Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd & Anor

[2015] HCATrans 335

[2015] HCATrans 335

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M61 of 2015

B e t w e e n -

CROWN MELBOURNE LIMITED ACN 006 973 262

Applicant

and

COSMOPOLITAN HOTEL (VIC) PTY LTD ACN 115 145 198

First Respondent

FISH AND COMPANY (VIC) PTY LTD ACN 115 145 134

Second Respondent

Application for special leave to appeal

KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 DECEMBER 2015, AT 10.54 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR N.D. HOPKINS, QC, for the applicant.  (instructed by Minter Ellison Lawyers)

MR M.R. PEARCE, SC:   If the Court pleases, I appear with my learned friend, MR R.S. HAY, QC, for the respondents.  (instructed by Mills Oakley Lawyers)

KEANE J:   Yes, Mr Walker.

MR WALKER:   Your Honours, may I take you at the very outset to the conclusion of the leading judgment in the Court of Appeal, application book page 232, paragraph 200:

The issue of what the representation was has been determined.  Crown has resiled.  The issue to be determined on remittal is what equitable relief, if any –

I emphasise that last phrase –

if any, should be granted.

And then turn the page to 234, paragraph 204:

to require Crown to provide a renewed lease would be to do more than is necessary to avoid the detriment.  [The Tribunal] failed to consider the least that could be done for the tenants consistently with the representation that they would be looked after at renewal . . . It is not for this Court to determine [the detriment].  It would not require the entry into a renewed lease, the right to which was expressly refused in the negotiations for the original lease.  It would not involve some surrogate for such a renewed lease such as the profits that might have been earned under a renewed lease.

And then over the page, page 236, line 57, Order 3 of the orders made.  There is an order:

that the proceedings be remitted to the Victorian Civil and Administrative Tribunal for determination of what equitable relief, if any, should be granted in respect of the appellants’ estoppel claim in accordance with the reasons of the Court ‑

which is why I have started with those conclusions and the reasons of the Court.  Now, your Honours, that which is really beyond dispute, clear from that reasoning, summoned up by the order in order to be observed by the Tribunal, is that the case mounted throughout against us in relation to a further lease ‑ and your Honours will recall as the written submissions point out that at the heel of the hunt the decidedly uncolloquial understanding was inserted mutatis mutandis ‑ that that has comprehensively failed in the Court of Appeal.

Now, we say that Justice Hargrave was, with great respect, correct, orthodox and in accordance with principle in this Court in determining in effect upon rejecting that representation and further rejecting the reasonableness of any reliance on such a thing, that that is the end of the case.  We are facing a hearing in the Tribunal, the nature of which, the decidedly problematic nature of which, even mysterious nature of which, is thrown up by the written argument against us in this Court to defeat a grant of special leave, because as we have pointed out in our written reply, in substance, an explanation for the difficulties I have already referred to, that is, the claim mounted, considered in the Court of Appeal and in fact rejected resoundingly, there is to be essayed apparently in the Tribunal questions which go to what I am going to call the merit of the estoppel completely, by which I mean has a state of affairs been created in the eyes of the law ‑ if necessary one adds sitting in equity though that may be anachronistic ‑ but has there been a situation created which calls for something contrary to the situation, strictly at law.  The situation strictly at law, of course, there was no lease, no agreement for lease and no grant of lease.  That is the purpose of the estoppel.

Your Honours will note that so far I have not gone to the categorical epithets, either promissory or proprietary, I will come to that issue, but in the Tribunal highlighting, in our submission, the unsatisfactory nature of the reasoning and the conclusions in the Court of Appeal, apparently according to the respondent, there will be further canvassing of what ‑ and then to quote the Court of Appeal ‑ if any, response should be made by the law, by the court, by the Tribunal, under the heading of estoppel, and we are told cannot be a new lease and cannot be tantamount to a new lease, cannot be a financial reflex of a new lease, that was not granted.

Now, in our submission, that readily leads immediately to two other problems all related, which add to the merits of this case for a grant of special leave.  The first is that doctrinal category question which has been addressed in the written submissions, the respondents’ answer to our complaint that a requirement of promissory estoppel, namely, sufficient clarity, that is, no intolerable ambiguity of representation.  After all, promissory means it is a way of outflanking the requirements of contract. 

