Awad v Bucasia Pty Ltd

[2003] NSWADT 247

CITATION:	Awad v Bucasia Pty Ltd [2003] NSWADT 247
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Regaie Gaber Ekladious Awad trading as Eastwood Night & Day Pharmacy RESPONDENT Bucasia Pty Ltd
FILE NUMBER:	035056, 035085
HEARING DATES:	30/09/03
SUBMISSIONS CLOSED:	10/30/2003
DATE OF DECISION:	11/18/2003
BEFORE:	Chesterman M - ADCJ (Deputy President); Fagg N - Member; Griffiths G - Member
APPLICATION:	Claim for declaration of rights, obligations and liabilities under a lease
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:	Commonwealth v Verwayen (1990) 170 CLR 394 Jones v Dunkel (1959) 101 CLR 298 Leads Plus Pty Ltd v Kowho Intercontinental Pty Ltd [2000] NSWSC 459 Wallville Pty Ltd v Liristis Holdings Pty Ltd [2001] NSWSC 894
REPRESENTATION:	APPLICANT R Colquhoun, barrister RESPONDENT J Loofs, barrister
ORDERS:	1 Application by Applicant Lessee dismissed; 2 In the absence of agreement between them, each of the parties is to file written submissions on the matter of costs (including the costs of the Lessee's application for an urgent interim order, heard on 27 October 2003) within 28 days of these reasons

1 In this case, the Applicant Lessee, Mr Ragaie Awad (‘the Lessee’) sought an order that the Respondent Lessor, Bucasia Pty Ltd (‘the Lessor’) grant to him a lease of three years, starting from 1 July 2003, of three shops, constituting a pharmacy, and an office (‘the premises’) at 572-580 Blaxland Road, Eastwood (‘the building’). The ground on which he made this claim was that he had validly exercised an option of renewal for three years of a lease of the premises (‘the Lease’) which expired on 30 June 2003. In the alternative, the Lessee sought an award of damages against the Lessor on account of its refusal to grant him a renewed lease.

2 It was common ground that the Lease was a retail shop lease governed by the Retail Leases Act 1994 (‘the Act’). The Applicant maintained both a retail tenancy claim, under s 71 of the Act, and an unconscionable conduct claim under s 71A.

3 The Lessor filed a cross application, which was, in substance, a defence to the Lessee’s application.

4 The question of primary importance was a factual one. It was whether the Applicant complied with express requirements, set out in clause 20.1 of the Lease, that any notice of intention to exercise the option to renew it must be in writing and must be received by the lessor not less than six months before its expiry – that is, on or before 31 December 2002.

5 The Lessee alleged that he complied with these requirements by sending such a notice by fax to agents of the Lessor on 18 December 2002, and by post to the same agents on or shortly after this date. The Lessor alleged that no such notice was sent or received until January 2003.

6 The Lessee also claimed that, if the option was not shown to have been exercised as so alleged, the conduct of the Lessor at the time was such that (a) it should be estopped from denying this or (b) the Lessee should be excused from strict compliance with clause 20.1. It was in this context that he claimed the Lessor’s conduct to have been unconscionable.

7 At the hearing of this case on 30 September 2003, the written and oral evidence was adduced. Subsequently, counsel provided us with written submissions.

The factual evidence

8 The Lease was initially concluded in June 1999 between Ms Audrey Dodd and Mr Kenneth Macrae, then owners of the building, and the Lessee. It was expressed to commence on 1 July 1999 and was for a term of four years. According to the Lessee, he did not actually take possession of the premises until 6 July 1999.

9 The Lessee carried on his pharmacy business in the premises. Its opening hours were 8.30 a.m. until midnight, every day of the year.

10 During March 2002, the Lessee became aware that the owners were contemplating a sale of the building. To protect his right under the Lease to exercise an option to purchase it, he lodged a caveat. Subsequently, he withdrew the caveat, as he could not raise the finance required for a deposit within the time specified. Once he had done this, a contract for the sale of the building by the owners to the Lessor became unconditional.

