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SEQ Homemaker 1 Pty Ltd v SPAR Corporate Pty Ltd[2017] QDC 46

SEQ Homemaker 1 Pty Ltd v SPAR Corporate Pty Ltd[2017] QDC 46

DISTRICT COURT OF QUEENSLAND

CITATION:

SEQ Homemaker 1 Pty Ltd v SPAR Corporate Pty Ltd & others [2017] QDC 46

PARTIES:

SEQ HOMEMAKER 1 PTY LTD

Plaintiff

v

SPAR CORPORATE PTY LTD

First Defendant

and

DIGWOOD PTY LTD

Second Defendant

and

SPAR AUSTRALIA LIMITED

Third Defendant

FILE NO/S:

1163/15

DIVISION:

Civil

PROCEEDING:

Trial

DELIVERED ON:

10 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

7, 8, 9 February 2017

JUDGE:

Bowskill QC DCJ

ORDER:

1. There will be judgment for the plaintiff against the first defendant for the sum of $96,137.11, with interest under s 58 of the Civil Proceedings Act 2011 as indicated in [154] of these reasons. The plaintiff is to provide a form of judgment which includes the appropriate interest calculation.

2. The plaintiff’s claim against the second and third defendants is dismissed.

3. The proposed orders are set out in [154]-[156] of the reasons. If any party wishes to make submissions as to the terms of the orders proposed (in particular as to interest and costs), such submissions are to be filed and served within 7 days. If no such submissions are received, the orders as proposed will be made.

CATCHWORDS:

REAL PROPERTY – LEASES – where the first defendant breached an essential term of the lease, by failing to pay rent and other expenses – whether the plaintiff afforded the first defendant a reasonable period of time to remedy the breach, before termination

TORTS – INTERFERENCE WITH CONTRACTUAL RELATIONS – RELEVANT PRINCIPLES – where, under a lease between the plaintiff, as lessor, and the first defendant, as lessee, the first defendant was obliged to conduct its business from the premises and not grant any licence affecting the premises – where the defendants entered into an agreement under which the second defendant would operate the business from the premises, under a licence granted by the first defendant – whether that was a breach of the lease – whether the second and third defendants knew that, by entering into the agreement, the first defendant would be in breach of the lease – whether the second and third defendants intended to induce or procure the first defendant to breach the lease – whether any loss or damage caused to the plaintiff by the breach

TRADE AND COMMERCE – misleading and deceptive conduct – whether the third defendant made misleading or deceptive representations to the plaintiff, about which entity would operate the business from the premises – whether the plaintiff relied on any such representation, to its disadvantage, in entering into the lease – whether the plaintiff suffered loss or damage because of the third defendant’s conduct

Competition and Consumer Act 2010 (Cth), schedule 2 (Australian Consumer Law), ss 18, 236

Allstate Life Insurance Company v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26

Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640

Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304

Civic Video Pty Ltd v Paterson [2016] WASCA 69

Daebo Shipping Company Ltd v The Ship Go Star (2012) 207 FCR 220

Dogan v Morton (1935) 35 SR (NSW) 142

Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473

Fubilan Catering Services Ltd v Compass Group (Australia) Pty Ltd [2008] FCAFC 53

LED Technologies Pty Ltd v Roadvision Pty Ltd (2012) 199 FCR 204

McCarthy v McIntyre [1999] FCA 784

Short v The City Bank of Sydney (1912) 15 CLR 148

Wardley Australia Ltd v Western Australia (1992) 175 CLR 514

Westbrook Holdings Pty Ltd v Roseramble Pty Ltd (1994) 13 WAR 273

COUNSEL:

J Peden and P Somers for the Plaintiff

R Anderson QC and A Stoker for the Second and Third Defendants

SOLICITORS:

Russells Solicitors for the Plaintiff

Clamenz Lawyers for the Second and Third Defendants

No appearance for the First Defendant

Introduction

  1. [1]
    The plaintiff, SEQ Homemaker 1 Pty Ltd, owned a shopping centre in Rothwell called The Zone.  In October 2012 SEQ leased one of the shop premises to the first defendant, SPAR Corporate Pty Ltd.[1]SPAR Corporate was then a wholly owned subsidiary of the third defendant, SPAR Australia Ltd.  SPAR Australia is in the business of, mainly, franchising small supermarkets, but also owns or operates some small supermarkets, albeit indirectly through a commercial arrangement with the second defendant, Digwood Pty Ltd.  SPAR Corporate entered into the lease in the context of its (or SPAR Australia’s) purchase of the existing fruit and vegetable store business being operated from the premises, by a person called Barry Edmonds, under the name Farmer Pats.
  2. [2]
    The provision of personal guarantee(s) to secure the lease was a contentious issue.   SEQ required one be given; the SPAR companies refused to provide any.   The impasse was resolved by Barry Edmonds agreeing to continue as a personal guarantor under the lease with SPAR Corporate, presumably to facilitate the completion of the sale of his business to SPAR.
  3. [3]
    Although SPAR Corporate held the lease, it was Digwood that operated the business from the shop premises, under an agreement between SPAR Corporate, SPAR Australia and Digwood, entered into about a week after the lease commenced.   SEQ was not told about this agreement.   Whether SEQ was told about Digwood at all is a controversial issue.
  4. [4]
    Business went smoothly for about 18 months.  However, in April and May 2014, SPAR Corporate breached the lease, by failing to pay rent.  SEQ terminated the lease as a result, and fairly quickly secured another lease of the premises, with Barry Edmonds’ company, Farmer Pats Rothwell Pty Ltd.    
  5. [5]
    Although SEQ secured a replacement tenant, and was able to enforce the bank guarantee given by SPAR Corporate, it says it has nevertheless suffered a financial loss as a result of SPAR Corporate’s breach of the lease, which it seeks to recover by these proceedings.   
  6. [6]
    SEQ also seeks to recover that loss from Digwood and/or SPAR Australia:
    1. (a)
      as against Digwood and SPAR Australia, on the basis that they intentionally induced SPAR Corporate to breach the lease, by entering into an agreement under which Digwood was licensed to operate the business from the premises; and
    2. (b)
      as against SPAR Australia, on the basis that it made misleading and deceptive representations, in contravention of s 18 of the Australian Consumer Law,[2]which SEQ relied upon in entering into the lease.
  7. [7]
    It is convenient to deal first with the claim against SPAR Corporate, before turning to the claims against Digwood and SPAR Australia.

SEQ’s claim against SPAR Corporate

  1. [8]
    There was no appearance for SPAR Corporate at the trial.  The Court file reveals that SPAR Corporate has been inactive in relation to this litigation since about June 2016.
  2. [9]
    The solicitors who currently act for Digwood and SPAR Australia previously acted for all three defendants.  On 15 December 2015 a notice of change of solicitor was filed, indicating that Concordia Legal, a Sydney firm, was acting for the first defendant.  That firm later ceased acting for the first defendant,[3]although it does not appear that was formalised, by the filing of any document.
  3. [10]
    Concordia Legal appeared for the first defendant on 31 March 2016, when orders were made requiring the first defendant to file an amended defence and counterclaim, withdrawing various paragraphs.
  4. [11]
    The trial of this proceeding was originally set down for 1 June 2016.   There was no appearance for the first defendant on that day.  The trial was adjourned to 21 November 2016.   Again, there was no appearance for the first defendant on that day.   The trial was again adjourned.  The reasons for each adjournment are not clear from the file, but do not seem to be directly related to the first defendant’s non-appearance.
  5. [12]
    I am satisfied that SPAR Corporate was aware of the trial which proceeded before me on 7 to 9 February.  On 3 February 2017 the solicitor for the second and third defendants wrote to the first defendant, advising that the trial was due to commence on 7 February.[4]On the same day, Brendan Maletto, the sole director of the first defendant,[5]responded, making it clear the first defendant did not intend to appear at the trial.[6]In the circumstances, I am satisfied the first defendant, SPAR Corporate, had notice of the trial; and that it is appropriate to deal with the matter substantively, despite its non-appearance at the trial.
  6. [13]
    On the pleadings, as between SEQ and SPAR Corporate, it is not in issue that:
    1. (a)
      on 17 April 2014, SEQ issued a notice to remedy breach of covenant to SPAR Corporate, demanding the payment of unpaid rent and other expenses under the lease in the amount of $56,535.21 within a reasonable time, which was said in the covering letter to be by 8 May 2014;[7]
    2. (b)
      that money was paid by SPAR Corporate on about 24 April 2014;
    3. (c)
      on 16 May 2014, SEQ issued a further notice to remedy breach of covenant, seeking payment of rent and other expenses totalling $108,304.58, “within a reasonable period of time” (it does not appear that a date was specified);[8]
    4. (d)
      SPAR Corporate did not pay the amount specified in that second breach notice;
    5. (e)
      SPAR Corporate was in breach of an essential term of the lease by reason of its failure to pay the rent and other expenses specified in the second breach notice;
    6. (f)
      SEQ issued a notice to terminate the lease, for failure to comply with the second breach notice, on 3 June 2014.[9]
  7. [14]
    Having served the notice of termination of the lease on 3 June 2014, SEQ took possession of the premises on that day.[10]
  8. [15]
    At the trial, on the pleadings, the only remaining defence to the claim against SPAR Corporate was that SEQ was not entitled to issue the notice to terminate the lease on 3 June 2014, because a reasonable period of time had not elapsed after the second notice to remedy breach of covenant had been issued.[11]
  9. [16]
    What is a reasonable time will depend on the circumstances, including the nature of the breach and what needs to be done to remedy it.[12]
  10. [17]
    In this case, the breach being a failure to pay money; in circumstances where an earlier breach notice had been issued, and paid within 7 days; a period of some 17 days (excluding the date the breach notice was issued, 16 May, and the date the notice to terminate was served, 3 June) to remedy the second breach is, objectively, reasonable.
  11. [18]
    However, there is another issue with the second breach notice.  It includes amounts – for rent, outgoings, electricity, and GST – which were also included in the first breach notice[13](and which were paid[14]).   Nothing is made of that in SPAR Corporate’s pleading, which was filed in July 2015, at a time when it was legally represented.  In circumstances where there is no pleading, let alone argument before me that the second breach notice is invalid for that reason,[15]there is no basis for me to find against SEQ on that matter.
  12. [19]
    In any event, SPAR Corporate could readily, in the time before the notice to terminate was issued, have taken issue with the contents of the second breach notice, in so far as the amounts claimed as outstanding may have been incorrect; or paid only the balance outstanding for May 2014.
  13. [20]
    I proceed on the basis that SEQ did validly terminate the lease.
  14. [21]
    The next question is whether SEQ has proved its claim for damages for breach of the lease.
  15. [22]
    SEQ claimed a total of $152,672.32, comprising:
    1. (a)
      $125,180.06 (being amounts for rent and outgoings unpaid prior to termination, and lost future rent, less the amount received on calling in the bank guarantee, and rent from the sub-lessee); and
    2. (b)
      $27,492.26 (being various expenses relating to termination of the lease, and re-letting).[16]
  16. [23]
    The issue raised above about the second breach notice was not referred to at trial, and only came to my attention whilst I was considering my decision.  That led me to consider whether there had also been an error made in the amount of the plaintiff’s claim, by incorrectly including the $56,535.21 demanded by the first breach notice, which had been paid by SPAR Corporate.   The issue was raised with the parties, by email correspondence on 17 February 2017.  In supplementary submissions dated 28 February 2017, counsel for SEQ confirmed that there had indeed been an error, and that the plaintiff’s claim ought to be reduced by that amount.
  17. [24]
    In so far as the plaintiff’s claim for lost future rent is concerned, although SEQ was able to fairly quickly secure a lease with Farmer Pats, resulting in the premises only being vacant for a short period of time, SEQ agreed on a rent concession with Farmer Pats, which explains the shortfall.[17]The invoices supporting the expenses claimed (other than $11.45 for a padlock) are in evidence.[18]There is a discrepancy of $100 in the amount said to have been received in rent from the sub-lessee[19](which is offset against the plaintiff’s claimed loss), which I will deal with favourably to SPAR Corporate.
  18. [25]
    Although I am concerned at the lack of attention to detail brought to bear by the plaintiff and its legal representatives, in pursuing judgment for its claim against a party which did not appear, on balance I am satisfied the plaintiff has proved its claim in the amount of $96,137.11.
  19. [26]
    In all the circumstances, I am satisfied that SEQ has made out its case against SPAR Corporate, and judgment will therefore be entered against the first defendant for the amount of $96,137.11.

