Futuroscop Enterprises Pty Ltd v Qantas Airways Ltd

Case •

[2024] NSWDC 368

•

20 August 2024

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: Futuroscop Enterprises Pty Ltd v Qantas Airways Ltd [2024] NSWDC 368
Hearing dates: 13, 14 February and 27 March 2024
Date of orders: 20 August 2024
Decision date: 20 August 2024
Jurisdiction:Civil
Before: Andronos SC DCJ
Decision:

(1)   Judgment for the defendant.

(2)   Direct the parties to liaise, seek to agree on an order for costs, and notify my Associate of such agreement, by 5pm on 27 August 2024.

(3)   In the event that the parties have not agreed on an order with respect to costs, the parties are to provide to my associate, by 5pm on 27 August 2024, a range of mutually available dates for a hearing on the question of costs, preferably on a Friday.

Catchwords:

CONTRACTS — Implied terms — Terms implied in fact

CONTRACTS — Construction — Context

ESTOPPEL — Estoppel by representation — Detrimental reliance

CONSUMER LAW — Misleading or deceptive conduct — Causation or reliance

CONSUMER LAW — Misleading or deceptive conduct — Remedies — Damages

Legislation Cited:

Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 4, s 18, s 236, s 237

Cases Cited:

Austotel Pty Ltd v Franklins Self-serve Pty Ltd (1989) 16 NSWLR 582

Brambles Ltd v Wail; Brambles Ltd v Andar Transport Pty Ltd (2002) 5 VR 169; [2002] VSCA 150

Briginshaw v Briginshaw (1938) 60 CLR 336

Fox v Percy (2003) 214 CLR 118

Furness v Adrium Industries Pty Ltd [1996] 1 VR 668

Helton v Allen (1940) 63 CLR 691

Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37

Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403

State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3

Stowe & Devereaux Holdings Pty Ltd v Stowe (1995) 19 Fam LR 409; (1995) 127 FLR 25

Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125

Watson v Foxman (1995) 49 NSWLR 315

Texts Cited:

Patrick A Keane, Estoppel by Conduct and Election (3rd ed, 2023, Sweet & Maxwell)

Category:Principal judgment
Parties: Futuroscop Enterprises Pty Ltd (plaintiff)
Qantas Airways Ltd (defendant)
Representation:

Counsel:
Mr A Rizk (plaintiff)
Mr D Stanton (defendant)

Solicitors:
Memcorp Lawyers Pty Ltd (plaintiff)
Norton White (defendant)
File Number(s): 2022/00368727
Publication restriction: Nil

JUDGMENT

  1. The plaintiff, Futuroscop Enterprises Pty Ltd, is the registered proprietor of a property at 289 King Street, Mascot, New South Wales, near Sydney Airport. The property comprises a hotel, offices and a multistorey car park comprising 857 parking bays or spaces (the Car Park). The Car Park itself is serviced by elevators and includes an office, ramps, driveways and pedestrian access as well as the spaces.

  2. On 11 November 2019, the plaintiff and the defendant, Qantas Airways Ltd, entered into a licence agreement (the Licence Agreement), pursuant to which the plaintiff granted to Qantas a licence to use 750 spaces on certain floors in the Car Park (referred to in these reasons as either “the Car Spaces” or “the Licensed Area”). The Car Spaces were to be used by Qantas employees who accessed the relevant areas of the Car Park by scanning an activated ID card at a reader installed at the Car Park’s entry and exit boom gates.

  3. The Licence Agreement had a two-year term, however, an option to extend was automatically enlivened unless Qantas gave notice that it did not wish to extend the Licence Agreement. That notice was to be given between six and nine months prior to the expiry of the initial two-year term. There is no dispute that Qantas lawfully gave such notice.

  4. The parties agree that the Licence Agreement came to an end in November 2021. A dispute has arisen, however, concerning the circumstances surrounding the end of the Licence Agreement in November 2021, and the precise date on which Qantas ceased to be liable to pay licence fees to the plaintiff. Qantas says that the Licence Agreement automatically came to an end on 10 November 2021 in accordance with its terms, lawful notice having been given within time.

  5. The plaintiff’s principal claim was initially that the Licence Agreement did not come to an end on 10 November 2021, but remained on foot until 22 November 2021. This was, it was contended, because the purported termination by Qantas was ineffective as Qantas was in breach at the time. This was the position taken by the plaintiff in correspondence in November 2021, and was pleaded in these proceedings. The claim was only abandoned in the course of closing submissions.

  6. The plaintiff, while no longer disputing that the express two-year Licence Agreement came to an end on 10 November 2021, advances an alternative claim that an implied licence was brought into existence by reason of conduct and representations by Qantas in November 2021. That implied licence, the plaintiff contends, continued until Qantas had cleaned and handed over possession of the Licensed Area, which did not occur until 22 November 2021. Accordingly, it was liable to pay a licence fee for the whole of the Licensed Area for that 11-day period. The plaintiff says the licence fee payable in respect of those 11 days is $114,708.00.

  7. Alternatively, the plaintiff says that Qantas is estopped from denying that the Licence Agreement remained on foot until 22 November 2021. Further, in the alternative, the plaintiff says that Qantas made misleading or deceptive representations to it in contravention of s 18 of the Australian Consumer Law (the ACL), for which it says it is entitled to damages or compensation pursuant to ss 236 or 237 of the ACL.

  8. Qantas denies that the plaintiff has made out any of its alleged causes of action and says that it has, in any event, established no loss and no entitlement to any relief.

  9. The issues before the Court, therefore, are:

  1. Whether the plaintiff has established that an implied licence was brought into existence for the period 11 November 2021 to 22 November 2021, thereby entitling it to a licence fee in respect of that period.

  2. In the alternative, whether the plaintiff has established that Qantas is estopped from denying that the Licence Agreement remained on foot until 22 November 2021.

  3. Further, in the alternative, whether the plaintiff has established misleading or deceptive conduct in trade or commerce on the part of Qantas, such as to contravene s 18 of the ACL.

  4. If contravention of the ACL is made out, whether the plaintiff has established that it has suffered any damage by the contravention, and if so, the extent of that damage.

  1. For the reasons which follow, I have found that the plaintiff has not established any of its causes of action. There should be judgment for the defendant and Qantas is prima facie entitled to its costs on the ordinary basis, subject to any special costs order.

The Car Park

  1. As noted above, the Car Park comprised 857 car spaces, 750 of which were licensed to Qantas. The remaining 107 spaces were made available to members of the public, who either pre-booked parking through the Car Park’s manager, Wilson Parking Australia 1992 Pty Ltd (Wilson), or drove up, took a ticket at the boom gate and parked in the Car Park on the day without a booking.

  2. The Car Park comprised six levels (including the ground floor and roof levels). During the Licence Agreement, Qantas used the Car Park for employee parking and installed card readers at the entrance and exit to enable Qantas employees, with activated ID cards, to access the Car Park.

