Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Spuds Surf Chatswood Pty Ltd v PT Ltd (No 2) (RLD) [2012] NSWADTAP 35 Hearing dates: 21 and 22 June 2012 Decision date: 03 October 2012 Jurisdiction: Appeal Panel - Internal Before: M Chesterman, Deputy President P Molony, Judicial Member J Schwager, Non-judicial Member Decision: 1. The Respondent is to pay to the Appellant the sum of $97,535.72. 2. (a) Within 28 days of the date of this decision, the Appellant is to file and serve: (i) its supplementary submissions relating to the appeal in file 119042; and (ii) its submissions relating to the costs of the present appeal (file 119034). (b) Within a further 28 days, the Respondent is to file and serve submissions in reply. (c) The Appellant's and the Respondent's submissions relating to the appeal in file 119042 are to be served on the Intervenor in that appeal (the Registrar of Retail Tenancy Disputes) as well as on the opposing party. (d) Any submissions by the Intervenor relating to the appeal in file 119042 are to be filed and served within 21 days after service of the Respondent's submissions. (e) These questions regarding costs will then be decided 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997, unless the Appeal Panel determined that a hearing should take place. Catchwords: Retail lease - obstruction of sight-lines and access to shop - unconscionable conduct - causation - assessment of damages Legislation Cited: Administrative Decisions Tribunal Act 1997 Australian Securities and Investment Commission Act 2001 (Cth) Competition and Consumer Act (Cth) 2010 Retail Leases Act 1994 Trade Practices Act 1974 (Cth) Cases Cited: Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 Armstrong-Jones Management Pty Ltd v Saies-Bond & Associates Pty Ltd [2006] NSWADT 323 Armstrong-Jones Management Pty Ltd v Saies-Bond & Associates Pty Ltd (RLD) [2007] NSWADTAP 47 Atma Investments Pty Ltd v The Astor Pty Ltd (RLD) [2003] NSWADTAP 53 Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261 Australian Competition and Consumer Commission v Allphones Retail Pty Ltd [2009] FCA 17 Browne v Dunn (1893) 6 R 67 Butt v McDonald (1896) 7 QLJ 68 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Duncan v Aljayar Pty Ltd [2010] NSWADT 224 Jones v Schiffmann (1971) 124 CLR 303 Mackay v Dick ((1881) 6 App Cas 251 Macquarie International Health Clinic Pty Ltd v Sydney South Area Health Service [2010] NSWCA 268 Samaha v Corbett Court Pty Ltd [2006] NSWSC 1441 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 Seymour v Australian Broadcasting Commission (1990) 19 NSWLR 219 Spuds Surf Chatswood Pty Ltd v PT Ltd (No 2), PT Ltd v Spuds Surf Chatswood Pty Ltd [2011] NSWADT 152 Spuds Surf Chatswood Pty Ltd v PT Ltd (No 3), PT Ltd v Spuds Surf Chatswood Pty Ltd (No 2) [2011] NSWADT 186 Spuds Surf Chatswood Pty Ltd v PT Ltd (RLD) [2012] NSWADTAP 2 Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell [2011] NSWCA 389 United Group Rail Services Ltd v Rail Corporation NSW (2009) 74 NSWLR 618; [2009] NSWCA 177 Texts Cited: Duncan, Commercial Leases in Australia (Law Book Co, 4th ed, 2005) Lang's Commercial Leasing in Australia (CCH, 1999-, loose-leaf) Category: Principal judgment Parties: Spuds Surf Chatswood Pty Ltd (Appellant) PT Ltd (Respondent) Representation: Counsel A Fernon (Appellant) S Angyal SC (Respondent) Herro Solicitors (Appellant) Colin Biggers & Paisley Lawyers (Respondent) File Number(s): 119034 Decision under appeal Jurisdiction: 9108 Citation: Spuds Surf Chatswood Pty Ltd v PT Ltd (No 2), PT Ltd v Spuds Surf Chatswood Pty Ltd [2011] NSWADT 152 Date of Decision: 2011-06-22 00:00:00 Before: Retail Leases Division File Number(s): 065171 Introduction 1 This is our second decision in this appeal. The proceedings at first instance were a great deal longer and more complex than most proceedings in the Retail Leases Division. The same can be said of the decision given by the Tribunal and of our first decision in the appeal. 2 In our first decision, we included a lengthy outline of the evidence and submissions put before the Tribunal and of the findings and rulings made by the Tribunal, in so far as these were relevant to the matters raised on appeal. We will not repeat this material here. 3 Similarly, we will not provide a full summary of the submissions that were advanced by the parties in the appeal or of our rulings relating to them. We will recapitulate only to the extent required to provide a starting-point for our discussion of the questions with which this second decision is specifically concerned. 4 Accordingly, the ensuing reasons must be read in conjunction with our first decision. Standing alone, they do not provide a full account of all the matters relevant to the conclusions that we have reached in the appeal. They include a number of cross-references to the numbers of relevant paragraphs in the Tribunal's decision at first instance (preceded, as in our first decision, by the letter 'T') and to paragraph numbers in our first decision (preceded by 'A'). 5 At A1 to A6, we gave the following short description of the proceedings before the Tribunal:- 1… In the proceedings, a major question was whether the Applicant, a former lessee of retail shop premises within a large retail shopping centre in Chatswood, was entitled to recover damages from the Respondent lessor on the ground that the lessor, by improperly permitting the erection of three kiosks and an ATM machine near the premises, had disrupted the Applicant's trade to a significant extent. As will appear below, this question dominated the appeal to which the present decision relates. 2 The Tribunal proceedings commenced on 12 October 2006 with the filing of an Application (file no. 065171) by the Applicant, Spuds Surf Chatswood Pty Ltd. In it, the Applicant sought an order that the Respondent, PT Ltd, pay $400,000 by way of damages and/or rental payments and a declaration that a clause in a memorandum of lease purporting to record the agreement for lease between the parties should be altered in a specified manner. 3 Although, as just indicated, the parties were in dispute regarding one clause of the lease between them, it was common ground between them that this lease (hereafter 'the Lease') was governed by the Retail Leases Act 1994 ('the RL Act'). 4 On 23 April 2008, the Respondent filed an Application (file no. 085081) in which it sought an order that the Applicant pay $291,908.58 plus interest by way of unpaid rent and outgoings, lost rent and outgoings and making good costs. 5 The hearing of the competing Applications took place over 19 days during May and September 2009 and February 2010. 6 In its decision, delivered on 22 June 2011 (Spuds Surf Chatswood Pty Ltd v PT Ltd (No 2), PT Ltd v Spuds Surf Chatswood Pty Ltd [2011] NSWADT 152 – hereafter 'the Tribunal's decision' or 'the substantive decision'), the Tribunal dismissed the Applicant's claim (which had been amended since the filing of the Application) and upheld that of the Respondent. It ordered the Applicant to pay the sum of $327,533.55 plus interest to the Respondent. 6 At A27 and A28, we added the following background information:- 27 The shopping centre in which the premises leased to the Applicant were situated (hereafter 'the Centre') was known as Westfield Chatswood, or as Westfield Shoppingtown, Chatswood. In the Tribunal's decision, the Centre's owner, the Respondent, was also referred to on occasions as PT Ltd or 'Westfield'. 28 At all material times until 27 January 2004, the sole director of the Applicant was Mr George Mimis. His sister, Ms Eliabeth Mimis-Weeks, was the secretary. At some time during 2004 or 2005, they became estranged from each other, and Ms Mimis-Weeks took over control of the Applicant. Mr Mimis ceased to have any involvement with its affairs. 7 From a date in January 1999, the Applicant occupied Shops 415 and 416, on Level 4 of the Centre, under a lease from the Respondent. The dispute between the parties arose after the creation of a new lease ('the Lease') relating to adjoining premises, Shop 417, as well as to these two shops. 8 Pursuant to the Lease, the Applicant carried on business in these shops (hereafter 'the Premises') under the name Surf City from the date when it took possession of Shop 417 (3 July 2002) until it vacated them on 26 June 2007. 9 As we stated at A38:- 38 In the Lease, the permitted use was stated as 'Retail sale of surf, skate, street, snow clothing and accessories, surf and bodyboards, wet suits, outerwear and apparel'. The minimum annual rent was $427,500.00, payable in monthly instalments. There was provision for the rent to increase in line with the CPI and for the payment of a 'percentage rent'. 10 In very short form, the complaint by the Applicant with which this appeal is primarily concerned was that between dates in or about November 2002 and February 2005 the Respondent improperly authorised the construction of three kiosks close to the Premises after the commencement of the Lease, thereby causing the sightlines to the Premises along an important north-south walkway on Level 4 of the Centre to be obstructed to a substantial extent and inflicting substantial damage to the Applicant's business. The ground on which the Applicant claimed that these authorisations were improper was that the installation of blade signs 'from the ground up' on the kiosks contravened a clause (Item 7.0 of Part B of Appendix 6 – Kiosks) in a booklet called 'Fitout Requirements: Specialty Shops' ('the Red Book'), that was issued by Westfield and distributed to all existing and prospective tenants of the Centre. The Respondent gave a copy of the Red Book to the Applicant in March 2002. Item 7.0, to which in the first appeal decision we gave the label 'the 2002 Height Restrictions', stipulated a maximum height of 1400 metres for all kiosks. It added that 'Overhead elements including menu boards and structure are to be kept to a minimum' and that 'Overhead signage design must also be mindful of sightlines to surrounding tenancies'. In January 2005, the Respondent promulgated new guidelines ('the 2005 Height Restrictions') setting a maximum height of 2600 mm for kiosks. 11 In the proceedings, the labels given to the three kiosks in question were Boost Juice, Telechoice and Love Salad. The dates of their construction were, respectively, November 2002, May 2003 and February 2005. The Boost Juice kiosk replaced an earlier kiosk – the B-Zone kiosk – that had stood on roughly the same site between September 2001 and November 2002. 12 One of the grounds on which the Applicant unsuccessfully claimed relief at the Tribunal hearing was that the Respondent had engaged in unconscionable conduct as defined in section 62B of the RL Act. 13 On 22 June 2011, the Tribunal delivered its principal decision (Spuds Surf Chatswood Pty Ltd v PT Ltd (No 2), PT Ltd v Spuds Surf Chatswood Pty Ltd [2011] NSWADT 152). It ordered that the Applicant's application (in file 065171) should be dismissed. It upheld the Respondent's cross application (in file 085081) and ordered the Applicant to pay the sum of $327,533.55 plus interest to the Respondent. Relevant features of a second Tribunal decision delivered on 3 August 2011 (Spuds Surf Chatswood Pty Ltd v PT Ltd (No 3), PT Ltd v Spuds Surf Chatswood Pty Ltd (No 2) [2011] NSWADT 186) are outlined near the end of these reasons. 14 On 19 July 2011, the Applicant filed a Notice of Appeal against the Tribunal's decisions dismissing its application in file 065171 and upholding the Respondent's application in file 085081. 15 The first hearing of the Applicant's appeal took place before us on 17 and 18 November 2011. 16 On 30 January 2012, we delivered what we will call 'the first appeal decision' (Spuds Surf Chatswood Pty Ltd v PT Ltd (RLD) [2012] NSWADTAP 2). In that decision, we rejected a number of grounds of the appeal. But for reasons set out at A284 to A310, we gave the following ruling (at A311) with regard to the Tribunal's dismissal of the Applicant's unconscionable conduct claim:- 311 For the foregoing reasons, the appeal with respect to the unconscionable conduct claim is upheld, to the extent that we grant leave for this part of the appeal to extend to the merits and invite further submissions to be made at a forthcoming hearing. 17 In the course of our discussion (A312 to A326) of the questions of causation and assessment of damages within the Applicant's claim, we observed (at A316) that 'the Tribunal's treatment of these questions was brief, no doubt because (as it said at T242) its overall decision was against the Applicant', and (at A317) that 'at the hearing of the appeal neither of these questions received significant attention'. This was chiefly because, as the present decision demonstrates, many other matters had to be canvassed. 18 We therefore made the following determination (at A318):- 318… at the forthcoming hearing for the purpose of receiving further submissions on the Applicant's unconscionable conduct claim, the parties should also be invited to address again the questions of causation and damages. They will not, however, be permitted to adduce further evidence, unless strongly compelling reasons are advanced. 19 In addition to an order scheduling a directions hearing, our orders in the first appeal decision were as follows:- 1. Leave is granted for this appeal to extend to the merits. 2. A further hearing is to take place, for the purpose of receiving further submissions from the parties on the following questions:- (a) Whether conduct of the Respondent occurring between February 2002 and July 2005 amounted to unconscionable conduct as claimed by the Appellant. (b) Whether any such unconscionable conduct of the Respondent caused the Appellant to suffer loss for which damages may be recovered. (c) If yes to (b), what is the amount of such loss. 20 At A17 to A19, and at A252, we recorded some observations about the circumstances in which leave may be granted (under section 113(2)(b) of the Administrative Decisions Tribunal Act 1997) for an appeal to extend to the merits and about the consequences of doing so. The principal consequence, stated in section 115 of this Act, is that we must determine 'what the correct and preferable decision is' on the material before us. At A252, we quoted an authoritative statement on the approach that we should adopt for this purpose, contained in the Appeal Panel's decision in Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 at [94 – 98]. The concluding sentences of paragraph [98] should, we think, be quoted again here because they pertain directly to our task in the present decision:- While the Appeal Panel is required to exercise the jurisdiction, which the Tribunal initially exercised, the Appeal Panel is not required to exercise this jurisdiction by starting the matter afresh and by conducting a hearing as it would be conducted in the Tribunal. Unless there are exceptional circumstances the appeal should be determined by considering the transcript, the documents admitted as exhibits, any additional factual material in documentary form, which we choose to take into account and the submissions by the parties or their legal representatives. 21 At an interlocutory hearing on 9 May 2012, the Appeal Panel in this case, constituted by Deputy President Chesterman, heard submissions and made orders with respect to applications filed by both parties for leave to adduce further evidence at what we will call the second appeal hearing. Leave was granted to the Applicant to file supplementary affidavits sworn by its director, Ms Elizabeth Mimis-Weeks, and by her brother, Mr Graeme Weeks, to which financial statements regarding the Applicant's business during the relevant period were annexed. Leave was also granted to the Respondent to reply to this new evidence by filing a report prepared by an expert witness, Mr Robert Bell, who had testified in the proceedings at first instance. An application by the Respondent to file a further affidavit sworn by a former manager of the Centre, Mr Timothy Roberts, was rejected. 22 In accordance with directions given following the first appeal decision, the parties filed written submissions in advance of the second appeal hearing. 23 This hearing took place on 21 and 22 June 2012. As at the first hearing, Mr Fernon of counsel appeared for the Applicant and Mr Angyal SC for the Respondent. We admitted the affidavits of Ms Weeks and Mr Graeme Weeks and the report prepared by Mr Bell. Mr Bell was briefly cross-examined. On the afternoon of 21 June, we visited the Centre, in the company of representatives (including legal representatives) of the parties, and conducted a view of an area within Level 4 near the three shops (415, 416 and 417) that had constituted the Premises. 24 We will now discuss in turn the various questions that have arisen at the second stage of this appeal. Whether the Applicant's unconscionable conduct claim, as now framed, should be considered at all 25 We refer to our reasons, given at A284 to A303, for concluding that the Tribunal, in dismissing the Applicant's unconscionable conduct claim, attached insufficient weight to a number of matters established by the evidence. These matters included the following:- (a) The existence of the 2002 Height Restrictions, stipulating a maximum height of 1400mm for kiosks in the Centre, which the Respondents made known to the Applicant, along with other tenants, before the commencement of the Lease. (b) The Respondent's refusal to acknowledge assertions by the Applicant that these Restrictions were ambiguous in an important respect – namely, whether or not the height limit applied to blade signs (such as menu boards) erected 'from the ground up' – and that, on what was at least a 'viable' interpretation of them, plans approved by the Respondent for the construction of three kiosks near the Premises had contravened them. (c) The Respondent's conduct in replacing these restrictions by the 2005 Height Restrictions (in which the height limit for kiosks was increased to 2600mm) early in 2005. 26 We refer also to our reasons, at A305 to A311, for granting leave for the appeal to extend to the merits of the unconscionable conduct claim. 27 In his submissions filed on behalf of the Respondent before the second appeal hearing, Mr Angyal argued that if we were now to endorse an unconscionable conduct claim based substantially on the existence and alleged contravention of the 2002 Height Restrictions, this would constitute a denial of procedural fairness to the Respondent. The reason, he maintained, was that amended Particulars of the unconscionable conduct claim provided by the Applicant during the Tribunal hearing – notably in paragraph 20 of a Second Further Amended Application for Original Decision filed on 11 May 2009 – did not refer to these Height Restrictions or the alleged contravention of them. This was the case even though earlier versions of these particulars – notably Particular 10 of Particulars served on 24 November 2006 – expressly referred to these matters. 28 Within paragraph 20 of the Second Further Amended Application, as amended during the Tribunal hearing, the four Particulars of unconscionable conduct that we held in the first appeal decision (at A271) to require further consideration were Particulars (a), (b) and (c) and (i). These stated as follows:- (a) The conduct described in paragraphs 5 to 16 above is unconscionable. (b) Between late 2002 and 2007 the Respondent failed to remove the kiosks and other structures in front of the Premises despite repeated requests and complaints by the Applicant. (c) The Respondent refused to recognise that the Applicant's amendment to Item 10 of the lease was a term of the lease, and continued to charge the Applicant rent as if there was no amendment to Item 10 of the lease. (i) The Respondent's conduct in seeking to recover unpaid rent and other amounts owing under the Lease or arising from a breach of the Lease by the Applicant is unconscionable. 29 The Tribunal explained at T232 that paragraphs 5 to 16, to which Particular (a) referred, related to the Applicant's claim in respect of an attempted alteration by Mr Mimis to the Lease (being the 'amendment' referred to in Particular (c)), its claim for damages under section 34(1) of the RL Act and its claim of breach of the covenant for quiet enjoyment. 30 In his written submissions to us, Mr Angyal relied on the following aspects of communications between the parties following the filing of the Second Further Amended Application:- (i) In Points of Defence filed by the Respondent on 11 May 2009 and in Amended Points of Defence filed on 14 September 2009, the Respondent's reply, in paragraph 32 of each document, to Particulars (a) and (b) implied clearly that it did not understand Particular (b) to relate to alleged contravention of Height Restrictions. (ii) The Applicant did not advise the Tribunal or the Respondent that these two versions of paragraph 32 demonstrated a lack of understanding of Particular (b). (iii) At the hearing, the Applicant did not put to any of seven witnesses who were employees or ex-employees of the Respondent the proposition that the Respondent had acted unconscionably with respect to the Height Restrictions. (iv) In written submissions to the Tribunal filed on 11 February 2010 (which was the second last day of the Tribunal hearing), the Respondent argued that 'the factual basis for Particulars (a) and (b) of the unconscionability claims is the same as the s. 10 claim [at the outset of closing addresses on that day, the Applicant in fact abandoned this claim of a pre-lease misrepresentation by the Respondent] and the s. 34 claim' and that 'conduct that "does not quite involve a contravention" of s. 10 or s. 34 cannot be unconscionable. (v) In written submissions filed on 11 February 2010, the Applicant advanced a claim of unconscionable conduct based on alleged contravention of the 2002 Height Restrictions and the proposition that the Applicant relied on these Restrictions in entering into the Lease. (vi) Despite this, in documents entitled Further Particulars Re Applicant's Unconscionability and Damages Claim and Summary of Applicant's Claim for Damages and Relief Sought, filed by the Applicant on 12 February 2010, no mention was made of the Height Restrictions. (vii) In written submissions in reply filed on 19 February 2010 and in a letter dated 25 February 2010 to the Deputy President Callaghan (who constituted the Tribunal), the Applicant 'further developed' the claim contained in its submissions of 11 February 2010. No amended particulars of this claim were ever provided. (viii) In a letter dated 19 March 2010 to Deputy President Callaghan, the Respondent objected to the Applicant's being permitted to expand its allegations of unconscionable conduct. (ix) In a marked up copy of this letter, also sent to Deputy President Callaghan, the Applicant denied that it was expanding its allegations of unconscionable conduct. The Applicant maintained here that it 'did not abandon its claim that in breaching its own guidelines, the Respondent engaged in unconscionable conduct'. 31 Relying on these matters, Mr Angyal argued that the Respondent had understood, from the Second Further Amended Application of 11 May 2009, that the Applicant had abandoned the assertion, made in Particular 10 of the Particulars dated 24 November 2006, that the Respondent had engaged in unconscionable conduct through contravening its own guidelines. The Respondent, he said, conducted its case on this basis. Because the Applicant did not re-agitate this argument until submissions at the end of the hearing (i.e. on 11 February 2010), the Respondent had no opportunity to lead evidence responding to it. It objected subsequently to the attempt by the Applicant to resuscitate Particular 10 of the Particulars of 24 November 2006. 32 Mr Angyal went on to point out that the Tribunal discussed and dismissed the Applicant's unconscionable conduct claim on the footing that it was confined to the matters particularised in the Second Further Amended Application of 11 May 2009. But in the first appeal decision, at A299, we stated that the Applicant's case on its unconscionable conduct claim could, 'at its highest', be based on matters that, as we acknowledged at A302, went 'beyond the matters alleged in the relevant particulars ((a), (b) and (i)) of the Applicant's unconscionable conduct claim'. We set out at A299 a formulation of such a claim containing eight paragraphs. 33 According to Mr Angyal, our justification for so doing was insufficient. It was not enough for us, he said, to advance the following reasons (as we did at A302):- … many of the additional matters were included in the Applicant's Tribunal Submissions and its Tribunal Submissions in Reply. Other matters were the subject of findings by the Tribunal elsewhere than in the section of its decision in which it dealt with the unconscionable conduct claim. The Respondent could not reasonably assert that, when defending this claim, it would expect these additional matters to fall outside the range of those considered by the Tribunal. 34 A further matter relied on by Mr Angyal was that at the preliminary hearing on 9 May 2012, the Respondent's application for leave to file an affidavit by Mr Roberts (see [21] above) was rejected. Mr Angyal described the testimony in this affidavit as being 'of central relevance' to the unconscionable conduct claim that we outlined at A299. 35 The outcome, he claimed, was that 'the Appeal Panel has permitted the Applicant on appeal to run a case that it did not run at trial, but has not permitted the Respondent to lead evidence in opposition to it'. 36 In his oral submissions at the second appeal hearing, Mr Angyal did not revisit this matter. 37 In addressing us on this matter at the second appeal hearing, Mr Fernon made the following points. 38 First, Particular (a) in paragraph 20 of the Second Further Amended Application referred amongst other things to the conduct of the Respondent on which the Applicant based its claim for damages under section 34 of the RL Act. That conduct, particularised in paragraphs 9 to 16, included the erection of the three kiosks which, it was there claimed, obstructed sightlines to the Premises. 39 Secondly, at the hearing before the Tribunal, the documents distributed by the Respondent that contained the 2002 Height Restrictions (i.e., the Red Book) and the 2005 Height Restrictions were admitted into evidence. They were the subject of cross-examination, at some length, of two witnesses of the Respondent whom it employed at the relevant time, Mr Stevens and Mr Papagiannis. There was no objection to this cross-examination on the ground of relevance. Furthermore, in his oral submissions to the Tribunal on 11 February 2010, Mr Fernon argued that the content of this cross-examination was 'very relevant to the issue of unconscionability' (Transcript, 11.2.10, p 14, lines 32-33). 