Longjing Pty Ltd v Perpetual Nominees Limited

HIS HONOUR: This case concerns, principally, a commercial lease of shops 203, 204, 205 and 206 (“the Premises”), in a retail shopping centre known as “Orion Springfield Central” (“the Centre”), situated at Springfield Lakes, in Queensland; whether the lease was validly terminated by the Defendant; and the consequences that follow upon termination of the lease.

The Premises comprised seven individual stalls in the Centre. They were to be used by the Plaintiff, and/or its licensees, for operating an Asian store selling groceries and vegetables and an Asian Hawker-Style Market selling pre-prepared, and prepared to order, Asian cuisine and beverages. The Centre consisted of over 110 specialty stores.

At the commencement of the hearing, each of the parties contended that the Defendant had granted, and the Plaintiff had taken, the Lease on alternative dates, the Defendant submitting dates earlier than 24 November 2015, and the Plaintiff indicating there was a binding lease on 24 November 2015: Tcpt, 13 May 2019, p 22(11-36). However, ultimately, there was no real dispute that the Defendant granted, and the Plaintiff took, a lease of the Premises, by no later than 24 November 2015, being the date on which the Defendant executed the Lease, and that on that date, the Lease became binding on the parties: Tcpt, 15 May 2019, p 189(13-25).

During the course of the hearing, the Defendant seemed to suggest that the Lease became binding when the Plaintiff entered into possession: Tcpt, 15 May 2019, p 190(8-50), but it is clear from the correspondence, to which reference will be made, that the Defendant asserted, during the course of negotiations, that it was not to be legally bound until it had executed the Lease.

More specifically, the issues for determination relate to whether the Lease had “commenced” at the time a Notice to Remedy Breach of Covenant (“the Breach Notice”) was issued on 22 January 2016; whether the Plaintiff was in breach of the Lease as a result of its failure to open the Premises during Core Trading Hours; whether the Defendant was entitled to terminate the Lease on 1 March 2016; and whether the Defendant’s conduct, in terminating the Lease, was unconscionable pursuant to s 46A of the Retail Shop Leases Act 1994 (Qld) (“the RSL Act”) or pursuant to s 20 and/or s 21 of the Australian Consumer Law (“the AC Law”), being Schedule 2 to the Competition and Consumer Act 2010 (Cth), or “misleading and deceptive” conduct.

(Initially, in the discussions that took place between the parties, and in some of the documents, there was a reference to the lease of another shop (“Shop MM5”), which was to be used by the Plaintiff, or its licensee, for a Yum Cha restaurant, but, at the hearing, this did not form part of either party’s case, other than in respect of one head of damage for a limited amount, that the Plaintiff advanced.)

Depending upon how the issues stated above are determined, the further issue for determination will be which party is to pay the losses sustained, and the quantum of the losses, said to have been sustained, by one party, or the other, in relation thereto.

Whilst the Plaintiff accepted that the Lease came to an end in March 2016, it claimed damages for the Defendant’s repudiation of the Lease, which repudiation it accepted. The Defendant denied that it is liable to the Plaintiff for such damages and disputes the Plaintiff’s calculation of damages. The Defendant made its own claim for damages said to have been suffered as a result of the breaches of the Lease, against both the Plaintiff and against Ms Merry Ng, the Cross-Defendant, as the guarantor of the Plaintiff’s obligations under the Lease.

Very little attention was given, during the first three days of the hearing, to the issue of damages. There had been a suggestion by leading counsel for the Defendant that “the damages, with respect, should be either able to be agreed or able to be succinctly argued by the time your Honour rises on Wednesday. My learned friend was going to propose a schedule of damages, which I haven't seen yet, but we'll look at that. The damages I claim are reasonably small in the bigger scheme of things …”: Tcpt, 13 May 2019, p 13(26-41).

At various times, during the course of the hearing, the Court reminded the legal representatives of the issue of damages, and that very little time had been devoted to that issue: Tcpt, 14 May 2019, p 92(13-38), p 178(50) – p 179(36).

Shortly prior to the adjourned date, each party provided a schedule of damages that it claimed. I shall refer to the various claims later in these reasons.

In the events that occurred, it was necessary to leave the issue of damages, as well as the Defendant’s submissions, until a fourth day of hearing time, which had to be arranged, being 30 May 2019. On the fourth day of the hearing, the parties confirmed they had agreed upon an amount for damages claimed by the Defendant, discussed later in these reasons. Then, counsel for the Plaintiff referred to an e-mail that had been sent, by my Associate at my request, to the parties, in respect of damages, and he “confirm[ed] that the damages claimed by the defendant are agreed” and that the agreed amount for damages claimed by the Defendant was $252,936: Tcpt, 30 May 2019, p 251(21-48).

On the fourth day, the issue of the Plaintiff’s damages was otherwise dealt with, as were the Plaintiff’s submissions on the topic. The case concluded on the fourth day of hearing.

I should mention that despite submissions made as to the readiness of the Plaintiff at the time the Defendant served the Notice of Termination, no steps were taken by the Plaintiff to seek relief from forfeiture or any interlocutory relief to enable it to remain in possession.

The pleadings relied upon, in their final iteration, were an amended Statement of Claim, filed on 14 May 2019; a Defence to the amended Statement of Claim, filed on 30 April 2018; a first Cross-Claim and Statement of Cross-Claim, filed on 30 April 2018; and a Defence to the first Cross-Claim, filed on 5 June 2018.

(It was necessary to give leave to the Plaintiff to file the amended Statement of Claim. Although it appeared that it had been filed on 18 April 2018, the filing was described in JusticeLink as having been “Void” (for reasons not entirely clear). There being no dispute that it should be filed, the Court granted leave to file the amended Statement of Claim, which was done in accordance with the leave granted. The Court noted that, in the amended Statement of Claim to be filed, the Plaintiff would omit paragraphs 23 and 24 and the particulars (l) and (n) of paragraph 33: Tcpt, 13 May 2019, p 46(5) – p 47(16). The amended Statement of Claim, as filed, now forms part of the Court file.)

In the Defence to the amended Statement of Claim and in the Defence to the first Cross-Claim, some admissions were made in relation to the facts alleged and, where appropriate, I have included a number of the admitted facts as uncontested facts.

Prior to the commencement of the hearing, the Plaintiff’s legal representatives provided the Court with three folders of documents, in date order, and consecutively paginated, comprising the relevant documents, upon which one, or both, parties relied. At the hearing, these folders were together marked as Ex. A. Subsequently, each party, without objection, added some documents to that Exhibit. Five folders of additional documents were also tendered, each being the Exhibit accompanying its corresponding affidavit. I have used the contents of the Exhibit, where appropriate, as the basis of some of the facts not in issue, and to which I shall refer.

Counsel also provided a statement of agreed facts which has been used as an aide memoire. Each also provided written submissions, both opening, and closing, which I have found very helpful.

I am grateful to all of the legal representatives of the parties for the efforts made in order to provide the Court with the documents, and also for the submissions. Co-operatively, they have made a commendable attempt to limit the real issues in dispute and to assist the Court in determining those issues.

Ultimately, the parties agreed that the issues to be determined were:

I shall limit the identity of the persons referred to in this section to the parties and to the principal witnesses. I shall name other persons who played a part in the events, and who are referred to, in passing, in the evidence.

In circumstances to which I shall come, the Plaintiff, Longjing Pty Limited, at all material times, was said to be the lessee of the Premises. Ms Ng was its sole director and the secretary, and the guarantor of the Plaintiff’s obligations under the Lease. As earlier noted, she is named as the first Cross-Defendant in the first Cross-Claim and Statement of Cross-Claim.

Ms Ng swore one affidavit that was read in the proceedings and she was cross-examined. At all relevant times, she seems to have been the controlling mind of the Plaintiff, although it is clear that her husband, Eddie Fong Chung Ng, also participated in some of the events that occurred. He did not give evidence in the proceedings.

Hilton Edward Hedley was a leasing agent employed by Allied Property Group, a business that he had established, and which specialised “in retail project planning and leasing, site acquisitions and disposals, and retailer representation”. He has had 20 years’ experience in the commercial property industry and had negotiated both on behalf of tenants and on behalf of landlords: Tcpt, 13 May 2019, p 27(49) – p 28(16).

Mr Hedley had known Ms Ng and Mr Ng for a number of years prior to 2015. He had previously acted for them in connection with various lease transactions in New South Wales. Ms Ng and Mr Ng had owned, and operated, a number of Chinese restaurants in the Sydney Metropolitan Area.

It seems clear from Mr Hedley’s affidavit evidence that Ms Ng was not an ingénue in relation to the leasing of retail premises.

The Plaintiff engaged Mr Hedley, as its duly authorised agent, for the purpose of dealing with, amongst others, the Defendant. In the subject transaction, he was to be remunerated, by way of commission, and was to be paid by the Plaintiff. “Because the deal was pulled”, he had not received any commission, which was to have been paid to him “once the tenancies opened”: Tcpt, 13 May 2019, p 30(4-13).

Mr Hedley could not state, precisely, the quantum of the commission he would seek, but thought that it could be either $25,000 or $50,000. He would only receive remuneration for the work that he undertook on behalf of the Plaintiff if it was successful in these proceedings.

It was not Mr Hedley’s usual practice to read or understand the formal legal documents such as an agreement for lease or a lease, although he would understand the commercial terms: Tcpt, 13 May 2019, p 31(1-6).

Mr Hedley swore three affidavits that were read and he was cross-examined.

In about May 2015, the Plaintiff retained Space Cubed Pty Limited (“Space Cubed”), an architect and interior graphic designer, to perform certain work relating to the Premises. Mr Arran Woollams, of Space Cubed, was the relevant representative with whom the Plaintiff dealt. He did not give evidence in the proceedings but copy emails to, and from, him, are included in Ex. A.