  3. Members of the public could pre-book parking through Wilson’s general website, or a separate “Space Shuttle” website, which related to the “Park & Fly” service operated at the Car Park for the benefit of travellers using Sydney Airport. Wilson was responsible, in consultation with Mr Richard Andary, for marketing the Car Park to the public, which included establishing prices (which varied from time to time) and marketing strategy.

Assessment of evidence

  1. The plaintiff relied on three affidavits sworn by its sole director and secretary, Mr Andary. It also relied on an affidavit and expert report on damages by Suelen McCallum. Qantas filed several affidavits but, in the end, elected to rely only on documentary evidence.

  2. Generally, where a fact is in issue, a plaintiff must demonstrate that the circumstances raise a more probable inference in favour of the fact alleged: Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125. The process of fact finding should be informed as far as possible on the basis of contemporary materials, objectively established, and the apparent logic of events: Fox v Percy (2003) 214 CLR 118 at [30]-[31]. Where proof of a fact is required “the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality”: Helton v Allen (1940) 63 CLR 691 at 712; Briginshaw v Briginshaw (1938) 60 CLR 336 at 361.

  3. All evidence, including documentary evidence, must be submitted to rational analysis, including with respect to the drawing of inferences, having regard to the whole of the evidence and the conduct of the trial: State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3 at [63], [94], [149] and [155].

  4. As a representations case is propounded, I have also had reference to the well-known case of Watson v Foxman (1995) 49 NSWLR 315 at 318-319, where McLelland CJ in Eq stated:

“… [H]uman memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court ‘must feel an actual persuasion of its occurrence or existence’. Such satisfaction is ‘not … attained or established independently of the nature and consequence of the fact or facts to be proved’ including the ‘seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding’”: Helton v Allen (1940) 63 CLR 691 at 712.

  1. In Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403, Lord Pearce discussed credit at 431:

“… though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. … And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”

  1. Mr Andary gave his evidence assuredly, however, I consider his evidence must be treated with some caution. He clearly has a strong belief in the rightness of the plaintiff’s position. Nevertheless, there were occasions on which his evidence was inconsistent with the contemporaneous documentary material and his confident assertions of the content and effect of documents proved to be incorrect. On other occasions, he responded, in cross-examination, to the absence of a documentary record of certain communications with a third party by giving implausible evidence, in general terms, of oral communications that would have also contradicted the effect of the objective, contemporaneous material. In his correspondence, he significantly overstated the extent of the plaintiff’s rights and advanced untenable interpretations of the Licence Agreement and earlier correspondence. Finally, there were occasions where his evidence was simply inconsistent with the logic of events to an extent where it was too implausible to be accepted.

The Licence Agreement

  1. On 11 November 2019, the plaintiff and Qantas entered into the Licence Agreement, which relevantly contained the following terms:

  1. The Reference Schedule provided:

  1. The Commencement and Expiry Dates were respectively 11 November 2019 and 10 November 2021 (subject to extension in accordance with cl 2 of the Licence Agreement). There were two consecutive Options to extend the Licence Agreement, the first of which was for a three-year period from 11 November 2021 and the second was for a five-year period from 11 November 2024.

  2. The “Licensed Area” was defined as:

“750 car park spaces in the Car Park, being all of the car park spaces on the ground floor and on levels 2 to 5 inclusive and all the car park spaces on level 1 (except for 106 car park spaces on that level that have been marked “Reserved”). The Licensed Area is subject to variation in accordance with the terms of [the Licence] Agreement”.

  1. The parking protocol was that:

“personnel of [Qantas] are permitted to use the Licensed Area when they scan their activated Qantas ID card at the Qantas Reader installed at the boom gate upon entry and exit from the Car Park”.

  1. Clause 1 was the "Grant of Licence”. It relevantly provided:

“1. Grant of Licence

(a) the Licensor [the plaintiff] grants to the Licensee [Qantas] for the Term:

(i) a licence to use the Licensed Area for the Permitted Use [parking of vehicles by Qantas personnel]; and

(ii) the non-exclusive right for the Licensee in common with the Licensor and all other persons authorised by the Licensor to use those parts of the Car Park required to access the Licensed Area.

(b)The rights given to the Licensee by this Agreement are contractual rights only and not tenancy rights. The Licensee does not have any tenancy or other interest in the Licensed Area.

…”

  1. Clause 2 dealt with the extension of the licence term. It relevantly provided:

“2. Extension of Licence Term

(a) The Licensor must grant a new Licence to the Licensee for the Option Term(s) noted in Item 11 of the Reference Schedule [see paragraph 20(1) of these reasons] unless the Licensee provides notice to the Licensor that it does not wish to extend the Licence Term at any time during the period commencing 9 months and ending 6 months before the Expiry Date (in which case the Licence will automatically expire on the Expiry Date).

…”

  1. Clause 6 was headed, “Licensee’s Rights and Obligations”. Sub-clause (c) provided: “The Licensee must not cause or permit any rubbish to be left in or about the Licensed Area.”

  2. Clause 13 dealt with Termination. It relevantly provided at sub-cl (d):

“On expiry or termination of this Agreement, the Licensee must:

i. ensure all vehicles belonging to the Licensee’s Personnel are removed from the Licensed Area; and

ii. remove the Qantas Readers and any other equipment installed by the Licensee in the Car Park and make good any damage caused by the removal; and

iii. leave the Licensed Area in a condition consistent with the Licensee having complied with its obligations under the Agreement.”

  1. The Licence Agreement also contained an entire agreement clause (cl 14(e)).

  2. There was no dispute at trial that there was no obligation in the Licence Agreement that there be a “hand over” at the end of the term. Qantas did not have any proprietary right in the Licensed Area so there was nothing to hand over once its rights to use the Licensed Area for the permitted purpose expired.

Other agreements affecting the operation of the Car Park

  1. The plaintiff had engaged a strata manager, Perfect Strata Management, in respect of the building at 289 King Street. The strata management agreement between the plaintiff and Perfect Strata Management provided for the strata manager to procure cleaning of the Car Park floors on an “as required basis”, scheduled for every six months. Cleaning of the Car Park lift doors on a daily basis was also the responsibility of Perfect Strata Management.

  2. On 1 December 2019, the plaintiff also entered into a management agreement with Parking Asset Management Pty Ltd (PAM) and Wilson (together “the Managers”) by which the Managers agreed “to professionally manage the Site” on the terms set out therein (the Management Agreement). The initial term was two years and there were consecutive options granted to the Managers to renew for three and five years respectively. The Management Agreement entitled the Managers to a fee. Revenue from sales, it may be inferred, accrued to the plaintiff.

  3. Clause 11 of the Management Agreement dealt with matters for which the Managers were to be responsible. It provided that the Managers were responsible for, and entitled to reimbursement of, all expenses incurred for the management and operation of the Site, including in respect of “cleaning subject to third party price comparison whichever is the less or equal amount”. Such reimbursement was in addition to Management Fees and Remote Monitoring Fees under cl 8.

