New South Wales Supreme Court Competitive Funerals Pty Limited v Gurmit Singh Rai trading as Blacktown City Funerals & (2) Ors [2005] NSWSC 1171 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 18/10/2005,19/10/2005 and 20/10/2005 JUDGMENT DATE : 18 November 2005 JURISDICTION : EQUITY DIVISION JUDGMENT OF : Lloyd AJ DECISION : 1. The proceedings against the First Defendant and the Third Defendant be dismissed. 2. The costs are reserved. 3. The exhibits may be returned. CATCHWORDS : LANDLORD AND TENANT: Agreement to lease – Creation of Relationship of Landlord and Tenant – Commencement of Term or Tenancy – Duration of Term – Subject Matter of Lease – Form and Contents of Lease – Rent – Termination of Tenancy Conveyancing Act 1919 (NSW), ss 23B, 23C, 23E(d) and 54A LEGISLATION CITED : Uniform Civil Procedure Rules 2005 (NSW), Pt 30 r 1 Abigroup Contractors Pty Ltd v ABB Service Pty Ltd (Formerly ABB Engineering Construction Pty Ltd) [2004] NSWCA 181 Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 Allen v Carbone (1974) 132 CLR 528 Arjay Investments Pty Ltd v Morrison's Outdoor Catering Pty Ltd, NSW SC Unreported, 1 May 1995 Axelsen v O'Brien (1949) 80 CLR 219 Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 Caton v Caton (1866) LR 1 Ch App 137 Consolidated Development Pty Ltd v Holt (1986) 6 NSWLR 607 Dellwest Pty Ltd v Cafabe Pty Ltd, NSWSC Unreported, 26 November 1997 Di Biase & Ors v Rezek [1971] 1 NSWLR 735 (CA). Fitzgerald v Masters (1956) 95 CLR 420 Francis v Francis [1952] VLR 321 Gamvrogiannis & Anor v Blackshaw & Anor (2000) NSW ConvR 55-940 Godecke v Kirwan (1973) 129 CLR 629 GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 G Scammell & Nephew Ltd v HC & JG Ouston [1941] AC 251 Heid v Reliance Finance Corp Pty Ltd (1983) 154 CLR 326 Hollander v Atkinson (1885) 6 L.R (NSW) Eq 69 (FC) Kassabian v Lagonicos & Anor (1993) NSW ConvR par 55-690 p 59-941 Kaufman v Michael (1892) 18 V.L.R 373 Khouri v Khoury [2004] NSWSC 770 Jenkin R Lewis & Son Ltd v Kerman (1971) Ch 477 Lancaster v de Trafford (1862) 31 LJ Ch 554 CASES CITED : Lapin v Abigail (1930) 44 CLR 166 Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) (1965) 113 CLR 265 Maddison v Alderson (1883) 8 App Cas 467 Masters v Cameron (1954) 91 CLR 353 Millett v Regent (1975) 1 NSWLR 63 Multiplex Constructions Pty Ltd v Suscindy Management Pty Ltd [2000] NSWSC 484 Notter v Girault [2004] NSWSC 863 O'Rouke v Hoeven [1974] 1 NSWLR 622 (CA) Penny v Craber (1967) NWR 683 Regent v Millet (1976) 133 CLR 679 Rice v Rice (1854) 2 Drew 73 (Court of Chancery). Riley v Osborne & Anor [1986] VR 193 Sale v Lambert (1874) L.R. 18 Eq 1 Sinclair, Scott & Co v Naughton (1929) 43 CLR 310 Stockell v Niven (1889) 61 L.T. 18(CA) Thorby v Goldberg (1964) 112 CLR 597 Tornatora v Palatinus [1966] W.A.R 14 Upper Hunter County District Council v Australian Chilling & Freezing Co (1968) 118 CLR 429 Walsh v Lonsdale (1882) 21 Ch D 9 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Warmington & Anor v Miller [1973] 2 All E.R 372 Watson v Delaney (1991) 22 NSWLR 358 Whitlock v Brew (1968) 80 WN (NSW) 1520 Competitive Funerals Pty Limited - Plaintiff Gurmit Singh Rai t/as Blacktown City Funerals - First Defendant PARTIES : Strebre Mileski and Yadranka Mileski - Second Defendants Blacktown City Switchboards Pty Limited - Third Defendant FILE NUMBER(S) : SC 4942 of 2005 D A Allen - Plaintiff COUNSEL : A Fernon - First Defendant P P Strasser - Third Defendant J Kekatos Lawyers - Plaintiff SOLICITORS : Low Doherty & Stratford - First Defendant Grech Partners - Third Defendant LOWER COURT JURISDICTION : 62 - - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION LLOYD AJ Firday, 18 November 2005 4942 OF 2005 COMPETITIVE FUNERALS PTY LIMITED v GURMIT SINGH RAI TRADING AS BLACKTOWN CITY FUNERALS AND (2) ORS JUDGMENT 1 HIS HONOUR: This is an action for specific performance of alleged oral agreements for leases of two commercial premises in Seven Hills. 2 Under the original statement of claim, the plaintiff, Competitive Funerals Pty Limited, sought specific performance of the alleged agreements made with the second defendants, Strebre Mileski and Yadranka Mileski, and the third defendant, Blacktown City Switchboards Pty Limited for the lease of No. 8 (the "mortuary") and No. 4 (the "parlour") Artillery Crescent, Seven Hills respectively. It further sought to be given possession of both the parlour and the mortuary (the "premises"). 3 On the commencement of the hearing, Mr D Allen, appearing for Competitive Funerals, indicated that the action against Strebre Mileski and Yadranka Mileski had been resolved and, accordingly, judgment has been entered on the follow terms: (1) The proceedings against the Second Defendant be dismissed. (2) No order as to costs. 4 Mr Allen filed in Court an amended statement of claim under which Competitive Funerals now seeks specific performance of the alleged agreement made with Blacktown City Switchboards for the lease of the parlour and to be given possession of the parlour with leave to issue a writ of possession forthwith. It further seeks damages or equitable compensation for breach of contract from Blacktown City Switchboards and damages for trespass against the first defendant, Blacktown City Funerals, both to be assessed pursuant to Pt 30 r 1 of the Uniform Civil Procedure Rules 2005. Blacktown City Funerals is, as I understand it, presently in possession of the premises. 5 Competitive Funerals has two directors: Mr Richard Taylor and Ken Kirkham. Blacktown City Switchboards has one director: Mr Mohamad Ladha. Blacktown City Funerals is a sole trading business, which is owned and operated by Mr Gurmit Singh Rai (also known as "George Singh"). Plaintiff's Evidence 6 Competitive Funerals relies on the following evidence to establish that Blacktown City Switchboard entered into an agreement to lease the parlour to Competitive Funerals: the evidence of Richard Taylor (Director of Competitive Funerals), Ken Kirkham (Director of Competitive Funerals), Mark Kirkham, and Jim Kekatos (solicitor for Competitive Funerals). Richard Lee Taylor 7 Richard Lee Taylor is a director of Competitive Funerals. He furnished two affidavits and gave some oral evidence. 8 In his first affidavit, Mr Taylor states that when he became aware that the lessee, Blacktown City Funerals, was behind in paying rent, he contacted Mr Con Koulendianos (Con) of LJ Hooker Seven Hills, whom he believed to be the agent managing the mortuary and parlour, and confirmed his interest in leasing the premises. Con said he would contact the owner of the premises and get back to him. Mr Taylor states the following events occurred regarding his dealings in relation to the premises: a. On 21 July 2005, he met Con at the premises at 3pm with Ken Kirkham. b. On Friday 22 July 2005, he went to the premises with Mark Kirkham to meet Con and the director of the owner, Mr Ladha. On his arrival, Mr Ladha was there alone and introduced himself to him. Con arrived shortly after. During the meeting, the following discussion occurred: i. Mr Ladha clarified that the rent was $1650 per month for the parlour and one unit upstairs, though as the unit would be put on a separate lease, the parlour would be $1000 plus GST per month on a 3 by 3 year lease. ii. Mr Taylor accepted the lease price and asked Mr Ladha if they would be able to re-carpet the premises and Mr Ladha agreed. iii. Con and Mr Ladha discussed what to do with the Mr Singh's property. Mr Ladha said that he should be called and told to pick it up and if he fails to do so, it should be auctioned. iv. Con said the lease could commence on Monday and asked Mr Ladha if it was okay to provide the key then, and Mr Ladha did not object. Con gave him the key and he gave the key to Mr Ken Kirkham later that afternoon. c. On 25 July 2005, he went to the premises and met Mr Ken Kirkham to discuss a new fit out. Following this he phoned Con who confirmed that the fit out would be fine. d. On Wednesday 28 July 2005, he called Con after he was informed that the previous tenant, George, was in the premises and Con said he would check it out (I note, however, that the 28 July is in fact a Thursday). Mr Taylor went to the parlour and after seeing a vase was broken in the chapel, he again called Con who told him that he had seen George at the parlour and had informed him that he had been evicted, the lease was now held by Competitive Funerals and George could only come back to collect his goods at a later time. e. On Thursday 4 August 2005 at about 1pm, he went to LJ Hooker's office with Ken Kirkham to meet Con; George arrived shortly after them. Con said that there was no way that Mr Ladha was giving the premises back to George and that a cheque for the bond and first month's rent was unnecessary as the premises were Competitive Funerals' and the lease would be backdated. f. On Friday 5 August 2005, he phoned Con who informed him that George was offering to pay the back rent though would not be getting the premises back. Later that day, he and Mr Ken Kirkham were informed by Mr Kekatos that Mr Ladha had given the premises to George. He called Mr Blades, the managing agent for the mortuary, who indicated that they would also give the lease of the mortuary to George. He went to the parlour and found the locks had been changed. 9 In Mr Taylor's second affidavit, he states the following: a. Competitive Funerals is able to comply with the lease and will run the funeral business at a profit and advertise in the area for business. b. He is personally able to pay the rent of $1100 per month. c. He changed his name from Richard Dykes to Richard Taylor by deed poll in 2002. 10 In cross examination, Mr Taylor said that although he is a Director of Competitive Funerals he was not personally involved in conducting funerals and was only concerned with the business side of the operation (including the approximate costing of funeral services). He indicated that Competitive Funerals has an administrative office in Parramatta and also another funeral parlour at Stout Road, Mount Druitt. He also told the Court that Mr Jim Kekatos, the solicitor for Competitive Funerals, has an office next door to the Parramatta office and Mr Kekatos' father is a shareholder of Competitive Funerals. 11 Mr Taylor became aware that Blacktown City Funerals was behind in paying rent from Ms Michelle Sneddon, an employee of that company. 12 Mr Taylor conceded that he may have been mistaken about the date of the meeting at the premises and it could have been 29 July rather than 22 July, which would mean that all other dates referred to in his first affidavit would have to be changed. He stated that Mr Mark Kirkham was present for the entire meeting, except when he left to get bolt cutters, including when the parties went upstairs to the units. In relation to the meeting, Mr Taylor denied that Mr Ladha mentioned the need for references and a proper lease to be drafted, although at the end of the meeting it was said that a lease would be provided. He stated that at the meeting he knew the previous tenant was George (Mr Gurmit Singh Rai) but was unsure whether George had been evicted or was going to be evicted. 13 Mr Taylor admitted that when he first arrived at the meeting he thought the lease included both premises, the parlour and the mortuary. During the meeting, however, Mr Ladha clarified that the lease would only be for the parlour and also did not show him the mortuary. He conceded that although the agreement to lease was made with Mr Ladha, he was not sure whether Mr Ladha was there when he realised that the lease was only for the parlour and not the mortuary. 14 Mr Taylor stated that on Wednesday 28 July 2005 he met Mr David Blades, the managing agent of the mortuary, and despite deposing to a conversation that occurred could not remember the conversation (I note again, however, that the 28 July is in fact a Thursday). He told the Court that the sentence in par [16] of this affidavit reading "I thought we had leased the mortuary as we have leased next door" was incorrect. He stated that it should read: "Originally, I thought we had leased the mortuary as we have leased next door". He also noted that there was no internal access between the parlour and mortuary as the mortuary can only be accessed from the rear. 15 Mr Taylor also told the Court that when he met Mr Blades he told him that he thought George was overseas. He claimed that he could not recall whether at this time he had been told that George had been in the premises earlier that day in contradiction of par [15] of his first affidavit. 16 Also, in contradiction of par [11] of his first affidavit, Mr Taylor told the Court that at the meeting Con gave him the key prior to the discussion regarding re-carpeting the parlour. He denied that the key was only provided to enable him to take measurements for re-carpeting, to show Mr Ken Kirkham (the other director of Competitive Funerals) and on condition it was returned as soon as possible. He admitted that the fixtures and fittings of George had not been removed and there has been no new fit-out as discussed in his meeting with Ken Kirkham at the parlour on 25 July 2005. Mr Taylor also told the Court that Competitive Funerals conducted one funeral at the parlour on 23 July 2003, and had two more funerals booked but had to abandon them due to the complications with the lease. 17 In relation to the terms of the lease agreed to at the meeting, Mr Taylor confirmed that there was no discussion of insurance, consequences for non-payment of rent, holding-over provisions or what the rent might be for any extended period beyond the first three years. He told the Court that he expected that Mr Ladha's solicitors would finalise the lease but that he had not thought that any additional terms imposed by them would be unacceptable. 18 Although he initially conceded that he did not know or understand what a statement of claim was, Mr Taylor later claimed that he had read the statement of claim before his verification of it on 7 September 2005. He stated, however, that par [7] of the statement of claim was incorrect and should read that the lease was offered on 22 July rather than 25 July, and accordingly, the lease was entered into on 25 July rather than 27 July. He also acknowledged again, however, that the lease may have been offered on 29 July in which case, it was entered into on 1 August 2005. 