Kevin Brennan was the engineering and project manager for the Plaintiff in respect of the Premises. He did not give evidence in the proceedings.

In or about mid-November 2015, the Plaintiff retained Alex Su, a commercial real estate agent based in Sunnybank Hills, Queensland, to assist with the marketing, and the obtaining of prospective sub-tenants/licensees of the Premises: Tcpt, 13 May 2019, p 57(16-27). Mr Su was not a witness in the proceedings, but copy emails to, and from, him, are included in Ex. A.

The Defendant/Cross-Claimant, Perpetual Nominees Limited, at all material times, as custodian and agent for Mirvac Funds Management Limited (“Mirvac”) as trustee for the Springfield Regional Shopping Centre Trust, was, and remains, the owner of the Centre. Mirvac is a subsidiary of Mirvac Limited. (In the evidence, it was Mirvac, rather than the Defendant, to which counsel referred: Tcpt, 13 May 2019, p 29(14) p 30(2). (On occasions, during the hearing, the witnesses and the parties also referred to the Defendant as “Mirvac”.)

Mirvac Projects Pty Limited (“Mirvac Projects”) is, and was, at all material times, a wholly owned subsidiary of Mirvac Limited.

Glenn Dumbrell is the project leasing manager of Mirvac Property Group. Mr Dumbrell and Mr Hedley had known each other, professionally, for a number of years, and had worked together during the period 2003 to 2006. Mr Dumbrell was the first person to have discussions with Mr Hedley about the Centre and the lease of the Premises. He was not a witness in the proceedings.

From about May 2012, Mirvac Projects engaged Theo van Veenendaal as a development consultant. From about June 2012, he was engaged by Mirvac Projects to consult with its management and to work on the development of the Centre. His principal role in the development was to negotiate leases with key tenants. From about August 2015, he was involved in negotiating an Agreement to Lease and the Lease with the Plaintiff. His discussions with Mr Hedley commenced in about August 2015 and completed in late February or early March 2016. He affirmed two affidavits, read in the Defendant’s case, and he was cross-examined.

From about 2013, Benjamin Conlon was the Portfolio Manager at Mirvac Projects in respect of the Centre. In that role, he had responsibility for “managing day-to-day activities for the Centre, including liaising with the centre management team, managing operational expenses, capital expenditure, leasing, marketing, administrative matters, managing tenant relationship[s] and asset strategy and forecasting”. He also had “responsibility for Mirvac’s dealings with the [P]laintiff …including instructing the solicitors for the [D]efendant in its dealings with the [Plaintiff], both in relation to negotiations and the subsequent dispute”: Affidavit, Benjamin Conlon, 2 August 2018 at par 4. Mr Conlon swore two affidavits that were read in the Defendant’s case and he was cross-examined.

It was to Mr Conlon that Mr van Veenendaal reported.

James Mutch was the Tenancy Co-ordinator Manager for Mirvac. According to Mr van Veenendaal, he was responsible for co-ordinating the works that the Defendant was required to perform within the tenancy area: Tcpt, 14 May 2019, p 121(41-47). He was not a witness in the proceedings.

Ms Manuella Di Rossi was the National Leasing Manager at Mirvac Property Group. She was not a witness in the proceedings.

The firm of solicitors acting for the Plaintiff and Ms Ng, until about 25 November 2015, was Raymond Lee & Co. Then, between 25 November 2015 and 2 March 2016, the Plaintiff retained Thomas Kung Lawyers, or Thomas Kung, to act on its behalf in respect of the lease of the Premises and to assist in drafting sub-leases/licence agreements for prospective sub-tenants/licensees of the Premises.

At all relevant times, the firm of solicitors acting for the Defendant, in the Lease transaction, was Gadens.

None of the lawyers, on behalf of any party involved in the transactions, was a witness, although many emails passing between them formed part of Ex. A.

The following facts, which trace the history of the events leading to this dispute, are not controversial. To the extent that any facts are disputed, what is stated under this heading should be regarded as findings of the Court. (It is not necessary, or practicable, to set out all of the events that occurred prior to the signing of the relevant lease documents. I have used the parties’ statement of agreed facts and the admissions made in the oral evidence as a guide to identifying the relevant events.)

The discussions for the lease of the Premises commenced in late January 2015, when Mr Dumbrell approached Mr Hedley, to find a tenant to lease the Premises. Mr Dumbrell told Mr Hedley that he had been in discussions with Golden Vision Retail Pty Limited (“Golden Vision”) in respect of the Premises but that those negotiations had reached a standstill. Mr Dumbrell enquired whether Mr Ng would be interested in leasing the Premises.

On about 4 February 2015, Mr Hedley attended a meeting at the Centre with Mr Dumbrell and Mr Ng.

At about this time, Mr Dumbrell also advised Mr Hedley that Shop MM5 was available, and that he thought it would be suitable for use as a large format Yum Cha restaurant. Mr Dumbrell then enquired whether Ms Ng and Mr Ng would be interested in the lease of that shop also.

On 5 February 2015, the Defendant provided a document headed “Orion Springfield Central … Retail Lease Proposal” which was said to be “subject to Lessor approval, availability and contract” for the Premises. In this document, it was made clear that “[t]hese premises do not exist and will need to be constructed”: Ex A/1-30. A draft Floor Plan for the Premises was attached to the Proposal.

The “permitted use” identified in the Retail Lease Proposal was:

On 18 February 2015, Mr Dumbrell, through Mr Hedley, provided a further proposal to the Plaintiff, in respect of the Premises: Ex. A/31-48. (It appears that the principal change related to the name of the area of the Premises.)

Also, on 18 February 2015, the Defendant provided a document headed “Orion Springfield Central … Retail Lease Proposal” which was said to be “subject to Lessor approval, availability and contract” for Shop MM5. In this document, it was also made clear that “[t]hese premises do not exist, and will need to be constructed”. A draft Floor Plan, delineating MM5, was attached: Ex. A/49-62 to this Proposal.

In about mid-March 2015, the Plaintiff executed each Retail Lease Proposal.

On 23 March 2015, Mr Dumbrell sent an email to Mr Hilton confirming that there had been “Approval internally” and “Will now processes [sic] formally and instruct I would say by the end of the week”: Ex. A/63.

On 26 March 2015, the Plaintiff paid to the Defendant a deposit of $64,166.70, which was apportioned as to $27,500 for the Shops and as to $36,666.70 for Shop MM5. (The parties’ Statement of Agreed Facts, which was provided as an aide memoire states that the deposit was paid to “Mirvac”. The affidavit of Mr Hedley made 5 October 2016, to which the Statement of Agreed Facts refers, and identifies as the source of that fact (at par 18)), “Mirvac” is defined to mean Mirvac Property Group (at par 6). In any case, there is no dispute that the Plaintiffs paid those sums, on that date. This document was treated as an aide memoir: Tcpt 15 May 2019, p, 187(44) – p 188(6)).

Under cover of a letter dated 24 April 2015, Gadens sent to Raymond Lee & Co a proposed Agreement for Lease, Lease and other documents for Shop MM5, for review by the Plaintiff, all of which documents were said to be subject to the Defendant’s approval. The request was made that if the documents were in order, they should be executed and returned “as soon as possible”. A cheque for $202.10, payable to Gadens, was also sought: Ex. A/66-67.

On 6 May 2015, Mr Hedley attended a design meeting with representatives of the Defendant.

On 7 May 2015, Mr Mutch sent an email to Mr Hedley noting the following timetable:

On 19 May 2015, Mr Dumbrell provided Mr Hedley with plans, scale drawings and colour schematics from Mirvac, of the plans that had previously been submitted by Golden Vision, the previous proposed tenant, for the Premises.

On 20 May 2015, Mr Hedley attended an on-site meeting with Mr Mutch, other Mirvac representatives, Ms Ng and Mr Ng.

On 22 May 2015, Mr Woollams, of Space Cubed, sent Mr Hedley an email attaching a layout for the Premises.

In the weeks leading up to 21 July 2015, Mr Hedley had a conversation with Mr Dumbrell regarding the delay in the handover dates.

On 21 July 2015, Mr Angus White, the Development Manager, Mirvac, and Mr Hedley had an email exchange in which, amongst other things, Mr White confirmed “following our conversation today, your commitment to take handover of the store at Orion on 12th August 2015 and open on 7th October 2015 as per our agreed program”: Ex. A/76-77.

Also, on 21 July 2015, Gadens sent an email, addressed to “Anson”, with a copy to Raymond Lee & Co, regarding the Premises, in the following terms (Ex. A/79):

(At the hearing, the parties agreed that “Anson” was Anson Cheang, a solicitor at Raymond Lee & Co: Tcpt, 15 May 2019, p 185(25-37).

The email attached a copy of the Agreement for Lease of the Premises in marked-up form, the Agreement for Lease, in final form, of the Premises, Lease in marked-up form, and the Agreement for Lease, in final form, for Shop MM5. It was noted that the Defendant “had not had the opportunity to review the documents prior to them being issued and that the Defendant reserved its rights to make further amendments”.

On 29 July 2015, Mirvac emailed a “Handover Notice” (Ex. A/84-85) to Mr Hedley which provided:

At the time the “Handover Notice” was issued, Mr Mutch and Mr Angus White, the Development Manager, Mirvac, informed Mr Hedley that the lease documentation had been finalised. Despite that having been said, it is clear that at that time, negotiations as to the Agreement for Lease and Lease were ongoing between the solicitors. There is no dispute that Mr White, at the relevant time, was employed by the group known as “Mirvac”.)

On 30 July 2015, Gadens sent an email to Raymond Lee & Co, requesting those solicitors to “advise when we can expect to receive the executed lease documents for Shops 203-206 and Shop MM5 [sic]”: Ex. A/73.

On 4 August 2015, Mr Hedley sent an email to Mr White regarding the contribution payable by the Defendant and suggested amendments to the Lease.