  4. Mr Andary disagreed that the responsibilities set out in the strata management agreement with Perfect Strata Management or the Management Agreement with PAM and Wilson applied, or that, in the circumstances, either was responsible for any cleaning of the Car Park, the Licensed Area or the area proximate to the Licensed Area. In cross-examination, Mr Andary accepted that under the terms of the Management Agreement, the Managers were responsible for the cleaning of the whole of the Car Park. He said, however, that a deficiency in the cleaning of the Car Park was not the Managers’ responsibility:

“Because there was a clear understanding that the license agreement was the cost of and the responsibility of Qantas. This agreement, whilst there was no licensee, related to the whole of the car park with the introduction of Qantas that concept changed.”

  1. While ultimately of limited relevance in determining the matters before me, I do not accept this evidence. There was no evidence of the circumstances in which any such “understanding” was reached or its terms. At no stage did the plaintiff identify any document, conversation or course of dealing which supported this allegation. Moreover, the Management Agreement was entered a month after the Licence Agreement, so the objective evidence before me could not support Mr Andary’s evidence that the introduction of Qantas altered a pre-existing arrangement that the Managers would clean the Car Park.

  2. Further, Mr Andary admitted that he had, himself, organised cleaning of the Car Park from time to time during the period of the Licence Agreement.

Termination of the Licence Agreement

  1. On 10 May 2021, Qantas gave notice, in accordance with cl 2(a) of the Licence Agreement, that it would be terminating it on the expiry date of 10 November 2021. In response, Mr Andary sent an email, the next day, reminding Qantas of a most favoured nations clause in the Licence Agreement, and inviting Qantas to contact him if it had any parking requirements in the future.

  2. On 1 November 2021, Mr Andary had observed a Qantas cleaner using a ride-on sweeper on Level 5 of the Car Park, travelling downwards towards the lower floors.

  1. On 2 November 2021, Mr Kim Huynh, Qantas’s Manager Real Estate and Leasing, sent an email to Mr Andary in which he reminded Mr Andary that Qantas would be vacating the Car Park on 10 November 2021 and sought to arrange an inspection and handover meeting at the Car Park on 10 November 2021.

  2. As noted above, there was no obligation under the Licence Agreement for a handover meeting or inspection. Qantas had a licence to use the Car Spaces for the permitted purpose and did not have a right of possession, to the exclusion of the plaintiff and those authorised by it, over those areas of the Car Park necessary to access the Car Spaces. So much was made expressly clear by cl 1(b) of the Licence Agreement. As no handover meeting was required under the Licence Agreement, the plaintiff had no right to inspect the Licensed Area and no right to prevent the Licence Agreement expiring, either by refusing to accept a “hand over”, demanding additional cleaning or otherwise.

  3. In his affidavit, Mr Andary deposes that the following conversation followed his receipt of the email from Mr Huynh:

Mr Andary:

“I saw some cleaning occurring yesterday, but it was far from adequate. This is the first time in two years that the car park has been cleaned by Qantas. It is imperative that the Qantas floors and areas in the car park are fully cleaned prior to the handover date so that the car park is given back in the same state as it was provided to Qantas.”

Mr Huynh:

“I am surprised that cleaning has not occurred properly. I will escalate this matter and get it dealt with as soon as possible.”

This conversation was not challenged by Qantas and appears consistent with the surrounding circumstances and contemporaneous correspondence.

  1. There was no evidence as to Mr Huynh’s current whereabouts and there is no evidence that he is still a Qantas employee. Although I was asked to draw a Jones v Dunkel inference against Mr Huynh, there is no need for me to do so in order to accept that the conversation likely occurred in terms broadly in accordance with Mr Andary’s evidence.

  2. On 4 November 2021, Mr Huynh emailed Mr Andary that the cleaning had been completed. In that email, he also included a copy of cl 13(d) of the Licence Agreement.

  3. On 10 November 2021, the “hand over” meeting took place. Mr Huynh was not available, but Ms Brittany El-Zbaidieh and Ms Kay Sharma attended on behalf of Qantas. Mr Andary attended on behalf of the plaintiff. In his affidavit, Mr Andary deposed to the following conversation:

Mr Andary:

“It is obvious you would agree that the sweeper has missed the majority of the car park.”

Ms El-Zbaidieh:

“I will send my photos to management and advise of the unsatisfactory state of the cleaning in the car park.”

Mr Andary:

“I have also taken photos to email to Kim and will confirm that handover cannot be accepted and more cleaning is required.”

Ms El-Zbaidieh:

“I believe we are going to have to get a high pressure water cleaner and cleaning contractors back to undertake a proper cleaning of the floors and wheel stops on all levels.”

Mr Andary:

“I am surprised and disappointed that cleaning was not finalised before the scheduled meeting.”

  1. I accept that the meeting took place and that Mr Andary indicated that he was unhappy with the state of the cleaning of the Car Park. I also accept that the Qantas representatives expressed a willingness to arrange further cleaning. To the extent that Mr Andary deposes that Ms El-Zbaidieh conceded that there had not been “proper” cleaning, even accepting his account in terms, it does not follow that this was a concession as to the extent of Qantas’s obligation under the Licence Agreement, and I do not draw any inference to that effect.

  2. Mr Andary says that he spoke to Mr Huynh later that day and a conversation to the following effect took place:

Mr Andary:

“I just finished the inspection with your team. Handover has not occurred nor been accepted. The car park is in an unsatisfactory state and there is numerous and significant outstanding cleaning work”.

Mr Huynh:

“I will speak to Brittany and come back to you. Can you send me photos showing examples of what you are referring to.”

  1. The following day, Mr Andary sent an email to Mr Huynh confirming that “the handover was not effectively actioned due to incomplete cleaning of bays and wheel stops in License area”. He also sent, under cover of that email, photographs taken on site on 10 November 2021. Those photographs show oil stains in some Car Spaces and tyre marks in the aisles of the Car Park. There was no dispute that the photos also show cars, belonging to Wilson customers, parked in the licensed Car Spaces.

  2. Qantas arranged for cleaning in the following week. Mr Andary emailed Mr Huynh on 12, 15 and 17 November 2021 stating that no further cleaning had taken place over that time.

  3. On 18 November 2021, Mr Andary says that he had a phone conversation with Mr Huynh in which he complained about the standard of cleaning. He says that Mr Huynh apologised and said he would look into it. He says that Mr Huynh said, “We will send further cleaners to the site to clean the splatter and pooling and ensure that the site is cleaned satisfactorily”.

  4. On 19 November 2021, Ms El-Zbaidieh met Mr Andary at the Car Park. Prior to that meeting, Qantas had arranged cleaning of the Car Park, however, Mr Andary had already indicated in an email that he was not satisfied with it. In particular, he was not satisfied with the cleaning of one of the ramps, sediment ponding and pressure gun splatter on walls and lifts, as a result of the cleaning that had been undertaken. At that 19 November 2021 meeting, Mr Andary said that he was still not satisfied with the cleaning and, according to his affidavit evidence, Ms El-Zbaidieh said that Qantas’s cleaning team would address the doors, wheel stops and dirt, and remove the puddles. I accept that the Qantas representatives indicated that they would arrange further cleaning of the Car Park.