19 Also in relation to par [7] of the statement of claim, he conceded that Mr Ladha only mentioned a "3 by 3 year lease" and not a "three-year lease with 2 options to extend for another 3 years", and also said his solicitor would prepare a lease, not specifically a "Standard Law Society Lease". He admitted that he did not understand the meaning of a "3 by 3 year lease" though presumed it would be a three year lease. Similarly, he did not understand the meaning of the terms "option for renewal", "three-year lease with 2 options to extend for another 3 years" or "Standard Law Society Lease", when he verified the statement of claim. 20 Mr Taylor conceded that prior to meeting Mr Ladha on 22 July 2005, he had not previously met him and did not provide Mr Ladha with any financial details at that meeting or complete a written lease application. 21 Further, he claimed that on 4 August 2005, whilst meeting Con at LJ Hooker's office, he offered to pay the bond assuming that it would be one month rent as with residential leases and did not think that it was strange that Con refused his payment of bond and rent. 22 Mr Taylor admitted that he and Ken Kirkham had entered into and guaranteed a commercial lease for the funeral parlour at Stout Road, Mount Druitt 12 months ago and had provided a security deposit. He was unable to recall whether the lease contained an option to renew for two years and whether that option had been exercised. He stated that he did not believe that there was any licensing requirement to carry on a funeral business, though later conceded that Competitive Funerals were awaiting certification from the Health Department to allow the use of the Mount Druitt premises as a mortuary and funeral parlour. 23 Mr Taylor denied that the proceedings were essentially an attempt by Competitive Funerals to push Blacktown City Funerals out of the funeral market in the Seven Hills area and that he or Mr Ken Kirkham offered to buy Blacktown City Funerals from George or wanted an assignment of that company's lease. Mr Taylor told the Court that on 28 July 2005, he, Mr Ken Kirkham, Mr Kirkham's girlfriend, Delina, and George met at Patrick Tavern in Seven Hills, though he denied that Mr Kirkham offered to buy Blacktown City Funerals from George. He also stated that approximately three weeks after 22 July 2005, he had a friendly discussion with George where he suggested that instead of going to court they should do business together. 24 Mr Taylor stated that he did not look at the affidavits of Mr Ken Kirkham or Mr Mark Kirkham when deposing his first affidavit. He conceded he was present when they swore their affidavits though he was sitting outside in a different office. Mr Taylor conceded that in addition to the errors in the statement of claim and in par [16] of his first affidavit requiring the insertion of "originally", there were three further errors in his first affidavit: (i) in par [10], "Ken" should replace "Mark", (ii) consistently with (i), in par [11] "again" should be deleted from the first sentence; (iii) in par [11], the sentence "We then all walked back to the units" is incorrect as the discussion regarding the disposal of George's property took place at the back gate. Ken Kirkham 25 Mr Ken Kirkham is the other director of Competitive Funerals and provided both affidavit evidence and also oral evidence. 26 In his affidavit, Mr Kirkham states the following: a. On the afternoon of Friday 22 July 2005, Mr Taylor gave him the key for the parlour. He still has possession of those keys and also a set of keys for mortuary. b. On Monday 25 July 2005, he went to the parlour and opened the front door and looked around the premises. c. Later that month, he conducted funerals at the premises using the mortuary overnight to store the bodies, the front room of the parlour for viewing and the Chapel for services. d. On Thursday 4 August 2005 at about 1pm, he went to LJ Hooker's office with Richard Taylor to meet Con and saw George arriving. Con said that Competitive Funerals had the lease, that it was no problem to send Jim (Kekatos) the lease and that a cheque for the bond and first month's rent was unnecessary as the premises were Competitive Funerals' and the lease would be backdated. 27 In cross-examination, Mr Kirkham denied looking at the affidavit of Mr Taylor or discussing his evidence with Mr Taylor before deposing his affidavit. In particular, Mr Kirkham denied collaborating with Mr Taylor in relation to his evidence of the conversation with Con on 4 August 2005. He stated that the conversation set out in par [6] of his affidavit was his independent recollection. He conceded that he was not paying much attention when he deposed his affidavit and the conversation set out in par [6] also included the following: Mr Kirkham said: What's happening with the premises? Con said: I don't know, I am waiting for the owner to given me instructions. If it was up to me, I probably would not let George back in because he is a bad tenant, but it is up to the owner. Also, Mr Kirkham stated that Con refused to take the cheque offered by Mr Taylor as he said it was inappropriate at the time. 28 He conceded that the following words were used identically in par [6] of his affidavit and par [22 (page 6)] of Mr Taylor's affidavit despite the fact that the affidavits were deposed one month after the events: Mr Taylor said: To save me coming back, can you send Jim the lease? I have my cheque book, can I write you a cheque for the bond and the first month's rent. Con said: That is not necessary today, as you have not received the lease. The premises is [sic] yours. We will back date the lease and you can give me the cheque then. In response to this coincidence, Mr Kirkham stated that, " stranger things have happened. It is there, what can I say? I can't do a back flip ." 29 Mr Kirkham also admitted that par [5] of his affidavit was incorrect as there was only one funeral conducted at the premises, which was Ms Sinha's funeral held on 23 July 2005, although later he stated it was held on 30 July 2005. 30 Mr Kirkham told the Court that he had previously been an employee of Blacktown City Funerals and that George had asked him to look after the funeral business of Blacktown City Funerals while he (George) was away in Fiji, including the funeral and embalming of Ms Sinha. 31 Mr Kirkham initially told the Court that Delina, his current girlfriend, had arranged Ms Sinha's funeral whilst she had been employed by George, and Ms Sinha's family contacted her when they could not get in touch with George and were concerned about some missing clothes. Delina effectively referred the funeral to Competitive Funerals due to George's absence. However, Mr Kirkham then admitted that this series of events actually related to a funeral conducted for a Mr McKay and not Ms Sinha. 32 In relation to Ms Sinha's funeral, Mr Kirkham told the Court that he had the body delivered to the premises by Michelle Sneddon and Phillip Eslick on 22 July 2005 and he came to see the body. Initially, Mr Kirkham told the Court that the funeral only involved the use of the parlour, including a fridge in the back of a parlour. The mortuary was not used, as Competitive Funerals did not have access to the mortuary until 30 July 2005 when he and Mr Taylor first met Mr Blades and went with him to get bolt cutters to cut the chains and change the locks. 33 Later, however, Mr Kirkham admitted that he had arranged for Ms Sneddon and Mr Eslick to put the body in the mortuary. He denied being at the parlour while this was occurring and also denied walking out into an alleyway behind the parlour and calling Mr Eslick and Ms Sneddon to tell them to take the body out of the cool room and put it back in the van. He admitted that the body was then taken to the parlour at Stout St, Mount Druitt and that was where he conducted all the work for the funeral. 34 Mr Kirkham also stated that he did not know Mr Ladha and was unaware of Mr Taylor's evidence of his meeting with Mr Ladha, Con and Mark Kirkham at the parlour on 22 July 2005. He denied that it was him and not Mr Mark Kirkham who attended that meeting. 35 Mr Kirkham admitted that he was mistaken when he deposed in his affidavit to this series of events, and par [5] should have followed par [2]. He denied that he was not given the key until 29 July 2005, though conceded that if that were the case, the invoice of Ms Sinha's funeral could not possibly relate to a funeral conducted by Competitive Funerals. 36 Mr Kirkham denied that there was hostility on his part toward George. Mark Kirkham 37 Mark Kirkham, a brother of Ken Kirkham and an employee of Richard Taylor in a cleaning business, furnished one affidavit and also gave oral evidence. 38 Mr Mark Kirkham's affidavit states the following: a. On 22 July 2005, after working with Richard Taylor, he gave Mr Taylor a lift to the parlour and met Mr Ladha. Whilst showing them a leak close to the electricity box, Mr Ladha noted that Con would have to fix the leak. At that time Con arrived and introduced everyone. b. Mr Taylor, Con and Mr Ladha walked upstairs and discussed whether the lease for the premises included the units and Mr Ladha indicated that it only came with one unit though he intended to put the unit on a different lease. Mr Kirkham remained at the bottom of the stairs. c. He and Mr Taylor were shown the front of the premises, then the viewing room and then outside including the back area and toilets. Mr Taylor, Con and Mr Ladha were talking but he was not paying particular attention to their conversation as he was looking at the premises. d. Whilst they all looked at the broken latch on the gate, Con asked Mr Ladha what they should do with George's stuff, and Mr Ladha responded that he didn't care, George was out and he should be called to collect it or it would be auctioned. Con asked whether everyone was fine with the discussions of the meeting and Mr Ladha replied "yes", then Con confirmed the lease would start on Monday and upon authorisation of Mr Ladha handed Mr Taylor the key. e. Mr Ladha left and he went to the second hand shop next door to borrow some bolt cutters to cut the lock on the gate, however the cutters were too small so he returned them. 39 In cross-examination, Mr Mark Kirkham said that although he could not remember the events of the 15 or 29 July 2005, he was definitely at the meeting at the parlour on 22 July 2005 and remembered that particular date because it interrupted his personal routine. He stated that, as he was required to drive Mr Taylor to the meeting in the mid-afternoon (because Mr Taylor did not have a licence), he was not able to go to sleep at his normal time of 11.30am. 40 Mr Mark Kirkham denied looking at the first affidavit of Mr Taylor or discussing his evidence with Mr Taylor before deposing his affidavit. He claimed that it was "pure luck" that par [4] of his affidavit and par [11] of Mr Taylor's affidavit were so similar and contained the following: Mr Taylor said: Do the units come with [the premises/it]? The owner said: No, it came with 1 unit but I am [going to put that on a different lease/only going to lease the parlour]. 41 He confirmed that he was definitely at the bottom of the stairs when the conversation took place despite Mr Taylor's evidence to the contrary and was able to hear the conversation due to the echo down the stairway. Jim Kekatos 42 Jim Kekatos is the solicitor for Competitive Funerals. He furnished two affidavits and gave some oral evidence. 43 Mr Kekatos had sworn an affidavit in support of a notice of motion for expedition filed on 7 September 2005, in which he stated at par [3] that, "the Plaintiff owns and operates a funeral business trading as "Competitive Funeral Services". The Plaintiff has currently has no place to trade". 44 Mr Kekatos also furnished an additional affidavit in which he states: a. He has known Con for over five years. b. On 15 July 2005, he telephoned Con on behalf of Competitive Funerals and discussed its interest in leasing the premises leased to Blacktown City Funerals. Con informed him that Blacktown City Funerals was behind on rent and he was going to contact them and would get back to him. c. On about 17 July 2005, Con told him that George had been given a notice to vacate as the landlord wants him out and that Competitive Funerals could have the premises. d. On 25 July 2005, Con confirmed that Blacktown City Switchboards had given the premises to Competitive Funerals and had agreed on the terms of the lease. Con indicated that Len Robinson was the solicitor for Blacktown City Switchboards and that he should contact him to get a copy of the standard commercial lease straight away as the lease commenced on that day. e. On 26 or 27 July 2005, he telephoned Mr Robinson who told him that he did not have any instructions and would call him back. Mr Robinson did not call back and Mr Kekatos believed that the lease would be issued in due course as Competitive Funerals had been given possession and from his conversations with Con. f. On 5 August 2005, Con told him that George had begged Blacktown City Switchboards to give him possession again and they had changed their mind. He informed Con that Competitive Funerals would go to court to enforce its lease. 45 In cross-examination, Mr Kekatos initially denied any personal financial interest in Competitive Funerals, though later he conceded that he was a party to a joint venture agreement dated 19 November 2004 with Mr Taylor in relation to the affairs of Competitive Funerals. He agreed that under the agreement he and Mr Taylor together had advanced a sum of $30,000 and were 49 per cent shareholders of Competitive Funerals. 46 Mr Kekatos denied that due to his financial contribution it was in his interest that the proceedings before the Court should succeed. He claimed that the proceedings before the Court are irrelevant as the Competitive Funerals was conducting business from the Mr Druitt premises and was able hire the requisite mortuary facilities for the storage of bodies. Following this evidence, he conceded that par [3] of his affidavit in support of the notice of motion to expedite these proceedings, noted in par [43] above, stating that the "plaintiff has currently no place to trade", was technically incorrect and he realised the seriousness of telling a falsehood. Mr Kekatos told the Court that the joint venture agreement had been changed orally at various times such that he no longer held any shares. A shelf company was purchased and its name was changed to Competitive Funerals Pty Limited and his father was made a 24 per cent shareholder. He also admitted that he had made contributions "paid out of [his] pocket" on behalf of his father. 