FEDERAL COURT OF AUSTRALIA

 

 

Bluehive Pty Ltd v Dukemaster Pty Ltd (No 2) [2001] FCA 1621

TRADE PRACTICES - misleading or deceptive conduct - primary judgment found for applicant - appeal - remitter by Full Court to primary judge for the making of findings on issues identified by the Full Court - approach to be taken on remitter - whether primary judge confined to dealing with matters expressly identified in primary judgment or whether permissible to refer to other evidence led at trial - approach to be taken with regard to issues not dealt with in primary judgment.

Trade Practices Act 1974 (Cth) ss 51A, 52, 82(1)

Federal Court Rules O 11 r 2

Bluehive Pty Ltd v Dukemaster Pty Ltd [2000] FCA 1307 referred to

Henville v Walker (2001) 182 ALR 37 at 41, 62, 74 referred to

Wilkinson v S Bennett Ltd (1921) 29 CLR 283 referred to

Hadzel v De Waldorf  (1970) 16 FLR 174 referred to

Lloyd v David Syme & Co Ltd (1985) 63 ALR 83 referred to

Howden v “Truth” and “Sportsman” Ltd (1937) 58 CLR 416 referred to

Penton v Calwell (1945) 70 CLR 219 referred to

Bogusz v Thomson (1989) 95 FLR 167 referred to

Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218 at 241 referred to

Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 referred to

Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd (1996) ATPR 41-522 at 42,679 referred to

Mitanis v Pioneer Concrete (Vic) Pty Ltd (1997) ATPR 41-591 at 44,147 referred to

McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at 417-422 referred to

Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466 referred to

BLUEHIVE PTY LTD (ACN 073 073 300) v DUKEMASTER PTY LTD (ACN 050 275 226) (No 2)

VG 731 of 1998

 

 

WEINBERG J

16 NOVEMBER 2001

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG731 OF 1998

 

BETWEEN:	BLUEHIVE PTY LTD (ACN 073 073 300) APPLICANT
AND:	DUKEMASTER PTY LTD (ACN 050 275 226) RESPONDENT
JUDGE:	WEINBERG J
DATE OF ORDER:	16 NOVEMBER 2001
WHERE MADE:	MELBOURNE

 

THE COURT ORDERS THAT:

 

1.                  The findings on the issues referred to in par 21 of the Full Court’s reasons for judgment be recorded and remitted to that Court for its further consideration of the appeal.

2.                  The costs of the Full Court’s remitter be reserved to be determined by that Court.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG731 OF 1998

 

BETWEEN:	BLUEHIVE PTY LTD (ACN 073 073 300) APPLICANT
AND:	DUKEMASTER PTY LTD (ACN 050 275 226) RESPONDENT

 

JUDGE:	WEINBERG J
DATE:	16 NOVEMBER 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

introduction

1                     On 15 September 2000 I delivered judgment in Bluehive Pty Ltd v Dukemaster Pty Ltd [2000] FCA 1307 (the “primary judgment”).  I found for the applicant (“Bluehive”) against the respondent (“Dukemaster”) and ordered that there be judgment in the sum of $315,095.94.  I dismissed Dukemaster’s cross-claim against Bluehive and ordered it to pay the costs of the application and of the cross-claim.  Dukemaster has appealed to the Full Court against my judgment. 

2                     On 5 March 2001 the Full Court ordered as follows:

“…

3.                  The matter the subject of the appeal against the judgment for [Bluehive] be remitted to the primary judge for the making of findings on the issues referred to in paragraph 21 of the Court’s reasons.

4.                  Pending the making of the findings referred to in paragraph 3 hereof the appeal be stood over.

5.                  Costs be reserved.”

3                     Because of the limited nature of the remitter, it is not necessary for me to set out in detail all of the background facts surrounding Bluehive’s claim against Dukemaster.  It is sufficient for present purposes that I set out several passages from my primary judgment which provide some background to the litigation which subsequently ensued. 

The background facts

“1.      The Paramount Shopping Centre (“the Centre”) is a retail apartment complex located at the corner of Bourke and Exhibition Streets in Melbourne.  It consists of 230 apartments above multi-level retail arcades which provide access between Bourke Street and Little Bourke Street.  From Little Bourke Street customers enter an area containing a food court and a supermarket.  Above the food court are two levels offering space for a number of retail shops and offices.

2.         In May 1996, while the Centre was still under construction, the respondent, Dukemaster Pty Ltd (“Dukemaster”), engaged Jones Lang Wootton real estate agents as its agent for the purpose of securing retail tenants.  The first applicant, Bluehive Pty Ltd (“Bluehive”), acting in its capacity as trustee of the Bluehive Unit Trust, expressed an interest in leasing a shop in the food court.  Its directors at that time were Mr Jonathan Gan and Mr Darren Sayers.  Bluehive, at that stage, already operated a takeaway food business known as “Spudnik”.  That business was located in a shopping arcade in Australia on Collins, several city blocks from the Centre.

3.         On 6 May 1996 a representative of Jones Lang Wootton wrote to Mr Gan offering a lease of Shop 1 on the Little Bourke Street level at the Centre.  The base rent for Shop 1 was to be $57,075 per annum.  On 15 May 1996 Mr Gan wrote rejecting that offer, but offering instead to lease Shop 8, which was somewhat smaller than Shop 1, at a rental of $28,600 per annum.  Mr Gan’s counter offer was rejected.  It seems that nothing further came of these negotiations.

4.         Throughout July and August 1996 Mr Gan was engaged in negotiations with the owners of the Southgate Arts and Leisure Precinct (“Southgate”) regarding the possible lease of certain premises.  Those negotiations proved successful and an Indian/Thai takeaway food outlet known as “Chapatis” was established.  Mr Gan engaged a firm of architects, McGauran Soon Pty Ltd, to carry out the fit-out of that business.  A principal of that firm, Mr Mun Soon, was also involved in the fit-out of a number of the shops in the food court at the Centre.  In about August 1996 he told Mr Gan that there were now excellent leasing opportunities available at the Centre, and offered to introduce him to the owners.

5.         That offer by Mr Soon was taken up by Mr Gan.  It led to a meeting which took place at the Centre on 21 August 1996.  That meeting was of critical importance.  The events which took place during the course of that meeting lie at the heart of the present proceeding.

…

Events prior to the opening of the food court

17.       At the same time as Bluehive was negotiating with Dukemaster concerning the possible lease of Shop 5, it was also negotiating with the owners of Southgate regarding the possible lease of much larger premises.  Those premises consisted of an area of 163 square metres, designed to accommodate a substantial restaurant.  It appears that Mr Gan was considering leasing those premises in order to operate a licensed Malaysian/Indian restaurant there if the deal for Shop 5 at the Centre fell through.  The premises at Southgate were described as “Tenancy MR1”, and will be referred to by that name hereafter.

18.       On 26 September 1996 the retail manager of Southgate, Mr Brian Boardman, wrote to Mr Gan offering to lease Tenancy MR1 for a term of ten years at an annual rental of $162,000.  The letter also made provision for a percentage rent of 8 per cent on sales exceeding $1.8 million.  There was no mention of who would bear the cost of any fit-out of the proposed restaurant. 

19.       On 29 September 1996 Mr Gan replied to the letter of 26 September 1996.  He offered to lease Tenancy MR1 at an annual rental of $120,00 together with a percentage rent of 8 per cent on sales exceeding $2,080,000.  In addition, he offered to pay for the fit-out of the restaurant, save for a contribution of $40,000 to be made by the lessor. 

20.       On 11 October 1996 Mr Boardman wrote to Mr Gan rejecting that offer.  He suggested that unless Bluehive was prepared to go substantially higher there would be no point in discussing the matter further.  On 18 October 1996 Mr Gan wrote back with a revised offer.  That offer was for a term of ten years at an annual rental of $130,000, with a percentage rent of 8 per cent on sales exceeding $2,340,000.  The lessee would pay for the fit-out of the restaurant, save for a contribution of $80,000 to be made by the lessor. 

21.       On 17 December 1996 Mr Boardman replied to Mr Gan’s letter of 18 October 1996.  Mr Gan was informed that his last offer had been rejected, and that Tenancy MR1 would be taken by a Japanese restaurant which would commence trading in March 1997.

22.       Bluehive contends that by reason of having been induced to take up the tenancy at Shop 5 rather than the tenancy at Southgate it has suffered loss or damage.  It says that it was misled into believing that Shop 5 would be a viable business proposition, and that it therefore abandoned its attempts to secure the tenancy at Southgate.  It says that Tenancy MR1 would, in all likelihood, have generated substantial profits, rather than the losses which were sustained at the Centre.  Bluehive claims that it is entitled to recover damages for the opportunity loss which it claims to have suffered by reason of Dukemaster’s misleading or deceptive conduct. 

23.       Several other salient facts should be noted:

·                     In about December 1996 Bluehive entered into contractual arrangements with its architects, McGauran Soon Pty Ltd, to carry out the fit-out of Shop 5.

·                     In March 1997 Bluehive arranged for finance from the Commonwealth Bank in order to enable that fit-out to proceed.  That work was carried out in May and June of 1997. 

·                     The food court was opened on 28 July 1997.  At that stage, only two retail shops, a business known as “House”, and a small flower shop, had been leased. 

·                     No lease for Shop 5 was ever executed.

·                     Although there was an issue in this proceeding as to whether or not Bluehive entered into an agreement to lease, or whether it was merely a tenant at will, it is plain from the correspondence and Bluehive’s actions that there was an agreement to lease Shop 5 on terms which were clear and definite.  Bluehive was not a mere tenant at will.

Events subsequent to the opening of the food court

 

24.       It became obvious within days of the opening of the food court that Azzurro would not generate anything like the income necessary if Bluehive were to meet its rental obligations. 

25.       By letter dated 28 July 1997, written on the very day of the opening, Mr Gan complained to Mr Cook that Shop 3, Reef, had installed a cappuccino machine and was selling coffee.  Mr Gan pointed out that this was in breach of Bluehive’s entitlements under the terms of its agreement to lease.  He demanded that the matter be attended to immediately.

26.       Several days later, by letter dated 4 July 1997, but obviously written on 4 August 1997, Mr Gan wrote to Mr Hii in the following terms:

“Dear Mr Hii,

RE:  AZZURRO – SHOP No. 5, THE PARAMOUNT CENTRE, MELBOURNE.

I write to advise of my concerns with two very important issues.