SEQ’s claims against Digwood and SPAR Australia

  1. [27]
    The plaintiff also seeks to recover that loss by claims against:
    1. (a)
      Digwood and SPAR Australia for damages for inducing a separate breach of the lease by SPAR Corporate; and
    2. (b)
      SPAR Australia for damages for misleading and deceptive conduct, pursuant to s 236 of the Australian Consumer Law.
  2. [28]
    Before dealing with each of these claims I will first outline the factual context, by reference to the evidence at the trial.

Factual context

  1. [29]
    Mr Warren Ebert is a director of SEQ, who gave evidence on its behalf at the trial.  Mr Ebert explained how, in about 2009, he and others set up a commercial property investment business called Sentinel Property Partners.  In the course of this business, commercial properties are acquired, by companies established as special purpose vehicles to hold the properties on trust for a unit trust, in which people (principally retirees) invest.  The plaintiff, SEQ Homemaker 1 Pty Ltd, is one of these companies.  
  2. [30]
    In about December 2011 SEQ acquired a shopping centre called The Zone, at Rothwell.[20]One of the tenants was a fruit and vegetable store called “Farmer Pats”, which Mr Ebert regarded as an important one, because of the regularity of visits by its customers, which in turn brought in business to the other tenants.  The Farmer Pats business was operated by a person called Barry Edmonds.  Mr Ebert described him as “an impressive individual” in the fruit and vegetable field, and clearly held him in high regard.
  3. [31]
    In about mid-2012, SPAR[21]negotiated to purchase the Farmer Pats business from Barry Edmonds.  In that context, it was necessary for SPAR to also negotiate with SEQ, as the landlord, to secure a lease of the shop premises.
  4. [32]
    Farmer Pats had held a 5 year lease of the premises, since June 2007.  The lease provided for an option to renew, for two further 5 year terms.[22]It appears the first option had been exercised, because as at July to October 2012, when the negotiations with SPAR were taking place, according to Mr Ebert, Farmer Pats still had a binding lease for a further 5 years.[23]It was SPAR’s preference to enter into a new lease with the landlord, rather than take an assignment of Farmer Pat’s lease.[24]
  5. [33]
    Mr Anthony Lattin was the general manager of what Mr Ebert called the “Sentinel Group”.  Mr Lattin was the person most directly involved on behalf of SEQ in negotiating the lease with SPAR.[25]He dealt primarily with John Costanzo, on behalf of SPAR,[26]but Ian Stephens was also involved in the negotiations.  Mr Costanzo is, and was in 2012, the general manager for retail operations and business development with SPAR Australia.[27]Mr Stephens was, in 2012, the chief financial officer of SPAR Australia.  He is no longer employed by SPAR Australia, although is now its company secretary.
  6. [34]
    I heard evidence from Mr Ebert (for SEQ), Mr Costanzo and Mr Stephens (for SPAR Australia and Digwood).  I did not hear evidence from Mr Lattin.[28]He had left his employment with the Sentinel Property Group some years ago, on “not ideal terms”.  Mr Ebert had made no attempt to contact him to give evidence in the trial.
  7. [35]
    Following some verbal discussions, Mr Lattin on behalf of Sentinel Property Group sent a lease proposal to Mr Costanzo, of Spar Australia Limited, dated 18 July 2012.[29]The proposal included the following:
    1. (a)
      as a special condition, reference to a signage contribution [from the landlord] of up to $25,000;
    2. (b)
      in relation to guarantees, the words “to be agreed”;
    3. (c)
      identified the lessor as SEQ;
    4. (d)
      provided space for the recipient of the proposal to identify the proposed lessee, proposed trading name, “controllers of business” and “who will run the shop”;
    5. (e)
      in relation to “lease guarantors”, a typed reference to SPAR Australia Limited.   It was uncontroversial that this had been inserted before being sent on behalf of SEQ.[30]
  8. [36]
    The lease proposal was completed by Mr Stephens on 1 August 2012, and returned to SEQ. As completed by Mr Stephens, in handwriting, the lease proposal indicated:
    1. (a)
      the lessee was to be a private company, SPAR Corporate Pty Ltd, of which the directors were Lou Jardin, Rosa Jadim[31]and Miles Hedge;
    2. (b)
      no change to the “lease guarantors”, which as proposed was to be SPAR Australia Limited;
    3. (c)
      the proposed trading name would be “Jardin Fresh Life”;
    4. (d)
      the “controllers of business” would be SPAR Australia Ltd; and
    5. (e)
      “who will run the shop” was “TBA”, meaning to be advised.
  9. [37]
    Mr Stephens’ evidence was that he had told Mr Lattin, in the course of the earlier negotiations for the lease, that SPAR Australia as a public company does not offer personal guarantees.  I accept his evidence about that, because it was clear from his evidence that SPAR had a very strong position about that matter.  There was some controversy about whether or not Mr Stephens had offered, on behalf of SPAR Australia, a corporate guarantee.[32]Given that SPAR Australia Ltd was typed into the lease proposal prepared by SEQ, to be sent to SPAR, and left unchanged in the completed proposal returned to SEQ, it seems more probable than not that a corporate guarantee from SPAR Australia was offered.  However, there was no evidence that, subsequently, in particular in the period 11 to 13 October, when the issue of personal guarantees became contentious, there was any renewed request for, or offer by SPAR Australia to give, a corporate guarantee.
  10. [38]
    Mr Costanzo’s evidence was that “TBA” was inserted next to “who will run the shop” because at that time SPAR was not sure which of SPAR Corporate or Digwood would be “physically running the store”.[33]But it was not his evidence that he had expressly mentioned that to Mr Lattin.  Mr Stephens said the “TBA” next to “who will run the shop” was the result of a conversation with Mr Lattin, but again it was not suggested that Mr Stephens had said anything to Mr Lattin about which entity might be running the store.[34]
  11. [39]
    In order to understand that, it is necessary to say more about the relationship between SPAR and Digwood.  SPAR Australia is in the business of franchising, and to a lesser extent operating (albeit not directly) small supermarkets.  Australia-wide, there are about 140 franchised SPAR stores.   As at the middle of 2012, there were about seven stores which SPAR operated more directly.  These stores were referred to by Mr Costanzo as “company stores”.  These stores were in fact owned and operated by Digwood Pty Ltd, the directors of which were and are Keith and Margaret Simpson.  
  12. [40]
    As I understood Mr Costanzo’s evidence, Digwood had owned and operated these seven stores, in competition with SPAR supermarkets.  In about April 2011, SPAR Australia entered into an agreement with Digwood, as part of which the seven stores were re-branded as SPAR supermarkets, and Digwood agreed to obtain their stock supply from SPAR Australia.  Digwood continued to own and operate these stores, because it had the staff, systems etc in place to do so conveniently.[35]However, gradually, after about a year, SPAR Australia took over management control of the day to day operations of Digwood’s business,[36]in circumstances where Mr Simpson was not well.[37]It was in that context that Mr Costanzo described SPAR Australia as having the day to day operation of the (Digwood) stores.[38]
  13. [41]
    Mr Stephens also gave evidence of an agreement under which SPAR had management rights in respect of Digwood, and was able to appoint a CEO.  As at 2012 Mr Stephens was the chief financial officer of SPAR Australia.  He said that although he had no “formal role” with Digwood, “informally I was chief financial officer for Digwood”, and in that capacity, he reported to the CEO SPAR appointed to Digwood.[39]
  14. [42]
    SPAR Australia holds a 26% interest in the share capital of Digwood.  Mr Simpson holds the other 74%.   Both Mr Costanzo and Mr Stephens referred to an agreement for SPAR to acquire the balance of the shares in Digwood.[40]
  15. [43]
    Because of SPAR’s interest in the shares of Digwood, the agreement alluded to by Mr Costanzo, and SPAR’s role, as Mr Costanzo understood it, in managing Digwood’s day to day business, Mr Costanzo viewed the stores owned and operated by Digwood as “company stores”, the company being SPAR.   In relation to SPAR Corporate and Digwood, and which of those entities would be operating the Rothwell store, quite frankly, he said “as far as I’m concerned, they’re both the same”.[41]
  16. [44]
    What was clear from Mr Costanzo’s evidence is that he simply viewed the organisation that he worked for as “SPAR”, regardless of which specific corporate entities might be put in place for a particular purpose.  He regarded that as a matter for others, for example the CFO, to work out what was best for financial or taxation purposes.  He said “I refer to SPAR as SPAR”.[42]It was apparent from his evidence about the company stores that he also included Digwood within that umbrella.  In his words, “we treated Digwood as ours.  We ran Digwood”.[43]
  17. [45]
    So although it is strictly, in a legal sense, incorrect to describe the seven stores owned and operated by Digwood as “company [SPAR] owned stores”, I accept that is how Mr Costanzo viewed them.   It was clear, from his evidence, that it did not strike him as significant that a different corporate entity would be operating the store, from the entity named as tenant.[44]
  18. [46]
    Mr Stephens likewise regarded the stores owned by Digwood as indirectly owned by SPAR, as a result of SPAR’s interest in Digwood, and its role in the day to day operations of Digwood.[45]To use Mr Stephens’ phrase, his evidence and that of Mr Costanzo, makes it clear they were not concerned with “legal pedantics”, but rather the practical commercial relationship between SPAR and Digwood.
  19. [47]
    The Rothwell store was proposed to be another of these “company stores” and also, given the size of the premises, the new head office for Digwood.   The reference to “Jardin Fresh Life” in the lease proposal completed by Mr Stephens is a reference to another brand name, used by SPAR for some of its small supermarkets, and the name under which it was proposed the store at Rothwell would be operated.[46]
  20. [48]
    It is in this context that Mr Costanzo and Mr Stephens’ evidence, about there being some uncertainty about which entity would actually operate the store, is to be understood.
  21. [49]
    Returning to the lease negotiations, on 14 August 2012 the solicitor acting for SEQ, Graham Murphy of Norton Rose, sent an email to the solicitor for SPAR, Daniel Clark of Clamenz Evans Ellis, attaching the lessor disclosure statement and a copy of the proposed lease, asking for it to be signed.[47]Inconsistently with the lease proposal, the lease attached to this email included, in the reference schedule, an item 18, identifying the guarantor as “Edward George Miles Hedge, Ana Rosa Jardim and Joao Louis Jardim”, who were at that time the directors of SPAR Corporate and SPAR Australia.
  22. [50]
    Mr Costanzo said he did not have any discussion with Mr Ebert or Mr Lattin regarding the inclusion of these individual’s names as guarantors.[48]Mr Stephens said he had no idea how those names came to be included “given that SPAR Australia directors do not under any circumstances offer personal guarantees”.[49]That was a matter Mr Stephens adamantly reiterated a number of times in the course of his evidence.  I accept both Mr Costanzo and Mr Stephens’ evidence about this.
  23. [51]
    Mr Stephens said he was not aware that the lease provided for personal guarantees, until 11 October 2012.[50]That is supported by the flurry of email correspondence which ensued, after SEQ’s lawyers realised they had not previously included a signing page for the guarantors, and sent a revised copy of the lease, including that, to SPAR’s lawyers, on 11 October.  I will come to this correspondence shortly.
  24. [52]
    Mr Costanzo signed the “disclosure statement by the lessor” on 14 September 2012.  This document referred to an estimated commencement date of the lease, and handover date of the premises, of 1 October 2012.[51]
  25. [53]
    The lease was also signed on 14 September 2012, by Mr Stephens on behalf of SPAR Corporate,[52]but was not returned to the plaintiff (or its solicitor) at that time.   It is not clear what the reason for the delay was.   Mr Ebert’s description was that “they couldn’t organise themselves”, referring to a letter from Mr Costanzo in which he apologised for the delay, and effectively blamed the lawyers (on all sides).[53]
  26. [54]
    The following appears from an email chain which was produced, following a call made in response to evidence given by Mr Stephens in cross examination.[54]
  27. [55]
    Having sent the lease to SPAR’s solicitor on 14 August 2012, Graham Murphy of Norton Rose followed up by email on 24 August 2012, asking SPAR’s solicitor to let him know his client’s current position with respect to the lease.  On 30 August, Melvin Gan of Clamenz Evans Ellis (for SPAR) responded that they were reviewing the lease, and anticipated responding that day or the next with their client’s instructions.  On 7 September, Melvin Gan emailed Graham Murphy to ask whether SEQ would agree to the lease commencing on 8 October 2012.  Anthony Lattin responded directly that that was fine.  
  28. [56]
    Graham Murphy sent another email on 12 September, asking about SPAR’s position on the lease.  There was an exchange about how to effect the change to the commencement date, in practical terms, and later that day Melvin Gan advised that SPAR required no further amendments and would provide the signed documents as soon as the amended version (reflecting the change to the commencement date) was received.   The amended version was sent by Graham Murphy by email on the same day.
  29. [57]
    As already noted, the lease was signed by Ian Stephens on 14 September – but was not returned to SEQ’s solicitor at this time.
  30. [58]
    In terms of the emails, there is then a gap until 3 October 2012, when Melvin Gan emailed Graham Murphy to say that SPAR now wanted the lease to commence on 15 October 2012.  That was immediately agreed to by Mr Murphy on behalf of SEQ.   Since a replacement lease had already been provided, when the previous date change was agreed to, Murphy indicated he would not do that again, but instead asked SPAR to sign the existing version of the lease, and provide a written authority to change the date after settlement (also saying that would make it easier if any more changes to the date needed to be made).
  31. [59]
    There was then further delay, with emails referring to that being attributable to “the sublessee” (which I infer relates to a butcher, which held a sub-lease from Farmer Pats, and was presumably going to continue when SPAR’s lease commenced).  Late on the afternoon of 10 October 2012 Graham Murphy sent an email to Melvin Gan, asking what the current status of the lease was, and noting “the landlord is eager to finalise this deal as soon as possible”.  That was followed by another email on 10 October 2012 (the time of which is unclear) in which Murphy said:

“Hi Melvin

In anticipation of the lease being signed imminently by your client, attached is a replacement document noting a commencement date of 15 October 2012.

