defendant reassessed the level of s 94 Contributions for Car Parking. It was noted that an increase was necessary because the growth in property values had led to the defendant being unable to fund adequate car parking in some areas. 46 In February 1992 the defendant acquired Lot 250. It was noted that the land was to be "used for future car parking in the Ulladulla CBD" and that it was to be leased to Before and After School Care "until such time as it is required for car parking". 47 On 17 November 1992 the defendant's Works Committee received a report by the Engineering Works Manager in which it was noted: Prior to Christmas 1991, regular checks of the Boree Street car park indicated that some spare capacity was always available. For the peak tourist season from Boxing Day to Australia Day the car park was frequently filled to capacity. Since that time the 'Pavilion' shopping complex has gained more tenants and 'Rowens Arcade' extensions were due to open on 14th November 1992. These developments will obviously generate more demand for parking spaces. The meeting with business proprietors and owners identified a number of short-term solutions. (i) Demolish the structure on Lot 251, Boree Street, which was acquired for car parking purposes and provide minimal gravel cover to allow all-day parking for business proprietors and staff. (ii) Provide and signpost clearly a walkway between St Vincent Street and Boree Street adjacent to the Community Resources Centre to allow better access from available spaces in St Vincent Street. (iii) Allow parking on Lot 202, St Vincent Street which was recently required (sic) by Council for a future community Centre. (iv) Restrict parking within the existing Boree Street west car park area to three (3) hours to allow for shoppers who find two (2) hour areas to be insufficient. (v) Approach the owners of the Marlin Hotel with a view to leasing their car park so that time restrictions may be applied. (vi) Investigate other vacant private property to determine if leasing is possible. Council would be aware that the 'Warren Partners' development proposal will impact greatly on the Boree Street car parking situation. Until this proposal has been resolved I am reluctant to recommend significant expenditure in car park extensions or upgrading. However, the first four items can be achieved at an estimated cost of $12,000 and the major proportion of this sum would need to be expended regardless of the outcome of the Warren Partners proposal. Funds are available in Section 94 Trust. 48 It was recommended that $12,000 come from the s 94 Trust Fund for car parking for demolition of the structures on Lot 251 and for provision of gravel and construction of a walkway, and that all-day parking be allowed on Lot 202 on a temporary basis. It was also recommended that the traffic committee be requested to authorise a three-hour limit on the existing car park area on the west side of Boree Street. 49 In a memo dated 28 July 1993 the defendant's Engineering Construction Manager, Mr Green, referred to the s 94 Plan in which it had been concluded that "there were adequate spaces available for the current floor space" in Ulladulla. The Plan included the following: 5.5.5 AREA 5 (i) Ulladulla – 05 CARP 0001 Provision of Future Parking Requirement – Ulladulla C.B.D. It is proposed to provide an additional 386 spaces in the core area as follows: Construction of a car park between Boree Street and St Vincent Street. Council has already acquired 5 Lots and will acquire a further lot to enable a 169 space ground level car park to be constructed, resulting in a net increase of 121 spaces. Completion of the existing South Street car park It is proposed to seal the grassed area in the existing car park at South Street to provide a further 52 spaces. Construction of a parking station at Boree Street It is proposed to construct a 368 space parking station over the existing Boree Street car park. As the site is sloping part of the 2 lower levels will be excavated. The project will result in a net increase of 213 spaces. 50 In 1993 the defendant commenced publication of a Newsletter. Newsletter No 1 was entitled "Ulladulla CBD strategy". It recorded the aims and objectives of the strategy to include a compact and accessible retail area "through the provision of car parking within 150-200 metres walking distance of the retail/business area". It suggested that in order to maintain a compact and accessible "retail core" major retail developments should locate "within the area between Green Street, South Street, St Vincent Street and Burrill Street South" and that "multistorey car parking should be encouraged over existing public car parks to allow increased retail floorspace in the vertical plane, thereby improving the compactness and accessibility of the centre". Newsletter No 2 entitled "Ulladulla CBD Strategy Draft Development Control Plan" was issued in August 1993. It included the following: It is proposed to ensure that public car parks are located within 150 metres - 200 metres walking distance of the retail focal point ie the intersection of Wason Street and the Highway. Two public car parks have been identified in the strategy being Boree Street and to the rear of the Marlin Hotel. Both car parks are intended to be developed as multilevel car parks. In the foreseeable future ie to the year 2011, it is proposed to provide an additional 385 spaces in the retail core. This includes the construction of a multi level facility in Boree Street. 51 In a memorandum dated 2 September 1994 Mr Napper referred to the advice of the Engineering Works Manager that the land between St Vincent Street and Boree Street was "shown for car park development in the Section 94 Plan". He also noted that it was "indicated that Council should utilise the area for overflow car parking and preferably the area should be gravelled before Christmas 1994". He also noted the desire "to endeavour to provide funding for the first level of construction in the 1995/96 Car Park Programme" as there was apparently a demand for car parking at peak times. 52 Two of the Boree Street properties were made available to the public for car parking. Those properties were not sealed and parking was on the bare earth. A car park had also been constructed on the Church property in Green Street opposite the Pavilion. That was a private car park belonging to the Church although it appears that the plaintiffs may have thought that this was a public car park. 53 On 22 September 1995 a member of Federal Parliament, Mr Peter Knott MP, wrote to Mr Napper in the following terms: I write on behalf of Tom Pavlakis of 96 River Road, Emu Plains who owns a shop on the corner of Green and Boree Streets, Ulladulla. He has paid large amounts in Section 94 parking contributions. He objects to the Church recently putting up signs excluding non church patrons from parking in the close vicinity and he wants such signs removed. 54 On 17 November 1995 Mr Napper responded to Mr Knott's letter in terms that included the following: It appears that from a search of Council's records that the car park is in fact a private car park owned by the Church. The car park was constructed entirely on land owned by the Church and as such they have the right to erect signs excluding non church patrons from parking on their land. Similar action is often taken by retailers who erect signs indicating that on-site parking is to only be used by customers of a particular complex. When contributions are made in lieu of providing parking on-site these are used to acquire, construct and maintain public parking areas. Signs of the type referred to would not be appropriate in such situations where contributions come from various individual businesses. 55 By 26 February 1997, just as Lot 250 was to become vacant, the defendant was considering the sale of "the whole car park site (Boree Street, West)" to a developer. On 18 March 1997 the General Manager of the defendant provided a report to the Policy and Planning Committee in relation to the proposed development on what was then the site used for public car parking in accommodating approximately 146 spaces with a gravel surface on the Boree Street properties. The report reviewed the number of car parking spaces that would be needed if the proposed development were approved. It concluded that if all existing kerbside parking in Boree Street was maintained, the parking provision would be reduced by 178 spaces and would leave a surplus of 1. The report included the following comment from Planning Services: The application is over 5 allotments between Boree Street and St Vincent Street which have been purchased by Council to provide approximately 147 gravel parking spaces to date. In addition, a section of Boree Street is proposed to be closed and purchased resulting in a further loss of 10 parallel kerbside spaces. Marginally over half the parking west of Boree Street is signposted with a 3 hour limit, with the balance being all-day parking. Parking surveys indicate the whole car park is well utilised at the moment. Funding has also been allocated to construct an additional 22 spaces on the fifth allotment. The majority of this existing car park was included in the Section 94 Plan as a part of project 05 CARP 0001 being three car parking projects in Ulladulla (at-grade car park between Boree Street and St Vincent Street, extension of at-grade car park behind Payless South St, multi-level car park Boree St east). No contributions have been received for this project since the adoption of the S94 Plan in 1993. The Section 94 Plan assumed that Council will provide 70% of future parking (386 spaces) for which contributions would be taken and 30% (159 spaces) would be provided on-site by developers. Preliminary investigations based on Council's recent decision to delete stand-alone multi-level parking options from all parking strategies indicate an at-grade parking contribution rate could be in the order of $7,000 based on necessary land acquisition and construction i.e. 213 spaces land acquisition $950,000 and construction cost $416,000. … Council will be committed for the shortfall if any discount is allowed. Council will also be committed to replace the spaces provided for on the existing site. … In the immediate and longer term it will be necessary for Council to meet the demands as outlined in the Section 94 Plan. If the development is approved it may be necessary to revise figures relating to the ratio of spaces provided by the S94 Plan as against spaces provided on-site by developers. 56 The development of a supermarket on the site of the Boree Street properties was approved and in September 1997 the defendant caused the publication of the following Public Notice: Interim Car Parking Arrangements Ulladulla CBD The Boree Street west car park has recently been closed to allow the construction of a supermarket on the site. The existing parking will be replaced by an underground car park. To compensate for the temporary loss of these car parking spaces a number of new car parks are being developed by Council in Ulladulla CBD. 60 extra spaces are being provided in the South Street car park, to be completed prior to Christmas 1997. 43 extra spaces have been provided in a new car-park off St Vincent Street. 33 extra spaces have been provided in a new car-park off Boree Street. 4 extra spaces have been provided at the western end of Wason Street. Council in late 1996 also provided an additional 42 parking spaces onstreet in St Vincent Street. The new supermarket and associated car-parking is expected to be completed by Easter 1998. Other opportunities for providing temporary car parking on vacant sites are being investigated. Council regrets any inconvenience caused by the temporary closure of the Boree Street west car-park. Council will encourage business owners, employees (and shoppers where possible) to use the unrestricted car-parking rather than short term car-parking to ensure maximum availability of car-parking in the Boree Street car-park. Council would appreciate everyone's assistance and co-operation during this temporary period. Any other suggestions regarding temporary car parking arrangements will be considered. 57 Retailers in the area attended a meeting with the defendant's representatives in October 1997 to discuss the "parking situation". One owner of a shop in Rowen's Arcade wrote to the defendant by letter dated 23 October 1997 complaining about the lack of car parking spaces available in the Boree Street area by reason of the supermarket development. The defendant did not respond to that letter until 12 January 1998 by letter that included the following: At the most recent meeting of the Ulladulla CBD Advisory Committee it was revealed by senior Council staff that the core central business district on the western side of the highway has a deficiency of approximately one hundred parking spaces. This was only able to be determined with any accuracy as a result of extensive investigations undertaken in 1996 into actual parking demands in the commercial areas of the Shoalhaven. The resolution of Council early in 1997 to abandon future proposals for multi-level parking in Ulladulla was largely as a result of a Nowra-based initiative which was extended to include Ulladulla, rather than a wish expressed by the business community in Ulladulla. Following discussions of this matter at the most recent meeting of the Advisory Committee, Council has resolved to reconsider multi-level car parking for the Ulladulla CBD. As a result of this recent decision of Council to refer to multi-level parking in the future, staff within the Planning Services Division and the Engineering Works Division are re-evaluating options for future multi-level parking and how they can be financed. The results of these investigations will be referred to a future meeting of the Ulladulla CBD Advisory Committee. 58 On 20 March 1998 the Coles supermarket opened. On 16 June 1998 the defendant adopted recommendations that included the provision of additional parking west of the Princes Highway and "uphill of the new Coles development" with the proceeds of the sale of the Coles site to "be utilised to provide the first stages of the additional parking uphill of Coles". Plans were put in place for further parking spaces further South of the Coles site and further away from the Pavilion than the 200 metre walking distance. On 27 October 1998 the defendant adopted a recommendation that the subject of multi-level car parking be put back on the agenda "for further discussions in the future". On 29 December 1998 Mr Napper wrote to Mr Russell Smith, the Member for Bega, in terms that included the following: Council recognises the imbalance of demand for car parking on the western side of the Princes Highway (Boree Street) to the eastern side which has been caused, to some extent, by the Coles complex. To endeavour to alleviate the problem Council has recently acquired one allotment and has had preliminary discussions on two other lots without success at this stage. Recent car parking assessments has confirmed the need for these two additional allotments and acquisition of two further allotments will be pursued. 59 The letter advised that a 12 month lease had been taken out over the former Marlin Carpark and that on 15 December 1998 the defendant had resolved to review the long-term strategy for community facilities in the area, including a resolution that the general manager allocate the resources necessary to bring to a satisfactory conclusion the parking arrangements for the Ulladulla CBD. 60 On 25 February 2000 the Property Services Manager of the defendant wrote to Mr Pavlakis inquiring of him as to whether the Pavilion was for sale. On 11 May 2000 the General Manager of the defendant reported on a number of matters including car parking. In respect of car parking the report stated: The number of spaces required to be provided by section 94 has been greatly reduced because all developments in the CBD since 1993 have provided their own car parking. A number of reports to Council have indicated it is, therefore, difficult to justify the provision of multi-level car parking as a Section 94 Plan project. Should the tendency for on-site provision continue, only a limited amount of publicly provided car parking by Council will be required. It is, therefore, still considered prudent for Council's Section 94 Plan for car parking to be limited to a number of at grade spaces which can more easily be amended as the demand increases or decreases. Demand is and will remain for some time west of the Princes Highway. 