Prior to entering heads of agreement to lease shop No. 5 at The Paramount Centre back in September 1996, I was advised that The Paramount Centre was entering into several leases on the Bourke Street and 1^st floor level  and that I should gear up to be ready to open for trade in early December 1996.  During these early discussions with Mr. Peter Cook, I was told that a Post Office, Pharmacy and other general retail stores would be opening up in The Paramount Centre.  At no stage was I told that the Centre would be opening up in stages, and that the Food Court tenancies would be the first to commence trade.

Communication from management of The Paramount Centre since September 1996 through to early June 1997 was inadequate, and I relied heavily on information passed on to me by my architect Mr. Soon, from McGauran Soon Architects.  I believe that many things have been said to encourage and influence me to take up a lease in the Centre, and as a result I have been given misleading information.  If I had known that the Centre would not be completely leased by the time I was to commence trading, I probably would not have decided to take up a lease.  In May 1997, it became obvious that the Bourke Street and 1^st floor level was not going to be ready by the time I was to start trading.  However, I had already committed to finance, paid a deposit to the shopfitter, engaged the work of my architect and purchased many equipment for the shop.  It was too late to turn back.

Further to this, having started trading on 28^th July 1997, I noticed that the Reef Fish & Chips was selling coffee.  Management and the Landlord are aware that this is a breach of the terms & conditions of my lease.  To date, nothing has been done by Management to resolve the matter and enforce the removal of the coffee machine.  As a result I have lost coffee sales which is the core of my business at the moment.

You may be aware that I will be looking to the Landlords for compensation over the breach of my lease conditions.  Further, I am prepared to cancel my lease and vacate the premises if the Landlord covers all my costs associated with establishing Azzurro.  I have calculated this cost to be $210,000, to date.

Yours faithfully,

JONATHAN GAN

DIRECTOR”

27.       From that moment relations between Bluehive and Dukemaster deteriorated rapidly.  Mr Gan repeatedly threatened to walk away from Azzurro, and to sue Dukemaster for damages.  Throughout August and September 1997 Bluehive’s solicitors, Best Hooper, wrote to Dukemaster’s solicitors, Kliger Partners, complaining that Bluehive had been misled by Dukemaster into taking up the lease of Shop 5.  For example, on 28 August 1997, Best Hooper wrote in the following terms:

“Dear Sirs,

re:        Bluehive and Dukemaster

            Shop 5, Paramount Retail Centre

We refer to previous correspondence.  For reasons which appear below, our client is not prepared to enter into a lease of the premises on the terms offered by your client, and no longer prepared to continue to occupy the subject premises pending negotiations.  We are instructed to request that your client’s directors contact Mr Gan to discuss:-

(a)                     a smooth handover of the possession;

(b)                     which of the stock and fittings the landlord wishes to retain; and

(c)                      arrangements to reimburse Bluehive for the expenses it has incurred.

Our client and its director were induced to offer to lease the shop by representations from the directors of your, and from its agents, that:-

(i)                       the Food Court would be opening for trade in December 1996, to catch the Christmas business;

(ii)                     the whole centre, including the retail shops, would all be opening at about the same time;

(iii)                   Shop 5 would have exclusivity in the sale of coffee beverages on the Food Court level.

All of these representations have proved incorrect.

(i)                       The shops in the Food Court were not ready for occupation until late last month.

(ii)                     Only one or two retail shops are open for trading.  They attract nothing like the customers which Mr Gan expected when he offered to take a lease.

(iii)                   Shop 5’s exclusivity in coffee has been eroded.  First it was to one other outlet, and then 2; but now Reef Fish & Chips, a third outlet (and one run by a representative of your client) is also selling coffee.  This additional competition was never agreed to, and severely reduces Shop 5’s sales.

We further note that your client refuses to deliver a disclosure statement.  In all the circumstances, our client is not prepared to enter into a lease of the premises.

The representations outlined above also induced our client to incur the expenses of:-

-                fitting out the shop;

-                stocking the shop;

-                engaging staff for the shop;

-                other incidental expenses; and

-                legal costs and disbursements of our engagement in relation to the draft least, and this communication.

Mr Gan is compiling a list of these expenses, against which will be offset the receipts from sales.  He estimates the nett losses at $210,000.

Yours faithfully

BEST HOOPER

Per: 

J.W. ROBINSON”

28.       Dukemaster responded to this facsimile by rejecting any suggestion that Bluehive would be permitted to walk away from Azzurro, and be compensated for expenses which it had incurred in the fit-out of that business.  Dukemaster did suggest, however, that the dispute with Bluehive might be able to be resolved through negotiations.  Dukemaster suggested that Mr Gan might be prepared to take a lease, on very favourable terms, of a particular retail shop on the Bourke Street level which at that stage was still untenanted.  That retail shop, Shop 11, was in a premium location with a Bourke Street frontage and was approximately 100 square metres in area.”

BLUEHIVE’S ALLEGATIONS

4                     In my primary judgment I noted that Bluehive had identified eleven separate representations by which it claimed to have been induced to enter into occupation of Shop 5. 

5                     The eleven representations relied upon were as follows:

“(a)      that the shopping centre would offer a three level retail arcade;

              (b)      that the shopping centre would have a tenant mix including a supermarket and 55 specialty shops;

  (c)     that the 55 specialty shops were rapidly being leased and the shopping centre would be fully tenanted when it opened;

  (d)     that there would be a bistro/gaming venue located on the Upper Bourke Street level of the shopping centre which would be open to 1.00 am every night of the week;

  (e)     that there would be a food court with 8 shops having access to Little Bourke Street, in which Bluehive’s business would have exclusivity in the sale of Italian cuisine;

  (f)      that Bluehive’s business would be one of only two tenants permitted to sell all types of coffe         e;

  (g)      that the grand opening date of the shopping centre would be December 1996;

  (h)      that Bluehive could easily meet its rental of $50,000 per annum;

  (i)      that Bluehive would have a turnover of about $8,000 per week;

  (j)      that there would be 450 seats for patrons in the food court and each seat would generate about $14,000 per annum.  This would make a total annual income of about $6,300,000 for the 8 shops in the food court; and

  (k)    that the figure for turnover rent of $780,000 per shop was quite easily achievable.”

6                     Bluehive’s case was that Dukemaster had made each of these representations and that by doing so it had engaged in conduct that was misleading or deceptive, in contravention of s 52 of the Trade Practices Act 1974 (Cth) (“the Act”).  Bluehive claimed that each of the representations was made with respect to a “future matter” within the meaning of s 51A. Section 51A(1) provides that where a corporation makes a representation with respect to any future matter, and the corporation does not have reasonable grounds for doing so, the representation shall be taken to be misleading.

7                     For reasons which need not be canvassed here, Bluehive abandoned any reliance upon representations (g) and (k) during the course of the appeal to the Full Court.  Nothing further, therefore, needs to be said about them.

8                     The remaining representations may be divided into two groups.  For convenience these may be described as the “written representations” (representations (a)-(f)) and the “oral representations” (representations (h)-(j)).

the written representations

Representation (a) - “that the shopping centre would offer a three level retail arcade”

9                     In its further and better particulars Bluehive alleged that this representation was partly written, and partly oral.  To the extent that the representation was written it was said to be contained in a large, glossy brochure (“the Brochure”) provided to Mr Gan during the course of the meeting at the Centre on 21 August 1996 (“the Meeting”).  Representation (a) was also said to be contained in a book of Tenancy Fit-Out Guidelines (“the Guidelines”) shown to Mr Gan on that day, and subsequently provided to Bluehive. 

10                  In my primary judgment I said that Dukemaster had conceded that representation (a) had been made, but denied that it was misleading or deceptive.  There was subsequently debate before the Full Court, and again before me, on the remitter of this matter, as to whether Dukemaster had in fact made that concession.

11                  Dukemaster, in its defence, admitted the words used in the Brochure which were:

“… the Paramount Centre is a retail development incorporating 5,747 square metres of leasable area over three main levels …”

However, it otherwise denied having made representation (a).

12                  Dukemaster submitted that, in its statement of claim, Bluehive had formulated representation (a) as being that the Centre “would offer a three level retail arcade”.  It submitted that unless Bluehive could prove that Dukemaster had made precisely that representation, and no other, it could not rely upon it as the basis for a claim under s 52 of the Act.  Dukemaster also submitted that Bluehive had not pleaded that representation (a) was to be inferred from the language which appeared in the Brochure, or in the Guidelines, and that it should not be permitted to advance that argument.  Dukemaster claimed that far from having conceded that representation (a) had been made, its defence had always been conducted upon the basis that the somewhat different language used in the Brochure (“a retail development …over three main levels”) was all that had been communicated. 

13                  Bluehive contended that Dukemaster’s submissions were disingenuous.  It submitted that the case before me had been conducted throughout upon the basis that there was no difference whatever, in substance, between the shorthand form adopted of pleading representation (a), and the somewhat more elaborate version of that representation contained in the Brochure.

14                  I shall return to the question of Dukemaster’s “concession” later in these reasons for judgment.  It is sufficient to note at this stage, that Dukemaster also submitted that even if, contrary to its primary submission, the Brochure contained representation (a) that representation was neither misleading nor deceptive.  Dukemaster also challenged Bluehive’s contention that Mr Gan had in any way relied upon that representation in deciding to enter into the lease of Shop 5. 

Representation (b) - “that the shopping centre would have a tenant mix including a supermarket and 55 specialty shops”

15                  Bluehive claimed in its further and better particulars that this representation was partly written, and partly oral. 

16                  As with representation (a), in my primary judgment I said that Dukemaster had conceded that representation (b) had been made, but denied that it was misleading or deceptive.

17                  Before the Full Court, Dukemaster denied having made any such concession.  It acknowledged that in its defence, it had admitted that “55 shops are proposed in the project, including a supermarket and food court.”  However, it maintained that it had otherwise denied making representation (b), at least in the form pleaded by Bluehive.

18                  Dukemaster submitted that there was nothing said in the Brochure about a “tenant mix”, and no mention of “specialty shops”.  However, it conceded that the Guidelines did state:

“The Paramount offers some 55 speciality shops, a food court, a supermarket, a bistro/gaming area and serviced offices beneath 230 apartments”.

I should indicate at this stage that nothing seems to turn upon the fact that Bluehive used the word “specialty” in its statement of claim while Dukemaster used the word “speciality” in the Guidelines.  According to the Macquarie Dictionary, these two words are synonymous.

19                  In support of Bluehive’s claim that representation (b) was partly oral, Mr Gan gave evidence that shortly before the disputed tour of the Centre on 21 August 1996, Mr Cook referred to “55 specialty shops”  Mr Sayers said that Mr Cook told him during the tour that there would be “55 retail tenancies”. 