They answer that by saying, but this was not a promissory estoppel case, this was a proprietary estoppel case and doctrinally there is a different approach taken, but be it assumed that is so, with respect, it probably is.  However, as we point out in our reply, it is emphatically wrong, not the subject of argument, a complication of which might reduce the attractiveness of this case for special leave.  It is not capable of being disputed that this was run and decided at both appellate levels below, as a promissory estoppel case.

Now, that really puts paid to that answer but there is another reason to dispose of that answer about proprietary estoppel and it is this.  If it be proprietary estoppel, then we must be supposing some estate or interest.  There is only one estate or interest.  It is a lease and that is the case, of course, that was fully considered and comprehensively dismissed.  Now, we lead to, as it were, a separate – again related – point of doctrine about promissory estoppel which, in our submission, makes this an appropriate case because of a divergence now shown, given this Court of Appeal set of reasons, between the Court of Appeal here and the Court of Appeal in Perth, that is, in our submission, a paradigm case for the grant of special leave. 

It is, to paraphrase Justice Hodgson, in what I will call the obiter in the New South Wales Court of Appeal, it is this grey area idea, against what has hitherto been clearly accepted principle that there has to be this sufficient clarity or a lack of intolerable ambiguity, in the representation upon which a promissory estoppel may be founded.  That is well established in this Court by statements that we would not be seeking to revisit but the special leave is required, in our submission, because a qualification by reference to what I will call this grey area concept, has been attempted by the Victorian Court of Appeal in a way which is quite contrary to the way in which the Western Australia Court of Appeal regards the matter.

Now, it may be that there is room for what I will call a grey area case, where the facts support it.  By a grey area I mean Justice Hodgson’s image of what might be called a continuum rather than a point of possible meanings in the representation in question, and as his Honour pointed out, it may be that the person responsible for such a representation will not be able to avoid remedies being granted if what he, she or it said lent itself reasonably to be interpreted on a continuum and the plaintiff did in fact rely on what in the example Justice Hodgson was considering was the lower end, the less adverse end for the representor, of that grey area.

There may be such a case that may one day fall for decision where, as it were, the defendant will not be able to take advantage of ambiguity, even patent ambiguity, if it was reasonable for a plaintiff to take the words in a way that it was in fact reasonable to take.  The plaintiff did do so and has acted to detriment et cetera.  But that is not this case.  It was on the findings in this case, there was no reliance on something as nebulous and non‑lease like as “you will be looked after”.  They ran the case as a full blown, we will get another term, eventually, mutatis mutandis.  That is the only reliance.  It was held by Justice Hargrave, with respect, correctly, that it would be utterly unreasonable to have relied so as to expect a new lease on “you will be looked after”.

So, this is not a case which, as it were, distinguishes the authorities concerning sufficient clarity of representation by providing the example of Justice Hodgson’s mooted idea of a grey area, and it is for those reasons, in our submission, that it simply presents as a case where the Court of Appeal, with insufficient reasoning, has acted contrary to the admonitions in this Court which is critical to this jurisprudence to identify what the conduct, usually representation, has engendered by way of what is sometimes called an assumption, state of affairs or course of conduct, in such a way ‑ using the usual formulae involving notions of detriment ‑ in such a way as to call for judicial intervention under the rubric of estoppel and we insist in this case, it was always promissory estoppel.

The Court of Appeal has nowhere identified a meaning to be given to the conduct by way of representation here which was (a) relied upon, in fact they have held to the contrary, or (b) such as to have sufficient clarity to warrant judicial intervention, and it is for those reasons, in our submission, that the case presents, notwithstanding the arguments of complication to which I have already referred, it presents as an ideal case to consider and, if thought appropriate, to vindicate the requirement in promissory estoppel for sufficient clarity which, after all, is a matter of the policy of the law, would appear to be appropriate, bearing I mind that it is the law of contract to which this is ancillary or which it outflanks and the facts in this case are such as to make it a very straightforward ‑ ‑ ‑

KEANE J:   The other aspect of the law of contract which this decision would outflank is this Court’s decision in Hoyt’s v Spencer.