61 On 7 June 2000 the plaintiffs' solicitor wrote to the defendant advising that the plaintiffs were prepared to strata the Pavilion and sell all or any of shops 5 to 8 and 19 to 22 to the defendant. The letter also advised that the plaintiffs would consider selling the whole complex to the defendant based on a reasonable valuation by an independent valuer. The defendant made contact with a valuer and on 3 July 2000 advised the plaintiffs' solicitor that it was awaiting a valuation. In November 2000 the plaintiffs lodged with the defendant a DA for Strata Subdivision of the Pavilion. On 29 November 2000 the Mayor, Mr Watson, wrote to the plaintiffs in the following terms: Greetings Thank you for submitting an Application to the Shoalhaven City Council. It is really great, that you have decided to proceed with your application. I fully understand the extensive consideration and the effort that has gone into your proposal. Your decision to go ahead is of course, a very significant personal commitment. Once your proposal is approved and you proceed with your project, you will have made a significant contribution to boosting the local economy. Developments such as yours, regardless of size, play a vital role in increasing the employment opportunities in the Shoalhaven. Your project is important to me, and if you experience any problems with your application, or, you would like assistance with any other Council related matters, please feel free to contact me at any time. 62 By letter dated 2 January 2001 the plaintiffs offered to sell to the defendant shops 19 to 22 of the Pavilion for $480,000 for the four shops. On 11 January 2001 the defendant granted consent to the plaintiffs' DA for strata subdivision of the Pavilion. On 24 January 2001 the defendant's Property Services Manager wrote to the defendant's Planning Services Manager and to Mr Peter Dun, the Corporate & Community Services Manager, to ascertain whether they had any interest in acquiring the shops in the Pavilion. He wrote, "It should be noted that there isn't any carparking with the Centre". On 9 February 2001 the Property Services Manager wrote to the plaintiffs advising that, "there is no need for these premises and further correspondence is not required". By letter dated 27 April 2001 to Mr Dun, the plaintiffs offered to sell to the defendant shops 11 to 22 of the Pavilion. This offer was also declined. 63 The plaintiffs commenced proceedings in the District Court of New South Wales on 2 August 2002 seeking the return of the s 94 contribution plus interest on the basis that "the consideration for the payment", as a "contribution towards car parking", had "wholly failed and the defendant has had and received that sum to the use of the plaintiffs". On 13 March 2003 the plaintiffs amended their District Court pleading to include most of the claims that are now before this Court. The claim in relation to the resulting trust was added after the matter was transferred to this Court. 64 It was not until 2003 that the defendant purchased 94-96 St Vincent Street, south of the Coles complex and outside the 200 metre walking distance from the Pavilion for car parking. The TPA claim Was the 1989 representation made by Mr Gray? 65 The first question for determination on this aspect of the plaintiffs' claims is whether the 1989 representation was made. The pleaded representation is that Mr Gray represented to Mr Pavlakis that the defendant "would purchase or build a car park for use by the retail customers" of the Pavilion. Mr Robert Warren gave evidence of three meetings at the defendant's office with Peter Gray, a planning officer with the defendant, in March and April 1989. At the first of those meetings in March 1989 Mr Warren claimed that he informed Mr Gray that he had been retained to do a shopping centre of 22 shops and asked him what the Design Control Plans (DCP) rules were. Mr Gray showed Mr Warren a map and had a discussion with him about the various requirements. 66 At the second meeting with Mr Gray in March 1989, about a week after the first meeting, Mr Warren asked Mr Gray what requirements the defendant had for car parking regarding the shopping centre. Mr Gray informed Mr Warren that the defendant had a car parking policy and provision had to be made for a certain number of cars per square metre for different functions or a s 94 contribution could be paid and "the Council will provide the car park". Mr Gray advised Mr Warren that the defendant wanted a link between the Pavilion and the "Rowan's Fun Land" next door to the Pavilion. Mr Gray advised Mr Warren that if it could not be done immediately provision might be made for it. Mr Warren agreed that this would be good planning. 67 Mr Warren claimed that the third meeting he had with Mr Gray at the defendant's offices was in March 1989 or in early April 1989, he thought approximately 2 weeks after the second meeting. At this meeting Mr Warren asked Mr Gray where the Council car park would be located and Mr Gray responded: "There are two locations likely. One is the corner of Boree and Green Street as the Council is trying to buy up existing houses. Secondly, on the other side of Green Street near the church". Mr Warren advised Mr Gray that he would mention that to Mr Pavlakis and get back to Mr Gray on whether there would be onsite parking provided or whether reliance would be placed on the defendant for car parking. 68 Mr Warren gave evidence that in April 1989 a further meeting was held with Mr Gray at which Mr Pavlakis was present. Mr Pavlakis swore two affidavits that dealt with this meeting, the first sworn on 12 February 2003 and the second on 24 February 2005. In the first affidavit all that was said in relation to this meeting was: In early 1989 I attended a meeting with Robert Warren, a Mr Peter Gray from the Defendant at a site adjacent to the Pavilion at the Corner of Green Street and Boree Street, Ulladulla. Mr Gray said to me: "If you provide the money, Council will buy these old house (sic) (pointing to houses along Green Street between Boree Street and St Vincent Street and adjacent to the Pavilion) and build a car park for use by the retail customers at the Pavilion and other retail customers. They are zoned for commercial use. You can make the contribution under s 94 and this will be set out in the DA." 69 In the second affidavit Mr Pavlakis' evidence was that the following conversation took place at this meeting: Gray: If you provide the money, council will buy these old houses and build a car park (pointing to the houses on the opposite corner – Lot 10/DP 848916 and Lot 2/DP 159451). The car park will be for use by retail customers at your centre and other retail customers. They are zoned for commercial use. You can make the contribution under section 94 and this will be set out in the DA. Pavlakis: I need to provide car parking for the tenants. According to Warren, from the information he got from the Council, we should provide 55 car spaces. Gray: Yes, definitely we are going to provide the car parking for you if you pay the money. Also, the other alternative is that we own the land next to the church opposite your property on which we could build a car park. There is a public toilet on the land. 70 Mr Warren's affidavit recorded his recollection of the conversation which was that Mr Gray said: "If you do not want to provide car parking on-site, the Council will be buying the adjacent houses to your site in Green Street, and will be providing a public car park there". Mr Warren gave evidence that he asked Mr Gray: "Are you sure this will go ahead, as my client has 22 shops across the road from this site you are identifying and the value of these shops and their rentability depends on a lot of car parking. The front street parking on Green Street is not good enough and nowhere near adequate for 22 shops on the client's land". Mr Warren claims he then said: "The alternative is for my client to spend about half a million dollars to provide car parking in a basement on the site. Provided you can assure me the Council will build a public car park in Green Street and Boree Street, I will talk my client out of providing car parking under his 22 Shops. This public car parking you were talking about will add the correct car parking required for my client's 22 shops, and add the correct value to his shops so long as you can assure me the Council car park will be put in within a year or so, my client will pay the council car parking contribution you have been talking about and proceed without his under-site car parking". 71 Mr Warren gave evidence that he and Mr Gray then discussed how the monies would be paid and Mr Gray said, "the way we will do it is by way of a s 94 contribution but I promise you a public car park will be built where I showed you in Green Street". 72 Mr Peter Phelps gave evidence in the plaintiffs' case that in late 1989 Mr Pavlakis approached him regarding the possibility of leasing a shop in the Pavilion. Mr Phelps said that he travelled to Ulladulla in "early 1990" and that at a meeting on site Mr Pavlakis informed him, "Contributions have been made to Council who will use the money towards a development of a public car park across the road next to the Church". There was no mention of Mr Gray in this conversation, nor any mention of the defendant purchasing houses on the opposite corner and building a car park on that site. Mr Phelps gave affidavit evidence, sworn on 23 June 2004, that he subsequently telephoned the defendant's offices and had a conversation with Mr Gray in which he said, "Mr Pavlakis tells me that there will be car parking across the road. What is the position?" to which Mr Gray responded, "yes, that is the plan". 73 In cross-examination Mr Phelps accepted the difficulty in fixing the time frame within which the conversation with Mr Gray occurred. He also accepted the obvious difficulty in "constructing word for word something that happened 15 years ago". What is clear is that when Mr Phelps spoke to Mr Gray there was no specificity as to the particular location for the "car parking" other than "across the road". Certainly by this time the defendant had approved and had advanced negotiations for the Boree Street properties that were across the road to the south. 74 Although Mr Gray swore an affidavit for the defendant he was not made available for cross-examination. In the circumstances and for the reasons set out in my judgments of 16 March 2005 I refused leave to the plaintiff to rely upon Mr Gray's affidavit. 75 Mr Pavlakis gave evidence that on the basis of what Mr Gray said to him at the meeting in April 1989, he instructed Mr Warren to finalise the development plans and not to include any underground car spaces. He said that if Mr Gray had not said the alleged words, he would not have proceeded with the development of the Pavilion without underground car parking or other parking being provided on site. 76 On the topic of whether an adverse inference could or should be drawn against the defendant because of the absence of any evidence from Mr Gray, pursuant to the principles in Jones v Dunkel (1959) 101 CLR 298, Mr Martin SC submitted (tr 382): Certainly your Honour can note that the history relating to the attempt to obtain Mr Gray's attendance, and indeed that an affidavit had been sworn and filed and served in these proceedings and not read ultimately because of the rulings your Honour gave. But the issue is whether it is open to your Honour to draw a Jones v Dunkel inference that his evidence would not have assisted the defendant. We submit in the circumstances that your Honour need not and should not draw such an inference. 77 This may appear to be a surprising submission on the plaintiffs' behalf but it seems to me to take proper account of the efforts, unsuccessful as they turned out to be, to which the defendant went to have Mr Gray attend to give evidence. It is also based on the submission put by Mr Martin that such an inference is not needed "simply because" there is "the evidence of Mr Pavlakis and Mr Warren which has gone in uncontradicted" (tr 382). 78 In Payne v Parker [1976] 1 NSWLR 191, at 201, Glass JA referred to the pre-requisites to the application of the principle as: (a) the missing witness could be expected to be called by one party rather than the other; (b) the evidence would elucidate a particular matter; and (c) the absence of the witness is unexplained. In this case the last pre-requisite has not been satisfied. The circumstances in which the defendant found itself were that Mr Gray, who has since left the defendant's employment and was served with a subpoena, claimed to have medical and social problems supported by some medical evidence which prevented him from travelling to Sydney from Queensland to give evidence. The attempts made during the trial by the defendant's legal representatives to persuade Mr Gray to travel to Sydney resulted in his apparent deep distress and in the circumstances the defendant sought only to rely upon the affidavit without calling Mr Gray. I did not allow that to occur. 79 In Watson v Foxman & Ors: Commonwealth Bank of Australia v Foxman Holdings Pty Ltd (Receiver and Manger Appointed) and Others (2000) 49 NSWLR 315 McLelland CJ in Equity was considering representations allegedly made four years and two years prior to the commencement of the litigation in 1994. His Honour said at 318-319: Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously describe as "misleading") within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act ), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not … attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen (1940)63 CLR 691 at 712. Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a causes of action based on s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), in the absence of some reliable contemporaneous record or other satisfactory corroboration. That is the position in the present case. There is no contemporaneous document in evidence which supports the making of any such promise or representation as is relied on and no other satisfactory corroboration. 80 These principles are applicable to this case. It is now 16 years since the representation was allegedly made. Mr Pavlakis' first affidavit was not sworn until 2003 and Mr Warren's first affidavit was not sworn until 2004. Notwithstanding the lack of evidence from Mr Gray it is still necessary to assess the evidence of Mr Pavlakis and Mr Warren in the light of all the evidence including the contemporaneous documents in deciding whether Mr Gray made the alleged representation. 