Please note that we have included an additional signing page for Edward George Miles Hedge, Ana Rosa Jardim and Joao Louis Jardim (as Guarantors) on page 66.  Although they were noted as Guarantors under Item 18 of the Reference Schedule in the original draft lease, the signing page was inadvertently left out of that document.

We look forward to receiving the signed documents as soon as possible.”

  1. [60]
    This caused a flurry of activity, consistent, as I have said, with this coming as a surprise to SPAR, and its solicitors.   Daniel Clarke, of Clamenz Evans Ellis (who had been copied on the earlier emails sent to Melvin Gan) immediately forwarded the email to Melvin Gan, John Costanzo and Lou Jardin, saying:

“John / Melvin

We don’t do personal guarantees.  John – did the negotiations have a provision for personal guarantees?

Daniel.”

  1. [61]
    Lou Jardin forwarded that email to Ian Stephens, with a message “info”.
  2. [62]
    Ian Stephens responded to Lou Jardin, saying “No personal guarantee was mentioned”.
  3. [63]
    I infer that there were verbal discussions about this, as between the solicitors, and with their respective clients.  An email from Graham Murphy to Stacey Ebert and Anthony Lattin and another on the evening of 11 October says that “[f]urther to Anthony’s instructions today, we reaffirmed SEQ’s position to SPAR’S lawyers that personal guarantees are required from the directors of SPAR Corporate Pty Ltd”.  The email attaches the response from SPAR’s lawyer “seeking a waiver of the requirement”, together with ASIC searches of SPAR Corporate Pty Ltd and SPAR Australia Ltd.[55]
  4. [64]
    The response from SPAR’s lawyer, Daniel Clarke, in a letter dated 11 October 2012, was as follows:

“We are instructed that our client is unable to obtain personal guarantees from its directors.

In light of the fact that our client’s head company is a public company, subject to annual audit and with several hundred shareholders, we request that your client consider waiving the requirement for a personal guarantee.

We note that our client’s audited results for 2011 are publically available and showed revenues of $142 million, profit of $2.69 million, total assets of $26 million and net assets of almost $5 million.

Additionally, our client’s provisional unaudited 2012 results expect to show continued profitability, increased net assets an increase in revenue to over $163 million.

Finally, we note that our client’s main financier does not and our client’s prior financier (Westpac Banking Corporation) did not require our client’s directors to enter into any personal guarantees.

Taking the above into account, can you please obtain your client’s instructions on the removal of the personal guarantee requirement?”[56]

  1. [65]
    The next day, Friday 12 October 2012, each of Ian Stephens and John Costanzo sent emails directly to Anthony Lattin and Warren Ebert, in an attempt to persuade SEQ to proceed with the lease, without the need for personal guarantees to be provided.
  2. [66]
    The email from Ian Stephens, signing off as the Chief Financial Officer of SPAR Australia Limited, was in the following terms:

“Warren/Anthony

John Costanzo has asked me to provide you a written explanation as to why the directors of SPAR Australia Limited (and fully owned subsidiary SPAR Corporate Limited) (“SPAR”) are unable to provide personal guarantees in relation to the lease of the retail premises Shop T.1.06 The Zone, Rothwell, Queensland.

SPAR Australia Limited is a public company with nearly 100 shareholders.  As you are aware, it is not normal practise for directors of public companies to provide personal guarantees.  Although unlisted, SPAR is required under ASIC regulations to have its annual accounts audited and these accounts are made publically available.  SPAR directors do not provide any personal guarantees whatsoever to any of its suppliers, landlords, financiers or any other parties.

In relation to SPAR’S financial position, the last two years, SPAR has delivered strong revenue growth and profits.  The audited results for 2011 show revenues of $142 million, profit of $2.69 million, total assets of $26 million and net assets of almost $5 million.  The annual accounts for 2012 are currently in the process of being finalised and audited.  The provisional unaudited 2013 results show continued profitability, increased net assets and an increase in revenue to over $163 million.  The budgeted revenues for 2012 anticipate a further 25% increase and the business is currently on track to exceed this target.  The acquisition of the business operating at Shop T.1.06 The Zone, Rothwell, Queensland is a key component of SPAR’s retail strategy and SPAR is committed to the long term successful operation of a grocery retail business from these premises to the mutual benefit of SPAR and Sentinel.  John Costanzo will provide you further details on the retail strategy for the premises in a separate email.

In light of the above, SPAR requests that the directors guarantee requirement of the lease be waived.  SPAR is keen to proceed with settlement on Monday 8 October and we will work with you to ensure that this timeframe can be achieved.”[57]

  1. [67]
    The email from John Costanzo, signing off as the State Manager Queensland of SPAR Australia Limited, was in the following terms:

“Warren & Anthony

You should have received an email from our CFO Ian Stephens with financial information on SPAR Australia.

I would like to step you through our plans for the conversion of Farmer Pats Rothwell to JFL Rothwell.

We had been working towards a settlement of the business on the 1st October, this was not possible as this date was a public Holiday.  We then moved the date to the 8th October, this was delayed due to the fact that the Butcher Sub-lease was not completed.  We are now all set for Monday 15th October.

I totally understand the frustration due to lack of communication from our end, it is no excuse but I believe that the lawyers on all ends have caused us grief.  We have had troubles with Barry’s solicitor (Vince Pennisi) being away and then slow to give us information.  The butchers solicitor was then slowed due to Vince and then a personal health issue.  Then our end, only to say that they could move quicker.  I have been led to believe that only 2 days ago we received notice from your lawyers that an extra page had been left out of the lease and required signing.

Leaving this aside, SPAR are committed to completing the purchase of Farmer Pats, we have already invested a lot of time and money into the store and plan to complete a lot more.

To date we have already completed:

  • 2 express lanes to be fitted replacing 2 full belted units.  Completed.
  • Cigarette unit to be installed.  Completed.
  • 3 x drink fridges to be added next to new express lanes.  Completed.
  • Produce case to be relocated.  Completed.
  • 2 Dairy cases to be relocated.  Completed.
  • 7 Door freezer to be installed.  To be installed in 5 weeks’ time.
  • Bread unit to be reduced in size.  Completed.
  • Snack food section to be relocated.  Completed.
  • 2 runs of extra shelving to be installed.  To be erected w/c 15th of October
  • Produce lounges to be reduced in size and put in new location.  Completed.
  • J C Nut stand reduced in size and relocated.  To be actioned w/c 15th of October.
  • Full Store relay of Grocery, Chiller and Freezer sections.  To be actioned w/c 15th of October.

I have a 20 pallet grocery delivery waiting to be delivered to the store on Monday, with another 10 pallet delivery on Tuesday.  Starting Monday morning I have a team coming into the store to start relaying and re-ranging (sic) the entire grocery department.  This will include the erection of an additional 2 x grocery shelving runs, and adding an additional 4500 grocery lines to the current range.  The grocery load planned for Monday also includes 12 pallets of ‘special buys’ which are well below cost bulk displays to start pushing the store.  The grocery pricing will be reset, we are going to be running under Coles/Woolworths pricing, to so push customers into the store and shopping centre.

We have employed a new Store Manager, he is a very experienced Store Operations Manager who has had over 20 years’ experience with IGA and Cornett’s IGA group.  His role is to oversee the store and to heavily push the grocery side of the business.

As you can see above we have already started to take action on the changes of the inside of the store, we are planning the external changes at the same time.  Rebecca Andrews our Marketing Manager has been in contact with your marketing people, she has received a quote to re-paint the outside of the building and is currently getting signage over-lays of the new JFL design.  A full and comprehensive marketing plan is being developed to launch the store, our plan is that this will take place in early December.  This timing will be consistent with the opening of Office Works and give us time to make the upgrades and changes to the presentation of both the internal and external of the store.

SPAR already has ownership of 7 other company owned stores.   These are located in Ballina, and 6 stores in the Caboolture area.  Rothwell will be the new ‘hub’ of the Caboolture stores, and our plan is to run the head office of the company stores from Rothwell.  All other company stores are trading well and with the addition of Rothwell to the network, will allow our growth in the area.  We are also currently negotiating on 2 other sites in the area, and are active in our growth strategy in store operations and ownership.

I have attached a copy of the internal plan of Rothwell, this shows the changes that have either already been made or are about to be completed over the next few weeks.  Also attached are photos of our other two JFL stores located in Canberra and Sydney, these photos show you what the internal look and signage will be at Rothwell when the changes are completed. 

We are committed to growing this store, and also plan to grow our numbers in the region.  I shall contact you shortly to discuss the above.”[58]

  1. [68]
    In a further short email sent to Mr Ebert later on 12 October, Mr Costanzo also said that by way of compromise, “SPAR is prepared to forgo the $25K signage contribution”.[59]Mr Ebert responded, later that evening:

“… I understand you would have been contacted by Barry to confirm a meeting for 8.30am tomorrow (saturday).  the previous deal we had expired yesterday.  We have made representations to our financiers, investors etc.  In order for a deal to happen;

a. a 6 month bank guarantee will be provided

b. there is no signage contribution from the lessor

c.  you will provide confirmation that you are in a position to make binding commitments on behalf of the proposed lessee.

d.  binding commitments will be entered into in relation to scope of works including timing.”[60]

  1. [69]
    It was clear from Mr Costanzo and Mr Stephens’ evidence that by this time, they were under instructions from the managing director of SPAR to “get the deal over the line”, but also that there was strong resistance to any personal guarantees being given.  SPAR had already invested a significant amount of money in getting the new store ready to operate, including ordering stock, purchasing new refrigeration and shelving; as well as in effecting the plan to relocate the head office of Digwood to the offices at the back of the store.  As Mr Stephens said “it would have been a disaster if the transaction had fallen over… from the business’s point of view”.[61]
  2. [70]
    Although it was Mr Stephens’ evidence that he had told Mr Lattin earlier, in the course of the negotiations, that no personal guarantees would be given, there is no mention of any such previous discussions in the emails of 11 and 12 October.  Mr Stephens said there was a good reason for that – because “Mr Lattin had slipped up, and we didn’t want to cause further chaos than what had already been caused”.[62]Given the very clear position articulated by Mr Stephens, about SPAR directors not giving personal guarantees, and the inclusion in the lease proposal of the typed reference to SPAR Australia as guarantor, I am prepared to infer that it was mentioned at some time to Mr Lattin.  However, I also infer that the matter was not discussed in any great detail – including that there had not been a clear request or demand by SEQ for the provision of a personal guarantee(s).   The lease proposal was clear, in that it contemplated a guarantee from SPAR Australia.   Although the first version of the lease sent on 14 August does include the names of individual directors as guarantors, the tone of the email correspondence, and the subsequent action, supports the inference that their inclusion came as a complete surprise to SPAR’s lawyers (rightly or wrongly), as well as Mr Costanzo and Mr Stephens.
  3. [71]
    Mr Ebert’s evidence was that by the time the emails from Mr Costanzo and Mr Stephens were received, “the deal was pretty much over”, but these emails showed they (SPAR) were still keen to do a deal, and “it is our role to try and get the best outcome we can for our investors”.   Mr Ebert arranged to meet with Mr Stephens and Mr Costanzo the following morning, Saturday 13 October 2012, to see if an agreement could be reached.  As to his position prior to this meeting, Mr Ebert said, “I would like to have done a deal if it was going to be in the interest of investors, but … I was starting to have serious concerns about their capacity because it had been delayed for so long”.[63]
  4. [72]
    The meeting on 13 October involved Warren Ebert, Anthony Lattin, John Costanzo, Ian Stephens and Barry Edmonds (of Farmer Pats). 
  5. [73]
    Mr Ebert said the meeting took place at the shop premises.  He said “they”, which I take to mean Mr Costanzo and/or Mr Stephens, on behalf of SPAR, said they were ready to start business on the following Monday.  Mr Ebert gave the following evidence:

“But, at this stage, they didn’t have a lease? --- That’s correct.