47 Mr Kekatos confirmed that his conversation with Con set out in par [3] of his second affidavit occurred on 25 July 2005, though conceded that if the meeting at the parlour did not occur on 22 July 2005, then it would not have taken place on that date. 48 Mr Kekatos claimed that the reason that there were no entries in his diary in relation to any of the events that he deposed to in his second affidavit was because he does not record conversations in his diary and also because he charges a standard fixed fee for leases. He also stated that a file had not been created and there were no file notes as there had only been preliminary conversations and no written lease had been signed. He told the Court that as far as he was concerned his "client had been given the key and possession and was merely waiting on the lease". 49 Mr Kekatos confirmed that he prepared all the affidavits for Competitive Funerals in these proceedings though denied influencing any of the deponents as to what they should say in their affidavits. After being pointed to the identical statements in par [6] of Ken Kirkham's affidavit and par [22 (page 6)] of Mr Taylor's first affidavit and also the remarkably similar statements in par [4] and par [6] of Mark Kirkham's affidavit and par [11] of Mr Taylor's first affidavit, he told that Court that it was just "how the statements were taken". He stated that affidavits were taken independently from each of the deponents. First Defendant's Evidence 50 Blacktown City Funerals submits that there was no agreement for lease between Blacktown City Switchboards and Competitive Funerals and relies upon the evidence of Gurmit Singh Rai, Lalita Prasad and Keshwar Nand. Gurmit Singh Rai 51 Mr Gurmit Singh Rai, also known as George Singh, is a funeral director and owner of Blacktown City Funerals. Mr Singh is a Fijian Indian and immigrated to Australia in 1985. Mr Singh furnished two affidavits and gave oral evidence. 52 In his first affidavit, Mr Singh stated that Blacktown City Funerals currently leases the mortuary at No. 6A Artillery Crescent, Seven Hills, from Strebre Mileski and Yandranka Mileski and the funeral parlour at Unit 4, No. 6 Artillery Crescent, Seven Hills, from Blacktown City Switchboards. 53 He gave the following evidence in relation to the lease of the parlour by Blacktown City Funerals: a. In October 2004, he purchased Blacktown City Funerals and was told by the vendor that LJ Hooker Seven Hills were the managing agents of the parlour and Raine and Horne Blacktown were the managing agents for the mortuary. b. In late October 2004, he met with the director of Blacktown City Switchboards, Mr Mohamad Ladha, and Rod, the property agent, at LJ Hooker, Seven Hills. At the meeting the terms of the lease were agreed, including rent of $1668.28 per month, commencement on 1 November 2004 and the inclusion of Unit 2 upstairs, and he filled out various rental forms and was provided the keys to the parlour. Rod told him that LJ Hooker would contact him when the lease was prepared and in the meantime he could have possession. c. On 1 November 2004, he took possession of the parlour, which consists of a viewing room, an office and a trimming room, and Unit 2. d. On 20 January 2005, he attended LJ Hooker, Seven Hills, and signed the lease and took the copy he had signed home. The terms of the lease were: i. The lease was a 3 year lease with an option to renew for 3 years; ii. The monthly rental payments were $1668.26. iii. The commencement date was 1 November 2004. e. In March 2005, he began to fall behind in rent payments, as he was experiencing cash flow difficulties associated with building up the business. At this time, Mr Con Koulendianos, an LJ Hooker agent, contacted him. He explained to Con that business was slow and that he'd arrange to make payments when business improved and Con told him to keep paying some rent and that he thought the owner would understand his situation. 54 Mr Singh stated that between Thursday 21 July and Wednesday 27 July, he was visiting his family in Fiji and the mortuary and parlour were closed. He gave the following evidence in relation to the events on 28 July 2005: a. At around 11am, after arriving at the premises and finding that the locks had been changed on both access doors, he called a locksmith. b. After the locksmith changed the locks at approximately 1.30pm, he entered the premises and notice that chairs in the viewing room had been moved around and cupboards had been left open, though nothing was missing, there was no broken vase in the Chapel or any other new items. c. Whilst he was at the mortuary, Ken Kirkham called and asked where he was, and when he told him he was at the parlour, Ken hung up. d. Later that afternoon, Con and another employee of LJ Hooker Seven Hills arrived at the premises. Con asked him who said he could enter the parlour, and he said that he had never been kicked out and asked why the locks had been changed. Con told him that the locks were changed because they were told he left the country and the only way he could keep the lease and use the premises would be if he paid the rent in arrears and one month's rent in advance. He agreed to do this the following week. e. At around 3.30pm, Ken Kirkham called and asked him to meet at Patrick Tavern, Seven Hills, for a drink. He locked the premises and put a pad lock on the back door. f. Whilst he was at the premises, neither Richard Taylor nor Mr David Blades came to the premises and as he had changed the locks he was the only person with access to the premises. g. At around 4.00pm, he met Ken Kirkham and Richard Taylor at the Patrick Tavern. Ken said that he and Richard would like to buy Blacktown City Funerals and they offered to pay $45,000. Mr Singh rejected the offer and said he wanted at least $80,000. 55 Mr Singh states that he does not recall the chains on the back of the parlour being cut on 30 July 2005 as claimed by Mr Ken Kirkham (in par [4] of his affidavit) and Richard Taylor (in par [19] of his first affidavit). 56 Mr Singh stated the following events occurred on Wednesday 3 August 2005: a. He went to see Kenneth Fairfax, a solicitor from Pye Lawyers. After explaining to Mr Fairfax the conversation he had had with Con on 28 July 2005, Mr Fairfax prepared a letter to LJ Hooker Seven Hills. b. Later that day, Mr Singh gave the letter to Con with a cheque for $9,900.00. He also told Con that he no longer wanted to rent the Unit 2 upstairs and Con contacted Mr Ladha about amending the lease. Con then told him that Mr Ladha was prepared to amend the lease to exclude Unit 2 and the rent would be $1,100 per month, though he did not have to worry about getting a new lease as the existing lease could be amended and they would make a different lease for any new tenants for Unit 2. Mr Singh confirmed that this was acceptable and Con told him that "everything was alright" and he could start using the premises again. c. He then went to Raine and Horne Blacktown, now Harrods First Nation Real Estate, and paid the outstanding rent for the mortuary of $1480.00 and one month's rent in advance being $397. 57 Mr Singh states that on Thursday 4 August he went to LJ Hooker to speak with Con about painting the outside of the parlour and did not see Mr Taylor or Mr Ken Kirkham whilst he was there. 58 Mr Singh states that on 6 August 2005, Ken Kirkham called him and asked him to meet him at Coylerton Pub on Monday 8 August at 1.00pm to discuss another business proposal. On 8 August 2005, he met Ken Kirkham and Richard Taylor at that pub and Ken told him that he wanted to franchise their funeral business and wanted him to be a franchisee and assign his lease to them. Mr Singh told them that he did not want to be involved in any franchise arrangement. 59 Mr Singh states that he does not believe that Ken Kirkham conducted any funerals using the parlour and mortuary in late July or at any time. 60 In his second affidavit, Mr Singh states the following: a. In March 2005, he started using Ken Kirkham as an embalmer and since then he has only used Ken to embalm three bodies for his business and charged $250 per body. b. On 21 July 2005, a member of the Sinha family called him while he was in Fiji and asked him to pick up Ms Sinha's body and conduct the funeral. He told them he was overseas, but would arrange for one of his staff members to make the arrangements. He telephoned Delina Stevenson, a casual staff member, and told her of Ms Sinha's death and that the family wanted the funeral on Saturday at 11.00am and he'd quoted the price. He asked her to arrange with Phil Eslick to pick up the body and call the family. c. He then called Lalita Prasad and told her about the funeral and that Mr Eslick was going to pick up the body, and asked her to make sure the family is looked after properly and everything runs smoothly. d. On 22 July 2005, Delina called him and told him that Blacktown City Funerals had lost the funeral to someone else. e. When he arrived back in Australia, Michelle Sneddon, another employee, told him that Delina and Ken Kirkham had taken the body and conducted the funeral through Competitive Funerals. 61 In cross examination, Mr Singh confirmed that he has paid all outstanding rent for the parlour to Mr Ladha and the rent is paid up until 1 November 2005. He conceded, however, that as at 28 July 2005 he was behind in rent and had written at least two cheques payable to LJ Hooker Seven Hills that had been dishonoured on presentation, but claimed that it was not deliberate and he thought that the funds would have cleared. 62 Mr Singh also stated that when he arrived at the premises on 28 July 2005 at 2.00pm and could not access the premises he did not know that Ms Prasad had changed the locks and he discovered she had changed the locks when he saw her at home at about 5.00pm. He stated that he still did not know whether Con had also changed the locks. He told the Court that he noticed the furniture had been moved, though did not suspect that someone other than someone authorised by Blacktown City Funerals had been in the parlour. He also stated that after the locksmith changed the locks, he retained two sets of keys and delivered one set to LJ Hooker on that day although did not receive a receipt. 63 Mr Singh admitted that there was no written lease for the parlour until January 2005. However, he told the Court that he was given a letter from Mr Ladha stating that the lease of the parlour commenced on 1 November 2004, as he was the new owner of Blacktown City Funerals. 64 Mr Singh denied terminating the lease with Blacktown City Switchboards by signing a letter dated 5 August 2005 (Exhibit B) which read: I Gurmit Rai Singh wish to terminate my lease with LJ Hooker Seven Hills and the owner of 4-6 Artillery Crescent, Seven Hills and wish to appoint my wife Lolita Prasad as the new lessee of the above premises. He told that Court that the although he signed this letter and Ms Prasad also signed a copy of this letter (Exhibit C) and they were delivered to LJ Hooker Seven Hills, the letters were signed prior to the payment of the rental arrears when they had wanted the lease to be transferred to Ms Prasad so she could take control of the finances. He told the Court that after the arrears were paid and they realised that it would cost money to transfer the lease into Ms Prasad's name, they decided not to do it and the lease remains in Mr Singh's name. 65 Mr Singh also denied terminating the lease when Unit 2 was removed from the lease. He confirmed his affidavit evidence that Con had said that a new lease was not necessary, the existing lease could be amended and a different lease would be made for any new tenants of Unit 2. He also told the Court that amendments to the lease have been made and another lease has been issued for Unit 2. Lalita Prasad 66 Ms Lalita Prasad is an account clerk and has been in a de facto relationship with Mr Singh for 15 years. Ms Prasad provided both affidavit and oral evidence. 67 In her affidavit, Ms Singh stated that from time to time she helped Mr Singh to operate Blacktown City Funerals. She stated that George went to Fiji on around 21 July 2005 and returned on or around 27 July 2005. 68 Ms Prasad gave the following evidence in relation to the events of 22 July 2005: a. She was at home when George called and asked her to go and open up the parlour as Ms Sinha's funeral was being conducted and Ken Kirkham was to do the embalming and Phil Eslick and Michelle Sneddon were to pick up the body. b. Approximately 30 minutes later, after picking up her cousin, Keshwa Nand, she went to open the parlour. c. Approximately 10 minutes after she arrived, Ken Kirkham, Ms Sneddon and Mr Eslick arrived. d. She went with Mr Eslick and Ms Sneddon into the cool room in the mortuary where they put the body and Ken Kirkham walked out in the alleyway behind the parlour. Whilst in the cool room, Mr Eslick's mobile rang and she was able to hear the callers voice and recognised it was Ken Kirkham. She overheard Ken Kirkham tell Mr Eslick not to put the body in the cool room but to bring it outside and put it back in the van. Mr Eslick gave then Ms Sneddon the phone and she overheard Ken Kirkham tell her the same thing. e. Ms Sneddon and Ms Eslick started to take the body back outside and when she asked why Ms Sneddon told here that they were taking the body back to Westmead Hospital because the doctor forgot to take the pacemaker out of the body. She told Ms Sneddon that it was not right and something fishy was going on. f. She then walked back into the parlour and locked the premises. She also called a locksmith to come and change the locks because Delina Stevenson, a former casual employee of Blacktown City Funerals, had a key to the premises. A locksmith came later that afternoon and changed the locks and she went home. 69 Ms Prasad also stated that the next day she went to the parlour with her cousin again at approximately 2.00pm for approximately 15 minutes and at that time the parlour did not look like it had been used that day. 70 In examination in chief, Ms Prasad gave the following additional evidence in relation to the events of 22 July 2005: a. She arrived at the parlour between approximately 10am and 11am and left between approximately 4pm and 4.40pm. b. Whilst she was at the parlour she did not see Richard Taylor, Mark Kirkham, Mohamad Ladha, Con Koulendianos or Mr Phil Eslick. Further she stated she did not know Richard Taylor or Mr Eslick. 