MR WALKER:   Yes.

KEANE J:   It would be left to wither.

MR WALKER:   Yes.  The clarity ‑ some have sometimes, as it were, out of court, protested the excessive clarity, to the point of rigidity, of Hoyt’s v Spencer, remains in our respectful submission, one of those points of doctrine that has to be taken into account when considering complementary matters such as promissory estoppel and the whole collateral contract and relation to main contract problems is effectively side stepped, rendered irrelevant in a way that is not explained, let alone satisfactorily.  It is for those reasons, in our submission, that this is a case that should attract a grant of special leave.  May it please the Court.

KEANE J:   Thank you, Mr Walker.  Yes, Mr Pearce.

MR PEARCE:   If the Court pleases, the special leave point that is sought to be agitated in this Court for the first time, never having been put forward by way of defence to our case in estoppel at any of the three stages below, ought not to be the basis for a grant of special leave because it may well prove to be academic and that could arise in either of two circumstances. 

First, upon the determination of the remitter at VCAT, the outcome of that determination may well render this point academic if that remitter proceeds in its current terms and, secondly, because if leave is granted, if special leave is granted, we would want to contend, as we say in our written outline, that the estoppel in this case, notwithstanding the way the case was run below, that the estoppel in this case was in fact proprietary and, therefore, the point that is confined to promissory estoppel would not arise if we are successful in that way.

Now, as to the first of those matters, may I take you to application book 329, the characterisation of the decision of the Court of Appeal in our learned friend’s reply submissions at point 50, line 50, is a surprising mischaracterisation of the majority judgment below where they say:

Whelan JA finds that the Applicant made a representation and resiled from it and that the single issue to be determined on remittal is what equitable relief should be granted.

Now, I say that is surprising because that is the point we contended for unsuccessfully in the Court of Appeal and that is clear from the terms of the order of remittal which is at 236 that my learned friend has taken you to.  For determination 236 ‑ this is the order of the court on 8 April at line 60:

for determination of what equitable relief, if any, should be granted –

Now, the reason for the formulation of the order in that term is explained at application book 242 to 243 and these are the supplementary reasons of the Court of Appeal, published on 8 April following an argument in the court on 24 March about the very point of how wide the remitter should be.

NETTLE J:   Mr Pearce, just pausing there, at page 329 and the reference to Justice Whelan’s finding, am I wrong in concluding, as I have thus far, that his Honour did find that a representation was made in terms, or to effect, you will be looked after at lease renewal time.

MR PEARCE:   Yes, your Honour.

NETTLE J:   That is correct, he did find that?

MR PEARCE:   That is so but all he found was that that was a representation which was capable of founding in estoppel and that ‑ ‑ ‑

NETTLE J:   Well, perhaps.

MR PEARCE:   Yes, perhaps; with respect, an important point.  And that it had been resiled from, and what the passage that I was going to take your Honours to there, in the reasons of 8 April makes clear ‑ ‑ ‑

NETTLE J:   What is wrong then with what is said at 329?

MR PEARCE:   Because other issues on estoppel are still alive in the Tribunal on the remitter.

NETTLE J:   What, like reliance?

MR PEARCE:   Reliance, what expectation or assumption was created in the mind of Mr Zampelis, what detriment has been suffered, would it be unconscionable to resile ‑ was the resiling unconscionable.

NETTLE J:   But do we not know already from the evidence given below what expectation was created in his mind?

MR PEARCE:   Certainly, the Tribunal made findings about that but the ‑ ‑ ‑

NETTLE J:   Well, that is the end of it, is it not?

MR PEARCE:   Well, the majority in the Court of Appeal held that they had been incorrectly ‑ that the Tribunal had analysed estoppel incorrectly in the light of those findings and there is a live question as to whether the expectation or assumption engendered ‑ that Mr Zampelis says was engendered in his mind by the representation was reasonable.