40 Thirdly, in these oral submissions to the Tribunal, Mr Fernon argued also that the fact that the Respondent breached the 2002 Height Restrictions through approving the construction of the three kiosks was an aspect of its claim under section 34, because it demonstrated that these approvals were 'unreasonable' and were not in accordance with 'recognised shopping practices'. He pointed out that paragraphs (c) and (d) of section 34(1) called for a ruling as to whether the relevant conduct of the lessor was 'reasonable'. He argued also that the 2002 Height Restrictions should be treated as evidence of 'recognised shopping practices' and that section 34(2) expressly brought these into consideration when determining 'reasonableness' under section 34(1)(c). He subsequently put forward submissions linking contravention of the 2002 Height Restrictions, the claim under section 34 and the unconscionable conduct claim. They included the proposition that 'the s 34 issue… on its own would constitute unconscionable conduct' (Transcript, 11.2.10, p 34, lines 34-35) and the following passage (p 35, lines 7-17):- … the s 34 case relates to the guidelines and the reliance made on the guidelines and the intention was made (sic) on the guidelines and the complaints that have been in relation to failure to comply with the guidelines. Now this tribunal may find that, notwithstanding the fact that there was an interference with sight lines, it doesn't represent the substantial interference that is otherwise required by s 34, but, in my submission, in circumstances where my client has been induced into entering into a lease, induced into incurring these very substantial liabilities and risks, that he has been induced to do it and then to allow that situation to happen, in my submission, and not do anything about it would be unconscionable. 41 Fourthly, in Particular (a), the Applicant indicated that in its unconscionable conduct claim it relied on the conduct of the Respondent that also provided the basis for its claim under section 34. 42 Fifthly, in the section of his oral submissions of 11 February 2010 relating specifically to the Applicant's unconscionable conduct claim, Mr Fernon relied more than once on the Respondent's alleged contravention of the 2002 Height Restrictions. He said, for instance, that 'the issue of unconscionable conduct relates back and arises from matters from the very commencement of negotiations with the lease in relation to shop 417 and I refer to and rely upon what I've already said in relation to the guidelines about that, its provision to tenants, for the purposes of being able to rely upon it' (Transcript, 11.2.10, p 37, lines 14-18). He then emphasised (a) the importance that the Applicant attached to having clear sightlines to the Premises; (b) the fact that, as landlords knew, tenants were 'vulnerable' because of the severe financial risks they were taking and relied greatly on the information obtained from landlords and on their expectations as to how landlords would operate; (c) the existence, for these reasons, of the RL Act, industry codes of practice, guidelines and an expectation that guidelines will be complied with; and (d) the acceptance by Mr Stevens and Mr Papagiannis, in their testimony, that guidelines were important to tenants. He then said (Transcript, 11.2.10, p 39, lines 24-25): 'Now, in my submission, Westfield's response to this issue of sightlines is the essence of unconscionability.' 43 Sixthly and most crucially, Mr Angyal, in addressing the Tribunal on 12 February 2010, did not at any stage argue that, to the extent that Mr Fernon invoked the existence and alleged contravention of the 2002 Height Restrictions as a component of the Applicant's unconscionable conduct claim, he was putting forward a claim that the Respondent, due to lack of prior notice, was not in a position to meet. Mr Angyal's submissions dealt at some length, chiefly in the context of the section 34 claim, with the nature of these Restrictions and with the question whether the Respondent had in fact contravened them. He subsequently acknowledged (Transcript, 12 February 2010, p 54, lines 6 to 9) that Particular (a) relating to the unconscionable conduct claim 'drags in the whole s 10 case and the whole s 34 case and everything else in fact, the refund of rent claim', except for the breach of covenant for quiet enjoyment. He raised no objection to the Applicant's seeking to include in its case on unconscionable conduct the matters on which its section 34 claim was based, but sought merely to rebut this case on its merits. 44 In the light of these submissions by Mr Fernon, we are satisfied, subject to one qualification, that no denial of procedural fairness to the Respondent will be caused by our taking account of the Applicant's assertion that the existence of both the 2002 and the 2005 Height Restrictions and the Respondent's contravention of the 2002 Restrictions were matters of relevance to its unconscionable conduct claim. It appears to us that Mr Angyal, having been put on notice at the Tribunal hearing that the Tribunal was being asked to take account of this assertion and having made no objection to this, should not now be permitted to claim that we, in the discharge of our duty under section 115 of the ADT Act to arrive at the 'correct and preferable' decision, should put the assertion to one side. 45 We agree with Mr Angyal that the Tribunal treated the unconscionable conduct claim as confined to the matters particularised in paragraph 20 the Second Further Amended Application. But it regarded the alleged contravention of the 2002 Height Restrictions as falling within the scope of Particular (b) (this Particular referred to failure by the Respondent to 'remove the kiosks and other structures in front of the Premises despite repeated requests and complaints by the Applicant'). At T208 to T211, it made a number of findings regarding these Restrictions and the Applicant's claim that they had been contravened. At T233 (which forms part of a long passage quoted by us at A272), it explicitly took account of these findings when concluding that the Applicant had not established unconscionable conduct under Particular (b). 46 The qualification that we have foreshadowed is that we should not take account of any evidence tending to establish unconscionable conduct on the part of any specific person who was employed by the Respondent during the relevant period unless, during the Tribunal hearing, that evidence was put before the person in question and he or she had an opportunity to respond to it. To this extent, we accede to Mr Angyal's submissions. 47 At the preliminary hearing on 9 May 2012, the Appeal Panel, constituted by Deputy President Chesterman, applied this principle in the course of determining that the Respondent should not have leave to tender at the second appeal hearing a further affidavit by a former manager of the Centre, Mr Roberts. One of the main grounds on which the Respondent sought leave was that Mr Roberts should in fairness be given an opportunity to rebut any allegation by the Applicant that his conduct in rejecting an interpretation of the 2002 Height Restrictions urged on him by the Applicant (as to this, see A39, A42, A43 and A47 to A49) was not 'in good faith' and for that reason was unconscionable, by virtue of section 62B(3)(k) of the RL Act. It was only on the basis of an undertaking by Mr Fernon that he would not allege bad faith on Mr Roberts' part that the Panel decided against granting leave to the Respondent to tender any part of Mr Roberts' affidavit. 48 At the time when this undertaking was given, Mr Angyal claimed that this amounted to a concession that Mr Roberts acted in good faith. Mr Fernon disputed this proposition. Having regard to the fact that the Applicant bears the onus of establishing unconscionable conduct, we are inclined to agree with Mr Angyal on this matter. Where no allegation of bad faith is or can be made in relation to the specified conduct of a specified individual, it must be presumed, we think, that he or she acted in good faith. But very little turns on this narrow question. 49 At the commencement of the second appeal hearing, the scope of Mr Fernon's concession was again brought into question. Mr Angyal indicated that, according to notes taken by his instructing solicitor, the Panel had stated at the hearing on 9 May 2012 that in view of this concession the Applicant would have to make out its case of unconscionable conduct by the Respondent without any allegation of bad faith against the Respondent. The transcript of this hearing does not, however, bear out this claim by Mr Angyal. What the Panel expressly took into account in rejecting the Respondent's application relating to Mr Roberts' affidavit was a statement by Mr Fernon that he would make no allegation of bad faith on the part of Mr Roberts. Whether the Applicant is estopped from alleging breach of the 2002 Height Restrictions 50 The Respondent's contention that an estoppel arose. At T204, in the course of describing a claim of pre-lease misrepresentation that the Applicant initially made against the Respondent, the Tribunal mentioned the possibility that certain conduct of the Applicant, outlined below, may have given rise to an estoppel impairing its capacity to establish this claim. The Tribunal did not explore this question further because the claim of a pre-lease misrepresentation was abandoned at the conclusion of the Tribunal hearing. 51 At the second appeal hearing, Mr Angyal argued that an estoppel such as the Tribunal envisaged had in fact arisen, impairing the Applicant's capacity to establish its unconscionable conduct claim. He submitted that the Applicant was estopped by conduct on its part during negotiations for the Lease from alleging for the purposes of this claim that it had entered into the Lease in reliance on there being no breach of the 2002 Height Restrictions. 52 The evidence relied on. The evidence on which Mr Angyal based this submission was as follows. 53 The Applicant initially took possession of Shops 415 and 416 under a lease commencing on 15 January 1999. In July 2001, negotiations began between Mr Mimis and Mr Olivier Sicouri, a Westfield leasing executive, for a new lease of these shops. 54 The lease of the space occupied by the B-Zone kiosk commenced on 1 September 2001. The heights of the eight display units and the cash and wrap counter constituting this kiosk did not exceed the limit of 1400 mm prescribed by the 2002 Height Restrictions. But in Mr Angyal's submission, the kiosk contravened those Restrictions (according to the interpretation of them urged by the Applicant) by virtue of the illuminated sign, the mirrors and the display items mentioned by the Tribunal when describing it at T26 (this passage was reproduced by us at A31):- There was an illuminated sign in the form of a globe of diameter approximately 800mm or so on top of a narrow diameter pole about 1.2m high above the cash and wrap counter and mirrors on top of the display unit… There were from time to time items exhibited for sale on top of the display units. 55 The next matters on which Mr Angyal relied formed part of T31 (we reproduced this paragraph, with some omissions, at A37):- 13 February 2002 Mr Sicouri wrote to Mr Mimis referring to recent discussions regarding a proposed new lease of Shops 415 and 416 and enclosing a disclosure statement of several pages for a 5 year lease commencing on 1 May 2002 with a base annual rent of $252,000. The letter also enclosed a red-covered booklet of 40 or so pages being Westfield's "Fitout Requirements - Specialty Shops" ("Fitout Requirements" or "red book") and stated Westfield's proposal to be subject to, among other things, "compliance with the requirements in the enclosed booklet 'Fitout Requirements - Specialty Shops'". The disclosure statement also included reference to finishes, fixtures etc to be provided by the Lessee being "In accordance with the Fitout Requirements". 20 February 2002 Mr Mimis returned the disclosure statement and other documentation to Mr Sicouri with a number of suggested amendments [comprising] changes of the commencement date to 1 July 2002, of the base annual rent to 1 July 2002 and expanding the permitted use of the premises… …. 18 March 2002 Mr Sicouri wrote to Mr Mimis with respect to "Proposed lease of Shop 415/7":"We refer to your recent discussions with Mr Olivier Sicouri, Regional Manager-Leasing and on behalf of the Lessor, PT Ltd, we have pleasure in submitting our proposal to you for a lease of the above premises. Details of our proposal are set out in the Disclosure Statement which is attached in duplicate to this letter." The disclosure document comprised several pages and like the letter of 13 February 2002 enclosed a copy of the Fitout Requirements and required compliance with them. The disclosure statement also included reference to finishes, fixtures etc having to be provided by the Lessee being "In accordance with the Fitout Requirements". 22 March 2002 Mr Mimis returned the completed disclosure statement documentation by fax to Mr Sicouri. He had made a number of alterations and additions to the document which he had signed and dated in various places. One printed page headed "Lessee's Disclosure Statement - Advice to Lessor" included Item 5 which read: "In entering into the retail shop lease, the Lessee has relied on the following statements or representations made by the Lessor or the Lessor's agent." That item left space for matters to be inserted. None was inserted. In the Advice to Lessor the word "sought" (as an alternative) was deleted from Item 3 so that it read: "The lessee has not sought independent advice in respect of the commercial terms contained in the Lessor's Disclosure Statement and the obligations contained in the proposed retail shop lease." 25 March 2002 Mr Sicouri wrote a letter to Mr Mimis in response to Mr Mimis' communication of 22 March 2002 requesting confirmation of his acceptance of his responses by signing and returning a copy of that letter. 5 April 2002 Mr Mimis faxed to Mr Sicouri a memo attaching a copy of the letter of 25 March 2002 which Mr Mimis had signed on 4 April 2002. 5 April 2002 Mr Sicouri wrote to Mr Mimis in reply and advised that Westfield's solicitors, Landerer & Company., had been instructed to issue lease documentation. Contact details were also supplied of Westfield's Tenancy Co-Ordinator and Specialty Shops' Designer. 56 During these negotiations, relating initially to a renewed lease of Shops 415 and 416 and subsequently to the Lease that finally came into existence, Mr Mimis did not at any stage state that in deciding whether or not to enter into either lease, he relied on adherence by the Respondent to the 2002 Height Restrictions when approving the construction of kiosks in the Centre. When signing and returning, on 20 February and 22 March 2002 respectively, the two lessee's disclosure statements that had been sent to him, he did not state, in the designated space in clause 5, that he relied on an agreement or representation by the Respondent to this effect. This was the case even though (a) in completing the earlier statement he referred to some other representations by the Respondent, (b) he made significant handwritten additions to other parts of both disclosure statements and (c) in one of the additions made to the later statement, in a section headed 'Lease Period', he expressly mentioned the Respondent's 'Fitout Requirements'. Similarly, he made no attempt to have a clause inserted into either lease obliging the Respondent to adhere to the Restrictions. 57 In addition, it was probable, according to Mr Angyal, that Mr Mimis (who was an experienced businessman) and Ms Mimis-Weeks expected the term of the B-Zone lease to be for five years. In cross-examination, Ms Mimis-Weeks admitted to being aware that the B-Zone kiosk obstructed the sightlines to the Applicant's expanded shop (i.e., the Premises) from the car park entrance. 58 In his affidavit, Mr Sicouri stated as follows. On 5 April 2002, after reviewing Mr Mimis's fax of that date, he formed the opinion that the parties had reached agreement on 'the commercial terms' of a lease of the Premises to the Applicant. He therefore instructed Landerer & Company to draft a lease and other necessary documents and send them to Mr Mimis. But he would not have issued those instructions if he had 'known' (a) that the Applicant believed that he had 'made a representation to it or agreed with it' that people entering Level 4 of the Centre from the car park entrance would have 'a direct and unobstructed line of sight to Shop 417', or (b) that the Applicant 'intended to enter into a lease of shop 417 in reliance on that representation or agreement'. 59 At a meeting between Mr Mimis and Ms Megan Johnson, the Respondent's Regional Manager for Leasing, on 9 May 2002, the matters discussed included the dates on which the Applicant would take possession of the Premises pursuant to the Lease and the increased rent under the Lease would become payable. The former topic, together with a request for a rent rebate if the ratio of rent to gross sales exceeded 18%, was the subject of a letter from Mr Mimis to Ms Johnson dated 1 July 2002. Neither at the meeting nor in the letter did Mr Mimis mention the 2002 Height Restrictions or the contravention of them by the B-Zone kiosk. 60 Although in a letter dated 10 July 2002 the Respondent rejected Mr Mimis's request for a rent rebate, Mr Mimis did not protest on the ground of this contravention or of obstruction of sight lines by the B-Zone kiosk. 61 According to a letter written by Mr Mimis to Landerer & Company on 9 December 2002 (see T45 and A42), he expressed concern about 'visual impairment as a result of kiosk sightlines' during a meeting on 9 August 2009 with Ms Johnson and Mr Gary Pinter, a Westfield leasing executive. The only kiosk to which Mr Mimis could have been referring was the B-Zone kiosk. This was the first time that anyone on behalf of the Applicant made any complaint about impairment of sightlines by this kiosk. 62 Relevant case law. Mr Angyal contended that by virtue of the matters just outlined the Applicant was estopped from asserting that it entered into the Lease in reliance on there being no breach of the 2002 Height Restrictions. He based this contention on relevant passages within the two lessee's disclosure statements which Mr Mimis had signed, on section 10(2A) of the RL Act and on two decisions relating to lessee's disclosure statements, Samaha v Corbett Court Pty Ltd [2006] NSWSC 1441 and Armstrong-Jones Management Pty Ltd v Saies-Bond & Associates Pty Ltd (RLD) [2007] NSWADTAP 47. 63 Clause 5 of each of the lessee's disclosure statements, in which space was provided for material to be entered by the Applicant, commenced as follows:- In entering into the retail shop lease, the lessee has relied on the following statements or representations made by the lessor or the lessor's agents. Note: Matters such as agreements or representations relating to exclusivity or limitations on competing uses, sales or customer traffic should be detailed. 64 Two further passages in the documents signed by Mr Mimis should also be mentioned. The first immediately preceded the lessee's disclosure statement, under the heading 'Declaration by lessee'. Mr Mimis's signature appeared under this declaration. The second was clause 6 of the lessee's disclosure statement, under which his signature also appeared. These two passages were as follows:- I acknowledge that: (i) both Part 1, Lessor's Disclosure Statement and Part 2, Lessee's Disclosure Statement contain all agreements and representations that influenced me to contemplate entering into the proposed lease. 6. Apart from the statements or representations set out above, no other promises, representations, warranties or undertakings (other than those contained in the lease) have been made by the lessor to the lessee in respect of the premises or the business to be carried out on the premises. 65 Section 10 of the RL Act confers on a party to a retail shop lease the right to obtain reasonable compensation for damage suffered as a result of entering into a lease in reliance on a pre-lease misrepresentation made by another party to the lease in the knowledge that it was false or misleading. Subsection (2A) states:- (2A) The making of a representation by a prospective lessee in a lessee's disclosure statement given to a prospective lessor under a retail shop lease that the prospective lessee has sought independent advice, or as to statements or representations relied on by the prospective lessee in entering the lease, is considered to be the making of a representation by a lessee to the lessor. 66 In Samaha v Corbett Court Pty Ltd [2006] NSWSC 1441, two lessees claimed to have been misled by misrepresentations by the lessor. The alleged misrepresentations and the circumstances of their making were described as follows in the judgment of Palmer J at [1] to [3] and [26]:- 1 Mr and Mrs Samaha entered into a lease with Corbett Court Pty Ltd ("Corbett Court") in respect of Shops 3 and 4 in the Picton Mall, intending to carry on there the business of a greengrocer and delicatessen. The Picton Mall was newly constructed and when Mr and Mrs Samaha commenced trading in August 2004 it was not fully tenanted. The volume of business in the Mall was much less than Mr and Mrs Samaha had hoped. They could not afford to keep trading and closed the business after only about seven weeks. They have never paid any rent under the lease. 2 Eventually, Corbett Court rescinded the lease, took possession of Shops 3 and 4 and re-let them to another tenant. It then commenced proceedings against Mr and Mrs Samaha, claiming rent and outgoings due but unpaid during the term of the lease and damages. 3 Simultaneously, Mr and Mrs Samaha commenced proceedings against Corbett Court claiming a declaration that the lease is void, an order pursuant to s.72AA of the Retail Leases Act 1994 (NSW) ("RL Act") or s.87 of the Trade Practices Act 1974 (Cth) ("TPA") that they are not obliged to pay rent under the lease and damages for representations which, they say, were false or misleading. 26 In their Further Amended Statement of Claim, Mr and Mrs Samaha allege that at a meeting on 14 December 2003 between Mr Corbett, representing Corbett Court, Mr Kevin James, a real estate agent engaged by Corbett Court, and Mr Samaha, Mr Corbett made the following representations: (i) On or about 14 December 2003 John Corbett represented to the first and second plaintiffs that the shopping centre would be fully occupied, or close to fully occupied, when it first opened for trading; and (ii)… that the shopping centre would have a certain tenancy mix when it first opened for trading; and (iii) … that he would close down the IGA store in Picton with the implied representation that the proposed business of the first and second plaintiffs would be more successful as a result; and (iv) …that the shopping centre would be the 'hub' of the Picton area with the implied representation that the said shopping centre would be the most popular shopping centre in the Picton area;… 67 Palmer J found that the testimony of Mr and Mrs Samaha lacked credibility and that these alleged misrepresentations were not made. His judgment then included the following passages, at [55 – 60] and [65 – 71]:- Reliance 55 In case I am wrong in my conclusions as to whether any of the relevant Representations were made to Mr Samaha, I should state my conclusions on the question whether, if any such Representations were made, Mr and Mrs Samaha relied on them in deciding to enter into the lease. 56 For the reasons I have given in relation to the making of the Representations, I do not regard the evidence of Mr and Mrs Samaha generally as reliable. However, on the question of reliance, Mr Donohoe submits that the most telling evidence against Mr and Mrs Samaha is the content of a Lessee's Disclosure Statement which they signed and returned to Corbett Court. The circumstances are as follows. 57 On 15 December 2003 Mr James sent to Mr and Mrs Samaha a Lessee's Disclosure Statement under s.11A Retail Leases Act. 58 Mr and Mrs Samaha went to see Ms Hart [their solicitor] in early January 2004…. On 19 January, Ms Hart wrote to Mr Cox [Corbett Court's solicitor] requesting confirmation of certain inclusions and facilities to be made available in the premises. Mr Cox sent a facsimile to Mr James [an estate agent engaged by Corbett Court] requesting instructions. Mr James responded by facsimile on 3 February. Attached to the facsimile was the disclosure statement with the Lessee's Disclosure Statement signed by Mr and Mrs Samaha. The disclosure statement contained the following: – a paragraph required details "of any other agreements between Lessor and Lessee, or representations made by Lessor or Lessee including those relating to exclusivity or limitations on competing uses". This paragraph contains typewritten terms relating to promises made by Corbett Court. Inserted in this paragraph in Ms Hart's handwriting were further terms undertaken by Corbett Court, of which she had sought confirmation in her letter of 9 January. – beneath that section appears in the following: "Note: Section 11A of the Retail Leases Act 1994 requires a lessee's disclosure statement to be provided to the lessor within 7 days (or any agreed further period) of the lessee receiving the lessor's disclosure statement. The lessee may be liable to a penalty for an offence under that Act if the lessee's disclosure statement is not so provided." LESSEE'S DISCLOSURE STATEMENT Advice to the Lessor 1. The Lessee acknowledges that the attached, Lessor's Disclosure Statement, was received from the Lessor prior to entering into the lease. 2. The Lessor has made available to the Lessee a copy of the proposed retail shop lease. 3. The Lessee has sought… independent advice in respect of the commercial terms contained in the Lessor's Disclosure Statement and the obligations contained in the proposed retail shop lease. 4. The Lessee believes that the lessee will be able to fulfil the obligations contained in the lease, including the payment of the proposed rent, outgoings and other amounts, based on the Lessee's own business projections for the business. 