20                  Dukemaster submitted that in publishing the Brochure and the Guidelines it had said nothing more than that there would be space in the Centre for 55 potential tenants.  It denied having said anything about a “tenant mix”, or “55 specialty shops” actually being leased.  It pointed out that the Guidelines made it plain that when the Centre was conceived it was contemplated that there would be 9 shops on the Little Bourke street level, 24 shops on the Bourke street level and 22 shops on the top level, making a total of 55 shops.  It followed that the representation that “55 shops are proposed in the project”, which Dukemaster admitted having made, was true at the time these documents were prepared.  Moreover, Dukemaster submitted, it had reasonable grounds for representing that 55 shops were “proposed in the project”, when the Guidelines were provided to Bluehive.

21                  Bluehive submitted that I had correctly treated Dukemaster as having admitted that representation (b), as pleaded, had been made.  It submitted that although that representation was couched in somewhat less elaborate language than that which appeared in the Guidelines, there was little difference in substance between these versions.  Bluehive further submitted that whatever may have been the position when the Guidelines were prepared, by August 1996 Dukemaster had no basis for representing that the Centre would have “55 specialty shops”.  By that time, the Centre was still little more than a shell with a history of failed attempts to lease the shops on the Bourke Street and Upper Bourke Street levels.  Indeed, even when the Centre commenced trading almost a year later, it was still barely tenanted.

Representation (c) - “that the 55 specialty shops were rapidly being leased and the shopping centre would be fully tenanted when it opened”

22                 Bluehive claimed, in its further and better particulars, that this representation was partly written and partly oral.

23                 Dukemaster, in its defence, denied having made this representation. 

24                 Neither the Brochure nor the Guidelines contain any statement, in terms, to the effect that the 55 specialty shops “were rapidly being leased”, or that “the shopping centre would be fully tenanted when it opened”.  However, Bluehive submitted that the Brochure plainly extolled the retail potential of the Centre, and the likely demand for products from the shops and the food court.  It submitted that the Brochure suggested that the Eastern Hill precinct (in which the Centre is located) was a strong centre of pedestrian activity and “the busiest area outside the retail core”.  The Brochure also described the precinct as the “entertainment and dining centre of the CBD” and predicted a major growth in tourism for Melbourne.  With regard to the proposed food court, the Brochure observed that:

“At present, there is no major Food Court in the Eastern Hill precinct, indicating market potential at The Paramount Centre on the Little Bourke Street Level.”

25                 Bluehive submitted that, upon a fair reading of the Brochure and the Guidelines, Dukemaster had made representation (c), at least by inference, from statements of this type. 

26                 Bluehive also submitted that representation (c) had been made orally by Mr Cook during the course of the Meeting.  Mr Gan gave evidence to that effect.

27                 Bluehive submitted that assuming that representation (c) was made, it was patently false.  Dukemaster had no basis for believing, in August 1996, that the 55 specialty proposed shops were rapidly being leased, or that the Centre would be fully tenanted when it opened.  At that stage the Centre was scheduled to be opened in December 1996 and there was not the slightest possibility that it would be fully tenanted by that date.  Indeed, Mr Hii acknowledged as much when he said during the course of his evidence that “we always knew that the Centre is not going to be fully let because we weren’t prepared to offer all these incentives to retailers”. 

Representation (d) - “that there would be a bistro/gaming venue located on the Upper Bourke Street level of the shopping centre which would be open to 1.00 a.m. every night of the week”

28                  Bluehive claimed in its further and better particulars that this representation was partly written and partly oral. 

29                 Dukemaster denied having made this representation.  It conceded that the Guidelines had referred to the Centre offering a “bistro/gaming area” but submitted that nothing had been said about there being a “bistro/gaming venue”.

30                 Mr Gan gave evidence that Mr Cook had raised the subject of a bistro/gaming venue during the course of the disputed tour.  Mr Cook denied having said anything of the kind.

31                 Dukemaster claimed that even if representation (d), as pleaded, had been made, (whether in the Guidelines, or by Mr Cook) Mr Gan had not established that Bluehive had relied upon that representation in deciding to take up the lease of Shop 5.  Dukemaster submitted that there was no evidence that any of the shops in the food court were to be open in the evening, let alone to 1.00 a.m.  Moreover, patrons of a bistro/gaming area would be unlikely to go down to the food court for refreshments if there were a bistro upstairs. 

32                 Dukemaster also pointed to the fact that when Mr Gan and Mr Sayers were questioned about this subject, neither appeared to have any real idea of what a bistro actually was.  Mr Gan thought a bistro was a bar serving only drinks.

33                 Bluehive submitted that representation (d), as pleaded, was to be found in substance, in the statements made about a bistro/gaming area in the Guidelines.  It submitted that Dukemaster’s attempt to distinguish between an area and a venue was little more than sophistry.

34                  Bluehive further submitted that Mr Gan had plainly relied upon this representation notwithstanding his somewhat imperfect understanding of the nature of a bistro.  Mr Gan said that he regarded the existence of a bistro/gaming zone as being good for Bluehive’s business because its presence, and late closure, meant that there would be people coming through the Centre not just throughout the morning and early afternoon, but throughout the entire day.  He said that the quiet time for a food court in the city was usually after lunch.  However, the presence of a bistro/gaming venue would result in a continual flow of pedestrian traffic.

Representation (e) -  “that there would be a Food Court with 8 shops having access to Little Bourke Street in which Bluehive’s business would have exclusivity in the sale of Italian cuisine”

35                  Bluehive, in its further and better particulars, claimed that this representation was partly written and partly oral. 

36                  Dukemaster, in its defence, denied having made this representation.  It admitted having said only that “the food court would be located on the Little Bourke Street level”. 

37                  The key to representation (e), as pleaded, is that part which asserts that Bluehive would have “exclusivity in the sale of Italian cuisine”.  To the extent that this representation was said to be in writing, Bluehive claimed that it was contained in a letter sent by Dukemaster on or about 13 September 1996.  Dukemaster acknowledged the authenticity of the letter.  However, it submitted that that letter should not be considered in isolation  It pointed out that it was Bluehive, in its initial letter of offer of 22 August 1996, which had proposed such exclusivity.  There had then been negotiations between the parties regarding this issue and on 10 September 1996, Dukemaster had agreed to Bluehive’s request.  However, Dukemaster had stipulated that the “exclusivity” be confined to the food court, and not extend to the supermarket.  Dukemaster noted that there were then a series of draft leases prepared, each dealing specifically with this very issue.  These included a draft lease which Bluehive had executed, but which had not been exchanged. 

38                  Bluehive claimed that representation (e) was false because, almost from the time the Centre opened, Dukemaster had permitted another food outlet, “Box Car”, to sell foccacia, panini, antipasto and other Italian food.  The evidence showed that on 21 January 1998, in response to complaints from Bluehive, Dukemaster’s solicitors acknowledged in writing that “Box Car” had been selling foccacia for two or three months. 

39                  Dukemaster noted that Bluehive had not adduced any evidence as to the extent of the sales by “Box Car”, or the loss and damage which Bluehive may thereby have suffered. 

40                  In my primary judgment, I found that Dukemaster had admitted making representation (e).  It is clear from Dukemaster’s defence that it expressly denied having done so.  To that extent the language which I used was somewhat infelicitous.  Nonetheless, Bluehive submitted that it was abundantly clear, on the evidence, that Dukemaster had in fact made the representation, as pleaded.  Whether it had admitted having done so was of secondary importance.

41                  Mr Gan said that when he first considered leasing Shop 5, he stressed the importance of having exclusivity in Italian cuisine.  He was told by Dukemaster that he should put his proposal in writing, in his formal offer.  He said that that was precisely what he did.

42                  Bluehive also drew attention to Dukemaster’s Offer to Lease Retail Premises in which it offered Shop 5 with “[E]xclusivity for the sales of Italian cuisine”.  Bluehive claimed that it had accepted that offer, adding the words “including Espresso coffee and tea”. 

43                  In his evidence, Mr Cook conceded that Mr Gan had raised with him the importance of exclusivity in the sale of Italian food. 

44                  Bluehive submitted that upon the totality of this evidence it was open to the Court to find that Dukemaster had made representation (e), as pleaded.  Moreover, that representation had been shown to be false, and constituted conduct that was misleading or deceptive.

Representation (f) - “that Bluehive's business would be one of only two tenants to sell all types of coffee”

45                  Bluehive claimed, in its further and better particulars, that this representation was partly written and partly oral.  However, in its closing submissions, it abandoned the claim that this representation was partly oral, relying solely on the terms of a letter dated 10 September 1996.

46                  Dukemaster in its defence denied having made this representation.

47                  Bluehive’s complaint was that Dukemaster had permitted another shop in the food court, “Reef, Fish and Chips” to sell coffee.  The evidence disclosed that Dukemaster gave Bluehive two months’ free rental to compensate it for what appeared to be an acknowledged breach of the warranty earlier given. 

48                  However, Dukemaster contended that even if representation (f), as pleaded, had been made, and even if that representation was misleading or deceptive, Mr Gan had not established that he had relied upon it in deciding to take up the lease of Shop 5.  Bluehive had thus had not established that any compensable loss or damage had flowed from this representation.

the oral representations

Representations (h), (i) and (j)

49                  These representations, as pleaded, were as follows:

“(h)      that Bluehive could easily meet its rental of $50,000 per annum;

  (i)      that Bluehive would have a turnover of about $8,000 per week;

  (j)      that there would be 450 seats for patrons in the food court and each seat would generate about $14,000 per annum.  This would make a total annual income of about $6,300,000 for the 8 shops in the food court;”

50                  Bluehive claimed that each of these representations was made orally, by either Mr Hii or Mr Cook, during the course of the Meeting.  It also claimed that representation (j) was made in writing, and was contained, in substance, in the Brochure. 

51                  Dukemaster denied having made any of these representations. 

52                  In my primary judgment, I found that representations (h), (i) and (j) (as well as representations (g) and (k)) were made orally, during the course of the Meeting .  I also found that each of these representations was misleading or deceptive, and that Mr Gan had relied upon them in deciding to enter into the lease of Shop 5.  I concluded that Bluehive had thereby sustained loss and damage. 

53                  When this matter came before the Full Court on appeal, Dukemaster submitted that there was no evidence whatever to support the allegation that representation (h) had been made.  It contended that Bluehive’s case had always been that each representation, precisely as pleaded, had been made, and not that those representations were, in some general way, to be implied from statements differently expressed.