  5. That afternoon, Mr Huynh sent Mr Andary an email in which he said:

“Hi Richard

Qantas has completed an extensive clean of the premises and have gone above and beyond working late into the night but it seems there are additional requirements you are requesting.

I am at a lost (sic) at the moment of where our Licence requires us to hand back to the site (sic) with an extensive clean as you are further requesting.

We have complied with the Licence and have left the premises in clean and tidy manner free of rubbish and removed all of our cars, Qantas Readers and other equipment belonging to us and have complied with obligations as per Clause 6.

If you can provide further details in the Licence for us that require us to provide an extensive and detail (sic) clean of the premises, can you please provide.” [He attached an extract of the Licence Agreement].

  1. Mr Andary rejected Mr Huynh’s contentions as to the cleaning that had occurred. He adhered to his view of Qantas’s contractual obligations under the Licence Agreement notwithstanding Mr Huynh’s unambiguous rejection of that construction. He responded that evening, saying that Qantas had “occupied” the “license area” for 24 months, that it had been handed to Qantas in a clean and rubbish-free condition and had to be returned in that state. He went on to identify cll 6(c) and 13(d) iii as the source of Qantas’s obligation to hand back the Car Park having first cleaned it. He expressly denied that Qantas was undertaking an extensive clean without any obligation to do so. He attached photos which showed some puddles, tyre marks, marks on the wheel stops and dust on the elevator doors. The photos also showed cars, parked by Wilson customers, in the Car Spaces in a largely empty Car Park.

  2. Cleaning continued, at Qantas’s expense, over the weekend of 20 to 21 November 2021. On 22 November 2021, another meeting took place, this time attended by Mr Andary and Mr Andrew Nicholas, Qantas’s head of facilities management. At that meeting, Mr Nicholas agreed that Qantas would clean a further 20 car spaces on Level 1. Mr Huynh followed up, with an email later that day, confirming that Qantas had fully complied with its obligations under the Licence Agreement and that termination remained effective from 10 November 2021.

  3. Later that day, Mr Andary responded by email stating:

“1. We note that Licensee has today finally completed the works to the license area in accordance with its obligations as per clause 6(c) and clause 13(d) iii on the 22nd November 2021 and the Licensor has now via this email officially accepted the outstanding works as complete on the same date.

2. Therefore, official handover and possession of license area has now been accepted by Licensor on the 22nd of November 2021.

3. Subject to clause 13(e) of the Licence Agreement, for the record, the official Termination Date and official handover date is the 22nd November 2021 as has been confirmed and acknowledged by both Parties in writing.

…”

Mr Andary attached an invoice in the sum of $114,708.00, and described 22 November 2021 as “the actual and effective termination date”.

  1. Correspondence continued. On 24 November 2021, Mr Huynh disputed that Qantas’s cleaning was inadequate or inconsistent with the terms of the Licence Agreement. He adhered to Qantas’s position that termination occurred on 10 November 2021 and pointed out that there was no provision in the Licence Agreement that permitted the licensor to unilaterally extend the term based on the licensor’s view of the state of the premises. He pointed to third parties having occupied the Car Spaces and rejected the claim for licence fees.

  2. In response, Mr Andary adhered to his own position that the Licence Agreement did not come to an end on 10 November 2021. However, his basis was that, although Qantas purported to terminate the Licence Agreement with effect from that date, it could not do so because it was in breach.

  3. On 29 November 2021, Mr Andary wrote:

"…

5. If a party has a right to terminate but does not correctly followed provisions of the contract to carry out the termination then the termination may be ineffective at law.

6. We say your purported termination was ineffective at law as Qantas did not fulfill its obligations under the License agreement until after 10 November 2021.

7. As there was an ineffective Termination at law, there was Repudiation of the contract under the part of Qantas.

8. At the time of Repudiation of the contract, we had the right to accept the Repudiation and elect to sue Qantas for damages, or, we could elect to continue the performance of the contract. As is clear from our email correspondence to you, we elected to continue the performance of the contract which meant that the contract remained on foot and the licence fee continued to accrue until the Licence agreement was validly terminated and handover obligations were fulfilled.

…”

  1. Mr Andary did not refer to any representation to the effect that Qantas would continue in “occupation”. Indeed, the essence of his claim was that Qantas gave notice of termination, but did so ineffectively and that notwithstanding that expression by Qantas, the plaintiff elected to hold Qantas liable to continue to perform.

  2. It should be noted that nowhere in the evidence was there any record of any communication in which Qantas expressly represented to the plaintiff that it would pay licence fees for the period that it took to clean the Car Park to Mr Andary’s satisfaction. Similarly, there is no record that Mr Andary ever communicated to Qantas his assumption that Qantas would continue to pay licence fees for the period up to the “hand over”. As I understand the plaintiff’s case, it is put that the payment of licence fees was a necessary incident of the continued “occupation” of the premises prior to the handover meeting. On the evidence before me, however, there had not been any discussion as to payment of licence fees prior to the issue of an invoice by Mr Andary on 22 November 2021.

  3. Mr Andary’s characterisation was disputed by Mr Huynh. The correspondence ends with Mr Andary proposing a without prejudice settlement.

Use of the Car Park prior to 22 November 2021

  1. It appears that by early November 2021, and certainly by 10 November 2021, Qantas personnel had stopped using the Car Park. There is no dispute that prior to 10 November 2021, other Car Park users started parking in the Car Spaces. In anticipation of the end of the Licence Agreement, on 2 November 2021, Qantas removed four vehicles, which belonged to Wilson customers, from the Car Spaces. The removal was a matter of some concern to Mr Andary, as paying customers had been inconvenienced, and there was some irritated correspondence from him about it. On 4 November 2021, Qantas had its card readers at the entrance decommissioned.

  2. Photographic evidence before the Court demonstrated that some Wilson customers continued to park in the Car Spaces prior to 22 November 2021. In his correspondence of 29 November 2021, Mr Andary conceded that members of the public were parking in the Car Spaces prior to 22 November 2021.

Marketing and availability

  1. The plaintiff contends that it refrained from marketing the whole of the Car Park during the period 11 to 22 November 2021 because it believed that it did not have access to the whole of the Licensed Area during that time.

  2. As noted above, marketing for the Car Park was a matter between the plaintiff and Wilson. Marketing for the Car Park continued throughout the term of the Licence Agreement because 107 spaces were still available for use by the plaintiff and were mostly taken up by customers using the “Park and Fly” service due to the Car Park’s proximity to Sydney Airport. (The Licence Agreement refers to 106 instead of 107 spaces, however, nothing turns on this discrepancy).

  3. Mr Andary gave evidence that, during the term of Qantas’s licence, Wilson’s systems allowed a maximum of 107 casual customers into the Car Park at any one time. However, Mr Andary acknowledged, in correspondence and in his evidence, that even in circumstances where casual customers were parking in the Car Spaces, at no time prior to 22 November 2021 were there 107 cars of Wilson customers parked in the Car Park at the same time.