All right.  And were you prepared to let them into possession without a lease? --- Well, we had a lease with Barry Edmonds, so, you know, Barry was still running the store, so it wasn’t as if we had a vacant store and no business.  So that was going to be – Barry Edmonds had to be a party to it, because, as of that time, he had a legally binding lease.[64]

Yes.  All right.  So did you say anything about your concerns about the prospect of the tenant’s performance? ---  Well, given that the delays that we had and correspondence from John Costanzo acknowledging that they hadn’t – hadn’t been in communication with us, and, with anything, when you’re not being told things, you tend to assume the worst, so we thought it was all coming to an end, but he assured us that wasn’t the case – they were doing everything they could, behind the scenes – so I wanted to make sure, if they were going to do it, that Barry Edmonds provided some support in helping to run the business.  And, by that time, it was confirmed that Barry would be working or assisting with the ongoing business.

All right.  Do you remember what was said to you, and by whom, if you could remember, about the – what Barry Edmonds would actually do to help support the business? --- Well, they were all in the one room, so I’m not sure who started first – whether it was John Costanzo, or Barry – but it was agreed that Barry would be assisting them in buying the fruit and vegetables, which, for Farmer Pats – you know, with the name – that was certainly a very important part of it.  And, also, he was going to help them run the fruit and vegetable side, which, of all the [indistinct] in Brisbane, it was quite impressive, so that gave me comfort that that side would be run as it currently is and, possibly, better.”[65]

  1. [74]
    When asked to what extent the emails, from Mr Costanzo and Mr Stephens, of the day before, were still operative on his mind, Mr Ebert referred to “some of the things that Mr Costanzo said about the equipment they’d bought and work they’d already done at the store – that they really did want to do the deal, and that they had taken action.  So, if we could get the structure right, well, then we certainly would – it was in the interest of the investors to do the deal”.[66]
  2. [75]
    But in relation to this, it was clear from Mr Ebert’s evidence that he did not put much stock in what he had been told by Mr Costanzo:

“The – at that point in time, you knew that SPAR had invested considerable time and money in moving into the premises and advancing their occupation of it.  You knew about that, didn’t you? --- No.  I didn’t.

You’d been told in the email from Mr Costanzo what had been done in the previous days.  That’s true, isn’t it? --- I’d been told, but given they hadn’t done most of the things they’d said they’d do, I don’t beli – believe nothing in writing and only half of what you see.

So you didn’t believe what Mr Costanzo had said to you? --- I took it with a grain of salt.”[67]

  1. [76]
    One of the main sticking points to finalising the deal was the provision of personal guarantees.  As the correspondence referred to above makes clear, SPAR had been adamant it would not provide personal guarantees.  That was reiterated at this meeting.[68]
  2. [77]
    The impasse was resolved by Barry Edmonds – who offered to leave in place the personal guarantee he had already given, as security for the Farmer Pat’s lease.   Although I did not hear evidence from Mr Edmonds, it is reasonable to infer that he was prepared to do this, in order to facilitate the completion of the sale of his business to SPAR.
  3. [78]
    In relation to this, Mr Ebert said:

“… we had a personal guarantee from Mr Barry Edmonds, who was a person of substance and of good character, and everything that he had said during the time we had owned it turned out to be correct, and he always did what he said he would do.  So Mr Edmonds actually offered up to leave his person[al] guarantee there … I think the existing lease had about five years to go, and he said he would leave his personal guarantee up there for that amount of time, if we did a new lease with the Spar Group.

Did you ask Mr Edmonds for the guarantee, or did he offer ---? --- No, I didn’t.  He offered it up.

And, prior to him offering up the personal guarantee, what other offers of personal guarantees have there been? --- At that meeting, nothing, because that was the point where they said, “No.  Well, we’re just not giving personal guarantees”.

All right.  Now, so far as you were concerned, then, what was the importance of the personal guarantee from Mr Barry Edmonds, for your business? --- The most important thing – that Barry would be involved in the day-to-day.  And while you have guarantees there – personal guarantees or bank guarantees – so you can call on that when the business fails as a shopping centre owner or, I think, owner of any – any income-producing asset, the last thing you want is a tenant to fail.  You’re not going into it to actually collect on the guarantees, but, by having guarantees up there, it actively encourages them to put their shoulder to the wheel and make sure the business is a success.  So that’s what I say by Barry being there – that it showed his commitment to making sure the business carried on successfully.

Right.  And can I just ask you this.  At this stage, the name of the tenant that had been put forward was Spar Corporate Pty Ltd? --- It was part of the Spar Group.  We only ever discussed the name Spar.

Well, as far as you were concerned, and your business with Sentinel and what you were proposing to do to fund the acquisition, what’s the relevance of the identity or name of who the tenant’s going to be? --- As I said before, you want to make sure they can run the business.  It’s not only how much money they have.  We’ve seen plenty of people who have had the money to go and buy a business, but they can’t run the business, and then the business collapses.  And in a [indistinct] like that, as I said at the start, it’s never relying upon one tenant, and while Farmer Pats was, of all of them, the most important tenant, it wasn’t the only tenant, but it was – it’s very important that the business is successful because it helps draw people in to do their banking[69]to do all the other things that are there.

All right.  And just in terms of the – who the lease is entered into, assuming you’re happy with [indistinct] does it matter to you which entity – whether the entity that’s the lessee [is] the operator, or can it be someone else [indistinct]? --- Well, we’d want it with – we want it with the operator.  You know, we want the person who’s got their – you know, on the line.

All right.  And in terms of the Sentinel business, is there any – was there anything – apart from just business desirability – that impacts on that view … [that the] lessee should be the operator? --- Well, if the lessee isn’t the operator, you would certainly want to wonder – you would want to know why they’re not the operator, because the more curtains that get up, you know, the more concerns you have, so, you know, given that we’d been dealing with the one lot of people all the way along, you know, if they wanted to put up someone else, you’d then have to start questioning why that is the case, and not to say that it’s all above board, but you want it thoroughly explained and we’d have to – we’d have to look through it.  But [indistinct] day before, you know, we’re receiving emails from –from Mr Costanza and Spar solicitor telling us how great that business is, with turnover of, I think, 123 million and net – and assets of 26 million, and unaudited turnover figures for the year before of 160-odd million. So when they’re telling me how great that company is, that’s the company you want the lease with.”[70]

  1. [79]
    In any event, once Barry Edmonds offered to keep his personal guarantee in place, the impasse was resolved, and the deal was finalised.   As Mr Costanzo described it, prior to this, the meeting had been “slightly elevated at times”, with both sides trying to get their own way, but after Barry Edmonds offered to remain as personal guarantor on the lease, “it was like the clouds opened and the sun shined through the heavens”.[71]Mr Stephens’ evidence was to the same effect, that once Barry Edmonds offered to continue as personal guarantor, the previously tense air of the meeting relaxed, and it came to an end.[72]
  2. [80]
    One of the controversial issues in the case was whether SEQ was ever told about Digwood.  Mr Stephens said that he mentioned Digwood to Mr Ebert, during this meeting on 13 October.  He said that, after the point in the meeting when Barry Edmonds offered to continue as guarantor, they went to have a look around the store.  He said that he and Mr Ebert became separated from the others, and “I took the opportunity to show him the office area we were moving the Digwood office staff into…”.   Mr Stephens’ evidence was that he recalled saying to Mr Ebert “This is where the Digwood office team are moving in to… operate the head office for the seven stores, plus this store”.  He said he was certain he used the word “Digwood”, because “Digwood was the one that operated the corporate stores” and he “referred to it as Digwood as normal practice”.[73]
  3. [81]
    Mr Costanzo could not say that he at any time used the word “Digwood” when speaking to Mr Lattin or Mr Ebert.  His evidence was that he would have referred to “company stores” – which is consistent with the language used in his email.
  4. [82]
    Although Mr Ebert was aware of SPAR’s intention to set up a head office at the Rothwell premises,[74]he said there was “no chance in the world” that anything had been said to him about the company Digwood Pty Ltd.   Mr Ebert’s evidence was that he had never heard of Digwood prior to this litigation commencing.  He had no prior knowledge of the agreement between SPAR and Digwood, licensing Digwood to operate the business from the shop.  Mr  Ebert said, if he had been told Digwood would be the operator of the business:

“I would want to know the details of the company.  Who’s behind it, what experience do they have, what assets they have, and why it’s all of a sudden changing to some other entity.  And there can be genuine reasons, so we wouldn’t just say no straight up.  We would want to know the details, but it was never, ever discussed with us.”[75]

  1. [83]
    Mr Ebert seemed to be indicating that, had he been told of the arrangement with Digwood, he would have expected the lease to be assigned to Digwood, and in that context, conscious that a landlord cannot unreasonably withhold consent to an assignment, could not say (now) that SEQ would not have consented – it would depend on whether they were satisfied that the assignee was “equal or better than the existing tenants”.[76]
  2. [84]
    The evidence of Mr Stephens and Mr Ebert on this point is reconcilable.  Mr Stephens may well have used the word Digwood, but he clearly did not do so in a context which made it clear to Mr Ebert that a company called Digwood Pty Ltd was going to be operating the supermarket / fruit and vegetable store at the shop premises the subject of the lease.   At best it seems to have been a passing reference, in relation to the use of the office space.  Such a passing reference may have made no impression at all on Mr Ebert.   I accept Mr Ebert’s evidence that, as far as he was concerned, Digwood was not mentioned to him.
  3. [85]
    There was inconsistent evidence given about where this meeting took place.  Mr Ebert and Mr Costanzo said it took place at the shop premises.   Mr Stephens said it began at a coffee shop near the shop, and then later moved to the shop premises.[77]Mr Ebert denied that there was any coffee shop nearby.[78]Someone is plainly mistaken in their recollection; but whether that is Mr Stephens, or Mr Costanzo and Mr Ebert, this issue is not such as to cause me to doubt the credibility or reliability overall, or in any particular respect, of any of their evidence.   I proceed on the basis that all the witnesses, who gave their evidence under oath, were doing the best they could to give a truthful account, and in making the necessary findings to determine this proceeding, have focussed on an objective analysis of all the evidence, and a consideration of where the balance of probability lies, on the basis of that evidence, rather than on the basis of general conclusions about any witness’ credibility.[79]
  4. [86]
    The changes which were agreed to be made to the lease, at this meeting, are recorded in an email sent later on 13 October 2012 by Mr Lattin, and included:

“- 3 month guarantee [equivalent to 3 months rent, outgoings and GST] to remain in place…

- Guarantors listed under Item 18 are to be replaced by Barry Edmonds (guarantor under the Farmer Pats lease). This guarantee is to remain in place for an initial term of 4 years and 9 months but a review mechanism will be required at the end of this period.

- Signage contribution of $25k to be deleted from the lease. …”[80]

  1. [87]
    The lease commenced on the following Monday, 15 October 2012.  Mr Ebert signed the lease on 18 October.

The Business Operating License and Supply Agreement

  1. [88]
    About a week or so after the lease commenced,[81]SPAR Australia, SPAR Corporate and Digwood entered into an agreement called “Business Operating License and Supply Agreement” (for convenience, I will refer to this as the business operating agreement).
  2. [89]
    The recitals to the business operating agreement record that (interposing the parties’ names, for their description in the agreement):

“A. [SPAR Corporate] operates the Business.[82]

B. [SPAR Corporate] has previously purchased shares in [Digwood] for the purpose of ensuring that [Digwood] changed its supplier for goods that it required for its business, from Metcash Trading Limited to [SPAR Corporate].