54                  Bluehive acknowledged before the Full Court, and subsequently before me, that there was no evidence that representation (h) had been made in the terms in which that representation was formulated in the statement of claim.  However, it submitted that the trial had never been conducted upon the basis that the words ascribed to Mr Hii and Mr Cook in the pleadings were a verbatim account of what they had said.  Rather both sides had proceeded upon the basis that those words represented a fair summary of what Mr Gan and Mr Sayers said they were told, and included what was plainly implicit in the language attributed to Mr Hii and Mr Cook. 

55                  Bluehive submitted that it was at least implicit from representations (i) and (j), having regard to the amounts mentioned in those representations, that Bluehive would easily be in a position to meet the rental of $50,000 per annum sought. 

56                  Dukemaster described that particular submission as “extraordinary”.  It repeated its earlier submission that Bluehive had not alleged in its pleadings that any of the representations identified arose “by inference”.  It contended that Bluehive should not now be permitted to rely on such an argument.

57                  Dukemaster’s submission on this point is curious given the particulars which Bluehive provided of each of the eleven representations. Bluehive made it plain that these representations “were oral, in writing and to be implied” (emphasis added).  Those particulars were in the following terms:

“(a)     Insofar as they were oral they consisted of conversations between Mr. Jonathan Gan and Mr Darren Sayers on behalf of the firstnamed Applicant and with Mr. Peter Cook, Chief Executive Officer of the Respondent and with Mr. E.S. Hii, a Director of the Respondent, at meetings in or about the months of August and September 1996 at the Respondent’s temporary offices in the shopping centre in Exhibition Street, Melbourne.  There were further conversations in October 1996, during two tours of the shopping centre given to Mr. Gan and Mr. Sayers by Mr. Cook.  The substance of the conversations is as alleged.

 (b)      Insofar as they were in writing they consisted of-

(i)                 a Brochure entitled “The Paramount Centre Fitout Guidelines”; and

(ii)               a Brochure entitled “Where retail opportunity is Paramount”;

(iii)             plans of the shopping centre showing the location of the firstnamed Applicant’s proposed premises and prepared by the Respondent.  A copy of which is annexed to the unexecuted lease.

Copies of the Brochures and plans are available for inspection at the offices of the firstnamed Applicant’s solicitors.

 (c)      Insofar as they were implied they were implied from the conduct of the Respondent’s Chief Executive Officer and one of its Directors both of whom held themselves out to the firstnamed Applicant as having authority to negotiate leases on behalf of the Respondent and to give commercial efficacy to the arrangements between the parties.”  (emphasis added)

58                  It seems to me from these particulars that Bluehive relied specifically upon “the substance” of the conversations generally according with the representations identified, and did not allege that the words ascribed to Mr Hii and Mr Cook were verbatim.  Moreover, Bluehive made it clear that representations (h), (i) and (j) were, in part, to be implied from the conduct of Mr Hii and Mr Cook.  It did not rely upon the words set out in those representations having been spoken.

59                  The Full Court noted at par [17] of its judgment:

“We were told that at first instance the case proceeded on the basis that this representation [ie representation (h)] was made out on the evidence.”

60                  Dukemaster subsequently submitted before me that the Full Court had been misled, albeit inadvertently, by senior counsel for Bluehive when he told that Court the basis on which the case had proceeded before me.  Dukemaster reiterated that it had always denied having made representation (h), and emphasised that it had never conceded that this representation “was made out on the evidence”.  All that Dukemaster had ever said was that if, contrary to its primary submission, representation (h) had been made, the legal consequence would be that, by virtue of s 51A of the Act, it must be taken to be misleading.

61                  Dukemaster submitted that whatever conclusion I might now come to regarding whether representations (i) and (j) had been made, it must at least be clear that my finding that representation (h) had been made could not stand. 

62                  As regards representations (i) and (j), Dukemaster submitted that my acceptance of the evidence of Mr Gan and Mr Sayers in preference to that of Mr Hii and Mr Cook depended upon a process of reasoning which the Full Court had subsequently found to be flawed.  This meant that I should substitute new findings in relation to those representations. 

63                  Bluehive submitted that my findings as regards representations (i) and (j) had been correct.  It also submitted that my finding that representation (h) had been made was properly open, and to be derived by implication from the evidence given by Mr Gan and Mr Sayers.  

The findings made in my primary judgment

64                  In my primary judgment I observed at par [44]:

“It is obvious from this brief summary of the background facts that paramount among the many issues in dispute between the parties is what occurred during the course of the meeting of 21 August 1996.  It is necessary to resolve that question before turning to the other matters in contention.”

65                  I then set out in considerable detail the evidence of Mr Gan and Mr Sayers regarding what occurred during the course of the Meeting, and contrasted that with the evidence of Mr Hii and Mr Cook. 

Mr Gan’s evidence

66                  Mr Gan said that after he and Mr Sayers had been taken for a tour of the food court by Mr Cook, and Mr Sayers had departed, Mr Hii told him that there would be 450 seats in the food court and by his calculations he expected each seat to generate $14,000 per annum.  Mr Hii also said he expected the food court to be very busy. 

67                  According to Mr Gan, Mr Cook then mentioned that Bluehive should “do between $8,000 and $15,000 per week in turnover”.  Mr Hii suggested that on these figures he would expect a rental of about $75,000 per annum.  Mr Hii also said that if the actual turnover were to exceed $15,000 per week, he would want an additional percentage of turnover for rental. 

68                  I continued my summary of Mr Gan’s evidence at pars [51]-[52] as follows:

“Mr Gan said that the meeting then ended.  He left the offices of Dukemaster with a copy of the Brochure.  Later that day he arranged to meet Mr Sayers in order to discuss what, if anything, should be done regarding the proposed lease.  That evening, Mr Gan and Mr Sayers met at Mr Gan’s home.  Mr Gan prepared a letter of offer in relation to the lease of Shop 5.  He said that the terms set out in that letter reflected the discussion which had taken place earlier that day.  The letter of offer was signed by Mr Gan on behalf of Bluehive.  It is dated 22 August 1996, and was faxed to Mr Hii on that date.

As will become apparent, I consider that the terms of Mr Gan’s letter of offer are critical to the resolution of what took place during the course of the meeting.  For present purposes it is sufficient to note merely that it begins by referring to the previous day’s meeting, and contemplates a lease of seven years commencing at “Centre Opening – Estimated December 1996”.  It proposes a rent-free period, which, at that stage, was for four months, and a gross rent of $55,000 per annum.  It offers what is described as “Percentage Rent”, fixed at “10% of Annual Turnover in excess of $780,000”.  It provides that the lessee will be responsible for the fit-out of the premises.”

Mr Sayers’ evidence

69                  I then summarised Mr Sayers’ evidence in relation to what had occurred at the Meeting.  I observed that Mr Sayers’ account was generally consistent with that of Mr Gan.  Mr Sayers said that both he and Mr Gan had been taken on a tour of the food court by Mr Cook.  He said that Mr Cook told him that there would be 450 seats in the food court, and that Dukemaster had done a calculation on the turnover that it would generate.  He said that shop 5 “would have a minimum turnover of $8,000 per week and that we would expect to do $15,000 a week”.  Mr Sayers said that the tour had then ended, and he had departed.

70                  I said in my primary judgment at par [57]:

“Mr Sayers said that later that evening he went to Mr Gan’s home and discussed with him the events of that day.  They jointly prepared the letter of offer to lease Shop 5 which was sent to Mr Hii the next day.  He said that the terms of that letter reflected the discussion which had taken place during the tour of the Centre.  He said that the offer of $55,000 gross rent per annum which was contained in the letter was calculated upon a base figure of $8,000 turnover per week.  He said that this base figure had been suggested by Mr Cook.  He said that the offer of “Percentage Rent” of 10% of annual turnover above $780,000 was based on Mr Cook’s estimate that the business could expect to generate a turnover of $15,000 per week.”

Mr Hii’s evidence

71                  I noted that Mr Hii’s evidence accorded, at least in part, with that of Mr Gan and Mr Sayers.  Mr Hii also recalled there having been some preliminary discussion between Mr Gan, Mr Cook and Mr Gan’s architect, Mr Soon, prior to Mr Gan and Mr Soon leaving his office.  Mr Hii said that he could not recall the nature of that discussion but it had occupied approximately 10 to 15 minutes.

72                  I then summarised Mr Hii’s evidence at pars [59]-[60] as follows:

“Mr Hii recalled that when the meeting was over, immediately before Mr Gan and Mr Soon left his office, there was mention made of arranging for Mr Gan’s partner to come up to the Centre.  Mr Hii said that at no stage did he participate in any discussion about the likely turnover of any business in the food court.  He said that nothing was said about the number of seats that would be available, or how much money those seats would generate.  He emphatically denied that there had been any discussion of the rent to be paid for Shop 5.  He also denied that there had been any mention of $780,000, or any other sum, as an annual turnover figure on which turnover rent could be based. 

Mr Hii said that Mr Gan had been in his office only once on 21 August 1996.  He strongly rejected Mr Gan’s claim that he had subsequently returned to Mr Hii’s office for further discussions.  He said that he had not seen Mr Gan again, after 21 August 1996, until about March or April 1997.”

Mr Cook’s evidence

73                  Mr Cook said that he met Mr Gan in Mr Hii’s office at Dukemaster on 21 August 1996.  He could not remember what time the meeting took place.  However, he estimated that it went for about 35 to 40 minutes.  I summarised the remainder of Mr Cook’s evidence at pars [61]-[64] as follows:

“Mr Cook said that Mr Soon began by indicating that, in his view, the space which Shop 5 would occupy would be well suited to Italian cuisine.  Mr Gan had then spoken of his own background, and of his father’s fourteen food outlets in various food courts throughout Melbourne. 

Mr Cook said that after listening to Mr Gan for some time, he had asked him “Well, if you’re going to do this, what sort of turnover would you expect?”.  Mr Gan had replied that he would expect, in the early days, to generate at least $8,000 per week, rising to $10,000 per week in a reasonably short period of time.  Mr Cook said that the meeting had then ended, and Mr Gan and Mr Soon had departed.  Mr Cook said he spoke to Mr Hii for a time and then turned his attention to other matters.