81 It is reasonable to conclude from the memorandum of 13 December 1988 that Mr Warren was having discussions with the defendant in late 1988 in which it was indicated by him that the plaintiffs were willing to pay a s 94 Contribution in the vicinity of $150,000 in lieu of providing car parking spaces on the Pavilion site. Indeed Mr Pavlakis accepted that Mr Warren did give that indication to the defendant as early as December 1988 (tr 63-64). When Mr Warren was shown the memorandum of 13 December 1988 he said that he was not aware it "was so early" and that he thought "it was in probably January or certainly February and March" that he was involved (tr 69). The first plan that Mr Warren submitted to the defendant on 8 February 1989 did not have any provision for car parking on site, however Mr Warren gave the following further evidence in cross-examination (tr 77-78): Q. But I take it as at the day you spoke to Mr Gray about this on site, this meeting on site, do you say at that stage Mr Pavlakis had completely abandoned the thought of doing underground car parking? A. Yes. Q. It was never his intention at the time that you were meeting with Mr Gray to put underground car parking in? A. It was on the cards until Mr Gray told us explicitly on site in that final time that he had pointed to the various houses and said, "That's where the Council will put their car park". Q. So I take it then that it was on the cards it was still a proposal of Mr Pavlakis up until this meeting in April; is that right? A. Yes. Q. So you had no instructions at that stage to prepare any final plans associated with this development until after that meeting in April; is that right? A. That's correct. Q. Otherwise would you have had to be in the situation where if you weren't satisfied, or Mr Pavlakis hadn't been satisfied, about any other car parking you would have to consider the underground car parking; is that right? A. Yes. Q. So it was determinate so far as that meeting was concerned with Mr Gray as to whether the plans you drew had underground car parking or not? A. Yes. 82 Mr Warren was then shown a copy of some plans and he gave the following evidence (tr 78-79): Q. You recognise they are the ones that were submitted to the council for the purpose of the development application? A. Yes, sorry, they are not development application plans, but it looks like these are the early plans. Q. I'm suggesting to you, Mr Warren, that these are the plans that you submitted to the council with the development application dated 10 April 1989? A. No. these are not the DA plans. These are some earlier plans. I can tell that because there is no loading dock and one or two other things. Q. I had better check that overnight. A. Actually they are the plans. On the first page you can see that the loading dock is in it. There is a landscaping plan here that doesn't pull that up, but, yes, these look like the documents, I agree. Q. You see the date on them, don't you? A. Yes, 19/3. Q. You drew these plans up well before any meeting with Mr Gray in April, hadn't you? A. Yes, these are plans that may well have been submitted. They had all the hallmarks of a DA. There is the schedule of areas, and so on. Q. Can I show you another document, Mr Warren. You will see that's the application that you made, was it not, that had those plans accompanying them made on 9 April received by the Council on 10 April? A. This certainly is the development application front sheet, yes, and these were probably done in explanation early on. Other things checked. Then there is about a month between these drawings being handed in. So they may have been amended. Q. They might have been amended, Mr Warren, but the circumstances are, are they not, there was no doubt that as at March 1989 your instructions were to prepare plans which showed no underground car parking? A. We had talked about underground car parking and early on, with the advice from Mr Peter Gray, not gone ahead with car parking because the advice given was the advice that council were going to do that over the road, the Boree Street new car park, but being on-site ... Q. Just think of the question I asked you. What I put to you was that as at March, the time that you drew those plans, the circumstances were that your client had instructed you to prepare plans without any car parking? A. Yes. Q. And the circumstances were that any meeting that you had in April didn't decide whether you were going to put car parking underneath or not, did it; you had already made the plans up? A. That is not correct. Q. The circumstances are clear, Mr Warren, I suggest to you, that there is no way that within a week or 10 days you could have prepared those plans when the meeting is said to have been taken in April for the purpose of submitting it to council, could you? A. Yes, I could have done that. Q, You could have? A. Yes Q. You actually prepared them in March, though, didn't you? A. It appears as though they were drawn in March, sure. Q. And they also contain, do they not, all the corrections that Mr Fletcher asked you to do to your original sketches? A. I'm not aware of that. There is the loading dock certainly. There may have been other things, and there would have been other changes between the three or four weeks between the drawing of this and the submission of the DA. 83 It is clear that Mr Warren's recollection was not firm in respect of some aspects of what Mr Gray said to him in the meetings in March/April 1989. For instance Mr Warren gave evidence in cross examination that Mr Gray "never said" to him that "there are two locations likely" for the proposed car park (tr 71). However when he was taken to his affidavit sworn on 12 May 2004 he had to accept that he had given evidence that Mr Gray had said those words to him (tr 71). It is also clear that Mr Warren's affidavit evidence and his initial oral evidence was based on the false premise that did not accommodate the lodging of the preliminary plans with the defendant on 8 February 1989. 84 There is also the fact that Mr Gray's name does not appear on any of the correspondence as the officer dealing with the DA until after the DA is submitted on 10 April 1989. Mr Gray's name first appears on the letter of 24 April 1989. Prior to that the relevant officer for further enquiries was Mr Fletcher as identified in the letter of 28 February 1989. It is very odd that there is absolutely no record of Mr Gray having made that representation to Mr Pavlakis or Mr Warren. The plaintiffs, through Mr Warren, sought a variation to Condition 13 in the consent to the DA, the very condition in exchange for which the plaintiffs claim there was a promise to build the car park on one of the two specific sites, yet in this correspondence there is no mention of it at all. There is correspondence and memoranda over 12 years which makes no reference to it, nor is there any reference to reliance being placed on such a representation for the plaintiffs decision to proceed with the development without any car parking on site and with payment of $159,000 to the defendant. 85 It appears from the memorandum of 13 December 1988 and the plan lodged with the defendant on 8 February 1989 that the plaintiffs always wanted to construct the development without car parking. It appears to me from all the evidence that the plaintiffs wanted to know whether the defendant would allow the development of the Pavilion without the provision of on-site car parking. It is also clear that the plaintiffs had "massive holding charges" in relation to the development, as referred to in Mr Warren's letter of 3 July 1989. It was on 24 February 1989 that the defendant advised the plaintiffs that it was willing to consider a DA for the development without car parking subject to a cash contribution, in lieu of providing parking on site. That letter also advised Mr Warren of the amount of the cash contribution that would be required for 1,234 square metres in the plan, being $162,180. It also advised Mr Warren of the defendant's policy that the cash contribution would be required at the time the Building Application was submitted. In the light of this letter I find it very odd that Mr Warren would then have asked Mr Gray a few weeks later what requirements the defendant had for car parking in relation to the shopping centre when he must have known from the letter of 28 February 1989 what those requirements were. Equally it is just not credible that Mr Gray would be informing Mr Warren that "we will do it by way of s 94 contribution" when that had already been the subject of advice in the defendant's letter of 28 February 1989. 86 On 3 July 1989 when Mr Warren wrote to the defendant dealing specifically with car parking spaces and matters relating to the intersection of Boree Street and Green Street and how many car spaces would be lost, there was no mention of any suggested representation that a car park was to be built on the opposite corner. This letter was a perfect opportunity to record that Mr Gray had promised the plaintiffs that such a car park would be built. It was then only three months since the representation is alleged to have been made and there is no mention of it. 87 It is unbelievable that if this representation was made, there is no written record or claim that it was made. This is particularly so having regard to the fact that the plaintiffs' solicitor was writing letters to the defendant in 2000 making an offer to sell part of or the whole of the Pavilion to the defendant. Even prior to that Mr Warren was communicating in writing with the defendant and he did not mention it at any stage prior to being asked to give evidence in these proceedings. This is in contrast to the letter written by Mr Warren to the defendant on 27 June 1991 on behalf of another client confirming the content of discussions with the defendant's representatives in relation to parking proposals in the area. 88 It would be reasonable to expect that when Mr Pavlakis noticed that the site on the opposite corner of Boree Street was sold to a party other than the defendant and a commercial building was erected on the site, he, or his architect (or former architect) or indeed his solicitor, would have written to the defendant referring to the alleged promise made by Mr Gray and complaining that it had been broken. This did not happen. Even when he first commenced proceedings in 2002, no mention was made of any alleged representation. It was not until a year later, when the pleading was amended, that there was a claim that Mr Gray had made this representation. 89 As I said earlier it is very odd that Mr Warren would ask Mr Gray about the very matters he already had an answer to in the 28 February 1989 letter from the defendant. From this letter, Mr Warren and the plaintiffs knew that if they were to lodge the plans in the final form for total occupancy, without car parking, there would be the requirement for the cash contribution and there would also be the requirement to comply with the other conditions mentioned in that letter, namely the inclusion of the loading dock and the service corridor, the adoption of the elevations in Option B, ensuring the design related generally to the existing post office and ensuring that paving complied with the existing street scape treatment. 90 Mr Warren's affidavit evidence is that at his first meeting with Mr Gray he asked him about the DCP rules and he claimed that Mr Gray showed him a map of the area and informed him about the set-backs, height limits, floor space ratios and other requirements. Mr Warren already knew of those by March 1989. He had not only lodged the initial plan but had also received the defendant's advice in its letter of 28 February 1989. It was after receipt of the defendant's letter of 28 February 1989 that Mr Warren prepared the final plans dated 19 March 1989 for submission with the DA on 10 April 1989. I am satisfied that Mr Warren complied with the requirements set out in the letter of 28 February 1989 in preparing those plans. 91 A first meeting with Mr Gray in March does not fit comfortably or sensibly with the time frame established by the objective documentary evidence or with Mr Warren's own evidence. Mr Warren's evidence was that his first meeting with Mr Gray was "very soon after" he had been "engaged by the plaintiffs to prepare plans for the shopping centre". Mr Warren prepared his first set of plans submitted to the defendant by 8 February 1989. It seems to me far more likely that the meetings with Mr Gray would have occurred earlier than the date upon which the initial plans were lodged with the defendant. Mr Warren's claim that Mr Gray was introduced to him as someone who could help him with all his questions is also consistent with the meetings taking place at a time that he was preparing those initial plans and seeking guidance as to the defendant's policy in relation to parking and other matters. 92 However both Mr Warren and Mr Pavlakis claimed that Mr Gray met with them in April 1989 and made the representation that the defendant would build a car park on the opposite corner. It is the representation that is alleged to have been made at this meeting, upon which the plaintiffs mount their s 52 case. Mr Warren's evidence does not support a representation being made by Mr Gray at this meeting that the defendant would build a car park across the road next to the Church. Mr Warren's evidence was that Mr Gray informed him of two locations that were "likely" for a car park; one on the opposite corner and the other "on the other side of Green Street near the Church", at an earlier meeting at which Mr Pavlakis was not present. 93 Mr Martin SC submitted that the way the plaintiffs put their case was not on the basis of a representation for a specific location, but rather a representation for the provision of parking for the retail customers of the Pavilion with a "secondary representation" as to the "actual location" (tr 389). The evidence does not support this approach in respect of what was said at the meeting between Mr Gray, Mr Warren and Mr Pavlakis. It is the representation at this meeting that is relevant because that is the representation alleged to have been relied upon. Mr Warren's evidence of the April meeting is very specific. Mr Gray is no longer speaking in terms of "likely" locations. He claimed that Mr Gray said that "the Council will be buying the adjacent houses to your site in Green Street, and will be providing a public car park there". Mr Warren's evidence is that he responded with words including, "provided you can assure me the Council will build a public car park in Green Street and Boree Street, I will talk my client out of providing car parking under his 22 Shops" and "so long as you can assure me the Council car park will be put in within a year or so, my client will pay the council car parking contribution you have been talking about and proceed without his under-site car parking". Mr Gray said "the way we will do it is by way of a s 94 contribution but I promise you a public car park will be built where I showed you in Green Street". 94 Part of the consideration as to whether the plaintiff has proved "to the reasonable satisfaction of the court" that Mr Gray made the alleged representation has involved the assessment of the whole of the evidence and the later claims that further representations were made. In that process I have come to the conclusion that Mr Pavlakis' evidence in that regard is vague, confused and unacceptable. There are also other problems with the evidence. There is nothing in writing that would support the alleged representation having been made by Mr Gray. In neither of his affidavits relating to the alleged meetings with Mr Napper in 1990 and 1993 and Mr Watson in 1995, 1997, 1998, 1999 and 2000 does Mr Pavlakis claim that he suggested to those men that Mr Gray made the alleged representation, nor was it suggested to Mr Napper or Mr Watson in cross-examination that Mr Pavlakis had claimed that Mr Gray had made the representation. Even when Mr Pavlakis spoke to Mr Phelps there was no mention of a particular representation being made by Mr Gray. There was no mention of Mr Gray. 95 Notwithstanding all the problems with the evidence to which I have referred, it is Mr Warren's evidence of the meeting with Mr Gray at which Mr Pavlakis was present, whenever that really was, that tips the balance ever so slightly in favour of the plaintiff. There may be a question of whether that finding amounts to a feeling of "actual persuasion" as referred to by McLelland CJ in Eq in Watson v Foxman, however I am going to assume that it does. 96 I am of the view that I should not accept Mr Pavlakis' evidence of what was said at this meeting where it is not supported by the evidence of Mr Warren in his affidavits. On that basis the evidence of the representation is quite specific that Mr Gray represented that a car park would be built on the corner of Green Street and Boree Street. I do not accept Mr Pavlakis' evidence that the land near the Church was discussed at this meeting. I have no real confidence in Mr Warren's evidence or Mr Pavlakis' evidence as to when the meeting with Mr Gray and Mr Pavlakis occurred. 97 Although I have reservations about it, I conclude that it is more probable than not that Mr Gray represented to Mr Pavlakis in Mr Warren's presence that the defendant "will be buying the houses" on the opposite corner of Boree Street and "will be providing a public car park there". Did Mr Gray have authority to make the representation? 98 The only written delegation of authority that the defendant gave to Mr Gray that is in evidence is a delegation of authority to issue Certificates under Section 149 of the EPA Act and sign such Certificates in the name of the Town Clerk on behalf of the defendant. 99 Timothy Gavin Fletcher, the Director of Development and Environmental Services of the defendant and Mr Gray's supervisor at the relevant time, gave evidence that in 1989 Mr Gray held the position of Southern Area Planner. In 1989 Mr Fletcher did not have delegated authority to determine an application for a stated value of $750,000, the amount relevant to the DA for the Pavilion, nor did those assistant planners, of which Mr Gray was one, have such authority. Mr Fletcher's unchallenged evidence was that Mr Gray had no authority to bind the Council in respect of any Development Application, and had no delegated authority in April 1989 to determine an Application. 