Supreme Court New South Wales Medium Neutral Citation: Karimbla Properties (No 50) Pty Ltd v State of New South Wales & Anor [2015] NSWSC 778 Hearing dates: 12 June 2015 Date of orders: 17 June 2015 Decision date: 17 June 2015 Before: Beech-Jones J Decision: (1) The plaintiff's notice of motion filed 19 May 2015 be dismissed. (2) The plaintiff's amended notice of motion filed in Court on 12 June 2015 be dismissed. Catchwords: INTERLOCUTORY INJUNCTION – application to restrain exchange of contracts following tender to purchase public land – shortlisted tenderer excluded after related company employed executive responsible for tendering process – alleged damage to integrity of tendering process – balance of convenience – likely damage to vendor if restrained from entering into contract concerning the sale of the property. NATURAL JUSTICE – whether statutory State owned corporation amenable to judicial review in conducting tender to dispose of land – whether obligation to afford natural justice – nature of corporation – nature of function exercised – source of power to exclude tenderers – prospect of establishing amenability to judicial review and obligation to afford natural justice weak – prospect of establishing breach of obligation weak – whether final relief would extend to preventing sale. HELD: Injunction based on alleged breach of procedural fairness refused. CONTRACTUAL DUTY OF FAIR DEALING –prospects of establishing process contract relating to expressions of interest process – inconsistency with express terms of documents issued – prospects of establishing existence of agreement – prospects of plaintiff being re-admitted to tender process – prospects of success low. HELD: Injunction based on alleged contractual duty of fair dealing refused. Legislation Cited: - Administrative Decisions (Judicial Review) Act 1977 - Judiciary Act 1903 (Cth) – s 39B - Landcom Corporation Act 2001 – s 6, s 7, s 8, s 9, s 15 - State Owned Corporations Act 1989 – Part 3 - Supreme Court Act 1970 – s 69 Cases Cited: - Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57 - Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; 118 CLR 618 - Blackpool & Fylde Aero Club Ltd v Blackpool Borough Council [1990] 1 WLR 1195 - Century Metals & Mining NL v Yeomans [1989] FCA 273; 100 ALR 383 - Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; 78 NSWLR 393 - General Newspapers Pty Ltd v Telstra Corporation [1993] FCA 73; 117 ALR 629 - Griffith University v Tang [2005] HCA 7; 221 CLR 99 - Hughes Aircraft Systems International v Airservices Australia [1997] FCA 558; 146 ALR 1 - Minister of Immigration and Multicultural Affairs, Re; Ex parte Lam [2003] HCA 6; 214 CLR 1 - Minister for Local Government v South Sydney City Council [2002] NSWCA 288; 55 NSWLR 381 - K.C. Park Safe (Brisbane) Pty Ltd v Cairns City Council [1997] 1 Qd R 497 - PPK Willoughby Pty Ltd v Roads and Maritime Services [2014] NSWSC 407 - Pratt Contractors Ltd v Palmerston North City Council [1995] 1 NZLR 469 - The State of Victoria v The Masters Builders' Association of Victoria [1995] 2 VR 121 Category: Principal judgment Parties: Karimbla Properties (No 50) Pty Ltd (Plaintiff) State of New South Wales (First Defendant) Landcom Corporation NSW t/as UrbanGrowth (Second Defendant) Representation: Counsel: M.A. Robinson SC, S. Prince (Plaintiff) A. Moses SC, Ms K. Richardson (Defendants) Solicitors: Meriton Group (Plaintiff) Minter Ellison (Defendants) File Number(s): 2015/125923 Publication restriction: Nil ex tempore Judgment (revised from transcript) 1. The second defendant to these proceedings, Landcom Corporation New South Wales trading as UrbanGrowth ("UrbanGrowth"), is a corporate body created by the Landcom Corporations Act 2001 ("the Landcom Act"). UrbanGrowth is currently administering a tender programme for the sale and development of two very substantial portions of land which will comprise a mixed use precinct at Macquarie Park. The project is known as "Lachlan's Line". The first defendant to the proceedings is the State of New South Wales, however it need not be mentioned further. 2. The plaintiff, Karimbla Properties (No 50) Pty Limited ("Karimbla"), forms part of the Meriton group of companies. Together they are a large and successful property development group. In circumstances that I will explain, Karimbla was excluded from the second stage of the tender for Lachlan's Line. The exclusion followed the employment by Meriton of Mr Simeon McGovern, who had previously been a senior executive employed by UrbanGrowth with responsibilities that included the progress of the tender for Lachlan's Line. 3. By a notice of motion filed 19 May 2015, Karimbla sought an interlocutory injunction to restrain the issue or exchange of contracts to sell the land comprising the Lachlan's Line project. On the hearing of this application, it modified its claim for interlocutory relief so as to allow the current tender process to continue, but to restrain the exchange of any contractual documents concerning or relating to any sale of the land. Karimbla's ultimate objective is to overturn its exclusion and re-enter the tender process. 4. Although the hearing was conducted efficiently, the matter is nevertheless legally and factually complex. Further, at least according to UrbanGrowth, the current uncertainty surrounding Karimbla's position has the potential to harm the tender process. Accordingly, it has been necessary to deliver these reasons quickly and in oral form. It is important to note that nothing in this judgment should be taken as amounting to any final finding of impropriety on the part of any organisation or person. 5. In determining Karimbla's application for an interlocutory injunction pending a final hearing, the first inquiry is whether Karimbla has made out a prima facie case in the sense of there being a "probability" that it will be entitled to the relevant form of final relief (Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-623; "Beecham"). This does not mean that it has to be shown that it is more likely than not that Karimbla will succeed, but only that there is "sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial" (Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57 at [65] per Gummow and Hayne JJ; "O'Neill"). Critically, in Beecham at p 622, the High Court observed that "[h]ow strong the probability needs to be depends, no doubt, upon the nature of the rights assert[ed] and the practical consequences likely to flow" from the orders sought. 6. The second inquiry required by Karimbla's application is the weighing of the inconvenience and injury which it would be likely to suffer if an injunction were refused and determining whether that outweighs or is outweighed by the injury which the defendants would suffer if an injunction were granted (Beecham at p 623). 7. Finally, as an interlocutory injunction is a discretionary remedy, a number of additional considerations attend its grant including such matters as delay. Although UrbanGrowth contended that Karimbla had unduly delayed in bringing this application, I am not satisfied that that is the case. Nevertheless, the period of time that has elapsed between the commencement of proceedings and the hearing of this application has allowed the parties a substantial opportunity to obtain and put forward a significant amount of material to support their respective cases. In turn, this has enabled a more detailed analysis of the strength of those cases to be undertaken than might otherwise have been the case. 8. Before addressing the bases upon which Karimbla contends it has made out a prima facie case, it is necessary to describe the circumstances leading up to the decision to exclude it from the tender for Lachlan's Line. The Expressions of Interest 1. On November 2014, UrbanGrowth published a document entitled "Lachlan's Line Macquarie Park Expressions of Interest" ("the EOI publication"). It sought expressions of interest to purchase "two landmark super lots located at Macquarie Park Sydney". The EOI publication included an indicative concept based on architectural plans. One of the advantages of the proposal was said to be that UrbanGrowth would assume and retain responsibility for the delivery of the necessary infrastructure for the development. The EOI publication also outlined the key sale terms for the ultimate sale of the lots. 2. Under the heading "The Selection Process" the EOI publication stated that a two stage process would be used to select the successful purchaser. Stage one was proposed to be the submission of expressions of interest, with UrbanGrowth to then select a short list of preferred respondents based on six criteria being indicative sale price, preferred sale structure method, financial capacity, recent experience and capability, vision statement, and key terms and requirements. 