Mr Cook emphatically denied having accompanied Mr Gan or Mr Sayers on a tour of the Centre on that day.  Indeed, he denied having met or spoken to Mr Sayers on that day.  He said that he could not recall have mentioned a bistro or gaming area.  He denied having discussed the types of shops that would occupy the retail section of the Centre.  He denied having mentioned Brashs as a prospective tenant.  He denied having discussed with anyone the likely turnover of Shop 5.  He said that the only time turnover was mentioned was when Mr Gan predicted, in answer to Mr Cook’s question, that the shop would generate $8,000 to $10,000 per week.  Mr Cook denied having said anything about the number of seats in the food court or what income each seat would generate.

In cross-examination Mr Cook’s attention was drawn to Mr Gan’s letter of offer dated 22 August 1996.  He was reminded that Mr Gan had offered a gross rental of $55,000 per annum in that letter.  He was asked if he could explain how that figure had been arrived at if the matter of rent had not been mentioned during the course of the meeting.  He agreed that the figure of $55,000 per annum offered by Mr Gan happened to coincide with the figure which had been recommended as the appropriate rental for Shop 5 by the real estate agents advising Dukemaster.  He then acknowledged that, logically, this figure must have been mentioned during the course of the meeting.  He maintained, however, that he could not recall that having happened.  Importantly, Mr Cook could provide no explanation as to how the “Percentage Rent” of “10% of Annual Turnover above $780,000”, offered by Mr Gan, had been arrived at, and incorporated into that letter of offer.”

My findings regarding what was said at the Meeting

74                  In my primary judgment I then proceeded to make findings regarding what had been said during the Meeting.  I noted that there was a stark conflict in the evidence.  I observed that in my experience a contemporaneous note of a conversation that took place long ago was, in general, likely to be more reliable than the unaided recollection of those who took part in that conversation.  I expressed the view that the letter of offer prepared by Mr Gan and Mr Sayers on the evening of the Meeting was analogous, in many respects, to such a note. 

75                  I then summarised the contents of the letter of offer.  I said at pars [68]-[78]:

“The letter of offer referred specifically, and in terms, to a “Percentage Rent” which was nominated to be “10% of Annual Turnover in excess of $780,000”.  The figure of $780,000 equates precisely to $15,000 per week.  That figure of $15,000 per week, equates in turn, with what both Mr Gan and Mr Sayers say they were told was either the upper range of, or expected weekly turnover of, Shop 5.  As noted earlier, Mr Cook could provide no explanation as to how that figure of $780,000 had found its way into Mr Gan’s letter of offer.  There was no reason for Mr Gan to volunteer to pay a rental figure in excess of the required base rent.  His offer to do so had to be in response to something said about that subject during the course of the meeting.  It seems obvious therefore that at some stage a weekly turnover figure of $15,000 had been mentioned.  The figure could only have been mentioned by Mr Hii, or by Mr Cook. 

It is inherently improbable that Mr Cook would have asked Mr Gan what turnover he expected Shop 5 to be able to do.  It is even less likely that Mr Gan would have proffered turnover figures of $8,000 to $10,000 per week.  There was no reason for Mr Gan to have had the slightest idea of what the weekly turnover of a takeaway food shop selling Italian food in this particular food court might be.  His past experience certainly did not qualify him to give any such estimate.  It is reasonable, on the other hand, to assume that Dukemaster had conducted some research into the likely turnover of shops in the food court.  Both Mr Hii and Mr Cook are likely to have had access to that information.

Mr Cook’s recollection of what occurred at the meeting struck me as having been at best somewhat hazy.  For example, he originally denied having accompanied Mr Gan and Mr Sayers on a tour of the Centre.  Indeed, he said that he could specifically recall having remained behind to speak with Mr Hii after Mr Gan and Mr Soon had left the office.  When pressed by me on this matter, however, Mr Cook acknowledged that it was just possible that he had accompanied Mr Gan on a tour of the Centre on that day. 

Mr Hii’s recollection was that when Mr Gan and Mr Soon left his office they were accompanied by Mr Cook.  Mr Hii also recalled mention being made of Mr Gan’s partner being asked to come up to the Centre.  Mr Hii’s evidence supports that of Mr Gan in that regard.  It is fundamentally at odds with the evidence of Mr Cook.

Mr Cook was adamant that he had not mentioned Brashs taking up a lease at the Centre.  His evidence in that regard is difficult to accept.  It is not easy to see how both Mr Gan and Mr Sayers would have known the details of Brashs’ proposed tenancy unless Mr Cook had mentioned it on that day.

Moreover, Mr Cook had a powerful incentive to “sell” the virtues of the Centre as an attractive leasing opportunity.  In August 1996 Dukemaster’s plans for the Centre were in virtual disarray.  With the possible exception of House, and the flower shop, none of the shops on the Bourke Street level had been let.  The Centre was competing with other retail complexes which were offering far more attractive leasing arrangements.  The entire project was shaping up to be a financial disaster.  The probabilities are that Mr Cook would have tried to present the food court as an attractive and viable business opportunity.  It is difficult to accept that throughout the entire meeting on 21 August 1996 neither he nor Mr Hii said anything at all about either turnover or rent. 

At the same time it must be accepted that there are some factors which may cast doubt upon the credibility of both Mr Gan and Mr Sayers.  For example, there are discrepancies between Mr Gan’s account of what occurred on 21 August 1996, and that given by Mr Sayers.  Mr Gan said that the discussion concerning the weekly turnover figures of between $8,000 and $15,000 took place after the tour of the Centre had been completed.  He also said that both Mr Cook and Mr Hii had participated in that discussion.  Mr Sayers said that Mr Cook had mentioned these figures during the course of the tour.  Mr Sayers was not present at any discussion with Mr Hii after the tour was over.  It is possible, of course, that both Mr Gan and Mr Sayers were correct in their recollections, and that these figures were mentioned separately, both during the tour and subsequently. 

Mr Gan said that he had not collected the Brochure until after the tour had been completed.  Mr Sayers said that Mr Gan had the Brochure with him throughout the tour.  A discrepancy of this type is entirely understandable.  Whether or not the Brochure was in Mr Gan’s physical possession during the tour was scarcely likely to have imprinted itself upon his mind.

Of far greater significance is the fact that Mr Gan did not mention any of the representations concerning the projected turnover of the business which he now claims were made during the course of the meeting on 21 August 1996, until this application was brought in this Court in December 1998.  Mr Gan made no mention of the representations relating to turnover when, on 4 August 1997, he wrote to Dukemaster complaining of having been misled.  These same representations relating to turnover were not mentioned by Best Hooper when they wrote to Kliger Partners on 28 August 1997 setting out in detail the misrepresentations allegedly made to Mr Gan which had induced him to take up the lease of Shop 5.  Nor were these representations mentioned in 1998 when Mr Gan instituted proceedings against Dukemaster in the Victorian Civil and Administrative Tribunal. 

Mr Gan explained that he had not mentioned the representations as to turnover at an earlier stage because he had assumed (correctly, as it turned out) that both Mr Hii and Mr Cook would deny having made those representations.  In order to avoid getting into a pointless slanging match with Mr Hii and Mr Cook, Mr Gan had confined his complaints to those representations which could not be the subject of any dispute, including in particular those which had been made in writing.

It must be said that Mr Gan’s explanation for not having previously mentioned the representations as to turnover is not wholly convincing.  However, when balanced against the considerable weight which must be given to his letter of offer dated 22 August 1996, the only conclusion which is available on the evidence is that Mr Gan’s account of what occurred during the course of the meeting on 21 August 1996 is substantially accurate.  Where that account conflicts with the account of that meeting given by Mr Hii or by Mr Cook, I prefer the evidence of Mr Gan.  It follows that I am satisfied that representations (g), (h), (i), (j) and (k) were all made.”

76                  I continued at par [83]:

“Dukemaster’s case is that none of the oral representations attributed to Mr Hii and Mr Cook were made by either of those men.  It is scarcely surprising, therefore, that it led no evidence to show that it had reasonable grounds for making these representations.  Dukemaster must therefore be deemed not to have had any such reasonable grounds.  It follows that these representations must be taken to be misleading.”

the effect of the full court's orders

77                  In my primary judgment I dealt only in passing with the written representations.  As indicated earlier, I treated representations (a), (b), (e) and (f) as having been admitted by Dukemaster.  I did so conscious of the fact that, in its defence, Dukemaster denied having made those representations.  My observation regarding Dukemaster having admitted these representations was based upon the manner in which the case had been conducted at trial rather than the state of the pleadings.  I did so upon the basis of my appreciation of the manner in which the case had been conducted at trial, rather than by reference to the formal pleading. 

78                  I noted specifically that Dukemaster had conducted its case upon the basis that none of representations (a), (b), (e) or (f) were misleading or deceptive.  I made no findings whatever regarding representations (c) and (d), both of which I regarded Dukemaster as having denied.

79                  I made no findings as to whether any of representations (a), (b), (c), (d), (e) or (f) were misleading or deceptive.  It is clear, however, that s 51A of the Act leads to the conclusion that these representations must be taken to be misleading in the absence of reasonable grounds on the part of Dukemaster for having made them.  I also made no findings regarding the issues of reliance or causation of loss or damage sustained as a result of any of these representations.

80                  I approached the matter upon this basis because I was satisfied that the oral representations identified by Bluehive had in fact been made.  Having arrived at that conclusion, I found that these oral representations must, by reason of the operation of s 51A, be taken to be misleading. 

81                  In my primary judgment I also accepted Mr Gan’s evidence that he had relied upon the oral representations in deciding to take up the lease of Shop 5, and that he had thereby sustained loss.  Having arrived at that conclusion, I considered that it was unnecessary to go on and deal with the written representations.

82                  The Full Court, in its reasons for judgment, found that I had placed too much weight upon the letter of offer of 22 August 1996 in concluding that the evidence given by Mr Gan and Mr Sayers was to be preferred to that given by Mr Hii and Mr Cook.  The Full Court said in pars [20] and [21]:

“If the primary judge had preferred the evidence of Mr Gan and Mr Sayers over that of Mr Hii and Mr Cook because he disbelieved the latter, or because the accounts of the former accorded more with the probabilities, we would have no difficulty in concluding that he was entitled to do so.  But his Honour’s reason for accepting Mr Gan’s account is that one aspect of it was supported by the letter of offer.  This was representation (i), though not as pleaded, which was that Bluehive would have a turnover of about $8,000 per annum (sic) .  The evidence that emerged at trial differed from the pleading in that Mr Cook was alleged to have specified a turnover range of between $8,000 and $15,000.  It was the multiplicational link between $15,000 and $780,000 that founded the primary judge’s use of the letter of offer to choose between the two accounts of what occurred at the meeting.  In explaining why he regarded the letter as critical in this respect his Honour said, first, that Mr Cook could provide no explanation as to how the $780,000 figure came to be in the letter.  We are not sure why the fact that someone in the Dukemaster camp could not explain it is a matter of significance.  Then his Honour said there was no reason for Mr Gan to volunteer to pay a rental figure in excess of the required base rent.  This overlooks the fact that in May 1996 Bluehive negotiated with Dukemaster and its real estate agent about Shop 1 in the Centre.  In the course of these negotiations Mr Gan discovered that Dukemaster’s standard offer to lease provided for a percentage rent when turnover exceeded a specified amount.  Accordingly, if it wanted Shop 5, there was a good reason for Bluehive to offer a turnover rent.  We are thus unable to agree with the primary judge’s conclusion that Mr Gan’s offer to pay a turnover rent “had to be in response to something said about that subject during the course of the meeting”, and that it was therefore obvious that $15,000 turnover had been mentioned by Mr Hii or Mr Cook.  Given Mr Gan’s awareness that Dukemaster wanted a turnover rent for space in the Centre, it is just as likely that Mr Gan and Mr Sayers, in the course of their discussion after the meeting, fastened upon $15,000 of their own volition.

