FEDERAL COURT OF AUSTRALIA

Skiwing Pty Limited v Trust Company of Australia Ltd [2011] FCA 438

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

Introduction

1    This case concerns the operation of a café/licensed restaurant known as “Café Tiffany’s” (“Tiffany’s”), which was located in the Imperial Arcade in Sydney. The Imperial Arcade had frontages to Pitt Street and Castlereagh Street. Tiffany’s was located at the Pitt Street frontage, but on the Castlereagh Street level. It was therefore located on the first floor of the Pitt Street frontage.

2    The applicant (“Skiwing”) became the owner and operator of Tiffany’s on 12 November 1993. The managing director of Skiwing throughout the period relevant to the present proceedings was Mr Zoran Stojanoski who, with his wife Brenda, actually conducted the day to day business of Tiffany’s. It appears there were two other persons with some interest in Skiwing (Tim Wing Yu and Winnie Yu) who, together with Mr and Mrs Stojanoski, also guaranteed the performance of Skiwing’s obligations under a lease it took from the respondent in 2000, but they played no part in the proceedings. Nor did Mrs Stojanoski. Mr Stojanoski, on the other hand, played a central part in the proceedings. His evidence is crucial to Skiwing’s case.

3    The respondent, Trust Company of Australia Ltd, was, at the time relevant for the present proceedings, the registered proprietor of the Imperial Arcade, which it held on trust for the Stockland Trust. Stockland Property Management Limited (“Stockland”) was the manager of the Imperial Arcade and acted as the agent of the registered proprietor. It will be convenient to refer to the respondent as “Stockland”, by reference to the fact that it was Stockland that had effective control with respect to the issues which require consideration in the proceedings.

4    When it took over Tiffany’s, Skiwing took an assignment of an existing lease over Shop No. C19 in the Imperial Arcade which continued until a new lease was taken effective from 1 May 2000 for a seven year period until 30 April 2007. Notwithstanding the events that occurred before the new lease came into effect and during its currency (which will be outlined in due course) Skiwing subsequently renewed its lease under a new owner (Westfield Group) until 14 November 2008 when the Imperial Arcade was vacated by its tenants for demolition and upgrade.

5    The present proceedings arise from claims by Skiwing that Stockland, by its conduct in making a number of representations (which can be categorised into three groups) upon which Skiwing relied to its detriment, engaged in misleading or deceptive conduct under s 52 of the Trade Practices Act 1974 (Cth) (“the TP Act”). Skiwing sought damages under s 82 of the TP Act. I described the three groups of representations in an earlier interlocutory judgment (Skiwing Pty Limited trading as Café Tiffany’s v Trust Company of Australia Ltd (Stockland Property Management Ltd) [2009] FCA 347) in the following way (at [6]–[9]):

6    Skiwing asserted in its statement of claim that it incurred loss from reliance on three types of representations. The first was to the effect that Stockland would consent to the erection of a balcony adjoining the Pitt Street frontage of the shop leased by Skiwing. It was alleged that representations to that effect were made in late 1998, before the lease was executed, and again in January 2001, after it came into effect.

7    According to the statement of claim, renovations of the arcade were carried out by Stockland between about April 1999 and August 2000. The second group of asserted representations was to the effect that Stockland would undertake certain steps after the renovations which would enhance the attractiveness of the arcade. Those representations were allegedly made, before the lease was executed, in April, September and December 1999.

8    The third group of asserted representations was to the effect that a second major renovation would be carried out which would require Skiwing to relocate within the arcade. Those representations, it was said, should be implied from Stockland’s conduct in serving three relocation notices on 23 October 2001, 30 November 2001 and 1 March 2002.

9    I shall refer to the three groups of representations as the balcony representations, the first renovation representations and the second renovation representations respectively. It may be seen that they were all said to have been made before 27 March 2002.

6    It will be convenient to use the same descriptors again. The significance of the date, 27 March 2002, referred to in [9] of the earlier judgment is that there is a six year statutory limitation on actions under s 82 of the TP Act. Section 82(2) of the TP Act provides:

82(2)    An action under subsection (1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued.

7    The proceedings were commenced on 27 March 2008. In the earlier judgment I concluded that it was not possible to say, at that interlocutory stage, whether any loss of which Skiwing complained commenced to be suffered before 27 March 2002 (with the result that the proceedings were statute barred when actually commenced) or later. Now that the proceedings have been conducted to finality it will be possible to give further attention to that issue. As will be seen, I have come to the view that the proceedings are, as the respondent contended, statute barred. However, for reasons to be explained, that circumstance need not be regarded as decisive because the proceedings must be dismissed for other reasons.

Evaluating the facts

8    Many of the facts in this matter are either uncontroversial or reasonably straightforward. Some of the facts are controversial. The controversial facts generally concern what was said in particular conversations, or the reason why particular decisions were taken on behalf of the applicant by Mr Stojanoski. In their written submissions counsel for Stockland made an attack on Mr Stojanoski’s credit. Having regard to the way he gave his evidence it was not surprising that they did so. When Mr Stojanoski was giving evidence I formed the impression that he was not trying to give evidence to the best of his recollection and ability but was prepared to say what he thought would either assist Skiwing’s case or adversely affect the case he thought Stockland wished to advance. The problem was not confined to his oral evidence. There were numerous examples where particular assertions in Mr Stojanoski’s oral evidence, or in affidavits sworn by him, were either readily falsified or shown to be inconsistent with other evidence given by him.

9    In the written submissions in reply prepared by counsel for Skiwing it was candidly accepted that there were difficulties arising from the way Mr Stojanoski gave evidence, and from the evidence itself. Those difficulties were attributed to the suggestion that Mr Stojanoski’s emotional investment in the case (as well as his financial interest), his difficulties with the English language and the passage of time since the events in question all contributed to some lack of consistency in his evidence. I was invited to conclude, nevertheless, that he tried to give his evidence honestly. There may well be some force in this defence of Mr Stojanoski. I am certainly not prepared to reject it outright and I readily acknowledge the difficulty of reaching a definite conclusion that a witness may not be trying to do his or her best. However, that does little ultimately to assist Mr Stojanoski. Whether or not Mr Stojanoski tried to give his evidence honestly, that evidence (both oral and affidavit) was clearly shown in a number of respects to be unreliable.

10    Where Mr Stojanoski gave evidence about a matter which was controversial I am not prepared to accept his evidence where it was contradicted by, or was substantially inconsistent with, the contents of contemporaneous documents. Where his evidence was contrary to that given by another witness I prefer, without exception, the evidence of that other witness. I formed the impression that each other witness did his best to recall, and give straightforward evidence about, the factual issues with which each dealt. Without exception, there did not emerge any reason to doubt the reliability of such evidence or to prefer Mr Stojanoski’s evidence to it.

The facts in more detail

11    In 1998 the board of Stockland approved expenditure on the refurbishment of the Imperial Arcade with a view to completion of the refurbishment before the Olympic Games in Sydney in September 2000. The board approved a budget for the refurbishment works of around $2 million. In due course, a development application with respect to the refurbishment was approved by Sydney City Council (“the Council”) on 22 April 1999, with an estimated cost of the development being $1.6 million. The work was carried out in two stages: internal refurbishment and external refurbishment. Internal refurbishment works took place between April and October 1999. A construction certificate was issued on 23 August 1999 and external refurbishment works were then undertaken between January and August 2000. One rationale for splitting the works in that manner was that the pre-Christmas and Christmas periods would be spared any disruption by the refurbishment works.