On 6 August 2015, at 9:07 a.m., Mr Hedley wrote to Mr Dumbrell noting “We are all meeting on site next Wednesday to finalise everything prior to taking handover…”: Ex. A/89.

On 6 August 2015, at 5:15 p.m., by letter sent via email to Mr Lee at Raymond Lee & Co from Gadens, the Defendant elected to withdraw from offering the Plaintiff the leases due to the failure to return executed documents: Ex. A/93-94.

Another letter, also of the same date, in almost identical terms as that sent to Mr Lee, from Gadens to Mr Cheang at Raymond Lee & Co, noted (Ex. A/95):

Despite the withdrawal from the negotiations, Ms Di Rossi requested a meeting with Mr Hedley to discuss the Lease.

On about 7 August 2015, Mr Hedley had a meeting with Ms Di Rossi, and Sepideh Vahdat, a retail leasing executive for the Defendant, at which Mr Ng also attended. When Ms Vahdat and Ms Di Rossi raised concerns about the guarantors under the lease and whether the Plaintiff would be able to commence its tenancy fitout following handover, Mr Hedley responded (Affidavit, Hilton Hedley, 5 October 2016 at par 37):

Following the discussion referred to, Ms Di Rossi said that the Defendant had “terminated the lease as a precaution” and that she was happy to proceed with the negotiations for the Lease.

On 7 August 2015, Mr Hedley sent an email to Ms Vahdat regarding the shop design, guarantor and Lease: Ex. A/97

Between 7 August 2015 and 24 August 2019, Mr Hedley continued to liaise with the Plaintiff’s designer and shopfitter to ensure that all requirements of Mirvac were being attended to and completed. He also continued to liaise with Mirvac's delivery team in relation to the tenancy design and handover.

On 11 August 2015, Mr Hedley informed Ms Ng and Mr Lee that Ms Di Rossi “is resubmitting these details to the CEO tomorrow”: Ex. A/99.

On 24 August 2015, Mr Brennan sent Mr Hedley an email, which stated (Ex. A/106):

Following a meeting on 31 August 2015 between Mr Hedley, Mr van Veenendaal and Ms Justine Hughes, the Head of Retail Management, Mirvac provided the Plaintiff with Heads of Agreement for the Yum Cha restaurant, which was to be located at Shop 116A, rather than Shop MM5, as had previously been agreed. (For the same reason that has been outlined earlier in these reasons, it is unclear from the evidence whether Mr Hughes was employed by Mirvac, Mirvac Property Group, or another subsidiary. I do not think anything turns on this.)

On the same date, Gadens sent an email to Raymond Lee & Co stating that she had received instructions that the “parties have now reached agreement regarding the guarantor for Shops 203-206…”. She also enclosed the “lease documents with the proposed changes shown tracked as well as the final from [sic] for signing by the parties”: Ex. A/112.

On 18 September 2015, Raymond Lee & Co sent a letter to Gadens in respect of the Agreement of Lease and Lease: Ex. A/146-147. That letter stated:

In the “Disclosure Statement by the lessor” (Ex. A/162ZCL-162ZDB), the copy of which bears, on the final page, what appears to be Ms Ng’s signature and the date 4 September 2015, in the box headed “Estimated commencement date of the lease”, the date “10/09/2015” was inserted and described as “Actual”. Similarly, in the box headed “Estimated handover date of the premises” “10/09/2015” was inserted and described as “Actual”: Ex. A/162ZCL.

In the Disclosure Statement referred to, important is Part 3 “Works Fit Out and Refurbishment” and in the box headed “Date of handover (if different to the date the lease commences indicated at Item 5),” the date “10/09/15” was inserted and described as “Actual”: Ex. A/162ZCO.

On about 18 September 2015, Ms Ng, on behalf of the Plaintiff, and in her capacity as a guarantor, executed the Agreement for Lease, and the Net Retail Lease, for the Premises. (Each of the Agreement for Lease and Net Retail Lease that was signed by Ms Ng, copies of which were sent by Raymond Lee & Co to Gadens on 18 September 2015, appear to be undated.)

On 21 September 2015, the Plaintiff provided the Defendant with a bank guarantee in the sum of $165,000.

On 24 September 2015, Mr Mutch sent an email to Mr Hedley and others (Ex. A/163) confirming the following dates :

On 1 October 2015, Mr Hedley sent an email to Mr van Veenendaal asking for the contribution that the Defendant was to make. He noted “they are supposed to be taking handover on Saturday and won’t be doing so until they have some money”: Ex. A/167. (The reference to “taking handover this Saturday” is consistent with the email of 24 September 2015 from Mr Mutch.)

On 2 October 2015, the Plaintiff delivered to the Defendant the hard originals of the Agreement for Lease and the Lease.

On 8 October 2015, Gadens sent a letter to Raymond Lee & Co, in response to the letter dated 18 September 2015, which included:

On 9 October 2015, Mr Hedley sent an email to Ms Ng, Mr van Veenendaal and Raymond Lee & Co (Ex. A/187A), stating:

On 13 October 2015, in a letter from Raymond Lee & Co to Gadens, it was confirmed that the Plaintiff had not accepted the terms put forward in the letter dated 8 October 2015 from Gadens, but that there had been certain without prejudice discussions between the parties and that some amendments to the Lease would be made (particularly referring to Shop MM5 no longer being available): Ex. A/187ABA-187ABB.

On about 14 October 2015, Mr van Veenendaal attended a meeting with Mr Hedley, during which meeting, a conversation to the following effect took place (Affidavit, Theodorus van Veenendaal, 24 July 2018 at par 20):

On 14 October 2015, Raymond Lee & Co sent a letter dated 13 October 2015 to Gadens. That letter stated:

On about 14 October 2015, Mr Hedley and Mr van Veenendaal agreed to make certain amendments to the Agreed Documents (“the Amendments”). The Amendments included, amongst other things (Ex. A/188, 190-91):

On 15 October 2015, Mr Hedley sent an email to “Merry and Raymond” confirming that “Mirvac will pay Leigh directly for the work he is doing and pay their contractor for the work they are doing…Please confirm you accept this and if so we can have it sorted out asap so that your fitout can start today”: Ex. A/187B.

On 15 October 2015, the Defendant paid the Plaintiff $313,500, being 33 per cent of the total "Fitout Contribution" (as defined in the Agreement for Lease).

In an email from Mr van Veenendaal to Mr Hedley sent 16 October 2015 (Ex. A/188), the following appears:

(The parties agreed that the word “Contraction” should be read as “Contractor”: Tcpt, 13 May 2019, p 35(23-25).)

On 16 October 2015, Mr Hedley forwarded to Ms Ng and Raymond Lee & Co, a copy of Mr van Veenendaal’s email. Ms Ng responded as follows:

Mr Hedley forwarded to Mr van Veenendaal Ms Merry Ng’s email, writing:

On 16 October 2015, Ms Ng, on behalf of the Plaintiff, and on her own behalf, agreed to the amendments. Her agreement was noted in an email from her to Mr Hedley and to Raymond Lee & Co, sent on 16 October 2015, a copy of which was provided to Mr van Veenendaal on the same date.

On 19 October 2015, Gadens sent an email to Raymond Lee & Co, with attachments that:

The letter, stated, amongst other things:

There was attached a document (Ex. A/218) that stated:

On 19 October 2015, Mr van Veenendaal sent Mr Hedley an email and, with an attachment entitled "Handover Notice" (Ex. A/221). The email stated:

To the email was attached a document headed “Site Inspection Handover”. The date of the Site inspection was said to be 16 October 2015 and appears to have been accepted on behalf of the Plaintiff: Ex. A/222.

Ms Ng admitted (in paragraphs 3 and 5 of her affidavit of 10 April 2019), that on about 19 October 2015, the Defendant “formally handed over the [Premises] to the Plaintiff in order to enable the Plaintiff to begin “the lessee’s fitout works”.

On 23 October 2015, Raymond Lee & Co sent to Gadens (with a copy to Ms Ng and Mr Hedley) an email on the following terms:

On 26 October 2015, Gadens sent another email to Raymond Lee & Co attaching an amended copy of the letter referred to above, which was said to reflect a further agreement between the parties. The email referred to a chain of emails, all sent on 23 October 2015, being an email from Mr Hedley to Mr van Veenendaal; an email from Mr van Veenendaal to Mr Hedley; and an email from Raymond Lee & Co to Gadens. Also included was an amended copy of the letter dated 19 October 2015 to reflect further agreement between the Plaintiff, the Defendant and Ms Ng. (Relevantly, paragraph 2(b) of the letter dated 26 October was the same as paragraph 2(b) of the 19 October letter.) The letter required Ms Ng, as the sole director and secretary of the Plaintiff, to acknowledge, accept, and agree to, the terms of the letter dated 26 October 2015 by signing and dating a copy of the letter: Ex. A/195-197.

The letter dated 26 October 2015 specifically stated that “The rent for first year of the Term …which will be payable on and from 14 December 2015”.

On 26 October 2015, the Defendant paid the Plaintiff $313,500, being the second instalment of 33 per cent of the total "Fitout Contribution" (as defined in the Agreement for Lease).

On 30 October 2015, Raymond Lee & Co sent to Gadens, by email (and, apparently, by courier), the copy letter dated 26 October 2015, and the further amended pages of the Lease and Agreement for Lease for the Premises, both signed by Ms Ng (which were said to have been provided to replace the pages in the previous document). The letter was also said to enclose the signed Legal advice report, Financial report and a cheque to the Department of Natural Resources and Mines. In relation to the amended pages to the Lease and Agreement to Lease, whilst the “Commencing Date” (Item 7) and the “Terminating Date” (Item 8) remained incomplete, the “Opening Date” (Item 11) was stated to be 14 December 2015. However, in the definitions, “Lease commencing date” was said to mean “the Fitout Access Date”: Ex. A/231A-231M.