C. [Digwood] is in the business of owning/operating groceries and fruit barns.

D. At the request of [Digwood], [SPAR Corporate] has agreed to enter into separate arrangements (each being severable to another) whereby:

  1. (a)
    [SPAR Corporate] will license the operation of the Business to [Digwood] and [Digwood] will operate the Business;
  1. (b)
    [Digwood] will purchase Goods for [Digwood’s] Businesses from [SPAR Australia];
  1. (c)
    [Digwood] will purchase administration and information technology services from [SPAR Australia] as directed by [SPAR Australia]; …”
  1. [90]
    Under the business operating agreement:
    1. (a)
      by clause 2.1, SPAR Corporate granted to Digwood a licence to manage and operate the whole of the business (as defined) from the premises;
    2. (b)
      by clause 2.2, the licence was to be effective from 15 October 2012 and continue for 5 years, after which it would automatically renew for periods of one year, unless either party terminates;
    3. (c)
      by clause 2.4, Digwood was required to pay a fee to SPAR Corporate equal to 1% of all gross turnover of the business (which Mr Stephens’ evidence established would have been about $36,000 per annum[83]);
    4. (d)
      by clause 3.1, in order to allow Digwood to perform its obligations under the agreement, SPAR Corporate granted to Digwood the non-exclusive use of the premises; and Digwood agreed that it would not use or occupy the premises for any purpose other than to conduct the business;
    5. (e)
      by clause 3.2, Digwood agreed to reimburse SPAR Corporate for all rent and outgoings under the lease; and
    6. (f)
      clause 3.3 contained an acknowledgment by Digwood in the following terms:

“[Digwood] acknowledges that it has received a copy of the lease agreement between [SPAR Corporate] and the landlord of the Premises (the Landlord) (the Lease) and that it is aware of the obligations, covenants and warranties provided by [SPAR Corporate] in the Lease.  [Digwood] agrees to comply with those obligations, covenants and warranties as though it was the tenant under the Lease INSOFAR that those obligations, covenants and warranties do not relate to payment of any amounts.  Where the Lease requires:

  1. (a)
    consent from the Landlord, [Digwood] will request that consent from [SPAR Corporate]; or
  1. (b)
    [SPAR Corporate] to give notice to the Landlord for whatever reason, [Digwood] shall give notice to [SPAR Corporate] as provided in the Lease.”
  1. [91]
    SEQ was not told about this agreement.  It was first disclosed, in these proceedings, in May 2016, on the eve of a previously scheduled trial.  Despite that, Mr Ebert’s evidence was that he first saw the document the day before the trial before me.[84]

SPAR Corporate defaults

  1. [92]
    In April 2014, SPAR Corporate defaulted, by failing to pay rent under the lease.  Although that default was remedied, it defaulted again in May and, when that was not remedied, the lease was terminated by SEQ on 3 June 2014.
  2. [93]
    The reasons for SPAR Corporate’s default were not really the subject of evidence before me, save for one question put to Mr Stephens, to which he responded that SPAR Corporate stopped paying rent because “it felt it had been misled in the information that’s been provided when it was entered into the lease”.[85]SPAR Corporate had previously brought a counterclaim against SEQ, among other things, on the basis of an allegation of misleading and deceptive conduct by SEQ prior to entering into the lease.   Those parts of the counterclaim (and others) were effectively struck out, by order made on 31 March 2016. 
  3. [94]
    Following termination of the lease, SEQ was able to secure a new tenant – Barry Edmonds’s company, Farmer Pats Rothwell Pty Ltd – quite quickly.  As Mr Ebert put it, “because Mr Edmonds had personal guarantees up, he really needed to get back in and operate the store… he was left with no choice but to do that”.[86]The new lease commenced on 27 June 2014, and was for a term of just over 8 years – taking the lease up to the expiry of the ten year term the subject of the SPAR Corporate lease.[87]
  4. [95]
    SEQ did not exercise the guarantee given by Barry Edmonds, even though Mr Ebert agreed he knew it to be a valuable guarantee, and had no doubt about Mr Edmonds’ capacity to meet the demands of the guarantee.[88]

Interference with contractual relations – claim against Digwood and SPAR Australia

  1. [96]
    SEQ claims that Digwood and SPAR Australia induced SPAR Corporate to breach the lease, by entering into the business operating agreement, which they knew would put SPAR Corporate in breach of the lease.
  2. [97]
    The elements of the tort of intentional interference with contractual relations are as follows:
    1. (a)
      there must be a contract between the plaintiff and a third party;
    2. (b)
      the defendant(s) must know that such a contract exists;
    3. (c)
      the defendant(s) must know that if the third party does, or fails to do, a particular act, that conduct of the third party would be a breach of the contract;
    4. (d)
      the defendant must intend to induce or procure the third party to breach the contract by doing or failing to do that particular act; and
    5. (e)
      the breach must cause loss or damage to the plaintiff.[89]
  3. [98]
    The first two elements are not controversial in this case.  There was a lease between SEQ and SPAR Corporate.  SPAR Australia and Digwood knew of the lease, and its terms.
  4. [99]
    As to the third and fourth elements, knowledge and intention, it has been held that the gravamen of the tort is intention, and that knowledge is an aspect of intention, rather than a separate ingredient of the tort.  The knowledge supporting the intention to interfere with contractual rights is the “actual” or “subjective” state of mind of the alleged tortfeasor (here, SPAR Corporate and Digwood).[90]
  5. [100]
    In Short v The City Bank of Sydney (1912) 15 CLR 148 at 160, Isaacs J said:

“But to constitute that cause of action [inducing breach of contract], the defendant must have induced or procured the doing of what he knew would be a breach of contract.  A bona fide belief reasonably entertained that it was not a breach of contract would be fatal to the claim.  If the defendant did not know of the existence of the contract, he could not induce its breach; if he reasonably believed it did not require a certain act to be performed, his inducing a party to the contract to do something inconsistent with it could not be regarded as an inducement or procurement knowingly to break the contract; if he believed on reasonable grounds that the contract had been rescinded, or performance waived, when in fact it had not, he could not be said to knowingly procure its breach.  If this were not so, no man would be safe in the ordinary transactions of life, because he might find contrary to his knowledge or belief and expectation that some contract or enterprise he entered into was inconsistent with the contractual or other obligation of the party with whom he was agreeing or dealing.  No doubt every man must be understood to intend the natural consequences of his acts; but that means having regard to the circumstances with which he is or is assumed to be acquainted.  And the terms of an agreement and its true construction, for it may be very complicated, and the acts of the parties in relation to it are circumstances without knowledge of which reasonably brought home to the mind no man can be said to intend consequences regarding the breach of the agreement.”

  1. [101]
    Negligence or even gross negligence is not sufficient to establish the requisite knowledge or intention.   In this regard, in LED Technologies v Roadvision at [50] Besanko J said:

“The fact that negligence or even gross negligence is not sufficient is established by the decision in British Industrial Plastics Ltd v Ferguson (1940) 58 RPC 1.  The circumstances of that case and the decision were described by Lord Hoffman in OBG Ltd v Allan at [39]:

… This proposition is most strikingly illustrated by the decision of this House in British Industrial Plastics Ltd v Ferguson [1940] 1 All ER 479, in which the plaintiff’s former employee offered the defendant information about one of the plaintiff’s secret processes which he, as an employee, had invented.  The defendant knew that the employee had a contractual obligation not to reveal trade secrets but held the eccentric opinion that if the process was patentable, it would be the exclusive property of the employee.  He took the information in the honest belief that the employee would not be in breach of contract.  In the Court of Appeal [1938] 4 All ER 504, 513, MacKinnon LJ observed tartly that in accepting his evidence the judge had ‘vindicated his honesty … at the expense of his intelligence’ but he and the House of Lords agreed that he could not be held liable for inducing a breach of contract.”

  1. [102]
    Further, in LED Technologies v Roadvision at [54], after saying that the evidence in that case would not support a finding of actual knowledge that the third party’s conduct would breach its agreement with the plaintiff, Besanko J said:

“The question is whether either of them turned a blind eye to the possibility.  That means whether they made a conscious decision not to inquire into the existence of a fact in case they ‘discovered a disagreeable truth’.  The third possible category of knowledge, namely, reckless indifference, is more difficult to describe in terms of content.  I think that there is such a category, but bearing in mind that the tort under consideration is an intentional tort and gross negligence is insufficient it seems to me that reckless indifference is something quite close to wilful blindness.  It will be negated by an honest belief, even one exhibiting a high degree of credulity.  It will be established only if the facts show affirmatively that the alleged tortfeasor, faced with knowledge of at least a substantial prospect of a breach, proceeded not caring whether or not a breach, would occur.”

  1. [103]
    The plaintiff bears the onus of establishing the elements of this cause of action.  It depended on the evidence of Mr Costanzo and Mr Stephens, the only witnesses who gave evidence for SPAR Australia and Digwood, to establish the requisite knowledge and intention.
  2. [104]
    I note that there was no argument put that the state of mind of SPAR Australia or, for that matter, Digwood, could not be established by reference to the evidence of Mr Costanzo and Mr Stephens.  In terms of SPAR Australia, that is unsurprising, given the role of each of those men, in relation to the company.  In relation to Digwood, it would seem to be consistent with the close commercial relationship between the companies, and the evidence as to the role that SPAR Australia had in relation to the day to day management of Digwood’s business.
  3. [105]
    Before dealing with the issue of knowledge and intention, it is necessary to address briefly an argument that in fact the business operating agreement did not result in SPAR Corporate breaching the lease.  The particular clauses of the lease which SEQ contends were breached by SPAR Corporate are:
    1. (a)
      clause 8.1, which provided that “[t]he Tenant must not use, occupy or permit the Premises to be used or occupied for any purpose other than as stated in Item 15 of the Reference Schedule”.  The permitted use of the premises, set out in item 15, is “retail sale of fruit, vegetables, groceries and meat”;
    2. (b)
      clause 8.3(1) and (10), which provided that “[t]he Tenant must (1) conduct the Tenant’s business in the Premises as permitted under this Lease… [and] (10) operate and conduct its business in and use and occupy the whole of the Premises throughout the Term….”; and
    3. (c)
      clause 9.1(2), which provided that “[t]he Tenant must not … (2) sublet, part with possession of or grant any licence affecting the Premises”.
  4. [106]
    It is reasonable to argue that there was no breach of clause 8.1, because SPAR Corporate did not permit the premises to be used for a purpose other than that specified in item 15.  However, the effect of the business operating agreement, under which Digwood operated the business, under a licence granted by SPAR Corporate, was inconsistent with the obligations of SPAR Corporate under clauses 8.3(1) and (10) and 9.1(2), and therefore involved a breach of the lease.
  5. [107]
    However, I am not persuaded, on the evidence, that either SPAR Australia or Digwood knew that if SPAR Corporate entered into the agreement, it would be in breach of the lease; or that those companies intended to induce or procure SPAR Corporate to breach the lease, by entering into the agreement.
  6. [108]
    Mr Costanzo had no knowledge of the contents of the business operating agreement.  He had not read it before, and said it was not a matter he had been involved in negotiating.   He alluded to a “management agreement”, which he seemed to think was the document which is in evidence,[91]but which I am satisfied cannot be so.  The management agreement alluded to by Mr Costanzo was one seemingly concerned with an arrangement as between SPAR Australia and Digwood, and which enabled SPAR Australia to run the day to day business of Digwood.  
  7. [109]
    I accept Mr Costanzo’s evidence that he did not know that the agreement, under which Digwood was licensed to operate the business at the store, would put SPAR Corporate in breach of the lease.[92]Indeed, I do not think Mr Costanzo turned his mind to this at all.   It was quite clear from his evidence that he did not think of the various corporate entities involved in SPAR’s business (which, to him, included Digwood) in any separate way; and saw no significance to the operator of the store being a different entity from the lessee.
  8. [110]
    Mr Stephens did have knowledge of the business operating agreement.  He was involved in negotiating that agreement, and signed it on behalf of SPAR Australia.  He also denied knowing that the operation of that agreement caused SPAR Corporate to be in breach of the lease, and said “I don’t believe that it is.  The same lawyers reviewed the lease as prepared the agreement.  I wouldn’t have … condoned any action that would’ve been in breach of the lease”.[93]
  9. [111]
    Mr Stephens suggested that, in terms of Digwood operating the store, “it was in the open the whole time”.   On the evidence, I do not accept that.   What the evidence does demonstrate is that it was openly contemplated, at some stage at least, that a different entity from the lessee would be “running the store” (as is clear from the lease proposal); but I am unable to find that reference was ever clearly and expressly made to Digwood, in the context of which entity would be running the store.  Mr Stephens’ evidence of what he said to Mr Ebert at the meeting on 13 October does not rise to this level.  The emails of 12 October make no reference to Digwood – referring only to SPAR Corporate and SPAR Australia. 
  10. [112]
    But notwithstanding that finding, I can see no basis to reject Mr Stephens’ evidence that it did not occur to him that the business operating agreement would put SPAR Corporate in breach of the lease.  Mr Stephens’ evidence is consistent with the approach apparent from both his evidence more generally, and Mr Costanzo’s evidence, of seeing the various entities as part of the SPAR group; and this business being run by “SPAR”, however that was structured internally.  Apart from the fact that, under the business operating agreement, Digwood would be running the business, there is no sense in which any intention that SPAR Corporate would not meet its obligations under the lease otherwise can be discerned from that agreement.  The permitted use of the premises was consistent with the lease (cl 3.1); it was anticipated that SPAR Corporate would continue to meet its obligation to pay rent and outgoings under the lease (cl 3.2); and there was an acknowledgment of awareness of the obligations under the lease, and a promise by Digwood to comply with them (cl 3.3).
  11. [113]
    It is also apparent, from the evidence, that SPAR Australia genuinely wanted to see the business operate successfully at the premises (however that was structured).  Time and money had been invested into purchasing the business from Barry Edmonds, and in setting up the premises to operate the new store.  Mr Costanzo even stepped in to manage the business for 6 months, when the store manager left unexpectedly.[94]None of that is consistent with an intention to induce SPAR Corporate to breach its obligations under the lease.
  12. [114]
    Perhaps it could be said that someone in Mr Stephens’ position ought to have realised that the business operating agreement would have the effect of placing SPAR Corporate in breach of the lease.[95]But on the evidence before me, I am unable to conclude that he wilfully turned a blind eye to that possibility, or was recklessly indifferent to it (as those concepts are explained by Besanko J in Led Technologies v Roadvision).   
  13. [115]
    SEQ has failed to discharge the onus of proving that Digwood and SPAR Australia knew the business operating agreement would result in SPAR Corporate being in breach of the lease, or that they intended to induce or procure SPAR Corporate to breach the lease by entering into that agreement.  Therefore, the claim against SPAR Australia and Digwood on this basis fails.
  14. [116]
    Although it is not necessary to do so, given the conclusion reached in relation to knowledge and intention, I will briefly address Digwood and SPAR Australia’s further argument that, in any event, the breach of the lease said to have been induced by those parties (that is, breach of clauses 8.3 and 9.1) was not causative of the loss claimed by SEQ in this proceeding.  As submitted for Digwood and SPAR Australia, “[t]he reality is that the plaintiff’s best case is that the breach caused the business to be run by an entity other than the first defendant as lessee – no relevant loss however flows from that fact.  There is no evidence that by that fact it was operated in a manner different from the manner in which it would have been conducted by the first defendant (if the first defendant alone had performed the contract) and that in doing so the plaintiff suffered loss.”[96]
  15. [117]
    I accept that submission.  It has not been established that SEQ suffered any loss, as a result of SPAR Corporate’s breach of clauses 8.3 and 9.1 of the lease.  Although SEQ pleads a case based on loss of opportunity,[97]that is inconsistent with its actual claim, which is based on loss of the bargained for performance under the lease.[98]In any event, given that the breach of clauses 8.3 and 9.1 occurred after the lease was entered into, the opportunities said to have been lost (other than terminating the lease) were not available; and as for terminating the lease, there was no evidence that that is something SEQ would have done, had it been told of the business operating agreement, and that may well have placed SEQ in a worse position.  SEQ has not established that there is any link between SPAR Corporate’s breach of the lease, which occurred in May 2014; and the breach of the lease which SEQ alleges was effected by SPAR Corporate’s entry into the business operating agreement, in October 2012, one week after the lease commenced.  Despite the October 2012 breach, SPAR Corporate remained liable on all the covenants under the lease; the breach of clauses 8.3 and 9.1 did not affect that.[99]