5. In entering into the retail shop lease, the Lessee has relied on the following statements or representations made by the Lessor or the Lessor Agents. Note. Matters such as agreements or representations relating to exclusivity or limitations on competing uses, sales or customer traffic should be detailed. 6. Apart from the statements or representations set out above, no other promises, representations, warranties or undertakings (other than those contained in the lease) have been made by the Lessor to the Lessee in respect of the premises or the business to be carried out in the premises." The space provided in paragraph 5 for the particulars of representations relied on by the lessees was left blank. 59 The Lessee's Disclosure Statement expressly and clearly called upon Mr and Mrs Samaha to state what representations made by Corbett Court, if any, they were relying upon in entering into the lease. The fact that, after having received legal advice, they did not specify any such representations must raise an evidentiary presumption that there were no relevant representations made or that, if any representations were made, Mr and Mrs Samaha did not place any reliance upon them. 60 Mr and Mrs Samaha sought to rebut such a presumption by saying that, in essence, their failure to insert in the Lessee's Disclosure Statement the Representations made by Mr Corbett was the fault of their solicitor, Ms Hart… 65 I regard it as inherently improbable that a solicitor would require a meeting with clients to go through a Lessee's Disclosure Statement – an important document in a leasing transaction – and would not explain carefully a part of it that was of critical importance to the clients. The fact that Ms Hart was not called by Mr and Mrs Samaha does nothing to lessen that improbability in the present case. 66 It is also of great importance to observe that, according to Mr and Mrs Samaha, they relied upon the representation that the centre would be fully occupied when it opened on or about 4 May 2004. May 2004 came and went without any opening of the centre and it was evident that there were few tenants preparing to fit out their premises. Nevertheless, Mr and Mrs Samaha did not then protest to Corbett Court that it had misled them and that they had relied upon the Representations in deciding to proceed with the lease. 67 For these reasons, I do not accept that, if Mr Corbett made any relevant Representations to Mr Samaha at the meeting of December, Mr and Mrs Samaha relied upon those Representations in entering into the lease. Estoppel 68 In case I am wrong in the foregoing conclusions, I shall state my conclusions on the contention by Corbett Court that, in any event, Mr and Mrs Samaha are estopped by the Lessee's Disclosure Statement in now asserting that they relied upon any Representations in entering into the lease. 69 There is no dispute that Mr Corbett received the Lessee's Disclosure Statement prior to his execution of the lease. There was no challenge to his evidence that he relied on it in entering into the lease:… That evidence is inherently probable: if the Lessee's Disclosure Statement had asserted reliance by Mr and Mrs Samaha on a representation that the centre would be fully let on opening and would contain a specified tenancy mix, a loud warning of risk of litigation would have sounded for Mr Corbett. 70 The Lessee's Disclosure Statement, signed by Mr and Mrs Samaha and sent to Corbett Court after they had received the advice of their solicitor, was a clear and unequivocal representation to Corbett Court that there were no representations by it upon which Mr and Mrs Samaha were relying in entering into the lease. Corbett Court relied upon that representation in entering into the lease and thereby changed its position irrevocably. 71 Mr and Mrs Samaha are therefore estopped from departing from the representation in their Lessee's Disclosure Statement. 68 The case of Armstrong-Jones Management Pty Ltd v Saies-Bond & Associates Pty Ltd (RLD) [2007] NSWADTAP 47 also involved a claim by a lessee ('S-B') in a newly established shopping centre to have relied on a pre-lease misrepresentation by which the lessor ('AJM') was bound. This representation was to the effect that Harvey Norman would be the 'anchor tenant' in the centre. As in the present case and in Samaha, the space in clause 5 of the lessee's disclosure statement for the disclosure of any agreements or representations relied on by the lessee was left blank. 69 In its decision at first instance (Armstrong-Jones Management Pty Ltd v Saies-Bond & Associates Pty Ltd [2006] NSWADT 323), the Tribunal found that the alleged misrepresentation was made by an estate agent on behalf of AJM and that the other requirements of section 10 of the RL Act were satisfied. In ruling that S-B's case on reliance was not undermined by its failure to mention this representation in the disclosure statement, it held that the representation fell outside the category defined in clause 6: that is, that it was not a representation 'in respect of the premises or the business to be carried out in the premises'. The Tribunal went on to hold that by virtue of proving the ingredients of its claim under section 10, S-B had also established its unconscionable conduct claim. 70 This decision was reversed on appeal, because the Appeal Panel took a different view of S-B's failure to mention the relevant representation in the lessee's disclosure statement. In dealing with this issue, the Panel (at [105 – 110]) first gave an outline, quoting relevant passages, of the Samaha decision, which had been delivered after that of the Tribunal at first instance. It then engaged, at [111 – 126], in a lengthy discussion of the issues raised:- 111 The commentary on this decision [Samaha v Corbett Court] in Lang's Commercial Leasing in Australia (1999-, loose-leaf) notes at [85-281]: '[O]f particular interest is the consequence of the lessee having failed to indicate any representations by or on behalf of the lessor in the lessor's disclosure statement. Lessees in New South Wales have been required to provide a lessee's disclosure statement since 1 March 1999. Para 5 and 6 of that statement cover statements and representations. This decision illustrates the care required by lessees' representatives to ensure that material statements and representations are concisely and adequately stated in the lessee's disclosure statement. The consequence of there being nothing contained in para 5 and 6 had the effect in this decision of negating reliance and operating also by way of estoppel.' 112 In the present case, the Tribunal's conclusion that the representation was not one that fell within the parameters of the disclosure statement regime freed it from having to deal with the kind of objections raised by Palmer J. In contrast to the Tribunal's approach, Palmer J did not take such a precise view of the scope of the matters that might be addressed in the lessee's disclosure statement. It can be seen that none of the representations alleged in Samaha bore on the kind of matters the subject of express reference in the note at cl 5 of the prescribed form. For example, the tenancy mix issue, and more importantly the question of anchor tenants, is not expressly mentioned in the note at cl 5. 113 The Disclosure Statement Regime: The RL Act belongs to a national retail laws scheme. All of the laws have pre-lease disclosure provisions. The commentary in Duncan, Commercial Leases in Australia (4th ed, 2005) at [1.139]-[1.140] refers to the sometimes complex environment within which these requirements operate. Duncan notes at [1.139]: 'It is common for prospective retail shop lessees to enter into possession of leased premises before a formal lease is signed. Therefore, lessees should be warned of the fact that the time for complaint passes quickly once possession is taken and rent is being paid pursuant to the agreement for lease.' 114 At this point Duncan is alluding to the '6 months termination' clause, and noting that time commences to run when the lease is entered into, which under retail leases laws is fixed as the date of entry into possession (see in NSW, s 8). Duncan continues: 'There is also the difficulty that, given this definition, at the relevant date that the lease is entered into so far as the statutes are concerned, some information required by the disclosure statements may not be known, particularly where the retail shopping complex is in the course of construction and subject to physical changes prior to completion.' 115 Duncan then refers to the difficulties that lessors face in an evolving situation of this kind in complying strictly with the requirements of the lessor disclosure statement. 116 Like Duncan, we note that disclosure statements, especially in the instance of a 'greenfields' shopping centre (as here), may pass between the parties at a time when it is not clear who has moved into occupation. A lessee in this kind of situation, it seems to us, might quite understandably omit to put in specific representations as to the tenancy mix and anchor tenants, and only appreciate that problem once the final mix is known and tenants start setting up. 117 It is obvious, however, that S-B must have known from a very early stage after it moved in that Joyce Mayne was on site in the location specified for Harvey Norman. 118 We do not share the Tribunal's view (one supported by Mr Gray for S-B in his submissions) that the lessee's disclosure statement obligations can be read down so as to exclude from the exchange process a representation as to a major anchor tenant. The lessor's disclosure statement obligations are wide ranging, and cover, as we see it, many matters to do with the overall operation of the shopping centre. The many warnings to which we have referred, found both in Part 1 and in the body of Part 2 (as set out above), are all designed, we think, to implant firmly in the minds of the parties the importance of transparency as to all matters of material significance to each party. In this regard, we agree with the approach adopted by Palmer J in Samaha. 119 In our view, lessees should see the disclosure statement regime as providing the place in which to record all material representations that induced them to enter the contract. 120 Similarly, lessors should actively set out in their disclosure statement the representations which they have made in the course of negotiations and perceive as going to material matters. So far as the lessor is concerned, it is self-evident we think that any representation as to the identity of a major anchor tenant, however conditionally expressed, is of major importance to prospective small tenants. It is not sufficient, we think, for lessors simply to use the blank space under the heading 'details of agreements and representations' to list the agreements which they have procured which favour them, and ignore the representations they made to secure the deal (as occurred here). It is not fair to leave it entirely up to the lessee to identify the representations that have been made. 121 In the present case there was, in our view, substantial evidence that Mr Draper had made the alleged representation, and that at the time of entering into the lease S-B had relied upon it. There were no similar findings in Samaha. An evidentiary presumption founded in the omission of the statement from the lessee disclosure statement can be overcome by contrary evidence; and was, we think, overcome in this case. 122 As we read Palmer J's reasons, his Honour would raise an estoppel once the allegedly material representation is not disclosed by the lessee in the disclosure statement. We are not inclined to go that far. The factors referred to by Duncan may be such that a lessee can be forgiven for not noting down all relevant representations in the lessee disclosure statement. The failure to live up to a representation may only become apparent on entry into occupation. A lessee should not be barred by an omission at the disclosure statement stage from taking action on a pre-lease representation that was important but not included in the disclosure statement. But we accept that at some point an estoppel may arise. 123 The Importance of Section 11: In our view the provisions of Part 2 of the RL Act are intended to operate as a type of code. They aim to minimise the scope for confusion or future controversy. Section 11 is designed to place a bar on the taking of actions of a fundamental kind in relation to pre-lease representations. If the lessee does not move to terminate within the time allowed, the right to terminate is lost. In effect, the lease is affirmed. Consequently, we are inclined to the view that an estoppel (so far as remedies such as restitution or rescission are concerned) must arise once the 6 month period has passed. If no objection is taken by a lessee to the making of a pre-lease representation or in respect of an omission or other incompleteness in the disclosure statement within the 6 month period, a lessor is entitled to regard the lease as secure from attack over matters of that kind. 124 We can find no reference in the evidence filed by S-B to any expression of concern over the 'Harvey Norman' representation in the immediate period after S-B moved in. Yet Ms Bond must have known once Joyce Mayne set up in the space, that Harvey Norman was not a tenant. Along with many other concerns, the issue is first raised in a letter written from S-B's then solicitors (Veliks) in August 2005. At this point Ms Bond had been in occupation for almost a year, and she was seeking to resist AJM's notice of termination. 125 Ms Bond had taken no steps within the six month period to seek to terminate the lease for non-disclosure. She could have kept alive a claim for reasonable compensation for misrepresentation in respect of the Harvey Norman representation had she raised the matter. But she did not raise that matter, either, within the six months. 126 In our view, the appeal succeeds on the estoppel point. 71 The submissions of the Respondent on estoppel. Mr Angyal's argument that an estoppel had arisen against the Applicant was based, in essence, on two elements of the evidence that we have just outlined. The first was that, even though the B-Zone kiosk contravened the 2002 Height Restrictions, the Applicant never conveyed any concern to the Respondent about its location close to the Premises or about the likelihood that it would remain in this location until September 2006, at the earliest. The second was that in both of the lessee's disclosure statements (most significantly, the second) that the Applicant sent to the Respondent during the negotiations that led to the Lease, it left blank the space in clause 5 in which it was required to list all representations by the Respondent on which it relied in entering into the Lease. 72 During his oral submissions at the second appeal hearing, Mr Angyal identified as 'the foundation for the Samaha estoppel' the evidence of 'detrimental reliance' contained in Mr Sicouri's affidavit. This was, as we indicated above at [58], that Mr Sicouri would not have issued instructions for Lease documents to be prepared if he had 'known' (a) that the Applicant believed that he had 'made a representation to it or agreed with it' that people entering Level 4 of the Centre from the car park entrance would have 'a direct and unobstructed line of sight to Shop 417', or (b) that the Applicant 'intended to enter into a lease of shop 417 in reliance on that representation or agreement'. 73 In his written submissions, Mr Angyal, having outlined this evidence, argued as follows:- It follows that, had Mr Sicouri believed that the Applicant intended to enter into a lease of Shop 417 in reliance on there being no breach of the Height Restrictions causing obstruction to the line of sight to Shop 417 from the Blue Level car park entrance, he would also have declined to issue instructions for the preparation of lease documents. 74 Mr Angyal was asked by the Panel whether the estoppel being asserted would prevent the Applicant claiming any relief if the Respondent had authorised the construction, near the Premises, of a kiosk grossly contravening the 2002 Height Restrictions. His reply was that in such circumstances, which differed substantially from those of the present proceedings, other grounds for a remedy might be available – for example, a claim under section 34 of the RL Act or 'even an unconscionable conduct case by reason of gross obstruction of sightlines'. He added that 'the extent of the estoppel', founded on Mr Sicouri's evidence, was a 'factual question'. 75 In his oral submissions, Mr Angyal referred also to section 10(2A) of the RL Act. He argued that this subsection gave 'statutory effect' to the proposition, emerging from clauses 5 and 6 of the lessee's disclosure statement, that a lessee who leaves blank the designated space in clause 5 makes a representation to the lessor that 'it has not relied on anything other than what is in the lease or the lessor's disclosure statement'. 76 The Applicant's submissions on estoppel. In oral submissions at the second appeal hearing, Mr Fernon advanced the following propositions. 77 First, both Samaha and Armstrong-Jones were cases involving alleged pre-lease misrepresentations under section 10 of the RL Act, whereas the claim of relevance here was an unconscionable conduct claim. 78 Secondly, the Appeal Panel in Armstrong-Jones, when discussing the effect of a lessee's failure to describe in clause 5 of the lessee's disclosure statement a lessor's representation on which it subsequently claimed to have relied, said no more than that an estoppel 'may arise' (see [122]). The lessee's failure in this regard was, Mr Fernon submitted, just 'one of the factors to be taken into account'. 79 Thirdly, it would be 'nonsense' to insist that, in order to prevent an estoppel arising, a lessee should be required to disclose in clause 5 that it expected, or relied on, compliance by the lessor with guidelines that the lessor itself had prepared and had disclosed to the lessee in fulfilment of its disclosure obligations. 80 Fourth and finally, photographs taken of the B-Zone kiosk showed that any contravention by this kiosk of the 2002 Height Restrictions was not at all significant. In relation to the three specific aspects of the kiosk to which Mr Angyal adverted (see [54] above), Mr Fernon replied as follows: (a) the illuminated sign stood on a narrow pole, as opposed to being an obstacle erected 'from the ground up'; (b) the height of the mirrors varied from day to day and they never constituted a significant interruption to sightlines; and (c) the display items were merchandise and therefore not part of the structure of the kiosk. 81 Our ruling. In our opinion, the Applicant is not estopped as alleged by the Respondent, for the following reasons. 82 First, the Respondent has not proved the element of 'detrimental reliance' that, according to its own submissions and indeed to the Supreme Court's reasoning in Samaha at [69], it was required to prove to make out its case of estoppel. Mr Sicouri testified that he would not have issued instructions for Lease documents to be prepared if he had 'known' that Applicant was relying on a representation by the Respondent that there would be 'a direct and unobstructed line of sight' from the car park entrance to Shop 417. But the representation by the Respondent that the Applicant invokes in support of its unconscionable conduct claim was a more moderate one. It was that there would be no breach of the 2002 Height Restrictions causing obstruction to this sightline. 83 As indicated above at [73], Mr Angyal advanced a proposition that he claimed to 'follow' from this evidence given by Mr Sicouri. This was that if Mr Sicouri's belief had been that the Applicant was relying on a representation confined to preventing breaches of the Height Restrictions causing obstruction to the sightlines, he still would have refrained from instructing the preparation of lease documents. 84 We do not think that this 'follows' at all. It is tantamount to saying that if Mr Mimis, in the course of negotiating with Mr Sicouri, had stated that the Applicant expected the Respondent, in its dealings with prospective tenants of spaces intended for kiosks, to require compliance with restrictions contained in the Respondent's own guidelines, Mr Sicouri would have replied that Westfield would regard that statement, standing alone, as a sufficient reason for refusing to grant a lease to the Applicant. This seems highly unlikely to us. The message that such a reply on the Respondent's behalf would convey, put in extreme form, would be that the Height Restrictions for kiosks should be regarded by the tenants of shops as a matter of academic interest only, since the extent, if any, to which the Respondent would enforce them against existing and prospective tenants of kiosks was entirely for the Respondent to decide. 85 In forming this view of the matter, we take particular account of the fact that the clause in the Red Book setting out the 2002 Height Restrictions commenced with the words 'Maintaining sightlines through all Kiosks is essential, therefore height restrictions apply'. The evident purpose of the clause was to impose restrictions on the height of each kiosk in order to 'maintain sightlines' for the benefit of all neighbouring businesses, whether conducted in another kiosk or in a shop. The existence of the clause, along with the other clauses in the Red Book, was made known to all tenants (actual and prospective) in the Centre, not merely the tenants of kiosks. If the Respondent did not want prospective tenants of shops to become aware of this clause and to infer that they were intended to derive protection from it, all that it (the Respondent) needed to do was to omit the clause from the material distributed to them. 86 Instead, the approach taken by the Respondent had the following outcome, as described by the Tribunal at T209 (quoted by us at A294):- 209… They [the 2002 Height Restrictions] were a feature of the overall relationships among Westfield and its tenants and prospective tenants. They set minimum standards for all (emphasis added). Involved in the need for the reasonable exercise by Westfield of its power of approval of proposed kiosk drawings and specifications, was a requirement to check that those details conformed to the [Restrictions]. 87 In view of these matters, it cannot be inferred from Mr Sicouri's evidence that he would have refused to go ahead with the Lease simply because the Applicant indicated that it expected the Respondent to adhere to the Height Restrictions when approving plans for the construction of neighbouring kiosks. 88 These reasons for rejecting Mr Angyal's submissions on this question derive from, but develop a little further, one of the arguments put by Mr Fernon. This was that a prospective lessee could not sensibly be required to disclose in clause 5 of a lessee's disclosure statement that it relied on compliance by the lessor with guidelines that the lessor itself had prepared and had disclosed to the lessee in fulfilment of its disclosure obligations. 89 We agree with Mr Fernon that in Armstrong-Jones at [122] the Appeal Panel appropriately interpreted Samaha as indicating that, if the space in clause 5 of a lessee's disclosure statement is 'left blank', an estoppel relating to any representation subsequently relied on in a section 10 claim 'may arise', not that it necessarily will arise. 90 The approach then taken by the Appeal Panel (at [123 – 125]) was to suggest that if the lessee delays for more than six months (being the period during which the remedy of restitution under section 11 may be asserted) in notifying the lessor of the misrepresentation on which it seeks to base a claim for compensation under section 10, an estoppel does arise. We do not need to investigate this suggestion further since, in contrast to the lessee ('S-B') in Armstrong-Jones, the Applicant in this case notified the Respondent of its expectation that the Height Restrictions would not be contravened with about seven weeks after the Lease commenced. The commencement date, by virtue of section 8 of the RL Act, was 3 July 2002 (see A191) and Mr Mimis's letter to Landerer & Company referring by implication to the Height Restrictions was received on or about 21 August 2002 (see T40 and A39). 91 As to the significance of the alleged breaches of the Height Restrictions by the B-Zone kiosk, it is sufficient to say (as we did in the course of Mr Angyal's submissions at the second appeal hearing) that simply because the Applicant raised no objection on this score during negotiations for the Lease, it cannot be inferred that it had no concern at all about any future breach whatever of the Restrictions occurring in the vicinity of the Premises. 'Unconscionable conduct', 'good faith' and the 'duty of co-operation' 92 Subsection (1) of section 62B of the RL Act states: 'A lessor must not, in connection with a retail shop lease, engage in conduct that is, in all the circumstances, unconscionable.' Subsection (3) states:- (3) Without in any way limiting the matters to which the Tribunal may have regard for the purpose of determining whether a lessor has contravened subsection (1) in connection with a retail shop lease, the Tribunal may have regard to: (a) the relative strengths of the bargaining positions of the lessor and the lessee, and (b) whether, as a result of conduct engaged in by the lessor, the lessee was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the lessor, and (c) whether the lessee was able to understand any documents relating to the lease, and (d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the lessee or a person acting on behalf of the lessee by the lessor or a person acting on behalf of the lessor in relation to the lease, and (e) the amount for which, and the circumstances under which, the lessee could have acquired an identical or equivalent lease from a person other than the lessor, and (f) the extent to which the lessor's conduct towards the lessee was consistent with the lessor's conduct in similar transactions between the lessor and other like lessees, and (g) the requirements of any applicable industry code, and (h) the requirements of any other industry code, if the lessee acted on the reasonable belief that the lessor would comply with that code, and (i) the extent to which the lessor unreasonably failed to disclose to the lessee: (i) any intended conduct of the lessor that might affect the interests of the lessee, and (ii) any risks to the lessee arising from the lessor's intended conduct (being risks that the lessor should have foreseen would not be apparent to the lessee), and (j) the extent to which the lessor was willing to negotiate the terms and conditions of any lease with the lessee, and (k) the extent to which the lessor and the lessee acted in good faith. 