In the “Legal advice report”, which is a document required to be completed by a legal practitioner, in this case Raymond Lee, and which was signed by Mr Lee on 23 October 2015 and by another person, perhaps, Jenny Zhuang (the signature is indecipherable) on 30 October 2015, the legal practitioner confirmed that he had provided, and the “lessee/assignee” certified that “I have received the explanations referred to… and have understood them”, and advice on, among other things, the “term of the lease”, and “consequences of the prospective lessee/assignee … breaching lease conditions”: Ex. A/231J – 231K.

It appears that on 30 October 2015, Ms Ng as “sole director [and] secretary of Longjing” did acknowledge, accept and agree to the terms of the letter dated 26 October 2015 from Gadens: Ex. A/197.

By email dated 16 November 2015 sent to Mr van Veenendaal, Mr Hedley forwarded an email from Leigh Weber, who was carrying out the fitout works on behalf of the Plaintiff, in which he explained the reasons for the delays and proposed that “due to delays out of our control … the works will not be completed on the 14/12/15. I suggest a time extension from Mirvac” (earlier in the email, the extension proposed was “until 23/12”.): Ex. A/236-238.

In an email sent on 17 November 2015, from Raymond Lee to Gadens, a request was made to “urgently provide to our office a copy of the Agreement for Lease and the Lease executed by your client…”. Shortly thereafter, Gadens responded that “[T]he documents have not yet been signed by the Lessor and are still being processed…” Ex. A/241A-241B.

On 18 November 2015, Mr van Veenendaal sent an email to Mr Hedley under the heading “Request for time extension for works to Kowloon City” and stated “I have asked Mirvac to look into the claim … We need to ensure that the tenant opens as close to the 14 December as possible”: Ex. A/246.

On 19 November 2015, a new shop location for the yum cha restaurant was agreed.

On 20 November 2015, an error in relation to the Marketing Levy in the signed lease documents was detected and a request was made for an amendment to Item 12 of the Reference Schedule.

On 23 November 2015, Mr Hedley sent an email to TKA Lawyers stating that the Plaintiff “requires the services of a solicitor in Brisbane to act on its behalf to prepare sales contracts and licence agreement for a number of food court tenancies…There are 7 businesses in total, so that will be 7 sales contracts and 7 licence agreements…”: Ex. A/259A.

Also on 23 November 2015, Mr Hedley sent an email to Mr van Veenendaal stating the following (Ex. A/260):

(There was no evidence given by the Plaintiff of any “proposed operators” or of any tenant losing interest.)

On 24 November 2015, the Defendant executed the counterpart of the Agreement for Lease and the Lease for the Premises and provided it to the Plaintiff.

It was agreed, at the hearing, that amendments to the Lease that had been signed on 18 September 2015 by the Plaintiff and Ms Ng were inserted into the Lease that was signed by each of them as agreed amendments were made: Tcpt, 15 May 2019, p 216(8-46).

As has been stated earlier in these reasons, between 25 November 2015 and 2 March 2016, the Plaintiff engaged Thomas Kung or Thomas Kung Lawyers to act as its solicitors in respect of the Premises and to assist in drafting sub-leases/licence agreements for prospective tenants of the Premises. The Plaintiff also engaged in the same period Mr Su, to assist with marketing and obtaining prospective tenants for the Premises.

On 18 December 2015, the Plaintiff had not opened any part of the Premises for trading.

On 21 December 2015, Daryl Gabagas, a Development Manager at Mirvac, sent an email to Hala Nagy, an accounts payable manager at Mirvac, Fizzah Salahuddin, a development assistant (finance) at Mirvac, and Rod Moynahan, the National Director, Retail Delivery, at Mirvac, stating:

On 21 December 2015, Mr Gabagas sent an email to Fizzah Salahuddin and Rod Moynahan stating:

Also on 21 December 2015, Mr Moynahan sent an email to Mr van Veenendaal, Andrew Paterson and Mr Mutch stating:

The final fitout works were completed on 23 December 2015.

On 11 January 2016, Melanie Hodge, the Centre Manager, sent an email to Mr van Veenendaal, in which she stated (EX. A/663):

On 11 January 2016, the Defendant paid the Plaintiff $220,000, being the third instalment of 23 per cent of the total "Fitout Contribution" (as defined in the Agreement for Lease).

On 12 January 2016, Mr van Veenendaal forwarded Ms Hodge's email to Mr Hedley with: "Hi Hilton, What's the status of this". Mr Hedley responded later that same day with: "People are only now coming back from their break and shops will tentatively be opening in stages likely from this Friday or Monday of next week": Ex. A./663.

On 13 January 2016, Ms Hodge sent an email to Mr Conlon and Mr van Veenendaal, which stated (Ex. A/665A):

On 14 January 2016 at 7.05 p.m., Ms Hodge sent an email and an attachment being a tax invoice for outstanding rent to Ms Ng. Ms Hodge’s email stated (Ex. A/667A-667B):

On 14 January 2016 at 7.37 p.m., Ms Ng forwarded Ms Hodge's email to Mr Hedley. Mr Hedley forwarded on the email to Mr van Veenendaal at 7.41 p.m. stating (Ex. A/667A):

On 22 January 2016, the Defendant served a Notice to Remedy Breach of Covenant (“the Breach Notice”) (Ex. A/692) on the Plaintiff, that relevantly stated:

The Breach Notice provided:

Mr Conlon gave instructions for the Breach Notice to be issued to the Plaintiff. He said he did so because “the tenant wasn’t trading and hadn’t paid rent”: Tcpt, 14 May 2019, p 170(3-11).

On 22 January 2016, Mr Hedley sent an email to Mr van Veenendaal which had attached to it the notice of 22 January 2015, and which stated: “Really??”.

Mr Hedley gave evidence that he was “sure [I would have advised her to pay [the outstanding rent] immediately”: Tcpt, 13 May 2019, p 65(9-12).

(This evidence is inconsistent with Ms Ng’s evidence, which I do not accept, that she did not know that the Plaintiff was required to pay rent, or that the Defendant could deduct the outstanding rent from the Bank guarantee so that it did not actually have to pay the rent: Tcpt, 13 May 2019, p 78(29-44). It is also inconsistent with her evidence, which I also do not accept, that he told her that “We don’t even need to pay the money. Nothing we owe to Mirvac, we’re not owing Mirvac anything”: Tcpt, 13 May 2019, p 80(49) – p 81(1). It was also inconsistent with Ms Ng’s evidence that Mr Hedley told her not to worry about the rent: Tcpt, 14 May 2019, p 95(27-29).

On 28 January 2016, Ms Merry Ng sent an email to Ms Hodge, which stated (Ex. A/694):

On 1 February 2016, Mr Hedley sent to each of Mr Kung, Mr Su and Ms Ng an email which stated:

On 3 February 2016, there was a meeting between Mr Hedley, Mr van Veenendaal and Mr Conlon. At this meeting, Mr Hedley outlined the progress that had been undertaken so far in relation to ascertaining the potential licensees; Mr Hedley outlined that there were three or four that could open within a relatively short period of time; and he expected the Premises to be open within approximately 2 weeks. Mr Conlon stated that “Termination is not an outcome that Mirvac desires” and asked how much more time did the Plaintiff require to remedy the breach, to which Mr Hedley responded “Two weeks from today would be sufficient for Longjing to open the Premises for trading”: Tcpt, 13 May 2019, p 65(49) – p 66(25).

Mr Conlon submitted, under cross-examination, that at the meeting, it was agreed that if the Plaintiff opened with four licensees and operated one shop itself, within the agreed time frame, then the Defendant would not terminate the Lease: Tcpt, 14 May 2019, p 175(19-24).

Under cross-examination, Mr van Veenendaal stated that at the meeting, no agreement was reached that if the Plaintiff opened with four licensees and operated one shop itself, within the agreed time frame, then the Defendant would not terminate the Lease. He expressed this several times in answer to questions put to him: Tcpt, 14 May 2019, p 151(8-11, 21-26, 42-47).

His evidence, under cross-examination by counsel for Longjing and also in answer to my question on the topic, was that the agreement that had been reached at the meeting was that Mr Hedley had, at the meeting, indicated he would “come back to us within 24 hours to say what - to say which tenancies he would have open”: Tcpt, 14 May 2019, p 150(46) – p 151(4), p 152(7-8). This evidence appears consistent with an email dated 3 February 2016, at Ex. A/708A, from Mr Hedley, to which reference is to be made. This was pointed out to counsel for Longjing during the course of the hearing: Tcpt, 14 May 2019, p 154(47) – p 155(4)).

Under cross-examination, Mr van Veenendaal also stated that such an agreement had been made on, or at least by, 15 February 2016, pursuant to the letter sent by Gadens to Raymond Lee & Co on that date, which outlined the agreement that had been reached: Tcpt, 14 May 2019, p 148(32-33). (The content of that letter is outlined later in these reasons.)

On 3 February 2016 at 1:56 p.m., Mr Hedley sent an email to Mr Su and Mr Kung as follows (Ex. A/708A):

On 3 February 2016 at 2:46 p.m., Mr Hedley sent an email to Mr Kung, Mr Su and Ms Ng which stated (Ex. A/708B):

On 4 February 2016, Mr Conlon and Mr van Veenendaal received an email from Ms Meri Suleman, the Retail Lease Administrator, in which she wrote (Ex. A/ 709):

On 5 February 2016, Mr Conlon responded to Ms Suleman's email in the following terms (Ex. A/710):

In an email dated 8 February 2016, sent by Raymond Lee & Co to Gadens, the Defendant was informed that “4 Licence Agreements have been issued … our client anticipates that 4 of the 7 shop [sic] will be open and trading by 28 February 2016”: Ex. A/712.