  4. Mr Andary said that this was because marketing for the whole of the Car Park had not commenced. He said that marketing could not commence until Qantas had vacated the Car Park and the plaintiff had access to the whole of the 857 spaces in the Car Park.

  5. I do not accept this evidence. On 5 October 2021, Mr Andary had a discussion with Ms Rebecca Lester, a manager at Wilson. He sent her an email attaching an updated structure and pricing for both the Wilson and Space Shuttle websites. That structure and pricing document included differential pricing for rooftop, undercover and VIP Park & Fly parking, which corresponded to the different levels of the Car Park that would be made available once the Licence Agreement came to an end. The rates went up in October 2021.

  6. On 7 October 2021, Mr Andary sent a further email to Ms Lester sending further worksheets. Mr Andary sent a further email to Ms Lester asking her to confirm the parking quota for the outdoor rooftop, undercover levels 1 to 4 and VIP ground. This obviously related to the Car Spaces.

  7. Later that day, Ms Lester proposed caps for the Car Park at 300 for roof outdoor, 300 undercover and 100 VIP. Mr Andary later amended the caps to 220 roof outdoor, 650 undercover and 150 VIP. As the caps proposed by Mr Andary exceeded the actual capacity of the Car Park, it may well be that the limits imposed by the system, according to the number of spaces that are occupied, were not as strict as Mr Andary’s evidence suggested. This, however, was not explored and no submission was made in respect of it.

  8. On 20 October 2021, Mr Andary followed up with Ms Lester to confirm that the quotas had been updated in the Wilson system.

  9. On 14 November 2021, Mr Andary sent Ms Lester an email in the following terms:

“Hi Rebecca,

Thanks for the clarity on Promo codes.

Can I please have the following Promo codes specifically for Undercover Parking levels 1 to 4 only.

5% discount: promo code: WINSAVE5

10% discount: promo code: WINSAVE10

Promocodes VALID FROM NOW UNTIL 31st December 21 midnight.

Best,

The Andary Group of companies

Richard Andary

Managing Director”.

[Emphasis in original].

  1. "Promo codes” are promotional discount codes used when booking a service online.

  2. On 15 November 2021, Mr Andary sent a further email to Ms Lester and other Wilson personnel changing the rates for certain days of multiday undercover and rooftop parking.

  3. On 18 November 2021, Mr Andary sent Ms Lester an email in which he referred to the promo codes as “All set up and operational for some time now”.

  4. This email exchange establishes that the plaintiff was marketing the Car Spaces well in advance of 22 November 2021. As was clear from the correspondence concerning the removal of customer cars from the Car Spaces on 4 November 2021, and the presence of such cars at the time of each “hand over” meeting that Mr Andary attended, Mr Andary was aware that the Car Spaces were being used by Wilson customers, not Qantas employees. When cross-examined, Mr Andary said that there were block out dates, which he described as dates on which the system, operated by Wilson, would not allow bookings in excess of 107 spaces, or of the Qantas Car Spaces, to be made.

  5. The emails themselves did not refer to any block out dates, or even suggest that such a practice was in operation between the plaintiff and Wilson. No correspondence or other documents were produced to support this contention.

  6. Mr Andary stated that block out periods were set orally, between him and Wilson. He did not identify who, at Wilson, was the other person who was party to such conversations. No one was put forward to corroborate Mr Andary’s account.

  7. In cross-examination, Mr Andary accepted that each of the people who had been a recipient or sender of any of the emails described above was still working at Wilson (or Space Shuttle as the case may be) and there was no reason why they could not have given evidence about any conversations about block out periods.

  8. Accordingly, a Jones v Dunkel inference is available in respect of the Wilson personnel, including Ms Lester, and I draw the inference that their evidence would not have assisted the plaintiff by corroborating Mr Andary’s evidence or otherwise.

  9. In assessing Mr Andary’s evidence, I have found that it does not conform with the logic of events. Further, the contemporaneous documentary material is not consistent with his evidence. The correspondence with Wilson demonstrates that steps were taken in early October 2021 to prepare for the whole of the Car Park becoming available to members of the public. It also demonstrates that the whole of the Car Park was available to be booked and used by members of the public since no later than 14 November 2021. If there had been any block out instruction, it could only have been given after the 10 November “hand over" meeting. The first email communication from Mr Andary to Ms Lester after that date – the email of 14 November 2021 – does not refer to any block out and, to the contrary, refers to a promo code that was immediately valid.

  10. Further, there was no documentary support for such an allegation in circumstances where it appears most unlikely that such a matter would be dealt with orally only, given its significance and the course of email correspondence at about that time. The absence of corroboration adds some minor additional support to this finding. Mr Andary’s evidence was vague and imprecise and I did not accept it.

  11. Further, the evidence of the actual use of the Car Park during this time was that very few customers parked there. It is hard to see what practical purpose block out dates would serve.

  1. Accordingly, I do not accept that there was a block out on available dates when marketing the Car Park to the public or in accepting bookings. I, therefore, find that the plaintiff did not forego any opportunity to market and accept bookings for the whole of the Car Park, including the Car Spaces formerly licensed by Qantas.

Consideration: rights under the Licence Agreement

  1. The parties’ communications in November 2021 were infected by error as to their respective rights and responsibilities under the Licence Agreement.

  2. First, there was an assumption that the Licensed Area comprised the whole of the Ground Level and Levels 2 to 5 of the Car Park, as well as part of Level 1. It did not. The Licensed Area was the Car Spaces themselves. The ramps, driveways and lift doors remained part of the common areas. So much is clear from the definition of “Licensed Area” in the Reference Schedule.

  3. Secondly, the introduction of a handover meeting connotes that Qantas had a possessory right in the nature of a tenancy, which it was bringing to an end. The express exclusion in cl 1 of any tenancy rights from the grant makes clear that Qantas never had any such right. It did not “possess” the Car Spaces or any of the common areas. On termination of the Licence Agreement, it was not delivering up possession to the plaintiff. All it was doing was ceasing to use the Car Spaces for the permitted purpose.

  4. Finally, although it is by no means clear that Qantas acceded to this view, the plaintiff proceeded at all times (including in the conduct of these proceedings) on the assumption that Qantas was in breach of a contractual obligation to handover the Licensed Area at the end of the term, having been cleaned to Mr Andary’s satisfaction. In my view, there was no such obligation. There was no general obligation to keep the Licensed Area clean. The only relevant express obligations in this regard were set out in cll 6(c) and 13(d)iii: “not to cause or permit any rubbish to be left on or about the Licensed Area” and to “leave the Licensed Area in a condition consistent with the Licensee having complied with its obligations under the Agreement”. Clause 13 does not expand the nature of the obligation in cl 6.

  5. The plaintiff argued that dust, leaves, water and a stray cigarette butt constituted rubbish for the purpose of cll 6(c) and 13(d)iii of the Licence Agreement.