100 Notwithstanding the lack of actual authority, the plaintiffs submitted that Mr Gray had ostensible or apparent authority to make the representation. In this regard they relied upon the following statement in Bowstead & Reynolds on Agency 17th ed at 307: Where a person, by words or conduct, represents or permits it to be represented that another person has authority to act on his behalf, he is bound by the acts of that other person with respect to anyone dealing with him as an agent on the faith of any such representation, to the same extent as if such other person had the authority that he was represented to have, even though he had no such actual authority. 101 The plaintiffs rely upon the defendant's letter of 24 April 1989 in which the Town Clerk stated that "the planning officer dealing with this application is Mr P Gray" to suggest that Mr Gray had ostensible authority to make the representation which was made some weeks prior to this letter, in early April 1989. As I have said, prior to this letter there was no mention of Mr Gray dealing with the application. It was Mr Fletcher who was referred to in the letter on 28 February 1989 as the person to whom enquiries regarding the matter should be made. Mr Gray was only referred to as "dealing with" the matter some weeks after the DA was lodged. Mr Warren said that Mr Fletcher, or one of the other officers of the defendant, introduced Mr Gray to him as the person who would "help" him "with all "his "questions". Although Mr Warren did not give this last-mentioned evidence in either of his affidavits, it would appear that, by inference from his other evidence, it would have been in early March 1989, nearly two months before the letter suggested that Mr Gray was "dealing with" the DA. 102 I do not accept that the letter of 24 April 1989 establishes apparent or ostensible authority in Mr Gray to make a representation that the defendant would purchase land and build a car park on the corner of Boree Street and Green Street. Even if that letter did establish such authority, it does not assist the plaintiffs in this case because the representation was made weeks before this letter and before the DA was lodged at a time when the defendant had specified Mr Fletcher as the relevant officer for inquires. Mr Gray was introduced to Mr Warren as a person to whom questions could be directed, and from whom help could be received in relation to the DA. He was not introduced as a person who could convey promises of what the defendant would certainly do in the future. 103 Mr Warren has had quite a deal of experience in dealing with development applications and councils, and in particular with the defendant. His evidence was that at the time that he was meeting with Mr Gray he knew that "by reason of his position as an assistant town planner, he could not bind the Council in regard to their future actions" (tr 68). However in later evidence he said that he was not aware that "Peter Gray did not have the authority to advise or bind the Council to what he was saying" (tr 73). His evidence in re-examination was that he had assumed that Mr Gray was an assistant town planner and he then gave the following evidence (tr 81-82): Q. Did you have an understanding as to what Mr Gray's role was concerning the development application? A. Yes, it was plain to me, and from my experience, the assistant town planners, or planners, assisted architects and people who were planning developments on all aspects of developing the property. Q. And what aspects particularly were you concerned about? A. I was concerned about car parking. I was concerned about drainage, road traffic, landscaping and a number of other things, but more particularly car parking at this stage. ….. Q. Did you have an understanding about his role concerning specifically car parking relating to this application for development? A. Yes, I did have an understanding. Q. What was that? A. He was in an advisory position to tell me, as an architect, about any future plans that council had for car parking, what the requisites were for car parking – in other words, what the development control plan recommended and anything that the LEP, local environmental plan, had in mind. So I went there specifically for all information I could get on car parking. 104 In this evidence in re-examination in which Mr Warren had a rather unfettered opportunity to expound upon his understanding of Mr Gray's role, he did not suggest that he understood that Mr Gray could make promises on the defendant's behalf. Notwithstanding the apparent differences in Mr Warren's evidence about his understanding of Mr Gray's capacity to bind the defendant as to its future actions, I am satisfied on the whole of his evidence that he was of the view that Mr Gray did not have authority to bind the defendant as to its future actions. I accept his evidence that he understood that Mr Gray was able to inform him about what he understood were the defendant's future "plans" in an "advisory" role, in relation to parking. Mr Warren understood that Mr Gray could inform him about what Mr Gray understood of the defendant's plans, but that is a very different matter from making a promise that the defendant would certainly fulfil or implement a plan. 105 Mr Pavlakis did not give any evidence-in-chief in relation to what he understood was Mr Gray's authority to bind the Council. However when he was asked whether he ever complained to Mr Gray that he had broken his promise, he said he did not and that "he wasn't there". However he did say that he drove to Nowra "to talk to anyone I can find important in the Council". His version on this occasion was that he spoke to "the girl in the Council" and said "I want somebody important. I want to talk to somebody about the car park". He then said that he spoke to that person and "he accept the explanation and he listened to me and that was the conversation" (tr 53). From this it can be seen that Mr Pavlakis knew that there were employees of differing "importance" in the defendant. I have no doubt that Mr Warren knew that Mr Gray could not make promises to the plaintiffs that the defendant would certainly do one thing or another in the future such as to bind the defendant. Mr Warren was the agent of the plaintiffs and his knowledge in this regard is imputed to the plaintiffs. 106 There was no proper or reasonable basis for the plaintiffs to assume that Mr Gray had authority to make the representation on behalf of the defendant at the time it was made. This is so whether the representation was made in early April 1989 or earlier. Was the representation made in trade or commerce? 107 In Concrete Constructions (N.S.W.) Pty Ltd v Nelson (1990) 169 CLR 594, Mason CJ, Deane Dawson & Gaudron JJ said at 603-604: … it is plain that s. 52 was not intended to extend to all conduct, regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business. Put differently, the section was not intended to impose, by a side-wind an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities. What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. 108 In Mid Density Development Pty Limited v Rockdale Municipal Council (1992) 39 FCR 579, Davies J considered, inter alia, whether Rockdale Council was a trading or financial corporation such as to fall within the definition of "corporation" in s 4(1) of the TPA. His Honour said at 584: The issue is, therefore, whether Rockdale's trading activities or financial activities formed a sufficiently significant proportion of its overall activities as to justify its description as a trading or financial corporation. The adjectives "significant" and "substantial" were considered in the context of characterisation in Deputy Commissioner of Taxation (Cth) v Stewart (1984) 154 CLR 385 at 390, 397 and 399-400. The activities must be of a sufficiently significant or substantial scale as to confer the character of "trading" or "financial" upon the corporation. The relationship between the activities relied upon and the overall activities of the corporation, and the extent of those activities in comparison to the extent of the corporation's activities overall are relevant. 109 The plaintiffs submitted that the activities of the defendant that bore a "trading" or "financial" character were substantial and not an insignificant part of its overall activities in 1989 when the representation was made. In this regard reliance was placed upon the City of Shoalhaven Statement of Accounts for the year ending 31 December 1989 (the Accounts) (Ex L). The Statement of General Fund Revenue Account records total revenue income of $40,050,699.78 and total revenue expenditure of $33,663,637.85 with a net result before capital movements of $6.387,061.93 million. 110 The plaintiffs submitted that the items within the Accounts described as "economic services" and "unclassified services" should be considered as revenue income of a trading or financial character. They are recorded as $4,273,328.84 and $5,635,171.46 respectively, totalling $9,908,500. The revenue expenditure for those items are listed as $3,550,706.74 and $3,205,498.81 respectively totalling $6,756,205 with a net result of $3,152,295. It was submitted by the plaintiffs that (a) the defendant made a positive net result before capital movements from economic services in the sum of approximately $0.7 million and (b) the defendant made a positive net result before capital movements for unclassified services in the sum of approximately $2.43 million. It was submitted that these items represent a significant proportion of the defendant's overall net result of $6.38 million 111 The Schedule within the Accounts for "economic services" includes income in relation to "Building Control". The majority of income under that heading is from building permits recorded as $478,878.91. "Caravan & Camping Grounds" is another category with the majority of income from "rents, fees and sundry income" recorded as $3,674,610.77. Another "economic service" is listed as "noxious weeds and pest control" with a reference "Private Works – Sect 474/475B". The latter entry appears to be a reference to s 474 and s 475B of the Local Government Act 1919 by which a council was able to eradicate noxious plants on private land in prescribed circumstances and recover from the land owner or occupier "any costs and expenses reasonably incurred". There does not appear to be any capacity for the councils to make any profit from this work. The income from "quarries and gravel pits" and "tourism" is recorded as $3,852.13 and $4,906.50 respectively. 112 "Unclassified services" record sundry income from "private works" with a reference to "sect 499/500" of $548,794.24. That appears to be a reference to s 499 and s 500 of the Local Government Act 1919. Section 499 provided that councils could carry out work "of any character" for other councils, public bodies or institutions "at the cost of that council, body, or institution". The council carrying out the work was limited to charging the other council, or body or institution, the "actual cost" of carrying out the works, except in the case of work carried out pursuant to tender or quotation (s 499(2)). In this latter regard the council was limited to charging the amount in the tender or quotation. It may be that in this respect there was an ability to achieve an element of profit but there is simply no evidence in relation to the nature of the "private works" in the accounts. It is not possible to know whether this was at "actual cost" or not. 113 Section 500 provided that "on the application of the owner or occupier of the land or premises", councils could carry out paving, kerbing, guttering, road-making, draining, tree-planting or gardening on the land and could connect the premises to utility services, "or carry out any other works whatever which may be lawfully carried out on the land or the premises". The ability to carry out this work was conditional upon the "applicant" paying or agreeing to pay an amount equal to the "actual cost" to the council of carrying out the work, or, in certain circumstances, an amount estimated by the council to be "higher than, equal to or lower than the actual cost and agreed on by the council and the applicant before the carrying out of the work". There is nothing within the accounts specifying whether the work was carried out at "actual cost" or otherwise. 114 There is within this schedule a reference to "interest on investments" with the sub categories of "investment with bank" and "long term debtors". The total for the former is recorded as $3,168,064.34 and the total for the latter is recorded as $51,865.74. There is also income from gross sales of land recorded as $236,136.43. Income from rents for shops and offices and land and buildings is recorded as $302,038.81. 115 In 1989 the defendant's financial accounts were prepared as prescribed by the Local Government Act 1919. Under that Act the defendant was required to establish a number of "funds", including "a trading fund in respect of each trading or business undertaking" (s 106). Under Part XVIII of the Act, "Trading", s 417 empowered councils to "establish, acquire, and conduct trading undertakings". Section 418 of that Act provided that the "trading undertakings" were the supply of electricity, gas, hydraulic power, the business of a ferry service, the business of motor bus service, the business of the conveyance of goods, the supply of ice, the supply of building materials, the operation of a coalmine, the supply of liquefied petroleum gas and certain services ancillary to these undertakings. 116 The revenue and expenditure in relation to the economic services and the unclassified services are brought to account in the General Fund in the Accounts. The only trading fund in the Accounts is the "Gasworks Trading Fund". The defendant's net operating income before capital funding recorded in the Statement of Gas Trading Fund Revenue Account is $148,949. The defendant submitted that the net revenue derived from the trading undertakings, as a proportion of the total net revenue derived by the defendant in the 1989 financial year was therefore 0.84%. 117 I am satisfied that the only trading undertaking carried on by the defendant in 1989 was the supply of gas as defined in s 418(1)(b) of the Local Government Act 1919. I am also satisfied that the such trading undertaking was not a significant or substantial part of the defendant's operation. The representation that was made was not made in the course of, or in relation to, any trading undertaking of the defendant. 118 I am not satisfied that the representation was made in trade or commerce. Did the plaintiffs rely upon the 1989 representation? 119 Mr Pavlakis gave evidence that he relied upon the representation and that it caused him to give Mr Warren instructions to prepare final plans for submission with the DA without any underground or other provision for parking on site. In assessing whether there was reliance, the subsequent conduct of the plaintiffs when it became clear to them that the car park was not built on the opposite corner is relevant. Mr Pavlakis claimed that he complained to the defendant, and that further representations were made to him throughout the period 1990 to 2001. I shall review that evidence and deal with those claims and return to this question later. 1990 Representation 120 Mr Pavlakis gave evidence in his affidavits sworn 12 February 2003 and 24 February 2005 that in late 1990 after the Pavilion had been opened he visited Graham Arthur Napper (Mr Napper) in the Council Chambers in Nowra. In the second of those affidavits Mr Pavlakis alleged that the following conversation took place: Pavlakis: I paid a contribution for car parking yet no car parking has been provided. This centre can't function without car parking. What is going on? Napper: The houses on Green Street, between Boree Street and St Vincent's Street have been sold to a developer but don't worry about it, the land opposite the Pavilion next to the church where there is a toilet is land owned by the Council. We are going to build a car park there in the not too distant future. 