3. The EOI publication also stated: "UrbanGrowth NSW will assess the submitted Stage One Expressions of Interest (EOI) responses with consideration to the commercial risk, any other risks and overall benefits offered against the criteria above. Providing the submitted offers meet UrbanGrowth NSW's requirements, invitations may be extended to short listed respondents to submit a tender for the purchase of the super lots." 1. The EOI publication then advised that the short-listed respondents would be "invited to tender for the purchase of the super lots" and that: "UrbanGrowth NSW will assess the submitted Stage Two ITT offers with consideration to compliance with the stage two ITT submission requirements and the commercial risk and overall benefits offered against the criteria identified in Stage One EOI. The process which will apply following assessment of tenders is outlined in the Tender Acceptance section below." 1. The Tender Acceptance section of the EOI publication outlined what was said to be the "likely" process for dealing with tenders. It appeared to contemplate the submission of offers capable of acceptance by UrbanGrowth. 2. The next part of the EOI publication outlined the "Sale Process Timeline". It was said to be a "guide only". According to that guide, the submission of stage one expressions of interest were due by Friday, 12 December 2014, a period from December 2014 to January 2015 was set aside for the clarification and evaluation of the expressions of interest and the short listed respondents were to be advised by February 2015. The document also outlined a stage two timeline which was to occur over the period from March to late June 2015. As I will explain, it has since been modified. 3. Under the heading "General Information and Conditions" the EOI publication included a reservation of UrbanGrowth's rights to make changes to any information requirements, a statement that the parties bore responsibility for their own costs of the process of participating in the EOI process and a disclaimer of any warranty as to the accuracy of the information that had been provided. 4. The EOI publication also stated: "UrbanGrowth NSW reserves the right not to accept any submission or to seek further proposals from others if the Stage One Expression of Interest (EOI) and Stage Two Invitation to Tender (ITT) received from the respondents do not suitably achieve UrbanGrowth NSW's objectives for the project and are not satisfactory to UrbanGrowth NSW in its absolute discretion. UrbanGrowth NSW reserves its right to consider a non conforming submission for further evaluation. Absence of Obligations No legal or other obligations will arise between a respondent and UrbanGrowth NSW unless and until formal documentation has been signed. UrbanGrowth NSW is not obliged to proceed with or accept any Stage One EOI or Stage Two ITT submission. In particular, UrbanGrowth NSW may elect not to proceed with this process. UrbanGrowth NSW reserves the right to not negotiate with any party as part of this EOI or ITT. Right to Amend and Terminate Process At its absolute discretion, UrbanGrowth NSW reserves the right to amend and terminate the process set out in this document by notice in writing to respondents who have not withdrawn or been excluded from the process." (emphasis added) 1. On 10 December 2011, Karimbla submitted its expression of interest ("EOI"). It was completed on a form specified by UrbanGrowth. As an indication of the size and scope of the Lachlan's Line project, Karimbla specified an indicative purchase price of $184 million. 2. At all relevant times prior to February 2015, Simeon McGovern was employed by UrbanGrowth. UrbanGrowth's chief operating officer, Mr Frecklington, stated in his affidavit that Mr McGovern was the development director appointed to oversee both the EOI and the stage two tender process for Lachlan's Line. He also stated that Mr McGovern was responsible for advising UrbanGrowth's evaluation committee in relation to the individual EOI submissions. 3. On 17 December 2004, a meeting was held of the evaluation committee. The minutes of the meeting record that Mr McGovern presented the meeting with a "financial overview of the offers received, including prices and preferred structures". The meeting resolved that "in order to expedite the short listing process, Board approval would be sought during the January period with a recommendation to proceed to tender with an identified shortlist". The decision to exclude Karimbla 1. On 15 December 2014, Mr McGovern emailed his curriculum vitae ("CV") from his work email account to his home email account. 2. On 5 January 2015, Mr McGovern emailed some technical data concerning the Lachlan's Line project from his work email account to his home email account. There is no evidence that that material was ever provided to Meriton. 3. On 7 January 2015, Mr McGovern attended a meeting with a recruitment firm. 4. Some time in early January 2015, Mr McGovern contacted Meriton to apply for the position of "General Manager – New Projects and Planning". 5. On 13 January 2015, Mr McGovern wrote to Karimbla seeking clarification of aspects of its EOI. The letter sought the resubmission of part of the EOI by close of business on 16 January 2015. This process of clarification was specifically envisaged by the EOI publication. The minutes of the evaluation committee meeting on 17 December 2014 specifically referred to the need to seek clarification of Karimbla's EOI. 6. On 14 January 2015, Mr McGovern's CV was provided to Meriton. 7. A file note subpoenaed from Mr McGovern reveals that he had a meeting with senior Karimbla and Meriton executives at 3.00pm on 16 January 2015. The file note suggests that he sought clarification of Karimbla's EOI. The note records the meeting concluding at 3.30pm on 16 January 2015. At 3.51pm, Karimbla submitted a document clarifying its EOI. 8. On 20 January 2015, Mr McGovern attended an interview for a position with Meriton. 9. On 22 January 2015, there was a further meeting of the evaluation committee. Mr McGovern attended the meeting. It resolved to seek Board approval for his recommended short list of tenderers. 10. On 27 January 2015, Mr McGovern and another UrbanGrowth executive completed a paper for UrbanGrowth's Board recommending it approve certain parties for progress to stage two. The number of such parties is confidential, although it is known that it included Karimbla. 11. On 28 January 2015, Mr McGovern emailed some further technical data for the Lachlan's Line project from his work email account to his home email account. Again there is no evidence that this material was ever provided to Meriton. 12. On 29 January 2015, Meriton made a formal offer of employment to Mr McGovern. 