Misleading and deceptive conduct – claim against SPAR Australia

  1. [118]
    Turning then to the claim against SPAR Australia for damages for misleading and deceptive conduct.
  2. [119]
    On the basis of:
    1. (a)
      the leasing proposal completed by Mr Stephens on behalf of SPAR Corporate and SPAR Australia;
    2. (b)
      the draft lease sent to SPAR’s solicitor by SEQ’s solicitor on 14 August 2012;
    3. (c)
      SPAR’s solicitors letter of 11 October 2012;
    4. (d)
      Mr Stephens’ email of 12 October;
    5. (e)
      Mr Costanzo’s email of 12 October; and
    6. (f)
      the meeting on 13 October,

SEQ alleges that various information was conveyed by SPAR Corporate and SPAR Australia,[100]including the following representations:

  1. (i)
    that it would be SPAR Corporate which would carry on the business from the premises as lessee; and
  2. (ii)
    that SPAR Australia would provide all necessary financial assistance to SPAR Corporate to meet its obligations under the lease.[101]
  1. [120]
    SEQ argues that those representations were misleading or deceptive, or likely to mislead or deceive, in contravention of s 18 of the Australian Consumer Law, because in fact:
    1. (a)
      SPAR Corporate was not the operator of the business carried on from the premises;
    2. (b)
      Digwood was the operator of the business;
    3. (c)
      SPAR Australia did not provide all necessary financial assistance to SPAR Corporate to meet its obligations under the lease; and
    4. (d)
      the representations were therefore untrue.[102]
  2. [121]
    SEQ says that, in reliance on the representations, it entered into the lease, gave SPAR Corporate exclusive possession of the premises, and did not require guarantees from SPAR Australia, or the directors of SPAR Corporate of the latter’s obligations under the lease.[103]SEQ pleads that, but for the representations, it would have:
    1. (a)
      required Digwood to enter into the lease, or required that the lease be assigned to Digwood, and/or required the first defendant, second defendant and third defendant, and their directors, to provide personal guarantees;
    2. (b)
      if that was refused – not have entered into the lease;
    3. (c)
      withheld consent to any assignment of Farmer Pats lease, and kept Farmer Pats as a tenant;
    4. (d)
      not have incurred any legal costs in these proceedings.[104]
  3. [122]
    The compensation claimed is the amount of SEQ’s claim against SPAR Corporate, together with the plaintiff’s costs, on a full indemnity basis (less any costs recovered by order made in these proceedings).
  4. [123]
    SPAR Australia denies the representations were made, or were misleading and deceptive; but in any event denies SEQ relied on any such representations; and even if it did, denies SEQ has suffered any loss as a result.
  5. [124]
    It is first necessary to consider whether the pleaded representations are conveyed by the particular events complained of; and then to consider whether the representations are false, misleading or deceptive, or likely to be so.[105]Conduct is misleading or deceptive, or likely to mislead or deceive, if it has a tendency to lead into error.  There must be a sufficient causal link between the conduct and error on the part of the person exposed to it.[106]It is an objective question, to be determined in the light of the relevant surrounding facts and circumstances, and is not dependent on the subjective intention of the person or entity engaged in the conduct.[107]
  6. [125]
    As to whether the pleaded representations were conveyed, in my view, the correspondence of 11 and 12 October, from SPAR’s solicitor and then Mr Stephens and Mr Costanzo, viewed in the context of the surrounding facts and circumstances, did convey that it would be SPAR Corporate that would operate the business from the premises as lessee.  It is fair to say, as SPAR Australia does, that the lease proposal left open the possibility that another person or entity may “run the shop”, but by the time of the 11 and 12 October correspondence, there had been no clear communication by SPAR to SEQ that another entity, apart from SPAR Corporate or SPAR Australia, would be operating the business. 
  7. [126]
    It is also fair to say that the correspondence of 11 and 12 October refers in a global sense to “SPAR”, as including SPAR Corporate and SPAR Australia (indeed, as Mr Ebert’s evidence showed, he likewise considered he was dealing with “SPAR”, as opposed to a particular entity[108]).  But, given that the named lessee was SPAR Corporate, and there is no indication in the correspondence or, as I have found, at the meeting on 13 October, that in fact it would be another entity – not SPAR Australia – operating the business, in my view it is appropriate to conclude that a representation in the terms pleaded in paragraph 41E(f) was conveyed.
  8. [127]
    Likewise, in my view, a representation in the terms pleaded in paragraph 41E(g) – that SPAR Australia would provide all necessary financial assistance to SPAR Corporate to meet its obligations under the lease – is conveyed by the correspondence of 11 and 12 October.   That cannot be taken to mean SPAR Australia was guaranteeing the lessee’s obligations, in a formal sense; but on the evidence before me, and objectively from the content of the 11 and 12 October emails, the intention in sending those was to give comfort to SEQ that it could deal with SPAR Corporate, without the need for directors’ guarantees, because of the valuable public company, SPAR Australia, which was standing behind it.
  9. [128]
    Were those representations misleading or deceptive, at the time they were made?
  10. [129]
    As to the first – that SPAR Corporate would operate the business as lessee – in my view, objectively, that was misleading or deceptive.   SPAR had been negotiating with Digwood since about July about the possibility that it would operate the business at the Rothwell premises.[109]The business operating agreement was, on the evidence, entered into about a week after the lease commenced, and was in SPAR’s contemplation at the time the lease negotiations were finalised on 13 October.  The conduct, of failing to mention Digwood’s prospective role, did have a tendency to lead SEQ into error – that is, believing that it would be the named lessee that would operate the business, albeit with the backing, and in the context of being a part of, the SPAR group.
  11. [130]
    SEQ contended that SPAR Australia deliberately failed to disclose the fact of Digwood’s existence, and intended role in operating the business, so that it could procure a lease with SPAR Corporate without having to give any personal guarantees.  Mr Stephens rejected that as “complete nonsense”.[110]
  12. [131]
    Given the relationship between Digwood and SPAR Australia, I cannot reasonably conclude, in the context of this case, that SPAR’s position, on the question of directors’ guarantees, would have been any different, had the role of Digwood been expressly adverted to.   Perhaps it could be inferred that SPAR thought its position on the matter of directors’ guarantees would be weakened, if reference was made to Digwood (which was not a public company, nor a wholly owned subsidiary of one).  But another likely scenario is that SPAR simply saw its arrangements with Digwood as an internal part of its business arrangements.   Either way, the evidence does not persuade me that there was any likelihood that, had Digwood’s role been made clear at the time of finalising the lease negotiations, personal guarantees from its directors would have been forthcoming.
  13. [132]
    In any event, the test is an objective one; the intention of the representor not being relevant to the question whether a representation had a tendency to lead a person into error.  Objectively, by failing to mention Digwood, SPAR Australia did represent that the named lessee, SPAR Corporate, would be operating the business from the premises; and that was misleading or deceptive, because that was not going to be the case.
  14. [133]
    As to the second representation – that SPAR Australia would provide all necessary financial assistance to SPAR Corporate to meet its obligations under the lease – in my view that was not misleading or deceptive.  On the evidence, that was SPAR Australia’s intention at the time the representation was made (whether the business was operated by Digwood or SPAR Corporate).   As the Full Federal Court observed in Fubilan Catering Services Ltd v Compass Group (Australia) Pty Ltd [2008] FCAFC 53 at [91], “[i]t is clear that to make a promise which is not performed or a prediction which is not fulfilled is not, without more, misleading or deceptive”.[111]
  15. [134]
    It was not disputed that SPAR Australia was engaged in conduct in trade or commerce.
  16. [135]
    The next question, however, is whether SEQ has established that it suffered loss or damage because of the conduct of SPAR Australia, in making the representation that SPAR Corporate would operate the business as the lessee:  s 236 of the Australian Consumer Law.
  17. [136]
    SEQ needs to show more than that SPAR Australia made a misleading or deceptive representation; it needs to show that it relied on that representation, in taking some step to its disadvantage, and suffered loss or damage because of it.[112]As to the test to be used to determine whether a sufficient causal connection, between the loss claimed, and the impugned conduct, has been shown, in McCarthy v McIntyre [1999] FCA 784 at [49] the Full Court of the Federal Court said:

“Precisely what test should be used to judge what constitutes the sufficient causal connection required between the misleading conduct and the outcome is the subject of some difficulty.  Perhaps there is no simple test capable of formulation.  It is necessary that the issue of causation be approached in what the High Court in Wardley[113]called a ‘practical or commonsense’ way.  In many areas, the courts have applied a ‘but for’ test of causation.  As McHugh, Hayne and Callinan JJ pointed out in Marks v GIO Australia Holdings Ltd[114]at 346, the idea that a ‘but for’ test is the exclusive test of causation has been found wanting in some contexts and it may yet be found to be wanting in the context of s 82 and s 87 of the Trade Practices Act[115]… Whether this be the case or not, the ‘but for’ test, applied in a common sense and not a pedantic way, provides still a useful approach to the issue of causation.”