121 In the first of those affidavits Mr Pavlakis did not include any specific words that he had said, but simply claimed that Mr Napper responded to him in words very similar to the above after he had complained to Mr Napper about the "non existent additional car parking spaces to be created with my contribution". Notably there is no reference in either affidavit to Mr Gray or to any promise allegedly made by him. Indeed it seems to me that the reference in the first of the affidavits to "non existent additional car parking spaces" is a reference to a concept quite different from the building of a car park on a specific site. When he was cross examined about this alleged conversation Mr Pavlakis gave the following evidence (tr 49): Q. … Does that fairly set out what you say you spoke to Mr Napper about? A. Yeah Q. You see, you never, did you, in that statement or in that conversation with Mr Napper, say anything about Mr Gray promising you car parking would be on the opposite corner, did you? A Yes. Q. Mr Pavlakis, you haven't said anything about that in paragraph 10, have you? A. Yeah, but that's a conversation, that's why I want to see Mr Napper, and I tell him why Mr Gray promised me, with the presence of Robert Warren, those houses there, we are going to definitely put a car park. Q. Mr Pavlakis, this is where you say what you complained about being "the non-existent additional car parking spaces to be created from my contribution". That's what you told him about, didn't you? A No, I told him he never provided any car park that Peter Gray promised, and then he says, "We bought several houses on St Vincent Street and we put a car park there". Q. You see, not at any stage, did you, Mr Pavlakis, try to see Mr Gray to ask him, "what about those car parking places you promised me" did you? A. No, no, I didn't see Mr Gray. I saw Mr Napper and I saw Greg Watson. 122 The answer to the second last question extracted above illustrates the process of reconstruction 15 years after the alleged meeting. The answer has Mr Pavlakis denying that he said words that he had given evidence that he did say in his affidavit of 12 February 2003. The suggestion that Mr Napper said that the defendant had "bought several houses in St Vincent's Street" and "put a car park there" is also a confused reconstruction from what Mr Pavlakis knew of later years when that happened. In 1990 the defendant was still negotiating for the purchase of those properties. 123 Mr Napper gave evidence that between 1985 and 1993 he was the Town Clerk for the defendant and from 1992 until 2003 when he retired, he was the general manager of the defendant. Mr Napper swore an affidavit on 13 August 2004 in which he gave evidence that he did not recall meeting Mr Pavlakis in late 1990 and that "the conversation attributed to me is denied". Mr Napper said that he had checked his diary entries for November and December 1990 and did not have any entry for a meeting with Mr Pavlakis. He said that he expected that if he had a meeting with Mr Pavlakis there would be some record of it in his diary as it was his usual practice to record such appointments in his appointments diary. 124 Mr Napper was an impressive witness. He agreed to the obvious proposition that it is very difficult to take one's mind back to events some 14 years earlier than the time at which he swore his affidavit. I thought he conceded in a fair manner that the reality of the situation was that he could not recall whether Mr Pavlakis approached him in 1990, notwithstanding that there were no diary entries in relation to such a meeting. His evidence was that the land over the road near the church was not owned by the defendant, as Mr Pavlakis suggested Mr Napper had said, but was Crown land of which the defendant was probably the trustee. He gave the following further evidence (tr 139-140): Q. But what I want to suggest to you on this meeting with Mr Pavlakis in late 1990, you indicated that there was land opposite the Pavilion next to the church where there is a toilet block which was owned by Council? A. No, I don't - without research, I wouldn't make - make a statement of that nature, unless it was absolutely incorporated in a section 94 plan of Council or zoned accordingly or Council had actually devoted funds to undertake construction of such a car park but I was aware that the land was Crown land and, therefore, there is some fairly significant procedures to go through if the change of use was to be achieved and there would be no certainty that that was achievable. Q. Yes. But I want to suggest to you that you indicated that the Council was proposing to build a car park in that land next to the church in the not too distant future? A. No. Q. Well, you say you deny saying that or you just can't recall it? A I wouldn't have said it in the sense that I was aware it was Crown land and there would be very significant procedures to go through that could take years and, therefore, I wouldn't give any categoric indication to anyone that Council was going to go and do something without Council having gone through the process and-and indeed even devoted money for the project and adopted it as a project. Q. Is it fair to say that you are reconstructing what you say you would have said rather than recalling as best you can what was said? A. No, I think it's - I am just saying that type of statements I would have made to anyone who made any inquiry relating to that use of land and I would be well aware from other dealings in Crown land that that's a very onerous and very drawn out exercise if the - if the land is in fact to be re-categorised. 125 I accept Mr Napper's evidence that he did not say the words Mr Pavlakis alleged he said to him. It was certainly never suggested to Mr Napper in cross-examination that Mr Pavlakis had said to him that Mr Gray had made the representation in 1989. I am not satisfied there was a meeting with Mr Napper as alleged by Mr Pavlakis in 1990 and I am certainly not satisfied that Mr Napper said the words that Mr Pavlakis claims he said. 1992/1993 Representations 126 The plaintiffs claim that the 1992/93 representation was made by Mr Napper that "the defendant would build a car park in St Vincent's Street for the customers of the Pavilion". 127 Mr Pavlakis claims that in 1992 he noticed that a car park was being built next to the church and presumed that such construction was on behalf of the defendant. As part of those works a double driveway was constructed which lost two car parking spaces in Green Street opposite the Pavilion. The defendant placed two round gardens on the curb on either side of the driveway which resulted in the loss of a further four car parking spaces in Green Street opposite the Pavilion. When the car park was completed the church put a chain across the car park and locked it up for use only by the church staff and the congregation. 128 When this happened in about 1993 Mr Pavlakis claimed he immediately drove to Nowra to see Mr Napper. He said that he had the following conversation with him at the Council Chambers: Pavlakis: You told me the land next to the church belonged to the Council and there would be a car park there. The church has put a chain across the car park so we cannot use it. Napper: It is church land and they can do what they want. Pavlakis: But what about the car park you promised there? Napper: Don't worry about it because we have bought several houses in St Vincent Street and we are going to put a car park there. We are going to do this straight away. The customers of the Pavilion will be able to park there. 129 There is no date or detail of the time of the alleged meeting and discussions with Mr Napper in 1993. There is not even a suggestion of the time of the year in which the conversation is alleged to have occurred. It is hopelessly vague. The only event to which the alleged conversation is tied is the exclusion by the Church of members of the public from the car park. On 26 March 2004 Mr Pavlakis answered interrogatories in relation to his affidavit evidence in relation to this alleged representation. He denied that the affidavit of 12 February 2003, the first affidavit, set out the full extent of the conversation with Mr Napper on this occasion. He added: I said to Mr Napper words to the effect: "you haven't yet built a car park as you promised." He said words to the effect: "We have plenty of land in Ulladulla to do this". I said words to the effect: "I want the car park close to my centre." He then pointed to land across Green Street from the Church to St Vincent Street. 130 This conversation is alleged to have occurred in Nowra and it would have been impossible for Mr Napper to point to land across a road in Ulladulla. There is no suggestion that there was any map at the meeting in Nowra and the defendant submitted that this suggestion of pointing to land is absurd and demonstrates the unreliability of Mr Pavlakis' evidence. 131 Once again Mr Napper said that he did not recall being approached by Mr Pavlakis at this time but denied that he said the words attributed to him. He once again checked his diaries for the period 1992/93 and has no entry recording a meeting with Mr Pavlakis. More generally he said that he had absolutely no recollection of any meeting. In relation to the conversations alleged by Mr Pavlakis in 1993 Mr Napper gave the following evidence in cross examination (tr 144-145): Q. So, by 1993 you are aware of the proposals of council to purchase land in the Boree Street area, were you not? A. Yes. Q. And in that year, 1993, I want to suggest to you you had a meeting with Mr Pavlakis at council's chambers in Nowra. A. Yes, it was something I didn't recall. Q. At that meeting he expressed his concern about the lack of car parking in the area, did he? A. Well, I don't recall actually having the meeting so I can't really comment there. Q. I want to suggest to you at that meeting you indicated to him that council had bought several houses in St Vincent's Street where council was going to put a car park, do you recall saying something to that affect to Mr Pavlakis? A. It probably related to those three blocks of land the council was purchasing for car parking, yes. Q. Do you recall saying that to him? A. I don't, I don't recall having the meeting but I would have had that knowledge. Q. You indicated to him that customers of the Pavilion would be able to park there in this car park, do you recall saying that? A. Certainly it would be public car parking open for the public to use whether the Pavilion or any other shopping development. 132 Once again Mr Napper presented as a most reasonable and honest witness. However this evidence does not amount to an admission of the conversation alleged by Mr Pavlakis. Mr Napper agreed that he had certain knowledge as at 1993 but his denial of the 1990 conversation about ownership of the land remains in tact and I accept that he would not have had a conversation with Mr Pavlakis which commenced with the statement that he had informed Mr Pavlakis that the defendant owned the land next to the Church. There is some evidence that suggests that it was not until 1995 that Mr Pavlakis was complaining about the Church excluding members of the public from its car park. The letter from Mr Knott MP of 22 September 1995 to Mr Napper advised that he was writing "on behalf of" Mr Pavlakis who he claimed "has paid large amounts of Section 94 parking contributions". He advised that Mr Pavlakis objected to the Church "recently putting up signs excluding non church patrons parking in the close vicinity and he wants the signs removed". There is no reference in this letter to any meeting with Mr Napper in 1993 and there is no reference to any promise made by Mr Gray that a car park would be built on a certain site. 133 Mr Pavlakis denied any knowledge of Mr Knott and said that he had never met him, seen him or had a conversation with him. He said, "I have nothing to do with this man". He denied having ever seen the letter to Mr Napper or Mr Napper's response extracted earlier in this judgment. Even if it is accepted that Mr Knott wrote on Mr Pavlakis' behalf without his direct instructions, the letters suggest a time frame quite different from that suggested in the conversation alleged by Mr Pavlakis. 134 I have no confidence in the accuracy of Mr Pavlakis' evidence. I am not satisfied that the 1993 representation was made. 1995 and 1997 Representations 135 The plaintiffs claim that in 1995 Mr Greg Watson represented that "the defendant would build a car park in St Vincent's Street for the customers of the Pavilion". Mr Pavlakis gave evidence of this alleged representation in his affidavit of 12 February 2003 and in his affidavit of 25 February 2005. In his first affidavit his evidence was as follows: In 1995 I had a meeting with Councillor Watson in his office. I said to him, "What is happening to the money I contributed to the car parking". He did not answer that question, but he said, "we are going to build a car park, we have plenty of land there where we built the temporary car park in vince (sic) Street". 136 In his second affidavit Mr Pavlakis gave the following evidence: In 1995, I attended a meeting with Greg Watson in council chambers in Nowra. We had a conversation to the following effect: Pavlakis: I paid the money to the Council for car parking and I want you to tell me what you are going to do about it. What is happening to the money I contributed? Watson: We have purchased several houses in St Vincent's Street. Don't worry about it, we have plenty of land there. We are going to build a temporary car park, definitely this year. The car park will be temporary until we put a proper car park there. 137 Mr Gregory Watson swore an affidavit of 11 August 2004. Mr Watson has held positions with the defendant and its predecessor since 1979. He was a councillor from 1993 until he was elected Mayor of the City of Shoalhaven in 1999. He still holds that position. Mr Waston referred to the system that he has used since the early 1990s to electronically record diary entries. Having reviewed those entries he denied having met with Mr Pavlakis at all in 1995 and denied the conversations alleged to have occurred. 138 In cross-examination Mr Watson accepted that the computer programme he used to record meetings would not have recorded meetings with members of the public that had not been pre-arranged. When it was suggested to Mr Watson that it was very difficult to recall precisely who he saw and what conversations he had with each of the many people that he met with over the years he said "to the contrary, I generally have excellent recall and recollection of detail going back many, many years". He agreed to "some extent" he was reliant on diary details "as anyone is" but reiterated that he had "an excellent recall of matters of importance which I discuss with clients". He then gave the following evidence (t 119-120): Q. Yes, but in relation to your recollection of whether you saw Mr Pavlakis in 1995, the first time you were asked to recall that fact was about the time you swore your affidavit in August 2004? A. I have, as far as I am aware, I did not meet with Mr Pavlakis in 1995, as far as I am aware and to the best of my knowledge. Q. When were you first asked to recall whether you met Mr Pavlakis in 1995, Mr Watson? A. I wasn't asked to recall that. The questions I was asked was to identify any meetings which I had with Mr Pavlakis and I made every reasonable endeavour to do that by personal recall and also be interrogating my diary material which is quite comprehensive. Q. Isn't it the fact that your computer diary entries didn't record a meeting with Mr Pavlakis in 1995, did they? A. No they didn't. Q. And that was the basis for you saying that you had no recollection in relation to such a meeting taking place? A. No, it wasn't only purely the basis. I had no recollection in my own mind of that meeting taking place and my view was supported by the absence of a diary entry. Q. Well, I want to suggest to you that because there was no diary entry, you were prepared to say that meeting didn't take place in 1995? A. It is my belief that the meeting didn't take place. Q. And your belief, I put to you, Mr Watson, is based entirely upon the fact that you had no diary entry of that meeting for 1995? A. No, I deny that. 139 Mr Martin pressed Mr Watson in respect of his knowledge of the acquisition of land by the defendant in 1995 as follows (tr 123-125): Q. So what I want to suggest to you, Mr Watson, was that as at 1995, you were aware that Council had a plan to acquire, in the area that I have just shown you, land for the purpose of using it for car parking? A. That would be – that would be correct. Along with other acquisitions that were planned within that section 94 area. Q. And you understood in fact that the Council had purchased houses in St Vincent's Street for the purpose, hadn't you? A. I was unaware whether there were dwelling houses on – on those particular lots that you are referring to at that time. Q. But you are aware that Council had acquired land and that there was a proposal at least to build a temporary car park on that land? A. We would – if we acquired the land under a section 94 plan, which was introduced for car parking in the general area, and I would just like to make it