NETTLE J:   Well, we know because he says so, assuming what he says is accepted, that whatever was said created in his mind an expectation that he would be granted a new term mutatis mutandis, the same as the old one.

MR PEARCE:   Yes.

NETTLE J:   Now, we know that that representation was not made to him because that is the finding.  All that was said was you will be looked after at renewal time.

MR PEARCE:   Correct.

NETTLE J:   So, how does one get from, you will be looked after at renewal time, and an expectation which was apparently unfounded that it equated to the promise or assurance that there would be a grant of a new lease to reliance upon, to some other extent, than was relied upon.

MR PEARCE:   Well, you get that from the Tribunal’s own factual findings, your Honour, at application book 29 to 30.  If I can take your Honours through the findings, application book 29 to 30, paragraph 118; there is the statement there, the finding of what was stated and that is at 118, 29 to 30.

NETTLE J:   Yes.

MR PEARCE:   Then we go to 135 at page 33 of the application book and there is an explanation there in the context of a contractual analysis, an explanation there of what the Tribunal held, the expression “looked after” meant and, in particular, at line 30 on page 33:

In my opinion, a reasonable person with knowledge of those facts and circumstances –

that is to say, the entirety of the facts and circumstances surrounding the making of this statement –

would conclude that a promise that Mr Zampelis would be looked after at renewal time meant a promise that Crown would give a notice, when the time came, that it would renew each lease.

NETTLE J:   So that would be your case on remitter, would it?

MR PEARCE:   Yes, yes ‑ well, and what was said at 139, over the page.  Paragraph 139 beginning at about line 33:

Crown would even have the right to stipulate terms and conditions which, intentionally or unintentionally, were so onerous that the tenant would be compelled not to accept them.  No doubt that is an unrealistic scenario, because the stipulation of unreasonably onerous terms in notices of renewal would jeopardise Crown’s tenancies generally.  One would expect a notice of renewal to stipulate terms and conditions that had reasonable correspondence with terms and conditions that had appeared in –

the original leases.  Then in ‑ ‑ ‑

NETTLE J:   Can I just ‑ pause there; this grey area thing, which I do not understand from Justice Whelan’s judgment yet.  Obviously, there was no promise made that you would get a new term.  We know what the promise or representation was that you would be looked after.  We know from the evidence in the finding to which you have taken us that the plaintiff interpreted that as meaning that he would get a new term.  Is your case going to be limited on remitter to saying, it was reasonable or acceptable for him to so interpret and it would be unconscionable for Crown to depart from the assumption thus created?

MR PEARCE:   And that he relied on it.

NETTLE J:   Yes, all that.

MR PEARCE:   Yes.

NETTLE J:   So that if it is found against you that it would not be unconscionable for Crown to deny or to walk away from an expectation that he would get a new term, then you would lose.

MR PEARCE:   Well, the promise being ‑ the fundamental promise being that he would be looked after.

NETTLE J:   Well, that is where you are sliding.  What he says is that it created in his mind an expectation that he would get a new term.

MR PEARCE:   Yes.

NETTLE J:   The question is, would it be unconscionable for Crown to walk away from that expectation or are you going to say for the first time, it would be unconscionable for them to walk away from a lesser expectation albeit that that lesser expectation was not the one which was formed in the mind of the plaintiff.

MR PEARCE:   The answer to that, your Honour, is yes because that is the limitations imposed by the Court of Appeal judgment and the terms of that judgment.  We had contended for the wider proposition that your Honour put to me first and the Court of Appeal has rejected that.

NETTLE J:   So, even though he did not have in his mind an expectation of something less, you say Crown can be estopped from departing from that which he did not expect.

MR PEARCE:   Yes, your Honour, yes, and that is within the terms of the representation made and Crown can be held to the reasonable terms of that representation.  Your Honour is quite correct, that the case we have made always has been that he was promised a new lease term and that has been rejected by the Court of Appeal.

