E K Nominees Pty Ltd v Woolworths Ltd [2006] NSWSC 1172

New South Wales Supreme Court

CITATION : E K Nominees Pty Ltd v Woolworths Ltd [2006] NSWSC 1172 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 28; 29 & 30 November 2005; 1; 2; 5; 6 & 7 December 2005.

JUDGMENT DATE : 16 November 2006

JURISDICTION : Equity Division Commercial List

JUDGMENT OF : White J

DECISION : Order the parties to bring in short minutes in accordance with the reasons.

CATCHWORDS : TRADE & COMMERCE – Trade practices and related matters – Misleading and deceptive conduct – Plaintiff, a developer, and defendant, an owner of chain of supermarkets, commenced negotiations for agreement for lease with respect to land owned by plaintiff – Proposed agreement for lease provided for construction of supermarket on plaintiff's land – Plaintiff expended significant moneys in order to obtain development approval and otherwise prepare land for development – Expenditure made in anticipation of formal agreement for lease with defendant – Defendant encouraged plaintiff's expenditure – Defendant claimed right to recover costs and loss of profits if plaintiff failed to proceed – Defendant reserved right to withdraw from proposed agreement if it were not signed within twelve months of board approval - Third party developer approached defendant with superior development opportunity – Defendant withdrew from negotiations with plaintiff prior to expiry of twelve months period in order to pursue development opportunity with third party – Whether defendant engaged in misleading and deceptive conduct by representing intention to enter into agreement for lease – Whether defendant engaged in misleading and deceptive conduct by representing that there had been no material change to likelihood of its entering into agreement for lease – ss 4(2), 52 and 84 Trade Practices Act 1975 (Cth) considered – Held that defendant engaged in misleading and deceptive conduct – Whether defendant's misleading and deceptive conduct causative of plaintiff's decision to expend moneys on development – Whether plaintiff entitled to damages pursuant to s 82 Trade Practices Act – Whether plaintiff derived benefit of residual value by its expenditure on development – Damages awarded – Calculation of damages - ESTOPPEL – Equitable estoppel – Principles of equitable estoppel – Whether plaintiff entitled to equitable compensation for its expenditure on basis of principles of equitable estoppel – Whether defendant's representation that it would enter into an agreement for lease with the plaintiff was sufficiently clear to found an estoppel – Whether necessary for plaintiff to assume that defendant was not free to withdraw from anticipated legal relationship – Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 considered – Whether proposed agreement for lease was sufficiently defined for an estoppel to operate – Held that defendant estopped from departing from plaintiff's assumption that defendant would enter into agreement for lease – Held that plaintiff entitled to equitable compensation – Calculation of equitable compensation.