13. On 5 February 2015, the Board of UrbanGrowth noted that a group of tenderers had been selected for stage two and resolved to, inter alia, commence the formal tender process. On the same date, Mr McGovern submitted his resignation to UrbanGrowth. 14. On 10 February 2015, UrbanGrowth wrote to Karimbla confirming that it had been short listed for the "Stage Two invitation to tender". The letter advised that UrbanGrowth was working towards delivering a "package" for stage two with a view to having the tender period concluded by end of April 2015 and an exchange of contracts by "around June/July 2015". 15. On 16 February 2015, Mr Frecklington and others within UrbanGrowth became aware of a publication on the service "LinkedIn" that referred to Mr McGovern as "General Manager – New Projects and Planning" for Meriton. 16. On 19 February 2015, UrbanGrowth wrote to Mr McGovern reminding him of his ongoing obligations to UrbanGrowth in respect of confidential information and the like. 17. Between 19 February 2015 and 6 March 2015, UrbanGrowth executives and its advisors discussed various potential strategies that could be adopted in response to Mr McGovern's actions. They included abandoning the tender, excluding Karimbla, allowing Karimbla to remain in the tender, or conducting an open tender process. 18. On 27 February 2015, UrbanGrowth wrote to Karimbla advising that the documents for stage two were not yet finalised but it was anticipated that they would be issued "by the middle of March 2015". 19. On 5 March 2015, a meeting was held between senior Meriton executives and UrbanGrowth executives. An adviser to UrbanGrowth also attended. A handwritten note of the meeting was tendered. It contains the following entries, namely "concerned about transparency in EOI", "approach directly from Simeon", "it is a tricky one", "hand on heart hasn't been involved in proposal", and "Simeon looking at water infrastructure". 20. On the same day, a senior executive of UrbanGrowth wrote to a director of Karimbla stating: "We refer to Meriton's shortlisting by UrbanGrowth NSW to tender for the two development sites at Lachlan's Line, Macquarie Park and the recent employment of Mr McGovern by your organisation following his departure from UrbanGrowth NSW. As you are aware Mr McGovern has extensive knowledge of the Lachlan's Line project and the information contained in the Stage 1 Expression of Interest. As a result, his employment at Meriton may be viewed as a conflict of interest or be perceived as giving Meriton an unfair advantage over the other shortlisted proponents. We acknowledge that Mr McGovern's employment contract includes ongoing provisions that protect UrbanGrowth NSW in managing its confidential information. However, to ensure that the integrity of the process is not conflicted UrbanGrowth NSW is currently considering using its discretion to exclude Meriton from the stage 2 program unless Meriton can show cause that it should not be excluded. We value Meriton's participation in our tendering programs and look forward to your response. Urgent attention to this matter would be greatly appreciated." 1. On 9 March 2015, Meriton's General Counsel responded. Her response enclosed a statutory declaration from a director of Karimbla which outlined the chronology of Mr McGovern's appointment, most of which has already been stated. The statutory declaration also described Mr McGovern's role with Meriton and, in particular, denied that he imparted any confidential material or that he had been or would be in any way involved in the Lachlan's Line project. The accompanying submissions repeated these points and also stated, inter alia: "We respectfully submit Urban Growth should not exercise its discretion to exclude Meriton from the Stage 2 program as Mr McGovern has had no involvement nor will he have any involvement whatsoever in Meriton's engagement in the process and resultantly the tender process has not been conflicted. Meriton has an interest in maintaining the integrity of the tender process and has not and will not do anything to jeopardise the further opportunity afforded to it to do so." 1. On 12 March 2015, UrbanGrowth wrote to Mr McGovern accusing him of breaching his contract of employment and requesting that he provide an undertaking not to pursue any work relating to the Lachlan's Line project. 2. There was a board meeting of UrbanGrowth on 16 March 2015. The minutes of the meeting record that the Board resolved to authorise the Chief Executive Officer to issue a letter removing Meriton from the tender process "citing [an] unacceptable risk to the transparency of the tendering process". The board minutes are partially redacted but they include the following: "The Acting CEO reported on recent correspondence received from Meriton and Simeon McGovern relating to the Lachlan's Line tendering process. The Board noted Meriton's confirmation that it was aware that Mr McGovern was directly involved in the tender process at the time he was interviewed. Management's recommendation that Meriton be removed from the process was discussed." 1. Mr Frecklington was present during the meeting. In his affidavit, he recounts the following as having occurred: "56. During the course of the Board meeting, Ms Khoo summarised the content of the letter from Ms Zena Nasser of Meriton to UrbanGrowth dated 9 March 2015 and the enclosed Statutory Declaration of Mr James Sialepis dated 9 March 2015 …. I am informed by Ms Khoo, and verily believe, that the two documents were located physically in front of her at the Board Meeting and that she went through and summarised the information contained in the two documents to the Board by reference to the actual documents in front of her. I have since reviewed the two documents received from Meriton dated 9 March 2015 and can confirm that Ms Khoo accurately summarised their contents to the Board on 16 March 2015. 57. At the Board meeting on 16 March 2015, after Ms Khoo's summary of the two documents received from Meriton, the Board then discussed and deliberated over that information and other confidential information about the process and discussed the recommendation that Meriton be removed from the EOI/tender process. The Board made the decision to exclude Meriton because if it were to be allowed to continue to participate in the tender it would compromise the integrity of the process. The Board acted to ensure that the outcome of the EOI/Tender process was beyond reproach and would be fairly contested. It was resolved that the CEO would promptly issue a letter to Meriton removing Meriton from the Lachlan's Line tender process by reason of the 'unacceptable risk to the transparency of the tendering process'. … I am informed by Ms Khoo, and verily believe, that part of the information in the 16 March Minutes, in relation to which the second defendant makes a claim of confidentiality, has been redacted." 1. Senior Counsel for Karimbla, Mr Robinson SC, also referred the Court to a handwritten file note which appears to relate to that meeting. It contains an entry: "[w]rite to them and withdraw them from the process. Make the letter so damning if it leaks". Against this handwritten entry there is a further entry that states: "all agreed". 2. On 19 March 2015, the Chief Executive Officer of UrbanGrowth, Mr Pitchford, who had attended the meeting on 16 March 2015, wrote to Karimbla. Given Karimbla's complaint that it was denied procedural fairness it is necessary to refer to parts of this letter in some detail. Mr Pitchford referred to the letter from Meriton dated 9 March 2015 and the accompanying statutory declaration. He then stated: "The circumstances as set out in Ms Nasser's letter and statutory declaration put our Tender process in a compromised position. UrbanGrowth NSW is left with no other decision than to exercise its right under the EOI process to exclude Meriton from the Stage 2 Tender program. This decision has been made in the interests of fairness to all parties involved following Meriton's appointment of an UrbanGrowth NSW Development Director who had been closely involved in the Lachlan's Line EOI evaluation process. UrbanGrowth NSW has made this decision to ensure that the outcome of the EOI and Tender process is beyond reproach, and has been fairly contested." 