clear that we don't buy specific parcels of land aimed at servicing specific developments. We have a section 94 plan which covers the entire Ulladulla CBD and any contributions received can be spent anywhere within that plan area. Q. Thank you for that. What I want to suggest to you is that Mr Pavlakis in 95 asked you what is happening to the money he had contributed to Council for car parking? A. I don't have any recollection of that discussion with Mr Pavlakis. Q. An you responded to him by saying "we have purchased several houses in St Vincent's Street. Don't worry about it, we have got plenty of land there"? A. I don't believe that I would have ever made that comment because I understand how section 94 plans operate and I understand how the contributions are made so I don't believe I ever made that comment. It is not something … Q. You understood that to be the position at the time though didn't you? A. I'm sorry? Q. You understood that to be the position at the time though, didn't you? A. That we had plenty of land in St Vincent's Street, no. No, I don't believe I would have made that sort of comment to anyone because it doesn't relate to the section 94 plan other than a part acquisition. Q. But you believed that the Council had purchased land in St Vincent's Street, didn't you? A. I was aware that we were negotiating at that time to acquire three lots of land that was Q. Yes? A. Not – only one lot fronting St Vincent's Street. The other – the other ones – the other three were fronting Boree Street so…. Q. And you believed that the Council was proposing to at least build a temporary car park on that land? A. The land – as I said before, the land was acquired under a section 94 plan to provide additional car parking within the Ulladulla CBD and if we bought it under a section 94 plan for car parking then it was bought for car parking at that time. Q. So is the answer to my question yes, Mr Watson? A. I am sorry? Q. You believed that the land was acquired to… A. That's correct. Q. And you believed that as at 1995, didn't you? A. I – I guess that would be correct. At that time, we had already agreed to acquire certain lands within the Ulladulla CBD acquisition area. Q. No, what is being suggested to you is you believed in 1995 that that land had been purchased for car parking, is that correct. A. That was the intention when we acquired it. Q. And I want to suggest to you that is what you said to Mr Pavlakis in 1995? A. I don't believe that was what you just recited to me. I think you said that "there is plenty land in St Vincent's Street for car parking, don't worry about it". I don't believe I would have ever made that comment. Q. And you indicated, I suggest to you, that "the car park would be temporary until we put a proper car park there"? A. I don't believe that I would have suggested that either in 1995 because I don't believe there was a meeting. 140 The evidence in Mr Pavlakis' first affidavit has the suggestion of a car park on property where there had already been a temporary car park. The evidence in the second affidavit suggests the establishment of a temporary car park prior to the construction of a "proper" car park. Once again this evidence is totally lacking in precision, is somewhat confused and gives me absolutely no confidence that I can rely upon it as a clear charge of misleading or deceptive conduct. Mr Watson's evidence is preferred. I am not satisfied that the 1995 representation as alleged was made. 141 Mr Pavlakis gave evidence that in September 1997 he again met with Mr Watson at Council's Chambers in Nowra. There was no mention of any alleged representation in 1997 in his first affidavit. All that was said in the first affidavit was that he found out that the land had been sold to a developer who closed off the land, meaning the Boree Street properties, and removed the temporary car parking for shoppers of the Pavilion. In his second affidavit he referred to the public notice, extracted earlier in this judgment, advising of the closure of the temporary car park on the Boree Street properties and gave the following evidence: In September 1997, I again met with Greg Watson at council's chambers in Nowra. We had a conversation to the following effect: Pavlakis: Why did you sell the land to a developer to put a Coles there when you told me that the land was for a car park? Watson: We have plenty more houses in St Vincent's Street and we are still going ahead with the parking. You don't have to worry. In the meantime, you go and see Peter Dun. He is looking after the community for offices and he can lease a few shops from you. 142 Mr Watson accepted that by September 1997 he was aware of the content of the report of the general manager in relation to the effect on development services by the approval of the development application for the development of a Coles supermarket on the Boree Street properties. Mr Watson denied "categorically" that Mr Pavlakis met with him in September 1997. He also denied that any discussions took place in which Mr Pavlakis asked him why he sold the land to the developer on which he had informed him a car park would be built. Mr Watson also categorically denied that he informed Mr Pavlakis that the defendant had plenty more houses in St Vincent Street. 143 It is true that Mr Watson was reliant upon his diary in giving his evidence and that the lack of any entry in 1997 probably assisted him in reaching the conclusion that he did not meet with Mr Pavlakis at that time. Mr Watson's diary informs him that he did not meet with Mr Pavlakis until December 2000. The fact that there was no mention of this meeting in Mr Pavlakis' first affidavit, that there is no contemporaneous document coupled with Mr Watson's diary system, and his categorical denial leads me to prefer the evidence of Mr Watson that the 1997 representation was not made. 144 Mr Pavlakis claimed that he met with Mr Dun in 1998. This meeting was referred to in the context of the alleged representation made by Mr Watson that he should meet with Mr Dun. Mr Pavlakis claims that Mr Dun informed him that the defendant would like to lease some shops in the Pavilion to use them for community services for different groups. His evidence was that these discussions did not lead to any agreement being reached. Mr Dun denied meeting with Mr Pavlakis in 1998. He was not involved with the defendant's community services until 1999. In 1998 he was the defendant's financial services manager. His evidence in cross- examination was (tr 160): Q. So, is this correct to say, that you just have no recollection one way or the other as to whether you have had a meeting with Mr Pavlakis? A No, I would be able to be certain that I didn't meet with Mr Pavlakis in 1998 because my brief was a Financial Services Manager in that year and I had nothing to do with community service in that particular year, so I would be definitive in saying I didn't meet with Mr Pavlakis in 1998. 145 Mr Dun gave detailed evidence of meetings with Mr Pavlakis in 2001 and 2002 to which reference is made below. I accept Mr Dun's evidence that he did not have a meeting with Mr Pavlakis in 1998. 1998 Representation 146 The plaintiffs claim that in 1998 Mr Watson represented that "the defendant still owns plenty of land in St Vincent's Street and it was still going ahead with car parking which should be organised very soon". There was no mention of such a meeting or alleged representation in Mr Pavlakis' first affidavit. All that was said in that affidavit was: In 1998 "Coles" opened a shopping Centre on that site in Vince (sic) Street. Again there was no parking for shoppers attending the "Pavilion" as promised by the Defendant's staff and Councilors (sic). 147 In his second affidavit Mr Pavlakis gave the following evidence: In 1998, after Coles was opened, I again met with Greg Watson at council's chambers in Nowra. We had a conversation to the following effect: Pavlakis: You sold the land for the car park to Coles. I am very upset about this. You still haven't provided any car parking. Watson: Calm down, we still have plenty of land in St Vincent Street and we are still going ahead with the parking. It should be organised very soon. 148 Mr Watson was once again very firm in his denials that this alleged meeting or conversation occurred in 1998. His evidence in cross-examination was (tr 127): Q. You are aware that Coles supermarket was opened in about 1998, is that correct? A. That would be approximately right. Q. And Mr Pavlakis, I want to suggest to you, had another meeting with you in that year? A. This is 1987? Q. At 1998? A. 1998, I categorically deny that. No such meeting took place. Q. And he indicated that he was very upset about you not still having provided any car parking? A I categorically deny that meeting took place, therefore the discussion couldn't have taken place. Q. You indicated that the car parking was still going ahead? A I made no such indication. 149 Mr Watson was a very different witness from Mr Napper. He obviously prides himself on his memory and his careful recording system of meetings with his constituents and others. Sometimes witnesses who are so sure of themselves present as inflexible and unreasonable. Mr Watson did present as a little inflexible but certainly not unreasonably so. It must be remembered that he was being asked to recall matters that had never been raised in any written form until at least eight years after the alleged events. Not unreasonably he was reliant upon a system that he had put in place to assist him to recall matters of Council business that had been raised with him over the years. 150 The absence of any evidence in his first affidavit that this representation had been made and the absence of any document to suggest that it was made, combined with Mr Watson's evidence, leads me to prefer Mr Watson's evidence over that of Mr Pavlakis. I am not satisfied that the plaintiff has proved that the 1998 representation was made. 1999 and 2000 Representations 151 The plaintiffs claim that in 1999 and 2000 Mr Watson represented that "the plaintiffs should not worry as the defendant had plenty of land in St Vincent's Street which would be used soon for car parking". There was no mention at all in Mr Pavlakis' first affidavit of any meetings or conversations with Mr Watson in 1999 and 2000. The evidence in the second affidavit was: I spoke with Greg Watson again in 1999 and 2000 at council's chambers in Nowra about the car parking. On each occasion, Greg Watson said words to the following effect to me: Watson: "Don't worry about it, we have plenty of land in St Vincent Street for car parking which we will be using soon". 152 It was during 2000 that the negotiations took place for the sale of part or all of the Pavilion to the defendant. It was during these negotiations that the plaintiff decided to submit a DA for strata subdivision of the Pavilion site. It appears that this was done to facilitate any part sale of the Pavilion. However, as referred to earlier, the sale did not go ahead, but that position was not reached until February 2001 when the Property Services Manager advised the plaintiffs that the defendant had no need for the premises. 153 It was on 29 November 2000 that Mr Watson wrote to the plaintiffs thanking them for their submission of the DA. Although that letter is in evidence there was no other evidence given about it either by the plaintiffs or Mr Watson. It appears to be in the nature of a public relations exercise and in the absence of other evidence does not seem to me to prove that Mr Watson had met with or consulted with or conferred with the plaintiffs prior to the letter being sent. Equally in the absence of other evidence it does not prove that Mr Watson had not met or consulted with or conferred with the plaintiffs. However the letter did invite contact to be made with Mr Watson about the DA or for "assistance with any other Council related matters". The first diary entry that Mr Watson has relating to Mr Pavlakis is within two weeks of the date of the letter, on 12 December 2000. 154 The diary entry refers to a meeting between 9:15 a.m. and 9:45 a.m. on 12 December 2000. The entry records that the subject was "Mr Pavlakis-re: The Pavilion Ulladulla shopping centre". It records that the meeting took place in the "Mayor's office". In the section headed "Recurrence" there is recorded, "(none)". 155 Mr Pavlakis gave evidence in both affidavits that he had a conversation with Mr Watson in 2001 in which he said to Mr Watson, "I want the monies back I paid for parking in 1989, as no parking has been provided as promised". He claims that Mr Watson said, "Go and see a solicitor and sue us for it". Mr Pavlakis' claimed that at this time he believed that there was no way of resolving the "parking issue" and he believed that the defendant was not going to provide car parking spaces for use by the tenants and customers of the Pavilion. He said that it was at this time that the plaintiffs approached their solicitor to commence proceedings against the defendant. 156 Mr Watson's recollection of the meeting on 12 December 2000 was that Mr Pavlakis introduced himself as the owner of the Pavilion shopping centre and explained that he was having difficulty renting his shops. Mr Watson gave evidence that Mr Pavlakis said, "Council has sold land purchased with the money I have paid as a car parking contribution, my solicitor says that I can get back from the Council the money I paid for car parking that Council didn't provide". Mr Watson said that he responded "I don't believe that you would have any grounds to recover moneys paid under a contribution scheme and collected under section 94, as the Council does not have an obligation to provide car parking adjacent to your premises. When Council collects contributions they can be spent anywhere within the contribution area so you should be careful about wasting money on legal proceedings". 157 There is a conflict as to whether Mr Watson said "sue us for it" or "see you in Court" but it is clear to me from the evidence referred to below that on this occasion Mr Watson's memory has let him down. I am satisfied that he has transposed what was said at a meeting with Mr Pavlakis in February 2002 into this meeting in December 2000. It is clear that Mr Pavlakis continued to contact Mr Watson during 2001 in relation to matters including the prospect of selling the Pavilion to the defendant, and that he did not demand his money back until later than December 2000. 158 Mr Watson has several diary entries for telephone calls received for Mr Pavlakis following the meeting on 12 December 2000. Although there is no specific content within the diary entries for those dates, Mr Watson recalled that he said words to the effect "I am looking into it, I will get back to you" and "Mr Pavlakis I am looking into it". The affidavit did not explain what it was that Mr Watson was looking into. Mr Watson denied that he informed Mr Pavlakis that he could "sue us". His explanation was that he would be "well served to seek more exhaustive legal advice before he considered any such action". 159 It does appear from the diary system that Mr Pavlakis had indicated in a call to Mr Watson on 2 May 2001 that he wanted to sell the Pavilion to the defendant. That may well have been what Mr Watson was looking into. There is an entry in the diary system that appears to be a message that there had been a phone call from Mr Pavlakis on 6 December 2001 that was stated to be "VERY PERSONAL VERY URGENT". There is a further entry on 7 February 2002, once again it seems of a phone message that Mr Pavlakis called on a "personal" matter. 160 It is clear from Mr Dun's evidence that there was a meeting at which he was present with Mr Watson, Mr Pavlakis and "a lady who came with Mr Pavlakis" who was not identified by Mr Dun. It appears that person was Margaret Mary Gilbert. Mr Dun's evidence was that at this meeting on 15 February 2002 Mr Pavlakis addressed his concerns about losing car parking spaces outside the Pavilion by reason of a proposed bus stop. He claimed that Mr Pavlakis said "you have sold the land you purchased to provide car parking with my monies". Ms Gilbert could not recall that statement being made but did recall that Mr Pavlakis "was demanding his money back". 