In an email dated 10 February 2016, Mr Hedley advised Mr van Veenendaal that “more ads are appearing in the Chinese, Vietnamese and Korean newspapers this weekend…I’ll keep you posted in [sic] the level of enquiry”: Ex. A/725.

On 15 February 2016, Gadens sent correspondence to the Plaintiff and Ms Ng that relevantly stated (Ex. A/ 737-738):

Ms Ng gave evidence that she had received a copy of the letter dated 15 February 2016 and that she understood that it was an important letter; that it contained revised obligations that the Defendant required the Plaintiff to comply with; that there had been discussions regarding the breaches specified in the Breach Notice; that as a result of statements made by the Plaintiff to the Defendant, the Defendant was prepared to give the Plaintiff “further time within which to open the premises for business and to keep the premises open for business”; that the Plaintiff had until 5:00 p.m. on Sunday 28 February 2016 “to have all food stalls operational, open for trade and thereafter to remain open for trade”; and that if the Plaintiff did not pay the outstanding arrears of rent, “on or before 5:00 p.m. on 28 February 2016 or the next business day thereafter”, the Defendant would call on the bank guarantee and if that occurred, the Plaintiff “was required to comply with the Lease and replace the Bank guarantee or the proportion of the bank guarantee with the amount that had been claimed”; and that if the Plaintiff did not comply with the revised obligations, by the time and date set out in the letter, “Gadens were instructed that Mirvac reserved its legal rights in relation to termination of the Lease”: Tcpt, 14 May 2019, p 102(16) – p 104(37).

On 19 February 2016, Raymond Lee & Co sent a letter dated 18 February 2016, to Gadens, that relevantly stated (Ex. A/751-752):

Under cover of an email dated 24 February 2016, sent by Gadens to Raymond Lee & Co, the statement of outstanding arrears was provided.

On 24 February 2016, Mr Greenwood sent an email to Mr Lee which relevantly stated :

On 25 February 2016, Mr Hedley sent an email to Raymond Lee & Co and Ms Ng as follows (Ex. A/825):

On 28 February 2016 by 5:00 p.m., the Plaintiff had not opened any of the Premises for trading and had not paid rent.

On 29 February 2016, Mr Hedley received an email which indicated that a prospective licensee had received a copy of the Breach Notice. He forwarded the email on to Mr Van Veenendaal noting that it had “poisoned” a deal (Ex. A/840):

There is no evidence about how the copy Breach Notice came into the possession of the prospective licensee. However, as stated earlier, the allegation that the Defendant had given it was withdrawn at the hearing.

On 29 February 2016, in an email sent to Gadens by Raymond Lee & Co (Ex. A/838), it was confirmed that a licence that had been expected to be executed by a third party, on 26 February 2016, had not been executed “due to unforeseen circumstances” but was “due to be signed tomorrow” and that “other Licences are progressing”. The email concluded:

Shortly thereafter, Gadens responded (Ex. A/838-839):

On about 29 February 2016, Ms Ng received an email from the solicitor of a potential licensee which enclosed a copy of the Breach Notice. Mr Hedley then forwarded the email referred to in the previous paragraph to Mr Van Veenendaal in which he stated:

On 1 March 2016, the Defendant served a notice of termination of lease (“the Termination Notice”) (Ex. A/848-850) that, relevantly, stated :

In the Termination Notice, the Lease referred to was one said to have been “signed by the Lessee on 2 October 2015”, the “Commencement” was said to be 14 December 2015 and the “Expiry” was said to be 13 December 2025.

On 3 March 2016, at 6:12 p.m., Mr Hedley sent an email to Ms Hughes and to Mr van Veenendaal requesting “you undo or reverse the breach”. He pointed out that the losses that the Plaintiff was likely to suffer was $1.4 million and stated that “the domino effect of this is catastrophic”: Ex. A/909.

There is evidence that whilst the Plaintiff was in negotiations with a number of different potential licensees, none of them had signed any proposed Licence Agreement sent by, or on behalf of, the Plaintiff. As Ms Ng put it, “I believe you're in negotiation at that time and you hoping that that will happen”: Tcpt, 14 May 2019, p 106(17-26).

I note that on 3 March 2016, in an email exchange between Thomas Kung Lawyers and Mr Hedley, it was said that on 1 March and 2 March 2016 respectively, two potential licensees had each signed a “licence to occupy”. On 3 March 2016, Mr Hedley forwarded that email to Ms Hughes, and copied in Mr van Veenendaal: Ex. A/909-911. It is difficult to accept that what was stated correctly records what had occurred as no such “licence[s] to occupy” formed part of the Plaintiff’s evidence relied upon at the hearing.

In her evidence, in answer to questions from the Bench, Ms Ng said (Tcpt, 14 May 2019, p 110(12-31):

On 11 May 2016, the Defendant re-let the Premises to a new tenant.

Counsel for the parties identified the following provisions of the Agreement for Lease of the Premises (Ex. A/261-304):

Neither counsel relied on Clause 16 of the Agreement for Lease (a matter I raised at the hearing): Tcpt, 15 May 2019, p 209(17-23). Clause 16 provided a process for dispute resolution, as follows:

Accordingly, as the proceedings continued, nothing more needs to be said about it.

Counsel for the parties identified the following provisions of the Lease of the Premises (Ex. A/305-374):

(It has been necessary to refer all of these Clauses as they were referred to by one or both of the parties during the course of the proceedings.)

Mr Hedley, although he did not read the Agreement for Lease or the Lease, said that he understood that there was a rent free period which commenced after the opening of the relevant restaurants and which was distinct from the fitout period in which the tenant took possession in order to fit out the Premises: Tcpt, 13 May 2019, p 31(11) – p 32(25).

According to Mr Hedley, on 22 January 2016, he had a conversation with Mr Van Veenendaal in which the latter was asserted to have said in relation to the Breach Notice that:

During the same conversation Mr Hedley says that he said:

Mr van Veenendaal is said to have responded :

It was submitted that the representations said to have been made by Mr van Veenendaal, that the Defendant would not exercise its rights under the Breach Notice, was that if the Plaintiff showed it was taking steps to open at least one, or two, food stalls, and would satisfy, or pay, the rental arrears from the deposit bond, or bank guarantee, the Defendant would not seek to rely upon the Notice. (The Plaintiff referred to these as “the January Representations”.)

Mr van Veenendaal denied that he made any of the January representations said to have been made by him.

Mr Hedley also gave evidence that on 15 February 2016, he had another meeting with Mr van Veenendaal, and Mr van Veenendaal had said:

The Plaintiff referred to these representations as “the February Representations”.

Mr van Veenendaal denied that he made any of the February representations said to have been made by him. He said that whilst he was aware of the contents of the Breach Notice, he did not have any discussion with Mr Hedley about its contents on 22 January 2016. He accepted that there were discussions on 3 February 2016 in relation to the time by which the Plaintiff was to open the Premises and make payment of the arrears listed in the breach notice: Tcpt, 14 May 2019, p 135(35) – p 136(44).

It was in relation to the January representations and the February representations that the parties were in substantial dispute.

Counsel for the Plaintiff criticised the evidence of Mr van Veenendaal and Mr Conlon, noting the similarity of one paragraph (paragraph 43) of Mr van Veenendaal’s affidavit with one paragraph (paragraph 16) of Mr Conlon’s affidavit.

I have, of course, remembered what was written by Palmer J in Macquarie Developments Pty Ltd & Anor v Forrester & Anor [2005] NSWSC 674, at [90]:

In this case, the criticism made of the two witnesses, whilst relevant, is not as critical since there are contemporaneous documents relating to the February 2016 meeting, to which reference has been made. In this regard, as was written by Keane JA (as his Honour then was) in Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136, at [34]:

I accept the following evidence given by Mr van Veenendaal about the meeting on 3 February 2016 at Tcpt, 14 May 2019, p 141(25-30):

Where, as here, part of the case is based upon what are said to be verbal representations, the well-known words of McLelland CJ (in Eq) in Watson v Foxman (2000) 49 NSWLR 315 at 318-319 must be remembered:

The seriousness of what is asserted, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are all considerations that affect the answer to the question whether the representations alleged by the Plaintiff have been proved to the reasonable satisfaction of the Court.

I am not persuaded that either the January representations or the February representations were made by Mr van Veenendaal. Most importantly, whilst there was a large amount of email correspondence passing between Mr Hedley and Mr van Veenendaal, there is not one email in evidence in which any of the representations was referred to. Mr Hedley, after initially indicating he did not recall, conceded as much in cross-examination: Tcpt, 13 May 2019, p 61(47-48), 72(34-50) – p 73(1), p 73(37-43). Nor were instructions given to the Plaintiff’s solicitors in accordance with the alleged representations: Tcpt, 13 May 2019, p 72(47) – p 73(35). Nor are there any contemporaneous notes created, which, under cross-examination, Mr Hedley also conceded: Tcpt, 13 May 2019, p 73(41) – p 74(4).

It is highly likely that had such conversations occurred, a reference to them would have been included in the email correspondence passing between Mr Hedley and Mr van Veenendaal, or they would have been the subject of the correspondence between the solicitors. In this regard, on 8 February 2016, Mr Lee sent an email to Ms D Mountney (the solicitor at Gadens) noting that “our respective clients have held discussions in relation to the matter and outstanding issues” There was no mention made of the January representations: Ex. A/712.

Importantly, in the email sent by Mr Hedley to Mr Lee and to Ms Ng and Mr Ng on 25 February 2016, again there was no reference to any representations of the type asserted. When the Court asked Mr Hedley about the failure to include a reference to any of these representations in that email, he responded, at Tcpt, 13 May 2019, p 74(26-42):

It is hard to accept the evidence of Mr Hedley if, as is submitted, the representations were intended to be relied upon, and were relied upon, by the Plaintiff and by Ms Ng. The evidence is also inconsistent with his subsequent evidence in answer to a further question from counsel for the Defendant, at Tcpt, 13 May 2019, p 75(10-14), that:

Whilst it is true that the Plaintiff endeavoured to keep the Defendant up to date with the progress made in respect of the licences, that progress does not refer simply to steps taken to open one or two shops, but required information about the negotiations being conducted with a number of potential licensees.