1. The letter recited the circumstances leading up to the decision and continued: "6. At no stage during the EOI assessment period did Mr McGovern, or for that matter Meriton, inform our Management, the Evaluation Committee or the probity advisor of any actual, potential or perceived conflict. 7. UrbanGrowth NSW evaluated the EOI responses and proceeded to Board approval without any knowledge of conflicts. In contrast, Meriton was aware of, and did not disclose any conflicts arising from, Mr McGovern's involvement in the project throughout the evaluation and approval process. UrbanGrowth NSW response As a Government-owned entity, a key requirement of UrbanGrowth NSW for the Lachlan's Line project, as referenced in the NSW Governmenet Procurement Policy Framework, is for procurement to be conducted in an environment which is 'at all times fair, ethical, transparent and probity rich'. This applies for all participants in the process. Under the terms of the EOI, UrbanGrowth NSW has the right not to accept an EOI/Tender submission if it does not suitably achieve our objectives for the project, or if it is unsatisfactory to UrbanGrowth NSW in our absolute discretion. If Meriton is allowed to continue to participate in the Tender, it would compromise the integrity of the process. We trust that you understand UrbanGrowth NSW's position on the matter to protect the interests of the Government and of the other proponents. We imagine that your organization would have expected UrbanGrowth NSW to act in the same manner if this issue had occurred with one of the other proponents. Please note that the exclusion from this tender does not of itself exclude Meriton's participation in future Tender processes run by UrbanGrowth NSW." Subsequent Events 1. Meriton and Karimbla attempted to arrange a meeting with UrbanGrowth's chairman and senior executives in an endeavour to persuade them to reverse the decision to exclude Karimbla. The meeting ultimately occurred on 10 April 2015. A note of the meeting suggests that it was acrimonious. It was certainly unsuccessful. On that same day, Mr McGovern's employment was terminated. 2. Karimbla commenced these proceedings on 28 April 2015. 3. On 18 May 2015, Meriton's in-house counsel wrote to UrbanGrowth requesting it not progress stage two pending the outcome of the proceedings. No agreement to that effect was forthcoming. As I have stated, on 19 May 2015 Karimbla filed its notice of motion seeking interlocutory relief. 4. On 29 May 2015, UrbanGrowth issued the invitation to tender material to the short listed parties. The material invites the submission of tenders by no later than 3.00pm on Tuesday, 28 July 2015. Included in the material was a set of conditions, one of which provided that each tender submitted constituted an "irrevocable offer" to purchase the relevant land and an agreement to be bound by the tender conditions. Each tenderer was also required to submit a deposit of $50,000. It is unnecessary to describe the remainder of the terms of stage two in any detail, but the terms include a clause reserving UrbanGrowth's right to, inter alia, reject all tenders, accept a tender before the closing date, or to extend the closing date. Aspects of the EOI and tender process 1. In his affidavit, Mr Frecklington explained the steps taken by UrbanGrowth to preserve the confidential nature of aspects of the Lachlan's Line tender process, including the identity of all respondents who lodged EOIs, the identity of the short listed respondents, the contents of the responses, including the bid amounts, and the "weighing and scoring criteria" applied by UrbanGrowth. According to Mr Frecklington, only the seven members of the evaluation committee, including Mr McGovern, were aware of this material. In particular, UrbanGrowth's board members and those of the senior executives who are not members of the evaluation committee did not know the identity of the short listed respondents or any details of their bids. 2. It is appropriate at this point to note the six matters asserted by Mr Frecklington in his affidavit as to the prejudice or damage likely to be suffered by UrbanGrowth if an injunction were granted. 3. First, Mr Frecklington stated that, if UrbanGrowth was unable to proceed to complete the tender process and exchange contracts in accordance with the proposed timetable, it could undermine the gains it expects to derive from "competitive tension" which he said arises from the participants being motivated and focused on the project. He stated that in responding to stage two a party may only be willing to participate in the project at a particular level within a particular timeframe, especially having regard to the cost and expense involved in doing so. Mr Frecklington is concerned that any delay and uncertainty will cause parties to either withdraw from the tender process or reduce their level of motivation to participate. 4. Second, Mr Frecklington expressed a concern that uncertainty and delay in the tender process will cause damage to UrbanGrowth's brand and reputation in the market generally. He is concerned about a loss of confidence in UrbanGrowth's capacity to successfully pursue the tender process, bearing in mind that many other tenders and developments are planned. 5. Third, Mr Frecklington identified various categories of costs incurred by UrbanGrowth as well as by the other short listed respondents which he said had the potential to be wasted if the sale is delayed through an injunction. 6. Fourth, as an aspect of the timing of the project, Mr Frecklington noted that the real estate market is currently buoyant which he said increases the potential gains from so-called competitive tension. 7. Fifth, Mr Frecklington stated that UrbanGrowth's future development plans are predicated on the basis of it receiving funds from the sale of the project in mid-2016. 8. Sixth, Mr Frecklington expressed a particular concern that the tender process had been compromised. He referred to a statement by the principal of Meriton to a newspaper which appeared to be of the effect that, at least in that principal's belief, Karimbla was the highest bidder. 9. At this point I note the following about these matters. First, all of these issues must be addressed in the context of the reformulated relief sought by Karimbla, namely, an injunction to restrain exchange of contracts but not an injunction that restrains the progress of stage two up to that point. 10. Second, any assessment of the effect of delay arising from an injunction must occur in a context that if an injunction were to be granted a final hearing would be expedited. At this point it is difficult to gauge the scope of that part of Karimbla's case which involves an alleged breach of a contractual duty of good faith. However, one way or another, the Court would force the parties to a final hearing within a period of months. 11. Third, the various categories of costs incurred by UrbanGrowth and the tenderers that Mr Frecklington refers to are all matters that appear to be capable of being dealt with by the proffering of the usual undertaking for damages. At the hearing it was made clear that that undertaking is to be proffered by both Karimbla and the Meriton Group's operating company. 12. Fourth, the complaint about this statement made by Meriton's principal to a newspaper does not add much to the aspect of analysis which is concerned with the injury or prejudice that may be occasioned to the tender process by the grant of an injunction and is not concerned with the extent to which it may have compromised already. 