11 During August or September 2002, Mr Live Cicchini, a director of the Lessor, met the Lessee at Mr Cicchini’s home in Midson Road, Eastwood. They discussed proposals of the Lessor for development of the building. The Lessee stated, but Mr Cicchini denied, that at this meeting (a) he told Mr Cicchini that he intended to exercise his option to renew the Lease for three years from 30 June 2003; and (b) Mr Cicchini replied that the Lessor had obligations to him only until June 2003.

12 According to the Lessee, during the last week of October 2002, he had a conversation at the premises with Mr Anthony Jasprizza, of Anthony Trees First National Real Estate (‘Anthony Trees’). He said that he asked Mr Jasprizza whether the settlement of the sale to the Lessor was to go ahead as scheduled on 31 October. When informed that settlement would be ‘on time’, he said that he would be exercising his option to renew until June2006. Mr Jasprizza said that Mr Cicchini and Mr Joe D’Andreti (who was the other director of the Lessee) were ‘nice people’ and that after the settlement a meeting would be organised to discuss the future development. There was then a brief discussion about the location of a sign to be erected on the building to advertise the new development of units for sale.

13 Mr Jasprizza gave a different account of this conversation. He said that towards the end of October 2002 he left his card at the premises because he wanted to discuss the proposed erection of the sign with the Lessee. A day or two later, the Lessee rang him. The only topic of their short discussion, he said, was the location of the sign.

14 By letter dated 1 November 2002, Hunt & Hunt, Lawyers, informed the Lessee that they acted for the Lessor, which had recently acquired the premises. They enclosed a Notice of Attornment dated 31 October 2002 from themselves, in the capacity of solicitors for the former owners, to the Lessee in respect of future payment of rent. In the letter of 1 November, they indicated that the rent should in future be paid to the Lessor’s ‘appointed property manager, Mr Anthony Jasprizza of Anthony Trees First National Real Estate, 188 Rowe Street, Eastwood (phone [phone])’. They also required that a bank guarantee previously given by the Lessee to the former owners should be reissued with the Lessor named as beneficiary.

15 The Lessee said that neither then nor subsequently was he advised of the address of the Lessor. It appears that, although he had been instructed to pay rent to Anthony Trees, he made arrangements to make payments by direct transfer from his own bank account to an account in the Lessor’s name.

16 According to both Mr Cicchini and Mr D’Andreti, at a meeting between them and Mr Jasprizza on 6 November 2002, Mr Cicchini instructed Mr Jasprizza to advise him immediately if the Lessee contacted Anthony Trees about exercise of the option, or about any other matter relating to the Lease.

17 The Lessee testified that on 18 December 2002, he sent a one-page letter (‘the December letter’) by fax from the office of his pharmacy to Anthony Trees. A copy of the headings and the text of this letter, comprising three paragraphs, was annexed to his principal affidavit.

18 In the top right-hand corner, the December letter has what appears to be letterhead for the Lessee’s business, Eastwood N/D Pharmacy. This includes its address, phone number (02 98047818) and fax number (02 9804 7818). The date is set out in large print as 18 December 2002. The letter is addressed to Anthony Trees and sets out the address, phone number and fax number (98046486) of this business.

19 In the opening paragraph, the text of the December letter refers to the following matters: (a) the Lessee’s tenancy of the premises, (b) his telephone conversation with Anthony Trees at the end of October 2002, being the time of settlement of the sale of the building, (c) the letter dated 1 November 2002 that he had received from Hunt & Hunt, (d) his having organised payment of the rent direct to the Lessor’s account, (e) his having never been advised of the Lessor’s registered address for service and (f) his having been advised that Anthony Trees was the property manager for the premises.

20 The second and final paragraphs read as follows:

I am writing to you today to confirm my exercise of the option of the registered lease on the premises that I occupy, the option of the lease start on 5th of July 2003 for a period of three years till 5th of July 2006.

I appreciate your early attention to this matter.