71 In cross-examination, Ms Prasad stated she was certain that the date was 22 July 2005. She also told the Court that she retained a receipt from the locksmith and would produce it if she could find it. 72 Ms Prasad further stated that she attend the premises on Monday 25 July 2005 and looked around the premises though did not go inside and did not see any signage that was not there on 22 July 2005. Keshwar Nand 73 Keshwar Nand is the cousin of Lalita Prasad. He gave the following affidavit evidence: a. On 22 July 2005, the day after George went to Fiji, he went to Blacktown City Funerals with Lalita. She had asked him to go as she was not comfortable going the premises alone. b. While he was at the parlour, he heard a number of people arriving and then leaving approximately 30 minutes later. c. After they had left, Lalita told him that the people had dropped off a body and taken it away again and that something fishy was going on. d. On 23 July 2005, he called into the parlour in the morning and did not see anyone, and also accompanied Lalita to the parlour in the afternoon. The parlour was all locked up and he did not see anyone. Third Defendant's Evidence 74 Blacktown City Switchboards contends that it did not agree to lease the parlour to Competitive Funerals, and relies upon the evidence of Mr Mohamad Ladha and Mr Con Koulendianos. Mr Mohamad Ladha 75 Mr Mohamad Ladha is the Managing Director of Blacktown City Switchboards, which carries on business as a manufacturer of switchboards, control systems and other electrical equipment. Mr Ladha furnished two affidavits and gave oral evidence. 76 In his first affidavit, Mr Ladha states that Blacktown City Switchboards leased the funeral parlour and a unit (Unit 2) at 4-6 Artillery Place, Seven Hills to Blacktown City Funerals which executed the lease, delivered it to Blacktown City Switchboards and took possession of the premises on or about 20 January 2005. He states that on about 5 August 2005, Blacktown City Funerals varied its lease of Unit 2 with the consent of Blacktown City Switchboards. 77 Mr Ladha states that he has conducted all negotiations in relation to the lease and has mostly dealt with Con Koulendianos of LJ Hooker and occasionally with Ara Akopian. 78 Mr Ladha states the following in relation to the lease of the parlour: a. In about May or June 2005, Con called him and told him that Mr Singh had not paid about $6000 rent. He told Con that he knew what he could do to collect the rent and, if not, to find another tenant. b. In about the end of June or early July, Con telephoned him again and told him that he was having difficult finding Singh and had not found another tenant though had advertised. c. About a week later, Con called and told him that he had contacted Mr Singh's wife, who was unaware that rent had not been paid, and arranged a meeting to find out what's happening and to collect the rent. d. A couple of days later in about the middle of July, Con telephoned and told him that Mr Singh wanted to continue leasing the parlour and would pay the outstanding rent of approximately $9,000. e. A couple of days later, Mr Singh called and told him that he would pay the outstanding rent and asked for another chance. Mr Ladha told Mr Singh that he would talk to LJ Hooker and get back to him. On the same day, Mr Singh called about three further times with the same message. f. A couple of days later, Con telephoned again and told him that Mr Singh had the money and wanted to pay but wanted to confirm that he would continue the lease. He told Con that he had not decided and would get back to him. g. On about 20 July 2005, Con called and confirmed that Singh had promised to pay the outstanding rent but had not yet paid. Con told him that he had found a prospective tenant and he agreed to meet the prospective tenant and come to the property to assess what furniture could be salvaged to offset the unpaid rent if Singh did not pay it. h. On about 29 July 2005, he went to the parlour, arrived before Con and introduced himself to a man called Richard who told him he was interested in renting the parlour and already conducted funeral parlours at properties he owned in Girraween and Parramatta. Con arrived and introduced Richard as the prospective tenant and Mr Ladha said "that's fine, as long as the references are satisfactory and a proper lease is drawn up" and the existing lease to Mr Singh is sorted out. Richard told him that he knew about Mr Singh's lease. Inside the parlour, he said that if Mr Singh does not come back then they could either sell or dump his furniture. They walked around the back and he asked Con to arrange to fix the internal gate. Then walked out of the parlour to go upstairs and Con and Richard walked some distance away from him. Con told him that Richard wanted the key to show the premises to his partner and take some measurements and Mr Ladha agreed as long as the key was brought back. As they walked toward the gate leading to the upstairs units he told Con to repair a water drip that was close to the electrical switchboard. He remembered walking upstairs with Con, though could not recall if Richard went. They met the tenant of Unit 2 and observe empty bottles which he told Con to clean up. i. A couple of days after about 29 July 2005, Ara Akopian called and told him to give Mr Singh a chance as he is employed and would take charge of the finances and if they did not he would probably not pay the outstanding rent and they would have to go through the legal processes to get it. He agreed and asked Mr Akopian to inform the other people. j. Mr Singh is in occupation of the parlour. k. He denies Blacktown City Switchboards offered to grant a lease of either No. 4 or No.8 Artillery Road, Seven Hills to Competitive Funerals. Blacktown City Switchboards does not and has never owned No.8 Artillery Road, Seven Hills. l. He was not aware that Ken Kirkham had conducted funerals from any part of the parlour until he read Mr Kirkham's affidavit. m. He did not authorise Con to tell Mr Richard Taylor that Competitive Funerals definitely had the lease or that Blacktown City Switchboards was not giving it back to Mr Singh (as set out in par [6] of Mr Ken Kirkham's affidavit and par [22 (page 6)] of Mr Richard Taylor's affidavit). n. Neither he, nor to the best of his knowledge any other person on behalf of Blacktown City Switchboards, authorised Con to tell Mr Taylor that he would make arrangements in relation to Mr Singh's goods, that a fit out would be fine, or that Mr Singh had been in contact with Ara Akopian and was offering to pay back the rent but would not be getting the premises back as the lease was definitely Competitive Funerals' (set out in pars [11], [14], [22 (page 6)] or [20] of Richard Taylor's first affidavit respectively). o. He denies the assertions made by Mr Richard Taylor in par [11] of his first affidavit and states at the meeting between them: i. There was no discussion as to whether the parlour, the upstairs unit, or both would be leased. ii. Mr Taylor was not "shown" the toilet and the discussion about the light switch did not relate to the switch in the toilet. iii. There was no discussion of rent, GST, the term of the lease or any option or leasing the unit by separate lease by him or within his hearing. He told Mr Taylor that he should discuss the commercial side of any deal with Con. iv. Mr Taylor did not ask about re-tiling the carpet and only said they may want to do something about the floor, to which he said that was fine. v. The disposal of Mr Singh's furniture was discussed at the beginning went they entered the parlour (as set out above in par [80(h)]) and not at the end of the meeting. vi. Con did not tell Mr Taylor that the lease would commence on Monday. 79 In examination in chief, Mr Ladha confirmed that the meeting at the parlour with Con and Mr Taylor took place on 29 July 2005 as he recorded it in his diary (Exhibit 5) and also in an office exercise book maintained by the secretary and senior staff members of Blacktown City Switchboards to identify absences from the office (Exhibit 6). There were no such records for 22 July 2005. Mr Ladha told the Court that Mr Mark Kirkham was not at the meeting though Mr Ken Kirkham did attend. He further stated that prior to the meeting he had never previously met or had any business dealings with Mr Taylor or Ken Kirkham, and until 14 September 2005 when the Court documents were served on him, he had not heard of the name "Competitive Funerals". In addition, Mr Ladha said that as a normal practice in issuing leases to prospective tenants with whom he has not previously had business dealings, he requires three credit references to ascertain their financial position or payment system and assess their previous tenancy performance as well as personal guarantees from directors or shareholders and that he would not agree to enter into any lease without such material. 80 Mr Ladha stated that he did not know about the funeral arrangements for Ms Sinha. Further he also stated that he gave the key to Mr Taylor temporarily so that he could show his partner and take some measurements. 81 Mr Ladha also told the Court that although he received a letter dated 5 August 2005 signed by Mr Singh and Ms Prasad indicating an intention to terminate the current lease and assign the lease to Ms Prasad, he did not act on the letter, the lease was never assigned, rent has continued to be paid and he is happy to have Mr Singh (or Blacktown City Funerals) as lessee. 82 In cross-examination, Mr Ladha did admit, however, that on 5 August 2005 the existing lease was amended to so that it only related to the parlour and not Unit 2 and accordingly the rent was changed from $1668.260 to $1100 per month. 83 Also in cross-examination, Mr Ladha said that he was familiar with the written lease between Blacktown City Switchboards and Blacktown City Funerals although leasing property was not the usual course of business for Blacktown City Switchboards. He acknowledged that it he had not signed the lease and therefore Blacktown City Switchboards had not executed it. He told the Court that he knew that cl 4 of the lease contained an option to renew for a further three years, or a "three by three" year lease. He conceded that despite cl 9 of the lease requiring Blacktown City Switchboards to give Mr Singh two days written notice before an inspection, he did not give Mr Singh such notice of the inspection held on 29 July 2005 as he assumed that Con would have, although was not sure whether he actually did and they had tried every means to contact him. Mr Ladha denied that he did not give notice to Ms Singh because he considered the lease to be terminated and did not know that failing to give such notice would be a breach of the lease by Blacktown City Switchboards. 84 Mr Ladha admitted that he authorised Con to give the key to Mr Taylor, although did not see it being handed over, despite the fact that under the existing lease he knew Mr Singh had exclusive right to possession. He confirmed that he only authorised Con to give the key to Mr Taylor for the purpose of showing the parlour to his partner and doing some measurements. He stated that he never asked for the keys back or put a time limit on when they must be returned because Con controlled the keys and he thought they would be returned immediately after Mr Taylor had shown his partner and done the measurements as he requested. He stated that he did not allow Mr Taylor to be given the keys because he considered the lease to Mr Singh to be terminated. He told the Court that he did not know whether Con went with Mr Taylor when he accessed the premises and further stated that he did not know that allowing Mr Taylor such access would be contrary to Mr Singh's right to exclusive possession. 85 Mr Ladha stated that the purpose of the meeting at the premises on 29 July 2005 was not to discuss the terms of leasing the property - only to show Mr Taylor the property. He further stated that he was not involved in negotiating the amount of rent as he did not know the market and left that to Con. Mr Ladha reiterated that at the meeting the only name he knew in relation to the prospective tenant was "Richard", he did not know who Mr Taylor's partner or the other man at the meeting were, or the name "Competitive Funerals". 