13. Fifth, while the current state of the real estate market is no doubt an integer in all of the relevant player's assessments, the scale of this project appears to be such that it seems to contemplate residential sales occurring at a time when different market conditions may be operating. I expect that each of the respondents to the tender are commercially sophisticated and are presumably planning on the basis that the development is likely to span cyclical movements in the real estate market. 14. Nevertheless, I am satisfied that the granting of an injunction has the potential to cause significant harm to the tender process. The effect of the injunction would be that tenderers responding to the current invitation to tender would be potentially exposed by legally binding offers that they each may make but which UrbanGrowth could not accept. That is an especially unattractive position for a proposed tenderer. While, for reasons I have already stated, I expect they are used to coping with risk, that type of risk is one that could be expected to be addressed by withdrawal from the project or, at least, the revision downwards of any offer. 15. The complex nature of such assessments makes it less likely that an undertaking of damages provides an adequate protection against the various forms of harm that UrbanGrowth may suffer from being injuncted. The task of determining at a later stage what price or terms UrbanGrowth may have received had an injunction not been granted would be especially difficult. Moreover, the EOI publication and the stage two information suggest that price is not necessarily determinative of who will be the successful bidder. A reduction in the quality of the proposed development that might result from the delay and uncertainty associated with an injunction is not something that can be quantified in monetary terms or, at least, not easily. Natural justice 1. Karimbla's written submissions contended that it had established a prima facie case that the decision to exclude it from the tender process involved either a denial of procedural fairness or a breach of a contractual obligation to deal fairly. I will address the complaint of a denial of procedural fairness first. 2. An answer to the question as to whether a government related entity owes any duty of procedural fairness to a participant in a commercial tender is not straightforward. The submissions of the parties understandably elided the related questions of whether a body such as UrbanGrowth is amenable to judicial review and, if so, whether it owes an obligation of procedural fairness. Nevertheless, those matters are still distinct. In General Newspapers Pty Ltd v Telstra Corporation (1998) 117 ALR 629 ("General Newspapers"), Davies and Einfeld JJ held the decision of Telecom to enter a publishing contract without calling for tenders was not a decision under an enactment reviewable under the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act"), notwithstanding that Telecom was conferred with a power to contract by statute (at p 633). This conclusion is consistent with the later High Court decision in Griffith University v Tang [2005] HCA 7; 221 CLR 99 ("Tang"). However, their Honours in General Newspapers noted that other Federal Court decisions holding to the contrary could be justified by reference to the exercise of a jurisdiction outside the ADJR Act, presumably s 39B of the Judiciary Act 1903 (Cth) (at p 637) which in this respect is similar to s 69 of the Supreme Court Act 1970. Their Honours separately held that Telecom's decision was not subject to the requirements of procedural fairness in that the disappointed contractors' "rights, interests or legitimate expectations" were not affected by Telecom's decision (at p 637). 3. The starting point is to address the statutory scheme governing UrbanGrowth. Section 7 of the Landcom Act confers on UrbanGrowth the function of undertaking and participating in residential, commercial, industrial and mixed development projects and providing advice and services related to urban development "on a commercial basis" to government agencies and others. Section 8 provides for UrbanGrowth to have a Board of Directors and s 9 provides for the appointment of a Chief Executive Officer. Part 3 of the Landcom Act is entitled "accountability" and establishes a limited form of ministerial control over UrbanGrowth. Section 15 of the Landcom Act precludes UrbanGrowth from acquiring or disposing of any real property asset that has a value in excess of $30 million without the consent of the "voting shareholders", being two government ministers. It is noteworthy that s 6 of the Landcom Act sets out various principal objectives of UrbanGrowth. That section can be contrasted with statutory provisions that set out the principal objectives of the legislation rather than the principal objectives of a statutory corporation. 4. UrbanGrowth is a statutory State owned corporation and as such is subject to Part 3 of the State Owned Corporations Act 1989 ("the SOC Act"). Section 20F of the SOC Act provides that, inter alia, UrbanGrowth is not and does not represent the State except by express agreement with the voting shareholders or if legislation expressly so provides. There is no evidence of any such agreement and no suggestion of any legislative provision so providing. Again, s 20O to s 20P of the SOC Act confer a limited form of ministerial control and direction over UrbanGrowth. The only relevant provision conferring a power on UrbanGrowth is s 20ZB which confers upon it the powers of a "natural person", including a power to enter contracts or dispose of property. 5. The overall effect of these provisions is to establish a body corporate with a quasi-commercial objective, a corporate management structure, limited ministerial control, financial accountability to the State via its ministers with only the powers of a natural person and which does not represent the State. 6. In his submissions, Mr Robinson SC identified the above statutes as a source of UrbanGrowth's power to exclude his client from stage two. He sought to build an amenity to judicial review and an obligation to afford procedural fairness on that foundation. However, that foundation is very weak. The only relevant power conferred on UrbanGrowth is, as I have said, the powers of a natural person. Any power to affect Karimbla's rights and obligations is not sourced in that power but, if anywhere, comes from any agreement made between the parties (Tang at [82]). This is the second basis upon which Karimbla puts its case for an injunction, which I will address later. However, if that basis is not ultimately made out, then the exclusion of Karimbla simply devolves to one potential contracting party declining to deal further with another. Either way, the contention that UrbanGrowth exercised a statutory function or power to exclude Karimbla has little support. 7. However, the absence of a statutory basis for executive or quasi-government action does not exhaust the possibility that it is amenable to judicial review or that procedural fairness does not condition its exercise. In relation to the former, there is some authority that, if the relevant action can be characterised as "the performance of a public duty and not the mere exercise of a capacity to make arrangements for the government's internal purposes", then it is amenable to judicial review (State of Victoria v Masters Builders' Association of Victoria [1995] 2 VR 121 at 138 per Tadgell J, at 160 per Eames J; cf Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; 78 NSWLR 393 at [75] per Basten JA). In relation to the latter, procedural fairness has been held to condition the exercise of some prerogative powers and, traditionally, has extended to private bodies making decisions of a public character (see Minister for Local Government v South Sydney City Council [2002] NSWCA 288; 55 NSWLR 381, at [7] per Spigelman CJ). 