The balcony representations

12    Paragraph 2 of the amended statement of claim asserted:

2.    In or about late 1998 the Respondent in trade or commerce represented to the Applicant that it would consent to the erection of a balcony adjoining the Pitt Street frontage of the Premises subject to the approval of the Sydney City Council (“the balcony proposal”).

13    The representation set out in paragraph 2 of the amended statement of claim was asserted to be misleading in light of subsequent events. It should be noted, at the outset, that a contention that a representation has been rendered misleading by subsequent events does not pose the correct test to engage the operation of s 52 of the TP Act. Normally (subject to the discussion which follows about whether the representation was a continuing one), whether a representation was misleading or deceptive (or likely to be so) must be tested by reference to the circumstances at the time it was made, rather than by reference to subsequent events. However, that difficulty for the applicant’s case may be put aside for the moment. It was not pleaded, and there was no evidence to support any contention, that Stockland had represented that it would pursue any proposal for a balcony regardless of cost and delay or irrespective of Council opposition. In his oral evidence, Mr Stojanoski accepted that anything which had been said about Stockland’s agreement to the construction of a balcony was subject to Council approval (as paragraph 2 pleaded). Mr Stojanoski volunteered that so much was “common sense”.

14    The facts to be recounted will make it plain that there was nothing misleading or deceptive about a statement by Stockland in late 1998 that it was agreeable to the construction of a balcony. It will also become apparent that the condition accepted in the pleadings, and by Mr Stojanoski in his oral evidence, was not satisfied. Moreover, Mr Stojanoski knew it had not been satisfied before he became committed to a new lease operating from 1 May 2000.

15    The original application for development approval was made on 22 December 1998, based on plans dated 12 November 1998. Those plans proposed the construction of balconies at the first floor level of the Pitt Street frontage above each side of the entry. It was common ground that the request for a balcony on the Tiffany’s side of the Pitt Street entrance came from Mr Stojanoski. His request was supported by Mr Reuben Aaron, who was then Stockland’s Centre Manager of the Imperial Arcade, and by Mr Stephen Beer, a Development Manager employed by Stockland who had supervisory responsibilities for the refurbishment project. Evidently, a proposal for a balcony also above the other side of the entry was then included as a result of aesthetic considerations, but that aspect of the proposal has no significance for the proceedings and from this point I will concentrate on the proposal for a balcony immediately adjacent to Tiffany’s.

16    The method of construction proposed for the balcony was that it be supported by a number of stainless steel rods attached to the exterior of the building, higher than the balcony itself. Mr Beer gave the following explanation in an affidavit prepared for the proceedings:

13.    There are two ways in which a newly constructed balcony can be properly supported. One method is to use supportive stainless steel rods as depicted in the plans referred to above. An alternative method is to cantilever support for the balcony into the structure below. On that approach a cantilever would need to be created into the ceiling section of the shop immediately below Café Tiffany’s.

14.    Use of the steel rod support structure method was, in my opinion, preferable for Stockland for three key reasons, namely:

a)    Use of that method was much quicker and easier to carry out than constructing a cantilever support;

b)    Use of that method would be substantially cheaper than constructing a cantilever support; and

c)    Use of that method would minimise disruption to the tenant immediately beneath Café Tiffany’s who would suffer significant disruption if a cantilever support was required.

17    In an expert report provided for the proceedings by Mr Richard John Baxendale, a consulting structural engineer, a third possibility (which did not receive consideration at the time) was identified – namely, “L” shaped cantilevered beams attached at the same level as Tiffany’s, rather than below. Mr John Alexander Barker, a quantity surveyor, provided an expert report for the proceedings in which he estimated the original proposed method of construction and the “L” shaped cantilever method of construction at approximately the same cost and the more normal cantilever support method as substantially more costly, consistent with Mr Beer’s evidence of his own opinion at the time the proposal was under examination.

18    There is no reason to further explore the potential suitability of Mr Baxendale’s “L” shaped cantilever possibility. It was not identified at the time and its potential use has no bearing, in my view, on whether Stockland’s conduct at the relevant time was misleading or deceptive.

19    Stockland’s proposal for balconies on the Pitt Street frontage, based on the plans dated 12 November 1998 that were submitted with the development application dated 22 December 1998, was not supported by the officers of the Council who were responsible for its assessment. On 7 January 1999 Mr Alan Cadogan, Specialist Urban Designer, provided a detailed written critique of the proposal to the Council representative who had responsibility for the project, Mr Bill Mackay, Specialist Planner. Mr Cadogan was particularly critical of the balcony proposal from both aesthetic and structural points of view. He made clear his opinion that consideration should only be given to the proposal if there were substantial design changes, including the use of a cantilevered system of support rather than the system proposed by Stockland. At a meeting held between Mr Mackay and Mr Beer on 9 February 1999 (at which Mr Cadogan and a representative of Stockland’s architects were also present) Mr Mackay conveyed to Mr Beer the clear impression that “Council was not in favour of the balcony” and either Mr Mackay or Mr Cadogan raised the issues to which Mr Cadogan had referred in his written memorandum to Mr Mackay one month earlier. Mr Beer gave the following evidence of the assessment he made following the meeting on 9 February 1999:

19.    In my view, those difficulties meant that the construction of a trafficable balcony could not be pursued by Stockland. This was so for the following key reasons:

a)    Council wanted the balcony to be supported using a cantilever structural support system which, in my experience, would have substantially increased the cost, delayed the completion of the works and created unacceptable disruption to the tenant beneath Café Tiffany’s;

b)    The whole purpose of the refurbishment was to have all of the works completed prior to the Sydney Olympics. It was therefore, essential to have the plans approved by Council expeditiously so that arrangements could be made for the works to be started promptly and completed in advance of the September 2000 Olympics;

c)    I was concerned that, given the significant issues Council had with the proposed balcony and the need for substantial further architectural and structural work and continued negotiations with Council in order to explore whether the proposal could be progressed, there was a very significant risk that pursing the balcony further would substantially delay the project, meaning that approval could not be obtained in time for the works to be completed prior to the September 2000 Olympics; and

d)    Modifying the proposed method for constructing the balcony would also substantially increase the cost with a risk that the works may not be completed within the strict budget limits which had been imposed by Stockland. If the balcony had to be constructed using cantilevered structural support, that was also likely to cause serious disruption to the tenant underneath Café Tiffany’s which would be an added cost to Stockland as that tenant would have to be compensated.

20    I accept Mr Beer’s evidence about these matters.

21    Mr William Farrant was, at the time, a construction manager employed by Stockland. He was the construction manager for the refurbishment works. Mr Farrant also gave evidence about the suggestion that the proposed balcony could be supported by a cantilever method. He said:

26.    As I understand it, one of the issues that Council had with the proposed balcony was that Council’s preference was for the balcony to be cantilevered from the existing structure rather than supported by cables and the like as depicted in the documents … In my opinion, construction of a cantilevered balcony over part of the Pitt Street mall would have been problematic because construction of such a cantilever would require significant disruption to the tenant below Café Tiffany’s because it would require access to the building structure above the ceiling and shopfront of that tenant’s premises.