93 In the RL Act, there is no definition, as far as we are aware, of the terms 'applicable industry code' and 'industry code', as used in paragraphs (g) and (h) respectively. Mr Angyal drew our attention to the following definitions in section 51ACA(1) of the Competition and Consumer Act (Cth) 2010:- "applicable industry code" , in relation to a corporation that is a participant in an industry, means: (a) the prescribed provisions of any mandatory industry code relating to the industry; and (b) the prescribed provisions of any voluntary industry code that binds the corporation. "industry code" means a code regulating the conduct of participants in an industry towards other participants in the industry or towards consumers in the industry. "mandatory industry code" means an industry code that is declared by regulations under section 51AE to be mandatory. "voluntary industry code" means an industry code that is declared by regulations under section 51AE to be voluntary. 94 The Competition and Consumer Act (Cth) 2010 has replaced the Trade Practices Act 1974 (Cth). It contains provisions (clauses 21 and 22 of Schedule 2 – 'the Australian Consumer Code') comparable to subsections (1) and (3) of section 62B of the RL Act. 95 The various sources that Mr Fernon cited on the meaning of 'unconscionable conduct' in section 62B included the following passage from the Second Reading Speech on the Bill that inserted them into the RL Act:- "… [T]he greatest achievement of the bill is the draw down of the unconscionable conduct provisions of the Federal Trade Practices Act into the Retail Leases Act. This will provide affordable access, particularly for small business, to justice on matters of unconscionable conduct. The intention of this bill is to enable the protection afforded to both lessees and lessors against the misuse of power in their business relationships by section 51AC of the Federal Trade Practices Act to be available under New South Wales law. This is not so much about putting sanctions in place for those who act unconscionably in retail leasing transactions. It is primarily aimed at behaviour change. Establishing an acceptable framework within which leasing transactions can occur and changing the culture from one of confrontation and disputation to one of communication and commercially advantageous co-operation. 96 As Mr Fernon pointed out, this passage was quoted by Spigelman CJ in his judgment in Attorney General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261; 63 NSWLR 557 at [112]. This is a case to which the Tribunal regularly refers in its decisions on unconscionable conduct. At [121], the Chief Justice said:- 121 The Ministerial Second Reading speech, quoted above, indicates a similar concern to distinguish what is unconscionable from what is merely unfair or unjust. Even if the concept of unconscionability in s62B of the Retail Leases Act is not confined by equitable doctrine, as the decisions under s51AC of the Trade Practices Act suggest, restraint in decision-making remains appropriate. Unconscionability is a concept which requires a high level of moral obloquy. If it were to be applied as if it were equivalent to what was "fair" or "just", it could transform commercial relationships in a manner which the Minister expressly stated was not the intention of the legislation. The principle of "unconscionability" would not be a doctrine of occasional application, when the circumstances are highly unethical, it would be transformed into the first and easiest port of call when any dispute about a retail lease arises. 97 Mr Fernon relied also on a passage in the judgment of Foster J in Australian Competition and Consumer Commission v Allphones Retail Pty Ltd [2009] FCA 17, relating to the concept of unconscionability under section 51AC of the now-repealed Trade Practices Act 1974 (Cth). In that section, it was provided that considerations comparable to those listed in section 62B(3) of the RL Act were relevant to determining whether conduct was unconscionable. His Honour said at [113]:- 113 There is a body of authority in this Court which establishes the following propositions: (a) The scope of s 51AC is wider than that of s 51AA. The meaning of unconscionable for the purposes of s 51AC is not limited to the meaning of the word according to established principles of common law and equity:… (b) The ordinary or dictionary meaning of unconscionable, which involves notions of serious misconduct or something which is clearly unfair or unreasonable, is picked up by the use of the word in s 51AC. When used in that section, the expression requires that the actions of the alleged contravenor show no regard for conscience, and be irreconcilable with what is right or reasonable. Inevitably the expression imports a pejorative moral judgment:… (c) Normally, some moral fault or moral responsibility would be involved. This would not ordinarily be present if the critical actions are merely negligent. There would ordinarily need to be a deliberate (in the sense of intentional) act or at least a reckless act:… 98 In submitting that in the present case the conduct of the Respondent, a corporation, must be the focus of investigation, rather than the conduct of any individual employee or employees of the Respondent, Mr Fernon relied on a passage in the judgment of the Full Federal Court in Australian Securities and Investment Commission v National Exchange Pty Ltd [2005] FCAFC 226 at [40] – [45]. In that passage, the Court held that the conduct of a corporation, National Exchange Pty Ltd, in offering shares for purchase, was unconscionable under section 12CB of the Australian Securities and Investment Commission Act 2001 (Cth) ('the ASIC Act'). Section 12CC of this Act sets out factors relevant to unconscionability, resembling those listed in section 62B(3) of the RL Act. At [44], the Court said:- 44 Section 12CC requires the Court to focus primarily on the unconscionable conduct of the offeror [emphasis in the original] and to determine whether that conduct is contrary to the norm of conscientious behaviour. In our view, the conduct of National Exchange in this case, pursuant to its carefully formulated and systematic approach, clearly offends against basic notions of good conscience and fair play. 99 In relation to this proposition, and more generally on the concept of unconscionability under statutes such as the RL Act, Mr Fernon relied also on a passage in the judgment of Allsop P (with whom Bathurst CJ and Campbell JA agreed) in Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell [2011] NSWCA 389. In that passage, the President discussed whether 'Tonto HL', a company playing the role of 'mortgage manager', and various lenders advancing money through Tonto HL to a number of mortgagors, should be held to have engaged in unconscionable conduct under section 12CB of the ASIC Act. The mortgagors suffered loss on account of the fraud of 'Streetwise', a group of companies whose employees searched for and found potential mortgagors and introduced them to Tonto HL. 100 In ruling that Tonto HL had not engaged in unconscionable conduct, Allsop P said (at [288], [290], [291], [293]):- 288 The person whose conduct is to be characterised as unconscionable is Tonto HL and through it the lenders. It is important to bear this in mind. It is not a matter of concluding that a contract induced by fraud of Streetwise is unjust and assessing whether in all the circumstances that unjustness should be seen to taint the agreement such that relief should flow against the lenders. It is the conduct of the lenders, through Tonto HL that is to be attributed with the characterisation as unconscionable. The submissions of ASIC and the respondents recognised this. This unconscionability could, of course, arise from the actions and knowledge of the lenders. Notice of the conduct of Streetwise may well have led to the conclusion that Tonto HL and the lender acted unconscionably. That, however, was not shown. 290 ASIC pressed the argument that the meaning of "unconscionable" in the ASIC Act should take its content in part from provisions dealing with ASIC's functions such as ss 1(2) and s 12A. One should be cautious about acceding to a submission that would see subtly different meanings given to cognate provisions in legislation such as the ASIC Act and the TPA [Trade Practices Act 1974 (Cth)] (and FTA [Fair Trading Act 1987]). It suffices to say that the context of "unconscionable" in the ASIC Act does not give it a distinct or different meaning from its equivalent provisions in the TPA or FTA. All three sets of provisions have similar purposes in the protection of consumers and the promotion of just and fair markets. 291 Aspects of the content of the word "unconscionable" include the following: the conduct must demonstrate a high level of moral obloquy on the part of the person said to have acted unconscionably: Attorney General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261; 63 NSWLR 557 at 583 [121]; the conduct must be irreconcilable with what is right or reasonable: Australian Securities and Investments Commission v National Exchange Pty Ltd [2005] FCAFC 226; 148 FCR 132 at 140 [30]; Australian Competition and Consumer Commission v Samton Holdings Pty Ltd [2002] FCA 62; 117 FCR 301 at 316-317 [44]; Qantas Airways Ltd v Cameron (1996) 66 FCR 246 at 262; factors similar to those that are relevant to the CRA [the Contracts Review Act 1980] are relevant: Spina v Permanent Custodians Ltd [2009] NSWCA 206 at [124]; the concept of unconscionable in this context is wider than the general law and the provisions are intended to build on and not be constrained by cases at general law and equity: National Exchange at 140 [30]; the statutory provisions focus on the conduct of the person said to have acted unconscionably: National Exchange at 143 [44]. It is neither possible nor desirable to provide a comprehensive definition. The range of conduct is wide and can include bullying and thuggish behaviour, undue pressure and unfair tactics, taking advantage of vulnerability or lack of understanding, trickery or misleading conduct. A finding requires an examination of all the circumstances. 293 This conclusion is an evaluative one. The respondents and ASIC pressed the view strongly that the circumstances that lead (even without a finding of agency) to the conclusion of the responsibility of Tonto HL and the lenders for what happened so as to invoke the CRA equally lead to a conclusion as to unconscionability. I cannot agree. Spigelman CJ in World Best Holdings at 583 [121] referred to a "high level" of moral obloquy. Whether that is too stringent and whether "significant" or "real" may be preferable need not be decided. What is required is some degree of moral tainting in the transaction of a kind that permits the opprobrium of unconscionability to characterise the conduct of the party. Here, without a finding of some knowledge or complicity, the circumstances do not reach that level. 101 In relation to the meaning of 'unconscionable conduct', the authority relied on principally by Mr Angyal was the passage (at [121]) that we have already cited from the judgment of Spigelman CJ in Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261. 102 In submissions filed before the preliminary hearing on 9 May 2012, Mr Angyal referred also to statements in Tribunal decisions indicating that the motivation of the person against whom unconscionable conduct is alleged is a matter of prime concern. By way of example, he cited the Tribunal's ruling in Duncan v Aljayar Pty Ltd [2010] NSWADT 224 that conduct particularised in the following way was capable of being held unconscionable:- The Respondent had no proper grounds to refuse consent to assignment of the lease and refused consent for a purpose other than the legitimate business interests contemplated by the lease and the Retail Leases Act. 103 With reference to the concept of good faith, which is expressly mentioned in section 62B(3)(k) of the RL Act, Mr Fernon and Mr Angyal both cited the judgment of Allsop P (with whom Ipp and Macfarlan JJA agreed) in United Group Rail Services Ltd v Rail Corporation NSW (2009) 74 NSWLR 618; [2009] NSWCA 177. This case concerned the interpretation of a clause (clause 35.11) in an industrial agreement which required that the parties, if any 'dispute or difference' arose, should 'meet and undertake genuine and good faith negotiations with a view to resolving the dispute or difference'. 104 Referring specifically to paragraphs [42], [62] and [63] of the President's judgment, Mr Fernon invoked it as authority for the proposition that when determining whether a party has acted 'in good faith' in a particular matter, account must be taken of the nature and terms of the contract or legislation in which this term is located. 105 In his oral submissions at the preliminary hearing on 9 May 2012, Mr Angyal quoted the following passages (at [71] and [73]):- 71 The phrase "genuine and good faith" in cl 35.11 is, as I have said, a composite phrase. It is a phrase concerning an obligation to behave in a particular way in the conduct of an essentially self-interested commercial activity: the negotiation of a resolution of a commercial dispute. Given that context, the content of the phrase involves the notions of honesty and genuineness. Whilst the activity is of a self-interested character, the parties have not left its conduct unconstrained. They have promised to undertake negotiations in a genuine and good faith manner for a limited period (14 days). As a matter of language, the phrase "genuine and good faith" in this context needs little explication: it connotes an honest and genuine approach to the task. This task, rooted as it is in the existing bargain, carries with it an honest and genuine commitment to the bargain (fidelity to the bargain) and to the process of negotiation for the designated purpose. 73 These are not empty obligations; nor do they represent empty rhetoric. An honest and genuine approach to settling a contractual dispute, giving fidelity to the existing bargain, does constrain a party. The constraint arises from the bargain the parties have willingly entered into. It requires the honest and genuine assessment of rights and obligations and it requires that a party negotiate by reference to such… It is sufficient to say that the standard required by the notion of genuineness and good faith within a process of otherwise tactical and self-interested behaviour (negotiation) is rooted in the honest and genuine views of the parties about their existing bargain and the controversy that has arisen in connection with it within the limits of a clause such as cl 35.1. 106 Mr Fernon relied also on another recent judgment of Allsop P, in Macquarie International Health Clinic Pty Ltd v Sydney South Area Health Service [2010] NSWCA 268. In that case, the parties to three separate agreements relating to the construction of a hospital and car park were obliged by a term in each agreement to 'act with the utmost good faith in the performance of their respective duties, in the exercise of their respective powers, and in their respective dealings with one another'. At [12 – 15], the President said:- 12 The usual content of the obligation of good faith that can be extracted from Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234, Hughes Bros Pty Ltd v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (1993) 31 NSWLR 91, Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187; 69 NSWLR 558; Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 and United Group Rail Services Limited v Rail Corporation New South is as follows: (a) obligations to act honestly and with a fidelity to the bargain; (b) obligations not to act dishonestly and not to act to undermine the bargain entered or the substance of the contractual benefit bargained for; (c) an obligation to act reasonably and with fair dealing having regard to the interests of the parties (which will, inevitably, at times conflict) and to the provisions, aims and purposes of the contract, objectively ascertained. 13 None of these obligations requires the interests of a party to be subordinated to those of the other. It is good faith or fair dealing between arm's length commercial parties by reference to the bargain and its terms that is called for. 14 It is important to recognise that these obligations must be assessed and interpreted in the light of the bargain itself and its contractual terms. Those terms, however, must be assessed and interpreted in the light of the presence of the obligation of good faith, here pursuant to an express clause. 15 Whilst the cases in this Court have tended to equate or incorporate reasonableness with or into fair dealing and good faith, that is not without its controversy: E Peden, Good Faith in the Performance of Contracts (LexisNexis Butterworths 2003) Ch 7 esp pp 162ff and see E A Farnsworth, Farnsworth on Contracts (Aspen 3rd Ed 2004) Vol 2 at §7.17b p 400. Nevertheless, in these contracts, with express clauses of this width that have a necessary place in the working out and performance of the contracts, in some cases over many years, an objective element of reasonableness in fair dealing is appropriate, taking its place with honesty and fidelity to the bargain in the furtherance of the contractual objects and purposes of the parties, objectively ascertained. 107 It is convenient here to discuss briefly a concept allied to good faith to which Mr Fernon referred. A 'duty of co-operation' has been held by the High Court to be implicit in contractual agreements and by the Supreme Court to arise in a lease governed by the Act. Relying on this case law, an Appeal Panel of this Tribunal, in Atma Investments Pty Ltd v The Astor Pty Ltd (RLD) [2003] NSWADTAP 53, said (at [81 – 83]):- 81 [Mr Fernon, counsel for the Lessee]… submitted that the Lessor's refusal to grant an assignment constituted a breach of an implied contractual duty to the Lessee to provide 'co-operation'. He relied on two cases and also on passages in Carter, J W and Harland, D J, Contract Law in Australia, 3rd Ed, Butterworths, 1996, paras 627, 1809 and 1810. 82 The first of these cases was Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596. Mr Fernon referred to the following passage in the judgment of Mason J, at 607:- But it is common ground that the contract imposed an implied obligation on each party to do all that was reasonably necessary to secure performance of the contract. As Lord Blackburn said in Mackay v Dick ((1881) 6 App Cas 251 at 263): "as a general rule… where in a written contract it appears that both parties have agreed that something shall be done, which cannot effectively be done unless both concur in doing it, the construction of the contract is that each agrees to do all that is necessary to be done on his part for the carrying out of that thing, though there may be no express words to that effect." It is not to be thought that this rule of construction is confined to the imposition of an obligation on one contracting party to co-operate in doing all that is necessary to be done for the performance by the other party of his obligations under the contract. As Griffith CJ said in Butt v McDonald ((1896) 7 QLJ 68 at 70-71): "It is a general rule applicable to every contract that each party agrees, by implication, to do all such things as are necessary on his part to enable the other party to have the benefit of the contract." 83 The second case to which Mr Fernon referred was Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349. Here Sheller JA (with whom Powell and Beazley JJA agreed) held as follows, at 368:- Moreover, the common law imposes a duty on the parties to a contract to co-operate in achieving the objects of the contract:… Sir Anthony Mason has said that such cases come close to a recognition of the good faith doctrine described as "loyalty to the contract itself". But such an obligation cannot over-ride the express provisions of the contract. 84 At 369, Sheller JA stated that a duty of good faith may by implication be imposed on parties to a contract, and that there was no reason why such a duty could not be imposed as part of a lease. The Applicant's submissions on unconscionable conduct 108 Aspects of the evidence. Mr Fernon's submissions on unconscionable conduct at the second appeal hearing included the highlighting of a number of aspects of the evidence before the Tribunal, some of which he had not previously drawn to our attention. 109 First, he referred to and quoted from testimony from five of the Respondent's witnesses in which one or more of them acknowledged the following: (a) The importance of sightlines for a prospective tenant of a shopping centre. (b) The scale of the financial outlays and risks associated with becoming a tenant for a five-year period. (c) The Respondent's preparation and distribution of the Red Book, including the 2002 Height Restrictions, with knowledge of the foregoing matters. (d) The proposition that the term in the lease for the Boost Juice kiosk that stipulated a maximum height of 1400 mm without any reference to 'overhead elements' was intended to 'reflect' these Restrictions. (e) The fact that the Applicant undertook to pay a 'premium rent' for the Premises by virtue of their prime location. (f) The likelihood that the Applicant, when designing and installing the shopfront and signage for the enlarged Premises before commencing to trade in them, would have taken into account of the position and dimensions of the B-Zone kiosk. (g) The fact that the B-Zone kiosk had no menu board and had a 'very different' configuration to that of the Boost Juice kiosk. (h) The 'aggressive' nature of Boost Juice's retailing, which involved playing loud music and attracting large queues of customers to its kiosk, who made it difficult for potential customers of the Applicant to gain access to the Premises. (i) An estimate by Mr Terrill, based on his inspection of Level 4 of the Centre, of the height of the 'signboard' on the Telechoice kiosk as about 2.8 metres. In cross-examination (see Transcript 21.5.09, page 36, lines 22-42), having agreed that the signboard for the Boost Juice kiosk was about 2.8 metres high, he was asked whether the signboard for the Telechoice kiosk was also about the same height. His reply was: 'Yes, it probably is, yes.' 110 The witnesses giving this evidence were three employees of the Respondent during the relevant period – Mr Roberts, Mr Stevens and Mr Papagiannis – and two experts whom it called – Mr Terrill and Ms Radosevic. 111 With reference to items (f) and (g) in this list, Mr Fernon pointed out that the signage for the Applicant's shop in the Premises had been located directly behind the site where the B-Zone kiosk had stood and where the Boost Juice kiosk still stands. On the other hand, as we were able to observe during our view of Level 4 of the Centre, the current occupiers of the Premises (a business called Forever New) have installed their signage and store entrance 'away from the wall of blade signs' (as Mr Fernon put it), so as to be more visible from the car park entrance. He also drew our attention to the Tribunal's description of the B-Zone kiosk (at T26) as a 'walk through' kiosk comprising a number of separate display units, adding that by contrast, the Boost Juice, Telechoice and Love Salad kiosks 'all represented barriers to the passing pedestrian traffic'. 112 In this context, Mr Fernon referred in addition to statements by Ms Mimis-Weeks in her principal affidavit to the following effect: (a) at about the time of commencement of the Lease, she and Mr Mimis discussed their shared concern that sightlines should be preserved through adherence by nearby traders to the 2002 Height Restrictions; and (b) at that time, she was willing to pay 'the high rent of $1,770 per square metre' for the Premises because she believed that expansion of Surf City's shop into Shop 417 would increase its visibility to pedestrian traffic entering Level 4 from the car park and thereby increase the number of people entering the Premises and buying goods there. 113 Secondly, Mr Fernon sought to reinforce a claim by the Applicant that it did 'take into account' (referring to our phrase at A145) the existence of the 2002 Height Restrictions when considering whether to enter into the Lease by bringing to our attention certain correspondence between the Respondent and Boost Juice Pty Ltd during July 2002. In that correspondence, occurring during the negotiations for the lease permitting the construction of this kiosk, the Respondent placed emphasis on compliance by the intending lessee with the Fitout Requirements. Mr Fernon argued that a similar emphasis was to be found in the correspondence between the Respondent and the Applicant leading up to the commencement of the Lease in July 2002. 114 Thirdly, Mr Fernon relied on statements by Mr Stevens and Mr Papagiannis during cross-examination, to which he had not previously drawn our attention, to the effect that between 2002 and 2005 (a) a group of employees of the Respondent called 'the asset team' decided whether or not the Respondent should lease any space in the Centre for occupation by a kiosk and (b) a separate group called 'the shop opening and design team' had the responsibility of ensuring compliance with the 2002 Height Restrictions. According to Mr Papagiannis, the latter group approved the design for the Boost Juice kiosk, including its blade sign reaching a height of about 2.8 metres, and for the Telechoice and Love Salad kiosks. None of these matters was within the responsibilities assumed by the then Centre Manager, Mr Roberts. 115 Fourthly, Mr Fernon drew our attention to evidence (see T45 and A42) that the Respondent, through Mr Roberts, offered on 27 November 2002 to permit the Applicant to relocate its principal signage in a way that would reduce the obstruction to sightlines caused by the Boost Juice kiosk. The proposed relocation was from a position above Shops 415 and 416 to a position above Shop 417. But because the Respondent insisted that the Applicant should pay for any such relocation, Mr Mimis, in a letter dated 9 December 2002 sent to Landerer & Company (with copy to Mr Roberts), stated that the offer was 'not an acceptable resolution given the very significant rental that I pay for the premium frontage that I should have'. 