21 The Lessee said that he himself sent the December letter by fax on a machine called a ‘Brother MFC-9180’, which he had purchased in August 2002. A copy of the owner’s manual was in evidence. It stated that a Transmission Verification Report (‘TVR’) could be obtained for any fax transmitted if the appropriate settings were entered, and that the TVR would contain the name or fax number of the receiving party, the time and date of transmission and a symbol indicating whether the transmission was successful. The manual also contained instructions for setting the date and the time, so that they would be printed on every fax sent, and also on the TVR.

22 The Lessee stated that he had followed these instructions when first setting up the machine in his office. He said that he also knew how to change the time setting, so as to be able, for instance, to adjust it at the commencement or the end of daylight saving.

23 At the top of the copy of the December letter that is annexed to the Lessee’s affidavit, there appears the heading ‘Transmission Verification Report’, within a printed rectangle. The Lessee said that the fax machine ‘spat it out’ after the letter had been faxed, as this was what the default setting caused to happen.

24 Below the heading of the TVR, on the right hand side, are the following entries:-

TIME : 10/12/2002 17:24

NAME : EASTWOOD N/D PHCY

FAX : [phone]

TEL : [phone]

SER. : BROF2J432285

25 Further below, within a larger printed rectangle and towards the left of the page, there are entries as follows:-

DATE, TIME 18/12 17:24

FAX NO. /NAME 98046486

DURATION 00:00:10

PAGE(S) 01

RESULT OK

MODE ECM

26 The printing of the heading and these two sets of entries appears to be of the size and style of notifications commonly seen at the top of faxed messages.

27 The Lessee testified that after closing down the pharmacy around midnight on the same day, 18 December 2002, he also posted a copy of the December letter to Anthony Trees. He himself addressed the envelope and affixed a postage stamp.

28 The evidence on this matter given on behalf of the Lessor was uniformly to the effect that neither a faxed nor a posted copy of the December letter was received by Anthony Trees. Mr Jasprizza said that he had not received it, in either form, at the agency before 31 December 2002. There was, he said, only one fax machine in the office, situated directly outside his office. He said also that he ‘investigated with the staff and employees of the Agency’ and searched relevant parts of the files, without finding the letter in either form.

29 Five employees of Anthony Trees at the relevant branch, whose duties included handling incoming faxes and letters, deposed that they had not seen the December letter on or before 31 December 2002 and that they had not ‘sighted’ it after conducting file searches. Mr Jasprizza indicated in cross-examination, however, that in December 2002 there were two further employees, who had since left the agency.

30 Ms Megan Foster, an administrative officer of Telstra, searched or caused to be searched Telstra’s records relating to calls and fax transmissions made from all the telephone lines of the Lessee (who had six lines, including the line numbered 9804 7818, shown on the TVR) and calls and fax transmissions made to the line of Anthony Trees shown on the TVR (9804 6846). She deposed that there was no entry in either set of records showing transmission of a fax from any of the Lessee’s lines to this line of Anthony Trees during the period from 16 to 20 December 2002.

31 Mr Cicchini and Mr D’Andreti said that the first time that they saw the December letter was after it came as an attachment to a letter dated 20 May 2003 from the Lessee’s solicitors, Williams Boxsall Georgas, Lawyers, to the Lessor. In the copies of the December letter annexed to their affidavits, there is no TVR at the top. Mr Jasprizza said that he did not become aware of the letter until on 2 June 2003 he received a copy of it from the Lessor.

32 In response to a question from a member of the Tribunal Panel, the Lessee said that between 18 and 25 December 2002, having had no response from Anthony Trees, he rang its office and asked to speak to Mr Jasprizza. When told that Mr Jasprizza was not available, he asked for a note of his call to be passed on. He said that at this time he knew that the time prescribed for exercise of the option to renew expired at the end of December and he was ‘worried’ about the possibility that he might not have validly exercised it.

33 The Lessee also testified that during December 2002 he tried without success to contact Mr D’Andreti, and that he left telephone messages for Mr Cicchini. These calls were not returned. The Lessee found out in February 2003 that Mr Cicchini had moved out of his home in Midson Road during November 2002. Mr Cicchini confirmed this, saying that he had not told the Lessee of his change of address but had arranged for any mail sent to Midson Road to be forwarded to his new address.