22    I accept Mr Farrant’s evidence also as representing his opinion about the practical issues posed by the Council’s response to Stockland’s original proposal.

23    Revised plans, omitting the proposal for trafficable balconies on the Pitt Street frontage, were drawn in March 1999. The revised plans were approved by the Council on 22 April 1999 and work commenced in accordance with them.

24    Although it was common ground that Stockland’s proposal for a balcony adjoining Tiffany’s was a response to Mr Stojanoski’s suggestion, there is no evidence that Mr Stojanoski was made aware, or became aware, that the proposal had been abandoned until some time later.

25    In the meantime, Mr Stojanoski had indicated to Mr Aaron that Skiwing wished to take a new lease on the premises which it occupied. On 17 September 1999 Mr Aaron wrote to Mr Stojanoski, as the representative of Skiwing, proposing terms for a new seven year lease. The new lease was to commence on 1 May 2000. The letter contained the following clause:

17.    SUBJECT TO FORMAL LEASE AND STOCKLAND BOARD APPROVAL.

Neither party will be bound by this agreement until exchange of formal legal documentation and in the meantime the holding over provisions of the current lease will apply.

26    A lessor’s disclosure statement attached to Mr Aaron’s letter recorded:

Planned physical or tenancy mix changes

No significant physical changes or developments are planned for the centre or surrounding roads by the lessor at this time. Attached is a floor plan showing the tenancy mix of the centre at the time of this statement. Whilst every care has been taken in its preparation, you should satisfy yourself by way of on-site inspection. Whilst no significant changes are envisaged at the time of this statement which would significantly affect the business of the lessee, the lessor reserves the right to change the tenancy mix of the centre during the term of the subject lease and in the future.

27    By this time, as earlier recorded, the internal refurbishment works were well under way. The plans for the external works were well known. This statement, therefore, even if not strictly accurate, would clearly not have been understood by Mr Stojanoski to deny the existing and proposed refurbishment works which had already commenced.

28    Mr Stojanoski said that he decided to take a new lease based on his “agreement” with representatives of Stockland that a balcony would be constructed on the Pitt Street frontage which would be available for use as part of Tiffany’s. In order to take up the offer of a new lease, Skiwing was required to complete a lessee’s disclosure statement. Clause (o) of this document was in the following terms:

(o)    The proposed Lessee hereby acknowledges that in making the decision to enter into the Lease agreement, it is not relying on any representation, promise, warranty or undertaking made by the Lessor or its representatives other than those set out in:

i.    The Lease

ii.    The Lessor’s Letter of Offer

iii.    The Disclosure Statement

iv.    As set out below.

The proposed Lessee is invited to list below all representations, whether oral or written, expressed or implied, upon which he and/or she has relied in reaching the decision to accept the Lessor’s offer to lease and must specifically answer all questions.

PLEASE COMPLETE SECTION BELOW, SIGN AND RETURN ENTIRE DOCUMENT (retain copy for your records).

REPRESENTATIONS RELIED UPON

29    In the copy of this document provided with Mr Stojanoski’s evidence no entries of any kind appeared in the boxed section. In the copy provided from Stockland’s records each “No” box had been ticked. No evidence was available as to who had marked the document in that fashion. Mr Stojanoski denied that he had done so. Both versions of the document bore his signature.

30    Whether Mr Stojanoski ticked the “No” boxes himself before returning this document to Stockland does not, in my view, alter the overall position. If he had done so, Stockland could rely on that conduct in answer to Skiwing’s case that it relied, when it entered into the lease, on Mr Stojanoski’s belief that a balcony would be erected, based on the discussions he had with Stockland representatives. However, even if Mr Stojanoski did not tick the “No” boxes, he did not, as he was invited to do, set out any representation on which he claimed to rely when he decided to take the lease.

31    There was no independent support for Mr Stojanoski’s assertions to the effect that the prospect of a balcony was the determining factor in his decision to renew Skiwing’s lease. I am not satisfied that it was. On Mr Stojanoski’s evidence, he wanted a new lease for Skiwing also because he believed the proposed refurbishment would be of benefit to the arcade generally and to Tiffany’s business in particular. A new lease provided security of tenure in the Imperial Arcade and therefore represented an asset to Skiwing, with or without a balcony. Without some security of tenure it is very doubtful whether the assets of the business consisted of more than its stock in trade. Mr Stojanoski was inclined, in his evidence, to dismiss the benefit to Skiwing of a new lease in its own right. However, I am satisfied that, at the time, it represented an asset for Skiwing in its own right, independently of the construction of a balcony.

32    Mr Stojanoski, and the other guarantors for Skiwing, executed the lease on 20 December 1999. It was executed on behalf of Stockland on 28 March 2000. It was accepted by Mr Stojanoski in his evidence that no copy of the lease was returned to him before that date. However, before that date, on 28 February 2000, Mr Stojanoski received a letter from Mr Damian Corbett, Assistant Development Manager for Stockland, containing the following advice:

Further to our conversation on 24 February 2000, I write to confirm your acceptance of our proposal to install a six-panel sliding glass window to the Pitt Street Mall frontage of your premises. This window proposal is as depicted in the attached plans that we discussed, and incorporates two fixed end panels and four sliding panels.

33    The conversation on 24 February 2000 to which Mr Corbett referred in this paragraph was a significant one for a number of reasons. Mr Stojanoski was made aware (if he had not earlier known) that the balcony proposal was not going ahead. The plans for the new sliding windows also made this apparent to him when he received them with Mr Corbett’s letter. That circumstance, and the date on which Mr Stojanoski became aware that Stockland was not proceeding with the proposal, are relevant to two important matters.

34    First, it is clear that Mr Stojanoski knew well before 27 March 2002 (i.e. 6 years before the proceedings were commenced) that Stockland, despite its earlier agreement to this effect, did not propose to pursue the balcony proposal. Secondly, Mr Stojanoski also knew that the balcony proposal was not going ahead before the new lease took effect (1 May 2000), and before the lease had been countersigned (28 March 2000) or returned to him. Skiwing had, by 24 February 2000, commenced to spend some money on a new fit-out required under the terms of the lease but, if Stockland’s conduct in connection with the balcony proposal was otherwise actionable, and if money spent on a new fit-out represented consequential loss, Skiwing suffered that loss from a time more than 6 years before the proceedings were commenced. In any event, the evidence does not support a conclusion that such expenditure was wasted.

35    In my view, the history to this point shows that any claim based on the alleged failure of representations made by Stockland in late 1998 became statute-barred before the present proceedings were commenced. That history, as well as future events, also demonstrates clearly that neither Mr Stojanoski nor Skiwing relied on Stockland’s original acceptance of the balcony proposal to do something which would otherwise not have been done, or as a reason not to do something which would have been done.

36    After being informed by Mr Corbett on 24 February 2000 that the balcony proposal was not going ahead, Mr Stojanoski raised with Mr Corbett the possibility that he might pursue the matter himself. His recollection was that he did that three or four weeks later. Mr Stojanoski gave evidence that in discussions with Mr Corbett, the latter agreed to Mr Stojanoski pursuing the balcony proposal with the Council. Mr Stojanoski’s evidence was that he then decided to take no action about the matter immediately, but to wait until after both the Olympic Games and then the Christmas period at the end of 2000 before proceeding. Accepting this evidence at face value, it is clear that Mr Stojanoski, for his own reasons, commenced to operate under the new lease and delayed any further action concerning the balcony for some time. It was entirely within his discretion not to pursue the matter at all, even if Stockland was content for him to do so. In any event, at this point, before the new lease took effect, Mr Stojanoski must be taken as having accepted that Stockland would not pursue the matter. If Mr Stojanoski pursued the matter, at a time of his own choosing, there could not sensibly be any assumption on his part that erection of a balcony, outside the scope of the refurbishment occurring in 1999 and 2000, would be approved by the Council, or approved within any particular time-frame. At best, his idea for a balcony was a mere speculative possibility, subject to a variety of contingencies, many of which were outside his control.