86 Mr Ladha again confirmed that the meeting at the premises was on 29 July 2005 based on his diary record, which he stated was where he puts all his important meetings, and also based on his memory. He told the Court that the meeting at the premise was organised on about 20 July 2005 when Con called him on his mobile. He denied not recording leaving the office on 22 July 2005 to go to the meeting at the premises in the office exercise book as he was already out on personal business, going the gym and physiotherapist. Costa Koulendianos 87 Mr Costa Koulendianos (Con) is a licensed Real Estate Agent and has been the principal of LJ Hooker Seven Hills since March 2005. He furnished the following affidavit evidence: a. LJ Hooker Seven hills is the managing agent for the property 4-6 Artillery Crescent, Seven Hills consisting a funeral parlour and two residential units owned by Blacktown City Switchboards. b. In March 2005, Blacktown City Funerals was leasing the parlour and Unit 2, though was in rental arrears. c. He conducted all his negotiations about the lease with Mr Mohamad Ladha, the Director of Blacktown City Switchboards. d. In about May 2005, he told Mr Ladha that the rental arrears had reached almost $9,000.00 and Mr Ladha told him to do what he could to get Blacktown City Funerals to pay the arrears even if that meant evicting him. e. In about June 2005, he told Mr Ladha that he was having difficulties contacting Blacktown City Funerals and Mr Ladha told him to do what had to be done to get the money back. f. In about early July 2005, Mr Richard Taylor telephoned him told him that he had heard that the parlour was coming up for lease. Con told Mr Taylor that the parlour was not up for lease, took his number and would let him know if anything changes he would contact him. Con was surprised as he thought that Blacktown City Funerals was still the tenant. He called Mr Singh, the owner of Blacktown City Funerals and left a message requesting Mr Singh to call him. g. About a day later, Mr Singh's wife called and offered to pay all the money owing to continue the lease and he indicated he would talk to Mr Ladha and get instructions. Mr Ladha told him that if he could get all the outstanding rent then Blacktown City Funerals could continue with the lease. h. Until mid-July he received multiple calls from prospective tenants and told them all that if the lease came up, he would contact them. i. In mid-July Mr Ladha called and asked to inspect the premises. j. A few days later, Mr Taylor called and asked if he could come and have a look at the parlour. He told Mr Taylor that the parlour was not on the market for lease but he could come and see it on Friday 22 July 2005. He then called Mr Ladha and told him that a prospective tenant would be coming with them on the inspection on Friday. k. On 22 July 2005, he arrived at the premises at 12.05pm and Mr Taylor, Mr Ladha and Ken Kirkham were waiting outside as he had the key. They went inside the parlour briefly and discussed its condition and then walked around the back where Mr Ladha told him the lock on the gate need to be fixed. Mr Taylor asked whether the mortuary at No. 8 was included in the lease and, he responded "no". They closed the parlour and walked to the stairwell up to the units where Mr Ladha ask him to fix a water leak near the metre box. Then he, Mr Ladha and Mr Taylor walked upstairs and Mr Kirkham remained downstairs. Mr Taylor asked whether the lease included the two units and he said it only included one. After walking downstairs, Mr Taylor asked if the rent was $1,600.00 per month and he indicated it was including one unit. They walked out on to the street and Mr Taylor asked how long the lease was and he told him that the current tenant had three-year lease. Mr Taylor then asked to borrow the key so that he could do some measurements and he then asked Mr Ladha who replied, "as long as we get it back quickly". He gave the key to Mr Taylor and left the premises. l. In early August, he changed the locks to the parlour on the instructions of Mr Ladha. m. As to the following assertions of Mr Taylor in his first affidavit: i. In the conversation in which Mr Taylor introduced himself, he did not indicate that the lease for the parlour may be available and he would contact the owner and get back to him (as set out in par [7] of Mr Taylor's affidavit): the conversation was as set out above in par [87(f)]. ii. In relation to the meeting on 22 July 2005: he did not show Mr Taylor the toilets; Mr Ladha did not discuss whether the lease included the parlour and the units, the rental price, the term of the lease, or whether Mr Taylor could re-tile with carpet; he and Mr Ladha did not confirm that the lease would commence on Monday or the provision of the key (as set out in par [11] of Mr Taylor's affidavit). iii. On Monday 25 July 2005, he did not talk to Mr Taylor and approve a new fit out of the parlour (as set out in par [14] of Mr Taylor's first affidavit). iv. On Thursday 28 July 2005, he did not tell Mr Taylor that Mr Singh should not have been in the parlour: he wanted to get instructions from Ladha, accordingly, he did not tell Mr Taylor that Mr Singh had been evicted, except to collect to his goods, and that Competitive Funerals had the lease (as set out in both pars 15 of Mr Taylor's first affidavit). v. On Friday 5 August 2005, he told Mr Taylor that Mr Singh had been speaking to his partner and Mr Ladha and had paid the outstanding debt, and had not said that Mr Singh would not get the premises back as Competitive Funerals had the lease. vi. He denied Mr Taylor's assertions to the extent of any inconsistency between his version of events and that of Mr Taylor. n. He denies telling Mr Taylor on Thursday 4 August 2005, that Competitive Funerals definitely had the lease and Blacktown City Switchboards was not giving it back to Mr Singh (as set out in par [6] of Mr Ken Kirkham's affidavit and par [22 (page 6)] of Mr Richard Taylor's affidavit). He states that Mr Taylor asked what was happening with the parlour and he told him that he did not know and was waiting for Mr Ladha to give him instructions, although if it were up to him he probably would not let Mr Singh back in, but it is up to Mr Ladha. Mr Taylor offered to pay a cheque for the first month's rent and he said he did not want to receive any money until he received instructions from Mr Ladha. 88 In examination in chief, Con stated that Mr Ladha, Mr Taylor and Ken Kirkham, not Mark Kirkham, attended the meeting at the premises. He also confirmed that the conversation alleged by Mr Jim Kekatos in par [5] of his second affidavit occurred after the meeting at the premises. He denied, however, that he told Mr Kekatos that Mr Ladha had given the premises to Competitive, or that he could ring Mr Len Robinson to get a copy of the lease, being a standard commercial lease, as the lease commenced on that day. Con admitted that the conversation alleged by Mr Kekatos in par [8] of his second affidavit was very similar to what was said, but longer, and he denied Mr Kekatos told him that he (Con) had given Competitive Funerals a lease. 89 In cross-examination, Con conceded that he did not issue any notices upon Mr Singh prior to the meeting, although did send him numerous letters, stating that if he did not pay his rental arrears proceedings would be taken. He denied sending Mr Singh an eviction notice in or before July 2005 or at all. 90 Con stated that prior to the meeting at the premises, pursuant to a letter sent on 7 July 2005 based on instructions from Mr Ladha, proceedings were taken against Mr Singh for his outstanding rent. These 'proceedings' were the changing of the locks on the premises. He told the Court that the lease of the parlour was the first commercial lease in which he had been involved so he was only vaguely familiar with the basic contents of such leases. He conceded that prior to 7 July 2005 he knew that: § under cl 12.1.2 of the lease that the lease ends when the lessor lawfully enters or takes possession of any part of the property; and § under cl 12.2 the tenant has repudiated the lease where rent or any other money due under the lease is 14 days overdue for payment. Con admitted that on the instruction of Mr Ladha he changed the locks to keep Mr Singh out, but denied that this was done to terminate the lease. He confirmed that the locks were changed only to get Mr Singh to pay the outstanding rent. 91 Con stated that prior to the meeting at the premises he had not advertised the parlour or discussed with Mr Ladha either the terms of the lease, terminating Mr Singh's lease or getting a new tenant. He said that, although several people had called in relation to leasing the parlour, he did not know what was behind it and when Mr Taylor called he started getting "a little bit edgy as to what was going on". He stated that he and Mr Ladha had discussed separating the unit and the funeral parlour and making two separate leases but could not remember when this occurred. 92 Con told the Court that he had an uncertain recollection of the meeting at the premises. He states that he was unsure of date of the meeting, telling the Court it occurred sometime late in July. He admitted that it was possible that he wrote 22 July 2005 in his affidavit because that is what he read in Mr Taylor's affidavit. He denied that the arrangements for the meeting were made the day before the meeting. Con told the Court that although Mr Ladha and Mr Taylor spoke directly during the meeting and he did not impose his position as agent, they did not discuss rent, GST, the term of the lease or any option or leasing the parlour separately from the unit. He also stated that he did not discuss any of these issues with Mr Taylor before or after the meeting. Con admitted that although he remembered having a conversation about the disposal of Mr Singh's belongings, he was only made aware of the right to auction those belongings after the meeting. 93 Con told the Court that the purpose of the meeting at the premises was to have a prospective tenant available if Mr Singh did not pay his outstanding rent. He stated that although he knew that Mr Kekatos was acting for Mr Taylor and was familiar with Mr Kekatos in a professional capacity, references were still required from prospective tenants and he was aware that there were three partners involved. 94 Con conceded that when properties are shown to prospective tenants, the rent payable and term of the lease are normally discussed, but stated the commencement date is not discussed as it is beyond the real estate agent's control. 95 Con admitted that it was very unusual for a prospective tenant to be given a key to premises and usually an agent accompanied them to access the premises. He stated that although he gave a key to Mr Taylor on instructions from Mr Ladha on the basis that it would be returned after Mr Taylor had shown his partner and taken some measurements, he did not set a time limit for its return. He told the Court that he would have requested the return of the key but Mr Singh changed the locks again early in the week after he gave the key to Mr Taylor at the meeting. Con admitted that he could not remember the date, but the week after the meeting he received a call from Mr Taylor who told him that George was in the premises. He said that he went to the premises with his partner and told George to leave the property with all his papers and then they waited for the locksmith to come and change the locks again. Con did not accept the proposition that between the meeting on 22 July 2005 and 28 July 2005 when Mr Singh returned from overseas he did not contact Mr Taylor to ask for the key back. 96 Con conceded that on 5 August 2005, the existing lease to Blacktown City Funerals was varied so that it only included the parlour and not Unit 2; and accordingly, the rent was changed from $1668.260 to $1100 per month and the rent was no longer payable in arrears but in advance. Plaintiff's Submissions 97 Mr DA Allen, appearing for Competitive Funerals, submits that Blacktown City Switchboard agreed to lease the parlour at No. 4 Artillery Crescent, Seven Hills, to Competitive Funerals. He submits the agreement to lease was made orally between Mohamad Ladha, the Director of Blacktown City Switchboard, and Mr Richard Taylor, a Director of Competitive Funerals at a meeting at the parlour on 22 July 2005, on the following terms: (i) The lease would commence on Monday 25 July 2005. (ii) The lease would be for 3 years with 2 options to renew for a further 3 years. (iii) The rent for the lease would be $1,000 per month plus GST. Mr Allen submits that although it was contemplated that the parties would later record the agreement in writing using the standard form Law Society lease, this was not done and the lease is therefore an equitable lease. 98 Mr Allen submits that Mr Taylor's evidence of the date of the meeting being 22 July 2005 should be accepted. He argues that Mr Ladha's contention that the meeting was on 29 July 2005 cannot be accepted as Con gave evidence that the locks were changed shortly before the meeting and again when Mr Singh returned from overseas on 28 July 2005. 99 Mr Allen submits that the objective intention of the parties was to be immediately bound by an agreement to lease or an agreement to enter an agreement to lease. He claims that this is indicated by the following objective factors: a. Although Mr Ladha and Mr Koulendianos deny there was an discussion about the terms of the lease at the meeting at the premises, it is inconceivable that the terms were not discussed. Further, Mr Taylor's evidence in relation to the content of the meeting should be accepted as he has accurate knowledge of the current terms of the lease. For example, he gave evidence that the rental price was $1,000 per month and the lease was a three by three year lease. Also, Mr Taylor's recollection of the meeting is better than Mr Ladha and Con as he also recalls the conversation about auctioning Mr Singh's belongings. b. The parties to the lease are certain. It is irrelevant that Mr Ladha only knew the prospective tenant as "Richard", as Con, his agent knew and was authorised to act and negotiate on his behalf. Con was acting as agent for Mr Ladha and he knew of Competitive Funerals, as a business entity, through his conversation with Mr Kekatos and he knew that there were three partners and either Mr Taylor or Mr Kekatos could be contacted as representatives of Competitive Funerals. Also, Mr Taylor could validly contract on behalf of Competitive Funerals without revealing who his principal is to the other party. c. The subject matter of the lease was clear as Con's evidence clearly states that Mr Taylor was told by Con at the meeting that the lease did not include the mortuary. d. The lease to Blacktown City Funerals had been terminated and Blacktown City Switchboards were looking for a new tenant. e. The key was provided to Mr Taylor in order to provide possession of the parlour. The key was not given for a limited purpose as Con stated that it would not be normal practice to allow a prospective tenant to access a property without supervision from a real estate agent. There was also no discussion between Mr Taylor and Con as to the how long Mr Taylor was able to keep the key and Con never asked for the key to be returned. f. It was clear that Mr Mark Kirkham was present at the meeting and not Mr Ken Kirkham as Ken Kirkham was already familiar with the premises as he had worked there many times and Mark Kirkham works with Mr Taylor and regularly drives him to and from work as Mr Taylor does not have a driver's licence. 