34 On 8 January 2003, at the Lessee’s request, Mr Con Georgas, of Williams Boxsell Georgas, wrote in the following terms to Mr Cicchini, at the Midson Road address:-

We advise that we act for Ragaie Awad the Lessee of [the premises]. We formally give notice that our client exercises the option to the lease. Kindly forward the lease to our offices at your earliest opportunity.

35 On 17 January 2003, Mr Georgas wrote to Anthony Trees, noting that the Lessee had advised them that Anthony Trees was the managing agent of the premises and enclosing a copy of the letter dated 8 January.

36 In a letter dated 5 February 2003 to Williams Boxsall Georgas, Hunt & Hunt replied on the Lessor’s behalf to the letter of 8 January to Mr Cicchini. They noted that this letter was ‘ not correctly addressed to the lessor’, that it was ‘served after the expiry date of the period for exercise of option’ and that, under the Lease, a notice of exercise of option had to be given before 31 December 2002. They indicated that they were awaiting instructions from their client as to whether it was prepared to grant a new lease to the Lessee, but added that any new lease ‘would not arise out of the lease which is presently due to expire on 30 June 2003’.

37 Between February and May 2003, there were subsequent negotiations regarding a possible new lease between the parties, during which the Lessee maintained that he had exercised the option and was entitled to renewal on the same terms as before. The principal objection that he took to the Lessor’s proposals was that insufficient space was being offered to him. These negotiations broke down, prompting the present litigation. During a number of conversations with Mr Cicchini during this period, the Lessee did not claim to have mentioned the December letter to him.

38 On 20 May 2003, Mr Georgas sent a letter to the Lessor, with a copy to Hunt & Hunt. After stating that his firm acted for the Lessee, he wrote:

Our client forwarded to us a copy of a letter dated 18 December 2002 in which he gave notice of exercise of option. It is our view that the exercise of the option was valid.

39 The letter concluded by threatening legal action if there was no reply within seven days.

The key question: whether the December letter was received by Anthony Trees

40 Mr Loofs, counsel for the Lessor, conceded on his client’s behalf that Anthony Trees was at the material time duly authorised to receive from the Lessee any notice of exercise of the option to renew the Lease.

41 Mr Loofs submitted that the postal acceptance rule was not applicable in these circumstances and that, leaving aside considerations of estoppel and unconscionable conduct, the Lessee was therefore obliged to prove that Anthony Trees actually received such a notice. In support, he cited the decision of Bryson J in Wallville Pty Ltd v Liristis Holdings Pty Ltd [2001] NSWSC 894.

42 Mr Colquhoun did not appear to contest this proposition, which in our view was in any event put beyond doubt by clause 20.1(b) of the Lease. This stipulated, as a condition of the Lessor being required to enter into a further lease, not just that the Lessee should serve notice in writing, but that ‘the Lessor receives the notice not less than six (6) months prior to the last day of the Term’ of the Lease.

43 Counsel on both sides presented vigorous submissions on the primary question therefore arising in the case, namely, whether the December letter had been sent by the Lessee, as he claimed, and had been received by Anthony Trees before 31 December 2002, either by way of fax transmission or in the mail.

44 In our judgment, the Lessee has failed to establish this crucial fact. We will now outline our reasons, which derive in part from counsel’s submissions and in part from our own perceptions of the evidence.

45 As to the alleged transmission by fax, the evidence of a technical nature was contradictory, and unfortunately provided little assistance.

46 The technical evidence relied on by Lessee comprised (a) a copy of the TVR, situated above the letterhead and the text of the December letter and (b) the relevant sections of the owner’s manual for his fax machine. On its face, this evidence appeared to establish that the letter was sent, as alleged, at 5.24 p.m. on 18 December 2002 from the fax machine of the Lessee to the fax machine of Anthony Trees. The Lessee agreed in cross-examination that he knew how to alter the time setting on his machine. The owner’s manual indicated that it was possible also to alter the date setting. But there was no evidence in the manual, or from any other source, that it would be possible to cause the TVR to print out a telephone number for the recipient fax machine that differed from the number of the actual recipient. There was also no evidence of actual manipulation of the fax machine.