I mean, we say erroneously, but we can accept that finding of the Court of Appeal, and we can accept a remitter on a case on estoppel at that lower level, but as your Honour points out, it will be open to our learned friends on remitter in the Tribunal ‑ I think this is what your Honour is saying ‑ to argue that, first of all, that is not reasonable.  Secondly, it is not unconscionable for them to resile from it.  Now, those issues are alive, reliance is alive, all those issues remain alive on the remitter, and if decided in the applicant’s favour, the point that they want to agitate in this Court becomes academic.

NETTLE J:   So, there can be an estoppel based upon an assumed conventional basis of dealing which never existed but which is perceived by a court ex post facto to be one which might reasonably have arisen.

MR PEARCE:   Quite so.  What the court focuses on is the reasonable expectation or assumption engendered in the mind of the representee, whatever the actual assumption was.  Now, plainly, that can have consequences say for reliance.  It may be, if he relied on the assumption, he would get an extra lease term.  He cannot be said to have relied on the assumption that he would be looked after and these issues, as I say, are alive on the remitter which is why I say the fundamental point that they want to argue here may well be academic after the remitter.

Now, the second reason why I say that is because if they are permitted, as I say, for the first time, for the first time in this Court to run a defence to the case of estoppel which we have run at every point below, if they are to be permitted to run this defence for the first time, that the representation that we rely on was ambiguous or uncertain, we will seek leave to ‑ ‑ ‑

KEANE J:   But it is not a defence.  They are not running a defence for the first time.  They are running the argument they have always run which is that if you have got a situation where someone is expressly refused a right in negotiations and then the right is not included in the contract, a representation which is to say the least ambiguous, cannot give a right contrary to or greater than that given by the contract, does not get you into the realms of estoppel.

MR PEARCE:   Your Honour, with respect, is correct, that that is the defence they have always run to the claim in contract.

KEANE J:   That is their point.

MR PEARCE:   Yes, and that is their ‑ ‑ ‑

KEANE J:   It is not about them running a defence for the first time.  It is their point.

MR PEARCE:   It is their point, that there is no difference in contract and estoppel on that.

KEANE J:   It is coming a long way with estoppel, whether one calls it promissory or equitable, and one has noted that in your argument in the discussion you had with Justice Nettle, you did use the language of promise, perfectly understandably, but it is coming a long way with estoppel, whether one calls it promissory or equitable, to reach a situation where someone who has been expressly refused a right in contract, expressly refused it, signs a contract and says but I have got it anyway.

MR PEARCE:   But, with respect, not in proprietary estoppel, and that point seems to be conceded.  It seems to be conceded that the point that they want to run about the clarity of the representation, the lack of ambiguity or uncertainty of the representation, is not a point that arises in proprietary estoppel and the cases on that make it clear, in particular, Flinn v Flinn which we relied on below and there are numerous instances ‑ ‑ ‑

KEANE J:   But then that takes us to the question whether this is truly a case that can be said to be not a case of promissory estoppel.

MR PEARCE:   Yes.

KEANE J:   We are talking about promises.  It is all about promises.  It is all about “you will be looked after”.

MR PEARCE:   Yes, but the ‑ ‑ ‑

KEANE J:   It is not “you are being looked after”.  It is not, build on that land and we will see that you get an entitlement to what you have built.

MR PEARCE:   The key element of proprietary estoppel is the creation of an expectation or assumption of the acquisition of an interest in property.  Now ‑ ‑ ‑

KEANE J:   Because what we are talking about is a lease, you only get your proprietary interest; you only get it by the notional enforcement of a promise.

MR PEARCE:   Yes, as in Waltons Stores.  Yes, but a proprietary estoppel can arise from a promise.  It can arise in a variety of circumstances.  Now, if in truth this was a proprietary estoppel, which we would seek to contend if special leave is granted and the passages I have taken your Honours to are in the Tribunal’s reasoning, support the existence of a proprietary rather than promissory estoppel, then their point does not arise and I will take your Honours also to 172, application book 42.  I took your Honours earlier to factual findings made in the contractual context and now at application book 42, 172, the Tribunal there refers to Waltons Stores, refers to promissory estoppel but says at line 31:

The applicants expected that there would be an offer of a renewed lease, at renewal time, that they would be free to accept.