100 Mr Allen submits further that the lack of writing does not make the agreement to lease void as: a. Section 23B of the Conveyancing Act 1919 (NSW) does not apply; and b. Sections 23C and 54A of the Conveyancing Act are defeated as equity will decree specific performance when there has been part performance of an oral agreement to give an interest in land. Mr Allen relies upon the decision of Barrett J in Khouri v Khoury [2004] NSWSC 770 at [52], where consideration is given to what constitutes part performance, and including reference to Brennan J in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 432: "In order that acts may be relied on as part performance of an unwritten contract, they must be done under the terms and by the force of that contract and they must be unequivocally and in their nature referable to some contract of the general nature of that alleged." Mr Allen also relies on par [56] of the judgment and the reference of Brennan J to the judgment of Smith J in Francis v Francis [1952] VLR 321 (at 340): "… it is necessary to exclude from consideration the evidence of the alleged parol agreement between the parties and to look at the act relied upon in the light of the surrounding circumstances as revealed by the rest of the evidence: see McBride v Sandland (1918), 25 CLR 69, at pp 77–8; Cooney v Burns (1922), 30 CLR 216, at pp 222, 224; Maddison v Alderson (above), at pp 479, 483–4; Dale v Hamilton (1846), 5 Hare 369, at p 381; Broughton v Snook [1938] Ch 505, at pp 514–5. The act cannot amount to sufficient part performance unless, when so considered, it points plainly, and not merely in an equivocal fashion, to the existence of an agreement between the parties falling within the general class to which the agreement alleged belongs." Mr Allen also relies on par [64] of Khouri , where Barrett J recognised that giving and taking of possession were seen as significant in the High Court decision of Regent v Millet (1976) 133 CLR 679 (at 683). Finally, he relied on Notter v Girault [2004] NSWSC 863 at [55]-[59] where White J draws upon Khouri and accepts it. Mr Allen submits, therefore, that in this case the agreement to lease was partly performed by the giving and taking of possession of the premises through the provision of a key for an unlimited purpose by Blacktown City Switchboards to Competitive Funerals. 101 Mr Allen submits that there was an agreement to lease and Competitive Funerals is entitled to have the agreement specifically performed by Blacktown City Switchboards and Blacktown City Funerals should accordingly provide possession of the parlour. Alternatively, he submits that there was an agreement to enter into a later formal agreement to lease and Competitive Funerals is entitled to have that agreement specifically performed by Blacktown City Switchboards, being within the first or second category of agreement described in Masters v Cameron (1954) 91 CLR 353. 102 Mr Allen submits that specific performance is available. He argues that the lease to Blacktown City Funerals was terminated after 7 July 2005 and before the 22 July 2005. When Blacktown City Switchboards entered into the equitable lease to Competitive Funerals on 22 July 2005 no lease existed between Blacktown City Switchboards and Blacktown City Funerals. Following this, a new lease to Blacktown City Funerals was made on 5 August 2005. Therefore, as the equitable lease to Competitive Funerals was first in time and the conduct of Blacktown City Funerals, being the failure to pay rent coupled with an ostensible abandonment of the parlour, led to the creation of that lease, it should take priority over the lease to Blacktown City Funerals: Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) (1965) 113 CLR 265. 103 Finally, Mr Allen submits that even if specific performance is not ordered, the equitable lease to Competitive Funerals of the parlour is legally binding and has been breached, and as such, Competitive Funerals may be entitled to equitable compensation or damages against Blacktown City Switchboards. Findings 104 Competitive Funerals seeks specific performance of the alleged equitable agreement for lease of the parlour made with Blacktown City Switchboards. To determine whether Competitive Funerals is entitled to specific performance, the Court must first determine whether there is a binding agreement to lease (or an agreement to enter into a later formal agreement for a lease) between Competitive Funerals and Blacktown City Switchboards. 105 An agreement to lease may be specifically enforced where the agreement is sufficiently certain, that is, it is complete and enforceable on the usual contractual principles, and there is no bar to the award of specific performance: Walsh v Lonsdale (1882) 21 Ch D 9; Warmington & Anor v Miller [1973] 2 All E.R 372 at 377. In addition, the agreement to lease must be in writing or supported by sufficient acts of part performance: s 23B(1), 23C(1)(a), 23E(d) and 54A(1) and (2) of the Conveyancing Act. See also Watson v Delaney (1991) 22 NSWLR 358 at 366. 106 In order for the agreement to lease to be complete and enforceable, it must be established that it was the objective intention of the parties to be immediately bound by the agreement: Masters v Cameron (1954) 91 CLR 353; Allen v Carbone (1974) 132 CLR 528 at 523. In the well known case of Masters v Cameron, the High Court established the following (at 360): "Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three cases. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract." The NSW Court of Appeal has accepted the existence of an additional fourth class as formulated by McLelland J in Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 at 628 by reference to the observations of Knox CJ, Rich J and Dixon J, in Sinclair, Scott & Co v Naughton (1929) 43 CLR 310 at 317: "namely, one in which the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms." (See GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 at 634 per McHugh JA; Abigroup Contractors Pty Ltd v ABB Service Pty Ltd (Formerly ABB Engineering Construction Pty Ltd) [2004] NSWCA 181). 107 The Court must construct the language, and characterise the conduct of the parties, where appropriate, by reference to any surrounding circumstances, which are properly to be regarded as throwing light upon their intention: Gamvrogiannis & Anor v Blackshaw & Anor (2000) NSW ConvR 55-940. 108 The objective intention of the parties to be bound may be confirmed where the parties have completely agreed all the essential terms of their agreement and have expressed the terms with reasonable certainty. 109 Moreover, in general, for the agreement to lease to be complete and enforceable, there must be certainty as to the essential terms of the agreement: Upper Hunter County District Council v Australian Chilling & Freezing Co (1968) 118 CLR 429 at 436-437 per Barwick CJ; G Scammell & Nephew Ltd v HC & JG Ouston [1941] AC 251 at 255 (Viscount Maugham); Axelsen v O'Brien (1949) 80 CLR 219 at 226 per Dixon J; Thorby v Goldberg (1964) 112 CLR 597 at 603 per Kitto J; and Godecke v Kirwan (1973) 129 CLR 629 at 646-647 per Gibbs J. 110 In Thorby v Goldberg Menzies J (at 607) held that, in particular, the parties to the agreement, the leased premises, the commencement and duration (and the duration of any options for renewal), and the rent to be paid (and variations in rent) and all other terms considered by the parties to be material or essential terms must be certain. His Honour also fundamentally recognised that there is no concluded agreement where an essential term is expressly left to be settled by future agreement of the parties or where the language used is so obscure and incapable of any precise or definite meaning that the court is unable to attribute to the parties any particular contractual intention. See also Lang's Commercial Leasing in Australia, (CCH Australia, 2005). 111 Finally, as the alleged agreement for lease is a commercial lease, it must be noted that in general the normal commercial practice is that a binding commercial lease relationship is made after the exchange of formal documents (Arjay Investments Pty Ltd v Morrison's Outdoor Catering Pty Ltd, NSWSC, unreported, 1 May 1995, p 4) at the point of execution and delivery of the lease (Dellwest Pty Ltd v Cafabe Pty Ltd, NSWSC, unreported, 26 November 1997, p 7). Moreover, it is accepted that "there must be more than arrival by the parties at a consensus. The parties must intend that the consensus at which they have arrived should there and then constitute a binding contract": Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 at 326 per Mahoney JA; Kassabian v Lagonicos & Anor (1993) NSW ConvR par [55-690], p 59-941 at [59-943] per McLelland CJ in Eq; Dellwest, at pp 14 and 15. Thus, "the mere agreement [of the parties] on the basics does not mean that there is an operative agreement": Arjay Investments at p 5. Enforceability of the Agreement 112 In the present case, Mr Allen, appearing for Competitive Funerals, submits that the alleged agreement to lease the parlour was made between Mr Taylor, on its behalf, and Mr Ladha, on behalf of Blacktown City Switchboards, during a meeting at the parlour on 22 July 2005. He submits that the terms of the alleged agreement are certain and are as follows: (i) The lease would commence on Monday 25 July 2005. (ii) The lease would be for 3 years with 2 options to renew for a further 3 years. (iii) The rent for the lease would be $1,000 per month plus GST. 113 Mr Allen, therefore, submits that the alleged agreement to lease falls within either the first or second class in Masters v Cameron. 114 I reject this submission. For reasons which follow, I find that there are several factors which indicate that the parties did not objectively intend to create legal relations through the formation of an agreement to lease. In addition, I find that the essential terms of the agreement, if any, including the date of formation and commencement, the names of the parties, the leased property, the duration and the rent to be paid, were not agreed with reasonable certainty. The alleged agreement to lease the parlour between Blacktown City Switchboards and Competitive Funerals is therefore void for uncertainty such that there is no concluded agreement. Accordingly, I find that the alleged agreement falls within the third class of Masters v Cameron: that is, it was not the intention of the parties to make a concluded agreement to lease at all, unless and until they execute a formal lease. Objective Intention to Create Legal Relations 115 The following factors indicate that there was no objective intention to create legal relations: a. The alleged agreement for lease was for more than three years and solicitors were to be involved to prepare a formal lease. It may be assumed, therefore, that the parties would normally intend to have a formal lease document that can be registered: Gamvrogiannis at 57-455; Kassabian at 59-943; Arjay Investments at p 4; Dellwest, p 7. Also, although the statement of claim alleges a "standard form Law Society Lease" was intended to be prepared, no evidence has been provided to support this allegation. b. Mr Ladha and Mr Taylor both gave evidence that at the meeting no references or particulars were ever provided by Competitive Funerals to Blacktown City Switchboards. c. Blacktown City Switchboards was fully aware of its existing legal responsibilities to Blacktown City Funerals under its written lease. For example, although in cross-examination Mr Ladha admitted that he had not signed the written lease to Blacktown City Funerals and therefore Blacktown City Switchboards had not executed the lease, he indicated that at the meeting he said that a lease would only be available if the existing lease to Mr Singh was sorted out. In addition, Mr Ladha gave evidence that he knew that Blacktown City Funerals intended to make good all rental defaults prior to the meeting. d. Mr Singh gave evidence that Blacktown City Funerals made good all rental defaults on 3 August 2005 on the basis that it would be allowed to continue occupation and was allowed to re-enter the parlour on that day. His evidence and also Con's and Mr Ladha's indicate that the lease to Blacktown City Funerals has not been terminated and continues to operate (see par [143-148] below). e. Con gave evidence that, as agent for Blacktown City Switchboards, he refused to accept a cheque for rent or a rental bond from Competitive Funerals. f. Mr Ladha and Con gave evidence that the key was only provided to Mr Taylor for the limited purpose of showing his partner and taking measurements. It was not provided in order to provide possession of the parlour and allow performance of the alleged agreement (see par [156]-158] below). 116 It is clear from these factors that the parties did not have an objective intention to create legal relations. In addition, the uncertainty of the essential terms of the alleged agreement to lease described below in pars [117] - [139] further indicates that parties did not have such an intention. Uncertainty as to Dates: Offer and Commencement 117 It is essential that the dates of formation and commencement of the alleged agreement to lease are ascertainable with certainty: Pirie v Saunders (1960) 104 CLR 149; Darling Point Securities Pty Ltd v Industrial Equity Pty Ltd, NSWCA, unreported, 9 July 1991, at p 4; Picwood Pty Ltd v Panagopoulous [2004] NSWSC 978 at par [60] per White J. 118 Mr Allen submits that the alleged agreement to lease was agreed at a meeting at the premises on 22 July 2005 and the lease commenced on 25 July 2005. Mr Allen submits therefore, that the dates of formation and commencement are certain and that the evidence of Mr Taylor in support of this contention should be accepted. Mr Ladha gave evidence, however, that the meeting was actually on 29 July 2005. Mr Allen submits that the evidence of Mr Ladha cannot be accepted, as Con gave evidence that the locks were changed shortly before the meeting and again when Mr Singh returned from overseas on 28 July 2005, and therefore Con would not have had access to the building on 29 July. I reject this submission for the following reasons: a. The evidence furnished by Con cannot be accepted, as it is inconsistent and uncertain. In cross-examination, Con stated that on 28 July 2005 he and his partner went to the parlour and met George and told him to leave the premises and then waited for the locksmith to arrive and change the locks, which means that on 29 July 2005 he would have had a key to the parlour despite the evidence that Mr Singh changed the locks on 28 July. Also, Con conceded that he was unsure of the date of the meeting, telling the Court that it occurred sometime late in July. In general he had an uncertain recollection of the meeting at the premises and events in relation to the parlour. Mr Allen actually also conceded that Con's evidence provided little assistance and his evidence should not be accepted. b. In cross-examination, Mr Taylor conceded that he may have been mistaken about the date of the meeting at the premises and it could have been 29 July rather than 22 July 2005. c. Mr Taylor's evidence cannot be accepted, as it is unreliable. In particular, Mr Taylor, gave the following inconsistent evidence: § He