116 Mr Fernon also referred to testimony given by Mr Stevens regarding a meeting (described by the Tribunal at T65, T131 and T132) that he had on 26 July 2005 with Mr Derek Rossel, who was then the Centre Manager, and Ms Mimis-Weeks. A specific aspect of Mr Stevens' evidence that Mr Fernon emphasised was his statement in cross-examination (Transcript, 16.9.09, p 21, line 44) that although he agreed that Ms Mimis-Weeks complained at the meeting about the obstruction to sightlines caused by the Boost Juice kiosk, he did not regard this, or any other matter raised, as relating to 'an issue of notable concern' and for this reason did not make a file note or other record of the meeting. 117 Finally, Mr Fernon relied on features of Level 4 of the Centre that we were able to discern for ourselves during the inspection that we conducted on 21 June 2012. 118 The factors listed in section 62B(3). According to Mr Fernon, the relevant behaviour of the Respondent attracted the operation of most of the matters to which, according to section 62B(3) of the RL Act, the Tribunal may 'have regard' in determining whether a lessor has engaged in unconscionable conduct. He developed this submission as follows:- 1. The Respondent had 'absolute strength in its bargaining and enforcement position' with regard to the approval of designs for kiosks and their installation, and total control over the interpretation and implementation of the 2002 Height Restrictions. In these contexts, the Applicant was 'absolutely at the mercy of' the Respondent. Under paragraph (a) of section 62B(3), this inequality of bargaining power was a relevant consideration. 2. To the extent, if any, that these Restrictions were ambiguous, the Applicant was unable to understand an important aspect of them (paragraph (c)). 3. The Respondent's conduct in first disseminating among tenants, then ignoring, these Restrictions even after the Applicant complained about their being contravened, amounted to 'unfair tactics' against the Applicant (paragraph (d)). 4. These Restrictions were not an 'industry code' (this was a concession made in submissions at first instance), but were analogous thereto. Being analogous to an 'industry code' was sufficient to attract the operation of section 62B(3) on account of the breadth of the subsection's opening words. The Applicant acted on the reasonable belief that the Respondent would comply with the Restrictions (paragraphs (g) and (h)). 5. The Respondent disseminated the Restrictions in the knowledge that they were important to the Applicant, but failed to inform the Applicant that it could and would ignore them. To the extent that they were ambiguous, the Applicant could not properly understand the Respondent's intentions (paragraph (i)(i)). 6. The foregoing matters, coupled with the fact that the Applicant was paying a 'premium rent' for a 'premium location' and the recognised existence of a 'duty of co-operation' between the parties to a retail shop lease, established that the Respondent did not act in good faith (paragraph (k)). 119 In so far as propositions 2 and 5 in this list (relating respectively to paragraphs (c) and (i)(i) of section 62B(3)) were based on an assumption that the 2002 Height Restrictions were ambiguous, they were, in effect, secondary submissions by Mr Fernon. His primary submission regarding these Restrictions was that on the question of interpretation that mattered most – whether blade signs and similar structures that were erected 'from the ground up' were 'overhead elements' and therefore not subject to the height limit of 1400 mm – there was no ambiguity at all. Such structures, in his submission, were clearly not 'overhead elements'. 120 Other submissions on unconscionable conduct. Four further submissions by Mr Fernon should be noted. 121 The first was that the Respondent did not called as a witness any of the members of the two 'teams' – i.e., the 'asset team' and the 'shop opening and design team' – who decided on the leasing of spaces near the Premises to the three relevant kiosks (Boost Juice, Telechoice and Love Salad) and approved plans for each of them involving infringement of the 2002 Height Restrictions (and, in the case of Boost Juice, infringement of a term of the lease to Boost Juice Pty Ltd). For this reason, Mr Fernon said, the Respondent could not claim that these decisions were attributable to an 'innocent misunderstanding of the true meaning or effect' of the Restrictions. 122 Secondly, Mr Fernon argued that the Respondent, in its submissions to the Tribunal, sought to avoid liability for damages under section 34 of the RL Act by maintaining (a) that under this section a landlord is only required to take action to rectify disruption to a lessee's trade 'as soon as reasonably practicable' after being notified of the disruption and (b) that because of the long leases that it had granted with respect to the three kiosks it was therefore not obliged to take such action for some years. He claimed that this assertion that it would be 'unreasonable' to expect removal of the kiosks was being put forward by the Respondent as a reason for not characterising its conduct as unconscionable. 123 Thirdly he made the blunt assertion that 'when the complaint of sight lines was raised, [the Respondent] closed its eyes to the issue and simply acted as if it were without fault'. 124 Finally, Mr Fernon relied on the significant extent to which (in his submission) the Applicant's trade suffered by virtue of both the contraventions of the 2002 Height Restrictions that the Respondent authorised and the 'aggressive' retailing practices in which the Boost Juice kiosk engaged. These practices, he said, included the broadcasting of loud music and caused long queues of people to form near the kiosk, thereby deterring potential customers of the Applicant from seeking to gain access to the Premises. 125 In his written submissions, Mr Fernon summed up his argument by saying that by virtue of all of these matters the Respondent's conduct 'was not consistent with what was "right and reasonable", offended basic notions of good conscience and fair play and involved a high degree of moral obloquy'. He argued further that the Respondent's 'conduct or lack of action justifies a finding of an absence of good faith' and that each of these matters, or any one or more of them, was sufficient to support a finding of unconscionable conduct. The Respondent's submissions on unconscionable conduct 126 Aspects of the evidence. Mr Angyal's submissions in relation to the Applicant's unconscionable conduct, like those of Mr Fernon, relied on certain aspects of the evidence to which in the first appeal decision we did not refer in any detail, or (in some instances) at all. 127 First, he drew our attention to the following matters of factual background that we did not mention. In November 1998, Mr Mimis received (presumably for the first time) a copy of the Respondent's Fitout Requirements, including what became the 2002 Height Restrictions. This was in the context of negotiations for a lease to the Applicant of Shops 415 and 416 in the Centre. That lease commenced on 15 January 1999. During 1999, Mr Mimis sought rental assistance from the Respondent and received about $54,000, on the ground that the Applicant's trade was disrupted by works being carried out in the Centre. At the time (on or about 26 July 2001) when he started the negotiations with the Respondent that ultimately led to the replacement of this first lease with the Lease relating to Shops 415, 416 and 417, Mr Mimis owned five other shops occupying premises leased from the Respondent in other centres. In submissions to the Tribunal at the end of the Tribunal hearing, counsel for the Applicant described Mr Mimis as an experienced businessman and retailer. 128 Secondly, Mr Angyal placed emphasis on the fact that the annual base rent of $427,500 payable under the Lease for Shops 415, 416 and 417 represented a substantial increase over the total rent of about $246,340 that the Applicant had previously paid during the final stages of the preceding lease of Shops 415 and 416. According to Mr Bell, an expert witness called by the Respondent, a consequence of this increase in rent was that the Applicant needed to increase its sales in the expanded premises by about 45% in order just to break even. In fact, its sales increased by only about 25%. 129 In view of the scale of this increase in rent and the fact that the Applicant's sales did not increase to a sufficient degree to match it, Mr Angyal drew our attention to evidence that in his submission provided the basis for an important inference. This was that as from about the time (10 August 2002) when the first payment of the increased rent had to be made, the stance adopted by Mr Mimis and Ms Mimis-Weeks in their communications with the Respondent was motivated, not by any genuine concern about sightlines, but by a desire to persuade the Respondent to reduce significantly the rent, though not the size, of the Premises. 130 This evidence was to the following effect:- (a) Although construction of the B-Zone kiosk was completed on or about 1 September 2001, the first and only occasion on which Mr Mimis complained to the Respondent that it interfered with the sightlines from the car park entrance to the Premises was during his meeting with Ms Johnson and Mr Pinter on 9 August 2002 – this being the day before the first payment of the increased rent was due. (b) The relief that Mr Mimis sought from the Respondent when first insisting that the 2002 Height Restrictions should be complied with was a reduction of the increased rent. This was in the letter of 21 August 2002 to Landerer & Company in which he sought to make a handwritten amendment to the draft of the Lease (see A157 to A161 and the ensuing discussion). (c) Mr Mimis, in his memorandum of 12 November 2002 to Mr Roberts (see A39), asserted that he could not afford to have his trade impeded by kiosks near the Premises (including the newly constructed Boost Juice kiosk) unless the 'premium rent' that he currently paid was 'addressed'. In this memorandum, he acknowledged that the recent demolition of the B-Zone kiosk had led to a 'significant increase' in sales. (d) In his letter of 9 December 2002 to Landerer & Company, outlined above at [115], Mr Mimis rejected Mr Roberts' offer, made on 27 November 2002, to permit the Applicant to relocate its principal signage from above Shops 415 and 416 to a position above Shop 417, where it would be more visible from the car park entrance. The only reason that Mr Mimis gave was that the Respondent was not prepared to meet the expense of doing this. In the same letter, he once again attempted, relying on his handwritten amendment to the Lease, to induce the Respondent to accept a lower rent. (e) In a letter dated 13 May 2003 to Mr Roberts (see A47), Mr Mimis made a further attempt to reduce the rent, relying on the handwritten amendment. (f) After the Applicant had paid only part of the rent for August 2003, Mr Mimis claimed, in an email to Mr Roberts dated 1 September 2003, that the bond money (about $24,000) relating to the earlier lease of Shops 415 and 416 had not been refunded. He asked Mr Roberts to 'chase' it for him. The bond had in fact been refunded during August 2002. (g) In a letter dated 27 January 2004 to Landerer & Company (see A50) Mr Mimis made a further claim for a rent reduction, based on his handwritten amendment to the Lease. (h) In an email dated 21 February 2005 (see T58), following a meeting three days earlier between Mr Stevens, Mr Papagiannis and Mr Mimis, Mr Stevens sent to Mr Mimis a proposal for downsizing the Applicant's shop and reducing the monthly rent by about $8,000. A sketch plan of the suggested changes to the Premises was attached. Although Mr Mimis promised that he would 'review' this and 'get back to' Mr Stevens, he never replied. (i) On 11 August 2005 (see T67), Mr Stevens sent to Ms Mimis-Weeks a similar proposal for downsizing the shop and reducing the rent. She did not respond to it. (j) On 23 August 2005 (see T68, T135 and T136), Ms Mimis-Weeks met with Mr Rossel and Ms Katie Preston, who was a retail design manager at the Centre. In relation to this meeting, Mr Rossel testified as follows: (a) it was arranged, and Ms Preston was invited to attend, because Ms Mimis-Weeks wanted further discussion of the proposal to relocate the signage; (b) Ms Preston offered to review any design for the relocation that Ms Mimis-Weeks prepared; and (c) Ms Mimis-Weeks never submitted any such design. He contested her allegations that at the meeting she asked for rent relief and that Ms Preston conveyed a willingness to let her put 'Surf City stickers' at the top of the window of Shop 417. Mr Rossel added that Westfield never permitted signage in the form of 'stickers'. The Tribunal found at T236 that the credibility of 'the Westfield witnesses' was not significantly questionable, whereas the evidence of Ms Mimis-Weeks was not reliable on its own, particularly when it was in conflict with that of other witnesses. (k) On 21 August 2006 (see T91 and T92), following a meeting twelve days earlier between Mr Robert Jordan (the Managing Director of Westfield for Australia and New Zealand), Mr Peter Leslie (the Divisional Director of Leasing for these two countries), Mr Papagiannis and representatives of the Applicant, the Respondent communicated to Ms Mimis-Weeks a further offer involving downsizing the shop and reducing the rent. This was not accepted. (l) On 12 October 2006 (see T100 and T162), at a meeting between Mr Jordan, Mr Leslie, Ms Mimis Weeks and Mr Weeks, the Respondent offered to permit the Applicant to surrender the Lease without payment of any further rent. At this time, the remaining rent due under the Lease amounted to $1,167,097. Mr Jordan, whom the Applicant called as a witness, testified that in the normal course Westfield did not make offers of this nature. Four days later, Ms Mimis-Weeks rejected the offer and made a counter-offer, under which the Applicant would surrender the Lease in return for a payment by the Respondent of this same amount. She cited as a precedent a recent agreement between the Respondent and another tenant, whereby a lease was surrendered in return for payment of the amount of rent still due under the lease. On the same day, Mr Jordan rejected this counter-offer. 131 Mr Angyal also pointed to what he claimed were significant gaps in the evidence on which the Applicant relied in seeking to establish unconscionable conduct. These included the lack of any evidence tending to show that at the time (5 April 2002) when according to Mr Sicouri the parties reached 'commercial agreement' as to the terms of the Lease, the Respondent intended to do any of the following things: to lease Kiosk 407 to Boost Juice Pty Ltd; to lease Kiosk 406 to Business Service Brokers Pty Ltd (the company that erected the Telechoice kiosk); to lease Kiosk 426 to Love Salad Pty Ltd; to lease any of these kiosks to any other kiosk operator; or to approve plans for any kiosk that would contravene the 2002 Height Restrictions. 132 In addition, Mr Angyal pointed out that it was not put to any of the Respondent's witnesses who were or had been employees of the Respondent that (a) the Respondent, as at 5 April 2002, intended to take any of the steps just outlined or (b) that the Respondent engaged in unconscionable conduct in relation to the Height Restrictions, or at all. Also, as a consequence of the concession made by Mr Fernon at the preliminary hearing on 9 May 2002 (see [47 – 49] above), the Applicant could not submit that the evidence was sufficient to support the specific inference that Mr Roberts, in his dealings with Mr Mimis, acted in bad faith. 133 A further significant gap that Mr Angyal claimed to exist in the Applicant's case was that there was no evidence as to whether a sign or signs suspended from the ceiling above the Boost Juice kiosk would have obstructed the sightlines to the Premises to a greater or a lesser degree than the blade signs that were in fact constructed. 134 Mr Angyal also maintained that because of (a) the strong doubts expressed by the Tribunal about Ms Mimis-Weeks's credibility and (b) the absence of any finding on the matter by the Tribunal, the Applicant lacked the evidence that it required to support its claim that both the Telechoice kiosk and the Love Salad kiosk infringed the 2002 Height Restrictions. 135 Finally, Mr Angyal (like Mr Fernon) relied on features of Level 4 of the Centre that we were able to discern for ourselves during the inspection that we conducted on 21 June 2012. At his request, and with the concurrence of Mr Fernon, we also viewed (during the hearing on the following day) a CD Rom that had been tendered and admitted at the Tribunal hearing (see T166 to T168). 136 This CD Rom, prepared by an expert witness (Ms Radosevic) whom the Respondent called, contained some two-dimensional plans and also three-dimensional representations of three 'walk throughs', showing the following:- (a) The Telechoice and Boost Juice kiosks, with the walk through commencing at the entrance from the blue level car park exit and ending at a point immediately past the kiosks and in front of the shop-front to shop 417. (b) The B Zone kiosk, with the walk through commencing at the entrance from the blue level car park exit and ending at a point immediately past the kiosk and in front of the shop-front to shop 417. (c) The B Zone kiosk superimposed on the Boost Juice and Telechoice kiosks. 137 The factors listed in section 62B(3). Mr Angyal sought through the following arguments to rebut Mr Fernon's submissions linking the Respondent's conduct to paragraphs in section 62B(3) of the RL Act:- 1. Paragraph (a): The Respondent was not in a superior bargaining position because Mr Mimis, being the owner or former owner of six businesses occupying premises leased by the Respondent and also an experienced businessman and retailer, was (in Mr Angyal's words) 'a force to be reckoned with'. In the negotiations leading up to the Lease, he could have insisted on the inclusion of a term requiring the Respondent to ensure the 2002 Height Restrictions, interpreted in the manner that he claimed to be correct, were adhered to, at least in relation to any kiosk that replaced the B-Zone kiosk. But he did not do so. 2. Paragraph (c): Because the Applicant did not enter into the Lease in reliance on the 2002 Height Restrictions, any ambiguity in them was irrelevant. 3. Paragraph (d): Since Mr Mimis received a copy of the Fitout Requirements, including these Restrictions, as early as November 1998 (if not earlier), it was 'difficult to see what tactic was involved, or unfairness inhered' in their being sent to him. Furthermore, the Applicant did not put to any witness called by the Respondent that it had acted unconscionably by engaging in unfair tactics. 4. Paragraphs (g) and (h): Because section 62B is a provision that (in Mr Angyal's words) 'proscribes and punishes conduct akin to fraud', it must be construed strictly. To attract the operation of these paragraphs, it is therefore not enough to show that a relevant document is 'analogous to' an 'industry code'. 5. Paragraph (i)(i): Mr Angyal made four specific submissions in this context: (a) There was no evidence to show that as at 5 April 2002, being the date on which the parties agreed on the 'commercial terms' of the Lease, the Respondent intended to approve the construction of any of the three kiosks, with or without contravention of the 2002 Height Restrictions. This date was the relevant time for the Respondent to disclose any such intention, because thereafter the Applicant could not adapt the terms of the Lease to protect itself from the intended conduct. (b) Because the B-Zone kiosk infringed these Restrictions, it would not have been unreasonable for the Respondent to fail to disclose any intention to approve the future construction of kiosks that also infringed them. (c) It was not put to any witness called by the Respondent that any such failure was unreasonable. (d) On account of the unreliability of Ms Mimis-Weeks' evidence and the absence of any other evidence relating to the dimensions of the Telechoice kiosk or the Love Salad kiosk, it was not open to the Appeal Panel to find that either of these kiosks infringed the 2002 Height Restrictions. 6. Paragraph (k): At the preliminary hearing on 9 May 2012, Mr Fernon gave an undertaking that he would not allege bad faith on the part of Mr Roberts when dealing with the Applicant. For practical purposes, Mr Roberts acted as 'the relevant mind' of the Respondent. It followed that no finding of bad faith could be made against the Respondent and indeed that the Respondent must be held to have acted in good faith. It continued to do so even though there were 'substantial indications' that the Applicant acted in bad faith. 138 In the context of his submission, relating to each of paragraphs (d), (i)(i) and (k), that claims made by the Appellant were not put to relevant witnesses called by the Respondent, Mr Angyal relied on principles of natural justice and on the rule in Browne v Dunn (1893) 6 R 67. He cited the following dictum of Glass JA (with which Reynolds and Mahoney JJA agreed) in Seymour v Australian Broadcasting Commission (1990) 19 NSWLR 219 at 225:- On appeal, as happened in Browne v Dunn, the Court will be inclined to disregard a submission on the evidence which was not tested by putting questions to the party best able to deal with it:… 139 In the context of his submission, relating to paragraph (k), that there were 'substantial indications' of bad faith on the part of the Applicant, Mr Angyal relied on various items of evidence (coupled in some instances with findings made by the Tribunal) that showed, in his submission, that Ms Mimis-Weeks had acted illegally or dishonestly in certain ways. All of this alleged conduct on her part occurred during or after October 2006. We do not propose here to describe the evidence to which Mr Angyal adverted. Our reasons for adopting this course are explained below. 140 Other submissions on unconscionable conduct. In Mr Angyal's argument, two further propositions were important: (a) that for reasons already explained, the Applicant could not allege that Mr Roberts, or any other relevant employee of the Respondent, had acted in bad faith in his or her dealings with the Applicant; and (b) that the Tribunal had found (see T225(d)) that the degree to which sightlines to the Premises had been obstructed by the replacement of the B-Zone kiosk with the Boost Juice kiosk was 'insufficient to enliven' section 34 of the RL Act. 141 For these reasons, Mr Angyal contended, the Respondent's conduct could not, as a matter of law, be characterised as 'highly unethical' or deserving of 'moral obloquy', so as to satisfy the requirements laid down by Spigelman CJ in Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261 at [121]. If this conduct were held to be unconscionable, he claimed, section 34 of the Act would be rendered redundant because unconscionable conduct would be 'the first and easiest port of call'. 142 Other submissions advanced by Mr Angyal were as follows:- (a) The 'unilateral demands' that the Applicant made for reduction of the rent for the Premises, commencing with Mr Mimis's letter on or about 21 August 2002, should be characterised as 'unjust and unjustifiable'. (b) Mr Mimis, in his letter of 12 November 2002 to Mr Roberts, sought to take advantage of an 'unexpected fortuitous development' (the demolition of the B-Zone kiosk) by making a 'completely opportunistic and unconscionable request' that the kiosk replacing it (the Boost Juice kiosk) should not be permitted to have 'any effective signage of the sort that the B-Zone kiosk had. (c) The Respondent made, but the Applicant rejected or ignored, the following reasonable proposals for settling their dispute:- (i) Offers on two occasions (27 November 2002 and 23 August 2005) to allay the Applicant's concerns about sightlines by permitting it to relocate its principal signage to a position above Shop 417 that was fully visible to potential customers proceeding along the walkway from the car park entrance. The only reason that the Applicant gave for rejecting the first offer was that it would have to pay the relatively small amount (i.e., in Mr Angyal's words, 'a few thousand dollars') required for the relocation. (ii) Offers on 21 February 2005, 23 August 2005 and 21 August 2006 involving downsizing the shop and reducing the rent. (iii) An offer on 12 October 2006 that the Applicant could surrender the Lease without having to pay any of the substantial amount of rent ($1,167.097) still due under it. (d) In the present context, the Applicant could not rely on evidence to the effect that loud music played and queues of people forming near the Boost Juice kiosk deterred potential customers of the Applicant from seeking to gain access to the Premises. The reason was that none of these matters formed part of the Applicant's unconscionable conduct claim as formulated for the purposes of this appeal. (e) In the present context, the Applicant could not rely on the Respondent's argument (in its submissions to the Tribunal) that by virtue of the long leases that it had granted with respect to the three kiosks, it was not obliged until some years had elapsed to take any action to remedy alleged disruption of the Applicant's trade. The reason was that the Respondent had put forward this argument in relation to the Applicant's claim under section 34 of the RL Act, not its unconscionable conduct claim. (f) Because, for reasons outlined below, the Applicant had failed to prove either (a) that the Respondent's conduct involving breaches of the 2002 Height Restrictions caused it to sustain any financial loss or (b) what the amount of any such loss might be, it could not include an assertion that significant loss had in fact been occasioned as a component of its case on unconscionable conduct. Our conclusions on unconscionable conduct 143 In his written submissions prepared for the second appeal hearing, Mr Fernon referred to a passage in the first appeal decision (at A299) in which we set out nine matters, occurring between February 2002 and July 2005, that could (we said) constitute a basis for the Applicant's case on its unconscionable conduct claim 'at its highest'. These matters (with a minor correction of the numbering) are as follows:- 1. Through distributing the 2002 Height Restrictions to tenants and prospective tenants, the Respondent established them as a guideline or code operating throughout the Centre and assumed the responsibility of ensuring that the plans for new structures in the Centre complied with them. 2. In the Restrictions, the applicability of the maximum height limit to different types of signage was left unclear. 