8. The extension of natural justice into contracting and tendering processes that are amenable to judicial review has only had limited success. It was rejected in General Newspapers in the case of contracting, and rejected in White Industries Limited v Electricity Commission of New South Wales (No 2512 of 1987, Yeldham J, 20 May 1987, unreported) in the case of tendering. In both K.C. Park Safe (Brisbane) Pty Limited v Cairns City Council [1997] 1 Qd R 497 ("K.C. Park") and Century Metals & Mining NL v Yeomans (1989) 100 ALR 383 ("Yeomans") the relevant tendering and contracting processes had a statutory basis so that no question of amenability to judicial review arose. In those cases, a limited obligation to afford natural justice arose having regard to the "legitimate expectation" created by the expense incurred by a party in submitting tenders in one case (K.C. Park at p 503) and a promise by the relevant Minister as to the process to be adopted in evaluating commercial proposals in the other (see Yeomans at p 412), although the utility of reliance on the concept of "legitimate expectation" as a basis for finding an obligation to afford a hearing is now in significant doubt (Re Minister of Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1). 9. The expression of any final opinion on these questions on an application for an interlocutory application is not appropriate. However, even a generous reading of the authorities reveals the difficulties with Karimbla's position. UrbanGrowth does not represent the State. Its activities have a strong commercial flavour. The relevant function concerns the sale of land. The challenged decision concerns the exclusion of a potential purchaser. No statutory or prerogative powers were exercised. The decision does not appear to have involved the purported exercise of any public duty. All these matters point against UrbanGrowth being amenable to judicial review in relation to the decision to exclude Karimbla. If it were amenable to judicial review then there may be some scope for constructing a legitimate expectation based upon its selection as a tenderer for stage two, but that is all. 10. In my view, so much of Karimbla's case that rests upon a premise that UrbanGrowth is amenable to judicial review for the challenged decision and was obliged to afford Karimbla procedural fairness before making it is relatively weak. 11. The next issue that arises in assessing the strength of a prima facie case is, on the assumption that UrbanGrowth is amenable to review and was obliged to afford procedural fairness, was there a breach of any such obligation? I have described the process that led to the board's decision to exclude Karimbla from stage two. A number of disparate complaints were made by Karimbla about that process both in support of its claim that it was denied procedural fairness and in support of its claim that there was a breach of an implied contractual term of fair dealing. I will deal with them in the context of the former complaint, although what follows is also applicable to the latter. 12. Paragraphs [32] to [33] of Karimbla's written submissions complain that UrbanGrowth learnt on 16 February 2015 that Mr McGovern was proposing to work for Meriton but it took no steps until March 2015, by which time he had commenced working. Karimbla contends that, if it had known of UrbanGrowth's concerns prior to him commencing work, it could have terminated his employment. Ultimately this complaint has very little substance. UrbanGrowth was entitled time to consider what was, on any view, an eyebrow-raising development. Further, in the events that happened, that alleged damage to the transparency of the tender process and which appears to be the heart of UrbanGrowth's concerns, had already been caused by Meriton and Mr McGovern dealing with each other in relation to his job application while he was simultaneously involved in the evaluation of Karimbla's EOI and the EOIs of the other respondents to the EOI publication. 13. Karimbla's written submissions at [34] to [35] complain that there is no evidence that Meriton's employment of Mr McGovern led to him imparting any confidential information or that any unfair advantage was obtained. UrbanGrowth begged to differ, bearing in mind the reported comments of Meriton's principal concerning its status as the highest bidder. It is not appropriate to embark upon a resolution of that complaint at a factual level on an application such as this. This complaint does not really challenge UrbanGrowth's decision because, as I have explained, the evidence suggests that the decision of UrbanGrowth's board to exclude Meriton was not based upon actual damage to the tender process in the sense of confidential information actually being imparted. Instead, UrbanGrowth's decision was principally based upon the damage to the integrity of the tendering process that arose from perceptions as to the existence of various conflicts of interest having regard to the engagement by Meriton of Mr McGovern in circumstances where he had been so intimately involved in the Lachlan's Line tender. 14. Karimbla's written submissions also contend that there is "real prospect" of it establishing that the submissions that were made on its behalf on 9 March 2015 "were not before the board prior to [it] making its decision". Karimbla's written submissions describe Mr Frecklington's evidence of Ms Khoo summarising its submissions to the board as "second-hand hearsay in appalling form". I disagree. Mr Frecklington was present when the summary was presented. He is capable of giving direct evidence of the fact that it was presented to the board. There are references to the summary in the minutes. 15. Karimbla ultimately bears the onus of proof of any factual allegation that a proper summary of its submissions was not presented to UrbanGrowth's board. In light of Mr Frecklington's evidence, Karimbla's prospects of successfully proving its submissions were not "before" the board appear to be relatively low. This is particularly so given that its submissions did not, in substance, address the point that appears to have been raised in the meeting prior to the show cause letter dated 5 March 2015, namely, concerns about transparency, nor did it really address so much of the show cause letter which referred to perceptions that Karimbla had an unfair advantage and the need to ensure the integrity of the tender process. As I have stated, Meriton's response denied there had been any advantage that occurred by reason of the employment of Mr McGovern, but the show cause letter and the board minute refers to a concern that perceptions of an unfair advantage accruing was sufficient to damage the integrity of the process. 16. Karimbla's written submissions at [37] contend that it was clear from Mr Frecklington's evidence that the board took into account correspondence between UrbanGrowth and Mr McGovern relating to his contractual obligations which was not made available to it. This appears to be a reference to the "recent correspondence" in the extract from the board minutes noted above. To the extent it is known what that correspondence relates to, it appears to be the correspondence between UrbanGrowth and Mr McGovern in which he was reminded of his contractual obligations and in which undertakings were sought. The mere fact that the board of UrbanGrowth had available to it correspondence on that topic which was not made available to Karimbla does not establish a breach of procedural fairness in this context. Even if there was an obligation of procedural fairness imposed upon UrbanGrowth, it is certainly not to be equated with either a judicial or quasi judicial paradigm. The existence of Mr McGovern's contractual obligation to UrbanGrowth and its concerns about them was referred to in the show cause letter and that seems likely to be sufficient. 