  6. The parties both made submissions on the question of breach. The Licence Agreement is a commercial document and, as such, is to be construed in a businesslike manner. Construction is determined objectively and the parties’ subjective understanding is irrelevant to the Court’s objective determination of the meaning of the language used in the contract.

  7. In Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37, French CJ, Nettle and Gordon JJ stated at [46] to [51] (footnotes omitted):

“The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.

In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That enquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.

Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.

However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding ‘of the genesis of the transaction, the background, the context [and] the market in which the parties are operating’. It may be necessary in determining the proper construction where there is a constructional choice. The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals.

Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties' statements and actions reflecting their actual intentions and expectations.

Other principles are relevant in the construction of commercial contracts. Unless a contrary intention is indicated in the contract, a court is entitled to approach the task of giving a commercial contract an interpretation on the assumption ‘that the parties ... intended to produce a commercial result’. Put another way, a commercial contract should be construed so as to avoid it ‘making commercial nonsense or working commercial inconvenience’”.

  1. I reject the argument that dust, leaves, water and a stray cigarette butt comprised “rubbish” for the purpose of cll 6(c) and 13(d)iii. It seems tolerably clear to me that rubbish, in the context of the Licence Agreement, means waste material or objects which have been discarded, either by Qantas personnel or by others on or about the Licensed Area. It does not include dust residue or leaves. In the photographic evidence, a single cigarette butt was shown. I do not accept the cigarette butt to evidence a breach of the Licence Agreement. Even if properly characterised as rubbish, a cigarette butt would be a de minimis breach for which no consequences would flow. I do not, however, accept that its presence constituted a breach by Qantas of its obligations under cl 6 or cl 13.

  2. I also am not satisfied that the condition of the Licensed Area at the end of the Licence Agreement was not consistent with Qantas having complied with its obligations under the Licence Agreement. As discussed above, compliance with its obligations under the Licence Agreement did not require the status quo ante as it existed at the commencement of the Licence Agreement to be restored. Even if it did, I was not satisfied that its condition at the start of the Licence Agreement was any different to its condition on 10 November 2021.

  3. Accordingly, I reject the contention that Qantas was in breach of any obligation with respect to the condition of the Licensed Area as at 10 November 2021. I also reject the contention that Qantas had had possession of the Licensed Area and that it delivered up possession at the conclusion of the Licence Agreement, by way of a formal handover or otherwise.

  4. It follows that the plaintiff did not have any basis either to insist on further cleaning of the Car Park or to contend that Qantas remained in possession of the Licensed Area at any time, in particular for any period after 10 November 2021.

Consideration: implied licence

Relevant principles

  1. The plaintiff alleges that the conduct of the parties in the period 2 to 22 November 2021 establishes that an implied contract was created in which they continued to act as if the contract still bound them. In this regard, the plaintiff relies on Brambles Ltd v Wail; Brambles Ltd v Andar Transport Pty Ltd (2002) 5 VR 169; [2002] VSCA 150 in which it was stated by the Victorian Court of Appeal at [61]:

“The question whether an implied or tacit agreement to continue dealing on the same terms save that the agreement should be terminable on reasonable notice is to be inferred is, as Desmond, C.J. stated and as the other cases and the treatises make abundantly clear, an evidentiary or factual question. On the facts we have set out earlier we consider such an inference should be drawn here. The evidence, fairly sparse though it is, warrants the finding that after 3 April 1993 the parties proceeded as though still governed by the terms of the original agreement (save that, since it had already expired, either could terminate the substitute arrangement on reasonable notice), rather than a finding that they impliedly agreed merely that Andar should collect and deliver the laundry and that Brambles should pay it a reasonable sum for that or a finding that the parties made a series of individual implied agreements, six days a week, for that work to be done for a reasonable sum. In other words, after 3 April 1993 the parties operated under a standing agreement under which all the procedures and, importantly, the remuneration were exactly the same as they had been under the written agreement. The parties intended that that should be so.”

  1. In Brambles, following expiry of a service contract, the parties continued to act as if the contract was on foot by respectively providing services and receiving and paying for them.

  2. The present situation is very different. Qantas did not use the Car Spaces for the permitted purpose or otherwise beyond 10 November 2021. It appears to have ceased using the Car Spaces some time earlier. Qantas had given notice that it would not renew the Licence Agreement beyond the initial term and decommissioned its card readers. There was no communication, nor was there any conduct, which supports the inference that there was an implied or tacit agreement that the Licence Agreement should continue. Wilson customers could and did use the Car Spaces prior to 10 November 2021 and did so afterwards as well. Indeed, the communications between the parties in the period from May 2021 until 22 November 2021 were all directed to the termination of the Licence Agreement, and the conduct of the parties was consistent with such a purpose.

  3. For the above reasons, I reject the contention that there was an implied licence for the continued use of the Car Spaces from 10 November 2021.

Consideration: estoppel

Relevant principles

  1. An estoppel by representation arises where a representor, by its words or conduct, has made a representation which justified the representee in believing that a certain state of facts exists, and in that belief the representee has altered its position. It resolves a contradiction between an earlier statement of fact by the representor and its later statement on the same subject by treating the earlier statement as true: Patrick A Keane, Estoppel by Conduct and Election (3rd ed, 2023, Sweet & Maxwell) at [1-005]. It is comprised of the following elements:

  1. A statement or other conduct that constitutes a representation of fact;

  2. Its communication to the representee;

  3. The representee’s justifiable belief in its truth;

  4. The representee’s alteration of position in that belief;

  5. An attempt by the representor to contradict its representation; and

  6. Prejudice to the representee as a result of its alteration of its position if contradiction of the representation were permitted.

  1. The plaintiff asserts that Qantas is estopped from denying that the Licence Agreement remained on foot. It submitted that:

  1. The plaintiff adopted a position that the Licence Agreement remained on foot (the Assumption);

  2. Qantas, by its conduct, induced or acquiesced in the plaintiff’s adoption of the Assumption;

  3. In reliance on the Assumption, the plaintiff did not retake possession of the Licensed Area and lease out any of the 750 licensed bays between 10 and 22 November 2021;

  4. Qantas had knowledge of the position adopted by the plaintiff; and

  5. The plaintiff would suffer detriment if the Assumption was not fulfilled as it has otherwise suffered the irreparable loss of opportunity to lease out the licensed bays during the period 10 to 22 November 2021, which it would otherwise have done.

  1. The Representations which comprise the relevant conduct were pleaded to be:

  1. Qantas had accepted the responsibility to clean the Licensed Area;

  2. That it would do so; and

  3. “Hand over” would occur on completion of the cleaning conducted by or on behalf of Qantas.

  1. The same Representations are relied on with respect to the plaintiff’s s 18 ACL claim.

  2. The first element of the action is that there be a representation. The representation must be clear and unequivocal or unambiguous, whether in relation to a present fact or, where relevant, future intention or conduct: Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406 at 436-7 per Mason and Deane JJ. Care must be taken to ensure that consequences are not read into a representation not merited by its terms: see, for example, Stowe & Devereaux Holdings Pty Ltd v Stowe (1995) 19 Fam LR 409; (1995) 127 FLR 25 at 41, 44-45.