161 Although Mr Watson has on this occasion been let down by his memory it does not persuade me that I should accept Mr Pavlakis' evidence that Mr Watson made the alleged representations in meetings in 1995, 1997, 1998, 1999 and 2000. Mr Pavlakis claims that at each of these meetings Mr Watson said that the defendant had "plenty of land" or "plenty of houses" in St Vincent Street. I do not accept that is what happened. The absence of any record in relation to these alleged representations, the absence of any claim in relation to these representations in the Statement of Claim filed in the District Court in August 2002, the internal inconsistencies of Mr Pavlakis' evidence, and the lack of claims in the first affidavit (with claims only appearing in the second affidavit sworn just before trial) are all factors that I have taken into account when balancing the evidence called by both parties as to who should be believed. It is of significance that in the meeting on 15 February 2002 there was no mention of any representation made by Mr Gray. 162 The plaintiff has failed to prove that the 1999 and 200 representations were made. Did the plaintiffs rely upon the 1989 representation? 163 I should now return to the question of whether the plaintiffs relied upon the representation made by Mr Gray in 1989. There is no credible evidence that any reference or statement was ever made between 1989 and 2002 to anyone either orally or in writing that Mr Gray made the representation. I am satisfied that as early as 8 February 1989, Mr Warren had received instructions to draw a plan for total occupancy without any parking on site. I am also satisfied that after the defendant advised in its letter of 24 February 1989 that it was willing to consider a DA for total occupancy, Mr Warren prepared final plans without any car parking on 19 March 1989. 164 The absence of any reference to Mr Gray's representation in Mr Warren's correspondence when he was negotiating for the reduction in the s 94 car parking contribution is in my view also very telling. Although Mr Pavlakis tried to suggest in his evidence in cross-examination that he told Mr Napper about Mr Gray's representation, I do not accept that evidence. It was not referred to in any affidavit prior to that answer being given in cross-examination, and as I have said it was not suggested to Mr Napper in cross-examination that Mr Pavlakis had made such a claim. The evidence of the meeting in February 2002 with Messrs Watson and Dun is also significant. It was at this meeting that Mr Pavlakis demanded that the s 94 contribution amount be returned to him, not because the promise that Mr Gray had made had been broken but because no additional parking had been made available. The original Statement of Claim filed in the District Court in 2002 made no mention of any representation. 165 As I have said earlier when Mr Pavlakis spoke to Mr Phelps there was no mention of Mr Gray and no mention of the representation that the defendant would buy the houses on the opposite corner and build a car park on that site. 166 I have already referred to Mr Warren's evidence, but for ease of reference on this topic I shall repeat it here. Mr Webster SC cross-examined Mr Warren about the meeting with Mr Gray at which Mr Pavlakis was present and about whether it was determinative of not putting any parking on site. In other words, whether there was reliance upon what was said at that meeting. Mr Warren gave the following evidence (tr 77- 78): Q. But I take it as at the day you spoke to Mr Gray about this on site, this meeting on site, do you say at that stage Mr Pavlakis had completely abandoned the thought of doing underground car parking? A. Yes. Q. It was never his intention at the time that you were meeting with Mr Gray to put underground car parking in? A. It was on the cards until Mr Gray told us explicitly on-site in that final time that he had pointed to the various houses and said, "That's where the Council will put their car park". Q. So I take it then that it was on the cards it was still a proposal of Mr Pavlakis' up until this meeting in April; is that right? A. Yes. Q. So you had no instructions at that stage to prepare any final plans associated with this development until after that meeting in April; is that right? A. That's correct. Q. Otherwise would you have had to be in the situation where if you weren't satisfied, or Mr Pavlakis hadn't been satisfied, about any other car parking you would have to consider the underground car parking; is that right? A. Yes. … Q. So it was determinative so far as that meeting was concerned with Mr Gray as to whether the plans you drew had underground car parking or not? A. Yes. 167 Mr Webster then challenged that evidence of reliance by showing Mr Warren plans that pre-dated the meeting with Mr Gray, in which there was already provision for full occupancy with no car parking on site. I shall extract again the evidence that Mr Warren gave (tr 78): Q. You recognise they are the ones that were submitted to the council for the purpose of the development application? A. Yes, sorry they are not development application plans, but it looks like these are the early plans. Q. I'm suggesting to you, Mr Warren, that these are the plans that you submitted to the council with the development application dated 10 April 1989? A. No, these are not the DA plans. These are some earlier plans. I can tell that because there is no loading dock and one or two other things. Q. I had better check that overnight. A. Actually they are the plans. On the first page you can see that the loading dock is in it. There is a landscaping plan here that doesn't pull that up, but, yes, these look like the documents, I agree. Q. You see the date on them, don't you? A. Yes, 19/3. Q. You drew these plans up well before any meeting with Mr Gray in April, hadn't you? A. Yes, these are plans that may well have been submitted. They have all the hallmarks of a DA. There is the schedule of areas, and so on. Q. Can I show you another document, Mr Warren. You will see that's the application that you made, was it not, that had those plans accompanying them made on 9 April received by the Council on 10 April? A. This certainly is the development application front sheet, yes, and these were probably done in explanation early on. Other things checked. Then there is about a month between these drawings being handed in. So they may have been amended. Q. They might have been amended, Mr Warren, but the circumstances are, are they not, there was no doubt that as at March 1989 your instructions were to prepare plans which showed no underground car parking? A. We had talked about underground car parking and early on, with the advice from Mr Peter Gray, not gone ahead with car parking because the advice given was the advice that council were going to do that over the road, the Boree Street new car park, but being on-site ... Q. Just think of the question I asked you. What I put to you was that as at March, the time that you drew those plans, the circumstances were that your client had instructed you to prepare plans without any car parking? A. Yes. Q. And the circumstances were that any meeting that you had in April didn't decide whether you were going to put car parking underneath or not, did it; you had already made the plans up? A. That is not correct. Q. The circumstances are clear, Mr Warren, I suggest to you, that there is no way that within a week or 10 days you could have prepared those plans when the meeting is said to have been taken in April for the purpose of submitting it to council, could you? A. Yes, I could have done that. Q, You could have? A. Yes Q. You actually prepared them in March, though, didn't you? A. It appears as though they were drawn in March, sure. Q. And they also contain, do they not, all the corrections that Mr Fletcher asked you to do to your original sketches? A. I'm not aware of that. There is the loading dock certainly. There may have been other things, and there could have been other changes between the three or four weeks between the drawing of this and the submission of the DA. 168 I am satisfied that Mr Warren was confused about the date upon which he prepared the final plans for submission with the DA. There is no plan in evidence that includes any parking on the Pavilion site. As early as December 1988 Mr Warren was indicating to the defendant on the plaintiff's behalf that a s 94 contribution would be paid. Mr Warren had no recollection of that and when his attention was drawn to it he said that he had not realised he was involved so early. It is also clear that Mr Warren thought that he had been instructed very shortly before his first meeting with Mr Gray, which he put at March 1989. It is clear that Mr Warren had forgotten that he had lodged preliminary plans without any car parking in them as early as 8 February 1989. 169 Mr Webster cross-examined Mr Pavlakis in the same vein suggesting to him that the final plans were prepared and dated 19 March 1989, prior to the meeting with Mr Gray, and that there was no reliance upon what Mr Gray said about the car park on the opposite corner. Mr Pavlakis' evidence on this aspect also exposed a number of further problems. He said that the sketch plans had underground parking and that they were not submitted to the defendant (tr 57-58). That was quite wrong. The preliminary plans (which I am satisfied are the same as the "sketch" plans referred to by Mr Pavlakis in this evidence) did not have underground parking and were submitted to the defendant. When Mr Pavlakis was shown the final plans, dated 19 March 1989 as submitted with the DA, he suggested they were only sketch plans (tr 58). Mr Pavlakis claimed that Mr Warren was not instructed to submit plans to the defendant prior to meeting with Mr Gray, and claimed that Mr Warren would not have submitted plans prior to that meeting (tr 58). I am satisfied that evidence was quite wrong and seems to have been admitted to be so when Mr Webster showed Mr Pavlakis the letter from the defendant to Mr Warren dated 28 February 1989. That evidence was (tr 61-64): Q. It says: "Such contribution for a gross leasable floor area of 1,234 square metres would be for 51 spaces". I suggest to you, Mr Pavlakis, that as at 8 February 1989 Mr Warren had actually drawn plans which show the actual floor space that was going to be provided by these shops, hadn't he? Q. Do you agree? A. Yes. … Q. So it was obvious, wasn't it, that Mr Warren was submitting various options of the plans that were going to be put to the Council? A. He probably showed it to the council, the sketch plan which he showed me. It is not a proper plans. Q. Maybe the sketch plans, but what I am putting to you Mr Pavlakis is that after this letter and the reply to the letter, the situation is that Mr Warren prepared plans in March well before any conversation with Mr Gray? A. No, no. Q. No? A. No. The proper plans went after we have a meeting with Peter Gray. Then I give him the okay. In other words I would have put the car park in. These letters are back and forwards with Robert Warren and the council. He was doing the dealing. He had a meeting with the council himself. … Q. I suggest to you that what it [council memo of 13 December 1988] clearly shows, Mr Pavlakis, is that back at December 1988 before you had any conversations with Mr Gray, the fact was that your Mr Warren was indicating to the council that they were prepared to make a contribution to car parking in the sum of about $150,000? A. Yes, but Mr Gray told us he is going to provide the car park for the centre. Q. Just pause. What's being put to you is that this all happened way back in 1988. Do you understand that? A. Yes. Q. Not in 1989, do you understand that? A. Yeah, yeah. Q. So back before you had any conversations with Mr Gray -- A. No. Q. -- Mr Warren obviously, I suggest to you, was telling the council that you were prepared to pay $150,000 in contributions for developing this site, wasn't he? Do you remember that? A. Yeah. 170 Mr Webster put to Mr Pavlakis that it was always his intention "never to put underground car parking on this site". Mr Pavlakis denied this, but all the plans that are in evidence from as early as 8 February 1989 make no provision for parking on the site. There are no documents supporting a claim of reliance upon the representation, and the only evidence that is available is the affidavit and oral evidence of Mr Pavlakis and Mr Warren. Mr Warren was convinced of matters in his evidence that turned out to be quite wrong. A fundamental flaw in his evidence was his failure to recall that he had submitted plans to the defendant as early as 8 February 1989 and had received a response from the defendant in which it advised that it was willing to consider a DA for the total occupancy on the condition that the s 94 contribution was paid. There was also his rather categorical denial that Mr Gray had said certain things putting him at odds with his own affidavit. It is clear that Mr Warren was involved in preparing plans much earlier than he remembered being involved in the project. 171 A further problem for the plaintiffs was Mr Warren's evidence extracted above in relation to the preparation of the plans to be submitted with the DA. It is clear that Mr Warren had prepared the final plans on 19 March 1989 without any parking on site. When confronted with this date Mr Warren resorted to a suggestion that he "could have" changed the plans. The reality was that the plaintiffs had "massive holding costs", as described by Mr Warren in his correspondence with the defendant in July 1989, and commercial common sense would suggest that final plans for submission with the DA would be drawn with the instructions from the client, rather than drawn with a view to possibly changing the whole concept. I do not accept Mr Warren's evidence in this regard. Mr Warren's evidence that he informed Mr Gray in the meeting with Mr Pavlakis in April 1989 that he would "talk (his) client out of" providing car parking on the site is just not credible. I am of the view that by 19 March 1989, and indeed by the time the earlier plans were submitted to the defendant, a decision had been made to develop the site without parking. As early as December 1988 there was a suggestion made to the defendant that the plaintiff was willing to pay a s 94 contribution of $150,000. 172 I am satisfied that although Mr Warren was trying to do his best he has reconstructed events and conversations and I am unable to rely upon his evidence as to the plaintiffs' reliance on the representation. I am satisfied that the plaintiffs wanted to use the total site for occupancy and I am satisfied that Mr Warren was instructed to lodge the preliminary plans to see if the defendant would allow it. That much appears obvious from the defendant's response (dated 28 February 1989) to Mr Warren's letter of 8 February 1989. Mr Warrens' letter of 8 February 1989 is not available to the defendant so many years later and it was apparently not available to the plaintiff. I am satisfied that a decision had been made by then - that is (on the evidence of Mr Warren and Mr Pavlakis) two months before the representation. There is no evidence from Mr Pavlakis or his witness as to any other date upon which the representation might have been made. Indeed Mr Pavlakis was given the opportunity to adjust the date of the meeting during his cross-examination. That opportunity was given in the following manner (tr 45): Q. Mr Pavlakis, you've sworn in your affidavit that the only meeting you had with Mr Gray was at your shop – is that correct – or at the premises that you were going to build these shops? A. Only once. Q. Only once. And you told the court in your affidavit that that was the circumstance that occurred in April 1989; is that right? A. It was early '89. Q. Do you know if it was February, March or April, Mr Pavlakis? A. It was April. Q. I beg your pardon? A. April? Q. Are you sure about that now? A. Yes. 173 After Mr Pavlakis fixed the time of the meeting firmly in April 1989, Mr Webster referred to the final plans having been prepared on 19 March 1989 and the following cross-examination took place (tr 59): Q. Well, Mr Pavlakis, you see, if the circumstances are that this meeting occurred in April, yet you instructed or at least your consultant had prepared drawings in the middle of March 1989 for the purposes of putting these applications to council, it certainly wasn't reliant upon what Mr Gray said was it? A. Yes, on the car park. We can't put 22 shops there and the car park because you allow for the tenants to park. That's 22 tenants. So there's no way I can give the okay to Robert Warren to prepare any plans. It must be done with a view to that. Q. You would not have allowed Mr Warren to go on and prepare any plans, would you, until such time as you were satisfied as to what type of development you wanted on the site; correct? A. Robert was going to get paid for what he was doing. He was going to do the underground parking. If he wasn't promised by the council – he made the deal, and to make sure I call a meeting myself, to be there myself. When they show me, I give the okay to draw the plans to take to council, not before. 