It is not clear whether, independently of the letter of offer, the primary judge would have accepted Mr Gan’s account of what occurred at the meeting.  His Honour noted aspects of Mr Cook’s account that he found improbable, and that one part of his evidence was “difficult to accept”.  But he also noted matters that “may cast doubt upon the credibility” of Mr Gan and Mr Sayers.  He mentioned disparities between their accounts and the fact that Mr Gan did not mention any of the representations about projected turnover until the application was filed in December 1998.  The turnover representations were not mentioned by Bluehive’s solicitors in their letter to Dukemaster’s solicitors of 28 August 1997 setting out in detail the misrepresentations allegedly made to Mr Gan to induce him to take a lease of Shop 5.  The representations did not feature in proceedings instituted by Bluehive, Holdings and Mr Gan against Dukemaster in 1998 in the Victorian Civil and Administrative Tribunal.  Bluehive’s pleading in the Tribunal was almost word for word the same as that appearing in its statement of claim in the present case, save for the absence of representations (h) to (k).  Mr Gan’s explanation for this was that he assumed that Mr Hii and Mr Cook would deny having made the turnover representations, and that in order to avoid getting into a slanging match with them he had raised only those matters that could not be the subject of any dispute.  Understandably, the primary judge found this explanation “not wholly convincing”.  We entertain considerable doubt whether, but for the letter, his Honour would have accepted Mr Gan’s account of the facts relevant to representations (h), (i) and (j).  Counsel were in agreement that if we thought the letter of offer too fragile a basis for preferring Mr Gan’s account of what was said at the meeting, as we do, we should not attempt to assess what the primary judge would have done had he not attached the importance he did to the letter, or to form our own view, but should remit the matter to his Honour in order for findings to be made about those representations in light of our conclusions about the letter of offer, and about the other pleaded representations.  In view of this, it would be inappropriate for us to deal with that part of the appeal concerned with the primary judge’s assessment of damages, or with Dukemaster’s cross‑claim for rent which the primary judge dismissed.”

83                  When this matter came before me for further argument, after it had been remitted by the Full Court, there was some debate as to precisely what the effect of the Full Court’s orders was.  It was accepted by both sides that I was required to reconsider my findings regarding the oral representations in the light of the Full Court’s conclusions regarding the weight to be accorded to the letter of offer.  It was also accepted by both sides that I was required to make findings “about the other pleaded representations” i.e. the written representations, which were not dealt with in my primary judgment.  Apart from these matters, however, there was little else the parties agreed upon. 

84                  My understanding of the Full Court’s orders is that I am required to consider whether, independently of the letter of offer, I would have accepted the account of what occurred at the Meeting given by Mr Gan and Mr Sayers in preference to that of Mr Hii and Mr Cook.  My primary judgment did not address that issue in precisely those terms because I found that “the considerable weight which must be given” to the letter of offer meant that the “only conclusion” that was “available” on the evidence, taken as a whole, was that Mr Gan’s account was “substantially accurate”.  It was upon that basis that I preferred the evidence of Mr Gan and Mr Sayers to that of Mr Hii and Mr Cook.

85                  On the remitter, Dukemaster submitted that my primary judgment should be approached in the following way:

·                    I found that representations (g), (h), (i), (j) and (k), “were all made”.  However, before the Full Court, Bluehive had abandoned any reliance on representations (g) and (k).  To that extent my initial findings could no longer be supported.

·                    as noted above, I made only passing reference to the written representations.  I did, however, find that Dukemaster had admitted having made representations (a), (b), (e) and (f), though it denied that these representations were misleading or deceptive.  [That was an infelicitously expressed conclusion on my part.  Dukemaster, in its defence, denied having made these representations.  I should have made it plain that I was speaking only of the manner in which Dukemaster had conducted its case at trial.] 

·                     any findings which I made in relation to reliance by Bluehive were confined to the oral representations, and in particular representations (h), (i) and (j).

·                     although I had said that I placed “considerable weight” upon the letter of offer in preferring the evidence of Mr Gan and Mr Sayers to that of Mr Hii and Mr Cook, I had in fact accorded that letter “determinative weight”.

·                     I had also identified some factors which cast doubt upon the credibility of both Mr Gan and Mr Sayers.  These included, in particular, Mr Gan’s failure to mention the representations concerning the projected turnover of the business when he initially formulated his complaints regarding having been misled by Dukemaster, and his somewhat questionable explanation for having failed to mention those matters.

86                  Dukemaster next submitted that the following propositions could be derived from the judgment of the Full Court:

·                     it had reservations regarding my having treated Dukemaster as having “admitted” representations (a), (b), (e) and (f).

·                     it noted that representation (h) did not appear to be supported by any evidence.  Notwithstanding that fact, it declined to permit the issue of whether representation (h) was made out on the evidence to be reagitated on the appeal. 

·                     it observed that my primary judgment disclosed no basis for preferring the evidence of Mr Gan and Sayers to that of Mr Hii and Mr Cook apart from the fact that I regarded Mr Gan’s account of what occurred at the Meeting as being strongly supported by the terms of the letter of offer. 

·                     it disagreed with my analysis of the weight to be accorded to that letter.  It considered the letter to be “too fragile” a basis for preferring Mr Gan’s account of the Meeting to that of Mr Hii or Mr Cook.

87                  Dukemaster submitted that the remitter by the Full Court permitted me to do no more than revisit such of the evidence as I had specifically dealt with in my primary judgment, and not to refer to, or rely upon, any other evidence adduced at the trial.  For reasons which will soon become apparent, that is a submission which I am not able to accept. 

88                  Dukemaster further submitted that although I might revisit the existing evidence for the limited purpose of addressing the findings referred to in par 21 of the Full Court’s reasons (pursuant to par 3 of its orders dated 5 March 2001), I could do so only in a manner which was consistent with, and subject to, my own earlier findings of fact, and the reasons of the Full Court. 

89                  According to Dukemaster, this meant that in relation to the oral representations, the effect of the Full Court’s judgment was that I must make findings of fact without giving any weight whatsoever to the letter of offer.  Moreover, not only must I put to one side my earlier process of reasoning, but it was not open to me to “provide any further explanation” or “more fully assess” the credit of any of the witnesses who gave evidence in the trial.  Dukemaster submitted that this was because I had already carried out that exercise “in express and fulsome terms”. 

90                  Finally, Dukemaster submitted that the effect of the Full Court’s judgment was that I was not entitled to revisit my earlier findings of fact, in order to set out in greater detail than I had previously done why I preferred the evidence given by Mr Gan and Mr Sayers to that of Mr Hii and Mr Cook.  Otherwise, Dukemaster submitted, I would be “sitting on appeal” from my primary judgment. 

91                  Dukemaster did not resile from the logical import of its submissions.  It contended that in respect of the oral representations, and more specifically representations (h), (i) and (j), there was, without the benefit of the letter of offer, “only one effective finding now open” to me.  That was that the evidence given by Mr Hii and Mr Cook as to the facts relevant to representations (h), (i) and (j) must be preferred to that given by Mr Gan and Mr Sayers.

92                  Bluehive disputed Dukemaster’s analysis of the terms upon which the Full Court had remitted this matter for the making of findings on the issues referred to in par 21 of that Court’s reasons.  It submitted that although that paragraph was expressed in “somewhat complex terms”, it was plainly the Full Court’s intent that I re-evaluate the evidence of Mr Gan and Mr Sayers against the evidence of Mr Hii and Mr Cook in the light of that Court’s finding that I had attributed too much weight to the letter of offer.  Bluehive submitted that, having undertaken that task,  I should affirm my earlier findings, and continue to prefer the evidence of Mr Gan and Mr Sayers to that of Mr Hii and Mr Cook.  It submitted that an essential point, not impugned by the Full Court, was that even without according any weight to the letter of offer, the evidence of Mr Gan and Mr Sayers was inherently credible. 

93                  Bluehive submitted that for Mr Gan the Meeting had been of a “one off” nature.  For Mr Cook, who had responsibility for selling 230 apartments, as well as leasing the shops in the food court, this was one of what must have been many meetings with prospective purchasers or tenants.  Bluehive also submitted that I had correctly characterised Mr Cook’s recollection of the events in question as having been “pretty hazy”.  It submitted that, if anything, this was a charitable assessment of Mr Cook’s credibility. 

94                  Not suprisingly, Bluehive relied upon Mr Hii’s evidence to the extent that it supported that given by Mr Gan and Mr Sayers, and contradicted that given by Mr Cook.  It submitted that the Full Court plainly expected me to revisit the evidence led at the trial.  It expected me to identify the extent, if any, to which the demeanour of the various witnesses may have impacted upon my reasons for preferring the evidence of Mr Gan and Mr Sayers to that of Mr Hii and Mr Cook.

95                  In my view, Bluehive’s analysis of the task expected of me by the Full Court is correct.  I can see no reason why the Full Court would have remitted the matter to me to make the findings of fact referred to in par 21 of its reasons for judgment if, as Dukemaster contended, the only possible outcome of my further deliberations would be to accept the evidence of Mr Hii and Mr Cook in preference to Mr Gan and Mr Sayers.  Had the Full Court considered that to be “the only possible outcome”, it was perfectly capable of stating that conclusion for itself.