47 We note that no document purporting to be the original of the TVR was tendered. It would have remained in the Lessee’s possession. But as he was not cross-examined, nor was any submission made, regarding this aspect of his evidence, we do not attach much weight to it.

48 The technical evidence relied on by Lessor comprised the transmission records produced by Telstra, coupled with the affidavit by Ms Foster indicating that appropriate searches had been conducted and that the records were complete. On its face, this evidence appeared to rebut the Lessee’s claim to have sent the December letter. Mr Colquhoun disputed this, contending that it was ‘common knowledge that Telstra records are not infrequently inaccurate or incomplete’. But he did not cross-examine Ms Foster and he adduced no expert evidence to substantiate this assertion.

49 Since the technical evidence was equivocal, we have considered closely the credibility of the Lessee’s testimony in support of his claim to have composed and faxed the December letter on 18 December 2002 and posted it on that day or the next day. We have concluded that the reliability of this testimony is open to serious doubt, for reasons that we will now outline.

50 First, before the Lessee’s oral testimony began, his counsel, Mr Colquhoun, tendered a ‘post book’ that was allegedly maintained in his office during December 2002. Mr Loofs initially objected to the tender, then after inspecting the book withdrew his objection. He added that he would be calling evidence to show that in December 2002 the cost of a stamp to send an ordinary letter to a destination within Australia was 45c, and that at the end of that month it rose to 50c. Mr Colquhoun then withdrew the tender.

51 Later, in cross-examining the Lessee, Mr Loofs questioned him about the recording of details of letters posted and the cost of stamps used in his office at that time. In a series of confused and unconvincing replies, he appeared to say that there was indeed a system of accounts of expenditure, including a ‘post book’, and that staff were instructed to round up to 50c any amount of 47c paid for an item. When asked whether they rounded up amounts of 45c to 50c, he replied that they did not.

52 We are bound to interpret this series of events as indicating that the Lessee did seek to tender a ‘post book’ purporting to record letters posted during December 2002, including the December letter, but that the tender was withdrawn because he realised that the book incorrectly recorded the cost of stamps at that time. If the tender had been pressed and the book admitted into evidence, we would no doubt have been asked by Mr Loofs to infer that it, or at least the relevant entry in it, was a fabrication. We will not make a formal finding to this effect, but in our view the episode raises significant doubts about the credibility of the Lessee’s claim to have posted the December letter.

53 Secondly, after the Lessee, in response to a question by a member of the Tribunal Panel, alleged that he had rung Anthony Trees between 18 and 25 December 2002 and left a message for Mr Jasprizza, to which he received no reply, Mr Loofs asked him why he had not mentioned this significant event in his affidavit evidence. His reply, which we found unconvincing, was that he had told his solicitors what had happened during that time and left it to them to decide what should be included in his affidavits.

54 Thirdly, although the Lessee admitted to realising at the time that if he wanted to exercise the option he had to give written notice before the end of 2002, and admitted also to being ‘worried’ that the December letter might not have been received, he could not explain convincingly why he did not simply deliver a copy of it to the office of Anthony Trees. The only reason that he gave was that, due to the long hours that he worked and the pressure of pre-Christmas trading, this had not been feasible, as he would have had to walk a ‘fair distance’. In fact, the premises that he leased and the office of Anthony Trees had frontages on the same street (Rowe Street, Eastwood), with street numbers 1 and 188 respectively. There was no evidence as to the actual distance between them.

55 Fourthly, the two letters written during January 2003 by the Lessee’s solicitor, Mr Con Georgas, to Mr Cicchini and to Anthony Trees respectively do not mention the December letter, but simply purport to exercise the option of renewal on their client’s behalf. The Lessee did not offer any explanation of this, and Mr Loofs refrained from cross-examining him about it. Neither Mr Georgas nor any other partner or employee of Williams Boxsell Georgas gave evidence in the proceedings and no explanation for their not doing so was offered. Mr Loofs submitted that, pursuant to Jones v Dunkel (1959) 101 CLR 298, we should draw the inference that if Mr Georgas had been called, he would not have provided any further explanation for this feature of the letters that he sent.