3. In February 2002, the Respondent made the Applicant aware of the Restrictions during negotiations for the Lease. In August 2002, shortly after the Lease commenced, the Applicant notified the Respondent's solicitors that it expected any new structures being erected near the Premises to comply with them. Yet without any notification to the Applicant, the Respondent proceeded during the next three months to approve plans for the Boost Juice kiosk near the Applicant's shop, in the context of granting a long lease, even though (a) on a viable interpretation of the Restrictions, the kiosk did not comply with them on account of the height of signage extending upwards from the ground and (b) the approval was at odds with a term of this lease. 4. In May 2003, in the course of unsuccessful negotiations between the parties, the Respondent's response to the Applicant's claims that the Boost Juice kiosk contravened the Restrictions was solely to state that they must be given a different interpretation, according to which they imposed no express or implied restriction on the height of any signage. 5. At about the same time, the Respondent also approved the construction of the Telechoice kiosk near the Premises, in the context of granting a long lease. It did this even though this kiosk also contravened the 2002 Height Restrictions. 6. During 2005, the Respondent issued the 2005 Height Restrictions, with which both of these kiosks were compliant. At about the same time, it approved the construction of the Love Salad kiosk near the Premises, in the context of granting a long lease. It did this even though this kiosk also contravened the 2002 Restrictions (though not those of 2005). 7. The Respondent claimed that it could not require the removal of any of the three kiosks, giving as a reason its own conduct in granting long leases in relation to them. 8. The Respondent also claimed that the substitution of the 2005 Height Restrictions for those of 2002 provided legitimate grounds for it to reject the Applicant's complaints about all three kiosks. 9. Despite receiving complaints during the period between August 2002 and June 2004 about the obstruction to sightlines caused by kiosks, the Respondent apparently took no steps, until July 2005 at the earliest, by way of providing rental or other financial assistance to the Applicant. Instead, it insisted that it was entitled to the full amount of rent stipulated in the Lease and it subsequently instituted legal proceedings to recover this rent. 144 In written submissions prepared for the second appeal hearing, Mr Fernon referred to these nine matters as the matters on which we said that the Applicant's unconscionable conduct case was based. All that we said was in fact that such a case could be based on them. But as we understand Mr Fernon's submissions he sought to rely on them in putting forward this case. 145 These nine matters constitute a convenient framework for our discussion of the competing arguments put to us. We will deal with each of them in turn, then state our overall conclusion regarding the Applicant's unconscionable conduct claim. 146 In this discussion, we will include our observations on the individual paragraphs within section 62B(3) of the RL Act to which the parties made specific reference in their submissions. An issue of contention regarding those provisions was whether they should be construed strictly (as Mr Angyal argued) or as implying (as Mr Fernon argued) that factors 'analogous' to the 'indicative factors' described in them should also be treated as relevant to the question of unconscionability. In view of the opening words of the subsection, we prefer Mr Fernon's submission on this point. 147 1. The establishment of the 2002 Height Restrictions as a 'guideline or code' within the Centre and the Respondent's role in ensuring compliance with them. At T209, the Tribunal described these Restrictions, along with the rest of the Red Book, as 'a feature of the overall relationships among Westfield and its tenants and prospective tenants'. This characterisation of them was not challenged in the Respondent's submissions in the appeal. Also significant here is the statement in the clause imposing the Restrictions that 'Maintaining sightlines through all Kiosks (our emphasis) is essential, therefore height restrictions apply'. 148 The implicit assumption by the Respondent of responsibility for ensuring compliance with the 2002 Height Restrictions follows, in our opinion, from its status as the owner and manager of the Centre. We take account also of its practice of disseminating them to all tenants and prospective tenants and stating that any finishes, fixtures etc that a prospective tenant was to provide were to be 'in accordance with the Fitout Requirements'. Such a statement was included, for instance, in Mr Sicouri's letter of 18 March 2002 to Mr Mimis (see T31). A further consideration is the simple one that no party other than the Respondent was either legally entitled to ensure uniform compliance with them throughout the Centre or capable, from a practical point of view, of ensuring compliance. 149 Considerations such as these prompted the following observation by us at [84] above, relating to the suggestion that if Mr Mimis had indicated during negotiations for the Lease that he expected the Respondent to ensure compliance with the Restrictions, Mr Sicouri would have replied that Westfield was not prepared to go ahead with the Lease:- The message that such a reply on the Respondent's behalf would convey, put in extreme form, would be that the Height Restrictions for kiosks should be regarded by the tenants of shops as a matter of academic interest only, since the extent, if any, to which the Respondent would enforce them against existing and prospective tenants of kiosks was entirely for the Respondent to decide. 150 In our opinion, the Red Book, by virtue of the features of it that we have just identified, could properly be characterised as a 'code'. In a loose sense, it was analogous to an 'industry code' within the meaning of paragraph (h) of section 62B(3), to the extent that it was prepared and distributed by one participant (the Respondent) as a set of requirements binding the other participants (the tenants) within a defined sector (the Centre) of an 'industry' (retail trade). For reasons that we have just outlined, the Respondent implicitly assumed responsibility for ensuring compliance with these requirements. It was reasonable, in our opinion, for the Applicant to believe that it had done this. 151 Section 62B(3)(h) is evidently not directly applicable to this case. But having regard to the opening words of section 62B(3), there are sufficient parallels between the matters outlined in the preceding paragraph and the components of section 62B(3)(h) to justify treating these matters as relevant to our decision on unconscionable conduct. 152 2. The lack of clarity in the Restrictions regarding the applicability of the maximum height limit to different types of signage. As mentioned above, Mr Fernon's primary submission on this matter was that on the most important question of interpretation of the Restrictions – i.e., whether blade signs and similar structures that were erected 'from the ground up' were 'overhead elements' and therefore not subject to the height limit of 1400 mm – there was no ambiguity at all. Such structures, in his submission, were clearly not 'overhead elements'. 153 The dispute on this question between the parties was usefully crystallised in the letters passing between Mr Roberts and Mr Mimis during 2003 (see T48, T51, A49). In a letter to Mr Mimis dated 28 May 2003, Mr Roberts wrote, with reference to the Boost Juice kiosk:- The issue that you have constantly identified is the height of the menu boards. The section of the fit out guide you refer to, page 40, is specific in reference to the kiosk height to be restricted to 1400mm. This has been complied with strictly. On page 41, the restriction on menu boards only that they 'be kept to a minimum' in quantity. No restriction in height is identified or implied 154 In responding to this letter on 1 December 2003, Mr Mimis wrote:- The point you refer to stating 'overhead elements including menu boards and structure are to be kept to a minimum' is not relevant here as the Boost Kiosk structures that are over 1400mm are not overhead but rather from the ground up. Had they been overhead they would not create the level of visual impairment that they currently do to my tenancy. 155 In the first appeal decision at A149, we described the provisions as 'ambiguous' (as did the Tribunal at T209). We added at A151 that we were 'inclined' to the opinion that the Boost Juice kiosk infringed them. Having revisited the evidence and given further consideration to the question, we now believe, in accordance with Mr Fernon's submission, that the term 'overhead elements', in its natural meaning, should not be taken to include any structure that is erected from the ground merely because it reaches a height above the head of a normal person. While the conflicting interpretation urged by Mr Roberts is not wholly ruled out by the terms of the Restrictions, it is, in our opinion, a distinctly strained and awkward interpretation. 156 We would point out here that the Macquarie Dictionary defines 'overhead', used as an adjective, as 'situated, operating, or passing overhead, aloft, or above'. Merriam-Webster's Online Dictionary and Thesaurus uses the phrase 'operating, lying, or coming from above'. Furthermore, as we recorded at A117, Mr Stevens and Mr Papagiannis acknowledged in cross-examination that a blade sign built from the ground up was distinct from an overhead sign and was indeed 'obviously a part of the kiosk'. In his evidence, Mr Papagiannis acknowledged also that the clause in the lease to Boost Juice Pty Ltd, which restricted the height of the Boost Juice kiosk to 1400 mm 'including any counters, signs, displays, merchandise and equipment installed therein', was in essence 'giving effect to' the Restrictions. 157 As a secondary submission, Mr Fernon maintained that if the Height Restrictions were to be regarded as ambiguous, their ambiguity attracted the operation of paragraphs (c) and (i)(i) of section 62B(3). Mr Angyal's response related only to paragraph (c): it was to the effect that any ambiguity was irrelevant because the Applicant did not rely on the Height Restrictions. 158 We are attracted to Mr Fernon's contention, since it appears from Mr Roberts' letter of 28 May 2003 that Mr Mimis may not have understood the Respondent's position on this particular aspect of the Restrictions until he received that letter. 159 With regard to Mr Angyal's response, we consider it useful here to recapitulate our findings on the matter of reliance by the Applicant on the existence of the 2002 Height Restrictions when deciding to enter into the Lease. We held at A140 that the Applicant had failed to prove that their existence was 'fundamental to' this decision on its part. At A145, however, we said:- 145… this conclusion by us – that there was a lack of evidence to support the proposition that the existence of these Height Restrictions was 'fundamental to' the decision of the Applicant to enter into the Lease – does not mean that during the period of negotiations Mr Mimis paid no attention at all to their presence in the Fitout Requirements… It is entirely possible that the existence of the Height Restrictions and an entirely understandable assumption that the Respondent would insist on compliance with them were factors that the Applicant took into account in deciding to enter into the Lease, without these matters being 'fundamental' in the sense that if they had not been present the Applicant would have decided not to enter into the Lease. 160 On revisiting the matter, we conclude that what we there described as 'entirely possible' should in fact be treated as an inference to be drawn, on the balance of probabilities. 161 3. The Respondent's conduct, after notification by the Applicant of its expectation that the Height Restrictions would be observed, in entering into a five-year lease involving the erection of the Boost Juice kiosk and approving plans that contravened both the Restrictions and this lease. The important evidence on these matters is as follows. 162 The first notification to the Respondent of the Applicant's concerns about contravention of the 2002 Height Restrictions occurred on or about 21 August 2002, in Mr Mimis's letter to Landerer & Company. That letter conveyed the message that Mr Mimis regarded as impermissible 'any… visual impediment to the shop front above 1.4 metres high in front of shops 415 to 417'. The implicit reference to the Height Restrictions was unmistakable. 163 As indicated above at [114], the evidence that was first highlighted for us in the submissions for the second appeal hearing included evidence that between 2002 and 2005 a group of employees of the Respondent called 'the shop opening and design team' had the responsibility of ensuring compliance by incoming tenants with the 2002 Height Restrictions. This group approved the design for the Boost Juice kiosk, including its blade sign reaching a height of about 2.8 metres, even though the lease to Boost Juice Pty Ltd, which had a term of six years, restricted the height of the kiosk 'including any counters, signs, displays, merchandise and equipment installed therein'. 164 The surrender of the lease of the B-Zone kiosk, being a pre-requisite of the grant of a formal lease to Boost Juice Pty Ltd, was not executed until 30 October 2002. At any time until then, being aware of the Applicant's concerns and of the fact that the kiosk, once erected, was likely to remain in place for about six years, the Respondent could have required Boost Juice Pty Ltd to adhere to the express stipulation regarding height contained in its lease. Equally, it could have notified the Applicant that the approved plans involved a contravention of the Height Restrictions as interpreted by Mr Mimis and that the effects of this contravention were likely to endure for about six years. It did neither of these things. 165 Because no member of the 'shop opening and design team' was called as a witness, the reason why the team approved the plans in contradiction of the term in the lease remains unknown. For reasons set out earlier, it cannot be held that any of the employees comprising this team, or indeed any other employee of the Respondent, acted in bad faith vis-à-vis the Applicant in approving the plans or indeed permitting the kiosk to be constructed in accordance with them. Equally, it cannot be assumed that any of these employees knew of the concern expressed by Mr Mimis in his letter to Landerer & Company. But there was undoubtedly a failure on the Respondent's part, for reasons that have not been explained, to enforce the clause contained in the lease of six years' duration to Boost Juice Pty Ltd or to respond in any other way to the specific concern about the height of 'visual impairments' communicated by the Applicant, a neighbouring tenant. This failure occurred even though the clause, according to at least one employee of the Respondent (Mr Papagiannis), was intended to 'give effect to' the Height Restrictions and the interpretation of them put forward by the Applicant accorded with the terms of the clause. 166 In our opinion, the Respondent's conduct in this regard amounted to a breach of a 'code' that it had promulgated amongst tenants and prospective tenants. This 'code' was loosely analogous, for the reasons that we have explained, to an 'industry code' under paragraph (h) of section 62B(3). The Applicant could reasonably expect the Respondent to comply with it. 167 We find also that the Respondent's failure in these circumstances to inform the Applicant of its approval of the plans for the Boost Juice kiosk fell within the terms of paragraph (i)(i) of section 62B(3). It amounted to unreasonable failure by a lessor to make a disclosure to the lessee of intended conduct by it that might affect the interests of the lessee. 168 In so finding, we reject Mr Angyal's arguments to the following effect: (a) importantly, there was no evidence to show that as at 5 April 2002, being the date on which the parties agreed on the 'commercial terms' of the Lease and therefore the date after which the Applicant could not adapt the terms of the Lease to protect itself from the intended conduct, the Respondent intended to approve the construction of this or any other kiosk; (b) because the B-Zone kiosk also infringed these Restrictions, it would not have been unreasonable for the Respondent to fail to disclose any intention to approve the future construction of kiosks that also infringed them; and (c) It was not put to any witness called by the Respondent that any such failure was unreasonable. 169 Our separate reasons for rejecting these three arguments are these: (a) if the Applicant had been told about the approval of the plans for the Boost Juice kiosk before the kiosk was actually erected, it could have explained to the Respondent why it believed the approval to be in contravention of its legitimate expectations arising out of the Height Restrictions and possibly succeeded in inducing the Respondent to insist on compliance by Boost Juice Pty Ltd with the clause in the (at this stage) unexecuted lease; (b) the Respondent's failure to disclose was unreasonable despite the prior existence of the B-Zone kiosk because this kiosk interfered with sightlines to the Premises in a different way and (as found by the Tribunal at T222(b)) to a lesser degree than the Boost Juice kiosk; (c) the question whether the Respondent's failure to disclose was 'reasonable' is an objective question to be determined by the Tribunal, without any necessity for it to be put to any witness called by the Respondent. 170 4. The Respondent's response, during May 2003, to the Applicant's claims that the Boost Juice kiosk contravened the Restrictions. This response was summarised in Mr Roberts' letter of 28 May 2003 (reproduced at A49), maintaining that in the 2002 Height Restrictions no restriction on the height of menu boards was 'identified or implied' and that therefore 'no further issue' existed. He was referring expressly to the menu boards on the Boost Juice kiosk, which were erected 'from the ground up', not suspended from the ceiling. 171 In our judgment, the Respondent was well placed to insist that this interpretation of the Restrictions should govern its dealings with the Applicant because at this stage it was in a distinctly stronger bargaining position than the Applicant, within the meaning of paragraph (a) of section 62B(3). 172 We have reached this conclusion even though we agree with Mr Angyal's characterisation of Mr Mimis as an experienced businessman and retailer and, potentially, as a 'force to be reckoned with'. We agree also that, as Mr Angyal submitted, Mr Mimis might well have been able for this reason to insist that a clause obliging the Respondent to adhere to the Restrictions (as interpreted by him) when negotiating with prospective tenants of kiosks should be inserted into the Lease. 173 At the time of Mr Roberts' letter, however, the Applicant had entered into the Lease and committed itself to occupying the Premises and paying rent until July or August 2007. Its attempts to insert a clause into the Lease providing for reduction of the rent during any period when the Restrictions, according to its interpretation, were contravened by a kiosk near its shop had been rebuffed. Taking into account also the very great disparity in the size and resources of the respective enterprises owned and conducted by the parties, we consider that any significant bargaining power that the Applicant possessed while negotiating the terms of the Lease had dissipated by May 2003. Mr Roberts, on behalf of the Respondent, was in a position to put forward its interpretation of the Restrictions and add that he trusted that 'this clarifies matters', with the reasonable expectation that any comeback on the Applicant's part would most probably be confined to seeking to negotiate further on the matter. 174 5. The Respondent's approval of the construction of the Telechoice kiosk, in contravention of the 2002 Height Restrictions. This occurred at some point between late March and the end of May 2003. The evidence as to the dimensions of the kiosk included Ms Mimis-Weeks's testimony. While we acknowledge the strength of Mr Angyal's submission that it would be unsafe to rely on this testimony alone as the basis for a finding that the height of the blade sign on it exceeded 1400 mm, this testimony was corroborated by an expert witness (Mr Terrill) whom the Respondent called. We make a finding to this effect, it being a matter on which the Tribunal made no finding. 175 At the time of approval of the plans for this kiosk, the Respondent had been aware for at least seven months of the Applicant's objections to the erection of kiosks contravening the Restrictions near their shop. The lease relating to the kiosk had a term of five years. 176 We make the same findings about the approval of the plans for this kiosk as we did with regard to the Boost Juice kiosk. The Respondent's conduct amounted to a breach of a 'code' that it had promulgated. This 'code' was loosely analogous to an 'industry code' under paragraph (h) of section 62B(3), with which the Applicant could reasonably expect the Respondent to comply. In addition, the Respondent's failure in these circumstances to inform the Applicant of its approval of the plans fell within the terms of paragraph (i)(i) of section 62B(3). 177 6. The Respondent's conduct, in or about January 2005, in (a) issuing the 2005 Height Restrictions and (b) approving the construction of the Love Salad kiosk, in contravention of the 2002 Height Restrictions. The principal evidence as to the dimensions of the kiosk was given by Ms Mimis-Weeks. We acknowledge again the strength of Mr Angyal's submission that it would be unsafe to rely on this testimony alone as the basis for a finding that the height of the blade sign on the kiosk exceeded 1400 mm. But contrary to his equivalent submission relating to the Telechoice kiosk, her evidence as to the height of that kiosk was corroborated. Furthermore, our own consideration of contemporaneous photographs of the Love Salad kiosk that were attached to a copy of an email dated 31 August 2005 from Ms Preston to Ms Mimis-Weeks – this being evidence tendered by the Respondent – suggests strongly that the blade sign reached a height exceeding 1400 mm. We make a finding to this effect, it being again a matter on which the Tribunal made no finding. 178 The lease relating to the Love Salad kiosk had a term of about five years. 179 We make broadly the same findings about the approval of the plans for the Love Salad kiosk as we did with regard to the Boost Juice kiosk. The Respondent's conduct amounted to a breach of a 'code' – the 2002 Height Restrictions – that it had previously promulgated. This 'code' was loosely analogous to an 'industry code' under paragraph (h) of section 62B(3), with which the Applicant could reasonably expect the Respondent to comply. If, as may well have been the case, it issued the 2005 Height Restrictions, with which the kiosk was compliant, shortly before granting approval to the plans, this was insufficient to relieve it of its obligation to take account of the expectations of existing tenants of shops (such as the Applicant) that the earlier Restrictions would in this particular instance be observed. In addition, the Respondent's failure in these circumstances to inform the Applicant of its approval of the plans fell within the terms of paragraph (i)(i) of section 62B(3). 180 We do not go so far as to characterise the Respondent's establishment of a new set of provisions analogous to an 'industry code' (the 2005 Height Restrictions) as constituting without more a breach of the existing provisions that we have held to be analogous to such a 'code' (the 2002 Restrictions). This would unduly restrict the Respondent's freedom to alter, from time to time, its own rules governing the dimensions of kiosks. 181 7. The Respondent's assertion that it could not require removal of the three kiosks because it had granted long leases in relation to each of them. The competing submissions of the parties on this matter are outlined above at [122] and [142](e). We do not think that the mere fact that the Respondent placed reliance on this assertion when seeking to defend the Applicant's claim under section 34 of the RL Act has any material significance in the present context. The implications, so far as the Applicant's unconscionable conduct claim is concerned, of the fact that the leases granted to the three tenants of kiosks were of long duration have been taken into account in the preceding discussion. 182 8. The Respondent's assertion that the substitution of the 2005 Height Restrictions for those of 2002 provided legitimate grounds for its rejection of the Applicant's complaints about the three kiosks. In the first appeal decision at A127 to A129, we outlined as follows the evidence of chief significance on this matter:- 127 Mr Papagiannis similarly denied that there was any contravention [of the 2002 Height Restrictions by the Boost Juice kiosk], while also acknowledging that the 2005 Height Restrictions, permitting the construction of signage up to 2.6 metres high, had represented a 'fundamental change in the policy of Westfield in relation to the construction of kiosks'… 128… Mr Stevens acknowledged that the Boost Juice kiosk did contravene the clause in the Boost Juice lease permitting a maximum height of 1.4 metres... He added that the apparent contradiction between this clause and the provision in the 2005 Restrictions permitting a higher maximum was open to the following explanation:- The lease is a contract struck at a point of time; and the guidelines are reviewed and upgraded as necessary during the course of that period. 129 At another point in his cross-examination… Mr Stevens stated that during 2005, he regarded the construction of the Boost Juice kiosk as permissible because he assessed it as against the 2005 Restrictions, not those of 2002… 183 As Mr Fernon pointed out at the second appeal hearing, Mr Stevens also testified that at the meeting on which 26 July 2005 at which Ms Mimis-Weeks was present, he did not regard her complaints about the obstruction to sightlines caused by the Boost Juice kiosk as relating to 'an issue of notable concern' and for this reason did not make a file note or other record of the meeting. 