Now, if that factual finding stands, as it must, in my submission, there being no right of appeal on questions of fact, then we are in fact dealing with a proprietary estoppel and the ‑ ‑ ‑

KEANE J:   It is funny, is it not, that the Tribunal goes on to say ‑ this is at line 36:

Crown’s collateral promise induced them to expect that ‑

so if we are talking the language of collateral promise, it is necessarily your case that Hoyt’s v Spencer is no longer the law.

MR PEARCE:   No, but it can be outflanked by estoppel and the Queensland Court of Appeal gave the decision in Wright v Hamilton Island to that effect.  There are other cases to that effect.  Of course, it has not been decided in this Court and it need not be decided in this Court because the Court can simply decide it as a matter of proprietary estoppel, and the factual findings of the Tribunal, those I have taken your Honours to, particularly at 118, 135, 139 and 172, provide the foundation for the case that this was, however we ran it below, a case of proprietary estoppel.

Now, that being so, the point that is sought to be agitated ‑ and I think it is frankly conceded by my learned friend ‑ the point that is sought to be agitated on promissory estoppel, ought not arise.  So, there are two eventualities by which it would not arise and which make it probably academic.  First is a remitter in the wide terms ordered by the Court of Appeal which leaves most issues on estoppel live. 

We accept, as emerged from the discussion with your Honour Justice Nettle, that we are confined in the case that we can make on estoppel by the terms of the Court of Appeal judgment but we can live with that.  We can go back and argue it on the narrow basis that the Court of Appeal has imposed, that the majority at least in the Court of Appeal have imposed.

NETTLE J:   You will have to get leave from the Tribunal to argue proprietary estoppel, will you not?

MR PEARCE:   Well, your Honour, we would not be arguing proprietary estoppel.  We can argue promissory estoppel below.

NETTLE J:   I see.

MR PEARCE:   We accept the confines of the Court of Appeal decision and the limitations which it imposes on the remitter, and with those limitations most issues of estoppel are still alive in the Tribunal.

NETTLE J:   Just pausing there, if you are not going to be arguing proprietary estoppel if it goes back to VCAT, you are only going to be arguing promissory estoppel, then the point is not academic, is it?  It is the point.

MR PEARCE:   The point is still alive.  It is still alive.

NETTLE J:   You mean after the VCAT has made its final decision.

MR PEARCE:   Yes ‑ well, the point is alive on the remitter.  Two things only were decided by the majority in the Court of Appeal on estoppel, that a representation was made which was capable of founding an estoppel.

NETTLE J:   Perhaps.

MR PEARCE:   Perhaps, yes, quite so, and that Crown had resiled from that representation.  Now, all other issues, as I say, are at large on estoppel.

NETTLE J:   Yes.

MR PEARCE:   The point that is sought to be agitated in this Court may not matter.

NETTLE J:   Because you lose it in the VCAT.

MR PEARCE:   Yes, quite so.  It is apparent that the terms of the remitter are such that the estoppel case could be decided against us and that was the very point that was argued below.  That was the very point that they won.  We sought a remitter that only the question of relief be remitted.  Now, they successfully argued against that, hence the insertion in the remitter order of the words “if any” and that is the part I was taking your Honours to, the reasons on 8 April and your Honours can see that.  Your Honours can see the outcome of that argument at 242 and 243 of the application in paragraph 13.

The very argument that we made was that the only remaining question on estoppel was what relief should be ordered, and at paragraph 13 that argument was rejected and it said, for example, that reliance is alive and all other issues ‑ and it is encapsulated by Justice Whelan quite pithily in paragraph 200 of his reasons at 232 of the application book.  That is all that the majority decided.  The Chief Justice certainly went further but the majority, Justice Santamaria having agreed with Justice Whelan at paragraph 200, states the extent and the bounds of the decision made by the Court of Appeal on estoppel and the court has not upheld our case in estoppel and has remitted that case to the Tribunal, save only for the two questions that have set out the two issues that the Court of Appeal has decided at 200 and as your Honour Justice Nettle, with respect, points out, what we can argue is confined.  We cannot be arguing that we get another lease term.  All we can argue is that we will be looked after.