37    Although there is no direct evidence about it, it seems reasonable to infer that Mr Stojanoski raised the matter again in some form with Mr Corbett later in 2000 or early in 2001 because, on 12 January 2001, Mr Corbett sent Mr Stojanoski a facsimile in the following terms:

Further to our discussions I confirm that Stockland have [sic] no objection to you persuing [sic] Sydney City Council to obtain approval to utilise the awning outside your shop for open air catering.

The restrictions we place on you persuing [sic] this approval are:

1) The same consultants we used for the refurbishment program are to be used for all facets of the project

Architectural                        Structural

B & N Retail Group                    Henry & Hymas

Don Masen                        Geoff Henry

9968 4144                        9417 8400

2) All plans are to be approved by Stockland prior to submission to Council.

3) All costs are to be at your expense.

4) It may be possible to arrange a lease structure for the new floor area incorporating the costs. However this should be discussed when it is established the project is viable.

Please keep Centre Management informed of your progress through this project development. Regards [signed]

38    Mr Corbett’s statements were also the subject of assertions in the pleadings. Paragraph 9 of the amended statement of claim said:

9.    In January 2001 the Respondent in trade or commerce represented to the Applicant that it would not object to the Applicant pursuing the balcony proposal with the Sydney City Council at a later date.

39    Again, subject to the accompanying conditions, a statement to this effect was not misleading when it was made. Apparently, shortly after receipt of Mr Corbett’s facsimile Mr Stojanoski was in contact with both the structural engineers and the architects nominated by Mr Corbett. Henry & Hymas forwarded a drawing of a “preliminary section through proposed extension” to him on 1 February 2001. He met with B & N Retail Group (“B & N”) on 5 February 2001. B & N provided him with a quote the following day to “prepare preliminary concept design drawings for the purpose of negotiations with Council”. The quote was for $4,800. The drawings were not commissioned, a circumstance which Mr Stojanoski attributed in his evidence to advice from B & N that they were too busy. Instead, according to Mr Stojanoski, he obtained some drawings from Mr Victor Burysek of V & C Drafting Services for $3,000 in September 2001. The provenance of those plans is independently supported only by an undated facsimile from Mr Burysek addressed “To whom it may concern” bearing a facsimile date stamp of 29 October 2003 confirming his engagement for $3,000. Mr Burysek did not give evidence in the proceedings. The only version of the plan which is in evidence is in the form of an annexure to a valuation report dated 17 November 2003 which was prepared by Mr Philip Edmonds, Certified Practising Valuer, for use in proceedings before the Administrative Decisions Tribunal NSW. Mr Edmonds also gave evidence in the present proceedings. The same annexure from Mr Edmonds’ report was made an annexure to an affidavit affirmed by Mr Stojanoski for use in the present proceedings. The evidence as a whole left open the possibility that, despite Mr Stojanoski’s assertion that the plans were prepared in September 2001, the plans were prepared for the purpose of Mr Edmonds’ report in late 2003.

40    There are ample reasons to doubt that the balcony idea was ever as important to Mr Stojanoski, or to Skiwing, as was suggested in the present case. There was no evidence that Mr Stojanoski enquired about progress of the original proposal, before being advised in February 2000 that it was not proceeding. There was no evidence that he pursued the possibility of advancing the matter himself with any sense of urgency or commercial necessity. There was no evidence, for example, that Mr Stojanoski made any approach to the Council with a view to understanding what the Council may, or may not, have been prepared to agree to. If Mr Stojanoski did obtain drawings from Mr Burysek in September 2001, that did not comply with the conditions imposed by Mr Corbett. There was no evidence that any of the conditions stated by Mr Corbett in his facsimile of 12 January 2001 were seriously addressed by Mr Stojanoski. Nevertheless, Skiwing’s case was that Mr Stojanoski’s reliance on Mr Corbett’s agreement (that Mr Stojanoski could pursue the matter himself) was frustrated by Stockland’s subsequent conduct, with the result that Mr Corbett’s representations were, like the earlier representations, rendered misleading or deceptive. This argument proceeds upon the same misapplication of s 52 of the TP Act to which I referred earlier, but that may also be put to one side for the moment.

41    The applicant argued that various relocation notices given to Skiwing (which are later discussed) amounted to a change of position on the part of Stockland and contradicted its agreement that Mr Stojanoski could pursue the balcony idea himself. The relocation notices were given on 23 October 2001, 30 November 2001 and 1 March 2002. As each of these notices proposed the relocation of Tiffany’s to an alternative location within the arcade, I accept that their effect was inconsistent with Mr Corbett’s agreement on 12 January 2001 that Mr Stojanoski might pursue the idea of a balcony, at Skiwing’s own cost, adjacent to the premises then occupied by Tiffany’s. Stockland’s apparent plans for a further refurbishment were abandoned in late March 2002 but any suggestion that might have been made that Stockland’s consent to the balcony revived when the relocation notices were abandoned was dispelled by a communication from Mr Paul Doherty (who took over as Centre Manager in April 2001 after Mr Aaron’s retirement) on 4 April 2002. After the third relocation notice was formally withdrawn on 27 March 2002, Mr Stojanoski was advised in writing that Stockland would “not consider the extension of [Tiffany’s] premises to include the construction of a balcony over the Pitt street [sic] mall”. This written advice from Mr Doherty on 4 April 2002 amounted to formal withdrawal of the permission given by Mr Corbett on 12 January 2001. However, withdrawal from Stockland’s earlier position had, in a practical sense, already been demonstrated.

42    Mr Corbett’s approval in principle to Mr Stojanoski pursuing the matter himself did not prevent Stockland from altering its position at a later time. As the applicant’s written submissions accepted (indeed asserted) Stockland’s actions from 23 October 2001 were inconsistent with any view that it continued to agree to Mr Stojanoski pursuing the matter with the Council. Accordingly, Stockland’s position that it would not (or would no longer) agree to Skiwing proceeding with the proposal on its own account was clear, also, before 27 March 2002.

43    On the evidence, no plans of any kind were ever presented or provided by Mr Stojanoski or Skiwing to Stockland or the Council and no discussions were held with Council officers about any idea Mr Stojanoski may have had for a balcony. Moreover, it is apparent that Mr Stojanoski did not ever meet the conditions stated by Mr Corbett concerning the need for plans to be prepared by Stockland’s architectural and structural consultants and approved by Stockland itself. Skiwing’s inactivity and Mr Stojanoski’s failure to act on the agreement he had secured from Mr Corbett before Stockland’s change of plans make it clear that Skiwing did not rely to its detriment on Mr Corbett’s conduct. Mr Stojanoski did not persuade me that even any expenditure on the plans drawn by Mr Burysek was related to a possibility that he might pursue the matter in late 2001. As the evidence was left, it was equally as likely that the preparation of those sketch plans by Mr Burysek was related to the preparation of Mr Edmonds’ report dated 17 November 2003. Whether or not that is so need not be resolved in light of the other insuperable difficulties that Skiwing’s case faces about this issue.