184 These aspects of the evidence were not specifically addressed in Mr Angyal's submissions. 185 In essence, the Respondent's position here, as stated by two witnesses whom it employed in managerial positions, was that after having amended the 2002 Height Restrictions to the extent of implementing a 'fundamental change' of policy in relation to kiosks, it considered itself to be entitled to reject any complaint that any existing tenant of a shop conveyed to it about any kiosk (existing or soon to be constructed) on the ground that the superseded Restrictions were much more focused on achieving the aim, described in them as 'essential', of 'maintaining sightlines through all kiosks'. 186 In our opinion, the adoption of this position by the Respondent, having regard to the prior history of its dealings with the Applicant with regard to sightlines and the 2002 Height Restrictions, can properly be characterised as 'unfair tactics', within the meaning of paragraph (d) of section 62B(3) of the RL Act. 187 Contrary to a submission by Mr Angyal, we believe that we can make a finding of this nature even though it was not put to any of the two relevant employees of the Respondent that they, or indeed the Respondent itself, had engaged in 'unfair tactics'. The tactics that we find to have been unfair were those of the Respondent, a corporate body, not of any individual employee or agent of the Respondent. The opinion of any relevant employee or agent as to whether or not any aspect of his or her conduct on behalf of the Respondent was 'unfair' is not relevant to our determination on the matter. 188 We are of the opinion also that in January 2005, the Respondent, for reasons given above in the course of discussing Mr Roberts' letter of 28 May 2003 to Mr Mimis, was in a distinctly stronger bargaining position than the Applicant, within the meaning of paragraph (a) of section 62B(3). 189 9. The Respondent's apparent failure, until July 2005 at the earliest, to provide rental or other financial assistance to the Applicant, in spite of having received complaints about the obstruction of sightlines from the Applicant between August 2002 and June 2004. This aspect of the case provides an appropriate context for discussion of an important component of the Respondent's argument in the appeal. 190 As indicated above, Mr Angyal placed significant emphasis on evidence showing that Mr Mimis and Ms Mimis-Weeks, when complaining to the Respondent about contravention of the 2002 Height Restrictions, regularly sought a reduction of the rent for the Premises, without being prepared also to consent to downsizing of the Applicant's shop. Mr Angyal argued that this evidence showed their real motivation to be their concern that their sales were insufficient to support payment of the rent, not any genuine concern about contraventions of the Restrictions. 191 We do not think, however, that this inference should be drawn. In our view and, as far as we can discern, the view of the Tribunal, the evidence provides no basis for a finding that Mr Mimis or Ms Mimis-Weeks did not genuinely believe (a) that relatively uninterrupted sightlines from the car park entrance to the Premises were of great importance for the Applicant's business and (b) that the obstruction of these sightlines by kiosks contravening the 2002 Height Restrictions (on their interpretation) would and did affect their business adversely. The most predictable and, indeed, the simplest form of relief for them to seek from the Respondent in bringing forward their complaints about these contraventions was a reduction of the rent. This would operate on a continuing basis, unlike any one-off payment of compensation. In addition, the amount of rent payable by the Applicant could be adjusted to meet any change in the configuration of kiosks near the Premises. 192 On the other hand, the evidence of rejection by Mr Mimis (on 27 November 2002) and by Ms Mimis-Weeks (on 23 August 2005) of offers to permit the Applicant to relocate its principal signage to a position above Shop 415 prompts us to add an important gloss to what we have just set out (in abbreviated form) as the last of the nine matters on which the Applicant's unconscionable conduct claim might based. These offers to permit relocation of the signage were not offers of financial assistance, but the assistance offered was significant nonetheless. 193 In our opinion, the Applicant's rejection of the first of these offers, on the ground that it would have to pay the amount required for the relocation of the signage, was not commercially wise. In so characterising it, we take into account the evidence (including that provided by our own inspection of Level 4 of the Centre) showing that the sightlines from the car park entrance to the proposed new location for the signage would then have been substantially free of obstruction and the Applicant's persistent claim that the obstruction of its principal signage, located above Shops 415 and 416, was causing it to lose a substantial quantity of business. But within the preceding few months the Applicant had spent a considerable sum fitting out its enlarged premises and installing new signage. It could hardly be blamed for insisting that if relocation of the signage was now required because of the Respondent's contravention of its own Fitout Requirements, the Respondent should be prepared to meet the expense. 194 The Applicant, however, did not put forward any ground for rejecting the second offer, other than to allege that 'stickers' were proposed. But the Tribunal did not find this allegation to be credible. 195 Accordingly, we would now withdraw our observation, at A155, criticising the Tribunal's ruling (at T211 and T233) that the failure of the parties' negotiations about the kiosks was 'attributable to fault on both sides'. This was indeed the case. 196 This qualification to our earlier view regarding the parties' responsibility for the breakdown of negotiations does not affect the consideration of prime importance: namely, that up to July 2005, at the earliest, the Respondent did not offer any rental or other financial assistance to the Applicant, in spite of having received complaints from it about the obstruction of sightlines between August 2002 and June 2004. 197 In this regard, once again, the Respondent's actions demonstrated that it was in a distinctly stronger bargaining position than the Applicant, within the meaning of paragraph (a) of section 62B(3). 198 Further submissions by the parties. Before stating our overall conclusions on the Applicant's unconscionable conduct claim, we shall deal briefly with some further points raised by counsel on each side. 199 Mr Fernon relied on the significant extent to which (in his submission) the Applicant's trade suffered by virtue of the contraventions of the 2002 Height Restrictions that the Respondent authorised. For reasons set out below, however, we consider that the impact of these contraventions was distinctly less than the Applicant alleged. The scale of the financial damage sustained by the Applicant is not, therefore, a major factor supporting the claim that the Respondent's conduct should be characterised unconscionable. 200 Mr Fernon referred also to the 'aggressive' retailing practices in which the Boost Juice kiosk engaged. We agree with Mr Angyal, however, that the evidence relating to these practices, which was adduced and given consideration by the Tribunal in the specific context of the Applicant's claim under section 34 of the RL Act, cannot be treated as relevant to its unconscionable conduct claim. 201 Mr Angyal relied on evidence, outlined above at [130](k) and (l), that during 2006 the Respondent made, but the Applicant rejected, offers to settle the parties' dispute that were distinctly advantageous to the Applicant. This evidence is not directly relevant to the unconscionable conduct claim because, as formulated by the Applicant for the purposes of the second appeal hearing, it is based only on conduct of the Respondent occurring between February 2002 and July 2005. At most, this evidence casts indirect, and not particularly helpful, light on the state of the parties' relationships with each other following Ms Mimis-Weeks' assumption of control over the Applicant in 2004. 202 Mr Angyal also relied on various items of evidence (coupled in some instances with findings made by the Tribunal) that showed, in his submission, that Ms Mimis-Weeks had acted illegally or dishonestly in certain ways. All of this alleged conduct on her part occurred, however, during or after October 2006. Accordingly, it can only be considered relevant to the Applicant's unconscionable conduct claim to the limited extent that we have just outlined. In forming this view we have taken account of paragraph (k) of section 62B(3), which designates 'the extent to which… the lessee acted in good faith' as one of the matters that may be taken into account in deciding whether a lessor has engaged in unconscionable conduct. 203 Our overall conclusions. In the course of our investigation of the nine listed matters on which Mr Fernon, drawing upon paragraph A299 of the first appeal decision, sought to base the Applicant's unconscionable conduct claim, we have found that in all but one of them, one or more of the indicia of unconscionable conduct by a lessor set out in section 62B(3) of the RL Act can be discerned. It is only in relation to the seventh matter in the list that we made no such finding. 204 As Mr Angyal correctly submitted, however, the conduct of a lessor is not established as unconscionable under the Act merely because one or more of these indicia are 'enlivened'. An additional criterion must also be satisfied. The conduct in question must also be shown to involve a 'high degree of moral obloquy' and to be 'highly unethical' (to quote from the judgment of Spigelman CJ in Attorney General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261; 63 NSWLR 557 at [121]), or at least to involve 'some degree of moral tainting… that permits the opprobrium of unconscionability to characterise [it]' (to adopt the terminology of Allsop P in Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell [2011] NSWCA 389 at [293]). An associated observation (in the same paragraph) by Allsop P about Spigelman CJ's use of the phrase 'a high degree of moral obloquy' may be noted: 'Whether that is too stringent and whether "significant" or "real" may be preferable need not be decided.' 205 We agree with Mr Fernon's submission that the conduct of the Respondent, a corporation, must be the focus of investigation, rather than the conduct of any individual employee or employees of the Respondent. It follows, as we have indicated above, that the Respondent may be found to have used 'unfair' tactics (within the context of section 62B(3)(d)), or to have acted 'unreasonably' (within section 62B(3)(i)(i)), even though no finding of unfairness or unreasonableness is made against one or more of its employees. 206 In addition, we reject a broad submission by Mr Angyal to the effect that unless a finding of bad faith is made against a lessor, or the relevant employee of a corporate lessor, there can be no finding of unconscionable conduct against the lessor. He was not able to cite to us any statement to this effect by a court or a tribunal. This proposition appears to us to be at odds with the status of paragraph (k) of section 62B(3) – referring to 'the extent to which the lessor and the lessee acted in good faith' – as only one of the indicia of unconscionable conduct. We have not in fact made a finding of lack of good faith against the Respondent, let alone against any of its employees. 207 Nevertheless, we have reached the conclusion, having regard to the foregoing matters, that between February 2002 and July 2005 various aspects of the conduct of the Respondent with regard to the 2002 Height Restrictions were unconscionable vis-à-vis the Applicant. The Respondent, through a number of its employees, engaged in a course of conduct whereby, after disseminating these Restrictions as part of a 'code' for the Centre, it made use of its superior bargaining power to block any attempt by the Applicant to obtain acknowledgement of their true impact, approved without notification to the Applicant the erection of three kiosks infringing them, sought to justify each approval by subsequently amending the Restrictions in a radical manner and refused to grant any continuing rent relief on account of the impact of the three kiosks on the Applicant's business. On these grounds, the Respondent's behaviour, in our judgment, was 'highly unethical' and had a sufficient 'degree of moral tainting' to permit 'the opprobrium of unconscionability to characterise it'. 208 For reasons that we will now explain, our conclusion regarding the impact of this conduct on the Applicant's business is that it was a good deal less serious than the Applicant alleged. But this is not enough of itself to undermine our conclusion that the Respondent acted unconscionably. Causation 209 Subsections (8) and (9) of the RL Act state:- (8) A lessor or lessee, or former lessor or lessee, who suffers loss or damage by reason of unconscionable conduct of another person that is in contravention of this section may recover the amount of the loss or damage by lodging a claim against the other person under section 71A. (9) If the matter of such loss or damage arises in connection with a matter the subject of proceedings in the Tribunal, the Tribunal may proceed to decide it, and in so doing may award such sum as it thinks fit. 210 Section 72AA(1) states that in an unconscionable conduct claim the Tribunal may make 'any one or more of the following orders that it considers appropriate':- (a) an order that a party to the proceedings pay money to a person specified in the order, whether by way of debt, damages or restitution, or refund any money paid by a specified person, (b) an order that a specified amount of money is not due or owing by a party to the proceedings to a specified person, or that a party to the proceedings is not entitled to a refund of any money paid to another party to the proceedings. 211 At T19, the Tribunal outlined as follows the contents of a 'Summary of Applicant's Claim for Damages and Relief Sought' that the Applicant filed on or about 10 February 2010:- (a) It does not press its claim under s10 of the RLA (for $400,000 for refurbishing the expanded Surf City premises); (b) In respect of the s34 claim (and, I gather, the quiet enjoyment claim) it claims lost gross profit result from lost sales, which profit exceeds the Tribunal's jurisdiction, so the Applicant seeks $400,000; (c) Under the alteration of lease claim, the Applicant claims 10% of rent paid from 10 August 2002 to 28 February 2007. The total rent paid was $2,187,779.90 so the claim is $218,777.99, with interest. (d) For the unconscionable conduct claim the Applicant seeks: (i) The lost value of its business entitlements to brands addressed at $250,000; (ii) The value of rent and outgoings paid from 1 September 2006 to 28 February 2007; being $53,049.88 x 6 = $388,299.28. (iii) $400,000, as the total of these damages exceeds that figure. (iv) An order by way of defence to the claim by the Respondent, that no rent on other amounts are payable pursuant to the lease as sought by the Respondent. 212 As already explained, the claim described in paragraph (a) was withdrawn and the claims in paragraphs (b) and (c) were unsuccessful. 213 In his written submissions relating to the second appeal hearing, Mr Fernon, having drawn attention to this passage in the Tribunal's decision, set out in the following terms a revised summary of heads of damage relating to the Applicant's 'narrower unconscionable conduct claim':- (a) The lost gross profits from lost trade… which exceed $400,000; and/or (b) The lost value of its business at $250,000 or alternatively $100,000. 214 Mr Fernon maintained in addition that because the Respondent's unconscionable conduct made it impossible for the Applicant to pay the rent due under the Lease, the Respondent's claim for unpaid rent should be dismissed. 215 In his written submissions relating to the second appeal hearing, Mr Angyal argued that the only kinds of loss with respect to which the Applicant might be granted monetary relief under its unconscionable conduct claim should be those defined in subparagraphs (i) to (iv) of paragraph (d) of the Applicant's 'Summary'. He added that it would be 'grossly unfair to the Respondent for the Applicant to be permitted, in its submissions in an appeal, to recast its damages claim'. He maintained also that because the Applicant did not appeal against the Tribunal's decision upholding the Respondent's claim for unpaid rent, the Applicant could not now assert that this claim should be 'dismissed'. He also maintained, however, that the proper approach to assessing the quantum of any relief available to the Applicant would be to ascertain 'the pecuniary impact (if any) on the Applicant's business' of any conduct found to be unconscionable. 216 We do not accept Mr Angyal's argument in so far as it would debar the Applicant from seeking to recover damages for the Respondent's unconscionable conduct assessed by reference to the profits that it lost by virtue of any diminution of its trade caused by this conduct. Our reasons are as follows: (a) the Respondent was required to meet a claim, and indeed successfully opposed, a claim under section 34 for damages assessed in this manner; (b) a significant component of the Respondent's evidence relating to damages, including the affidavit of Mr Bell admitted at the second appeal hearing, was addressed to the matter of the Applicant's alleged loss of profits; and (c) the Respondent acknowledged that any damages awarded to the Applicant should be by way of compensation for the 'pecuniary impact (if any)' of its conduct. 217 Mr Angyal submitted that because no appeal was lodged against the Tribunal's order upholding the Respondent's claim for unpaid rent, an order simply 'dismissing' this claim was not open to us. We observe here, however, that as noted above at [14], the Applicant's Notice of Appeal did include an appeal against this order of the Tribunal. 218 A strongly contested question, both at first instance and on the appeal, was whether the Applicant had established any causal link at all between the relevant conduct of the Respondent and economic harm such as the Applicant claimed to have sustained. 219 In a passage at T242, which we reproduced at A314, the Tribunal held that the Applicant had failed in this regard. It said:- Given that all the Applicant's claims have failed, I do not assess as an appropriate exercise, to seek to unravel the evidence as to quantum, particularly concerning any lost profits by the Applicant and the value of the Surf City business. Nevertheless, I do find that the Applicant has not proved any causal link between conduct by the Respondent and any loss or damage suffered by the Applicant… 220 At A316 to A318, we expressed the opinion that the Tribunal's treatment of the question of causation, and also of assessment of damages, was 'brief' because 'its overall decision was against the Applicant', and we gave leave for these questions to be revisited at the second appeal hearing. 221 Having reviewed the evidence and argument relating to the question of causation, considered in isolation, we have concluded that we must respectfully differ from the Tribunal. In our opinion, the 'correct and preferable decision' on this specific question (which we must seek to determine, pursuant to section 115 of the ADT Act) is that, on the balance of probabilities, the conduct of the Respondent that we have held to be unconscionable did cause the Applicant to sustain some measure of economic loss through making the signage at the front of the Premises less visible to potential customers approaching from the car park entrance and thereby reducing to some extent the amount of the Applicant's gross takings. 222 In his written submissions relating to the second appeal hearing, Mr Angyal argued that in assessing the financial consequences (if any) for the Applicant of the Respondent's unconscionable conduct, the amount to be ascertained should be the difference between:- (a) The pecuniary impact (if any) on the Applicant's business of the obstruction to sight lines (if any) caused by the blade sign on the Boost Juice kiosk; and (b) The pecuniary impact (if any) on the Applicant's business of the obstruction to sight lines (if any) that would have been caused by a hypothetical suspended sign or signs above the Boost Juice kiosk. 223 We agree with this formulation in so far as it maintains that it would be incorrect for us to compare the pecuniary impact of any interference with sightlines caused by the presence of one or more structures contravening the 2002 Height Restrictions with the situation that would have obtained if there hade been no structures whatsoever interfering with these sightlines. Our reasons are that these Restrictions did permit the erection of 'overhead' signs, which at least had the potential to interfere with sightlines, and that at the commencement of the Lease there were signs of this type above the then-existing B-Zone kiosk. 224 In our opinion, it would in fact be appropriate to treat the interference (if any) caused by the sign above the B-Zone kiosk as the starting-point for the relevant comparison. When entering into the Lease, the Applicant must be taken to have accepted the consequences of any interference to sightlines caused by this kiosk. To invoke instead, as Mr Angyal's formulation sought to do, a concept such as 'a hypothetical suspended sign or signs' would be both impractical and at odds with the true situation between the parties. 225 A further significant amendment to be made to this formulation is that in addition to the blade sign that formed part of the Boost Juice kiosk, the components of the Telechoice and the Love Salad kiosks that infringed the 2002 Height Restrictions must be taken into account. 226 For these reasons, the question of causation (as distinct from quantification of damages) may be answered by determining whether, on the balance of probabilities, there was any material difference at all, adverse to the Applicant, between: (a) The pecuniary impact (if any) on its business of the obstruction to sight lines (if any) caused by the blade sign on the Boost Juice kiosk and the components of the Telechoice and Love Salad kiosks that infringed the 2002 Height Restrictions; and (b) The pecuniary impact (if any) on its business of the obstruction to sight lines (if any) that was caused by the sign suspended above the B-Zone kiosk. 227 In our opinion, this question must be answered in the affirmative, for the following reasons. 228 First, three witnesses called by the Respondent – Mr Stephens, Mr Terrill and Ms Radosevic – made statements in their evidence that, considered in conjunction, provide significant support for this view. 229 During cross-examination (see Transcript, 16.9.09, p 11, line 18 to p 12, line 8), Mr Stevens acknowledged that sightlines towards a shop were important because they encouraged customers to go into the shop and that Shop 417, by virtue of its position on level 4, had better sightlines than many other shops. The following exchange then ensued:- Q. And it follows, does it not, Mr Stevens, that if any action was taken that would detrimentally affect those sightlines that would also detrimentally affect the flow of customers to the store, correct? A. It may well do. Q. And that in fact is something that is well recognised by Westfield in its own guidelines, is it not? A. It is. 230 In his affidavit, Mr Terrill included 'loss of visibility', along with 'congestion during peak times, noise and the unsuitability of a food kiosk' in a list of factors that 'could contribute materially to loss of prime time sales essential to maintain sufficient sales to cover high occupancy and business running costs'. In cross-examination (Transcript, 21.5.09, p 41, lines 1 to 11), he assented to the proposition that 'a reduction in sight lines to a shop can have a detrimental effect to the trading performance of the business in the shop', though he qualified this response by saying that it would depend on whether the relevant obstruction to sightlines occurred at 'the key point of vision or focus' on the shop. 231 With reference to photographs taken during 2005 and 2006, Ms Radosevic expressed the following significant opinions during cross-examination (see T169 and A64):- (a) One of the November 2006 photos, taken in front of the Telechoice kiosk at the south eastern end looking north and showing the Optus blade sign presented "considerably worse" sightlines (to Surf City) than a photo of the B-Zone kiosk, included in the material attached to her report, taken near the south eastern corner and looking generally north; (b) One of the August 2005 photos taken a few metres south of the Love Salad kiosk, roughly in line with the walk-through line which she had sought to simulate in her Rivet exercise "substantially inhibits the sightlines towards the Surf City store in that position"; (c) In one of the August 2005 photographs taken close to the south western corner of the Love Salad kiosk looking north, "the Boost Juice sign on the left hand side provides a substantial impediment... to the Surf City sign"… 232 This testimony by Ms Radosevic, it should be noted, expressly took into account the interference with sightlines that was caused by the B-Zone kiosk. 233 Secondly, the evidence of the Applicant's expert witness, Mr Standley, included the statement (see T175 and A62) that 'the material interference with the visibility of shops 415 to 417 would interfere with the ability of the Lessee to maximise or deliver sales'. 