17. Karimbla's written submissions at [38] refer to the internal documents created in the period from 19 February 2015 to 5 March 2015 which discussed various options in response to Mr McGovern taking up employment with Meriton. An affidavit sworn by a Karimbla executive refers to this material and identifies various submissions that it is said could have been made to UrbanGrowth on behalf of Karimbla had it been apprised of this material prior to 16 March 2015. However, the internal musing of UrbanGrowth's senior employees and advisors is beside the point. Subject to considering the next matter, the evidence points to the essence of UrbanGrowth's board's decision as being the damage to the integrity of the process. That concern was foreshadowed in the show cause letter of 5 March 2015. 18. The last point made in Karimbla's written submissions concerns the reference in the handwritten note of UrbanGrowth's board meeting to, "mak[ing] the letter so damning if it leaks". Karimbla contended that this note raises a real issue as to whether "the board in making its decision was motivated to provide reasons which did not reflect the true reasons of the board and which involved an ulterior motive not appropriate in a procedurally fair tender process". 19. The note appears to refer to that part of the board resolution that directed Mr Pitchford to prepare a letter to Karimbla. It is certainly badly expressed. At first blush, it appears to be concerned with ensuring that the letter justifies the board's position if the decision is publicised. Mr Pitchford's letter appears to do that. That said, it is still a relatively measured document. 20. Although unfortunately expressed, the note appears to provide little support for the proposition that Karimbla was denied an opportunity to be heard on what seems to have been the central concern of the Board in seeking to exclude it, namely, the potential damage to the integrity of the tender process. 21. There are numerous instances of a natural justice victory being seized from the jaws of a defeat. Nevertheless, the evidence available on this application is such that, even if there was an obligation on Meriton to afford Karimbla procedural fairness, my assessment of the strength of Karimbla's contention that the obligation was breached is that it has relatively low prospects of success. 22. Mr Robinson SC also contended that the relief that would be granted on this part of his case if his client succeeded at trial would result in it being able to resume participation in stage 2 of the tender. As I understand this contention, it is based upon the decision to exclude being declared invalid which, it is said, would then restore Karimbla to its position as a participant. This approach, however, appears to be premised on the tender process being some form of staged scheme under a statute, with his client having a legal entitlement, or right, to participate in stage 2, which is only defeasible by a valid decision to exclude. However, even assuming natural justice is applicable to UrbanGrowth's decision, that premise would still not be correct. 23. In my view, it is doubtful whether the relief that might be obtained at any final hearing would result in Meriton being readmitted to stage 2. It most likely would sound in the form of a declaration. It might extend to a limited injunction restraining the execution of contracts until Karimbla was given an opportunity to be heard about whether it should be readmitted to the tendering process. However, in light of the earlier conclusions concerning the amenability of Karimbla to judicial review, the existence of an obligation to afford procedural fairness and the strength of the case that any such obligation was breached, it is unnecessary to consider this further. 24. It follows from the above that I consider that Karimbla's case that there was a breach of procedural fairness is weak. 25. I have already addressed the prejudice likely to be occasioned to UrbanGrowth by the grant of an injunction. I accept that if an injunction is not granted and there is an exchange of contracts, then the pursuit of Karimbla's claim that there was a breach of natural justice is likely to prove futile. Instead, if the injunction is refused, it may have to pursue a claim for declaratory or injunctive relief with urgency so that any relief is obtained prior to exchange. No question arises as to whether damages are an adequate remedy in relation to this part of Karimbla's case, as damages are not a remedy for breach of natural justice. Even allowing for the potentially fatal effect of refusing an injunction on this part of Karimbla's case, I consider the balancing of the relevant factors requires that the application for an injunction on this basis be refused. 26. In its summons, Karimbla also contended that the decision to exclude it from stage 2 involved the taking into account of an irrelevant consideration, namely, the terms of the "NSW Procurement Policy Framework". The pleading contends that is a document that does not relate to the disposition of property, but is concerned with the procurement of services. The document was not tendered. At this stage, all that need be stated is that, given the absence of any statutory context surrounding the decision to exclude, there is no apparent reason why UrbanGrowth cannot have regard to such a document. Further, even if it misconstrued it, that would not appear to have any legal consequences. 27. Karimbla's amended summons also contends that UrbanGrowth failed to take into account the objectives in s 6 of the Landcom Act. I have already adverted to those provisions. In any event, this aspect of the amended summons was not developed and it does not alter my conclusion as to the strength of Karimbla's case in this respect. Contractual duty to deal fairly 1. Karimbla also contended that it had established a prima facie case, in the sense discussed earlier, that UrbanGrowth's exclusion of it from the tender process involved a breach of a contractual duty of good faith, or a contractual duty to act fairly. Karimbla's written submissions contended that "… there can be no doubt that 'a procurement process', such as the Lachlan's Line EOI, is a commercial arrangement and creates a process contract between the principal and the proponents". The submissions further contend that it is at least reasonably arguable that such a contract would have an implied term requiring UrbanGrowth to act fairly in its performance, citing the following passage from Hughes Aircraft Systems International v Airservices Australia (1997) 146 ALR 1 at 38 per Finn J: "It is one in which I am prepared to find that, as a matter of law, a duty to deal fairly in the performance of the contracts I have found should be implied into those contracts. Irrespective of what should be taken to have been the intentions the parties, both the type (or class) of contract and the relationship of the parties were such as gave the tenderers the right to expect, and the CAA the obligation to exhibit, fair dealing in the performance of the contracts". 1. In stating that this term should be implied "irrespective of what should be taken to have been the intentions of the parties", Finn J was not stating that the parties cannot exclude such a term. Instead, his Honour was merely placing this term into those categories of terms which are implied into a particular class of contract without the necessity to undertake an inquiry into the parties' imputed intentions. 2. Karimbla's written submissions in support of this aspect of the case identify the alleged breaches of the duty of fair dealing in the same terms as the alleged denials of natural justice, which have already been addressed. 