56 It is of course possible that the Lessee sent the December letter, but failed to tell Mr Georgas about it. Alternatively, it is possible that Mr Georgas was told about it, but mistakenly believed that the time for exercising the option had not yet expired, and therefore did not mention the December letter in the two letters that he wrote. But neither of these explanations is at all probable. A more likely explanation is that, as the Lessor contends, the December letter did not exist at this stage.

57 Fifth and finally, when on 5 February 2003 Hunt & Hunt, on the Lessor’s behalf, wrote to Mr Georgas disputing the effectiveness of his letter of 8 January purporting to exercise the option, neither the Lessee – according to his own evidence, as well as that of Mr Cicchini and Mr D’Andreti – nor Mr Georgas made any mention of the December letter, either by way of immediate reply or indeed during the next three months. The Lessee did not mention it in his negotiations with Mr Cicchini, though he continued to claim that he had validly exercised the option. Mr Georgas did not respond to Hunt & Hunt’s letter until 20 May 2003. In his letter of that date, for the first time, he relied on the December letter. His first reference to it was as follows: ‘Our client forwarded to us a copy of a letter dated 18 December 2002…’. There was no indication as to when this occurred.

58 Mr Colquhoun submitted that the evidence from Mr Jasprizza and the other staff of Anthony Trees fell well short of establishing that the December letter was not received at its office, either by fax or in the mail. He pointed out that two members of the staff in December 2002 who might have come across it had not given evidence and that it was quite feasible that the letter, being only one page in length, had got mixed up with other papers or accidentally thrown away.

59 We agree with this submission. But because it goes no further than casting doubt on the capacity of Anthony Trees to account for every document received by its office at the relevant time, it does not assist the Lessee if, as we consider to be the case, he has not established that the crucial document in this case was in fact sent.

60 For the foregoing reasons, which provide significant grounds for doubting the reliability of the Lessee’s testimony, we find that he has not proved that the December letter was either faxed or posted to Anthony Trees before the end of December 2002. As this is the only basis on which he claims to have exercised the option to renew in accordance with clause 20.1 of the Lease, he has failed to prove that he did in fact duly exercise it.

The claims based on estoppel and unconscionability

61 In arguing alternative grounds of liability based on estoppel and unconscionable conduct, Mr Colquhoun relied particularly on five features of the dealings between the parties. These were as follows:

62 First, during the final months of 2002, the Lessee made the Lessor well aware of his desire to exercise the option to renew, and of the value of the lease to him.

63 Secondly, the Lessor never advised the Lessee clearly and unambiguously regarding its own address for service of notices under the Lease or the identity of any agent to whom such notices should be sent. Indeed, it was only at the hearing that the Lessor conceded that Anthony Trees had the Lessor’s authority to receive them.

64 Thirdly, the Lessor intentionally made it difficult for the Lessee to communicate any notice of exercise of the option. An example was that Mr Cicchini failed to return the telephone calls that the Lessee made to his home after sending the December letter.

65 Fourthly, Mr Georgas’s letter of 8 January 2003 was sent only a few days after the time for exercising the option had expired. Indeed, if the date of expiry was taken to be 5 January 2003, on the ground that the Lessee did not enter into possession of the premises until 6 January 1999, he missed the deadline by a couple of days only.

66 Fifth and finally, this minor error on the Lessee’s part did not harm the Lessor in any way.

67 Mr Colquhoun acknowledged that s 62B(6) of the Act expressly stated that unconscionable conduct is not committed merely by refusal on a lessor’s part to renew a lease or issue a new lease. But he argued that the conduct of the Lessor in this case went well beyond refusing to renew a lease. He submitted that the Lessor, in refusing to grant a renewed lease, had departed from an assumption that had been adopted by the Lessee as a basis of the relationship between them and through so doing had caused detriment to the Lessee. Relying on principles set out authoritatively by Deane J in the High Court in Commonwealth v Verwayen (1990) 170 CLR 394 at 440-441, he argued that such conduct was unconscionable or ‘unconscientious’ in the eyes of the law, and formed a sound basis for a ruling that the Lessor should be estopped from denying that the option had been validly exercised.