96                  On the other hand, I think that Dukemaster is correct in submitting that upon my reconsideration of the weight to be accorded to the evidence given by Mr Gan and Mr Sayers I must put to one side the processes of reasoning that led me to attribute the weight which I did to the letter of offer.  I must say that that is no easy task.  In my primary judgment, I found the letter to be so strongly supportive of Mr Gan’s version of events that it was unnecessary to spell out, in any great detail, the other reasons which I had for preferring that version to the account given by Mr Hii and Mr Cook.

97                  In my primary judgment I made several findings adverse to Mr Cook, particularly with regard to his recollection of events.  I also commented specifically upon the inherent implausibility of some of his evidence regarding what had occurred at the Meeting.  However, I did not go on to weigh his evidence (or that of Mr Hii) in any detailed way against that given by Mr Gan and Mr Sayers. 

98                  I did note that Mr Cook had a vested interest in securing a tenant for the food court, and that he was desperately striving to do so.  I also noted that it was inherently more likely that he would have made the representations about projected turnover, as alleged by Mr Gan, than Mr Gan proffering projected turnover figures about an Italian food outlet in a brand new food court about which he knew nothing, as alleged by Mr Cook.

99                  As I said in my primary judgment, there were significant discrepancies in the evidence concerning what took place during the course of the Meeting.  It is difficult to see how the witnesses who gave evidence regarding that event can all be telling the truth.  One or more of those witnesses is either lying, or has significantly reconstructed what occurred, perhaps without being fully conscious of having done so. 

100               Notwithstanding the reservations which I expressed about certain aspects of Mr Gan’s evidence, he was, in my opinion a witness of truth.  That conclusion applies also to Mr Sayers. 

101               Mr Cook was, at the very least, a witness whose memory of events was uncertain.  Even Mr Hii agreed with Mr Gan and Mr Sayers that Mr Cook went off with Mr Gan after their initial conversation.  I have no doubt that that occurred, and that Mr Cook accompanied Mr Gan and Mr Sayers upon a tour of the Centre, as they claimed. 

102               I had, at the time of the trial, and still have, serious reservations regarding Mr Cook’s reliability as a witness.  I do not accept his evidence regarding Mr Gan having raised the projected turnover figures in answer to a question from Mr Cook.  I do not accept his evidence regarding there having been no discussion of rental for Shop 5 at any stage during the course of the Meeting. 

103               I also have reservations regarding the credibility of Mr Hii.  He seems to me to have been largely preoccupied with other matters during much of the conversation which took place.  His recollection of events seems to me to be vague and unreliable. 

104               I should say that I do not read the judgment of the Full Court as precluding me, in a formal sense, from giving any weight whatsoever to the letter of offer.  The Full Court concluded that I gave too much weight to that letter.  It explained its reasons for arriving at that conclusion.  I accept those reasons which are, in any event, binding upon me.

105               I have done my best to put the letter entirely to one side when considering once again whether I prefer the evidence of Mr Gan and Mr Sayers to that of Mr Hii and Mr Cook.  Nonetheless, it may at least be said that there is nothing in the letter which is inconsistent with the evidence given by Mr Gan and Mr Sayers.  It remains the fact that the rental figure offered of $55,000 per annum accords broadly with the $8,000 per week projected turnover figure said to have been mentioned by Mr Hii and Mr Cook, using what was then regarded as the standard rate of return on such an investment, namely 12-13%.  It also remains the fact that the turnover figure of $780,000 per annum equates precisely with the evidence of both Mr Gan and Mr Sayers as to what they were told the upper range of the weekly takings might be.  The Full Court noted that my reasoning in relation to the weight to be accorded to this letter was flawed because there were other possible explanations which might equally explain that coincidence.  The fact remains, however, that this figure, which equates to $15,000 per week is consistent with what both Mr Gan and Mr Sayers say they were told by Mr Hii and Mr Cook.

106               I also note that the Brochure itself contains projected turnover figures for the proposed food court albeit prepared against the background of such figures across the Central Business District.  For example, the Brochure states:

“There are currently 9 existing food courts in the CBD, achieving a total turnover level of around $35M per year, based on a total eating market of $300M in 1995.  This indicates that Food Courts are currently accounting for approximately 121% of the available market.  Starting from a very low base only a few years ago, this is a significant share, which leaves scope for increases in Food Court turnover without leading to market saturation.

While the Eastern Hill precinct has a wide range of restaurants, a Food Court will provide a point of difference, and market potential certainly exists for this type of facility.

The average size of CBD Food Courts is large, with more than 11 individual outlets and an average seating capacity of 470.  The average turnover was $6.6 million in 1994.  The average turnover per seat being in the range of $12,000 - $16,000.”

107               It is plain, therefore, that Dukemaster had given at least some attention to the likely turnover figures for the food court.  I assume that these figures were based upon research which it undertook before embarking upon the Paramount Centre venture. 

108               I remain of the view, which I expressed in my primary judgment, that Mr Cook’s suggestion that Mr Gan had proffered turnover figures of “$8,000 per week, rising to $10,000 per week in a reasonably short period of time” in answer to a question from Mr Cook was utterly implausible.  Despite Mr Gan’s background in a take-away food venture (“Spudnik” - a very different type of business), and his father’s involvement in operating a number of Asian food outlets, he would have had very little idea of what an Italian food outlet in this particular food court would be likely to generate in weekly turnover. 

109               It is far more likely, in my view, that Mr Hii and/or Mr Cook proffered the projected turnover figures of $8,000-$15,000 per week, as an inducement to Bluehive to take up the lease of Shop 5, as alleged by both Mr Gan and Mr Sayers.

110               It follows that, in my opinion, each of representations (i) and (j) were made during the course of the Meeting.  As indicated earlier, representations (g) and (k) are no longer relied upon, and nothing further needs to be said about them. 

111               I come back to the debate regarding representation (h).  I refer again to par [17] of the Full Court’s reason for judgment in which it observed that:

“… representation (h) [did] not appear…to be supported by any evidence.  Neither Mr Gan nor Mr Sayers claimed that he had been told by Mr Hii or Mr Cook that Dukemaster (sic) could easily meet its rental $50, 000 per annum.  We were told [by senior counsel for Bluehive] that at first instance the case proceeded on the basis that this representation was made out on the evidence.” 

112               As indicated earlier, senior counsel for Dukemaster was prevented by the Full Court from withdrawing what that Court regarded as having been a concession by Dukemaster, namely that at first instance the case proceeded on the basis that representation (h) “was made out on the evidence”.  Dukemaster maintained before me that the Full Court had erroneously arrived at this conclusion, having been misled, albeit inadvertently, by what senior counsel for Bluehive had said. 

113               Having given this matter further consideration, I think Dukemaster is correct in its contention that there was in fact no evidence to support representation (h), as pleaded.  I should emphasise, however, that the case was conducted throughout by both parties upon the basis that no distinction should be drawn between whether any of representations (h), (i) or (j) were made.  Rather, the case was conducted upon the basis that if I preferred the evidence of Mr Gan and Mr Sayers to that of Mr Hii and Mr Cook I would find that representations (h), (i) and (j) were all made.  In other words, these three representations were treated as being inextricably linked.

114               It was certainly never suggested during the trial before me that a disconformity between representation (h), as pleaded, and the evidence actually adduced, should lead to a rejection of Bluehive’s claim in respect of that representation. 

115               Whatever the formal state of the pleadings, I am in no doubt that the case before me was conducted upon the footing that if Mr Gan and Mr Sayers were believed, and Mr Hii and Mr Cook not believed, Dukemaster would be found to have made at least representations (h), (i) and (j).

116               Now that the issue of the sufficiency of the evidence to support representation (h) has been raised, my inclination is to limit my findings to representations (i) and (j).  I conclude that those representations were made.  I also conclude that they were representations as to “future matters” within s 51A and are accordingly taken to be misleading unless Dukemaster had reasonable grounds for making them.  It has never been suggested by Dukemaster that there were any such grounds.  I find that there were none. 

117               I accept the evidence of Mr Gan that he relied upon those representations, and that Bluehive would not have taken up the lease of Shop 5 had they not been made.  Much of Mr Gan’s evidence concerned the oral representations.  He was cross-examined at great length about them.  He stressed how impressed he and Mr Sayers had been with what they had been told.  It is clear that financial considerations were of the utmost importance so far as Mr Gan was concerned.  He explained how he arrived at a rental offer of $55,000 per annum as a percentage of turnover being 12-13% on a projected weekly figure of $8,000.  I accept that evidence, just as I did in my primary judgment.  Mr Gan had to consider carefully whether to go into Southbank or go take up the tenancy at Shop 5 at the Centre.  As he was going to invest a great deal of his own money, and that of his wife, in fitting out and stocking up Shop 5, the representations made by Mr Hii and Mr Cook that tended to suggest that it would be a sound business venture were all likely to have played some role in persuading him to take up the lease. 

118               I consider that representations (i) and (j) were causally connected with the loss ultimately sustained by Bluehive.  I do so mindful of the requirements of s 82(1) of the Act as explained most recently in Henville v Walker (2001) 182 ALR 37 at 41.  I note in particular the following observation of Gleeson CJ, who dissented in the result, though not on this point:

“For there to be the necessary causal relationship between a contravention of s 52, and loss or damage, so as to satisfy the requirements of s 82(1), it is not essential that the contravention be the sole cause of the loss or damage …  In the present case there were two concurrent causes of the imprudent decision to buy the land and undertake the development project.  The conduct of the respondents was one of those causes.  That is enough.”

119               See also the comments of McHugh J at 62 and Hayne J at 74.

Findings regarding the written representations

120               I am also required by the Full Court to set out my findings in relation to the written representations.  It was accepted by senior counsel for Bluehive, in argument before me, that representations (a) and (b) were of greater significance to Bluehive’s case than representations (c), (d), (e) or (f).  Those other representations, though still relied upon, would really only bolster representations (a) and (b).  They would not, however, be sufficient, standing alone, to allow Bluehive to succeed.

121               In my opinion, Bluehive has established that representation (a), “that the shopping centre would offer a three level retail arcade”, was made by Dukemaster.  The gist of that representation, as pleaded, was that the shopping centre would offer a three level retail arcade.  I appreciate that the language used in the Brochure was not precisely in those terms.  The Paramount Centre was described as “a retail development incorporating 5,747 square metres of leasable area over three main levels …”. 

122               Dukemaster contended that what was said in the Brochure was, in fact, true.  It submitted that the Brochure did not represent that a “three level retail arcade” would be offered. 

123               I have some difficulty with the proposition that the Centre could properly be described, in August 1996, as “a retail development … over three main levels”.  The evidence led before me made it clear that at that stage the Centre was, as senior counsel for Bluehive described it, “a two level mausoleum”.  It did not have retail shops or retail services provided on all three levels, and there was no prospect whatever that it would provide such shops or services at any stage in the foreseeable future.