3. The submissions of UrbanGrowth took issue with each and every step in Karimbla's argument, including the starting point as to the existence of a process contract in relation to the EOI. The relevant principles on that issue were stated by Finn J in Hughes at p 25, namely, that a party calling for tenders may do no more than issue an invitation to treat, although the steps taken may result in the making of contractual commitments in relation to the whole or part of the tendering process and that overall each case turns on the facts. 4. Thus, in Hughes the mandatory language of the relevant documentation in expounding procedures and criteria was seen as supportive of the imposition of the relevant form of contractual obligation (see Hughes at p 29). Similarly, in Pratt Contractors Ltd v Palmerston North City Council [1995] 1 NZLR 469, the relevant tender documents were described as "extensive, detailed and substantial" and included the terms of the contract that would be entered into if the response was accepted (at p 479). They also included the methodology the Council would adopt to evaluate the tender and referred to it in mandatory terms (at pp 479 to 480). The EOI publication does not appear to be of this character, although, arguably, the stage 2 documents are. However, most critically, in none of the cases to which the Court was referred was there a disclaimer in the documentary material similar to the one in this case, namely one which stated that: "[no] legal or other obligations will arise … unless and until formal documentation has been signed" (see also Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council [1990] 1 WLR 1195). This part of the EOI publication appears to be inconsistent with any attempt to erect a contract relating to the EOI process. As I have already hinted at, the position may be different with the stage 2 process, but Karimbla never obtained the opportunity to participate in that stage. 5. For the sake of completeness, I note that I was referred to the decision of Campbell J in PPK Willoughby Pty Ltd v Roads and Maritime Services [2014] NSWSC 407 ("PPK"), in which his Honour refused to grant summary judgment on an application to dismiss a claim based, inter alia, on a pre-tender contract (at [29] and [31]). His Honour did so notwithstanding the respondent's reliance on certain "express tender conditions" (at [30]). However, those conditions appear to be similar to those set out in the stage 2 conditions and not those set out in the EOI publication (see PPK at [20]). 6. In its written submissions in reply, Karimbla pointed to a letter sent by UrbanGrowth to Mr McGovern asserting that his dealings with Meriton were in breach of his contract of employment because UrbanGrowth was engaged in a commercial arrangement and had "an ongoing contract" with the Meriton Group. This is capable of constituting some form of admission, but the underlying material has now been placed before the Court and that material points strongly away from a finding that there was any such contract. 7. Accordingly, I consider that Karimbla has only weak prospects of establishing that it had a contract with UrbanGrowth relating to the EOI process. Unless there was any such contract, then there can be no basis for an implied term of fair dealing. 8. Otherwise, an assessment of Karimbla's likely prospects of success at a final hearing requires some assessment of the prospects of it being allowed to resume the tender process. Unless Karimbla could establish that at a final hearing, any breach by UrbanGrowth of an implied contractual duty to deal fairly would not sound in damages and could not support a final injunction restraining the sale of the land to someone else (see O'Neill). 9. I have already traversed the details of Karimbla's various complaints about the process. As I have said, none of them really addressed so much of UrbanGrowth's reasoning that referred to the need to preserve the transparency of the tender process having regard to the potential for adverse perceptions of that process arising from Mr McGovern taking up employment with Meriton. 10. In my view, it is strongly arguable that, irrespective of the intentions or the motives of any or all of Meriton, Karimbla, its executives, or Mr McGovern, the unfortunate circumstance that during the period of the EOI evaluation process a senior UrbanGrowth executive responsible for the evaluation commenced work with one of the bidders has the potential to undermine confidence in the process. Thus, it is difficult overall to envisage Karimbla successfully demonstrating that UrbanGrowth would be obliged to allow it to return to participate in stage 2, even if the various procedural complaints about the method by which it was excluded were upheld. 11. These findings lead to the conclusion that so much of Karimbla's case as rests upon an alleged breach of contract is weak. The foundation for the finding of a contract is shaky. There are poor prospects of establishing a breach and it appears unlikely to be able to be demonstrated that, but for those breaches, Karimbla would not be excluded from stage 2. 12. I have already addressed the injury that may be occasioned to UrbanGrowth if the injunction is granted. If the injunction is refused, Karimbla would still be able to pursue an action for damages. Karimbla's submissions contended that damages would not be an adequate remedy in circumstances where the ultimate object of the tender is the acquisition of land. It cites in support the principle that, ordinarily, specific performance for a contract for the sale of land will not be refused on the basis that damages is an adequate remedy. However, the context of this matter is that what was being pursued was fundamentally a commercial transaction in which Karimbla not only proposed to acquire land but, ultimately, intended to dispose of it. In my view, that places a different perspective on the submission that there was some special significance attaching to the land in question. 13. The most likely measure of damages in respect of the action that has been brought by Karimbla is one that would involve an assessment of the likelihood that, but for any breach by UrbanGrowth, Karimbla would be readmitted to the tender, the likelihood that it would then be the successful bidder and then an estimate of the likely profit from the project if they were so successful. I have no doubt that proving damages based on that measure would be a difficult and expensive exercise, but it is, nevertheless, the type of inquiry that is not uncommon in commercial litigation. 14. Balancing the above matters leads me to the inevitable conclusion that an injunction based upon Karimbla's claim that there was a breach of contract should be refused. Conclusion 1. It follows that I will dismiss Karimbla's notice of motion filed 19 May 2015 and its amended notice of motion filed in court on 12 June 2015. 2. For the sake of completeness, I note that during the hearing of this application, Senior Counsel for UrbanGrowth provided to the Court a folder containing some partially unredacted copies of material that was exhibited to Mr Frecklington's affidavit. Consistent with what the Court stated at the time, I reiterate that, in the absence of being taken to anything specific in that material, the Court has not looked at, much less considered, that material. It will be returned at the conclusion of this judgment. 3. Accordingly, the Court orders: 1. The plaintiff's notice of motion filed 19 May 2015 be dismissed. 2. The plaintiff's amended notice of motion filed in court on 12 June 2015 be dismissed. [The Court then returned the exhibit and made an order for costs.] ********** 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: 19 June 2015