  1. [137]
    It is necessary to pay close attention to the way in which the plaintiff has framed its case for damages for misleading and deceptive conduct, which I have set out at paragraph [121] above. 
  2. [138]
    What SEQ would have done, had the role of Digwood Pty Ltd, as the operator of the business, been disclosed to it, is necessarily hypothetical.[116]Even Mr Ebert did not purport to say exactly what he would have done, had he been told, although made it clear he would have wanted an explanation.[117]As far as Mr Ebert was concerned, he was dealing with the SPAR group, as opposed to a particular entity.  He was not convinced – by what he had been told by SPAR’s solicitor, or Mr Stephens or Mr Costanzo, in the emails of 11 and 12 October – to enter into the lease without a personal guarantee in place.  As he said “It’s not only how much money they have.  We’ve seen plenty of people who have had the money to go and buy a business, but they can’t run the business, and then the business collapses”.  So despite what he was told about the value of SPAR Australia, and that it was going to stand behind the lessee, what Mr Ebert wanted was someone who was going to “put their shoulder to the wheel and make sure the business is a success”, someone “who’s got their – you know, on the line”.  In that context, the personal guarantee was not only security in a formal sense; but in a more practical sense, when given by a person who was involved in the running of the business, and had an interest in making sure it was successful, it was an added encouragement for that person to ensure that was the case.  That was the value of the personal guarantee offered by Barry Edmonds, a person highly regarded by Mr Ebert.
  3. [139]
    That was also the context in which Mr Ebert said he (SEQ) would want the lease to be with the operator (of the business) – because “we want the person who’s got their – you know, on the line”.  In the context of what he had been told, about the worth of SPAR Australia, he also said “when they’re telling me how great that company is, that’s the company you want the lease with”.  But the lease was not with SPAR Australia – it was with SPAR Corporate.
  4. [140]
    A clear indication of Mr Ebert’s state of mind appears from the following passage from his evidence:

“…[speaking of the position prior to the meeting on 13 October] As I said, there was no deal.  It was all over.  So we knew we had Mr Barry Edmonds with five years to go on the lease, who was a good operator, paid his rent on time, had no issues.  That was worst-case scenario for us.  If we were going to do a deal – and, by this time, we’d got to the stage where we didn’t care if we did a deal, because they hadn’t been able to perform.  They hadn’t done what they said they’d do on numerous occasions.  So they needed to prove to us why it would be in the interests of the investors in SEQ Homemaker Centre – why it would be in their interests to enter into a deal with the SPAR Group.”[118]

  1. [141]
    What ultimately persuaded Mr Ebert to do the deal was the offer from Barry Edmonds to remain as a personal guarantor for the new lease, for a period of five years.  On the evidence it is clear that but for that, SEQ would not have entered into the lease.  The same cannot be said for the representations said to have been made by SPAR.
  2. [142]
    On the evidence before me, SEQ, by Mr Ebert, did not rely on the fact that it thought SPAR Corporate, the named lessee, would be operating the business, in finally agreeing to enter into the lease.  It relied on the fact that it was dealing with the SPAR group, and had a personal guarantee of the lessee’s obligations from Barry Edmonds.
  3. [143]
    Nor did SEQ rely on the representation – that SPAR Corporate, the named lessee, would be operating the business – in deciding not to require a corporate guarantee from SPAR Australia, or guarantees from the directors of SPAR Australia or SPAR Corporate.  As for the corporate guarantee, the evidence supports a finding that one was offered, in the initial negotiations (as is clear from the lease proposal) but does not suggest this was raised again later, including by SEQ.   As for the directors’ guarantees, the evidence supports a finding that SPAR’s position was firmly that no directors’ guarantees would be offered.  Far from relying on what it had been told, about SPAR’s financial position, in deciding not to insist on personal guarantees; SEQ maintained its position and ultimately obtained one, from a valuable and trusted person in the estimation of Mr Ebert, namely Barry Edmonds.
  4. [144]
    As I have already said, I do not consider that there is a reasonable basis to infer, from the evidence before me, that personal guarantees would have been forthcoming from the directors of Digwood, had its role in the proposed business been made clear before the lease was entered into.   Given the intractable position held by SPAR in relation to the provision of directors guarantees; and the relationship between SPAR Australia and Digwood, it seems more probable than not that the same position would have been adopted in relation to Digwood.  
  5. [145]
    Further, SEQ has not established that it has suffered any loss because of the representation by SPAR Australia, that SPAR Corporate would be operating the business.
  6. [146]
    What is the prejudice or disadvantage the plaintiff suffered in this case, as a consequence of entering into the lease with SPAR Corporate?[119]
  7. [147]
    The plaintiff alleges that it lost the opportunity to require the lessee to be the company that was carrying on the business (that is, Digwood) or secure additional security in the event the lessee was not the entity carrying on the business from the premises.[120]
  8. [148]
    As to the first matter, on the evidence there is no basis to conclude SEQ would be in any different position than it is now, had the lease been with Digwood rather than with SPAR Corporate.  There is no evidence to suggest the business would have been operated in any different manner; or that it would not have ended in the same way.  Indeed, on the evidence that is before the court, that seems unlikely, given the relationship between SPAR Australia and Digwood, and the former’s role in the day to day operations of Digwood’s business, including the “company stores”.  
  9. [149]
    As to the second matter, as I have found, it is not established that there would have been an opportunity to obtain additional security, in the form of personal guarantees from the directors of Digwood; nor any evidence as to the value of any such security(ies).
  10. [150]
    Accordingly, SEQ’s claim against SPAR Australia for damages for misleading and deceptive conduct also fails.
  11. [151]
    There is one last matter to deal with.  SPAR Australia also argued that, in circumstances where SEQ had a valuable guarantee from Barry Edmonds, which it chose not to enforce, it cannot claim to have suffered a loss, including the costs involved in this litigation.   SPAR Australia did not plead a defence of failure to mitigate; and its counsel was careful to make it clear that, in making the argument that no loss can be said to have been suffered, in circumstances where a valuable guarantee is available, but not exercised, SPAR Australia was not raising a case of failure to mitigate; in respect of which it would bear the onus of proof.  SPAR Australia relied upon a decision of Rolfe J in St George Commercial Credit Corporation Ltd v Collins Wallis Properties Pty Ltd [1998] NSWSC 649, as support for this argument; although properly noted that was a case in which failure to mitigate was pressed by the defendant.
  12. [152]
    Although there are authorities in which a similar argument has been raised by a defendant, I am unable to find any in which it has been addressed separately from a plea of failure to mitigate;[121]or, in a claim under legislation equivalent to the Australian Consumer Law, analogous principles.[122]  Given the conclusions I have otherwise reached in relation to SEQ’s claim, it is unnecessary to explore this issue further, as a matter of law; it is an issue best left for determination in another case.  However, whether the issue may be characterised as one of causation, or is properly to be seen as one of mitigation, in practical terms SEQ’s ability to secure a replacement lease of the premises for the remainder of the term (about 8 years) with Barry Edmonds’ company was a reasonable and sensible commercial solution.  Edmonds’ obligation as guarantor was met by his company’s entry into a lengthy lease, which saw the premises re-occupied within a short period of time.  That is an outcome which may well have been preferable in any event to the risk of the premises remaining untenanted for a further period of time, resulting in a greater financial loss, coupled with the potential risk of recovery under the guarantee, had SEQ sought to enforce the guarantee against, rather than entering into a replacement lease, with Barry Edmonds.

Orders

  1. [153]
    The orders that I propose to make are as follows. 
  2. [154]
    In relation to the plaintiff’s claim against the first defendant, SPAR Corporate:
    1. (a)
      There will be judgment for the plaintiff against the first defendant for the sum of $96,137.11, together with interest under s 58 of the Civil Proceedings Act 2011, from 3 June 2014 (the date of termination of the lease) to the date of judgment, at the rates applicable to entry of default judgments, in accordance with paragraph 3 of District Court practice direction number 6 of 2013.  The plaintiff is to provide a form of judgment, which includes the appropriate interest calculation.
    2. (b)
      There will also be an order that the first defendant pay the plaintiff’s costs of the proceeding against the first defendant, in relation to the claim for damages for breach of the lease, as pleaded in paragraphs [17] to [23], [35] to [36] of the further amended statement of claim filed on 22 November 2016 (but not the other claims previously made against the first defendant, but abandoned by the amendments made to the statement of claim on 22 November 2016), to be assessed on the standard basis.
  3. [155]
    The plaintiff’s claim against the second and third defendants will be dismissed.
  4. [156]
    There will be an order that the plaintiff pay the second and third defendants costs, of the proceeding against those defendants, to be assessed on the standard basis.
  5. [157]
    I will provide the parties time to consider my reasons, and make any submissions as to the terms of the orders proposed (in particular, as to interest and costs).  Any such submissions are to be filed and served within 7 days of delivery of these reasons.   If there is a need, I will invite submissions in reply from the opposing party, before determining the matter on the papers.  If no such submissions are received, the orders as proposed will be made.

Footnotes

[1]  Now called Supermarket Group Pty Ltd.  For ease of reference, I will refer to the first defendant as SPAR Corporate in these reasons.

[2]  Schedule 2 to the Competition and Consumer Act 2010.

[3]  Affidavit of Lisa Cox filed 7 February 2017, at [7]-[11].

[4]  Affidavit of Lisa Cox, at [11] and annexure “E”.

[5]  Exhibit 4.

[6]  Affidavit of Lisa Cox, at [13] and annexure “F”.

[7]  Exhibit 1, tab 8.

[8]  Exhibit 1, tab 9.

[9]  See paragraphs 10-16 of the further amended statement of claim filed on 22 November 2016, and paragraphs 10-14, 15(a) and 16(a) of the further amended defence of the first defendant filed on 21 August 2015.

[10]  Evidence of Stacey Ebert, general counsel for Sentinel Property Group, at T 1-51 to 1-52.

[11]  See paragraphs 13(b), 16(b) and 36 to 37 of the further amended defence of the first defendant filed on 21 August 2015.  As to the requirement for reasonable time to be given, see s 124 of the Property Law Act 1974 and cl 17.9 of the lease (exhibit 1, tab 7, p 270).

[12] Dogan v Morton (1935) 35 SR (NSW) 142 at 149-150; Westbrook Holdings Pty Ltd v Roseramble Pty Ltd (1994) 13 WAR 273 at 279-280.

[13]  For example, the second notice demands payment of rent for the period 01/04/2014 to 31/05/2014 in the amount of $69,428.02.  That incorporates the amount of rent demanded in the first notice, for the period 01/04/2014 to 30/04/2014, of $34,714.01.  In the second notice, the amount demanded for electricity is for the same period, and the same amount, as demanded in the first notice.  See exhibit 1, tabs 8 and 9.

[14]  Stacey Ebert at T 1-51.25.

[15]  Cf Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 413; Ex parte Whelan [1986] 1 Qd R 500 at 505-506.

[16]  See exhibit 3.

[17]  See cl 4.9 of the new Farmer Pats lease (exhibit 1, tab 12, p 321).

[18]  Exhibit 1, tab 13.

[19]  Pleaded in paragraph 22(b) of the statement of claim as $36,069.10; but said to be $36,169.10 in the spreadsheet which is exhibit 3, which was the subject of Ms Ebert’s evidence.

[20]  Title search (exhibit 1, tab 1).

[21]  It was apparent from the evidence of Ian Stephens and John Costanzo, who gave evidence for the second and third defendants, that there was a tendency to refer to “SPAR” in global terms, as a reference to various corporate entities within the “SPAR Group”.  In this context, it was not clear which entity – SPAR Corporate, SPAR Australia, or another entity within the group - contracted with Farmer Pats to purchase the business.  But this does not matter for present purposes.

[22]  Farmer Pat’s lease (exhibit 1, tab 2).

[23]  See also Ian Stephens at T 2-5.30.

[24]  Warren Ebert at T 1-28.5 and 1-46.12; Ian Stephens at T 2-5.31.

[25]  T 1-29.20.

[26]  T 1-27.30.

[27]  T 1-57.

[28]  Ms Stacey Ebert also gave evidence, but not in relation to this aspect of the case.

[29]  Exhibit 1, tab 3.

[30]  T 1-28; 1-39.13.

[31]  Assuming the ASIC record is correct (exhibit 4), the correct spelling of the surname is Jardim (for both Ana Rosa Jardim and Joao Louis Jardim).

[32]  Cf Ian Stephens at T 2-6.38 to 2-7.46; 2-57.45 to 2-58.19 and 2-61 to 2-62.

[33]  T 1-64.

[34]  T 2-9.23.

[35]  Ian Stephens at T 2-40.35.

[36]  Ian Stephens at T 2-4.21.

[37]  John Costanzo at p 1-57 to 1-58; 1-69 to 1-70; also 1-94 to 1-95.