In relation to the February representations, what was said to be required was to show that “you will be able to have one licensee signed up soon. We just need to see that you are close”. In each case, that is not what subsequently occurred.

I am far from persuaded that the contemporaneous records of the Plaintiff keeping the Defendant updated are consistent with the January representation and February representation having been made.

If that were not enough, there are additional reasons not to accept the evidence of Mr Hedley in relation to the January representations. These include:

Furthermore, even if the January representations were made as is alleged, the simple fact is that the Plaintiff did not even open one shop, then or at any time.

In relation to the February representations, the following should be noted:

Furthermore, on one aspect of the evidence, Mr Hedley appears to have been factually in error. He gave the following evidence at Tcpt, 13 May 2019, p 64(9-12)):

Ms Ng admitted, however, that she had not been present, but that Mr Hedley had told her of the conversation alleged to have had with Mr van Veenendaal (Tcpt, 13 May 2019, p 80(7-24)). (In this evidence, it is clear that Ms Ng realised, by January 2016, that the Plaintiff was late in opening the Premises.)

Any conversation of the type suggested was also inconsistent with the email dated 1 February 2016, from Mr Hedley to her, in which he stated that “Merry is under extreme pressure by Mirvac to open these tenancies”: Ex. A/704.

I also do not accept Ms Ng’s evidence regarding the payment for furniture. In the email dated 13 January 2016 sent by Ms Hodge, to which reference has earlier been made, there is a specific reference to Ms Ng having told Ms Hodge that payment for the furniture was not made: Ex. A/665A. I do not accept her denial of this conversation (Tcpt, 14 May 2019, p 96(38) – p 97(20)).

So as to follow some of the submissions to which reference will be made, it is necessary to refer, first, to the RSL Act as it was in 2015. (The RSL Act has been amended by the Retail Shop Leases Amendment Act 2016 (Qld). As the parties did, I refer to sections of the RSL Act as they were in 2015, and in present tense, noting the provisions referred to may differ from the current Act, or may no longer exist.) The object of that Act is said to be “to promote efficiency and equity in the conduct of certain retail businesses in Queensland: s 3.

Section 11 of the RSL Act specifies when a lease is entered into. It is the earlier of either the date the lease becomes binding on the parties, or the date the lessee enters possession of the shop.

Section 18 of the RSL Act provides that if, under the Act, a duty is imposed or an entitlement is conferred on a lessor or lessee under a retail shop lease, the duty or entitlement is taken to be included in the lease.

A provision of a retail shop lease is void if it purports to exclude the application of a provision of the RSL Act that applies to the lease: s 19.

Section 46A(1) of the RSL Act provides that “a lessor must not, in connection with a retail shop lease, engage in conduct that is, in all the circumstances, unconscionable”.

In relation to the date on which the Lease commenced, the Plaintiff contended that although the Lease became valid and binding on the parties from 24 November 2015, it “was yet to commence” by 22 January 2016 (the date the Defendant issued the Breach Notice) or by 1 March 2016 (the date the Defendant terminated the Lease) because the Defendant had failed to serve the notice in accordance with Clause 4.2 of the Agreement for Lease (which was said to be a “collateral agreement”: Tcpt, 15 May 2019, p 191(39) – p 192(47). Thus, even though the Lease was binding, there was no date set for the Plaintiff to open the Premises or to commence to pay rent to the Defendant. On that basis, the Breach Notice was invalid as was the termination of the Lease by the Defendant. It followed that the termination was wrongful and constituted a repudiation of the Lease, which repudiation the Plaintiff had accepted.

Counsel submitted that there was a difference between the date when the Lease was entered into, and the “Commencement Date” of the Lease, and that the Court was required to determine the “Commencement Date” of the Lease by reference to the Agreement for Lease.

Counsel pointed out that the “Lease Commencing Date” specified in the Lease had been left blank: Ex. A/305; Ex. A/309. Whilst the Plaintiff received the Lease executed by the Defendant on 24 November 2015, that was not the “Commencement Date”, which was specifically defined in the Agreement for Lease as being “the Fitout Access Date”, which had earlier been defined as “the date specified in the notice given by the Lessor under clause 4.2”.

Compliance with Clause 4.2 was said to be mandatory – “must give to the Lessee a notice” – and the notice was required to specify certain things identified therein. Furthermore, any notice served had not been served on the Plaintiff in accordance with Clause 18.1 of the Agreement for Lease. That Clause required the notice given under the Agreement for Lease to be served in a particular way.

The notice relied upon by the Defendant was sent, by email, to Mr Hedley. The sending of the notice to Mr Hedley did not comply with the Defendant’s obligations pursuant to the Agreement for Lease with the result that there was no Lease Commencing Date.

It was then submitted that, in any event, the notice that was sent by the Defendant provided that the Fitout Access Date was 19 October 2015. It followed that pursuant to the Agreement for Lease, the “Lease Commencing Date” must also have been 19 October 2015. However, the date upon which the Defendant signed the Lease and provided it to the Plaintiff was 24 November 2015. It would “make a commercial nonsense” for the “Lease Commencing Date” to be a date prior to the Lease having become binding on the parties. If the Lease became binding on the parties on 24 November 2015, no notice was served upon the Plaintiff thereafter. (A notice was sent on 16 October 2015 but that was not a notice that complied with the Lease or Agreement for Lease.)

The Defendant, by executing the Lease agreed to be bound by its terms, one of which was clause 4.2. It did not comply with that clause by serving the required notice. Therefore, so it was submitted, although the Plaintiff and the Defendant had entered into the Lease, the trigger for determining the Lease Commencing Date was the date the notice was given by the Lessor under clause 4.2. As no notice had been given, the Lease had not commenced.

It was then submitted (possibly in advance of the likely submission from the Defendant) that the Plaintiff did not waive the requirement for notice to be given to it.

By way of further submission, counsel stated that, at least, until 16 November 2015, there were works being undertaken by the Defendant in respect of the Premises. Possession was required to be exclusive for there to have been a “Commencing date” within the meaning of the RSL Act and when the Plaintiff entered into possession on 19 October 2015, it was not granted exclusive possession, as the Defendant was still on site carrying out works that it was required to complete: Ex. A/236-238.

Furthermore, counsel for the Plaintiff said that “there is one other potential date for the lease commencement date and that is if notice - if the agreement for lease is taken to be the notice, then notice is required 14 days before the fitout access date, so the agreement for lease was provided on 24 November. In those circumstances, the fitout access date would be 8 December 2015, and that would mean that the end of the fitout period which seems to be the same as the opening date would be 2 February 2016, a date after the Breach Notice”: Tcpt, 15 May 2019, p 238(10-16).

Counsel for the Plaintiff submitted that the manner in which the parties proceeded, and how they treated their contractual arrangements, including the payments that were made by the Defendant to the Plaintiff, should be ignored: Tcpt, 15 May 2019, p 206(33) – p 207(29).

(I should mention, in passing, that there was some discussion about the meaning of the term “opening date”, but ultimately the parties agreed that it was “the date on which, or by which the Premises were to be opened and trading”: Tcpt, 15 May 2019, p 236(50) – p 237(3)).

In relation to the second issue, namely, whether the Plaintiff was in breach of the Lease as a result of the Plaintiff’s failure to open the Premises during Core Trading Hours, the Plaintiff submitted that since the Lease had not commenced, it was not required to pay rent and other occupancy charges or to open the Premises during Core Trading Hours. It followed that the Plaintiff was not in breach of the Lease, and that it was, in fact, the Defendant which had repudiated the Lease by issuing the termination notice and then by terminating it.

In oral submissions, it was put at Tcpt, 15 May 2019, p 191(31-33):

It was also submitted that even if the Plaintiff did not open the Premises during Core Trading Hours, that did not entitle the Defendant to terminate the Lease. Clause 10.4(d) of the Lease provided the Defendant’s remedy, which was damages, calculated in accordance with that Clause. When reference was made to Clause 18 (which provided that Clause 10.4 was an essential term), counsel for the Plaintiff submitted that the two Clauses were inconsistent because they provided inconsistent remedies.

By way of alternative submission, counsel accepted that having issued the Breach Notice, if the asserted breach was sufficiently serious, the Defendant could terminate the Lease. However, he submitted that, here, the breaches relied upon were not sufficiently serious.

In relation to the third issue, namely whether the Defendant was entitled to terminate the Lease for breach on 1 March 2016, the Plaintiff contended that there was an inconsistency in the Lease between Clause 10.4(d) and Clause 18.1. The former Clause provided the clear remedy for the breach of Clause 10.4(a)(1), namely a payment to the Defendant for each hour that the Premises were not opened during Core Trading Hours. Clause 18.1, on the other hand, provided that Clause 10.4 was an essential term.

The Plaintiff also contended that a breach of Clause 10.4(a)(1) ought not be held to be a fundamental breach because, when considering the factual scenario objectively, the Plaintiff had not abandoned the Premises. Only upon abandonment would the Defendant have been entitled to terminate the lease for a fundamental breach.

It followed that the notice given by the Defendant on 22 January 2016 ought to have requested the Plaintiff to open the Premises during Core Trading Hours and should have stated that the failure to do so would result in the requirement for the Plaintiff to pay the Defendant $100 for each hour that the Premises were not opened.

The Plaintiff also submitted that the requirement to pay rent and other expenses was waived by the Defendant as it had been stated that there would be a call on the Bank Guarantee, which, if such a call was made, would have required the Plaintiff to replace the Bank Guarantee within seven days.