44    Paragraph 20 of the amended statement of claim pleaded that the representations set out in paragraphs 2 and 9 (each of which I have extracted) were (with others) both continuing representations and representations about a future matter or matters to which s 51A of the TP Act applied.

45    As to the suggestion that they were continuing representations, in the earlier judgment I said (at [18]-[20]):

18    Normally, the time at which a representation (or conduct which is said to amount to a representation) is to be assessed for its character (i.e. whether misleading or deceptive or likely to mislead or deceive) is the time when the representation was made or the conduct occurred (see Sykes v Reserve Bank of Australia (1998) 88 FCR 511 at 513 and McGrath v Australian Natural Care (2008) 165 FCR 230 (“McGrath”) at [146] and [198]).

19    Skiwing pleaded, however, that certain of the representations were continuing representations and remained actionable until dispelled. One circumstance in which a representation might be regarded as a continuing one is where a representation, not initially misleading or deceptive, has been falsified to the knowledge of the representor. It has been suggested that in such a case there may be a duty to speak. Reliance on the representation may become actionable even though it was accurate when made. In this sense the representation is said to be a continuing one (see e.g. Australian Securities and Investments Commission v Solution 6 Holdings Ltd (1999) 30 ACSR 605 at 610-611 and McGrath at [147]). Another example is a representation that is taken to be repeatedly or continuously remade (see McGrath at [148]).

20    Neither category applies in the present case. The representations relied upon in the present case were identified by reference to the time they were made, or were to be implied. Skiwing alleged that it relied upon them from those times and, by its particulars, claimed it commenced to suffer loss as a result. I do not accept that representations of the kind relied upon in the present proceedings may be regarded as continuing representations so that they become, and remain, actionable along some continuum of time.

46    I adhere to that view, particularly so far as the assertions in paragraphs 2 and 9 of the amended statement of claim are concerned. An alternative view would not assist Skiwing. Stockland demonstrated by its conduct on 24 February 2000 and from 23 October 2001 that the earlier statements of its agreement about the balcony idea had been, respectively, withdrawn. As to representations about future matters, I think Stockland’s representations, as pleaded in paragraphs 2 and 9 of the amended statement of claim, should be regarded as statements of a position held at the time they were made, and not as representations about future matters. Even if they are proper to be regarded as representations about future matters, which I doubt, Skiwing’s case about these matters should not be accepted. On either view, they were not misleading or deceptive, but in fact true.

47    Section 51A of the TP Act provides (relevantly):

51A(1)    For the purposes of this Division, where a corporation makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act) and the corporation does not have reasonable grounds for making the representation, the representation shall be taken to be misleading.

(2)    For the purposes of the application of subsection (1) in relation to a proceeding concerning a representation made by a corporation with respect to any future matter, the corporation shall, unless it adduces evidence to the contrary, be deemed not to have had reasonable grounds for making the representation.

48    Even if the matters pleaded in paragraphs 2 and 9 of the amended statement of claim related to future matters, s 51A is of no assistance to Skiwing in the present case so far as the balcony representations are concerned. I observed in the earlier judgment (at [21]–[24]) that it was appropriate to approach the construction of s 51A as required by the judgment of a Full Court in McGrath v Australian Naturalcare Products Pty Ltd (2008) 165 FCR 230, namely that if Stockland adduced “evidence to the contrary” of the rebuttable presumption erected by s 51A the onus would remain on Skiwing to show that there were not “reasonable grounds” for making the representations referred to in paragraphs 2 and 9 of the amended statement of claim. Stockland did adduce evidence to the contrary. Skiwing made no persuasive case to support the proposition that there were no reasonable grounds for making the representations referred to in paragraphs 2 and 9 of the amended statement of claim. The case mounted in reliance upon the suggested balcony representations cannot succeed, therefore, on the facts, however those representations are viewed. In any event, it is statute barred by s 82(2) of the TP Act.

The first renovation representations

49    These asserted representations were set out in paragraph 7 of the amended statement of claim as follows:

7.    In about April 1999, September 1999, December 1999 and December 2000 the Respondent, in trade or commerce, represented to the Applicant that following completion of the First Renovations:

(a)    the Respondent would undertake a major advertising campaign promoting the Arcade as a high class shopping centre;

(b)    all shops in the Arcade whose tenancies were renewed would be required to be refurbished;

(c)    the tenancy mix in the Arcade would be improved, with the introduction of exclusive boutiques; and

(d)    as a result of the changes (a), (b) and (c) the number of persons attracted to the Arcade (“traffic flow”) would increase.

50    These asserted representations are statements about future matters. Section 51A will therefore apply, to the extent discussed earlier, if Skiwing established that statements to this effect were made.

51    The statement alleged to have been made in April 1999 was attributed to Mr Aaron, who is alleged to have made it at a breakfast meeting with tenants on 7 April 1999 when he explained the nature of the proposed refurbishment programme. The only contemporaneous record referring to the meeting which was in evidence was made by Mrs Stojanoski. She recorded that the meeting lasted from 8.15am to 8.45am. The only relevant part of her note reads as follows:

The meeting was about the re-furbishment of our arcade. Starts on April 12th to some time in October 99.

52    The statements alleged to have been made in December 1999 and December 2000 were also attributed to Mr Aaron, who was said to have made them at Christmas functions held for the tenants of the arcade.

53    Mr Stojanoski’s affidavit attributes to Mr Aaron the following statements on the three occasions I have so far discussed:

[7 April 1999]

23.    Mr Aaron represented the Respondent at the 7 April 1999 breakfast meeting. The architects for the proposed renovations were also present. At the meeting, Mr Aaron and the architects explained the nature of the proposed renovation to everyone present, and I recall that words to the following effect were said in [sic] behalf of the Respondent:

“The renovation will include refurbishment of the escalators, new floors and ceilings in the common areas and changes to the external facades of the Arcade. We will promote the Arcade and secure a diverse mix of new and upmarket tenants.”

...

[December 1999 and December 2000]

39.    At the Christmas party held for tenants by the Respondent in December 1999 and again at the same function in December 2000, Mr Aaron on behalf of the Respondent announced certain plans in relation to the period after the completion of renovations. I do not now recall Mr Reuben’s precise words, but they were to the effect that:

•    “After the completion of the renovations there will be a massive advertising campaign to re-launch the Arcade”;

•    “All the tenants who are renewing their lease will be required to refurbish their shops, otherwise we will not be renewing their eases”;

•    “The tenancy mix in the Arcade will be improved, with exclusive or well-known brands”.

(Emphasis added)

54    No statements were identified in evidence which might support the allegation made in paragraph 7 of the amended statement of claim about a representation made in September 1999.