124               It was plainly implicit in what was said in the Brochure that there would be retailers offering goods and services to members of the public on all three levels.  That was, in my opinion, an important selling point.  A three level retail development would be likely to attract substantial numbers of customers to the Centre, thereby generating business for shops in the food court. Office space, whether let or unlet, would hardly achieve the same result.

125               The evidence made it clear that, as at August 1996, there were several offices on the Upper Bourke Street level.  In addition, some space had been leased to the Port Adelaide Football Club.  This could not realistically be characterised as retail activity. 

126               When the Centre finally opened on 28 July 1997, almost a year after the Meeting took place, there were still only two retail shops open on the Bourke Street level, and none at all on the Upper Bourke Street level.  I am satisfied that at the time the Brochure was provided to Mr Gan there was not in existence, and not likely to be in the foreseeable future, a fully let, or successful retail arcade.  For whatever reason, the premises were (and were known by Dukemaster to be) largely unlettable for retail purposes.

127               I do not accept Dukemaster’s submission that when a representation is pleaded in a s 52 case, it is that representation precisely, and not a representation substantially to the same effect, which must be proved.  It seems to me that a representation relied upon in such a case must be taken to include within its ambit any additional representation which is necessarily implicit within the terms of the representation as pleaded. 

128               A s 52 case is not to be equated, in that sense, with a defamation case where, for example, the plaintiff is required to set out the words of which he or she complains and an innuendo stating the meaning which they are alleged to bear:  Wilkinson v S Bennett Ltd (1921) 29 CLR 283.  The plaintiff must also identify any defamatory imputations relied upon:  Hadzel v De Waldorf  (1970) 16 FLR 174 and Lloyd v David Syme & Co Ltd (1985) 63 ALR 83.  The same is true of defences raised including truth and public benefit:  Howden v “Truth” and “Sportsman” Ltd (1937) 58 CLR 416.  See also Penton v Calwell (1945) 70 CLR 219.

129               However, even in the field of defamation, there is authority for the proposition that a plaintiff is not bound to prove imputations precisely as alleged, so long as the evidence permits of a conclusion which is broadly within their scope:  Bogusz v Thomson (1989) 95 FLR 167. 

130               I also do not believe that a party relying upon a s 52 claim is required to state expressly, and in terms, in that party’s statement of claim, that he or she relies upon implications or inferences from what was said where it is perfectly obvious what those implications or inferences are.  There is nothing in O 11 of the Federal Court Rules to suggest that any such requirement exists.  Indeed, O 11 r 4 provides that where any document or spoken words are referred to in a pleading, it is permissible to state the effect of the document or spoken words without setting out the precise terms thereof.  Implications or inferences of the type referred to by Dukemaster are not matters for specific pleading under O 11 r 10, and no application was ever made pursuant to O 11 r 16 that any part of Bluehive’s pleading be struck out as having a tendency to cause prejudice or embarrassment.  I stress again, however, that Bluehive did in fact plead that each of the representations relied upon were “oral, in writing and to be implied”.

131               Order 11 r 2 provides that a pleading of a party must contain, and contain only, a statement in a summary form of the material facts upon which he relies, but not the evidence by which those facts are to be proved.  A statement of claim must contain material facts, those being the facts necessary for the purpose of formulating a complete cause of action. 

132               The function of pleadings is to state with sufficient clarity the case that must be met:  Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218 at 241; Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286; Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd (1996) ATPR 41-522 at 42,679; Mitanis v Pioneer Concrete (Vic) Pty Ltd (1997) ATPR 41-591 at 44,147 and McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at 417-422.

133               I accept that pleadings occupy an important role in present day litigation and are not to be treated as pedantry or mere formalism.  At the same time, it has been suggested that some revision of the strictness with which the rules governing pleadings should be approached may be justified in the light of the ever increasing complexity of modern litigation.  There has even been some support for a move towards narrative pleading because of a growing concern that pleadings according to traditional rules do not adequately make known to the Court, and to the parties, the nature of each case in complex matters:  Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466. 

134               Section 52 is a comprehensive provision of wide application.  When the section is used as the foundation for a cause of action, the factual basis upon which the section is said to apply must be identified with reasonable clarity in the statement of claim.  However, that does not mean that a pleading in such a case must be scrutinised in minute detail, attributing to it a literal interpretation which is far removed from the substance of what it conveys, and would be understood by the respondent to convey.

135               I have no doubt that any reasonable person, with Mr Gan’s background and experience, who read the Brochure in its ordinary and natural sense would have understood that Dukemaster was representing that the Centre was offering a three level retail arcade.  That person would not have regarded the potential use of a number of shop frontages as commercial offices, attracting little pedestrian traffic, as falling within that generic description. 

136               The disconformity between representation (a), as pleaded, and the actual words used in the Brochure is, in my view, inconsequential.  Pleadings should be read fairly, and not perversely.  As already indicated, Dukemaster never at any stage objected to the manner in which Bluehive identified the representations relied upon.  It never raised before me, at trial, any uncertainty as to what Bluehive’s allegations were.  Importantly Dukemaster never raised before me, in its closing submissions at trial, a number of the points which are now being taken. 

137               Reliance upon minor disconformity between the terms of a representation as pleaded, and the evidence regarding what was written, said, or implied, does not seem to me to sit well with a legislative regime designed to afford protection to consumers against corporations which engage in misleading or deceptive conduct.

138               I accept the fact that the Brochure may have been prepared long before August 1996, at a time when it might have been expected, perhaps on reasonable grounds, that a three level retail arcade would be established within the Centre.  That, however, is of no assistance to Dukemaster.  The representation regarding the three level retail arcade was made when the Brochure was provided to Mr Gan.  The truth or falsity of that representation must be judged in the light of the circumstances which prevailed at that time.

139               I am also satisfied that representation (b), that “the shopping centre would have a tenant mix including a supermarket and 55 specialty shops” was made.  As noted earlier, the gist of that representation, as pleaded, was that there would be “55 specialty shops”.  The representation appears in terms in the Guidelines, which speak of the Paramount offering “some 55 speciality shops”.

140               The fact that the Centre was conceived, designed and built to house 55 shops does not justify the representation that, as at August 1996, it was believed, upon reasonable grounds, that it would, at some stage in the foreseeable future, have “55 specialty shops”.  The fact that neither the Brochure nor the Guidelines refers in terms to there being a “tenant mix” (this being Bluehive’s language) does not negate the fact that the single most important aspect of representation (b), as pleaded, was made by Dukemaster. 

141               Representation (b) was misleading or deceptive.  There is a significant difference between telling a prospective tenant that it was originally conceived that “55 specialty shops” would be built as part of a project, and representing that the Centre currently “offers some 55 speciality shops”. 

142               In my view, the evidence sufficiently establishes that Mr Gan, on behalf of Bluehive, relied upon both representations (a) and (b) when he decided to enter into the lease of Shop 5, and committed Bluehive financially and irrevocably to that course.  Not only was the general tenor of Mr Gan’s evidence to that effect, but it would be impossible not to draw that inference from the evidence taken as a whole.

143               Long before the Centre opened on 28 July 1997, it was perfectly apparent that there would not be a three level retail arcade.  There was also no prospect of “55 speciality shops” being occupied.  However, by the time that this had become clear, Bluehive was financially committed to operating Shop 5 as an Italian food outlet.  It had carried out an expensive fitout.  From at least December 1996, it had passed the point of no return. 

144               Bluehive’s business was a complete financial disaster.  That is scarcely surprising.  An unlet retail and office centre is hardly conducive to attracting customers into a basement food court. 

145               I should add for the sake of completeness that I am satisfied that representations (d), (e) and (f) were also made, and that they must be taken to be misleading.  I do not regard the distinction which Dukemaster seeks to draw between a bistro/gaming area and a bistro/gaming venue as having any merit.  Any reasonable person with Mr Gan’s background and experience reading the Guidelines (which were couched in terms of there being a bistro/gaming area) would read that representation as encompassing a venue within which those activities would take place. 

146               The general tenor of Mr Gan’s evidence was that he relied upon that representation, together with the others, in deciding to take up the lease of Shop 5.  Although he was uncertain as to the meaning of the term of “bistro”, I am satisfied that he understood perfectly well that there would be a benefit to his business if additional customers were drawn into the Centre throughout the entire afternoon because of the presence of a bistro/gaming venue. 

147               I am not persuaded that representations (e) and (f) are as important to Bluehive’s case as representations (a), (b), (i) and (j).  The latter seem to me to be the critical representations in this proceeding.  Representations (e) and (f) are also less important, in my view, than representation (d) which is not sufficient, standing alone, to warrant granting Bluehive the relief sought.  However, representation (d) strengthens Bluehive’s case when read in conjunction with representations (a) and (b). 

148               It follows that I am not satisfied that Bluehive relied upon representations (e) and (f), in any relevant sense, or that it suffered loss or damage by reason of their having been made. 

149               That leaves representation (c) to be considered.  Although that representation was characterised by Bluehive as being a written representation, it does not appear in the Brochure or the Guidelines. 

150               Mr Gan said in evidence that Mr Cook told him just before they went on the tour that there would be 55 retail shops fully operating and tenanted when the Centre was to have its grand opening towards the end of the year.   However, by the time Bluehive committed itself irrevocably to taking up the lease of Shop 5, which appears to be around December 1996, it must have been obvious to Mr Gan that there was not the slightest prospect of the shops being rapidly leased.  It was also plain that the Centre would not be fully tenanted when it eventually opened, some months hence. 

151               Accordingly, although I accept Mr Gan’s evidence that Mr Cook made this statement to him, I do not accept that it was relied upon by Bluehive in any relevant sense.  Nor do I accept that it caused Bluehive to suffer loss and damage. 

152               It seems to me that the only orders that I should make are those which have the effect of recording my findings of fact in relation to the matters remitted to me, and reserving the costs of the further hearing to be determined by the Full Court when it ultimately decides whether or not to allow the appeal. 

I certify that the preceding one hundred and fifty-two (152) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate:

Dated:              16 November 2001

Counsel for the Applicant:	Mr J.G. Larkins QC with Mr R.H. Miller
Solicitor for the Applicant:	Taylor Splatt and Partners
Counsel for the Respondent:	Mr A.G. Southall QC with Mr R.B. Phillips
Solicitor for the Respondent:	Kliger Partners
Date of Hearing:	14 and 15 June 2001
Date of Judgment:	16 November 2001