admitted that there were several errors in his first affidavit, which he had verified as true and correct. For example, he admitted that par [16] of his first affidavit was incorrect: he had only thought that Competitive Funerals had leased both the mortuary and the parlour originally, and not when he met Mr Blades at the meeting on 28 July 2005. Similarly, he also conceded that in par [10], that the reference should be to Mark Kirkham rather than Ken Kirkham, and in par [11] the sentence "We then all walked back to the units" is incorrect as the discussion regarding the disposal of George's property took place at the back gate. § In contradiction of par [15] of his first affidavit, he claimed that he could not recall whether at the time he met Mr Blades he had been told that George had been in the premises earlier that day. § In contradiction of par [11] of his first affidavit, he told the Court that at the meeting Con gave him the key prior to the discussion regarding re-carpeting the parlour. § He initially conceded that he did not know or understand what a statement of claim was though later claimed that he had read the statement of claim before swearing his verification on 7 September 2005. He admitted that there were several errors in the statement of claim: in relation to par [7] of the statement of claim, the date the lease was offered was 22 July rather than 25 July, and accordingly, the lease was entered on 25 July rather than 27 July; Mr Ladha only mentioned a "3 by 3 year lease" and not a "three-year lease with 2 options to extend for another 3 years", and also said his solicitor would prepare a lease not specifically a "Standard Law Society Lease". He also admitted that he did not understand the meaning of the terms "3 by 3 year lease", "option for renewal", "three-year lease with 2 options to extend for another 3 years" or "Standard Law Society Lease", when he verified the statement of claim. He stated that he did not understand these terms despite having entered into and guaranteed a commercial lease for the funeral parlour at Stout Road, Mount Druitt with Mr Ken Kirkham 12 months previously. § He originally stated that he thought Mr Singh had been evicted though later admitted that he was unsure whether George had been evicted or was being evicted. § He initially stated that he did not believe that there was any licensing requirement to carry on a funeral business, though later conceded that Competitive Funerals were awaiting certification from the Health Department to allow the use of the Mount Druitt premises as a mortuary and funeral parlour. § He gave evidence that Mr Mark Kirkham was present at the meeting and not Mr Ken Kirkham as Ken Kirkham was already familiar with the premises, as he had worked there many times and Mark Kirkham works with Mr Taylor and regularly drives him to and from work, as he does not have a licence. However both Mr Ladha and Con gave unchallenged evidence that they did not know Mr Mark Kirkham and he did not attend the meeting, that Mr Ken Kirkham did attend, and Mr Prasad also told the Court that Mr Mark Kirkham did not attend the parlour on 22 July 2005. All of these inconsistencies throw doubt as to veracity of the evidence provided by Mr Taylor orally, contained in his affidavits and alleged in the statement of claim. d. Mr Ladha's evidence is probative as it is corroborated by records contained in his diary (Exhibit 5) and also in an office exercise book maintained by the secretary and senior staff members of Blacktown City Switchboards to record their absences from the office (Exhibit 6). Also, Mr Ladha has no reason to prefer the position of Blacktown City Funerals over Competitive Funerals. In addition, Ms Prasad and Mr Nand both gave evidence that they were at the parlour on 22 July from around 10-10.30am until 4-4.30pm and did not see Mr Taylor, Con, Mr Ladha or Mr Mark Kirkham on that day. 119 I accept Mr Ladha's evidence. Accordingly, I find that the meeting occurred on 29 July 2005, and due to Mr Taylor's uncertainty as to the date of the meeting, the parties did not agree on the date of commencement of the lease (if any) with certainty. I note that as a consequence of finding that the meeting occurred on 29 July 2005 the entirety of the evidence furnished on behalf of Competitive Funerals is tainted. I also note the following evidence: a. The almost impossible similarity in the evidence of Mr Taylor, Mr Mark Kirkham and Mr Ken Kirkham indicates that their affidavit evidence was highly likely to have been concocted by Mr Kekatos. b. Mr Kekatos provided inaccurate and inconsistent evidence in relation to his financial involvement with Competitive Funerals and the business operation of Competitive Funerals, which specifically indicated that he gave dishonest evidence in support of the notice of motion for expedition. c. Mr Ken Kirkham clearly stated that he "wasn't paying much attention" when he deposed his affidavit. In addition, he also gave inconsistent evidence in relation to the funeral arrangements for Ms Sinha, which revealed that whilst "looking after the business of Blacktown City Funerals", he had in fact wrongfully diverted the funeral from Blacktown City Funerals to Competitive Funerals. Uncertainty of the Parties: Who is the Alleged Lessee? 120 It is essential that the parties to the alleged agreement to lease are properly and certainly identified: Stockell v Niven (1889) 61 L.T. 18(CA); Sale v Lambert (1874) L.R. 18 Eq 1; Di Biase & Ors v Rezek [1971] 1 NSWLR 735 (CA). 121 Mr Allen submits that the agreement to lease the parlour was made between Mr Taylor, on behalf of Competitive Funerals, and Mr Ladha, on behalf of Blacktown City Switchboards. Mr Ladha, however, gave evidence that he was uncertain about the identity of the prospective lessee. He said that prior to the meeting he had never previously met or had any business dealings with Mr Taylor or Ken Kirkham and at the meeting he only knew of the prospective lessee as "Richard" and did not know who Mr Taylor's partner or the other man at the meeting were. He further said that until 14 September 2005 when the Court documents were served on him, he had not heard of the name "Competitive Funerals". 122 It is apparent that Mr Kekatos, acting in his capacity as solicitor for Competitive Funerals, was also uncertain as to the identity of the alleged lessee. In par [3] of his first affidavit, Mr Kekatos states that, "the plaintiff owns and operates a funeral business trading as "Competitive Funeral Services"". Further, he prepared the second affidavit of Mr Taylor in which the financial details of Mr Taylor, not those of Competitive Funerals, were provided to indicate Competitive Funerals' capacity to comply with the lease and run the funeral business at a profit. However, in all the Court documents it is recognised that the plaintiff and alleged lessee is Competitive Funerals and not Mr Taylor. 123 I reject Mr Allen's submission that it is irrelevant that Mr Ladha only knew the prospective tenant as "Richard", as Con, his authorised agent, was acting on his behalf and Con knew of Competitive Funerals, as a business entity and knew that Mr Kekatos was acting for Competitive Funerals and was familiar with Mr Kekatos in a professional capacity. 124 It is clear from the evidence that although Con was Mr Ladha's agent and was authorised to act and negotiate on his behalf, at the meeting he was not acting in his capacity as agent and Mr Ladha, who was himself at the meeting, was acting independently as principal. Con gave evidence that Mr Ladha and Mr Taylor spoke directly during the meeting and he did not interpose himself as agent. Also, there is no direct evidence as to what Con's authority was in relation to the leasing of the premises. It is clear, however, that even as Mr Ladha's agent, Con did not have authority to enter the alleged agreement to lease at the meeting, as he requested authority from Mr Ladha to provide Mr Taylor the key and therefore must also have been required to obtain authority to enter any agreement to lease. Finally, although as noted in par [118(c)] Mr Taylor's evidence cannot be accepted, even he alleges that it was Mr Ladha with whom he discussed the rent, GST, the term of the lease or any option and leasing the unit by separate lease at the meeting and he also stated that he offered to pay the bond and one months rent from funds in his personal cheque account. 125 I accepted that Mr Taylor could validly contract on behalf of Competitive Funerals without revealing the identity of his principal. I note, however, that Mr Ladha said that as a normal practice in issuing leases to prospective lessees with whom he has not previously had business dealings, he requires three credit references to ascertain their financial position or payment system and assess their previous tenancy performance as well as personal guarantees from directors or shareholders. I also note that Mr Taylor conceded that he did not provide Mr Ladha with any financial details at that meeting. 126 Accordingly, I find that Mr Ladha was uncertain as to the identity of the prospective lessee and did not intend to contract with Mr Taylor acting on behalf of a lessee with whom he has not previously had business dealings, and whose identity and financial capacity were unknown. Uncertainty as to Leased Property: the parlour, the mortuary and the units 127 It is essential to any agreement to lease that the premises that are the subject matter of the lease are properly identified and ascertainable with certainty: Lancaster v de Trafford (1862) 31 LJ Ch 554. 128 Mr Allen submits that it is clear that the agreement to lease was for the parlour as Con's evidence states that Mr Taylor was told by Con at the meeting that the lease did not include the mortuary. I reject this submission. It has been established that Con's evidence in relation to the meeting is unreliable. Moreover, Mr Taylor's evidence indicates that he was unsure about the subject matter of the lease. In cross-examination, Mr Taylor admitted that when he first arrived at the meeting he thought the lease included both premises, the parlour and the mortuary, though during the meeting Mr Ladha clarified that the lease would only be for the parlour. He conceded that he was not sure whether Mr Ladha was there when he realised that the lease was only for the parlour and not the mortuary. This evidence, however, is in contradiction of par [16] of this affidavit, in which he states that he thought the lease was for the mortuary as he thought that Competitive Funerals had leased the parlour. 129 In addition, I note that the original statement of claim and the amended statement of claim filed by Mr Kekatos on behalf of Competitive Funerals and verified by Mr Taylor and also Mr Taylor's first affidavit identify the parlour as No. 4 Artillery Road, Seven Hills. Moreover, the affidavit of Mr Mark Kirkham locates the parlour at 6A, Artillery Road, Seven Hills. Thus, and noting my findings above in par [119 (a), (b) and (c)], it is clear that neither Mr Taylor, Mr Kekatos nor Mr Mark Kirkham were certain of the correct location of the parlour, being 4-6 Artillery Road, Seven Hills. 130 It is clear that at the time the alleged agreement for lease was made Mr Taylor was uncertain of the identity of the leased premises and his evidence otherwise cannot be accepted. Uncertainty of Duration 131 The duration of the lease is an essential term for any agreement to lease that must be agreed between the parties with certainty: Whitlock v Brew (1968) 80 WN (NSW) 1520. 132 Mr Allen submits that it is certain that the duration of the lease was for 3 years with 2 options to renew for a further 3 years. He submits that the evidence of Mr Taylor should be relied on in relation to this contention, as well as generally in relation to the content of the meeting, as he has accurate knowledge of the current terms of the lease and he also recalls the conversation about auctioning Mr Singh's belongings. 133 I do not accept this submission, as it is not accurate. Although Mr Taylor verified that the lease was for such a term in the statement of claim, in cross-examination he gave evidence the duration of the lease was "three by three year" and conceded that the statement of claim was incorrect. Moreover, he admitted that he did not understand the meaning of a "3 by 3 year lease" though presumed it would be a three year lease, and similarly, he did not understand the meaning of the terms "option for renewal" or "three-year lease with 2 options to extend for another 3 years" when he verified the statement of claim. It is clear that Mr Taylor's evidence is highly unreliable. Mr Ladha denies any discussion of rent, GST, the term of the lease or any option, leasing the parlour and mortuary or leasing the unit by separate lease. In addition, although Con gave evidence that he answered Mr Taylor's questions in relation to these matters during the meeting, he confirmed that Mr Ladha did not discuss rent, GST, the term of the lease or any option or leasing the parlour separately from the unit. He also stated that he did not discuss any of these issues with Mr Taylor before or after the meeting. 134 Mr Taylor's recollection of the conversation about auctioning Mr Singh's belongings is also unreliable. The only evidence in support of that contention was that of Mr Mark Kirkham whose evidence of the conversation was inexplicably in almost identical terms. Moreover, Con admitted that although he remembered having a conversation about the disposal of Mr Singh's belongings, he was only made aware of the right to auction those belongings after the meeting. 135 I, therefore, reject this submission. I find that the duration of the alleged agreement to lease is not certain. Uncertainty as to Rent 136 The provision of rent (or a mechanism for determining the rent) is also an essential term of an agreement for lease and must be capable of being ascertained with certainty: Whitlock v Brew (1968) 118 CLR 445; Lang's Commercial Leasing in Australia, (CCH Australia, 2005), [1-210]. 