55    Mr Aaron’s evidence about these matters included the following:

27.    I recall that there were plans to launch a marketing campaign following the renovations to the Arcade in 1999/2000. I was involved in the marketing arrangements at that time. I recall that there were a number of proposed initiatives in 1999 and 2000 to market the Arcade following the renovation. One initiative included lots of radio commercials which I initiated, mainly with 2GB. I knew Brian Wiltshire from 2GB and I arranged radio commercials with him directly. I had meetings with him in the Arcade from time to time to arrange that advertising. The advertising was conducted at “prime time” from about 7am until 10am and also in the evening. Mr Wiltshire did a lot of the promotions for us in the evening radio slot. There were also newspaper advertisements – mainly in the Sydney Morning Herald but also in other papers. There were many newspaper promotions that were undertaken at that time. This sort of advertising took place both before and after the renovations but once the renovations were complete, the advertising promoted the fact that the Arcade had been newly refurbished.

28.    As with most centres, well-known brands have a general tendency to attract more customers. For this reason, Stockland was also interested in attracting more well-known brands, however this was not a mandatory requirement for a proposed tenant. My focus if there was a vacancy to be filled was to try and get a well known retailer into the Arcade – that is a retailer with a well-known brand.

…

30.    In the course of preparing this affidavit, I have been referred to parts of Mr Stojanoski’s affidavit dated 7 September 2010 where Mr Stojanoski refers to various dealings he says that he had with me. I respond to those matters as follows:

    …

(d)    In answer to paragraph 23 of Mr Stojanoski’s affidavit, I say:

(i)    I may have said something about the promotional work that would be undertaken because I often updated tenants on marketing and promotional initiatives at such meetings. However, I did not say thewords [sic] “We will secure a diverse mix of new and upmarket tenants.” I was, however, concerned to get well branded tenants into the Arcade and may from time to time have mentioned Stockland’s desire to get in well branded tenants;

…

(g)    In paragraph 39 of Mr Stojanoski’s affidavit, he says that I said certain things at the Christmas party held in December 1999 and again in December 2000. To the best of my recollection:

(i)    I may or may not have but I do not recall saying the words “After completion of the renovations there will be a massive advertising campaign to re-launch the Arcade”;

(ii)    I did not say the words “All the tenants who are renewing their lease will be required to refurbish their shops, otherwise we will not be renewing their leases.”

(iii)    I did not say the words “The Tenancy mix in the Arcade will be improved, with exclusive or well-known brands.”

(iv)    By this time, I had resigned and my last day with Stockland was the end of December 2000, so I would not have said the words in paragraph (ii) or (iii) as I would not have been around in the following year and therefore could not know what would happen after December 2000.

(Emphasis added)

56    Where Mr Aaron denied that the statements attributed to him were made, s 51A has the effect that the onus of proving that the statements were made remains with Skiwing. In those, as in other respects, I prefer the evidence of Mr Aaron to that of Mr Stojanoski for the reasons given earlier. I am not satisfied that Mr Aaron made the representations pleaded in paragraph 7(b) or (c) of the amended statement of claim (set out earlier). Mr Aaron did not deny making the statement attributed to him in paragraph 7(a) of the amended statement of claim (although he could not remember doing so). Having regard to his evidence (extracted above in [55]) any statement of that kind was based on actual plans to “launch a marketing campaign following the renovations”. As this evidence contradicted any assumption that there were no reasonable grounds to make such a statement the onus remained with Skiwing to show that no reasonable grounds existed. Skiwing also bore the onus of establishing the terms of any representations relied on and therefore proving that Mr Aaron referred to a “massive” advertising campaign. It did not discharge that onus. So far as paragraph 7(d) of the amended statement of claim is concerned, it was accepted in final submissions by the applicant that there was no evidence to suggest that a statement in these terms was actually made. Insofar as paragraph 7(d) represents an implication from the matters pleaded in paragraphs 7(b) and (c), and the attribution of a prediction or promise of a massive advertising campaign to Mr Aaron, it cannot be accepted on that basis either. Moreover, there is other material available to support the conclusion that Stockland was, in fact, aiming for an increase in traffic flow in the arcade.

57    In May or June 2000 Stockland published, and distributed to tenants, a Marketing Plan for 2000/2001. It included the following statements:

1.    Introduction

Welcome to the 2000/2001 Imperial Arcade marketing plan.

This document provides an overview of the scheduled marketing activities in the new financial year. The plan is aimed at providing your store with a comprehensive guide to upcoming events, which your store may wish to participate in.

The scheduled dates for activities may be flexible and centre marketing may make changes to the plan as new marketing opportunities arise throughout the year. We will actively promote the Arcade as a unique and convenient CBD shopping destination that offers excellent value.

All of the activities are designed to drive both retail sales and customer traffic to the Arcade. As we get closer to the dates of each activity we will circulate more detailed information.

…

3.    Centre Objectives

The two main objectives that have been set for the Imperial Arcade for the year ending June 2001 are:

1.    To increase total centre sales/turnover by 4%

2.    To increase total customer traffic by 5%

The centre management team aims to reach these objectives through the implementation of the following advertising strategies.

4.    Advertising Strategies

To enable us to achieve sales and traffic growth, the following forms of media will be utilised to communicate our offer.

Mini Catalogues

Throughout the year we will coordinate a number of catalogues to advertise the variety of merchandise available in the stores. These catalogues will be smaller than the Xmas catalogue, which will allow us to coordinate them on a more frequent basis.

Lifestyle Magazines

The City Weekly and Nine to Five magazine are free lifestyle magazines that are distributed weekly to CBD office workers at city train stations. Both these publications are also an effective avenue to reach our target market. To a lesser degree we will also advertise in these magazines.

Radio

Both Mix 106.5FM and Today FM will be used at major retail periods to reach our core shopper. Both stations rate the highest within our market, whilst appealing to two different age groups. Mix FM has an older skew of listeners (30 years +) whilst Today FM also appeals to a more youthful skew (18 years to 30 years).

Internet

The Imperial Arcade has its own web page within the Stockland website. Our address is www.stockland.com.au.

This web page is updated on the 12th of every month. This tool is a great avenue for your store to advertise products and information for free at anytime throughout the year. Please contact centre management for more details (phone: 9233 5662)

5.    General Information/Housekeeping

Stockland Construction has been busy with the refurbishment of the Arcade, to give you a new shopping centre to trade from.

Stockland have invested many millions of dollars in this project to make the Imperial Arcade a professional, modern, uniformed and pleasant shopping environment.

(Emphasis added)

58    So far as paragraph 7(d) of the amended statement of claim is concerned, I am satisfied that if Mr Aaron made statements to the effect that Stockland aimed to increase the traffic flow, and to do so by advertising and other measures designed to enhance the attractiveness of the arcade, he had reasonable grounds for doing so.

59    Paragraph 19 of the amended statement of claim pleaded:

19.    In the period from about January 2001 to late 2002 the Respondent:

(a)    did not undertake a major advertising campaign promoting the Arcade;

(b)    failed to attract new tenants to replace tenants whose leases had expired and who had not renewed their tenancy, and left shops in the Arcade empty for lengthy periods of up to three years;

(c)    permitted tenants to renew leases without requiring them to refurbish;

(d)    provided rent reductions to some tenants and not others;

(e)    failed to improve the tenancy mix in the Arcade, or to introduce exclusive boutiques;

(f)    introduced lower quality businesses as tenants; and

(g)    failed to increase, or stem the decrease, in traffic flow,

contrary to the representations referred to in paragraph 7.

60    Again, this pleading misconceives the operation and effect of s 52 of the TP Act. Misleading or deceptive conduct (or conduct that is likely to mislead or deceive) is not established simply by showing that a predicted event did not occur or even that a statement about a future matter was falsified. In my view, pleading the matter in this way did not raise an effective cause of action against Stockland in relation to the first renovation representations. In any event, Skiwing’s pleaded case does not succeed on the evidence, for the reasons I have already given.