Counsel also submitted that the Notice of Termination stated that the Lease was to be terminated “as a result of the Lessee failing to comply with the Notice to Remedy of Covenant dated 22 January 2016”, which suggested that the Defendant did not rely upon clause 18.2(b) of the Lease. As clause 18(b) of the Lease was not referred to in the Breach Notice, or the Termination Notice, the Defendant ought not to be entitled to rely upon that provision.

Counsel submitted, despite the terms of the Lease, that a clause requiring a shop to remain open during core trading hours had previously been held not to be an essential term of the Lease: Leda Commercial Properties Pty Ltd v DHK Retailers Pty Ltd (1992) 111 FLR 81. He maintained, in his opening written submissions, that:

In relation to the failure to pay rent, it was submitted that the Defendant was not entitled to terminate the Lease as the requirement to pay rent and other expenses had been waived, the Defendant stating that it would call on the Bank Guarantee which would require the Plaintiff to replace the Bank Guarantee within seven days.

In relation to the fourth issue, namely whether the Defendant’s conduct, in terminating the Lease, was unconscionable pursuant to s 46A of the RSL Act or pursuant to s 20 and/or s 21 of the the AC Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth), or misleading or deceptive conduct, the Plaintiff relied on the following provisions.

(The phrase “misleading or deceptive conduct” was used in written submissions, and throughout the course of the hearing; indeed, it was a part of one of the issues to be determined. I note that neither the Plaintiff nor Defendant relied on the specific legislative provisions pertaining to “misleading or deceptive conduct” as they appear in s 18 of the AC Law. The phrase “misleading or deceptive conduct” was left undefined. For a recent discussion of those principles, see H20 Learning Pty Ltd v Swim Loops Pty Ltd t/as Jump Swim Schools [2019] NSWDC 165.)

Section 20 of the AC Law provides:

Section 21 of the AC Law provides:

The Plaintiff relied upon the following facts as demonstrating the unconscionable conduct of the Defendant:

(A third matter (relating to the Defendant having provided a copy of the Breach notice to a third party which was a potential licensee), that had been relied upon in the Plaintiff’s outline of submissions, was abandoned during the hearing.)

Finally, on the issue of damages, counsel for the Plaintiff submitted that the Defendant, having repudiated the Lease, which repudiation the Plaintiff accepted, entitled the Plaintiff to damages.

In his closing written submissions, counsel maintained:

He added that the purpose of the Lease was for the Plaintiff to run one of the Shops itself and to licence the remaining shops. The profit it expected to make was the difference between the amount it received from each of the licensees and its fiscal obligations under the Lease. He also submitted that the Court should find that the Plaintiff “would have entered into the … licences”.

He concluded by stating, in writing:

The Defendant’s answer to the Plaintiff’s contention that although the Lease was valid and binding on the parties from 24 November 2015, it had not “commenced” by 22 January 2016 (being the date the Defendant issued the Notice of Breach) or 1 March 2016 (being the date the Defendant terminated the Lease) because no notice was issued by the Defendant in accordance with clause 4.2 of the Agreement for Lease, was that the Lease Commencement date was either (a) 19 October 2015, being the date that the Defendant formally handed over the Premises to the Plaintiff to begin the Fitout Works as defined; (b) 24 November 2015, being the date on which the Defendant executed the Lease and sent it to the Plaintiff; or (c) 14 December 2015, being the rent commencement date. It was put, however, that whilst the Lease became binding on 24 November 2015, the parties were entitled to, and did, choose a commencement date prior to that date. The “Commencement Date” chosen by them was 19 October 2015, that being the “Fitout Access Date”.

(I should mention, although not referred to by either counsel, that there is some support for the Defendant’s submission that the parties were entitled to, and did, choose a commencement date prior to that date. In the Disclosure Statement referred to, Part 3 “Works Fit Out and Refurbishment”, in the box headed “Date of handover (if different to the date the lease commences indicated at Item 5.1)”, the date stated as the “Date lease commences” at Item 5.1, and the “Date of handover” at Item 7.1, is “10/09/2015”): Ex. A/162ZCO.)

The Defendant submitted that reliance on clause 4.2 of the Agreement for Lease was misplaced because any requirement to give a notice pursuant to clause 4.2 was superseded by the Plaintiff giving the signed documents to the Defendant on 2 October 2015; by the Defendant granting access to the Premises on 19 October 2015 to enable the Plaintiff to undertake its "Fitout Works" (as defined in the Agreement for Lease); and the agreement made by the parties that the "Opening Date" (as defined in the Agreement for Lease) would be on 14 December 2015, later amended to 24 December 2015 (on and from which date the rent would commence to be payable).

The "Fitout Period", was defined in the Agreement for Lease as 8 weeks, commencing on the Fitout Access Date. Working from what was to be the Opening Date, 8 weeks previous, was 19 October 2015.

The Defendant also relied upon the undisputed fact that during the period between 2 October 2015 and 14 December 2015, the Defendant had paid $627,000 to the Plaintiff on account of the Fitout Works (as defined in the Agreement for Lease) that had to be carried out by the Plaintiff.

Counsel also submitted that if notice was required to be given by the Defendant to the Plaintiff, pursuant to clause 4.2 of the Agreement for Lease, the requirement was waived by the Plaintiff because the parties had agreed that the "Fitout Access Date" was 19 October 2015 and the last day of the "Fitout Period" was 13 December 2015. It was also submitted that the Plaintiff was estopped, by its conduct, from contending that no notice under Clause 4.2 of the Agreement for Lease had been given or that that the Lease had not commenced.

Alternatively, to the extent that notice was required, it was given by the email dated 16 October 2015, which email included the relevant information that was required by Clause 4.2. On the proper construction of Clause 4.2 of the Agreement for Lease, notice was only necessary to be given if the Fitout Access Date and the last day of the Fitout Period were not known.

The Defendant submitted that there was no inconsistency between Clauses 10.4(d) and 18.2(d) and that the two clauses operated concurrently. Clause 10.4(d) was an agreed damages clause, being a contractual term that quantified the amount of damages payable for a designated breach of the Lease, whilst Clause 18.2(d) gave the Defendant the right to terminate the Lease for breach of Clause 10.1(a) of the Lease (upon the giving of a notice to remedy required by law and the failure of the Plaintiff to comply with that notice).

The Defendant’s position was simply that it was entitled to damages for the Plaintiff’s breach of Clause 10.4(a)(i) of the Lease, and also entitled to terminate the Lease in accordance with Clause 18.2(d) of the Lease.

The Defendant submitted that none of the representations relied upon by the Plaintiff should be found to have been made. Even if they had been, reliance and causation had not been established in circumstances where the Plaintiff failed to open even one or two shops prior to 5:00 p.m. on 28 February 2016.

Moreover, even if what were described as “the January Representations” had been made (which was denied), they were overtaken by events including the agreement reached on 15 February 2016, which was contrary to those representations.

The Defendant accepted that in the event that the Court accepted that if the contentions advanced by the Plaintiff, namely that the Lease had not "commenced" and that the Defendant was not entitled to terminate the Lease for a breach of Clause 10.4(a) of the Lease, the letter dated 1 March 2016 was not a repudiation of the Lease or the Agreement for Lease because the Defendant’s termination of the Lease in accordance with what it considered its contractual right to do so did not evince an absence of readiness and willingness to perform the Lease. There was no allegation that the Defendant would not perform its obligations under the Lease in the event that its termination was held to be wrongful. Moreover, there was no suggestion that the Defendant was in breach of the Lease prior to 1 March 2016.

In relation to the claims made by the Plaintiff, the following table, and the response to each claim made by the Defendant, is instructive (with editorial corrections):

In relation to outstanding payments, the following table depicts the claims made by the Plaintiff and the Defendant’s response thereto:

In relation to its claim for damages, the Defendant claimed the amount of $252,936.03. The Plaintiff accepted that that this is the amount payable under the Cross-Claim in the event that the Cross-Claim succeeded. As has been outlined earlier in these reasons, this amount is agreed.

The Defendant, in relation to the claim against Ms Ng, submitted that pursuant to Clauses 12.1(b) and 12.1(c) of the Agreement for Lease and Clauses 20.1(b) and 20.1(c) of the Lease, Ms Ng was liable to the Defendant and that she was required to indemnify the Defendant in the amount of $252,936.03.

In relation to the Plaintiff’s claim for damages, counsel for the Defendant submitted that in the event the Court concluded that the Lease had commenced on 19 October 2015, the Defendant was entitled to terminate the Lease.

Even if this was wrong, the letter dated 1 March 2016 was not a repudiation of the Lease or the Agreement for Lease because the Defendant’s termination of the Lease in accordance with what it considered its contractual right to do so did not evince an absence of readiness and willingness to perform. Furthermore, it had not been alleged by the Plaintiff that the Defendant would not perform its obligations under the Lease in the event that its termination was held to be wrongful. Moreover, there was no suggestion that the Defendant was in breach of the Lease prior to 1 March 2016.

It was noted that the Plaintiff itself was in breach of the Lease, even if the Defendant’s purported termination on 1 March 2016 was repudiatory. The Plaintiff was not entitled to claim "damages calculated as the profit that Longjing would have earned during the duration of the Lease" (as asserted in the amended Statement of Claim, at [38]) i.e. loss of bargain damages) because a party may only recover damages for loss of bargain where that party, itself, was in a position to perform its side of the bargain. If it were otherwise, it could not sensibly be said that it was the other side's conduct which caused the loss of the profit involved in the bargain. That advantage could not have been obtained even if the other side had fulfilled its obligations: Highmist Pty Ltd v Tricare Ltd [2005] QCA 357 per Keane JA (as his Honour then was) with whom Jerrard JA and Cullinane J agreed, at [61].

Finally, counsel for the Defendant submitted that even if Longjing is entitled to claim loss of bargain damages, no damages would be awarded because Longjing has suffered no loss. This is because on its own analysis the Lease was loss-making. Longjing's alleged profit of $521,770.18 is swamped by its alleged costs of $1,970,044.30 or $1,919,367.43.