137 Mr Allen submits that it is certain that the rent was $1,000 plus GST per month. However, although Mr Taylor gave evidence that the rent was $1,000 plus GST per month, which is the amount that is currently being paid for the parlour, there is no evidence of what the rent would be for the option period or how it would be determined, or whether there would be any rental adjustments throughout the original term of the lease. Therefore, as there is no means to ascertain or determine the rent for the option or any rental adjustments without requiring further agreement between the parties, the rent is uncertain. Uncertainty of the Alleged Agreement 138 It is conclusively apparent that the parties have not agreed upon the date of formation and commencement, the names of the parties, the leased property, the duration and the rent to be paid, with reasonable certainty. The absence of certainty in relation to these essential terms indicates that objectively the parties did not intend to create legal relations. In addition, I note that although the statement of claim alleges a "standard form Law Society Lease" was intended to be prepared, no evidence has been provided to support this allegation. Moreover, Mr Taylor confirmed that there was also no discussion of many standard commercial lease terms such as insurance, consequences for non-payment of rent, or holding-over provisions. Thus, the parties have also failed to agree on many of the standard commercial leasing terms which also objectively indicates the parties did not intend to enter a binding agreement: Arjay Investments at p 5; Kassabian, p 59-943 per McLelland CJ in Eq. 139 Thus, the alleged agreement to lease is void for uncertainty as all the essential term of the agreement are uncertain with the consequence that there is no concluded agreement for lease between the parties: Whitlock v Brew (1968) 118 CLR 445. Specific Performance of the Alleged Agreement to Lease 140 If the alleged agreement to lease had been concluded between Competitive Funerals and Blacktown City Switchboards, in order to be specifically enforceable there must also be no bar to the award specific performance: Walsh v Lonsdale; Warmington & Anor v Miller. 141 Mr Allen submits that specific performance would be available. He argues that the evidence of Mr Ladha, Con and Mr Singh established that the lease to Blacktown City Funerals was terminated after 7 July 2005 and before the 22 July 2005 and therefore when Blacktown City Switchboards entered into the alleged equitable lease to Competitive Funerals on 22 July 2005 there was no lease to Blacktown City Funerals as the new lease was only made on 5 August 2005 of Blacktown City Funerals. He claims, therefore, that the equitable lease to Competitive Funerals should take priority over the later lease to Blacktown City Funerals, as it was first in time and the conduct of Blacktown City Funerals, being the failure to pay rent coupled with an ostensible abandonment of the parlour, led to the creation of that lease. 142 I reject this submission. The High Court in Fitzgerald v Masters (1956) 95 CLR 420 (at 432) recognised that abandonment must be mutual to be relevant, such that only: "[w]here an inordinate length of time has been allowed to elapse, during which neither party has attempted to perform, or call on the other to perform, it may be inferred that the contract has been abandoned." (See also Multiplex Constructions Pty Ltd v Suscindy Management Pty Ltd [2000] NSWSC 484). 143 There is no evidence that Blacktown City Funerals ostensibly abandoned its lease of the parlour. In addition, the evidence of Mr Ladha, Con and Mr Singh clearly indicates that the lease to Blacktown City Funerals has not been abandoned. 144 Mr Ladha's evidence clearly indicates that Blacktown City Switchboards sought enforcement of the lease and called on Blacktown City Funerals to perform the lease through the payment of rent. Moreover, it indicates that although Blacktown City Switchboards had considered forfeiting the lease, it did not and never intended or attempted to exclude Blacktown City Funerals from the parlour: Consolidated Development Pty Ltd v Holt (1986) 6 NSWLR 607 at 619. Mr Ladha stated that the changing of the locks were merely an attempt to get Blacktown City Funerals to pay the rent and once rent was paid all rights to forfeit the lease for failure to pay rent were waived. 145 In addition, Mr Ladha denied that he, in giving Mr Taylor the key and in not giving notice of the inspection (meeting at the parlour) pursuant to cl 9 of the lease to Blacktown City Funerals, he considered that lease to be terminated. He further stated that he assumed that Con would have provided such notice though was not sure whether he actually did but they had tried every means to contact Mr Singh and he did not know that failing to give such notice would be a breach of the lease by Blacktown City Switchboards. 146 I also accept the submission of Mr A Fernon, appearing for Blacktown City Funerals, that neither Blacktown City Funeral's failure to pay rent nor Mr Singh's closure of the business whilst overseas for one week, amount to abandonment. Also, the evidence of Mr Ladha, Mr Singh, Con and Mr Akopian clearly indicates that Blacktown City Funerals wanted to continue and made promises to pay the rent. 147 Additionally, I accept that amendments to the lease on 5 August 2005 (so that it only related to the parlour and not Unit 2 and accordingly the rent was changed from $1668.260 payable in arrears to $1100 per month payable in advance) did not constitute termination of the lease, but rather only varied the lease (as demonstrated by the evidence of Mr Ladha, Mr Singh and Con): Penny v Craber (1967) NWR 683; Jenkin R Lewis & Son Ltd v Kerman (1971) Ch 477. See also New South Wales Conveyancing Law and Practice, (CCH Australia Ltd, 2002), [27-770]. 148 I find therefore that the lease to Blacktown City Funerals was not abandoned and thus not terminated. Accordingly, if the alleged agreement to lease had been concluded between Blacktown City Switchboards and Competitive Funerals, it would have been second in time to the existing lease to Blacktown City Funerals. 149 Thus, to determine whether the alleged agreement to lease was enforceable the Court would have needed to determine the better equity between the former equitable interest of Blacktown City Funerals and the later equitable interest of Competitive Funerals. If the equities were equal, priority of time gives the better equity (maxim qui prior est tempore potior est jure), and therefore, the lease of Blacktown City Funerals would take priority: Rice v Rice (1854) 2 Drew 73 (Court of Chancery). However, if they were not equal, then the better equity would need to be determined by reference to the conduct of the parties and all the circumstances of the particular case: Rice v Rice; Lapin v Abigail (1930) 44 CLR 166 at 204 per Dixon J; Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) per Kitto J at 276; Heid v Reliance Finance Corp Pty Ltd (1983) 154 CLR 326 at 339 and 341 per Mason and Deane JJ. 150 Mr Allen submits that the conduct of Blacktown City Funerals, being the failure to pay rent and the abandonment of the parlour, led to the creation of the alleged agreement of lease to Competitive Funerals, such that in determining the better equity the interest of Competitive Funerals should be prioritised. As established above in pars [143]-[148], however, it is clear that Blacktown City Funerals did not abandon its lease of the parlour and the lease was not terminated. Accordingly, I also find that the conduct of Blacktown City Funerals was not such as to lead to the creation of the alleged agreement to lease to Competitive Funerals if in fact it had been concluded. Moreover, it is clear upon the evidence of Mr Taylor that at the meeting he was aware of the lease to Blacktown City Funerals and was unsure of whether Blacktown City Funerals had been evicted or was going to be evicted. Thus, it is clear that he was not mislead by the conduct of Blacktown City Funerals to acquire the alleged agreement to lease in the belief that the lease to Blacktown City Funerals did not exist: Heid v Reliance Finance Corp Pty Ltd at 339 per Mason and Deane JJ. 151 Thus, even if the alleged agreement for lease to Competitive Funerals had been concluded it would not be specifically enforceable, as the prior equitable lease to Blacktown City Funerals would take priority. Part Performance of the Alleged Agreement to Lease: The Provision of Possession through the Provision of the Key 152 Finally, if the alleged agreement to lease had been concluded between Competitive Funerals and Blacktown City Switchboards and there was no such bar to specific performance, in order to be specifically enforceable the agreement to lease must be in writing or supported by sufficient acts of part performance: s 23B(1), 23C(1)(a), 23E(d) and 54A(1) and (2) of the Conveyancing Act. See also Watson v Delaney (1991) 22 NSWLR 358 at 365-366. In this case, as there is no written agreement for lease, Competitive Funeral's claim for specific performance would need to be sufficiently supported by part performance. 153 It is well established that the doctrine of part performance can only be relied upon where the acts of part performance are "unequivocally and of their own nature referable to some such agreement that is alleged": Maddison v Alderson (1883) 8 App Cas 467 at 479 per Lord Selbourne LC. See Millett v Regent (1975) 1 NSWLR 63 at 71 per Glass JA; Regent v Millett (1974) 133 CLR 679 at 683 per Gibbs J; Waltons Stores (Interstate) Ltd v Maher at 432 per Brennan J. Moreover, the doctrine only applies if it is to relieve against some inequity or harm which a claimant may suffer by acting to its detriment or prejudice upon an oral agreement: Millett v Regent at 65-66 per Hutley J referring to Scholl J in Francis v Francis at 344 and 68; Riley v Osborne & Anor [1986] VR 193 at 199 per Kaye J. 154 Mr Allen submits that the agreement to lease was partly performed by the giving and taking of exclusive possession of the premises through the provision of a key for an unlimited purpose from Blacktown City Switchboards (Con) to Competitive Funerals (Mr Taylor). He argues that the key was not given for a limited purpose based on the evidence of Mr Taylor and Con. In particular he relies on the evidence of Con, that it would not be normal practice to allow a prospective tenant to access a property without supervision from a real estate agent, that he had no discussion with Mr Taylor as to the how long Mr Taylor would keep the key and that he never asked for the key to be returned. 155 I reject this submission. Firstly, as noted above in pars [118 (a)] and [118 (c)] the evidence given by both Mr Taylor and Con is inconsistent and unreliable, and thus cannot assist the Court. In particular, Mr Taylor gave inconsistent evidence as to when Con provided the key to him. Also, during submissions, Mr Allen conceded that Con's evidence provided little assistance as to what exactly was said at the meeting and therefore argued that Con's evidence regarding the limited purpose for which the key was given should not be accepted. 156 Fundamentally, however, it is clear on the evidence of Mr Ladha that the key to the parlour was only temporarily provided to allow Mr Taylor to show his partner the premises and take some measurements. Mr Ladha stated that he did not ask for the keys back or put a time limit on when they must be returned because Con controlled the keys and he thought they would be returned immediately after Mr Taylor had shown his partner and done the measurements as he requested. Mr Ladha also confirmed that he did not know that allowing Mr Taylor such access would be contrary to Mr Singh's right to exclusive possession and denied providing the key was in performance of the alleged agreement. 157 Thus, the provision of the key by Con to Mr Taylor was not on an unlimited basis and did not constitute the giving and taking of exclusive possession of the parlour. It only provided Competitive Funerals a limited non-exclusive right to enter the parlour and at its most may seen as merely a preparatory act to the possible conclusion of a future agreement for lease: Hollander v Atkinson (1885) 6 L.R (NSW) Eq 69 (FC); O'Rouke v Hoeven [1974] 1 NSWLR 622 (CA). 158 Thus, the temporary provision of the key does not amount to the giving and taking of possession sufficient to constitute part performance, as it does not point unequivocally to an agreement of the nature alleged by Competitive Funerals: Regent v Millett at 683 per Gibbs J; Watson v Delaney at 362-363. Moreover, the provision of the key cannot satisfy the Court of the existence of the agreement to lease (per Mahoney JA at 74) and was capable of an explanation other than the agreement alleged by Competitive Funerals (Glass JA at 72): Millett v Regent. 159 I note also that the evidence clearly shows that Competitive Funerals did not make any payments of rent or rental bond (Tornatora v Palatinus [1966] W.A.R 14) or make any alterations to the parlour pursuant to the alleged agreement to lease (Kaufman v Michael (1892) 18 V.L.R 373; Millett v Regent) sufficient to constitute part performance. 160 Finally, there is no evidence of detriment or prejudice suffered by Competitive Funerals due to reliance on the alleged oral agreement for lease which ought to be relieved by part performance: Millett v Regent at 65-66 per Hutley J referring to Scholl J in Francis v Francis at 344 and 68; Riley v Osborne & Anor at 199 per Kaye J. For example, Competitive Funerals did not pay for the removal of Blacktown City Funeral's belongings, or fit out the parlour: Riley v Osborne & Anor at 199 per Kaye J; Caton v Caton (1866) LR 1 Ch App 137 at 148 per Lord Cranworth LC. 161 Accordingly, I find that even if the alleged agreement had been concluded and specific performance was not otherwise barred, there would be not be sufficient part performance to support Competitive Funeral's claim for specific performance. 162 Finally, I note that as the alleged agreement to lease has not been concluded between Blacktown Switchboards and Competitive Funerals, and in any event even if it had been concluded, Competitive Funerals would not have been entitled to an order for specific performance, it is clear that Competitive Funerals would also not be entitled to equitable compensation or damages against Blacktown City Switchboards. Court Orders 163 The Court makes the following orders: 1. The proceedings against the First Defendant and the Third Defendant be dismissed. 2. The costs are reserved. 3. The exhibits may be returned. I hereby certify that the preceding 163 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate Dated: 18 November 2005 *************** 17/11/2005 - - Paragraph(s) 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.