  3. On the other hand, the Court should not search for ambiguity or uncertainty, but should assess the question of clarity and certainty practically and sensibly, as well as contextually. The Court is concerned with what the terms of the representation objectively convey in the circumstances. What amounts to sufficient clarity depends to a large extent on the relevant factual context.

  4. In addition to establishing a clear and unequivocal representation, the plaintiff must show its reliance on that representation. This requires proof of a sufficient link between the representation relied on and the conduct which constitutes the detriment. The assumption must be proved to have been induced by the defendant or from the plaintiff’s own assumption: Furness v Adrium Industries Pty Ltd [1996] 1 VR 668 at 673-4. The representation need not have been the plaintiff’s sole inducement for acting as it did, however, it must have played a part.

  5. The plaintiff must also establish that its reliance on the representation was reasonable in the circumstances. This is determined with reference to the position of the plaintiff, rather than the defendant. It is determined according to the facts of each case, with reference to the parties involved, their knowledge and bargaining position, and the circumstances in which the alleged representation was made: Austotel Pty Ltd v Franklins Self-serve Pty Ltd (1989) 16 NSWLR 582 at 585-6. The reasonableness of the reliance also is relevant to an assessment of the detrimental action taken in reliance on the representation.

  6. Finally, as well as showing reasonable reliance on a clear and unequivocal representation, the plaintiff must establish that reliance on the representation was to its detriment. There must be a causal link between reliance and detriment and it is proof of relevant detriment that raises the equity. Relevant detriment is that which was caused by reliance on a promise, that is, by acting or abstaining from acting on the face of a promise that is not fulfilled.

  7. The present case is framed as a case in common law estoppel by representation. As a result, the relief available, if the estoppel is made out, is generally to make good the representation, which the plaintiff says would entitle it to compensation in a sum equivalent to the licence fees which would have been due if the Licence Agreement were extended to 22 November 2021.

Consideration

  1. On the evidence before me, I am not satisfied that the plaintiff has made out its claim to an estoppel by representation.

  2. First, I am prepared to accept that representations were made by Qantas to the effect that Qantas considered it had an obligation to perform at least some cleaning of the Car Park and that there would be a “hand over” of the Licensed Area, thus bringing the relationship between the parties to a close. This appears to flow from the parties having arranged a handover and Qantas accepting that “hand over” could not occur until there had been a meeting onsite and Mr Andary had accepted that the Licensed Area had been cleaned to his satisfaction. Although there was, as I have found, no contractual obligation to do so, I consider the evidence of the words and conduct of Qantas sufficient to comprise a representation to that effect.

  3. However, this does not, in my view, establish a representation to the effect that the Licence Agreement would continue to govern the relationship between the parties or that a new implied arrangement would be brought into effect in cognate terms. Still less does it establish a representation that Qantas would remain liable for licence fees or that third parties could not park in the Car Spaces. It might also be noted that, at the time, Mr Andary wrote that the Licence Agreement continued to apply because Qantas could not lawfully terminate it, even though it had purported to do so. He did not say that it continued to apply because he understood that Qantas accepted that it would continue to do so.

  4. The plaintiff relies on an internal Qantas email sent by Mr Huynh to Ms El-Zbaidieh and Ms Pile on 10 November 2021, in which Mr Huynh said:

“I spoke to Richard again and he said that it will take over a week to get the quote.

As our handback date is today, we are on the hook for rental as make good has not been completed to their satisfaction.

While I understand that he is just kicking up a fuss (seems annoyed still about the towed cars) he does have grounds to stand on as the ground floor clean was not completed.

Are you able to provide a scope of works on what you believe is still required and what we missed? I can then pass it to him to make sure that it is agreed before the works are done. After my brief conversation with him, I think if we get them to do the works, he will drag it out to get as much rental as he can as he already said it will be over a week for them to get a quote.”

  1. In his evidence, Mr Andary does not say that he had any discussion with any Qantas representative in which they said that they would continue to pay “rent”. If Mr Huynh subjectively believed that Qantas had such an obligation, he does not appear to have made that concession in any communication with Mr Andary.

  2. At its highest, Qantas’s objective conduct and communications to the plaintiff, according to the evidence that I have accepted, were consistent with acceptance of an obligation to clean. It does not follow that this carried with it a representation that Qantas would continue to pay a licence fee while it continued to clean the Licenced Area or that third parties could not park in the Car Spaces. There was no evidence of any representation to that effect. I am not satisfied that any such representation could reasonably have been inferred.

  3. The fact that Qantas undertook to clean the Car Park – even though it had no obligation to do so – did not amount to either an express or implied representation that it would continue to pay a licence fee while it did so, or that any casual parking customers of the plaintiff would thereby be excluded from the Car Spaces. In my view, it only related to the date on which Qantas would complete cleaning.

  4. Significantly, notwithstanding Mr Huynh’s internal email to Ms El-Zbaidieh and Ms Pile on 10 November 2021, there was no representation that Qantas would pay any sort of fee while it cleaned the plaintiff’s Car Park after expiry of the Licence Agreement. In my view, there would have to have been an express and unequivocal representation that the Licence Agreement would continue, including with respect to payment of Licence Fees, in order to make good the plaintiff’s representation allegations. The evidence does not establish any such representation. The plaintiff’s principal claim and contemporaneous correspondence were to the effect that the Licence Agreement remained on foot notwithstanding Qantas’s expressed intention to the contrary.

  5. To the extent that the plaintiff relies on Mr Andary’s subjective statements of belief in his affidavit evidence, I do not accord those statements any weight and prefer the objective, contemporaneous evidence.

  1. Accordingly, the plaintiff’s estoppel claim must fail.

Reliance

  1. In any event, even if I were to assume in the plaintiff’s favour that there were Representations in the form pleaded, I am not satisfied that the plaintiff has suffered any detrimental reliance. This is independently fatal to the plaintiff’s estoppel claim, as well as to its claim for relief under the ACL.

  2. The plaintiff fails on the question of reliance because the evidence does not establish that the plaintiff eschewed any opportunity to derive income from the use of the Car Spaces. To the contrary, the evidence establishes that the plaintiff took steps to market the Qantas levels of the Car Park from October 2021, in anticipation of the whole of the Car Park becoming available for public parking in November 2021. I reject as untrue the allegation that there was a block, on the number of users who could book or enter the Car Park, that restricted numbers to 106. The evidence showed that members of the public were parking in the Car Spaces even before 10 November 2021.

  3. In the absence of any evidence of any reliance, let alone detrimental reliance, the plaintiff’s estoppel claim must fail on this basis as well. As addressed below, I was also not persuaded that the plaintiff lost any opportunity to take advantage of increasing airport traffic in November 2021 due to the relaxation of COVID-19 travel restrictions.