61    At the trial a number of refinements were introduced to this part of Skiwing’s case which I also do not accept. In the written submissions, although not in the amended statement of claim, considerable emphasis was placed, on Skiwing’s behalf, on the suggestion that the tenants of the arcade had been promised a “relaunch” of the arcade after renovations were complete. It was contended, specifically, that the Marketing Plan for 2000/2001 in section 3 referred to “steps to be taken to relaunch … the Arcade”. Section 3 of the Marketing Plan for 2000/2001 (which I extracted earlier) makes no reference to a relaunch of the arcade. However, in a marketing calendar for July 2000, setting out proposed advertising and promotion, reference was made on three dates to advertising connected with a “refurbishment launch”. There is no basis to conclude that statements of this kind were, any more than were Mr Aaron’s statements, misleading or deceptive when they were made, or made without reasonable grounds for doing so.

62    For the foregoing reasons, Skiwing’s case based on the first renovation representations fails.

63    In addition, all the first renovation representations were alleged to have been made well before 27 March 2002. Although the pleading alleged failures to meet the representations between January 2001 and late 2002, there is no reason to think that any loss which might have been suffered as a result (accepting that premise for the moment) commenced after March 2002. The submissions made on Skiwing’s behalf contended expressly that loss was suffered from, and during, 2001. Although it is not necessary to decide the case on this basis it seems to me, now that the case has been conducted to finality, that the proper conclusion is that this part of the case also is statute barred.

The second renovation representations

64    Clause 20 of the lease, which came into effect on 1 May 2000, provided as follows:

CLAUSE 20: LESSOR’S RIGHT TO RELOCATE

The Lessor may require the Lessee to relocate at any time during the term of this Lease subject to the following conditions:-

20.01    The Lessor shall provide to the Lessee details of any proposed refurbishment, redevelopment or extension sufficient to indicate a genuine proposal that is to be carried out within a reasonably practicable time after relocation of the Lessee’s business and that cannot be carried out practicably without vacant possession of the demised premises.

20.02     The Lessor shall give to the Lessee at least three (3) months written notice of relocation and that notice gives details of an alternative shop to be made available to the Lessee within the Centre. Such a notice is referred to as a “relocation notice”.

20.03    The Lessee is entitled to be offered a new Lease of the alternative shop on the same terms and conditions (including as to rent) as the existing Lease except that the term of the new lease is to be for the remainder of the term of the existing Lease.

20.04    If a relocation notice is given to the Lessee, the Lessee may terminate the Lease within one (1) month after the relocation notice is given by giving written notice of termination to the Lessor’s, in which case the Lease is terminated three (3) months after the relocation notice was given unless the parties agree that it is to terminate at some other time.

20.05    If the Lessee does not give a notice of termination as referred to in 20.04, the Lessee is taken to have accepted the offer of a lease as referred to in 20.03, unless parties have agreed to a lease on some other terms.

20.06    The Lessee is entitled to payment by the Lessor’s of the Lessee’s reasonable costs of the relocation, including legal costs.

The provisions of this Clause shall apply without prejudice to the rights of either party in respect of any antecedent breach of covenant.

65    On 23 October 2001 Stockland wrote to Mr Stojanoski, as representative of Skiwing, setting out terms and conditions applicable to a tenancy for five years of Shop P41 in the Imperial Arcade (not the premises occupied by Tiffany’s). The letter set out the following “Special Condition”:

c.    The Lessor exercises under clause 20 of the current Lease to relocate the current café, trading as Tiffany, to premises P41, Imperial Arcade. Lessor will meet the Lessee’s reasonable costs (including legals) of the relocation.

66    The proposed lease was to commence on 15 November 2001. The letter appeared to be an attempt to invoke the provisions of clause 20 of the then existing lease but it was deficient in a number of respects. On 30 October 2001 solicitors for Skiwing wrote to Stockland challenging the validity of the notice. On 30 November 2001 Stockland served a further, more elaborate, relocation notice. This notice referred to planned redevelopment works, requiring the “reconfiguration and relocation of approximately 28 existing tenancies”. It required Skiwing to relocate on or before 1 March 2002 to a specified location which was different from the location initially proposed in the first relocation notice of 23 October 2001. Apparently, solicitors for Skiwing wrote to Stockland on 17 December 2001 and again challenged the validity of the notice, although that letter is not in evidence. On 1 March 2002 solicitors for Stockland wrote to Skiwing enclosing a relocation notice, effective three months thereafter, for relocation to a third specified location within the Imperial Arcade. This relocation notice contained the following provision:

2.    If you now accept and will comply with and regard yourself as fully bound by the relocation notice dated 30 November 2001 previously given to you by the Lessor, then you may if you wish disregard the balance of this notice. If you do not accept and wish to comply with the notice of 30 November 2001 then you should treat that notice as withdrawn and of no effect and the Lessor hereafter relies solely upon this present notice.

67    It would appear that the dispute arising from these events was scheduled for mediation on 10 April 2002. However, on 27 March 2002, solicitors for Stockland wrote to the solicitors for Skiwing saying the following:

We act for Trust Company of Australia Limited and Stockland and we refer to the relocation notice served on your client on 1 March 2002.

The landlord has always maintained and continues to maintain, that the above Relocation Notice is valid and enforceable. We are confident that if the Court tested the Relocation Notice, it would be upheld as valid and enforceable and your client would be required to elect to either terminate its lease or accept the alternative premises.

However, as a result of your client and other tenants disputing the landlord’s Relocation Notice and/or instituting proceedings, our clients have suffered irreparable delay to their redevelopment timetable.

After considering their position, our clients believe that the prudent course of action, having regard to the interest of Stockland shareholders, is to mitigate its loss. Thus, our clients hereby withdraw their Relocation Notice effective from the date of this letter and will not require compliance with the Relocation Notice served on your client.

Nothing in this letter should be construed as an admission that the Relocation Notice was invalid or otherwise unenforceable or as a waiver of any rights our clients have with respect to any future refurbishment or development.

68    Based on these events, the amended statement of claim asserted at paragraph 15:

15.    By serving the [second and third relocation notices] the Respondent impliedly represented, in trade or commerce, that the Second Renovation involved refurbishment, redevelopment or extension of the Arcade of sufficient significance to warrant the Respondent requiring the Applicant to relocate its business within the Arcade.

69    The representations thereby alleged were pleaded later in the amended statement of claim to be in contravention of s 52 of the TP Act. It was also pleaded that:

23.    The conduct and representations referred to [ie the second renovation representations] created a state of uncertainty in the period of approximately six months from October 2001 to March 2002 in relation to the tenancy of the Applicant, its trading position and the future of its business in relation to the Arcade such that the Applicant was unable to make any plans of a medium to long term nature.

70    It is hard to know what cause of action the amended statement of claim attempts to raise in respect of the second renovation representations. There is no doubt that Stockland attempted to secure the relocation of Tiffany’s to different premises. Mr Stojanoski confirmed that other tenants were also served with such notices. Mr Stojanoski’s evidence suggested a groundswell of opposition to the proposals. The only available inference is that Stockland had well-developed proposals for further redevelopment of the Imperial Arcade at the time the relocation notices were served on Skiwing and that those plans were abandoned in response to general tenant opposition. Those circumstances negative any case by Skiwing that there was an absence of reasonable grounds for a representation that Stockland proposed further renovations. The fact that uncertainty was generated by consequent tenant resistance does not provide the basis for any cause of action under s 52 of the TP Act. This part of the case, therefore, also fails.