234 Thirdly, we refer to the memorandum sent by Mr Mimis to Mr Roberts on 12 November 2002 (reproduced at T44 and A39). In that memorandum, Mr Mimis asserted that he could not afford to have the Applicant's trade impeded by kiosks near the Premises (including the newly constructed Boost Juice kiosk) unless the 'premium rent' that it currently paid was 'addressed'. He also acknowledged that the recent demolition of the B-Zone kiosk had led to a 'significant increase' in sales. Mr Angyal relied on these statements in support of a submission (which we have rejected) that Mr Mimis's 'real motivation' in complaining about sightlines was his concern that the Applicant would not be able to afford the increased rent payable under the Lease. An aspect of this memorandum, which Mr Angyal did not query, was however its claim that the removal of the B-Zone kiosk, with the consequence that sightlines from the car park to the Premises were improved, had the effect of improving the Applicant's sales as well. 235 Finally, we would maintain that it is counter-intuitive to suggest, having regard particularly to all the expert and non-expert evidence given on this topic in the present proceedings, that the presence of structures that interfere to any material extent with sightlines along a much-used walkway towards a shop in a retail shopping centre will have no impact whatsoever on the flow of customers to the shop, and will therefore have no impact whatsoever on the sales achieved in the shop. To accept a proposition in these terms would fly in the face of what we may fairly describe as 'conventional wisdom'. Assessment of damages 236 We have found the resolution of this matter to be the most difficult of all the tasks that have confronted us in this case. The evidence on quantification of damages put before the Tribunal and before us was detailed and voluminous. It chiefly comprised financial statements relating to the Applicant's business, both in the Premises and in a neighbouring shop in which it traded until July 2004. By contrast, the submissions (compared with those advanced on the issues relating to liability) were comparatively brief. We are bound to state that in determining an amount to be awarded to the Applicant we did not derive a great deal of assistance from this material. 237 We have decided since the second hearing of the appeal that a methodology for assessing damages that did not receive any significant attention in the evidence or the submissions should be adopted. 238 It would of course have been preferable for us to hear submissions about the appropriateness of this methodology. But since the parties have had the opportunity to address the question of assessment of damages on three separate occasions – once before the Tribunal at first instance and twice during the appeal – we do not think that the disposition of these excessively lengthy proceedings should be further delayed by any further hearing or by the receipt of further written submissions. An additional reason for this conclusion is that, as will become apparent, the approach that we are adopting focuses on a topic that featured prominently in the parties' negotiations during in the Lease and in the proceedings themselves – namely, the Applicant's claim for abatement of the rent payable under the Lease. 239 As indicated above, the Applicant claimed in the second appeal hearing that its loss should be assessed by reference to the following categories: (a) the lost gross profits from the loss of trade caused by the Respondent's unconscionable conduct; (b) the lost value of its business; and (c) the amount of the unpaid rent for which it had been held liable to the Respondent. 240 We accept that damages within the first of these categories would prima facie be appropriate under section 62B(8) of the RL Act. To award such damages would accord with Mr Angyal's proposition, involving a comparison of the 'pecuniary impacts' on the Applicant's business of two different configurations of kiosks near the Premises. It would also accord with our revised version of this proposition. 241 For three reasons in particular, however, we believe that the evidence relating to the Applicant's financial performance at the Premises since the commencement of the Lease fell significantly short of what was needed to quantify any loss of profits caused by the Respondent's unconscionable conduct. This evidence did not establish either (i) that the diminution in these profits during the Applicant's occupation of the Premises was wholly attributable to this conduct of the Respondent (as Mr Fernon argued) or (ii) that this conduct had no impact at all on the Applicant's profits (as Mr Angyal argued) or (iii) most importantly, what proportion of the decline in profitability should be held attributable to this conduct. 242 In explaining the first of our three reasons for this conclusion, it is useful to begin by quoting comments that we made in the first appeal decision (at [208] and [209]) regarding the Applicant's comparative sales figures for each quarter between January 2001 and June 2007:- 208 Relevantly, these figures showed increases in gross takings for most quarters, compared with the equivalent quarter in the preceding year, during the period between 1 July 2002 and 30 June 2004. An explanation for this, on which the expert witnesses agreed, was the increase, in July 2002, in the size of the Applicant's trading premises, due to the addition of Shop 417. But the turnover in virtually every quarter thereafter – that is, between 1 July 2004 and 30 June 2007 – was distinctly less, and sometimes very much less, than the turnover for the equivalent quarter of the preceding year. 209 This decline in sales may be sufficiently illustrated by saying that the total sales figures for the fiscal years 2002-03, 2003-04 and 2004-05 were respectively $2,268,737, $2,245,972 and $1,529,752. The amount by which the sales figures decreased in 2004-05 was accordingly $716,220, representing 32% of the figure achieved in 2003-04. 243 At [257], we commented further as follows:- 257… These [sales figures] show that the decline in the Applicant's takings which [Mr Fernon] claimed to be of great importance did not commence until the third quarter of 2004, more than 18 months after the Boost Juice kiosk was erected. On the basis of these figures, the erection of this kiosk alone would appear not to have had a significantly detrimental effect on the Applicant's trade. Instead, the downward trend in its sales did not commence until more than a year after installation of the Telechoice kiosk in May 2003. This trend became more pronounced after the installation of the Love Salad kiosk in February 2005. 244 In paragraph 7 of an affidavit sworn for the purposes of the second appeal hearing, Mr Bell, who was one of the Respondent's expert witnesses, observed that what we called the commencement of 'the downward trend' in the Applicant's sales did not occur immediately after, or even within the period of a few months after, the erection of any of the three kiosks. He stated:- 7.16 My analysis… shows that there was no apparent detriment to sales following the opening of the Boost Juice and Telechoice Kiosks… 7.18 I refer to the decline in sales in the September 2004 and December 2004 quarters [i.e. the third and fourth quarters of 2004] and note that this decline began: 7.18.1 Approximately 20 months after the opening of the Boost Juice kiosk and 12 months after the opening of the Telechoice kiosk; and 7.18.2 Approximately 7 months prior to the opening of the Love Salad kiosk (which opened February 2005). 245 These specific passages in Mr Bell's affidavit were not challenged during cross-examination at the second appeal hearing. 246 What this material indicates is that the Applicant's assertion of a substantial overall decline in the profitability of its business on account of the erection of the kiosks is not backed up at all by financial data showing that the erection of any of them had an immediate, or briefly delayed, negative impact on its turnover. There appears to have been no correlation in time between the erection of a kiosk and a decline in turnover. 247 Our second reason is a matter mentioned in the Tribunal's decision and at a few places in the evidence. It is that in or about April 2004, approximately three months before the commencement of the major decline in the Applicant's sales, the Applicant ceased selling two prominent brands of surf wear, namely Billabong and Mambo. 248 The Tribunal, having mentioned this occurrence at T50, referred to it again at T242 as a 'suggested' cause of the failure of the Applicant's business, but expressly refrained from expressing an opinion about this suggestion. 249 In his affidavit, Mr Bell stated (at para 7.17) that 'importantly' the commencement of the major decline in the Applicant's sales 'coincides with' its 'apparent cessation of purchases of Billabong and Mabo brands of surf wear from around April 2004'. In cross-examination, however, he acknowledged that he did not have any experience in the operation of businesses in the surf industry or 'any particular experience of a brand affecting a store in sales' (Transcript, 21 June 2012, p 9, lines 45-46). 250 Further significant testimony on this question was given by the Applicant's expert witness, Mr Standley. As summarised at T177, his answers to questions from non-judicial members at the Tribunal hearing included the following two propositions:- … (c) The loss by a shop of the right to sell a particular brand in a shopping centre would have a significant effect on the shop. (d) His reference to "high fashion" in relation to the business of Surf City had been made in the sense "… the term high fashion in surfwear would denote the key brands…" and "… a business such as Surf City is very, very brand dependent…" 251 In contesting the proposition that the loss of these two brands caused the decline in the Applicant's business, Mr Fernon pointed to a statement by Mr Terrill in cross-examination (Transcript 21.5.09, p 52, lines 18-19) to the effect that the loss of a brand such as Billabong 'could be picked up with the other brands'. Mr Fernon relied also on the fact that although the Applicant had lost the Billabong brand a potential buyer (Mr Gunn) appeared in October 2006 to be willing to pay $250,000 for the business. 252 Undoubtedly, the evidence as to the likely impact of the loss of these two brands on the Applicant's trade is far from conclusive. But it is significant that the Applicant's own expert witness, Mr Standley, described its business as 'very, very brand dependent'. The possibility that this event in April 2004 was a contributing cause of some significance to the pronounced decline in turnover commencing in or about July 2004 cannot be discounted. 253 Our third reason is that the Applicant provided nothing in the way of evidence or argument to assist us in evaluating the possible impact on the Applicant's business of some external factors to which we drew attention in the first appeal decision at A324. In that paragraph, we wrote:- 324 Furthermore, in its submissions to us so far, the Applicant has not pointed to any evidence in this case of the kind that in other comparable situations has assisted a court or tribunal to determine the extent, if any, to which such interfering factors have in fact impaired the trade of a lessee and to award damages accordingly. For instance, our attention has not been drawn to any evidence, expert or lay, on the question whether customers of retail businesses selling street clothing and clothing and accessories for surfing, skating and snow sports were frequently 'impulse' or 'casual' buyers, or more often would decide in advance both that they wished to buy such goods and what shop they would visit. Clear sightlines would be more important in the former situation than in the latter. We have not been made aware of any evidence of trends, upward or downward, in the number of customers to whom the Applicant sold goods (as opposed to the amounts that the Applicant received from these customers). There appears to us equally to have been no evidence of trends, upward or downward, in the trading fortunes of other similar retail businesses within the general neighbourhood of the Centre. 254 Furthermore, with reference to the last of these matters, Mr Terrill stated in his report that the 'surf retail category' had 'experienced slower sales over the 2006 period'. As far as we can discern, this was not challenged by the Applicant. 255 We agree with Mr Fernon that a number of other suggestions as to the reasons for the decline in the Applicant's sales do not carry much weight. Criticisms by Mr Terrill of the range of products, visual presentation, customer service and management standards that he perceived when inspecting the Premises were sufficiently answered by Mr Fernon's argument that this inspection occurred when the Applicant's business was only a few months away from closure. The evidence regarding the impact of the closure (during April 2004) of the Applicant's nearby business at Archer Street was equivocal. 256 Our overall assessment, however, of the evidence and submissions on which the Applicant relied is, as we have already stated, that it has failed to establish either that the substantial decline in its turnover and profitability following construction of the Boost Juice kiosk was wholly attributable to the conduct of the Respondent that we have held to be unconscionable or, most importantly, what proportion of this decline, even in broad terms, can properly be held to have been caused by this conduct. Although, in a passage from a High Court decision quoted below, it has been held that when evidence as the amount of alleged lost profit is inconclusive, a court or tribunal may have to engage in 'guess work rather than estimation', the range of possibilities left open by the evidence is too wide to permit us simply to 'guess at' a figure. 257 The Applicant's claim for damages within the second category – the loss of the value of its business – could only be sustained if the evidence showed that a decline in the profitability of the business brought about by the Respondent's unconscionable conduct was of a sufficient scale to cause the business to fail completely. But as we have just said, the evidence was insufficient to support any finding at all as to the amount of lost profit. It follows that there can be no award of damages based on the value of the business. 258 As to the third category, we see no warrant for an order totally relieving the Applicant from its liability for rent. We may add that equally we do not understand the grounds on which, in its 'Summary of Applicant's Claim for Damages and Relief Sought' filed on or about 10 February 2010, the Applicant sought an award representing the value of rent and outgoings that it had paid from 1 September 2006 to 28 February 2007. 259 Our rejection of the Applicant's arguments on quantification of damages does not preclude our adoption of the different methodology that we have foreshadowed. We have decided that the order that we should make under section 72AA of the RL Act should take the form of an order reducing the amount of rent payable under the Lease. 260 An important reason for this is that a significant component of the conduct of the Respondent that we have held to be unconscionable was its refusal to grant continuing rent relief to the Applicant, despite the Applicant's concerns, conveyed on numerous occasions commencing as early as August 2002, about the adverse consequences of contravention of the 2002 Height Restrictions. As was indeed emphasised by Mr Angyal (see in particular [128 – 130] above) , the main response to its complaints that the Applicant sought to elicit from the Respondent was a willingness to reduce the rent. If indeed the Respondent had granted a continuing rent reduction of any significance, we would have been reluctant to characterise its conduct as unconscionable. 261 These observations accord with an important aspect of our decision on liability in this case. We did not decide that the Respondent was bound by a contractual obligation to the Applicant to require that any kiosk established close to the Premises should comply with the 2002 Height Restrictions. In the first appeal decision, we upheld the Tribunal's rejection of an argument along these lines, based on the handwritten amendment made by Mr Mimis to the memorandum of lease prepared on the Respondent's behalf. If the Respondent had been bound by any such obligation, its approvals of the plans for the three kiosks would in each case have been a breach of contract, and liability to pay damages, assessed according to normal contractual principles, would have followed as a matter of course. 262 Our finding of unconscionable conduct against the Respondent was instead dependent on proof of a continuing course of conduct, extending beyond the approval of contraventions of the 2002 Height Restrictions so as to include also the Respondent's refusal to acknowledge that contravention had occurred, its reliance on a greatly liberalised version of the Restrictions that it issued in 2005 and, as we have just pointed out, its refusal of rent relief. 263 It is at least arguable that because the Respondent's liability for unconscionable conduct differs in these significant respects from simple contractual liability, an award of damages for lost profits, such as would normally follow from a finding of breach of contract, would not be appropriate in this case. But we do not need to pursue this question, since there were, as we have already indicated, quite different grounds for rejecting the Applicant's claim for damages for loss of profits. 264 It is for these reasons that the order that we now make under section 72AA of the RL Act is one directed solely at reducing the amount of rent and interest payable by the Applicant to the Respondent. 265 The questions remaining are (a) what amount or proportion of the rent payable should be the subject of abatement and (b) over what period should the abatement occur. 266 With regard to the first of these questions, we derive guidance from the fact that as at March 2002, when negotiations for the Lease were in train, the current minimum rent paid by the Applicant for Shops 415 and 416 was $229,200 per annum and the current minimum rent for Shop 417, being then payable by the tenant preceding the Applicant, was $169,900. The evidence for this is contained in an internal document of the Respondent, headed 'Business Case Recommendation' and dated 13 March 2002. The total of these two amounts is $399,100. 267 In the same document, it was noted that the minimum rent being proposed for the Lease being negotiated for all three Shops was $427,500. This was in fact the amount ultimately agreed on, with provision for annual increases calculated by reference to the CPI and for an additional percentage rent based on turnover. 268 In this document, it was also noted that the 'Surplus to Current Rent' that would then be generated would be $28,500. This represents 7% of the rent being obtained by the Respondent under the two earlier leases and 6.7% of the rent due under the Lease. 269 It was claimed by Ms Mimis-Weeks and indeed acknowledged in the testimony of witnesses called by the Respondent – for example, its expert witness, Mr Terrill (see Transcript, 21.5.09, p 41, lines 28 to 36) – that the shop premises formed by combining Shops 415 and 416 with Shop 417 occupied a 'premium site' on Level 4 of the Centre because of its position at one end of the north-south walkway leading from the car park entrance. This was the case even though at the time of commencement of the Lease the B-Zone kiosk interfered to some extent with the sightlines from the walkway. 270 It is legitimate, in our opinion, to treat the 'surplus' amount of $28,500 within the rental figure of $427,500 stipulated in the Lease as reflecting, at least to some degree, the additional value of the site occupied by the Premises by virtue of its 'premium quality'. This value was diminished by the interference to sightlines caused by the erection, over the ensuing period of about 30 months, of the three kiosks about which the Applicant complained. 271 Mr Terrill's evidence effectively confirmed these two matters. In cross-examination (Transcript, 21.5.09, p 41, lines 39 to 47), he acknowledged that 'subject to a consideration of the impact of the kiosks a landlord could charge a premium or higher rent for shops 415 to 417 because of that positioning at the end of a corridor' and that 'in light of the erection of the three kiosks and their signboards there's some interference with what would otherwise be an excellent line of sight directly ahead to 415 to 417'. 272 The evidence of another expert witness called by the Respondent, Ms Radosevic, included statements in cross-examination (see T169 and A64) making it clear that, in her view, the overall impact of the three kiosks was to interfere more significantly with the sightlines than the B-Zone kiosk had done. 273 The Respondent chose, however, to reject the Applicant's requests for rent relief on account of this interference. This rejection constituted, as we have said, one of the grounds for our finding of unconscionable conduct. If the Respondent had been prepared to, in effect, surrender to the Applicant a significant segment of the 'surplus' annual rent of $28,500 that it had secured by entering into the Lease, we would, as we have said, have been reluctant to make this finding. 274 In determining what annual amount of rent foregone would have been sufficient for this purpose, we receive no specific guidance from the evidence or from legal principle. We must simply abide by a well-known pronouncement (to which Mr Fernon referred us) contained in the judgment of Mason CJ and Dawson J in Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83:- The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v Schiffmann (1971) 124 CLR 303 at 308, Menzies J went so far as to say that 'assessment of damages… does sometimes, of necessity, involve what is guess work rather than estimation'. Where precise evidence is available the court must do the best it can. 275 Although this passage relates to damages for breach of contract, not for unconscionable conduct under the RL Act, the broad message that it conveys is, we believe, applicable to the latter category of case. 276 Doing 'the best we can', we conclude that an offer by the Respondent to 'surrender' 50% of this annual minimum rent 'surplus' of $28,500 – i.e., $14,250 – during the period after the Boost Juice kiosk was constructed would have been sufficient to ward off any finding of unconscionable conduct and is accordingly appropriate for present purposes. 277 As indicated at T21, the Respondent's cross claim for unpaid rent and outgoings related to (a) the period of almost exactly five years between the commencement of the Lease on 2 July 2002 and the Applicant's vacating of the Premises on 28 June 2007 and (b) a further period until the commencement of rent payments under new leases on 24 September 2007 (Shops 416 and 417) and 1 November 2007 (Shop 415). In approximate terms, a period of 5 years and 4 months is involved. 278 The amount to which the Applicant should be entitled, with respect to the loss occasioned by the Respondent's refusal to grant rent relief, is accordingly $14,250 x 5.3333: i.e., $76,000. The Applicant should also receive interest on this sum. 279 As noted near the commencement of these reasons, the Tribunal, in its principal decision (Spuds Surf Chatswood Pty Ltd v PT Ltd (No 2), PT Ltd v Spuds Surf Chatswood Pty Ltd [2011] NSWADT 152), upheld the Respondent's cross claim against the Applicant and ordered that the Applicant was to pay $327,633.55 on account of unpaid rent and outgoings (plus interest) to the Respondent. 280 If that amount has already been paid, the order that we now make will operate an order that the amount of $76,000 plus interest (calculated in the same manner as under the Tribunal's order) should be refunded to the Applicant, pursuant to paragraph (a) of section 72AA(1) of the RL Act. If it has not been paid, our order will take effect as an order under paragraph (b) that the amount of $76,000 plus interest is not due or owing under the Tribunal's order, or alternatively an order under paragraph (a) that this amount is now to be paid by the Respondent to the Applicant (thereby permitting set-off of the smaller debt against the larger). 281 In its second decision (Spuds Surf Chatswood Pty Ltd v PT Ltd (No 3), PT Ltd v Spuds Surf Chatswood Pty Ltd (No 2) [2011] NSWADT 186), the Tribunal held that the amount of interest to be paid by the Applicant to the Respondent, being pre-judgment interest from 23 April 2008 to 3 August 2011), was $92,811.46. 282 The amount of interest payable by the Respondent to the Applicant under our order should therefore be $76,000 x 92,811.46 divided by 327,533.55. The resulting figure for interest is $21,535.72, and the total amount to be paid under our order is $97,535.72. Costs 283 In its second decision, the Tribunal ordered that the Applicant should pay the Respondent's costs of both proceedings (065171 and 085081) on a party-party basis. That order is the subject of an appeal ('the costs appeal') filed by the Applicant on 31 August 2011 (file 119042). The Registrar of Retail Tenancy Disputes has intervened in this appeal. 284 Following the institution of the costs appeal, the parties and the Registrar filed written submissions relating to it. 285 At the commencement, on 17 November 2011, of the first hearing of the principal appeal, it was directed, with the consent of the parties, that the determination of the costs appeal should be deferred pending disposal of the principal appeal. 286 A further matter now requiring determination is the costs of the principal appeal. The parties have indicated that they wish to be heard on this matter. 287 The following directions are accordingly given, relating both to the costs appeal and the costs of the principal appeal:- (a) Within 28 days of the date of this decision, the Appellant is to file and serve: (i) its supplementary submissions relating to the appeal in file 119042; and (ii) its submissions relating to the costs of the present appeal (file 119034). (b) Within a further 28 days, the Respondent is to file and serve submissions in reply. (c) The Appellant's and the Respondent's submissions relating to the appeal in file 119042 are to be served on the Intervenor in that appeal (the Registrar of Retail Tenancy Disputes) as well as on the opposing party. (d) Any submissions by the Intervenor relating to the appeal in file 119042 are to be filed and served within 21 days after service of the Respondent's submissions. (e) These questions regarding costs will be decided 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997, unless the Appeal Panel determined that a hearing should take place. This decision is amended pursuant to s87 of the Administrative Decisions Tribunal Act this 5 March 2013. The paragraphs amended are [14] [215] [217] and [280] Amendments 05 March 2013 - slip rule s87 of the Administrative Decisions Tribunal Act Amended paragraphs: 14, 215, 217, 280 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 March 2013