[38]  John Costanzo at T 1-58.29.

[39]  T 2-3.

[40]  John Costanzo at T 1-70.35; Ian Stephens at T 2-55.

[41]  T 1-71.18.

[42]  T 1-73.

[43]  T 1-75.13.

[44]  T 1-77.

[45]  T 2-53 – 2-55.

[46]  John Costanzo at T 1-61.20 and 1-89.46.

[47]  Exhibit 1, tab 4, p 82.

[48]  T 1-64.19.

[49]  T 2-9.30.

[50]  T 2-28.26-.40.

[51]  Exhibit 1, tab 5, pp 167 and 178.

[52]  Exhibit 1, tab 7, p 225; Ian Stephens at T 2-47.26.

[53]  See Mr Costanzo’s email, referred to at paragraph [67] below.

[54]  Affidavit of Michael Miller, filed 9 February 2017, at pp 5-17.

[55]  Exhibit 1, tab 6, p 184.

[56]  Exhibit 1, tab 6, p 183.

[57]  Exhibit 1, tab 6, p 201.  Emphasis added.

[58]  Exhibit 1, tab 6, p 204.  Emphasis added.

[59]  Exhibit 1, tab 6, p 222.

[60]  Exhibit 1, tab 6, p 222.

[61]  John Costanzo at T 1-64 to 1-65; Ian Stephens at T 2-10 to 2-11.

[62]  T 2-39.15.

[63]  T 1-31.25.

[64]  See also Warren Ebert’s evidence at T 1-43.31-.38.

[65]  T 1-31.42 to 1-32.22.  Emphasis added.

[66]  T 1-32.27.

[67]  T 1-44.24-.34.

[68]  Warren Ebert at T 1-33.6.

[69]  The transcript shows this as “indistinct”, but my recollection is that Mr Ebert said “banking”.

[70]  T 1-32.39 to 1-34.6.  Emphasis added.

[71]  T 1-67.1.

[72]  T 2-12.26.

[73]  T 2-14; 2-65.

[74]  T 1-27.42.

[75]  T 1-34.11.

[76]  T 1-35.10-.20.

[77]  T 2-11 to 2-12.

[78]  T 1-42.

[79] Fox v Percy (2003) 214 CLR 118 at [31]; Camden v McKenzie [2008] 1 Qd R 39 at [34].

[80]  Exhibit 1, tab 6, p 224.

[81]  Ian Stephens at T 2-23.13 and 2-27.5-.9.

[82]  “Business” being defined as the business called “Jardin Fresh Life” being carried on by SPAR Corporate at the premises [leased by SPAR Corporate from SEQ], being a business of a grocer and fruit barn.

[83]  See T 2-42.1.

[84]  T 1-35.4.

[85]  T 2-64.17.

[86]  T 1-36.12.

[87]  Exhibit 1, tab 12, p 321.

[88]  T 1-47.

[89] Daebo Shipping Company Ltd v The Ship Go Star (2012) 207 FCR 220 at [88] per Keane CJ (as his Honour then was), Rares and Besanko JJ; Civic Video Pty Ltd v Paterson [2016] WASCA 69 at [30].

[90] Allstate Life Insurance Company v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26 at 43 per Lindgren J; Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 at [251]; LED Technologies Pty Ltd v Roadvision Pty Ltd (2012) 199 FCR 204 at [42]-[43] per Besanko J (Mansfield and Flick JJ agreeing); Daebo at [89].

[91]  At exhibit 1, tab 11.

[92]  T 1-95.

[93]  T 2-47.17 and 2-48.25.

[94]  T 1-84.9.

[95]  Cf Civic Video Pty Ltd v Paterson [2016] WASCA 69 at [37].

[96]  Closing submissions for the second and third defendant, at paragraph 10(iv).

[97]  Paragraph 40J of the statement of claim.

[98]  Paragraph 40K of the statement of claim.

[99]  See generally McGregor on Damages (Sweet & Maxwell, 19th ed) at [26-094]-[26-097].

[100]  Paragraph 41E of the statement of claim.

[101]  Paragraphs 41E(f) and (g) of the statement of claim.

[102]  Paragraphs 41H and 41I of the statement of claim.

[103]  Paragraph 41G of the statement of claim.

[104]  Paragraph 41J of the statement of claim.

[105] Australian Competition and Consumer Commission v Telstra Corporation Ltd (2007) 244 ALR 470 at [14] and [15] per Gordon J.

[106] Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at [39] and [49].

[107] Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 87 and 88; Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 at [102].

[108]  See his evidence quoted at paragraph [78] above.

[109]  Ian Stephens at T 2-22.46 to 2-24.21.

[110]  T 3-8.

[111]  Referring, inter alia, to Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 88.

[112] Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 525; Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 at [24] per French CJ and [102] per Gummow, Hayne, Heydon and Kiefel JJ.

[113] Wardley Australia Ltd v Western Australia (1992) 175 CLR 514.

[114]  (1998) 158 ALR 333.

[115]  Now ss 236 and 243 of the Australian Consumer Law.

[116] Barnes v Forty Two International Pty Ltd (2014) 316 ALR 408 at [184], referring to Dominelli Ford (Hurstville) Pty Ltd v Karmot Auto Spares Pty Ltd (1992) 38 FCR 471 at 483.

[117]  Warren Ebert at T 1-33.40 to 1-34.16; 1-35.15-.20.  In terms of the plaintiff’s pleaded case, see paragraph 41J(a) of the statement of claim, where a number of possibilities are suggested, as to what SEQ would have done, but for the representations.

[118]  T 1-43.31-.38.

[119] Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 526.

[120]  Plaintiff’s written submissions at [106].

[121]  Cf, for example, McGregor on Damages (Sweet & Maxwell, 19th ed) at [9-036], [9-079], [32-073], [32-074]; London and South of England Building Society v Stone [1983] 1 WLR 1242 at 1257 and 1262-1263 (cf at 1259 per Sir Denys Buckley in dissent); Western Trust & Savings Ltd v Clive Travers & Co [1997] PNLR 295; Capital Home Loans Ltd v Hewit & Gilpin Solicitors Ltd [2016] PNLR 24; also Pilkington v Wood [1953] 1 Ch 770 at 775-777.

[122]  See, for example, Knott Investments Pty Ltd v Fulcher [2013] QCA 67 at [36], [44]-[46].

Close

Editorial Notes

  • Published Case Name:

    SEQ Homemaker 1 Pty Ltd v SPAR Corporate Pty Ltd & others

  • Shortened Case Name:

    SEQ Homemaker 1 Pty Ltd v SPAR Corporate Pty Ltd

  • MNC:

    [2017] QDC 46

  • Court:

    QDC

  • Judge(s):

    Bowskill DCJ

  • Date:

    10 Mar 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
ACCC v TPG Internet Pty Ltd (2013) 250 CLR 640
2 citations
Jump To
Cite 1 - (2013) 250 CLR 640
Cite 2 - (2013) 250 CLR 640
Allstate Life Insurance v ANZ Banking Group (1995) 58 FCR 26
2 citations
Jump To
Cite 1 - (1995) 58 FCR 26
Cite 2 - (1995) 58 FCR 26
Australian Competition and Consumer Commission v Telsta Corporation Ltd (2007) 244 ALR 470
1 citation
Jump To
Cite 1 - (2007) 244 ALR 470
Barnes v Forty Two International Pty Ltd (2014) 316 ALR 408
1 citation
Jump To
Cite 1 - (2014) 316 ALR 408
British Industrial Plastics Ltd v Ferguson [1938] 4 All E.R. 504
1 citation
Jump To
Cite 1 - [1938] 4 All E.R. 504
British Industrial Plastics Ltd v Ferguson (1940) 58 RPC 1
1 citation
Jump To
Cite 1 - (1940) 58 RPC 1
British Industrial Plastics Ltd v Ferguson [1940] 1 All ER 479
1 citation
Jump To
Cite 1 - [1940] 1 All ER 479
Camden v McKenzie[2008] 1 Qd R 39; [2007] QCA 136
1 citation
Jump To
Cite 1 - [2008] 1 Qd R 39
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304
3 citations
Jump To
Cite 1 - (2009) 238 CLR 304
Cite 2 - (2009) 238 CLR 304
Cite 3 - (2009) 238 CLR 304
Capital Home Loans Ltd v Hewit & Gilpin Solicitors Ltd [2016] PNLR 24
1 citation
Jump To
Cite 1 - [2016] PNLR 24
Civic Video Pty Ltd v Paterson [2016] WASCA 69
3 citations
Jump To
Cite 1 - [2016] WASCA 69
Cite 2 - [2016] WASCA 69
Cite 3 - [2016] WASCA 69
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
1 citation
Jump To
Cite 1 - [1984] 1 Qd R 404
Daebo Shipping Company Ltd v The Ship Go Star (2012) 207 FCR 220
2 citations
Jump To
Cite 1 - (2012) 207 FCR 220
Cite 2 - (2012) 207 FCR 220
Dogan -v- Morton (1935) 35 S.R. (N.S.W.) 142
2 citations
Jump To
Cite 1 - (1935) 35 S.R. (N.S.W.) 142
Cite 2 - (1935) 35 S.R. (N.S.W.) 142
Dominelli Ford (Hurstville) Pty Ltd v Karmot Auto Spares Pty Ltd (1992) 38 FCR 471
1 citation
Jump To
Cite 1 - (1992) 38 FCR 471
Douglas v Hello! Ltd (No 3) [2007] 2 WLR 920
1 citation
Jump To
Cite 1 - [2007] 2 WLR 920
Ex parte Whelan [1986] 1 Qd R 500
1 citation
Jump To
Cite 1 - [1986] 1 Qd R 500
Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473
2 citations
Jump To
Cite 1 - (1999) 47 NSWLR 473
Cite 2 - (1999) 47 NSWLR 473
Fox v Percy (2003) 214 CLR 118
1 citation
Jump To
Cite 1 - (2003) 214 CLR 118
Fubilan Catering Services Ltd v Compass Group (Australia) Pty Ltd [2008] FCAFC 53
2 citations
Jump To
Cite 1 - [2008] FCAFC 53
Cite 2 - [2008] FCAFC 53
Global Sportsman Pty Ltd v Mirror News Papers Ltd (1984) 2 FCR 82
2 citations
Jump To
Cite 1 - (1984) 2 FCR 82
Cite 2 - (1984) 2 FCR 82
High Court in Marks v GIO Australia Holdings Ltd (1998) 158 ALR 333
1 citation
Jump To
Cite 1 - (1998) 158 ALR 333
Knott Investments Pty Ltd v Fulcher[2014] 1 Qd R 21; [2013] QCA 67
1 citation
Jump To
Cite 1 - [2013] QCA 67
LED Technologies Pty Ltd v Roadvision Pty Ltd (2012) 199 FCR 204
4 citations
Jump To
Cite 1 - (2012) 199 FCR 204
Cite 2 - (2012) 199 FCR 204
Cite 3 - (2012) 199 FCR 204
Cite 4 - (2012) 199 FCR 204
London and South of England Building Society v Stone [1983] 1 WLR 1242
1 citation
Jump To
Cite 1 - [1983] 1 WLR 1242
McCarthy v McIntyre [1999] FCA 784
2 citations
Jump To
Cite 1 - [1999] FCA 784
Cite 2 - [1999] FCA 784
Pilkington v Wood [1953] 1 Ch 770
1 citation
Jump To
Cite 1 - [1953] 1 Ch 770
Short v The City Bank of Sydney (1912) 15 CLR 148
2 citations
Jump To
Cite 1 - (1912) 15 CLR 148
Cite 2 - (1912) 15 CLR 148
St George Commercial Credit Corporation Ltd v Collins Wallis Properties Pty Ltd [1998] NSWSC 649
1 citation
Jump To
Cite 1 - [1998] NSWSC 649
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
4 citations
Jump To
Cite 1 - (1992) 175 CLR 514
Cite 2 - (1992) 175 CLR 514
Cite 3 - (1992) 175 CLR 514
Cite 4 - (1992) 175 CLR 514
Westbrook Holdings Pty Ltd v Roseramble Pty Ltd (1994) 13 WAR 273
2 citations
Jump To
Cite 1 - (1994) 13 WAR 273
Cite 2 - (1994) 13 WAR 273
Western Trust & Savings Ltd v Clive Travers & Co [1997] PNLR 295
1 citation
Jump To
Cite 1 - [1997] PNLR 295

Cases Citing

Case NameFull CitationFrequency
SEQ Homemaker 1 Pty. Ltd. v SPAR Corporate Pty Ltd (No. 2) [2017] QDC 721 citation
1

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