Reliance and causation

71    It is a fundamental element of a claim for damages under s 82 of the TP Act that an applicant for relief establish that the conduct complained of (in this case contravention of s 52 of the TP Act) caused loss or damage in the sense that the applicant relied on the conduct to do something which would not have been done (or not do something which would have been done) and that the action (or omission) was the cause of loss or damage (see Marks v GIO Australia Holdings Limited (1998) 196 CLR 494 at [46], [48]). Apart from the failure of Skiwing’s case on the facts, as already discussed, each aspect of it fails to satisfy this principle also.

The balcony representations

72    Apart from the fact that it is unable to show any contravention of s 52 of the TP Act, Skiwing is unable to show reliance on, or establish a causal link with any loss or damage claimed by it arising from, these suggested representations. The proposal for a balcony pursuant to Stockland’s plans had been eliminated before Skiwing became bound to the new lease which in due course commenced on 1 May 2000. As at February 2000 Skiwing was not obliged to go ahead with the new lease. The proper inference is that Skiwing chose to do so for its own reasons, one of which may have been that the business had no value (apart from its stock in trade) in the absence of security of tenure over its premises. The new lease made no provision for occupation of the balcony space. The fact that Mr Stojanoski thought the value of the business would be enhanced by an adjacent balcony is not inconsistent with an intention on the part of Mr Stojanoski and Skiwing that Tiffany’s remain in business in the arcade, in any event, under a new lease on the terms offered.

73    The case based on Mr Corbett’s agreement that Mr Stojanoski could pursue the matter with the Council himself if he wished to do so can fare no better. Even the expenditure on Mr Burysek’s services (assuming it was in furtherance of this agreement, rather than for other purposes altogether) was outside the conditions stated by Mr Corbett at the time permission was given. It could not be recovered under the relevant principles. No other loss or damage, or reliant conduct, was established.

The first renovation representations

74    Skiwing’s case for damages arising from the first renovation representations fails at every level. Apart from the difficulty that the asserted facts were not established, it was not demonstrated that there was any causal link between the trading fortunes of Tiffany’s and the types of matters referred to in the pleadings.

75    Although not actually pleaded in this fashion, this part of Skiwing’s case when traced through to its conclusion, depends ultimately on the acceptance of a series of speculative links and propositions. First, the argument is that a certain level of advertising, promotion and management of tenant mix was promised but not delivered. The statements in the Marketing Plan for 2000/2001, in particular, give no support to Skiwing’s case in this respect. Nor does the evidence of any witness apart from Mr Stojanoski.

76    Secondly, it was implied that an increase in tenant vacancies during 2001 was attributable to the first failure, as was a general decline in traffic flow (i.e. customer attendances at the Imperial Arcade). A general decline in tenant vacancies was not established. At best, the evidence showed that there was some fluctuation in tenant numbers. There was no evidence which might satisfactorily permit the attribution of reasons to those fluctuations, much less some general reason. A general decline in traffic flow was not established on the evidence. On the contrary, evidence adduced through Mr Doherty showed that traffic flows were about 6.4 million in 2000 and 2001, fell to about 6.2 million in 2002 and rose again to about 6.5 million in 2003.

77    Next, it is contended that a progressive decline in the trading fortunes of Tiffany’s was due to the various alleged circumstances I have mentioned. Finally, it is claimed that the resulting reduction in, and then absence of, profits and a serious decline in the value of the business are all attributable to the failure of the representations. There is no doubt that Tiffany’s trading fortunes declined. However, the suggestion that this was due to any of the factors said to be at work, much less to the misleading or deceptive character of the suggested representations, would be no more than surmise, if it could rise that high.

78    I am not satisfied that any of the alleged consequences occurred as a result of any failure by Stockland to adhere to representations made by it about advertising, promotion or management of tenant mix. I am not satisfied, either, that Tiffany’s trading fortunes were connected to the circumstances of the arcade in the way suggested. Such a case was not made out. As a result, there would have been no case for monetary relief had Skiwing been able to establish that Stockland had conducted itself in a way that infringed s 52 of the TP Act in connection with the renovations carried out in 1999 and 2000.

79    Moreover, no case was made out that Skiwing did (or refrained from doing) something as a result of these alleged representations which caused it loss or damage. In particular, I reject the suggestion that the lease was renewed with effect from 1 May 2000 as a result of the statements attributed to Mr Aaron in April 1999 or December 1999. On Mr Stojanoski’s own evidence he caused the lease to be renewed because he formed the opinion for himself that the planned refurbishment of the arcade, which had commenced before he signed the lease, would be of benefit to the arcade generally and to Tiffany’s in particular. Publication of Stockland’s marketing proposals for 2000/2001 post-dated the execution and commencement of the lease and so did any statements made by Mr Aaron in December 2000.

80    There was no relevant reliance by Skiwing on Stockland’s conduct which would provide a basis for the award of relief to Skiwing in connection with the first renovation representations.

The second renovation representations

81    This part of the case fails, as I have earlier said, because no contravention of s 52 of the TP Act was established. It also fails because Skiwing cannot point to anything it did, or did not do, arising from the suggestion of further renovations, that caused it loss or damage. Skiwing resisted relocation. Ultimately it was not obliged to relocate. Stockland’s attempts to achieve the relocation of Skiwing, and others, did not make it a guarantor of their business fortunes. In any event, there was no evidence which would permit identification of, much less attribution of responsibility to Stockland for, any loss or damage to Skiwing arising from the suggested uncertainty of outcome between October 2001 and April 2002.

Valuation evidence

82    Both parties called valuation evidence in an attempt to quantify (or deny) the effect on Tiffany’s trading fortunes of the various developments in the life of the arcade about which complaint was made in the amended statement of claim. However, it is not necessary to deal with this evidence or to express a preference for the approach taken by either of the respective valuers – Mr Edmonds for Skiwing and Mr Potter for Stockland. Mr Potter responded to Mr Edmonds and criticised his methodology. He offered different evaluation outcomes about the matters which Mr Edmonds addressed. Mr Edmonds’ own analysis depended on assuming the reliability of the assertions in the amended statement of claim. As those assertions have been so comprehensively rejected there is no foundation upon which it would be useful or proper for any consideration to be given to Mr Edmonds’ analysis, or necessary to deal with Mr Potter’s response to it.

Issue estoppel, abuse of process and prior compensation

83    I referred in the earlier judgment to a number of judgments that had arisen from the dispute between the parties. Stockland argued that elements of the present proceedings were barred by findings made by the NSW Administrative Decisions Tribunal during the course of the earlier litigation.

84    Those matters were not raised, having regard to the pleaded case, as reasons why some or all of the pleadings should be struck out or the proceedings dismissed summarily, in whole or in part. The case has been heard to finality. As I have concluded that the application must be dismissed on the merits (and also, in large part, because it is statute barred), it is not necessary for me to deal with additional matters of that kind.

Conclusion

85    The application must be dismissed. Costs must follow the result.

Associate:

Dated:    4 May 2011