  4. The plaintiff’s evidence was that, but for the conduct of Qantas in continuing to clean the Car Park and there being a delay in the “hand over”, it would have arranged for the Qantas floors to be cleaned, and opened each floor, for use by the public, as the other floors were being cleaned.

  5. On the basis of the evidence I have already identified, I consider that the floors were being marketed and used by non-Qantas employees throughout this time. Therefore, even if these were steps that the plaintiff would have taken, I do not consider that the counterfactual would have resulted in any different outcome for the plaintiff. If anything, it would have only served to impose an additional cost on the plaintiff.

Misleading or deceptive conduct

  1. The plaintiff’s final cause of action is a claim for damages for contravention of s 18, ACL.

  2. The presentation of this claim by the plaintiff has some difficulty. The alleged conduct is the making of the same Representations comprised in the estoppel claim. Those representations were:

  1. Qantas accepted that it had a responsibility to undertake cleaning of the Licensed Area;

  2. Qantas would carry out and/or organise the cleaning of the Licensed Area; and

  3. The handover of the Licensed Area would occur after completion of the cleaning of the Licensed Area.

  1. As I have already noted with respect to the estoppel claim, there is nothing in the pleaded Representations to the effect that Qantas would pay an occupation or licence fee referable to the period between expiry of the Licence Agreement and the “hand over”. Further, no claim is made on the basis of any future representation.

  2. Qantas acted in accordance with the above representations. It was not pleaded that those representations implied a further representation that Qantas would continue to pay a licence fee or that Qantas retained exclusive rights to use the Car Spaces pending the handover. However, assuming that such an implied representation had been pleaded, the facts do not support an allegation that Qantas made any such implied representations. Indeed, the evidence that third party cars were parked in the Car Spaces, at the time of the various handover meetings, demonstrates that both parties were aware that Qantas did not assert any such right.

  3. It is difficult to see how any loss could flow from the pleaded representations, even if it were established that they were misleading or deceptive. Accordingly, the plaintiff’s claim for contravention of s 18, ACL fails.

Detriment and damages

  1. Against the possibility that I have erred with respect to the plaintiff’s misleading or deceptive conduct claim, I have considered what damages it may be entitled to.

  2. Even if I had found that the Representations were made, I have not found that the plaintiff has suffered any damage by them.

  3. The plaintiff relied on the evidence of Mr Andary and Ms McCallum, an expert forensic accountant. Mr Andary said that, by reason of the Representations, he lost the opportunity to lease out the Licensed Area during the period 11 to 22 November 2021. The damages claim is for $68,093.55.

  4. On the evidence before me, I am not satisfied that the plaintiff lost any such opportunity. Steps in anticipation of marketing the whole of the Car Park were taken in October 2021. I have not accepted Mr Andary’s evidence that those steps were orally countermanded in or before November 2021. On the evidence, I find that marketing of the Car Park was not constrained by any conduct or representation on the part of Qantas.

  5. Further, I find that there was no impediment from 11 November 2021 restraining customers of the plaintiff from parking in the Car Spaces. The photographic evidence showed that at least some customers did so, even prior to that date.

  6. Finally, the evidence does not establish that but for the further cleaning and delayed “hand over”, the plaintiff suffered any loss by reason of its alleged loss of opportunity to fill any of the Car Spaces. The plaintiff was already entitled to license the use of 107 spaces in the Car Park. I was not persuaded that those spaces had been filled, with the effect that further revenue may have accrued to the plaintiff by reason of the delayed “hand over”.

  7. Mr Andary said that there was a block, which would have prevented customers being able to book parking or to casually park by presenting at the entry boom gate and taking a ticket. Even if I were to accept this to be the case (and I do not), I was not satisfied that the block was ever activated, that more than 107 customers ever sought to park at the Car Park at any one time or that there may have been sufficient enquiries as might have generated such business, at any time prior to 22 November 2021.

  8. The Car Park primarily serviced travellers looking to self-park when travelling through Sydney Airport. The period was affected by the COVID-19 lockdown, which restricted interstate and international travel. The evidence showed that those restrictions started to ease from about November 2021 and air travel started to increase. There was evidence of flight departures over the period from November 2021 to March 2022. That evidence showed that the overall demand was still low in the first half and middle of November 2021.

  9. The plaintiff relied on Ms McCallum’s report. Ms McCallum’s report suffered from such serious methodological defects that it was of no assistance in establishing any loss. Ultimately, the plaintiff accepted that Ms McCallum had overlooked matters that would have been relevant to her opinion as to the loss suffered by the plaintiff, but contended it still had some utility in assessing loss.

  10. Ms McCallum’s approach was to assess loss according to a “but for” measure. She assessed revenue as against costs for the period from December 2021 to March 2022 to derive a net profit figure for each month, based on Wilson’s monthly statements. She then derived an average over that four-month period and then compared that average to the actual net revenue derived in November 2021.

  11. I consider this methodology to have been defective. It did not take account of the changed environment in terms of easing COVID-19 restrictions on travel during that period. It did not take account of greater traffic through the airport – from where the primary market for users of the Car Park was drawn – as a result of the easing of those travel restrictions and ordinary increased demand for travel over the December to January holiday period. Ms McCallum did not consider looking at percentage month to month changes in revenue in any other year not affected by COVID-19 lockdowns (such as 2019) as a comparator. She did not even have reference to the plaintiff’s own accounts. She attributed the change in sales to increased marketing on the basis of no real evidence. Even though likely to be a small point, no allowance was made for the cost that would have been incurred if the plaintiff had undertaken the cleaning of the Car Park itself.

  12. I cannot place any weight on Ms McCallum’s report.

  13. The plaintiff submitted that the Court must do the best it can, Ms McCallum’s evidence is the only evidence available and it should be accorded at least some weight. The plaintiff’s difficulty is that its cause of action for contravention of s 18 is, in fact, a statutory claim for damages under s 236 of the ACL. Proof of loss is an essential component of the cause of action, and the plaintiff bears the onus of establishing loss. In my view, considering both the lay and expert evidence, the plaintiff has not established any loss at all. The evidence does not permit me to infer any such loss.

Conclusion

  1. The plaintiff has failed in each of the causes of action advanced. I will enter judgment for Qantas.

  2. As costs usually follow the event, Qantas would ordinarily be entitled to an order for costs, agreed or assessed on the ordinary basis. Counsel for Qantas asked to be heard on costs.

  3. Accordingly, the Court orders are as follows:

  1. Judgment for the defendant.

  2. Direct the parties to liaise, seek to agree on an order for costs, and notify my Associate of such agreement, by 5pm on 27 August 2024.

  3. In the event that the parties have not agreed on an order with respect to costs, the parties are to provide to my associate, by 5pm on 27 August 2024, a range of mutually available dates for a hearing on the question of costs, preferably on a Friday.

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Decision last updated: 23 August 2024

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Legione v Hateley [1983] HCA 11
Legione v Hateley [1983] HCA 11
Brambles Ltd v Wail [2002] VSCA 150