68 The starting-point of Mr Loofs’ response was the proposition that there was no basis for characterising as ‘unfair’ the strict contractual requirements in clause 20.1 of the Lease for exercising the option. This was because in agreeing to those requirements the parties had, in effect, contracted to make time of the essence. In support of this proposition, he cited the judgment of Young J in Leads Plus Pty Ltd v Kowho Intercontinental Pty Ltd [2000] NSWSC 459. In that case, this proposition was in fact conceded by counsel for the lessee, not formally determined. The clause in issue there was in similar terms to clause 20.1 in this case (see the judgment at [2] and [18]). We have little doubt that the proposition is correct.

69 In reply to the more specific points made by Mr Colquhoun, Mr Loofs submitted (a) that the Lessor had done nothing to induce the Lessee to believe that he need not adhere strictly to the requirements of the Lease regarding exercise of the option; (b) that if the Lessee had had any doubt about the authority of Anthony Trees to receive his notice of exercise of the option, he could easily have made contact with Mr Jasprizza to satisfy himself of this; and (c) that there was no evidence at all to suggest that Mr Cicchini, or anyone else on the Lessor’s behalf, had done anything to impede communication of this notice.

70 In relation to the first of these matters, Mr Loofs pointed out that, according to the Lessee’s own evidence, Mr Cicchini told him, at their first meeting in August or September 2002, that as far as the Lessor was concerned the Lease came to an end in June 2003. Moreover, the Lessee conceded in cross- examination that during December 2002 he was well aware of the need to give notice of exercise before the end of the month.

71 In general terms, we agree with the arguments put by Mr Loofs and in consequence must dismiss the Lessee’s claim under these two alternative grounds.

72 So far as estoppel is concerned, we cannot discern any statement or conduct by any person on behalf of the Lessor that might have constituted a representation capable of inducing the Lessee – let alone actually inducing him – into believing that, if he wished to renew the Lease, he could dispense with any of the requirements of clause 20.1. A representation by the party allegedly estopped is essential to a claim based on estoppel.

73 So far as the claim of unconscionable conduct is concerned, we have reviewed the statutory ‘definition’ of unconscionable conduct by a lessor in s 62B(3) (it is actually a list of relevant factors for consideration by the Tribunal, rather than a definition). Nothing contained in it is reflected to any significant degree in relevant conduct of the Lessor. We do not think, for instance, that the relevant strengths of the bargaining positions of the parties (see subparagraph (a)) played a role in this case, or that there was undue influence or pressure or unfair tactics by the Lessor (see subparagraph (d)) or that the Lessor’s failure to disclose to the Lessee (if it did so fail) that it would not accept a late notice of exercise of the option was ‘unreasonable’ (see subparagraph (j)).

74 We note finally that in Leads Plus Pty Ltd v Kowho Intercontinental Pty Ltd, Young J was not prepared to treat as ‘unconscionable’, in the broader sense of the term established by general equitable principles, the conduct of a lessor who refused to accept a notice of exercise of an option to renew a lease in circumstances broadly similar to those of the present case. Here the notice of renewal was communicated only one day after the permitted date. The lateness was attributable to negligence on the part of the lessee.

75 We take the underlying principle in that decision to be that it is not ‘unconscionable’ for a lessor to insist on strict and timely compliance with a provision in the lease setting out the requirements for the exercise of an option to renew. On our view of the present case, this is what the Lessor has done.

Conclusion

76 The Lessee’s application must be dismissed. We do not think it necessary to grant formally the relief sought by the Lessor in its cross application.

77 In the absence of agreement between them, each of the parties is to file written submissions on the matter of costs within 28 days of the date of these reasons. These should incorporate the submissions already made orally, and any additional submissions sought now to be made, with respect to the costs of the Lessee’s application for an urgent interim order, heard on 27 October 2003.