KEANE J:   Thank you, Mr Pearce.  I think your time is up.

MR PEARCE:   If the Court pleases.

KEANE J:   Mr Walker.

MR WALKER:   Thank you, your Honours.  Your Honours, the argument about orders is not to be understood as my learned friend has just paraphrased it.  Relevantly ‑ I mean, there are a number of things, including costs, debated but relevantly it was the explicit use of the words “if any” which was the successful object of one part of the argument on orders and you will see that issue described in application book 242, just after line 50, in paragraph 13 and continuing on to the next page.

That is, our learned friends had argued that there should be no possibility of no equitable relief.  Now, I do not quite know what that means, bearing in mind what one might think about equity, but they were going to be guaranteed something, whether that means $10, the absurdity of what might be called nominal equitable relief, I do not know, but in any event, not surprising, that was rejected, if any is put in.

That which might be lurking behind a curtain here though is the idea what, they are going to revisit their evidence on reliance, which is absurd.  As my friend properly said, findings of fact, we are not within any of the appellate jurisdiction which has been exercised twice now in this case.

NETTLE J:   What about his point about some of this, if not all of it, being academic?

MR WALKER:   It is for the reasons that your Honour raised with my friend for his consideration in argument just five minutes ago, far from academic.  It is concrete and it will determine the matter.  In short, we would say, it was not academic for us to take this point before Justice Hargrave and it disclosed to the case before his Honour, and correctly, and it would not be academic in this Court for us to say that Legione v Hateley requires some solidity to the representation.

It also requires something that I will nickname reliance and, in this case, there is neither.  In particular, that which underlies this academic notion, namely, that they are going to step into the proprietary estoppel argument, is now hopelessly confused and no answer to special leave.  Your Honours could be forgiven, say 15 minutes ago, for thinking that my learned friend was saying before the Tribunal, there will not be a promissory estoppel case and thus what the applicant raises as matters of doctrine pertaining to promissory estoppel will be academic because it will be a proprietary estoppel case and then 10 minutes ago, that goes out the window and none of this, with respect, is developed in their written submissions.

There was the inaccurate description of the course of argument below.  It was inaccurate in the way that we have demonstrated in our written reply.  It was presented as, treated as and decided as a promissory estoppel case.  But as we point out, it is no wonder that the latest iteration is no proprietary estoppel is going to be argued because the only property that one can even begin to understand in this case as being up for grabs, was a lease, nothing else, and it is for those reasons, in our submission, that of course this is a classic promissory estoppel case which is then to be determined according to its merits and its merits are those that, as we say, were correctly determined by Justice Hargrave and have been contrary to principle and doctrine, dealt with by the Court of Appeal.

The idea that we have raised some new point or in so‑called defence, if I may say so, that contention is itself new:  you will not find that in the written submissions in this Court in answer to special leave.  There is nothing new about the constant insistence on Legione v Hateley being observed in this regard; that has been our client’s position from the very beginning.  Paragraph 200 of Justice Whelan’s reasons was particularly clear, that is why I started with them.  There is nothing wrong, let alone surprisingly wrong, about our paraphrase, indeed close to verbatim quotation of it, in our written submissions. 

That is, as I say, the beginning of the demonstration that there has been a departure from the requisite discipline, analytical discipline of identifying what it is that was engendered in the mind of the plaintiff and how equity may be manifested by visiting consequences upon the defendant to reflect that which conscience, summed up in the doctrine of promissory estoppel, will require from that circumstance, or relation.  Unless you do

that, it is a rudderless and compassless exercise and it is for those reasons, in our submission, that this case is an ideal case for the vindication of proper doctrine.  May it please the Court.

KEANE J:   Thank you, Mr Walker.  There will be a grant of special leave in this matter.  Mr Walker, how long do you think it will take?

MR WALKER:   Not quite a full day.

KEANE J:   Mr Pearce?

MR PEARCE:   I agree with that, your Honour.

KEANE J:   Very well.  The parties should obtain directions in relation to the filing of submissions from the Registrar.  The Court will adjourn to reconstitute.

AT 11.35 AM THE MATTER WAS CONCLUDED