174 This is a further demonstration of the unreliability of the evidence for the plaintiffs. It is obvious that Mr Warren was instructed to draw the preliminary plans and submit them to the defendant in February 1989, two months before this meeting, to see if the defendant would allow total occupancy. It is also clear that Mr Warren was instructed to draw the final plans on 19 March 1989, at least three weeks before the meeting. If the meting took place on a different date then the onus was on the plaintiffs to establish that. It is not for the Court to search for a reasonably sensible date that a meeting could have occurred in which a representation was made. 175 I am satisfied that if the plaintiffs had relied upon the representation, Mr Pavlakis would have complained bitterly when he saw that the site on which Mr Gray had said that the defendant would build a car park was developed into a commercial building. This was simply not done. 176 The letters from the defendant in 1989 were precise and clear as to the basis of the payment for car parking. Those letters stated that the payment was pursuant to s 94 of the EPA Act and Mr Warren well knew when he was negotiating for a reduction in the amount, that s 94 applied to that payment. I have no doubt that as an architect of then 20 years standing, Mr Warren would have recorded that the money was to be paid on a particular basis if reliance had really been placed upon Mr Gray's representation. There was no mention of it. 177 Although with some reservation I found that more probably than not the representation had been made, I have no feeling of actual persuasion that there was any reliance upon the representation. I am satisfied that more probably than not the plaintiffs did not rely upon the representation. 178 The plaintiffs have failed to prove their TPA Claim. Contract Claim 179 The plaintiffs claim that Mr Gray entered into an oral contract with them on behalf of the defendant, the terms of which seem to be alleged to be that, in consideration of the plaintiffs paying a s 94 contribution, the defendant would build a car park on the north-western corner of Boree Street at the intersection with Green Street. This aspect of the plaintiffs claim was not withdrawn, but was not the subject of any of the plaintiffs written submissions and was only mentioned in a minor way in oral submissions. Certainly the plaintiffs submitted that Mr Gray had ostensible authority to make the 1989 representation. However there were no separate submissions in relation to Mr Gray's authority to bind the defendant in contract. 180 It seemed during final submissions that it was the plaintiffs' claim that Mr Gray's representation was outside the regime of the s 94 process, and that a contract was formed quite separate from the statutory regime. In other words, the contractual terms were, irrespective of the defendant's obligations pursuant to s 94 of the EPA Act generally in relation to car parking, that if the plaintiffs contributed to the s 94 Fund the defendant would build the particular car park on the site identified by Mr Gray. 181 The defendant submitted that Mr Gray was not authorised to bind the defendant in contract, and even if he were, the payment of a s 94 contribution was not consideration for the building of the car park, but rather a payment made pursuant to an obligation imposed by law. The DA was lodged under the EPA Act and the condition in relation to the requirement for the payment of the s 94 contribution was imposed pursuant to the EPA Act. Mr Warren's discussions centred around the defendant's requirements in respect of the DA and the development, including car parking. That was also the position in relation to the conversation between Mr Pavlakis, Mr Warren and Mr Gray. The conduct relied upon by the plaintiffs to submit that Mr Gray had ostensible authority (which I have already decided against the plaintiffs) relates to the process of dealing with the DA. 182 The defendant submitted that the processing of a DA is not a matter governed by principles of contract law. In Doran Development Pty Limited v Newcastle City Council 1984 (13) APA 436, Senior Assessor Bignold, as his Honour was then was, said at 447: The processing of a development application is not a matter which is governed by principles of contract law. An applicant for development consent and consent authority are not involved in a contractual relationship. The consideration and determination of a development application by a consent authority is a matter of statutory duty. The proper discharge of that duty does not depend upon principles of contract law. Indeed, certain basic doctrines in the law of contract (for example, freedom of contract) are manifestly repugnant to the discharge of the statutory duty of a consent authority. 183 In Mulgrave Shire Council v Red Hills Pty Ltd (1994) 83 LGERA 323 GN Williams J said at 327: Counsel for the defendant relied on certain authorities in support of its broad submission that as a statutory scheme of approval was involved, one could not imply contractual obligations. On careful analysis the authorities relied on do not support the submission. In Doran Developments Pty Limited v Newcastle City Council (1984) 13 APA 436, a member of the Land and Environment Court of New South Wales held that an applicant for development consent and the planning authority are not involved in a contractual relationship in relation to the discharge by the planning authority of its statutory duty. What is clear from the critical passage (at 447) of the judgment is that the Court was there concerned with the "processing" of a development application and the proper discharge of duties involved in that process. One can readily accept that there is no contractual relationship at that stage, and it is inappropriate to impose contractual obligations on either party at that stage of the process. But I can find nothing in that decision which supports the view that there can be no contractual relationship between such parties derived from acts and conduct after that process has terminated by the granting of an approval for subdivision. 184 In Coshott and Anor v Woollahra Municipal Council (1988) 14 NSWLR 675 Wood J, as his Honour then was, was dealing with a claim by the plaintiff that he had a contractual cause of action arising as a consequence of the payment of a fee to process the Development Application and an expectation that in return for the payment, the Application would be processed promptly and diligently. His Honour said at 684: In my view, the mere payment of a fee in a case such as the present would not give rise to any contract. Rather it would be treated as a permitted charge to defray the costs of the Council, as a consent authority, in carrying into effect the planning and development powers and duties assigned to it. Even if a contract were created, the only term which the facts and circumstances alleged would, in my view, support, would be one requiring the Council to deal with the application according to law. 185 The representation was made in the process of dealing with preliminary inquiries in relation to a DA. The preliminary plan had been lodged and, on the plaintiffs' evidence, further inquiries were being made in respect of the proposed DA after the defendant's letter of 24 February 1989. That Mr Gray was introduced to Mr Warren as the person who would help him with all his questions, and that Mr Gray was referred to in the defendant's letter of 24 April 1989 as the person "dealing with" the DA, does not in my view assist the plaintiffs with their claim in contract. This was an assistant planner performing his duties in assisting the defendant to perform its statutory duties. This was not the world of commercial negotiation with offer and acceptance and the formation of a contract. This was a process in which the plaintiffs submitted their DA under the EPA Act and obtained rights, including the right of appeal, in respect of the determination of that DA and the conditions imposed by the defendant. 186 Additionally, I am satisfied that Mr Warren's evidence establishes that he was aware that Mr Gray could not bind the Council as to its future conduct and certainly not in contract. The plaintiffs have failed to make out their case in contract. Negligent misrepresentation / Estoppel 187 My findings in relation to the lack of authority in Mr Gray and the failure to prove reliance upon the representation put an end to the claims of negligent misrepresentation and estoppel. Claim for return of s 94 contribution 188 The plaintiffs seek recovery of the money paid for car parking by way of s 94 Contribution together with interest. As stated earlier, at the time the payment was made s 94 provided relevantly as follows: (1) Subject to subsection (2), where a consent authority is satisfied that a development, the subject of a development application, will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant consent to that application subject to a condition requiring - (a) the dedication of land free of cost; or (b) the payment of a monetary contribution, or both … (3) The consent authority shall hold any monetary contribution paid in accordance with a condition referred to in subsection (1) in trust for the purpose for which the payment was required and apply the money towards providing public amenities or public services or both within a reasonable time and in such manner as will meet the increased demand for those amenities or services or both. 189 Section 94 (3) imposed on the defendant a requirement to: (1) hold the money in trust for the provision of car parking; (2) apply the money towards providing car parking; (3) to do so within a reasonable time; and (4) to apply the money in such manner as will meet the increased demand for car parking: Levadetes and Anor v Hawkesbury Shire Council (1988) 67 LGRA 190 at 195. 190 In Toadolla Co Pty Ltd v Dumaresq Shire Council (1992) 78 LGERA 261, at 267 Pearlman CJ of the Land and Environment Court analysed the nature of the trust created pursuant to s 94 (3) of the EPA Act as follows: However, when one examines the statutory trust created by s 94 in the town and planning context, it becomes obvious that there are features which distinguished that "trust" from "trusts" that are usually the subject of trust law. The s 94 "trust" refers to monetary contributions which the Council receives in order to discharge public administrative functions. There are no circumstances here of enforcement of private rights between private citizens. Next, I would be loathe to conclude that the beneficiary of the trust is the contributor who paid the monetary contribution, in the sense that the Council, as trustee, would need to act solely in that beneficiary's interest. That is not at all the case – there is a special purpose attached to the trust which involves the public as a whole in the provision of public amenities and public services. Furthermore, the Council as trustee under s 94, must have a discretion as to the method of implementing the trust in a workable and manageable manner: see Bignold J in Rodmac Investments Pty Ltd v Great Lakes Shire Council (Land and Environment Court of New South Wales, 2 August 1991, unreported at 8). Lastly, s 94 contemplates that a contribution may not be sufficient to defray the whole of the cost of providing public amenities and services because it provides that the Council will " … apply the money towards … " the provision of those amenities and services. For all these reasons, it is, in my opinion, inappropriate to apply general principles of trust law to the "trust" created by s 94(3) so as to find breaches of trust, unless the language of the section expressly or by necessary implication imports those principles. I think it does not, and I am not, accordingly, prepared to find that the Council committed breaches of trust by depositing the monetary contributions in a trust bank account with other trust funds, or by failing to invest the monetary contributions at interest. 191 In Denham Pty Ltd v Manly Council (1995) 89 LGERA 108, Talbot J was considering a claim for the return of a contribution paid under s 94 in respect of a development that did not proceed. His Honour said at 112: … it may not be feasible to provide public car parking to satisfy the demand created by each individual development as it is completed. The establishment of parking facilities may be reasonably expected to be a process which will take place over a period of time the length of which could be dictated by the amount of funds available from time to time coupled with the opportunity to acquire suitable sites. In other cases the Council may be in a position to act immediately or even may have already done so. In the latter cases the Council is entitled to apply the contributions made for the identified purpose immediately upon receipt of the money. If it did so then the obligation and duties imposed on both parties, the developer and Council, would be thereupon complete. The Council is not obliged to hold back until it can be satisfied that the developer proposes to act on the consent. It is entitled to assume that the development will proceed and to carry out the statutory duty to provide the amenities accordingly. The situation can be different where the funds are not immediately applied by expenditure and are, as it were, held in reserve. The Council, in circumstances, where it is entitled to make the levy by s 94(1), may hold the money effectively on trust to meet its commitment to the provision of the public facilities within a reasonable time. If nothing more is done and the funds are not applied, by the Council taking some irrevocable step which will inevitably lead to payment, before the development is abandoned in a formal way, it cannot be said that the Council is thereafter able to apply the money in such a manner as will meet the increased demand for the amenities or services. Effectively there will be no relevant demand created and the Council will be incapable of meeting an integral part of its obligation pursuant to s 94(3). 192 Mr Martin SC accepted that "if it weren't for Mr Gray's representation" there would be no resulting trust (tr 390). The representation on its own would not be enough, reliance on the representation for the payment of the money would also have to be proved and it was not. My findings that Mr Gray was not authorised to make the representation and that there was no reliance on the representation, mean that the representation is unable to be utilised in respect of the plaintiff's claim for the return or refund of the s 94 contribution for car parking on the basis of the resulting trust claim. 193 The plaintiffs' claim for a refund was limited to the resulting trust claim. There was no claim and no separate submission made that, irrespective of the representation having been made, the defendant had breached the statutory trust created by s 94(3). 194 Section 71 of the Land and Environment Court Act 1979 provides that: "proceedings of the kind referred to in section 20(1)(e) may not be commenced or entertained in the Supreme Court". Section 20 (1) (e) excludes the jurisdiction of the Supreme Court "to enforce any right, obligation or duty conferred or imposed by a planning or environmental law" or to "review, or command, the exercise of a function conferred or imposed by a planning or environmental law". Section 94 is a planning or environmental law for the purposes of section 20: (s 20 (3)(a)). 195 There may be a question as to whether a "right" to a refund of the money paid by way of s 94 contribution is a right "conferred" by the EPA Act or a right "arising from" the provisions of the EPA Act, but this was not the subject of submissions before me. In the absence of a claim based on a breach of the terms of the statutory trust created by 94(3), it is not necessary to decide the question of whether the defendant complied with s 94(3) of the EPA Act and/or whether this Court has jurisdiction to hear such a claim. Orders 196 The plaintiffs' claims in the Second Further Amended Ordinary Statement of Claim are dismissed. If the parties are unable to agree on a costs order I will hear argument on a date to be fixed by arrangement with my Associate but no later than 8 July 2005. **************** 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.