It was noted that the object of damages in this context is to put Longjing in the same position as though the Lease had been performed (i.e. loss of bargain damages is the difference between the value of the unperformed obligations of the promisor and the contract price, or money equivalent).

It was also noted that if Longjing was put in the same position as though the Lease had been performed, then it would have lost approximately $1.45 million.

In Willmott Growers Group Inc v Wilmott Forests Ltd (2013) 251 CLR 592; [2013] HCA 51, at [39]-[40], French CJ, Hayne J and Kiefel J (as her Honour then was) wrote:

Gageler J wrote at [62]:

Keane J wrote at [107]:

At common law, a breach of an essential term of a lease entitles the party who is not in breach to terminate the lease, without notice (see Walsh Investments Pty Ltd v SCK Properties Pty Ltd [2016] QCA 258; Progressive Mailing House Pty Ltd v Tabali (1985) 157 CLR 17 at 55).

Section 124 of the Property Law Act 1974 (Qld) provides:

It is clear that s 124(1) does not create a right of re-entry or forfeiture. It imposes a pre-condition on the exercise of the right that is conferred by a lease. The right is exercisable for a breach of a covenant, obligation, condition or agreement in the lease. Section 124(1) is engaged only where a right of re-entry or forfeiture is to be exercised on the basis of a breach or breaches of the lease.

In Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115, at 135; [2007] HCA 61, at [44], the plurality wrote that the term repudiation is used in different senses. Their Honours wrote:

As a matter of general law, the question when the Lease commenced requires a consideration of what was communicated between the parties by their words and their conduct, and whether, objectively assessed, that led to the conclusion that they intended to create a legally binding relationship and that they had agreed to all the terms that the law requires as essential for that purpose.

Lord Wright wrote in G Scammel & Nephew Ltd v HC and JG Ouston [1941] AC 251, at 268:

Section 11 of the RSL Act relevantly provides:

In this case, Ms Ng accepted that the Plaintiff entered into possession of the Premises on about 19 October 2015: by her affidavit made 10 April 2019, at [3], Ms Ng stated “[o]n or about 19 October 2015, the Defendant formally handed over the Property to the Plaintiff” and at [5], “[o]n or around 19 October 2015, Mirvac proceeded with the handover to Longjing for Shops 203-206 to begin the lessee’s fitout works”. By her counsel, it was accepted at Tcpt, 15 May 2019, p 186(6-12) that “on 19 October the defendant formally handed over the premises to the plaintiff to begin the lessee's fit out works”. Mr Hedley also agreed that from the middle to end of October 2015, the Plaintiff was allowed into occupation of the Premises to “do their [sic] works”: Tcpt, 13 May 2019, p 32(49) – p 33(1-2). In an email dated 16 October 2015 from Mr van Veenendaal to Mr Hedley, it was stated that “[t]he lessee’s [contractor] will take physical possession of the… Premises on Monday 19th October 2015…”: Ex. A/188. He later agreed, under cross-examination, that it was on 19 October 2015 that the Plaintiff took physical possession of the Premises: Tcpt, 13 May 2019, p 43(38-41).

I shall deal with the four issues that were identified by the parties. Naturally, what follows should be read in the context of the findings of fact identified earlier in these reasons.

Looking at the two relevant documents being the Agreement for Lease and the Lease, I am satisfied that the “Lease Commencing Date” meant the “Fitout Access Date” and that the “Fitout Access Date” meant the date on which the Plaintiff obtained access to the Premises.

In the present case, there can be no doubt that the Fitout Access Date was 19 October 2015. Ms Ng admitted so much in her affidavit and there is other evidence to which reference has been made that confirms that it was on that date the Plaintiff entered into possession of the Premises to commence the fitout works.

In addition, that date accords with the RSL Act which provides that one of the dates that a retail shop lease is entered into is the date the lessee enters into possession of the leased premises.

It is impossible to accept the submission of the Plaintiff that the Lease Commencing Date cannot be a date prior to the Lease becoming binding on the parties. That the RSL Act refers to “the earlier of the following dates” makes clear that a lessee may enter into possession before the date the lease becomes binding on the lessor and the lessee.

In addition, I have earlier referred to Ex. A/162ZCO being part of the Disclosure Statement which in Part 3 “Works Fit Out and Refurbishment” stated in the box headed “Date of handover (if different to the date the lease commences indicated at Item 5), which suggests that the parties contemplated the same possibility.

If those matters were not enough, in Whitlock v Brew (1968) 118 CLR 445, a case in which a purchaser of land agreed to lease the land to a third party upon entering into possession of the land, Kitto J wrote at 456:

In Selever v Klaskova (Supreme Court of New South Wales, Powell J, 15 March 1988, unrep) Powell J wrote, at [7]:

Recently, in Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd [2019] NSWCA 185, at [154]-[168], Basten JA held that an objective approach to contractual interpretation frees the courts from the constraining influence of reflecting upon the actual intention of the parties; and that such an approach controls factual disputes relating to pre-contractual negotiations and post-contractual conduct.

I reject the Plaintiff’s submissions that because notice in writing was not given in accordance with clause 4.2 of the Lease, that there was no “Lease Commencing Date”. The parties themselves agreed that the Plaintiff would take possession on 19 October 2015, and it did so. They also agreed that the last day of the Fitout period was 13 December 2015, which was subsequently extended. Both these matters are unarguable on the evidence. In addition, in October 2015, the Plaintiff had received $627,000 from the Defendant. It received another $220,000 in January 2016. To suggest that the Lease had not commenced does not accord with the actions of the parties themselves. It would be commercially unrealistic to conclude that no Lease had commenced in the light of the parties’ conduct.

To the extent that it is relevant, I am satisfied that the reasonable bystander would conclude, from the parties’ words and conduct, that the Lease commenced when the Plaintiff went into possession.

It does not matter that the Plaintiff was not given exclusive possession of the Premises. The purpose of it being given possession was so that it could carry out the fitout works.

One also asks, in the circumstances of this case, following agreement having been reached on 16 October 2015, what would have been achieved by the service of a notice. Clause 4.2 required the notice to specify only two things, namely, the Fitout Access Date, and the last day of the Fitout Period, both of which dates had already been agreed by the parties and were known to the Plaintiff.

In the event that I am wrong in reaching the conclusion set out above, I am satisfied that the email sent by Mr van Veenendaal to Mr Hedley on 16 October 2015, contained that information. Although that notice was not given “at least fourteen (14) [days] before the Fitout Access Date specified in it”, the parties had been negotiating terms for several months. Strict compliance with clause 4.2, therefore, was not necessary.

The submissions made by the Defendant, which I shall not repeat, and which are set out above, are far more persuasive than those of the Plaintiff on this first issue.

As stated, the Plaintiff’s arguments on this issue depend on the finding of inconsistency between Clause 10.4 and Clause 18.2(d). I am not satisfied that there is any such inconsistency. The two clauses simply deal with different aspects of a breach and operate concurrently. Clause 10.4(d) provided the method by which damages could be calculated – it was an agreed damages clause. As was submitted by the Defendant, it “is a contractual term which quantifies the amount of damages payable by a promisor for designated breaches of contract: see Carter’s Breach of Contract at [12-27]”. Clause 18.2(d) provided the Defendant with the right to terminate the Lease for breach of an essential term, one of which was Clause 10.1(a) of the Lease (upon the giving of a notice to remedy required by law and the failure of the Plaintiff to comply with that notice). The Defendant gave such a notice.

Again, the facts of the case, as set out, lead to me being unpersuaded that the Defendant was not entitled to terminate the Lease. The Plaintiff did not pay rent. It did not assert that the Defendant should call on the Bank to satisfy outstanding rent. To the extent that the Defendant stated that it would do so and require the Plaintiff to replace the Bank Guarantee, or the proportion of the Bank Guarantee recovered by the Defendant, the statement was made in the context of the Plaintiff not complying with the Breach Notice, which required the Plaintiff to pay to the Defendant the amount outstanding. The statement did not relieve the Plaintiff of the obligation to pay rent.

Furthermore, the failure to open the Premises during “Core Trading Hours” had continued from 24 December 2015 until 22 January 2016. It continued then until 1 March 2016. Even then, there was no specific indication when trading would commence. All that the Plaintiff seemed to be doing was making suggestions about when licenses might be signed, not when the Premises would be open for business during core trading hours. It follows that the answer to the question is Yes.

I have earlier referred to the evidence of the representations and explained the reasons why I do not accept the evidence regarding the January representations or the February representations. It was these representations that formed the cornerstone of the Plaintiff’s claim of unconscionable conduct and misleading or deceptive conduct.

In my view, there was no such conduct otherwise. The Defendant’s representatives asked the Plaintiff’s representative to advise the period of time the Plaintiff required to remedy the breaches. The Plaintiff indicated 14 days, initially from 3 February 2016. The agreement reached on 16 February 2016 provided for 12 more days from that date, until 28 February 2016. Even then, an additional day elapsed before, on 1 March 2016, the notice of termination was given.

I am simply not satisfied that any conduct by the Defendant, as alleged by the Plaintiff, was misleading or deceptive conduct or was unconscionable conduct.

The quantum of the Defendant’s damages, in the circumstances, was agreed in the sum of $252,936.03. There should be judgment for the Defendant against the Plaintiff for that amount on the Cross-Claim.

There was no suggestion that Ms Ng, as guarantor of the Plaintiff’s obligations, would not be liable.

In light of the conclusions, it is unnecessary to deal with the Plaintiff’s claim for damages as the Statement of Claim will be dismissed.

Although there were no submissions made on costs, there is no reason why the usual costs order should not be made. Also, an order should be made dealing with the exhibits.

In the circumstances, the Court: